THE CONTENT OF THIS CONTRACT
a. In this contract:
– “the Company” means Fenland Leisure Products Ltd
– “the Goods” means the goods or services sold or supplied by the Company to the Customer under this contract.
– “this Contract” means a contract between the Customer and the Company incorporating these Conditions.
b. This Contract governs the sale of Goods by the Company to the exclusion of all other representations, statements, understandings, negotiations, proposals or agreements.
c. Where the Customer submits its own order form these terms shall prevail if they conflict with the terms in that form, even if that form includes a condition similar to this one.
d. No employee of the Company or its agents has authority to make any warranty, statement, or promise concerning the Goods except in writing signed by a Director of the Company.
e. The Customers order shall be subject to acceptance by the Company.
f. Orders are accepted and estimates of delivery given conditionally on the Company being able to secure the necessary labour or material and without responsibility for delays or non-fulfillment arising through risk and uncertainties of manufacture, strikes, accidents, force majeure or otherwise howsoever caused.
g. All drawings, descriptive and forward specifications, particulars of weights and dimensions are approximate only and not binding and illustrations contained in catalogues, price lists, sales literature and other advertisement material are for the purpose of general description only and none of these shall form part of the Contract.
Where the Company is asked to manufacture or supply Goods to the Customers own specification, the Company will not be held responsible for any non-compliance to the relative standards for those Goods and is not responsible for the purpose being used.
We reserve the right to invoice at the price ruling at date of dispatch. All prices, unless otherwise stated, are for delivery “ex works” and are exclusive of value added tax or any other tax or duty which is or may be levied or charged in the U.K. or in the country of destination. Any such taxes, duties or charges shall be paid for by the Customer. Unless otherwise specified, packing cases and pallets will be charged extra but will be credited in full on return carriage paid and in good condition within one Month of receipt by the Customer. The prices quoted are subject to any increase in the cost of labour or material between the date of quotation and dispatch of Goods from our works and may not include installation costs. If the Customer requires any alteration to the order, the price will be varied accordingly.
4. PROPERTY OF GOODS
Property of Goods delivered by the Company shall not pass to the Customer until payment is made in full. In case of default in payment the Company shall be granted access rights in order to repossess the Goods. At all times before payment in full: the Goods shall stand in the Customer’s books in the name of the Company; and the Customer shall take appropriate steps to notify third parties of the Company’s interest in the Goods; and in the event of threatened seizure of the Goods or of appointment of a receiver or liquidator, or any other event entitling the Company to terminate this Contract under paragraph 9 the Customer shall immediately notify the Company and the Company shall be entitled to enter the Customers premises and repossess the Goods. If the Customer delivers goods to a third party before payment has been made in full to the Company, the Customer shall hold all sums received for such goods as trustee for the Company on receipt. Risk in the Goods shall pass on delivery.
5. DELIVERY INCLUDING LOADING AND UNLOADING
a. Delivery shall be “ex-works” unless the Company agrees otherwise. If the contract includes delivery by the Company, the Customer shall be responsible for giving the Company clear and accurate instructions as to the place of delivery.
b. Time shall not be of the essence in respect of delivery. If the Goods are to be delivered by a date specified by the Customer or by the Company such date is to be treated as an estimate only. The Company does not guarantee that the Goods will be delivered by such date or accept liability for failure to meet the date.
c. Unless the Company has agreed in writing to the contrary with the Customer:
1. The Company shall not be under any obligation to provide any plant, power or labour, other than that normally carried by the vehicle, required for loading or unloading the Consignment.
2. The Customer warrants that any special appliances required for loading or unloading the Consignment which are not normally carried by the vehicle will be provided by the Customer or on the Customer’s behalf at their cost.
3. The Company shall be under no liability whatever to the Customer for any damage whatever, however caused, if the Company / Carrier is instructed to load or unload any Consignment requiring special appliances which, in breach of the warranty in (C2) above, have not been provided by the Customer or on the Customer’s behalf.
4. The Carrier shall not be required to provide service beyond the usual place of collection or delivery but if any such service is given by the Carrier it shall be at the sole risk of the Customer.
5. Where a delivery has been arranged and cannot be completed because the customer has not provided a suitable off-loading area or suitable mechanical offloading equipment this will be deemed as a failed delivery. A further delivery attempt can be made at an additional charge. The failed delivery may also incur a return to base fee.
d. The Customer shall indemnify the Company / Carrier against all claims and demands whatsoever, which could not have been made if such instructions as are referred to in (C3) of this Condition and such service as is referred to in (C4) of this Condition had not been given.
All equipment and spare parts should only be installed by a suitably qualified competent person. All equipment should be certified fit for use by a suitably qualified person before any equipment is commissioned or recommissioned following the replacement of any parts.
7. SETTLEMENT TERMS
a. Where credit facilities exist, accounts are due for payment 28 days from the date of invoice. Where special discount terms are quoted, the terms must be strictly adhered to otherwise the account will charged net. The customer shall, unless, otherwise agreed in writing, pay all sums due to the Company under the contract prior to delivery in cash, cleared cheque or BACS payment in pounds sterling. If for any reason the Company does not receive unconditional payment in full, whether under any terms of credit facilities or otherwise, within 28 days from the delivery then the Company may charge daily interest on such payments at a rate equal to 8% per annum above the Base Lending rate of Lloyds TSB, such interest to run from day to day to accrue before as well as after any judgement.
b. The Company has the right to refuse a credit account for any Customer it sees as a potential risk.
The Company does not accept responsibility for any damage, shortage or loss in transit unless:
a. Non-receipt of Goods is advised to the Company within 3 days from the date of the Company’s advice/ delivery note; and
b. Any breakage, damage or shortage is advised to the Company and carriers within 3 days of Goods provided that the carriers note is marked “unexamined”. All sizes are approximate. Variations during the course of manufacture cannot be avoided and liability is not accepted for them. When goods are offered and supplied to a Customers designs and specifications no guarantee is given or implied of their suitability for the purpose for which they are used. If during the period of 12 months from the date of invoice the Company is notified of a fault in the Goods due to faulty design, manufacturing or materials, the Company will replace or (at its option) repair the faulty part free of charge on an ex-works basis provided that: the Goods have been properly kept, used and maintained in strict accordance with the manufacturers or the Company’s instructions, if any, and have not been Modified. The fault is not due to accidental or wilful damage, interference with or maintenance of the Goods by persons other than the Company or its duly appointed Agent. If the Goods have been manufactured to the Customers design, the fault is not due to faulty design by the Customer. This guarantee does not cover fair wear and tear. The Customer will be required to return faulty Goods to the Company for exchange or repair at the Customers own cost, the Company will not be liable for any labour installation charges involved with the removal and subsequent re- installation of any such parts.
9. LIMITATIONS OF LIABILITY
Except where expressly contained in this Contract, all warranties, conditions, undertakings and representations, expressed or implied, statutory or otherwise, are excluded and the Company has no obligation, duty of liability in Contract, tort (including breach of statutory duty) or otherwise. In any event, the Company’s liability arising for any reason in connection with this Contract shall be limited to the original invoice value of the Goods. In no circumstances will the Company be liable in Contract, tort (including breach of statutory duty) or otherwise for loss whether direct or indirect) of profits, business or anticipated savings, or for any indirect or consequential loss or damage whatever.
The Company does not exclude or restrict liability for death or personal injury resulting from its own negligence. Each provision of this Condition is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held unreasonable in any circumstances and shall remain in force not withstanding termination of this Contract.
The Company reserves the right to levy a cancellation charge of 20% of the order value in the event of the order being cancelled by the Customer. Please Note: Any such charge is non- negotiable and is solely at the discretion of the Company.
The Company shall have the right forthwith to terminate this Contract and to claim for any resulting losses or expenses if:
– the customer commits a breach of this contract and fails to remedy the breach within a reasonable time of a written notice to do so: or
– the customer commits any act of bankruptcy or compounds with its creditors; or a petition for an administration order is presented (otherwise than for reconstruction or amalgamation) or a receiver of administrative receiver or any similar event occurs under the laws of the state where the Customer was incorporated.
12. FORCE MAJEURE
The Company shall not be liable in respect of any breach of this Contract due to any cause beyond its reasonable control including Act of God, inclement weather, flood, lightening or fire, industrial actions or lockouts; the act of omission of Government, highways authorities, or other competent authority, was, military operations or riot; the act of omission of any part for whom the Company is not responsible.
a. The Customer shall not indemnify the Company against any damages, penalties, cost and expenses arising out of any claim by any third party for any infringement or alleged infringement of any third party’s industrial or intellectual property right in any work carried out in accordance with the Customers specifications
b. Copyright of all drawings, designs or tracings prepared by the Company are the Company’s property and copyright and must be regarded as confidential. Such drawings, designs or tracings must not be published or disclosed under any circumstances without the Company’s permission in writing.
14. APPLICABLE LAW
The Law of England shall be the proper law of Contract.