In these conditions "the Company" means Flyers Group Plc and “the Buyer” means the purchaser of the Goods and "the Goods" or “Goods” means the goods items materials to be supplied.
1 Definitions
In these conditions, unless the context requires otherwise:
1.1 ‘Buyer’ means the person who buys or agrees to buy the goods from the Company;
1.2 ‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company;
1.3 ‘Delivery Date’ means the date specified by the Company when the goods are to be delivered;
1.4 ‘Free Delivery area’ means the geographical area dictated by the Company and marked on a map of the United Kingdom available for inspection on request;
1.5 ‘Goods’ means the goods items or materials that the Buyer agrees to buy from the Company;
1.6 ‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT.
1.7 ‘Working Days’ shall mean every day other than a Saturday, a Sunday or any official public holiday in England.
2 Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of Goods by the Company to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document. If any contract for sale is concluded with the Buyer by any method whatsoever without express reference to these conditions of sale, it shall be a term of such a contract that these conditions of sale apply to such contract.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the partes) shall be inapplicable unless agreed in writing by the Company.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.6 The Buyer acknowledges that the Company’s employees and agents are not authorised to make any representations concerning the Goods and that it does not rely on any such representations that are not expressly confirmed by the Company in writing.
3 Prices
3.1 Where fixed prices have not been expressly agreed by the Company the price payable by the Buyer shall be based upon the Company's list price at the date of despatch of each delivery.
3.2 Where prices have expressly been agreed the Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in insurance costs, significant increase in the labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions).
3.3 Prices are subject to the addition of VAT.
3.4 Delivery shall be at the Company’s cost unless the Buyer’s order requires delivery to an address outside of the Company’s ‘Free Delivery area’ in which case the Company may charge for delivery.
4 Payment
4.1 Payment is due by no later than the last working day of the month (being a day other than a Saturday or Sunday) following the month of delivery.
4.2 In the case of sums paid to the Company by cheque, banker’s draft or direct inter-bank transfer, payments shall be deemed to have been made when the Company's bank account has been credited with the full amount, and not before.
4.3 The Company reserves the right to charge interest accruing daily at a figure equivalent to 3% per month on all monies due but unpaid until such payment has been made.
4.4 The Buyer shall have no right to withhold payment of the price of the goods or any other amounts which have fallen due or to raise any deduction, set off or counterclaim in respect thereof relating to this or any other contract.
5 Security
The Company shall be entitled, without prejudice to the Company’s other rights and remedies, to require the Buyer to supply to it such security for the Buyer’s liabilities under this contract as the Company shall require including, without limitation, a letter of credit, guarantee, bill of exchange or any other security.
6 Termination
The Company shall be entitled, without prejudice to the Company’s other rights and remedies, either to terminate the contract or to suspend any further deliveries in any of the following events:-
(a) non-compliance by the Buyer with the Company’s terms of payment;
(b) failure by the Buyer to provide a letter of credit or guarantee, bill of exchange or any other security requested by the Company.
7 Insolvency of buyer
If:
(a)
the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) a Petition for his bankruptcy is presented or (being a company) becomes subject to an application for an administration order or a petition for liquidation is presented (otherwise than for the purposes of amalgamation or reconstruction); or
(b)
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(c)
the Buyer ceases, or threatens to cease, to carry on business; or
(d)
the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
THEN, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8 Title
8.1 Until payment has been made to the Company of all monies owing to the Company from the Buyer for all Goods (or batches thereof) supplied under the contract the Goods so supplied shall be held by that Buyer as bailee for the Company and it shall be an express term of this Contract that all legal and equitable title in the goods shall remain in the Company until such payments have been made.
8.2 All express terms of the contract shall be read subject to this clause 8 and in the event of any of the express terms being inconsistent with this clause, this clause shall prevail.
8.3 The Buyer shall permit the servants or agents of the Company to enter on the Buyer's premises (or any other location where the goods are located, insofar as the Buyer is entitled to or is able to procure such access) and to repossess the goods at any time prior to such payment.
8.4 Although title to the goods shall not pass to the Buyer until the Buyer has paid their price to the Company, the Company shall be entitled to sue for their price once payment has become due.
8.5 The Buyer shall only be at liberty to resell the goods purchased from the Company prior to the passing of title on the understanding that if it does resell the goods then it will hold on trust (and in a separate bank account) for the Company so much of the proceeds of sale received by it and will hold on trust for the Company an action for the sale proceeds thereof, under contracts which include any of the goods hereby sold either in their original or altered state, as are equal to the amount payable.
8.6 The Buyer shall keep the goods insured to their full replacement value with the Company’s interest noted on the policy.
9 Delivery
9.1 A date specified by the Company or the Buyer for delivery is not in any way a guaranteed delivery date and shall be an estimated date only.
9.2 Delivery will be to the place of delivery agreed and specified by the Company and the Buyer will ensure that delivery is accepted at such place of delivery, and will indemnify the Company in respect of all costs and liabilities incurred by the Company as a result of any delay in or refusal of acceptance of delivery or unloading.
9.3 Time shall not be of the essence of the contract.
9.4 The Buyer shall have no right to damages or to terminate the contract for failure for any cause to meet any delivery date.
9.5 When the Goods or any of them are delivered by the Company's own transport, delivery shall be deemed to take place at the moment the goods are lifted from the delivery vehicle.
9.6 When the Goods or any of them are delivered by other means of transport delivery shall be deemed to take place when they are loaded on to the vehicle used.
9.7 Delivery shall be to the address stated on the Buyer's order.
10 Postponement or Cancellation of orders
10.1 The Company will endeavour to comply with any reasonable request by the Buyer for postponement of delivery but shall be under no obligation to do so and the customer is obliged to take delivery as agreed under the contract. Where postponement is agreed by the Company in writing the Buyer shall if required pay a reasonable charge for storage and any increased costs of delivery and any costs incurred by the Company in relation to any insurance payments reasonably made by it.
10.2 The Company shall accept the cancellation of an order (but only when a whole order is to be cancelled) subject to the terms of this clause.
10.3 The Company will only be capable of becoming bound to accept cancellation following the giving of clear notice in writing of cancellation by a properly authorised person on behalf of the Buyer.
10.4 Cancellation under this clause will only operate from the date of receipt of the notice of cancellation by the Company (the ‘Cancellation Date’) and shall not apply if any of the Goods which were subject of the order sought to be cancelled have been delivered.
10.5 In the event of cancellation, in respect of each separate order, the following will apply and the damages described therein shall become payable by the Buyer to the company on demand. The Buyer agrees that money payable under the following provisions is fair recompense for the loss or damage sustained by the Company:
(a) Where the Cancellation Date is no earlier than the 20th Working Day but not more than the end of the 30th Working Day next following the date of acceptance by the Company of the order, then the Buyer shall pay a sum equivalent to 25% of the total Price for that order together with all those sums applicable for carriage, packing, insurance and VAT on the cancelled order that the Buyer would otherwise have paid;
(b) Where the Cancellation Date is no earlier than the 31st Working Day but not more than the end of the 60th Working Day next following the date of acceptance by the Company of the order, then the Buyer shall pay a sum equivalent to 50% of the total Price for that order together with all those sums applicable for carriage, packing, insurance and VAT on the cancelled order that the Buyer would otherwise have paid;
(c)
Where the Cancellation Date is a date after the 60th Working Day next following the date of acceptance by the Company of the order, then the Buyer shall pay a sum equivalent to the total Price for that order together with all those sums applicable for carriage, packing, insurance and VAT on the cancelled order that the Buyer would otherwise have paid.
10.6 Nothing in the foregoing shall have effect to limit or extinguish the liability of the Buyer for breach of any intellectual property rights of the Company, nor for any losses incurred by the Company as a result of any misrepresentation by the Buyer.
10.7 The foregoing does not and is not intended by the parties to render the Company liable for any losses accruing to any third party as a result of a cancelled order of the Buyer.
11 Limitation on Liability
11.1 In any sale of goods by the Company to the Buyer, there shall be no condition or warranty or other term either express or implied, as to material, workmanship or fitness of the goods for any particular purpose, whether such purpose be known to the Company or not (save for any statutorily implied terms).
11.2 In the event of any material or workmanship proving defective the Company will rectify or replace such material at the place of delivery and in the condition originally specified, or if rectification or replacement is not practicable, will credit the value of the goods at the invoice price, if required in writing to do so, provided always that the claim is made and admitted and the material is returned within 6 months from the date of invoice.
11.3 The Company does not exclude any liability for the death or personal injury of any person resulting from its negligence, that of its servants or agents, but it shall not be liable for any direct or indirect costs, loss, damages or expenses or consequential loss relating to damage to property or injury or loss to any person, firm or company, or for any loss of profits or production arising out of or occasioned by any defect in or failure of materials or workmanship and the Buyer shall indemnify the Company in respect of all claims made or proceedings taken against the Company by any third party in respect thereof.
11.4 For the avoidance of doubt the Company's liability in respect of or consequent upon any such defect, whether in original or replaced material or workmanship, is limited as aforesaid and does not extend in any circumstances to cover any other expenditure incurred nor any consequential damages or loss of profit.
11.5 The Company accepts no liability of any kind where any goods have been damaged by any person in any manner following delivery.
11.6 Any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Buyer's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
11.7 Without limitation to the preceding provisions hereof in no circumstances shall the Company’s liability whether in respect of one claim or all claims arising out of any contract exceed the purchase price payable under that contract
12 Risk
Risk in respect of the Goods shall pass upon delivery.
13 Defective Delivery and Damage in Transit
13.1 No claim for damage to the Goods in transit will be considered by the Company unless:-
(a) an appropriately qualified signature, e.g. "Material received damaged, (signed)" is clearly made by the Customer on the delivery note; and
(b) the Company is advised in writing of the precise particulars of the damage, in addition to 13.1(a) above, within 72 hours of delivery of the goods in question.
13.2 Claims will not be considered for short delivery or unsuitability unless the Company is notified in writing and given an opportunity for verifying the same within 72 hours.
13.3 A failure to notify the Company in writing under this clause 13 by the expiry of the time limit shall release the Company from any and all liability in respect of that matter.
14 Force Majeure
The Company shall not be liable to the Buyer or be deemed to be in breach of any contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:-
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any European Union, governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) labour disputes, strikes, lock-outs, fuel shortages, contagious diseases.
15 Indulgence to Buyer
15.1 Any indulgence or forebearance to the Buyer or any waiver by the Company of any breach of contract by the Buyer shall only be of legal effect if expressly stated in writing.
15.2 The Company’s rights and remedies shall not be prejudiced by an indulgence or forbearance to the Buyer and no waiver by the Company of any breach of the contract by the Buyer shall operate as a waiver of any subsequent breach.
16 Indemnity
The Buyer shall indemnify the Company against all actions, costs, (including the cost of defending any legal proceedings) claims, proceedings, accounts and demands in respect of any infringement or alleged infringement of patent rights, registered design or similar protective rights resulting from compliance with the Buyer's instructions requirements or specifications, whether express or implied.
17 Literature
Illustrations, weights, measures, performance capabilities, application suitability information and other data set out in the sales literature of the Company are statements of opinion and are provided for information only and form no part of the Contract.
18 Applicable Law and Jurisdiction
This agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereto each expressly submits to the exclusive jurisdiction of the Courts of England and Wales.
19 Third Parties
B This Agreement does not create any right enforceable by any person or body who is not a party to it under the Contracts (Rights of Third Parties) Act 1999 and the Act shall not apply to this Agreement.
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