TERMS & CONDITIONS OF SALE
1) In these conditions:-
(a) the “company” means FLETCHER EUROPEAN CONTAINERS LTD t/a SUPERTUFF EUROPE;
(b) “Contract” means a contract between the Company and the Buyer for the sale and purchase of goods.
(c) “Buyer” means a business or consumer whose order for the goods is accepted by the company
(d) “Goods” means the Goods which the Company is to supply in accordance with these conditions
2) These conditions shall govern the Contract to the exclusion of any other terms and conditions between the Company and the Buyer and no variation to a Contract or these Conditions (including a purported incorporation of the Buyer’s standard terms and conditions of business) shall be binding on the Company unless agreed in writing and signed by an authorised representative of the company.
3) Acceptance of any quotation made by the company shall not constitute a Contract until acceptance is confirmed in writing by the Company.
4) Quotations and prices for goods are subject to withdrawal or alteration without notice.
5) Contracts shall be governed by and constructed in accordance with English Law.
1) All prices for Goods are net unless otherwise stated. All quotations are made and orders accepted on the basis that should costs rise for any reason over those prevailing at the date of Contract, the company reserves the right to vary prices during the currency of any contract based hereon.
2) All quotations and prices are exclusive of Value Added Tax (VAT) which shall be chargeable thereon.
3) Unless otherwise stated and with the exception of certain areas of the UK, all prices are inclusive of transport costs to a single destination. Onsite installation is not included.
1) The price quoted for goods is for stipulated quantities only. Delivery up to 10% above or below the quantities of Goods ordered shall be permissible, unless otherwise stated. All quotations for Goods to be delivered from stock are subject to these Goods being unsold on receipt of order.
2) No order which has been accepted by the Company in accordance with the provisions of these Conditions may be cancelled by the Buyer except with the agreement in writing of the Company and on the terms that the Buyer indemnifies the Company in full for any costs, damages, losses, charges and expenses (including loss of profit) incurred by the Company as a result of such cancellation.
4. PAYMENT TERMS
1) Payment shall be made no later than the last day of the month following the month of invoice without any discount or other deduction and without any deferment or set-off on account of disputes or cross claims unless otherwise agreed in writing. The time for payment of any invoice shall be the essence of the Contract.
2) Unless otherwise provided all sums shall be paid in sterling at our principal place of business in the United Kingdom. Should payments be in different currency as provided under the Contract then in the event of any devaluation of such currency after the date of the Contract any prices or charges shall be increased in proportion with the alteration in the parity rate between such currency and sterling.
3) If the buyer fails to make any payment on the due date for whatever reason, then without prejudice to any other right that the company may have, it shall be entitled to:-
(a) charge interest on all overdue sums owing to it at the rate of 4% per annum above the base rate or HSBC Bank Plc current at that time and interest shall be calculated from the date the sums in question were payable to the date on which payment is made in full whether before or after judgement; and
(b) cancel the Contract or suspend any further deliveries of the Goods to the Buyer.
1) Except as provided in Clause 5(2) no guarantee is given that Goods supplied with conform in detail with any descriptions and illustrations in the Company’s catalogues or brochures or with any others on which any quotation may be based or with any samples submitted and none of these shall form any part of the Contract. The company reserves the right to substitute suitable materials for any specified or used in samples.
2) Drawings and specifications specially prepared by the Company for the purposes of the Contract shall form part thereof unless the Company stipulates otherwise. The Buyer shall accept variations in size and specification consistent with normal manufacturing tolerances.
6. OWNERSHIP OF THE GOODS
1) The risk of damage or loss of the Goods shall immediately pass to the Buyer upon delivery or collection (as the case may be) of the Goods into the custody, care or control of the Buyer or its warehousemen, bailees or agents or to the carriers and the Buyer thereafter shall be responsible for all claims, actions and losses arising out of or in way associated with the Goods.
2) Unless and until the Company shall have been paid in full for the Goods comprised in the Contract, and all other outstanding monies due to the Company have been paid:
(a) property in the goods shall remain in the Company;
(b) the Buyer shall, at the Buyer’s cost, keep the Goods separate from its other goods and those of any third parties and properly stored, protected and insured (to their full replacement value) and identified as the Company’s property;
(c) the company shall at any time require the Buyer to deliver up such Goods to the Company.
1) Unless otherwise agreed in writing, Tools and Jigs designed by the Company and manufactured on behalf of the Buyer for mouldings to be supplied under a Contract are the property of the Company notwithstanding the fact that the Buyer may have been charged with some or all of the cost thereof.
2) Orders for Tools and Jigs to be manufactured on behalf of the Buyer are accepted on the basis that such orders can be cancelled, suspended or modified only with the Company’s written consent and on the terms that the Buyer indemnifies the Company in full for any costs, damages, losses, charges and expenses (including loss of profit) incurred by the Company as a result of such cancellation, suspension or modification of terms.
3) The Company may destroy all Tools a Jigs which have not been used for a period of three years upon giving the Buyer three months’ notice in writing.
4) The Company undertakes to keep the Tools and Jigs under good repair but makes no guarantee to the Buyer as to the output which the Tool or Jig will produce. A charge will be made for major overhauls or refurbishments of Tools if and when this becomes necessary.
5) The Company will not be liable to insure any Tool or Jig against loss, damage, destruction, theft or other risk.
8. INTELLECTUAL PROPERTY RIGHTS
1) All and any intellectual rights in all drawings, tools, models, artwork, proofs, sketches and other designs produced on behalf of the Buyer shall remain the property of the Company unless there is a specific written agreement with the Company making special arrangements for the ownership of the intellectual property.
2) When Goods are made or adapted by the Company in accordance with the Buyer’s specifications, the Buyer shall indemnify the Company against all and any claims, costs, damages, expenses or the like incurred by the Company in respect of the infringement or alleged infringement by such Goods of any intellectual property rights (including, without limitation, patents, trademarks, design rights, whether registered or not and including any application in relation thereto) belonging to third parties.
1) The Company will not be responsible for non-delivery or for delay in delivery and any loss or damage caused directly or indirectly by reason of any cause outside it’s control including, without limitation, fire or breakdown at the Company’s works, Act of God, war, strikes, lockouts, shortage of raw materials, non-availability of Tools. In such cases the Company may suspend orders or withdraw quotations.
2) Dates of delivery are not guaranteed and under no circumstances shall the Company be liable for any losses or damages, howsoever caused, arising from any delay in delivery or by any failure to deliver. Late delivery shall not be grounds for cancellation of an order.
3) In the case of delivery by instalments, each delivery shall be considered a separate transaction. A failure of one delivery shall not affect the due performance of the Contract as regards other deliveries.
4) Where the company concludes the contract or carriage and/or insures the goods in transit the Company shall be deemed as acting solely as the Buyer’s agent and sections 32(2) and (3) of the Sale of Goods Act 1979 shall not apply.
5) Should despatch or collection of goods ready for delivery be delayed for any reason for which the Buyer is responsible, the Company reserves the right to render an invoice and call for payment for the Goods and arrange for storage of the Goods at the Buyer’s expense.
6) Subject to condition 6(1) the Buyer shall inspect the goods immediately upon arrival. Any claim for failure of goods to be in accordance with the Contract which ought to be revealed by a reasonably diligent examination must be notified to the Company in writing within THREE days of receipt of such Goods. If no notice is received within THREE days, or if the buyer has acknowledged receipt of the Goods by a signature given to the carrier or person
delivering without any qualification the Goods will be deemed in all respects in accordance with the Contract and the Buyer will be bound to accept and pay for them.
10. RETURN OF GOODS
1) No credit will be given for Goods returned without the Company’s prior written consent.
2) A minimum 20% restocking charge will be deducted from all credits unless with the Company’s prior written consent.
3) Non-stock Goods produced specially on the Buyer’s behalf, or Goods adapted or amended to the Buyer’s specification will not be accepted for credit.
11. WARRANTIES AND LIABILITIES
1) The Company agrees to make good by replacement or repair, defects which arise solely from fault of materials or workmanship within a period of 90 days of delivery, provided that the Company is notified in writing of the defect and is given the opportunity to view and collect such goods and, if required, the Goods are promptly returned free to the Company’s premises.
2) Subject as expressly provided for in these conditions and except in cases where the Goods are sold to a person dealing as a consumer (as defined in the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent of the law.
3) Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any express or implied warranty, condition or other term or any duty in common law or under the express terms of any Contract for any Indirect, special or consequential losses or damages, (whether for loss of profit or otherwise) costs or expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, it’s agents or otherwise) which arise out of, or in connection with the supply of the Goods or their use or re-sale by the Buyer and the entire liability of the Company under or in connection with the Contract shall not exceed the invoice price paid for the Goods in question by the Buyer.
1) The Buyer shall indemnify the Company against all actions, proceedings, damages, losses, claims or demands in respect of any loss, injury or damage sustained by a third party (howsoever caused) arising directly or indirectly in connection with the use, functioning, condition or state of the Goods after receipt by the Buyer or after the property therein has passed from the Company whichever is the earlier.
13. CONTRACTING PARTY
1) The Company reserves the right to place a Contract with any of its subsidiary or associated manufacturing companies/divisions in which case such manufacturing company/division shall be deemed to be substituted for the Company as contracting party for the purposes of these Conditions
1) No waiver by the Company of any breach of Contract by the Buyer shall be considered a waiver of any subsequent breach of the same or any other provision of these Conditions.
2) If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of other provisions of these Conditions and the remainder of the provision in question shall not be affected.
3) All notices served under these conditions shall be in writing and shall be sent to the address of the recipient as set out in the invoice and all notices shall be deemed to have been served:-
(a) Immediately, if sent by fax;
(b) On second day of business day after posting if sent by first class post; and
(c) Immediately, if delivery is affected by hand.
4) A person not a party to these Conditions or a Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce its terms.