Fortex Standard Terms and Conditions of Sale
1.1“Seller” Means Fortex Engineering Limited (Registered No 08804584) and any other seller that is an associate of Fortex Engineering Limited.
1.2 “Purchaser” means any person, firm, company or corporation placing an order with the Seller.
1.3 “Goods” means items and services supplied by the seller to the purchaser.
1.4 “Contract” means any contract between the company and the Purchaser for the sale and purchase of the goods incorporating these conditions.
2.1 The contractual relationship between the seller and the purchaser shall be subject to these Standard Conditions of Sale (“Conditions”) and no addition or variation shall apply unless agreed in writing. These conditions supersede any prior representation whether made in writing or orally and these conditions override any other terms that the Purchaser may subsequently seek to impose on any purchase order, confirmation of order, specification or any other documents such as the delivery note.
2.2 No terms or conditions endorsed on, delivered with or contained in the purchasers purchase order, confirmation of order, specification or other document shall form part of the contract simply as a result of such document being referred to in the contract.
2.3 Each order or acceptance of quotation for goods by the purchaser from the seller shall be deemed to be an offer to buy goods subject to these conditions.
2.4 No order placed by the purchaser shall be deemed to be accepted by the seller until a written “order acknowledgement” is issued by the seller or, (If earlier), the seller delivers the goods to the purchaser.
2.5 The purchaser shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation given is on the basis that no contract shall come into existence until the seller despatched an acknowledgement of order to the purchaser. Unless previously withdrawn, quotations are open for acceptance within the period stated in them. Where no period is stated, the quotation shall be open for acceptance for 30 days from the date it is dated unless withdrawn by the seller during that time.
2.7 Prices quoted are exclusive of Value Added Tax and are Ex works Fortex UK Factory unless otherwise specified in writing.
3.ADVERTISING MATERIALS & REPRESENTATIONS
3.1 Catalogues, specifications, brochures, price lists, advertising material and verbal representations of the Sellers personnel are only an indication of the type of goods offered and no such particulars shall be binding on the seller. They shall not form part of the contract and this is not a sale by sample.
3.2 All goods are sold subject to availability to the seller of material. The seller reserves the right without notice to substitute materials, components and units other than those mentioned in the contract. All dimensions specifications and drawings or particulars of weights and all forwarding specifications issued by the seller are approximate only and do not form part of any contract.
3.3 The quantity and description of the goods shall be as set out in the sellers quotation or acknowledgment of order.
4.1 Subject to the remaining sub-clauses of this clause, the Sellers liability in respect of any defective goods manufactured or supplied by the seller or for any loss or damage, consequential or otherwise, is limited to replacement of the Goods which the customer proves are defective and are defective or fail due to faulty material or parts manufactured by the seller or defective workmanship of the seller and failed or are found to be defective within a period of twelve calendar months after the goods were delivered to the purchaser.
4.2 The Seller may at its option, give the purchaser, give the purchaser a credit in respect of the goods found to be defective of up to the full value of the price paid by the purchaser.
4.3 The goods are sold on the condition that they will be used only in the prescribed manner and for the purpose for which they were intended.
4.4 The Purchaser must satisfy itself that the intended use of the goods is a use in the prescribed manner and in accordance with the technical datasheet(Provided by the Seller) that refers to the prescribed use of the Goods and the purpose for which they were designed. In the event that the Purchaser is purchasing for onward sale the Purchase must make known to its customer the prescribed use of the Goods and the purpose for which they were designed.
4.5 The seller shall not be liable for any damage, loss or injury resulting from any misuse of the Goods or for any use that is not in accordance with the prescribed manner or the purpose for which they were designed.
4.6 Where the purchaser provides a specification of the goods to be manufactured by the Seller, the Seller shall not be liable for any defect in the Goods caused by compliance with that specification.
4.7 If the Purchaser packages or causes the Goods to be packaged in such a way so as to make the Goods defective then the Purchaser shall indemnify the Seller against all damage and loss caused by reason of the product being defective.
4.8 The Seller has available information and product literature concerning the conditions necessary to ensure that the Goods supplied by the Seller will be safe and without risk to health when properly used. If the purchaser is not already in possession of such literature or requires any information or advice in connection with the safe use of Goods the purchaser should immediately contact the seller.
4.9 Nothing in these Conditions shall have the effect of excluding or limiting liability for loss arriving from death or personal injury resulting from the negligence of the Seller.
4.10 All warranties, conditions and other terms implied by statue or common law (Save for the conditions implied by section 13 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
4.11 Subject to condition 4.9 and condition 4.10:(a)The Sellers total liability in contract , (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contact price; and (b) the Seller shall not be liable to the purchaser for any pure economic loss, loss of profit/loss of business, consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the contract.
4.12 In the case of goods supplied (Including equipment), but not manufactured by the Seller, the liability of the Seller shall be limited to amounts recovered by the Seller under warranties given by the Supplier to the Seller, provided that the Seller shall not be called upon to bear any liability or expense greater than the amount recovered from that Supplier. Nothing herin shall impose any liability upon the Seller in respect of any loss, damage, consequential or otherwise, in relation to or arising out of goods found to be defective or attributable directly or indirectly to the act, omissions, negligence or default of the Purchaser or the Purchaser’s servants or agents including (In particular but without prejudice to the generality of the foregoing) any failure by the Purchaser to comply with any recommendations of the Seller as the storage, handling and use of the Goods.
PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE: Unless specifically set forth on the face here of, prices will be those in effect on date of shipment. Written quotations expire in ten (10) days, unless the terms of the quotation specifically provide otherwise, and are subject to termination by written notice at any time prior to their expiration. Seller may change prices for future deliveries without prior notice to Purchaser whether or not any portion of any order has been delivered and Purchaser shall have the right to cancel any order or portion thereof not delivered at the date of such changes in prices by giving notice to the seller within five (5) days of the date of Sellers notice. Failure to so notify Seller shall constitute acceptance of such changed price.
6.1 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6.2 Subject to the other provisions of these conditions the Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of Goods (Even if caused by the sellers negligence), nor shall any delay entitle the Purchaser to terminate or resend the Contract unless such delay exceeds (180) days.
6.3 The Seller shall be under no liability to the Purchaser in respect of any damaged Goods delivered unless at the time of delivery the damages are endorsed in writing on the delivery note or the delivery note is endorsed “not examined” and a separate written notice of the damaged Goods is sent to the Seller in writing within 48 hours of delivery. The Purchaser much notify the Seller (and if appropriate the carrier) in writing of the non-receipt or shortage in delivery of any goods by the Purchaser or his nominated carrier within 48 hours of the invoice date relating to any delivery. The company shall not be liable for any non delivery of Goods (even if caused by the Company’s negligence) unless the purchaser gives written notice to the Company for non delivery in accordance with this condition 6.3. For the avoidance of doubt any liability of the Company for non delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
6.4 The Purchaser shall hold the seller indemnified against any loss or damage arising by the failure to give the notification of receipt or damaged Goods within the time limit specified above.
6.5 Any request by the Purchaser for proof of delivery from the Seller or the carrier must be made in writing no later than one month (30days) after the date of the invoice related to the delivery and in the absence of any such request in writing delivery of the Goods shall be deemed conclusively to have been made.
6.6 If the purchaser fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions, documents, licences or authorisations then without prejudice to any other right or remedy available to the Seller risk in the goods shall pass to the Purchaser (Including for loss or damage caused by the company’s negligence), the goods shall be deemed to have been delivered and the seller may elect to store Goods until actual delivery whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance) and the Seller may sell the Goods for a price readily obtainable and after deducting reasonable storage, insurance and selling expenses, charge the customer for any shortfall.
6.7 If any order for Goods is to be delivered by instalments, each instalment shall be treated as a separate contract each of which shall be paid for in accordance with clause 10 hereof and the Seller shall be entitled to withhold delivery of future instalments pending payment.
6.9 The failure of the Seller to deliver the goods or where the Seller makes short delivery shall not entitle the Purchaser to repudiate the Contract unless clause 11 applies to such failure.
6.10 Where goods are delivered by instalments any defect in any one instalment of Goods shall not be grounds for cancellation of the order, for the remaining instalments by the Purchaser who shall be bound to accept delivery thereof.
7.1 Risk passes to the Purchaser F.O.B at the Seller’s place of business. The purchaser must insure the Goods for their full replacement value against all risks with the interest of the Seller being noted on the policy (from the time that risk passes).
7.2 Where goods are stored by the Seller at the premises of the purchaser in contemplation of ongoing sales (consignment), the goods are at the risk of the Purchaser.
8.RESERVATION OF TITLE
8.1Until payment in full (in cash or cleared funds) has being made by the Purchaser of all sums owing or due to the seller, whether in respect of purchases of the Sellers Goods or otherwise all legal and equitable title to the goods shall remain with the Seller and the Purchaser shall:
(a)Hold the goods on a fiduciary basis at the sellers Bailee
(b) Store the goods (at no cost to the Seller) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable at the Sellers property.
(c)Not destroy, deface or obscure any identifying mark or packaging or relating to the goods.
(d) Maintain the goods in satisfactory condition and keep them insured on the Sellers behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the purchaser shall produce the policy of insurance to the Seller.
8.2 The purchaser 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 Purchasers business at full market value, and
(b)Any such sale shall be a sale of the Sellers property on the purchasers own behalf and the purchaser shall deal as principal when making such a sale.
The purchasers right to possession of the Goods shall terminate immediately if:
(a) Any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser or the Seller has any reason to have doubt as to the Purchasers solvency or
(b) The purchaser suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other Contract between the Seller and Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency act 1986 or the Purchaser ceases to trade, or
(c) The Purchaser encumbers or in any way charges any of the Goods.
8.3 The Purchaser grants the Seller, its agents and employees an irrevocable licence at anytime to enter any premises where goods are or may be stored in order to inspect them or, where the Purchasers right to possession has terminated, to recover them.
8.4 On termination of the contract, howsoever caused, the Seller’s (but not the Purchaser’s) rights contained in this condition 8 shall remain in effect.
9.STANDARD PAYMENT TERMS AND INTEREST
9.1Unless otherwise agreed in writing Payment shall be made by the Purchaser within thirty (30) days of the date of the invoice (the 30th day being the ‘Payment Date’),
9.2 It any payment is not made when due then the Purchaser shall pay interest on all overdue sums at the maximum current rate of interest as per current government legislation at that time.
9.3 In the event of any late payment of any invoice the Seller reserves the right to defer delivery of any Goods on any contract between the parties.
9.4 Where any invoice is overdue for payment then all invoice issued by the Seller to the Purchaser shall become immediately due for payment.
9.5 No deduction from any payment due shall be made by the Purchaser in respect of any set-off or counterclaim however arising unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Purchaser.
9.6 If the Purchaser defaults in payment and the Purchaser’s account is turned over to the Sellers Solicitor for collection, the Purchaser will be required to pay all costs of collection including but not limited to interest charges, solicitor fees, legal fees and court fees.
10 FORCE MAJEURE
10.1 The Seller shall not be liable for any loss or damage caused by the non-performance or any delays in Performance of any of it’s obligations hereunder arising out of any matter beyond the Sellers control including but not limited to acts of God, war, riots or civil commotion, strikes, lockouts or other trade disputes (Whether or not involving employees of the Seller), fire, breakdown of machinery, transport delays or interruptions, Government restrictions or regulations, delay in delivery by the Sellers suppliers or obtaining suitable materials.
10.2 In such circumstances except where the Goods are in transport either the Seller or the Purchaser may terminate the unperformed parts of any contract by notice in writing delivered within 90 days of written notice being given by the Seller of the circumstances causing the non-performance or delay in performance provided always that the Purchaser’s obligation to pay in relation to any part of the Contract which has being performed shall not be discharged.
If the Purchaser fails to perform any of its obligations hereunder, fails to pay any payment on the due date or is the subject of a bankruptcy petition or has an administrator or administrative receiver appointed over its business or undertaking or seeks an arrangement with its creditors or enters into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction of a solvent limited company) or ceases to trade or threatens to cease to trade or if the Seller has reason to have serious doubt as to the Purchasers solvency the Seller shall be entitled, without prejudice to its other rights under the contract, to suspend or cancel further performance of its contractual obligation hereunder.
When the Seller has accepted an order no cancellation in whole or in part can be made by the Purchaser without the Sellers consent which will normally only be granted where the seller can cancel relevant orders it has placed with it’s suppliers and on terms that a cancellation charge is paid by the Purchaser to cover all expenses, charges and the loss of profit by the Seller.
Other than when obliged by law the Purchaser shall not without the prior written consent of the Seller communicate to any person, firm or company whatsoever the price paid for any Goods or services or any of the methods of use of the Goods or the details of any services or processes supplied by the Seller or any operating instructions or technical data relating thereto acquired from the seller except to such employees as may be employed by the Purchaser to carry out those processes or use the Goods.
14.1. Our warranty is based on the statutory provisions. In business transactions with companies/individuals and, the limitation period for claims arising from defects in new goods is limited to 12 months from the date of delivery of the goods.
14.2. Machines and devices must be brought or transported to our factory by the customer as part of a warranty claim, with the cost borne by the customer. In addition, at the companies discretion the customer may also request original spare parts individually and install them himself if he is qualified. In this case, we provide advance replacement and telephone support. The customer is obliged to return the defective parts for the assessment of the case. If the return does not take place, or if it subsequently turns out that there was no guarantee for the complained parts, we reserve the right to pass the costs incurred to the Purchaser.
14.3. In the event of unqualified or unspoken, independent intervention in the machines and equipment and / or the installation of third-party parts, all warranty claims expire.
14.4. Consumables can only be claimed when they are delivered, provided the goods are stored correctly and properly. Unless expressly stated otherwise in writing: normal wear and tear parts (drive elements, bearings, heating, etc.), glass breakage damage, transport damage are excluded from the guarantee.
14.5. If a repair is not possible or sensible, we will either refund the purchase price or deliver new goods as an alternative. There are no further claims against us. In particular, the customer’s right to compensation for non-performance and / or compensation for any financial loss suffered by the customer is excluded.
All notifications to be given by the Purchaser to the Seller referred to in these conditions must be in writing and sent by recorded delivery or facsimile transmission. Unless the Purchaser can produce to the Seller if requested proof of such posting or transmission receipt of such, notice shall not be deemed to have occurred.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provisions shall continue in full force and effect.
17. THIRD PARTY RIGHTS
The parties do not intend any provision of this Agreement to be enforceable pursuant to the Contracts (Rights or Third Parties) Act 1999.
The Purchaser shall not without the Sellers prior written consent assign or purport to assign or transfer to any other party any contract to these conditions.
19. GOVERNING LAW AND JURDISTICTION
The formation, existence, construction, performance, validity and all aspects of the contract shall be subject to the laws of, and the parties submit to the jurisdiction of the courts of, England and Wales