Terms & Conditions
ABFAD Limited Terms & Conditions
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The information below relates to all of the activities carried out by the company.
1 Definitions and Interpretation
1.1 In these terms unless the context shall require otherwise:
(a) ’Company’ means ABFAD Ltd, its successors and assigns.
(b) ’Customer’ means the person, firm, company or organisation at whose request the Work is to be done or Goods or Services supplied.
(c) ‘Web Site’ means the files, data and other information hosted at www.abfad.co.uk.
(d) ’Equipment’ means any equipment delivered to the Customer or a location designated by the Customer.
(e) ’User’ means the person, firm, company or organisation operating the Equipment.
(f) ’Manufacturer’ means, in respect of Equipment parts, the manufacturer or trade supplier of the parts and products.
(g) ’Goods’ means any goods or replacement thereof supplied by the Company under the Contract.
(h) ‘Services’ means any services supplied by the company under the contract. This may include (but is not limited to) construction or engineering services for storage tank protection, leak detection monitoring, weld fracture monitoring, abseiling (all disciplines), industrial coatings applying solvent free resins.
(i) ’Completion’ means, in the case of the contract for Work, the date of the Company’s notice to the Customer that Work has been completed; in the case of the supply only of equipment, the date of dispatch of the Equipment; in the case of health and safety support services, the date when the information are sent by post, facsimile or email to the Customer.
(j) ’Order’ means the Order set out on the Order Acknowledgement for Work to be done or Goods or Services to be supplied.
(k) ’Contract’ means the contract upon these terms for the supply of Goods and / or Services and / or performance of Work.
(l) ’Work’ means any works to be performed on Goods or Equipment at the Customer’s request whether by way of site survey, installation, commissioning, training, repairs, servicing or otherwise.
(m) ’Designated Site’ means the building or buildings or geographic area stated in the written quotation and order acknowledgement where the equipment or software will be installed.
1.2 These terms and the terms set out on the Order Acknowledgement together constitute the only terms of the contract and no amendment or addition hereto shall be effective unless agreed in writing by a Director of the Company.
1.3 These terms and the terms set out on the Order Acknowledgement control in the event of any conflict with any other document. That is, unless otherwise agreed in writing by a Director of the Company, these terms and conditions supersede all representations, prior agreements or proposals whether oral, written or otherwise of the Company and delivered to or obtained by the Customer prior to the date hereof, and override any terms and conditions proposed, stipulated or referred to by the Customer in correspondence, order forms or elsewhere.
1.4 Headings in these terms are for convenience only and shall not affect the construction of these terms: the masculine shall include all genders and the singular shall include the plural; any reference to statutory provisions is a reference to such statutory provisions as amended or re-enacted from time to time.
2 Errors and Omissions
2.1 Any typing, clerical or other error or omission in any catalogue, sales literature, price list, dispatch note, invoice or other documentation or any information issued by the company (in whatever form and on whatever media, including web sites) shall be subject to correction without liability on behalf of the company.
2.2 The Customer shall be responsible for ensuring the accuracy of any order submitted by the Customer.
2.3 The customer shall be responsible for timely submission of purchase orders and or orders for service in line with their internal administration system. All orders must be by written consent by an authorised representative of the Company.
3 Quality Assurance
3.1 The Company will perform Work and / or Services consistent with its standard operating procedures. The Customer is exclusively responsible for confirming that these standard procedures will meet the Customer’s needs prior to placing any order for Work and / or Services.
4.1 It is the responsibility of the Customer to have an agreement regarding licenses for any system procured from the Company. The Company will not be held liable for license infringement.
5.1 The Company agrees to maintain in confidence all of the Customer’s proprietary and nonpublic materials, data, reports, plans, records, technical and other information and to use such confidential information only for the purpose of providing Work and / or Services to the Customer. The Company shall protect the Customer’s confidential information by using the same degree, but not less than a reasonable degree of care, to prevent the unauthorised use, dissemination or publication of the confidential information as the Company uses to protect its own confidential information of a like nature.
5.2 In any instance where information is subpoenaed by, and must be released to, a governmental agency, or is otherwise required to be disclosed pursuant to law or regulation, the Customer will be promptly notified.
5.3 The Customer agrees not to use the Company name and / or data in any manner that might cause harm to the Company’s reputation and / or business.
6.1 Where consultancy of any kind is purchased as a Service from the Company, the Company will not be responsible for any consequential loss suffered by the Customer as a result of actions taken by the Customer arising from the consultancy.
8 Formation of Contract
8.1 The Customer’s request to the Company to carry out Work and / or supply Goods and / or Services is an offer to enter into a contract upon these terms. Acceptance occurs and the Contract is formed upon:
(a) the Company accepting purchase order and or contract at its premises; or
(b) the Company issuing to the Customer an acknowledgement of his requested order as an agreement of work to proceed.
8.2 The Contract is personal to the Customer and the Customer shall not assign the benefit of the Contract without the prior written consent of an authorised representative of the Company.
9 Estimates and Quotations
9.1 Any verbal or written estimate given by the Company is a considered approximation of the likely costs of Work and Goods and / or services. Estimates do not constitute an offer by the Company and are normally valid for 30 days from the date stated thereon or if extended past the 30 days as stated on the estimate.
9.2 The price for any Work, Goods or Services quoted in any of the company’s catalogues, sales literature or price lists is exclusive of any applicable VAT, carriage and any other duties which may be relevant, taxes and applicable charges in relation to the Work and Goods and / or Services which the customer shall additionally be liable to pay to the company.
9.3 A site survey may be required to determine the type and positioning of any Equipment supplied to ensure effectiveness of the system at the Designated Site. This may be chargeable. Any price or equipment configuration given verbally or in writing prior to a full site survey must be treated as an estimate. Following a site survey a written quotation may be issued. If a site survey is not carried out and the Customer requests Equipment installation and during or after the installation it is found that additional work or Equipment will be required to fulfill the requirements at the Designated Site then the Customer agrees to pay these additional costs.
9.4 Where the Company provides a written quotation the prices for the Work and Goods and / or Services these will remain firm for orders placed within 30 days of the issue date of the quotation or as stated in clause 9.1.
10 Prices and Variations
10.1 Prices of Goods and / or Services stated in any estimate or in the Order Acknowledgement are based on prices current at the date of the estimate or Order Acknowledgement (as the case may be). Prices will not be firm unless stated as such on the Order Acknowledgement.
10.2 The Company reserves the right to vary the price of work or Goods and/or Services by any amount attributable to a change in the Customer’s instructions, or if the Customer or his sub contractor fails to complete agreed work by the agreed date for installation of the Company’s Goods and Services which results in increased costs to the Company
10.3 All prices stated in any of the company’s catalogues, sales literature, price lists or other documentation (issued by the company from time to time in whatever form and on whatever media) may be altered by the company at any time without given notice to the customer.
10.4 The Contract may not be varied without the express written consent of an authorised representative of the Company. Any variations so agreed shall not constitute a new contract, but shall be deemed to be amendment of this Contract.
11.1 Dates given for the completion of Work or delivery of Goods and / or Services are estimates only.
11.2 The Company will use reasonable endeavours to perform Work and / or supply Goods and / or Services within the time (if any) specified to the Customer. The Customer shall not be entitled to reject Work or Goods or Services completed or delivered later than the estimated date.
11.3 The Company may suspend or delay delivery and shall not be liable for any loss, damage or delay occasioned by failure to deliver Goods and / or complete Work and / or complete Services on the estimated delivery date.
12 Completion and Payment
12.1 All fees are charged and invoiced directly to the Customer.
12.2 Unless otherwise expressly agreed in writing by an authorised representative of the Company delivery of Goods and or services shall be to the Customer’s premises or Designated Site.
12.3 Unless the Company has agreed formal credit facilities in writing all Work, Goods and Services must be paid for 30 days from invoice date.
12.4 The property in the goods shall remain with the Company until such time as any outstanding invoices are paid in full, but any risk inherent in the goods passes to the buyer on delivery.
12.5 The Company shall notify the Customer when Goods on order are ready for dispatch or installation.
12.6 If the customer fails to make payment by an agreed due date then (without prejudice to any other rights or remedies the company may have) the company shall be entitled to cancel the contract or suspend any future Services to the customer.
12.7 Interest will be charged on all sums due under or by way of damages for breach of the Contract at the rate of 8% per annum above the base rate of HSBC Bank Plc from time in force and shall be calculated and accrue on a day-to-day basis from the date on which payment fell due until payment (whether made before or after judgement has been obtained by the Company against the Customer).
12.8 The Company may at any time in its absolute discretion appropriate any payment by the Customer in respect of Work and / or Goods and / or Services to such outstanding debt as the Company thinks fit notwithstanding any purported appropriation to the contrary by the Customer.
12.9 If the Customer defaults in payment for Work and / or Goods and / or Services, the Customer is liable for reasonable collection and / or legal fees.
12.10 The Company reserves the right at any time at its discretion to demand security for payment before continuing performance of an Order.
12.12 The Customer may not withhold payment to the Company if the actions or inactions of the Customer or his sub contractor prevent the goods or equipment from being used.
13 Risk and Retention of Title
13.1 Goods are at the risk of the Customer as soon as the Company delivers them to the Customer premises or designated site.
13.2 Until the Company has received payment in full of all sums owed to it on any account by the Customer, whether arising out of this or any other contract, legal and beneficial title to the Goods shall remain in the Company; such Goods are referred to in this condition as Retained Goods.
13.3 The Customer may use Retained Goods and acknowledges that he shall be in possession of Retained Goods as bailee for the Company.
13.4 The Customer will store Retained Goods separately from his own Goods or those of any other person, keep them safe, in good condition and clearly identifiable as the Company’s property with all identifying marks intact and legible.
13.5 The Company may at any time enter the Customer’s premises for the purposes of inspecting Retained Goods and identifying them as the Company’s property and the Customer irrevocably authorises the Company to enter upon its premises for such purpose.
13.6 The Customer’s power of possession and use of Retained Goods shall terminate:
(a) forthwith on notice from the Company if the Company has reasonable doubts as to the ability or willingness of the Customer to pay any sum to it on the due date; and
(b) automatically upon the occurrence of any of the following events:
(i) if the Customer becomes insolvent or commits any act of bankruptcy or causes a meeting of or makes any arrangement of composition with its creditors; or
(ii) if there is presented a petition for the winding up of the Customer or for the appointment of an administrator of its undertakings; or
(iii) if there is appointed an administrator or undertaking of the Customer;
(iv) if there is passed a resolution or made an order for the winding up of the Customer (otherwise than for the purposes of a bona fide reconstruction or amalgamation of a solvent Company)
13.7 Upon suspension, revocation or determination of the power of possession and use of Retained Goods under this Condition the Customer shall place all the Retained Goods in its possession or under its control at the Company’s disposal and shall be deemed irrevocably to authorise the Company to enter upon any of its premises with or without equipment for the purpose of removing such Goods.
13.8 The repossession of Retained Goods by the Company in accordance with this Condition shall be without prejudice to all or any of the Company’s other rights or remedies against the Customer.
14 Loss or Damage
14.1 The Company is only responsible for the loss of, or damage to, any equipment or its accessories or contents caused by the negligence of the Company or its employees.
14.2 The Company accepts no liability for any loss or damages in any form which may result from how the buyer decides to use the supplied goods or services.
15 Replacement Parts
15.1 All parts replaced during performance of Work shall become the property of the Company to dispose of as it deems fit.
16.1 If the Customer cancels an order the following payment must be made to the Company:
(a) cancellation within 10 days of planned delivery date: 15% of contract price.
(b) cancellation within 20 days of planned delivery date: 10% of contract price.
(c) cancellation within 30 days of planned delivery date: 5% of contract price.
(d) cancellation greater than 30 days of planned delivery date, no penalty unless costs have been incurred for materials, accommodation which the Company cannot recoup. All materials purchased must be fully paid for in addition to above percentage of contract price and any other incurred cost on behalf of the client in preparation of the contract.
The Company shall be entitled to appoint sub-contractors for the performance of its obligations under the Contract but shall be responsible for the quality of sub-contractor’s works.
18 Health and Safety
18.1 Upon delivery of Equipment to the Company the Customer shall immediately inform the Company of any circumstances or matters known to him which render the Equipment unsafe or in a hazardous condition.
18.2 The instructions for use, cautionary notices and other technical notices and information supplied to the Customer with the Goods have been prepared by the Company or the relevant manufacturer of the Goods. The Customer should read such notices carefully. The Company shall not be liable for any loss or damage suffered by the Customer through the Customer’s failure to read and comply with instructions specified in such notices.
19.1 The Customer’s acceptance of Equipment shall occur upon delivery, unless the Company is notified in writing within 14 days from receipt of the equipment by the Customer that the Equipment is defective and details of the nature of the defect.
19.2 If software has been purchased by the Customer that has not been written by the Company, the Company assigns to the Customer the benefit of any applicable Manufacturer’s warranty (if any).
19.2 In respect of parts fitted to the equipment or supplied as Goods the Company assigns to the Customer the benefit of any applicable Manufacturer’s warranty (if any).
19.3 Equipment of the Company’s manufacture carries a 12 and or 24 month warranty from the date of delivery to the Customer. Equipment for repair under warranty will be manufacture cost. Warranty shall be displayed on equipment or on manual supplied by the manufacturer.
19.4 If within the Warranty Period material defects in the Work shall be discovered and:
(a) the Customer notifies the Company as soon as practicably possible after discovery giving particulars, as monitoring equipment sends a signal directly to the Customer if a breach occurred in a storage tank double skin liner for example notification would be expected within 24 hours of alarm being initiated; and
(b) such defect has arisen from faulty material employed or workmanship carried out by the Company, then the Company shall remedy the defect and, if necessary, supply replacement parts, any replaced parts to become the property of the Company to dispose of as it deems fit, however client will be responsible to provide access to storage tank, remove fuel as required and degas said tank(s) at their cost.
19.5 The Company’s liability for defective Work is limited in all circumstances to remedying the Work and supplying (where necessary) replacement parts: completion of such remedial Work shall constitute fulfillment of the Company’s obligations under the Contract.
19.6 The Company’s liability under this Condition applies only to defects appearing whilst the Equipment has been used in a proper manner and maintained in accordance with the Manufacturer’s recommendations and in particular (but without limitation) the Company shall not be liable in the case of defects arising out of normal deterioration, failure to follow Manufacturer’s instructions or improper or faulty handling of the Equipment.
19.7 The Warranties contained in this Clause are in addition to any statutory rights implied in favour of a purchaser of goods.
19.8 Nothing in this Condition shall be construed as limiting or excluding the Company’s liability under Part 1 of the Consumer Protection Act 1988 or for death or personal injury resulting from its negligence (as defined in Section 1 of the Unfair contract Terms Act 1977).
19.9 The following are excluded from warranty:
THE FOREGOING EXPRESS WARRANTY IS EXCLUSIVE AND IS GIVEN IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. THE COMPANY DISCLAIMS ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF MERCHANTABILITY. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNATIVE, EXEMPLARY OR MULTIPLE DAMAGES, INCLUDING (BUT NOT LIMITED TO) DAMAGES FOR LOSS OR PROFIT OR GOODWILL REGARDLESS OF:
(A) THE NEGLIGENCE (EITHER SOLE OR CONCURRENT) OF THE COMPANY
(B) WHETHER THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
The Company accepts no legal responsibility for the purposes for which the Customer uses the installed system.
20 Force Majeure
20.1 The Company shall not be liable to the Customer if unable to carry out any provision of the Contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, acts of terrorism, failure of power supply, lock out, strike, stoppage or other action by employees of third parties in contemplation or furtherance of any dispute or owing to any inability to produce parts or materials required for the performance of the Contract.
20.2 The Company shall notify the Customer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such a contingency the company may, within its absolute discretion, withhold, reduce or suspend performance or its contractual obligations so far as prevented or hindered by such contingency without liability to the Customer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction, or suspension.
20.3 Should such contingency continue for more than one month temporary suspension shall be agreed between both parties, subject to payment for any parts fitted and work tasks completed pursuant to the Contract.
21 No Waiver
21.1 No waiver of any of the Company’s right under the Contract shall be effective unless in writing signed by an authorised person on behalf of the Company. A Waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of the Company’s rights in relation in different circumstances or the recurrence of similar circumstances.
22.1 Any notice under these Conditions shall be properly given if in writing and sent by first class post, or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Customer from time to time communicate to each other as their respective addresses for service. It shall be deemed served in the case of postal notice on the expiry of 96 hours from time of posting, and, in the case of facsimile, on the expiry of 24 hours once receipt has been confirmed of transmission by the sender.
23 Trade Marks & Patents
23.1 ABFAD Ltd and the graphics associated with the ABFAD Ltd logo are owned by the Company and cannot be used without written permission by an authorised representative of the Company. Patents licensed by ABFAD Ltd from the Magnet Partnership including, but not limited to, all theories, ideas, concepts, procedures and results connected with the systems and or products are patented and or patent-pending and sole property of the Magnet Partnership. This research must not be used or published in any form.
Application may be made to the company for a license to use the patented information.
24 Directories and Marketing
24.1 Unless the Customer or User specifically requests, in writing, that the Company shall not mention their name, the Customer agrees to allow the Company to publish the name of the Customer, the name of the User and the location of the equipment for the purposes of providing directories of installations and for general marketing purposes.
25 Construction and Jurisdiction
26.1 English Law shall govern construction and operation of the contract and the Customer agrees to submit to the non-exclusive jurisdiction of the English Courts.