Arrow Valves Limited
Standard Terms of Business
1 Basis of Contracts/Application of Arrow Valves Standard Terms
1.1 These Terms apply to and form part of the Contract between Arrow Valves Limited of York House, Northbridge Road, Berkhamsted HP4 1TA (Co. No 3763582) (AVL) and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
1.2 No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase Terms, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that AVL otherwise agrees in writing.
1.3 No variation of these Terms or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of AVL.
1.4 Each Order by the Customer to AVL shall be an offer to purchase Goods subject to these Terms.
1.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by AVL. If AVL is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
1.6 AVL may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of AVL’s written acceptance of the Order; or AVL dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).
1.7 Rejection by AVL of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
1.8 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract. In addition, AVL may issue quotations to the Customer from time to time, but it should be understood that any quotation is only for customer guidance preparatory to the Customer placing an Order, is not a formal commitment or offer by AVL to supply Goods, and so does not form the basis of a Contract.
1.9 Descriptions, weights, technical data and prices published in AVL’s communications (written, oral or electronic) or made by a representative of AVL, are provided to supply the Customer with information only, and do not form the basis of any contractual liability. Design of goods is subject to alteration without notice.
2 Definitions and interpretation
2.1 In these Terms the following definitions apply:
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
means a day other than a Saturday, Sunday or bank or public holiday in England;
means AVL's terms and Terms of sale set out in this document;
means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
means the agreement between AVL and the Customer for the sale and purchase of Goods incorporating these Terms and the Order;
means the person who purchases the Goods from AVL and whose details are set out in the Order;
means an event or sequence of events beyond a party's reasonable control or delaying it from performing its obligations under the Contract, but excluding the Customer's inability to pay or circumstances resulting in the Customer's inability to pay;
means the goods and related accessories, spare parts and documentation set out in the Order and to be supplied by AVL to the Customer;
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, and all similar rights;
means the address for delivery of the Goods as set out in the Order;
means an order for the Goods from AVL placed by the Customer in substantially the same form as AVL's standard sales order form;
has the meaning given in clause 3.1;
means the statement of work, quotation, description or specification of the Goods set out or referred to in the Order;
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods.
2.2 In these Terms, unless the context requires otherwise:
2.2.1 any clause, schedule or other headings in these Terms is included for convenience only and shall have no effect on the interpretation of the Terms;
2.2.2 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
2.2.3 words in the singular include the plural and vice versa;
2.2.4 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email)
2.2.5 a reference to legislation is a reference to that legislation as in force at the date of the Contract.
3.1 The price for the Goods shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with AVL's scale of charges as advised by AVL before the date the Order is made (Price).
3.2 Prices are exclusive of delivery and insurance which shall be charged in addition at AVL’s standard rates, and VAT. Special delivery requests such as timed or FORS (where agreed to) are subject to additional charge.
3.3 AVL will not be bound to honour any quotation issued more than 90 days before date of Order. AVL may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing. AVL may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to AVL of supplying the relevant Goods which exceeds 15% and which is due to any factor beyond the control of AVL.
4.1 AVL shall invoice the Customer for the Goods at any time after acceptance of the Order.
4.2 The Customer shall pay all invoices in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and to the bank account nominated by AVL.
4.3 AVL may require payment in full for a Customer’s first Order, or any subsequent Order after any delay or shortfall in settlement of amounts due.
4.4 Time of payment is of the essence. Where sums due under these Terms are not paid in full by the due date AVL may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of HSBC Bank plc from time to time in force, and interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.5 AVL may set, vary or withdraw credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit. Credit accounts will be opened at AVL’s absolute discretion and subject to suitable references.
5.1 Carriage charges are added to the cost of each Order. Unless otherwise agreed by AVL in the acknowledgement of an Order, delivery of all Goods (Delivery) occurs on the date(s) when the Goods are made available for collection at AVL's premises by the Customer or the relevant carrier for delivery to the Location set out in the Order.
5.2 The Goods are deemed delivered:
5.2.1 if delivered by a carrier, on delivery of the Goods by AVL to the carrier; or
5.2.2 if collected by the Customer, when AVL makes the Goods available for collection at AVL's premises.
5.3 Goods must be examined on delivery. Any claim for loss, shortages or damage must be reported to AVL in writing within 7 working days of delivery. AVL reserves the right to not accept any claim for loss, shortages or damage after this time.
5.4 The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order. The Goods may be delivered by instalments if specified in the Order. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.5 Delivery of the Goods shall be accompanied by a delivery note stating the date of the Order; the product numbers, type and quantity of Goods in the consignment; and any special handling instructions. AVL will endeavour to specify where possible a consignee to its carriers. AVL will not accept liability for the loss or damage of any Goods that have been signed for by any persons whether the Consignee or otherwise
5.6 Time of delivery is not of the essence. AVL shall use its reasonable endeavours to meet delivery dates but such dates are approximate only. AVL shall not be liable for any delay in or failure of delivery caused by the Customer's failure to make the Location available or provide AVL with adequate instructions for delivery; the Customer's failure to collect the Goods from AVL's premises; or an event of Force Majeure.
5.7 If the Customer fails to accept delivery of the Goods AVL shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by AVL in doing so.
6 Risk and title
6.1 Risk in the Goods shall pass to the Customer on Delivery.
6.2 Title to the Goods shall pass to the Customer once AVL has received payment in full and cleared funds for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods as bailee for AVL;
6.3.2 store the Goods separately from all other material in the Customer's possession;
6.3.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
6.3.4 insure the Goods from the date of Delivery;
6.3.5 ensure that the Goods are clearly identifiable as belonging to AVL;
6.3.6 not remove or alter any mark on or packaging of the Goods;
6.3.7 on reasonable notice permit AVL to inspect the Goods during the Customer’s normal business hours and provide AVL with such information concerning the Goods as AVL may request from time to time.
7 Customer’s Obligations
7.1 To enable AVL to perform its obligations under this agreement the Customer shall co-operate with AVL; provide AVL with any information reasonably required; obtain all necessary permissions and consents which may be required before the commencement of the services and comply with such other requirements as may be set out in the Order, Specification or otherwise agreed by the parties.
7.2 The Customer shall be liable to compensate AVL for any expenses incurred as a result of the Customer’s failure to comply with clause 7.1.
7.3 Arrow Valves is fully compliant with all applicable export control and trade embargo regulations. To that end we will ask all customers outside the UK, and any customer inside the UK that we believe may intend to on-sell or ship our products outside the UK, to declare the intended end-user and final destination country. We reserve the right to decline to accept orders from or to ship goods to any customer who does not provide a full and accurate declaration.
8.1 AVL warrants that the Goods (excluding RPZ Valves due to annual commissioning) shall, for a period of 5 years from Delivery (the Warranty Period) conform in all material respects to the Order and Specification; be free from material defects in design, material and workmanship; and be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
8.2 AVL shall, at its option, repair, replace, or refund the Price of, any Goods that do not comply with clause 8.1, provided that the Customer serves a written notice on Supplier within 7 days of delivery in the case of defects discoverable by a physical inspection; or in the case of latent defects, within 7 days from the date on which Customer first becomes aware (or should reasonably have become aware) of the defect, provided the notice is received within the Warranty Period. The Customer shall also provide AVL with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising; give AVL a reasonable opportunity to examine the defective Goods; and return the defective Goods to AVL.
8.3 The provisions of these Terms, including the warranties set out in clause 8.1, shall apply to any Goods that are repaired or replaced with effect from Delivery of the repaired or replaced Goods.
8.4 AVL shall not be liable for any failure of the Goods to comply with clause 8.1:
8.4.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
8.4.2 to the extent caused by the Customer's failure to comply with AVL's instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
8.4.3 to the extent caused by AVL following any specification or requirement of the Customer in relation to the Goods;
8.4.4 where the Customer modifies any Goods without AVL's prior consent or, having received such consent, not in accordance with AVL’s instructions; or
8.4.5 where the Customer uses any of the Goods after notifying AVL that they do not comply with clause 8.1.
8.5 Except as set out in this clause 8, AVL gives no warranties and makes no representations in relation to the Goods; and shall have no liability for their failure to comply with the warranty in clause 8.1, and all warranties and Terms (including the terms implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
9 Limitation of liability
9.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 9.
9.2 Subject to clause 9.4, AVL’s total liability shall not exceed whichever is greater of the total Price for the Goods or (i) if the Customer enters into the Contract as a consumer, the sum of £10,000 or (ii) in all other cases, a sum equal to three (3) times the the total Price for the Goods, and AVL shall not be liable for consequential, indirect or special losses.
9.3 Except as expressly stated in the Contract, and subject to clause 9.4, all warranties and Terms whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
9.4 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; and any other losses which cannot be excluded or limited by applicable law.
10 Intellectual property
10.1 All Intellectual Property Rights produced from or arising as a result of the performance of the Contract shall, so far as not already vested, become the absolute property of AVL, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in AVL by the execution of appropriate instruments or the making of agreements with third parties.
11 Force Majeure
11.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration; and uses best endeavours to minimise the effects of that event.
11.2 If, due to Force Majeure, a party is or shall be unable to perform a material obligation; or is delayed in or prevented from performing its obligations for a total of more than 30 days in any consecutive period of 90 days then the other party may, within 14 days, terminate the Contract on immediate notice.
12.1 AVL may terminate the Contract and any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
12.1.1 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
12.1.2 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 14 days after AVL has given notification that the payment is overdue; or
12.1.3 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
12.2 AVL may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
12.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
12.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if AVL reasonably believes that to be the case, or becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
12.2.3 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income or has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
12.2.4 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or
12.2.5 is subject to any events or circumstances analogous to those in clauses 12.2.1 to 12.2.4 in any jurisdiction.
12.3 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle AVL to terminate the Contract under this clause 12, it shall immediately notify AVL in writing.
12.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of AVL at any time up to the date of termination.
13 Dispute resolution
13.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 13. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
13.2 The parties shall use all reasonable endeavours to reach a negotiated resolution. The specific format for the attempted resolution of the dispute shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
13.3 Either party may issue formal legal proceedings or commence alternative dispute resolution procedures any time whether or not the steps referred to in this clause 13.2 have been completed.
14.1 Any notice given by a party under these Terms shall be in writing and in English; be signed by, or on behalf of, the party giving it (except for notices sent by email); and be sent to the relevant party at the address set out in the Contract
14.2 Notices may be given, and are deemed received:
14.2.1 by hand: on receipt of a signature at the time of delivery;
14.2.2 by post: at 9.00 am on the 2nd Business Day after posting;
14.2.3 by email provided confirmation is sent by first class post, on receipt of a delivery receipt email from the correct address.
14.3 This clause 14 does not apply to notices given in legal proceedings or arbitration.
15 Cumulative remedies
The rights and remedies provided in the Contract for AVL only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
17 Entire agreement
17.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
17.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
17.3 Nothing in these Terms purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, AVL.
19.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without AVL’s prior written consent, which it may withhold or delay at its absolute discretion.
19.2 Notwithstanding clause 19.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives AVL prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
20 Set off
20.1 AVL shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which AVL has with the Customer or any Affiliate.
20.2 The Customer shall pay all sums that it owes to AVL under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
21 No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.
22 Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause AVL irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to AVL, the Customer acknowledges and agrees that AVL is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
23.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
23.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
24.1 No failure, delay or omission by AVL in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
24.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by AVL shall prevent any future exercise of it or the exercise of any other right, power or remedy by AVL.
25 Compliance with law
AVL and the Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
26 Conflicts within contract
If there is a conflict between the terms contained in the Terms and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Terms shall prevail.
27 Third party rights
Except as expressly provided for in clause 0, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. Any Affiliate of AVL shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
28 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).