AGB
Apacor Terms and Conditions of Sale
1. Except where otherwise agreed in writing by Apacor, all orders placed by the buyer (as named in the order) (“Buyer”) are accepted subject to the following conditions of sale, which apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2. An order shall only be deemed to be accepted when Apacor issues an acceptance of the order (including by email or other automated means), at which point, and on which date the contract between Apacor and the Buyer for the sale and purchase of goods specified in the order (“Goods”) shall come into existence. The Buyer is responsible for ensuring that the terms of the order are complete and accurate and the Buyer assumes responsibility that the Goods are suitable for its purpose.
3. All quoted prices are Ex Works after packing and exclude VAT (or other applicable sales tax), which be payable in addition unless otherwise specified in the order. All prices as quoted are valid for a period of 30 days from the date of Apacor’s quotation unless otherwise agreed by Apacor and save for any increases or decreases necessitated by changes in tax.
4. Any illustrations and specifications in Apacor’s literature are as accurate as possible at the time of printing but Apacor reserves the right to make alterations in detail as and when designs and specifications are improved. Apacor reserves the right to supply goods conforming to the latest designs and specifications and the Buyer shall have no claim in respect of any discrepancies between the goods supplied and those described in illustrations and specifications subject to the goods being of comparable quality.
5. Apacor shall despatch Goods by the most appropriate method which may be by post, private or public carrier. The cost of delivery shall be borne by the Buyer. Deliveries offered ex stock are subject to the Goods being unsold at the date of receipt of the Buyer’s order.
6. Times and dates for delivery and performance are estimates only and not binding on Apacor. Time will not be of the essence for delivery. Provided Apacor makes delivery within a reasonable time (taking into account all relevant circumstances) the Buyer will be bound to accept delivery if made after the date estimated in the order, and shall not be entitled to reject the Goods, withhold payment or claim damages.
7. Subject to the conditions set out below Apacor warrants that on delivery the Goods will correspond with their specification and be free from material defects in material and workmanship. This warranty is given subject to the following conditions.
a) Apacor shall have no liability if the Goods fail to comply with the foregoing warranty if any defect arises from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Apacor’s instructions (whether oral or written), misuse or alteration or repair of the Goods without Apacor’s prior approval, or if the Buyer makes any further use of such Goods after giving notice under this clause or if the Goods differ from their specification as a result of changes made to ensure they comply with applicable law.
b) Apacor shall be under no liability under the above warranty if the total price for the Goods has not been paid by the Buyer by the due date for payment.
c) Any claim by the Buyer which is based on a defect in quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to Apacor in writing within 7 days of the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Apacor accordingly, the Buyer shall not be entitled to reject the Goods and Apacor shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
d) Where any valid claim in respect of any of the Goods, which is based on any defect in the quality or condition of the Goods or their failure to meet specification, is notified to Apacor in accordance with these conditions, and Apacor accepts such Goods as defective, Apacor shall replace the Goods (or the part in question) free of charge or, at Apacor’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but Apacor shall have no further liability to the Buyer.
8. To the fullest extent permitted by applicable laws, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where the Buyer is a consumer (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these conditions.
9. These conditions shall apply to any repaired or replacement Goods supplied by Apacor.
10. The price of the Goods shall be the price set out in the order, or, if no price is quoted, the price set out in Apacor's published price list in force as at the date of delivery. Apacor reserves the right, on giving the Buyer notice prior to delivery, to increase the price of Goods to reflect any increase in Apacor’s costs due to any factor beyond Apacor’s control (such as, without limitation, foreign exchange fluctuations, currency regulation, alteration of duties, significant increases in the costs of labour materials or other costs of manufacture) and any change in delivery dates, quantities or specifications for the Goods requested by the Buyer or any delay caused by any instructions of the Buyer or the Buyer’s failure to give Apacor adequate information or instructions.
11. Apacor may invoice the Buyer for the Goods at any time after accepting the order. The Buyer shall pay each invoice submitted by Apacor within 30 days of the date of the invoice to Apacor’s nominated bank account. The right is always reserved to request a remittance with any order. A bank reference is required prior to Goods being delivered on credit otherwise Apacor shall issue a pro-forma invoice which will have to be paid in full before delivery. Apacor shall be entitled to charge the Buyer interest calculated at 5% a year above the Bank of England’s base rate on all amounts overdue.
12. All amounts due shall be paid by the Buyer in full without any set-off (including against credit notes), counterclaim, deduction or withholding (other than as required by law).
13. The Buyer must obtain the written approval of Apacor prior to returning any Goods for whatever reason and Apacor reserves the right to levy a handling charge if a return is agreed. Carriage and insurance for the return will be the responsibility of the Buyer.
14. Title in the Goods shall remain with Apacor until payment of the full price has been received by Apacor. Cheques or money orders must be made payable to Apacor or to its order. Payment shall be treated as received by Apacor when its bank account is irrevocably credited with the amount in question in full.
15. Until title in the Goods passes to the Buyer:
a) the Buyer’s possession of the Goods shall be that of Apacor’s bailee;
b) the Buyer shall keep the Goods identifiably separate from any other property in the Buyer’s possession;
c) the Buyer shall keep the Goods properly stored, protected and insured for their full value; and
d) Apacor may at any time, whether or not the terms of any agreed credit have expired, require the Buyer (at the Buyer’s expense) to return the Goods to Apacor at Apacor’s head office or at such other place as Apacor may reasonably require. In the event of the Goods being returned to Apacor under this sub-clause Apacor will repay any part of the price once received by it less the amount of any other claim Apacor may have against the Buyer under this or any other contract or otherwise.
16. Risk of damage or loss to the Goods shall pass to the Buyer on completion of delivery. Delivery shall be deemed complete at the time of loading (if being collected from Apacor’s premises) or at the time the Goods are unloaded at the Buyer’s premises (as specified in the order).
17. Any alleged loss or damage in transit must be notified to Apacor within 3 days of delivery. In the case of non-delivery, notification must be made to Apacor in writing within 7 days of the estimated delivery date.
18. All intellectual property rights in the Goods shall remain the property of Apacor (or its licensors) at all times.
19. Nothing in these conditions will exclude, restrict or limit any liability of Apacor for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or for any liability if it would unlawful to do so. Subject to the foregoing, Apacor shall not be liable for:
a) loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of operating time or loss of use, loss of or damage to goodwill; or
b) any indirect or consequential loss.
Subject to the foregoing, Apacor’s total aggregate liability to the Buyer arising under or in connection with these conditions and the supply of the Goods shall be limited to an amount equal to 100% of the price paid by the Buyer for the Goods to which the claim relates.
20. Apacor shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of Apacor’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Apacor’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Apacor’s reasonable control Act of God, explosion, flood, tempest, fire or accident. war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the government, parliamentary or local authority, import or export regulations or embargoes, difficulties in obtaining materials, labour, parts or machinery or power failure of breakdown in machinery.
21. For non-UK sales the following additional conditions shall apply. Additional charges (such as packaging) for export delivery FOB will be charged in addition. All orders are accepted subject to the appropriate Export Licence or other necessary Consents being obtained by the Buyer. Unless arrangements are agreed and made in writing with Apacor, payments shall be by bank transfer as notified to the Buyer. The Buyer must arrange its own insurance from the moment of collection the Goods from Apacor (if applicable). Any claim arising out of a non FOB delivery should be made within 3 days of receipt of the Goods by the Buyer or its consignee and in the case of non-delivery it is a term of this contract that the carrier and Apacor should be advised in writing within 28 days in the case of road, rail or air freight or 60 days in the case of post or sea freight from the date of advice of despatch. No claim will be entertained by Apacor unless all packaging materials are retained pending inspection by the carrier and/or Apacor and the representative of the carrier or Apacor.
22. Any notice under these conditions shall be in writing, sent by email to the addresses specified in the order and shall be deemed received on transmission (or, if this time falls outside normal business hours in the place of receipt, when normal business hours resume). Apacor has the right to amend these conditions from time to time. Apacor reserves the right to subcontract all or any part of any order as Apacor deems necessary. A waiver of rights under the contract is only valid if given in writing. A delay or failure to exercise any right or remedy shall not waive that right or remedy. If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the contract. No third party shall have any rights to enforce the contract.
23. The contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales. Any dispute, controversy, proceedings or claim between us relating to the contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England.