TERMS
AND CONDITIONS
1.
GENERAL
i. Fire Testing Technology Limited ("the Seller") is not bound
by any order given by the Buyer until it has accepted the same in writing.
All orders are accepted on the strict understanding that these conditions
apply and save as expressly agreed by us in writing these conditions shall
override any conditions imposed by the Buyer notwithstanding that the
same are subsequent in time to these conditions. Subject as herein provided
no amendment to or waiver of these conditions shall be effective unless
it is agreed by the Seller in writing.
ii. No agent or other person is authorized to vary these conditions or
to give any warranty or to make any representation or to incur any liability
on the Seller's behalf.
iii. Acceptance of any order will only be given by the Seller when the
Buyer has given his formal written order and clarified all technical and
commercial details and when any required deposit payment has been received
by the Seller.
iv. Orders shall not be countermanded except with the written consent of
the Seller and on payment of a cancellation charge in respect of the Seller's
loss.
2. TECHNICAL INFORMATION
i. All technical information whether supplied by the Seller or the Buyer
relating to the goods the subject of the order, particularly drawings,
weights and dimensions, are approximate unless confirmed otherwise.
ii. Performance figures given by the Seller whether before or at the time
of quotation or subsequently are approximate only.
iii. All drawings, quotations, illustrations, descriptions, leaflets, software,
samples or models relating to the Seller's goods are copyright and may
not be passed on to any third party, nor copied, imitated or used for
the manufacture of the same or similar articles and must be returned to
the Seller upon demand and the Buyer undertakes not to disclose to any
third party any other technical information supplied by the Seller except
with the express permission of the Seller.
iv. The Buyer warrants that the manufacture of the goods to its order or
design will not involve the Seller in the infringement of any patent,
registered design or trademark or any other similar rights and the Buyer
shall indemnify the Seller against all claims and expenses incurred by
the Seller by reason of any such infringement or alleged infringement.
3. TERMS OF PAYMENT
i. Unless otherwise expressly agreed in writing invoices are due for payment
not later than 30 days from date of invoice. When deliveries are spread
over a period each consignment will be invoiced as despatched and each
invoice will be treated as a separate account and be payable accordingly.
ii. Failure to pay for any goods or for any delivery or instalment shall
entitle the Seller to suspend further deliveries, guarantees and work both on the
same order and on any other order from the Buyer without prejudice to
any other right the Seller may have. The Seller also reserves the right
to charge interest on overdue accounts at the rate of 2% per month. The
Seller reserves the right where genuine doubts arise as to the Buyer's
ability to pay or in the case of failure to pay for any goods or any delivery
or instalment as aforesaid to suspend delivery of any order or any part
or instalment without liability until payment or satisfactory security
for payment has been provided.
iii. In the case of overseas contracts, and unless otherwise agreed in
writing by the Seller, all payments shall be made by irrevocable Letter
of Credit confirmed by a London Clearing Bank and valid for shipment and
negotiation as stipulated in any Order Acknowledgement. All bank charges
are to be borne by the Buyer. In the case of a FOB Contract, if goods
are ready for shipment and cannot be placed on board ship because the
Buyer or his forwarding agent has not given due despatch instructions
within 21 days of being asked to do so or because vessels specified by
the Buyer or his forwarding agent are not available for lading within
21 days of the date when the goods are ready for shipment or because of
any other cause outside the Seller's control, then the Seller shall be
entitled to place the goods in storage (either at the Seller's premises
or at a third party's warehouse) store them and later remove them from
storage at the risk and expense (including a charge at a commercial rate
for storage at the Seller's premises) of the Buyer, and the warehouse
receipt shall replace the Bill of Lading as payment document.
iv. The Buyer is not entitled to withhold any due payment on the grounds
of any equity set off or counterclaim.
v. Any deposit paid to the Seller shall, if the contract is duly performed
by the Buyer, be applied towards satisfaction of the purchase price or
may, if the Buyer fails to perform the contract be forfeited by the Seller
at the Seller's sole option.
4. PRICES
i. Quotations submitted by the Seller will be held firm for a period of
30 days, unless otherwise stated.
ii. Subject to Condition 4(i) above where the goods are sold by reference
to the Seller's published price list, the price payable for the goods
shall be the ruling price as published in the price list current at the
date of acceptance by the Seller of the order.
iii. In other cases and unless the price payable is stated to be fixed
in the contract, the price in the contract is based on the wage rates
and other costs of the Seller at the date of acceptance of the order.
If at the date of despatch of goods from the Seller's works there has
been any increase in all or any of such costs, the price payable for the
goods may at the request of the Seller be increased accordingly. Where
the price for the goods is varied in accordance with this condition the
price as varied shall be binding on both parties and shall not give either
party any option of cancellation.
iv. There shall be added to the price for the goods any value added tax
and any other tax or duty relating to the manufacture, transportation,
export, import, sale or delivery of the goods (whether initially charged
on or payable by the Seller or the Buyer). All goods are sold "Ex
Works" unless otherwise stated. If the Seller arranges or undertakes
the carriage, freight, insurance and any transport costs such costs including
administration costs shall be for the Buyer's account and shall not affect
the provisions of the contract as to the passing of risk.
v. Where goods are sold "Ex Works" or under other commercial
terms, such as FOB, FAS, FOR, CIF etc., the definitions and rules in INCOTERMS
1980 shall apply, except as expressly provided in the contract.
vi. The Seller reserves the right to amend prices if a suspension or alteration
to the date, method or other particulars of delivery should be due to
the Buyer's instructions or lack of them.
vii. Payment of money by the Buyer for the goods must totally fulfil the
value of the Seller's invoice in the currency stated therein inclusive
of any bank or other charges.
5. DELIVERY AND CARRIAGE
i. Goods will be forwarded by such methods of transport as the Seller shall
deem fit and the risk of loss or damage to the goods shall pass to the
Buyer at the time the goods are consigned to the carrier. In effecting
the contract of carriage the Seller shall be deemed to be acting as agent
for the Buyer and in the event of loss or damage to the goods in transit
the Seller shall take reasonable steps to pursue a claim for such loss
or damage against the carrier on the Buyer's behalf provided that notification
of the loss or damage shall have reached the Seller within three days
of the damage or loss arising and the goods have been signed for "not
examined". The Seller's liability in respect of any such loss or
damage if admitted shall in any event be restricted to the value of the
goods lost or damaged.
ii. Should the Buyer refuse to accept goods manufactured in accordance
with the contract, or be unable to take delivery when the goods are ready
to be delivered the Seller reserves the right to invoice same for payment
as if his part of the contract had been fulfilled in every way. The Seller
shall be entitled to place the goods in storage (either at the Seller's
premises or at a third party's warehouse) store them and later remove
them from storage at the risk and expense (including a charge at a commercial
rate) for storage at the Seller's premises.
iii. The delivery or performance dates specified in the contract are approximate
only and, unless otherwise expressly stated, time is not of the essence
for delivery. The Seller will not be liable in any circumstances for the
consequences of any delay in delivery or failure to deliver if the duration
of the delay is not substantial or if the delay or failure is due to any
cause whatever beyond the Seller's control or of an unexpected or exceptional
nature.
iv. No delay shall entitle the Buyer to reject any delivery or any further
instalment or part of the order or any other order from the Buyer or to
repudiate the contract or the order.
v. The Seller cannot undertake to meet any schedule of the Buyer's requirements
supplied after the date of the contract and will have no liability whatever
for delay in meeting or failure to meet all or any of such requirements
(howsoever such failure or delay may arise).
vi. The Seller will not be bound by any penalty for late delivery which
the Buyer may seek to impose.
6. TITLE TO GOODS
Ownership of the goods will not pass to the Buyer until payment for the
goods has been received by the Seller in full. Nevertheless all risk in
the goods shall pass to the Buyer when the goods are despatched from the
Seller's premises. Until the time of actual payment to the Seller of the
total amounts owing in respect of goods the Buyer shall keep the goods
on behalf of the Seller and shall store the goods in such a way that they
are separately identifiable; nevertheless prior to the time of actual
payment of the goods the Buyer is entitled to use the goods in the normal
course of its business or to sell the goods to third parties in the normal
course of its business on behalf of and for the account of the Seller
(but so that the Buyer shall not be deemed as against any such third party
to be the agent of the Seller) on the condition that the goods or any
articles manufactured from or incorporating the goods are and remain the
property of the Seller until payment has been received by the Seller as
aforesaid and any amounts received from third parties for the goods or
any articles manufactured from or incorporating the goods are held by
the Buyer for the account of the Seller as trustee for the Seller pending
payment in full to the Seller and the Buyer hereby assigns to the Seller
all rights and claims that the Buyer has against any such third party.
7. GUARANTEE
i. Subject as hereinafter stated, if any goods supplied shall prove defective
in material or workmanship within a period of one year from delivery and
the Buyer notifies such defect to the Seller in writing within fourteen
days of it becoming apparent the Seller shall repair or replace at its
option the goods or any part thereof free of charge and any repair or
replacement part shall be subject to the same guarantee. PROVIDED THAT
the Seller shall be under no liability in respect of any defect if:-
a) the defect has arisen through fair wear and tear; or
b) the goods have not been used, maintained, stored or protected in the
proper manner; or
c) the Buyer or any other person has executed or attempted to execute
repair or alteration to the goods; or
d) in the case of wire heating elements they prove defective as aforesaid
more than four months after delivery or in the case of thermocouples they
prove defective as aforesaid more than six months after delivery notwithstanding
the foregoing provisions of this Condition.
e) in the case of service or installation, only the work carried out will
be covered, for a period of four months.
AND PROVIDED FURTHER THAT if any defective part is not of the Seller's
manufacture the Buyer shall be entitled only to such guarantee as may
have been given to the Seller by the manufacturer thereof and the Seller
undertakes to pass the claim to such manufacturer.
ii. The guarantee aforesaid is in lieu of any other condition or warranty
as to the quality or fitness for purpose of any goods whether implied
by Common Law or Statute or otherwise and the Seller shall in no circumstances
be liable for any loss or damage whether by way of loss of production,
loss of profits, wastage of labour or materials or otherwise howsoever
caused.
iii. Any statements made about the Seller's goods by the Seller or its
servants or agents whether orally or in writing are intended for guidance
only and the Buyer should not place any reliance thereon without specific
enquiry and without ensuring that any matter of concern to him is specifically
mentioned in the contract.
iv. The Buyer is solely responsible for ensuring routine calibration is
carried out, and satisfying himself any results are within the requirements
of the relevant standards.
V. The Seller may refuse to repair or replace defective parts as long as
the Buyer has not performed his obligations
8. SITE
i. The Buyer is solely responsible for the suitability of the site for
the installation of the goods, for obtaining all necessary consents and
approvals under planning and building regulations and bye-laws and for
the preparation of the site, the construction of foundations and the provision
of services so that the site is suitable to receive the goods.
ii. unless the contract expressly provides, the contract does not include
the installation, erection or commissioning of any goods or equipment
or the supervision thereof. Where installation is included in the contract
it is the responsibility of the Buyer to advise the Seller of prevailing
site conditions with respect (inter alia) to physical characteristics,
availability of services, normal working hours, availability of labour
and any local or national labour arrangements or practices which might
affect the work, and any other relevant factors. The Buyer shall ensure
that the work can be carried out uninterrupted during normal working hours.
Any additional costs caused by any interruption or delay not attributable
to the Seller or its employees or because the Seller cannot gain access
to the site shall be charged to the Buyer together with an appropriate
allowance for profit. The Buyer shall also be responsible for providing
a safe and healthy working environment for the Seller's employees and
the Seller's sub-contractors and their employees and shall bear (or reimburse
the Seller against) any loss, damage or compensation due to any person
in relation to any death or personal injury or destruction or damage to
property except to the extent that the same is due to the negligence of
the Seller and the Buyer shall except as aforesaid keep the Seller fully
indemnified in respect thereof.
9. MODIFICATIONS ETC.
Any extra work, requirements or modification in relation to the goods
or their installation which is not expressly specified in the contract
or which is expressly specified in the contract or which is expressly
excluded by these conditions and which the Buyer requests shall, if the
Seller is able and willing to agree thereto, be charged extra (including
an appropriate allowance for profit) to the extent that such extra work
requirement or modification increases the costs to the Seller of performance
of the contract, and the Seller shall be allowed a reasonable extension
or postponement of performance or delivery dates required to comply with
any such request.
10. JURISDICTION
The contract shall be governed by English Law and the parties submit to
the non-exclusive jurisdiction of the English Courts.
11. WEEE (waste electrical and electronic equipment as defined in the
WEEE regulations SI2006/3289)
i. The Buyer shall:
a) be responsible for financing the collection, treatment, recovery and
environmentally sound disposal of:-
all WEEE arising or deriving from the goods
all WEEE arising or deriving from goods placed on the market prior to 13th
August 2005 where such products are to be replaced by the goods and the goods
are of an equivalent type or are fulfilling the same function as that of such
goods
b) comply with all additional obligations placed upon the buyer by the WEEE
Regulations by virtue of the buyer accepting the responsibilities set out
in 11(i)a; and
c) provide the Sellers WEEE compliance scheme operator with such data, documents,
information and other assistance as such scheme operator may from time to time
reasonably require to enable such operator to satisfy the obligations assumed by
it as a result of the Sellers membership of the operator’s compliance scheme.
ii. The Buyer shall be responsible for all costs and expenses arising from and
relating to its obligations in clause 11(i)
July 2007
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