1.1 In these conditions the following words have the following meaning: Buyer – the person(s), firm or company who purchases the Goods from the Company; Company – Flexistair – Contract – any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions; and Goods – any goods agreed in the Contract to be supplied or actually supplied to the buyer by the Company including any part or parts thereof. References to; (1) any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted, replaced or interpreted; (2) the masculine included the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires. 1.2 Headings will not affect the construction of these conditions.
2. APPLICATION OF TERMS
2.1 These conditions shall apply to and be incorporated to all quotations, offers, orders, acceptances and Contracts for the sale of Goods by the Company and shall prevail over any other item of the Contract unless otherwise agreed by the Company in writing. All terms and conditions are excluded. 2.2 No order made by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement is issued by it or (if earlier) the Company delivers the Goods to the Buyer. 2.3 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is unless otherwise expressly stated by the Company in writing, valid for a period of 30 days only from its date, provided it has not previously been withdrawn.
3. DESCRIPTION AND FITNESS FOR PURPOSE
3.1 The description of the Goods shall be as set out in the Company’s quotation. 3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s or brochures are issued or published for the sole purpose of giving an approximated ideas of the Goods described in them. They will not form part of this Contract. 3.3 The Company makes no representation nor gives any warranty as to the fitness for any particular purpose of the Goods.
4.1 Unless otherwise agreed in writing by the Company, the Goods shall be delivered: (a) to the destination stated in the Contract, if on mainland Great Britain; (b) at the Company’s place of business, if the destination stated in the Contract is not on mainland Great Britain. 4.2 delivery means to the nearest point to the destination stated in the Contract for delivery on a road suitable in the opinion of the driver, for the vehicles used. 4.3 The Buyer will take delivery of the Goods within 5 days of the Company giving it notice that the goods are ready for delivery. 4.4 Dates specified by the Company for delivery are an estimate and time for delivery shall not be made of the essence by notice. 4.5 Subject to the other provisions of these conditions, the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days. 4.6 If the Buyer will not accept delivery of any of the Goods or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations (a) risk in the Goods will pass to the Buyer; (b) the Goods will be deemed to have been delivered; and (c) the Company may store the Goods until delivery at the Buyers expense. 4.7 The Buyer will provide at its expense adequate and appropriate equipment and manual labour for loading and unloading the Goods. 4.8 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control including, without limitation, lock outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. 4.9 In all circumstances where the customer requests delivery in a manner other than that selected by the Company. Prices are exclusive of Carriage and Insurance. In any case the Company may impose a small order delivery charge in accordance with its current parcel carrier rates. Our regular delivery service for the UK mainland excluding the Scottish Highlands & Islands on stock items is the next working day up to 5.00pm. If however, you have an alternative delivery requirement we can offer a number of chargeable options available on request. 4.10 Any time or date for delivery specified in acknowledgement is an estimate only, unless otherwise agreed between the Company and the Customer in writing. The failure by the Company for any cause whatsoever to meet the estimated delivery date shall not entitle the Customer to reject the goods when they are delivered, and the Company shall not be liable to make good any loss or damage arising directly or indirectly out of such delay.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from The Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. 5.2 The Company shall not be fable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 5 days of the date when the Goods would in the ordinary course of events have been received. 5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing Goods within a reasonable time or issuing a credit note at the pro rata Contract rate.
6. CANCELLATION AND RETURN POLICY
6.1 Save as explicitly stated by the Company, and anyway within 14 days, the Buyer shall not be entitled to cancel the Contract once an order has been acknowledged. 6.2 Subject always to condition 6.1 where the Buyer is entitled to and does so cancel an order which has been accepted by the Company, the Customer shall: (a) unless otherwise expressly stated by the Company in writing, pay the price for all Goods for which orders have been acknowledged by the Company, in full; and (b) if the Goods have been delivered, return the Goods at the Buyer’s cost in the condition they were delivered which includes that they must be free from defects, boxed or otherwise packaged as delivered, have not been altered or repaired, used or subject to misuse, abuse, negligence or accident. (c) Warrant that the goods are in a re-saleable condition. Items not in a re-saleable condition will not be accepted for return.
7.1 The Goods are at the risk of the Buyer from the time of delivery.7.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full and unconditionally all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Buyer in any account. 7.3 Until ownership of the Goods has passed to the Buyer, the Buyer must (a) hold the Goods on a fiduciary basis as the Company’s bailee; (b) store the Goods (at no cost to the Company) separately from all other goods; (c) not deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price; 7.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions; (a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; (b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale; and (c) the beneficial entitlement of the Company shall attach to the proceeds of the sale and such proceeds shall be held on trust for the Company by the Customer, who will stand in a strictly fiduciary capacity in respect thereof. 7.5 The Buyer’s right to possession of the Goods shall terminate immediately if: (a) the Buyer has a bankruptcy order made against him or makes and arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or (b) the Buyer suffers or allows any execution, whether legal or equitable to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of the Insolvency Act 1986 or the Buyer ceases to trade; or (c) the Buyer encumbers or in any way charges any of the Goods. 7.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company. 7.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall subject to condition 2.3 be the price set out in the Company’s quotation. 8.2 The price for the Goods shall be exclusive of any value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
9. COST VARIATIONS
9.1 Any price quoted by Flexistair or shown in the current price list is subject to revision by the Company at any time up to the date of delivery. 9.2 Unless otherwise agreed in writing by the Company all accounts are payable on a strict Nett monthly basis. Where payment is not made on or before the due date. Interest on the overdue amount will be charged and become payable at the rate of 5% above the base rate of Barclays Bank Plc prevailing at the time. 9.3 Any query or dispute with regard to any invoice must be made in writing to the Company within 14 days of the date of the invoice. 9.4Payment of any invoice(s) may not be delayed beyond the date in the event of any dispute or query concerning any other invoices.
10.1 Payment of the price for the Goods is due within 30 days from the date of the invoice, delivery of the Goods. Time for payment shall be of the essence. 10.2 No payment shall be deemed to have been received until the Company has received cleared funds. 10.3 All payments payable to the Flexistair shall become due immediately upon termination of this Contract despite any other provision. 10.4 the Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer. 10.5 If the Buyer fails to pay the Company, the Buyer will be liable to pay interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
11.1 The Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee to the Company by the manufacture, of the Goods. If (a) such warranty or guarantee is transferable, then such warranty or guarantee shall apply and the warranty is sub condition 11.19b0 shall not apply; (b) such warranty or guarantee is not transferable then unless otherwise expressly stated in writing by the company, the company warrants that (subject to the other provisions of these conditions) upon delivery and for a period of 6 months from the date of delivery, the goods will be free from defects. (the “Warranty”) 11.2 Where Goods are delivered in instalments, the date of delivery for the purposes of condition 11.1 shall be the date of delivery of the first instalment or deemed to be delivered pursuant to condition 4.6 11.3 The Company shall not be liable for a breach of the Warranty unless: (a) the Buyer gives written notice of the defect to the Company, within 5 working days of delivery where the defect should be apparent on reasonable inspection or within 5 working days of the same coming to the knowledge or ought to have come to the knowledge of the Buyer when the defect is one which should not be apparent on reasonable inspection by the Buyer; and (b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there. 11.4 The Company shall not be liable for a breach of the Warranty if (and if the Company reasonably suspects that it is not liable for any such reason, it shall be for the Buyer to prove to the Company’s reasonable satisfaction otherwise): (a) the Buyer makes any further use of such Goods after giving such notice; or (b) the Buyer has failed to follow the Company’s or manufacturer’s instructions including (without limitation) as to storage (including temperature, humidity and other environmental conditions), installation, connection, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or (c) the Buyer alters or repairs such Goods in any way whatsoever; or (d) the Goods have been subject to misuse, abuse, negligence, accident or have been used for purposes other than those which they are designed or intended; or (e) such defects arise as a result of normal wear or tear; 11.5 Subject to conditions 11.3 and 11.4, if any of the Goods do not conform with the Warranty the Company shall at its option repair or replace such Goods (or the defective part) provided that, if the Company requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company. 11.6 If the Company complies with condition 11.5 shall have no further liability for a breach of the Warranty in respect of such Goods. 11.7 Any Goods replaced will belong to the Company
and any repaired or replacement Goods will be guaranteed on these terms for the un-expired portion of any warranty period. 11.8 If on inspection of the Goods the Company determines in its reasonable opinion that the defect did not occur as a result of a breach of the Warranty then the Buyer shall be liable and shall pay to the Company its costs in carrying out such inspection including without limitation, the costs of transport and labour. 11.9 No condition or warranty is made, given, or to be implied as to the life or wear of the goods supplied or that the goods will be suitable for any particular purpose or for any use under specific circumstances unless: 11.9.1 The Company has been advised by the Customer that the goods are required for a particular purpose or for any use under specific conditions and 11.9.2 The Company has advised the Customer in writing that the goods are fit or suitable for such purpose or condition. 11.9.3 The Customer shall prove that the Customer has relied on such advice from the Company. 11.9.4 The Customer shall prove that the goods have been handled and installed strictly in accordance with the manufacturer’s instructions, advice from the Company and usual building industry practice and procedure. 11.10The Customer undertakes for the purposes of the Health & Safety at Work Act 1974 that it will take all necessary steps to ensure that the goods will be used in accordance with the manufacturer’s instructions and in a manner which is safe and without risk to health.
12. LIMITATION OF LIABILITY
12.1 Subject to condition 5.3 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of it employees, agents and sub-contractors) to the Buyer in respect of any breach of these conditions and any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract. 12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. 12.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation. 12.4 Subject to conditions 11.2 and 11.3 (a) the Company’s total liability in contract, tort including negligence or breach or statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods; and (b) the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not. 13.2 Failure or delay by the Company in enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. 13.3 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any Subsequent breach on default and will in no way affect the other terms of the Contract. 13.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. 13.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.