In these Terms and Conditions the following expressions will have the following meaning unless inconsistent with the context:
‘Buyer’ the person(s) firm or company whose order for Goods or services is accepted by the Seller
‘Contract’ any contract between the Seller and the Buyer for the sale and purchase of Goods or supply of Services formed in accordance with clause 2 incorporating these conditions.
‘Contract Price’ the agreed price (as stated in the contract of sale to which these conditions apply) at the time the contract came into effect. Unless otherwise agreed the Seller’s price ruling at the date of dispatch of the Goods from the Seller’s premises shall be the agreed price.
‘Delivery Point’ the place where delivery of the Goods takes place.
‘Deposit’ the deposit payable in accordance with clause 4.
‘Intellectual Property Rights’ patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
‘Goods’ any goods which the Seller supplies to the Buyer (including any of them or any part of them) under a contract.
‘Seller’ Felder UK Limited
‘Services’ any services which the Seller provides to the Buyer (including any of them or any part of them) under a contract.
‘Terms and Conditions’ the standard terms and conditions set out in this document together with any special terms agreed in writing between the Buyer and the Seller as specified on the front of the acknowledgement of order.
2. Formation and Incorporation
2.1 Subject to any variation under clause 19 the Contract will be upon these Terms and Conditions to the exclusion of all other terms and conditions and all previous oral or written representations including any terms or conditions which the Buyer purports to apply under any purchase order confirmation of order or similar document whether or not such document is referred to in the Contract.
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s 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 These conditions apply to all of the Company’s sales and any variations to the same or any representations regarding the Goods or Services shall have no effect unless expressly agreed in writing and signed for and on behalf of the Seller. The Buyer expressly acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods or Services by the Buyer will be deemed to be an offer by the Buyer to purchase the Goods or Services upon these Terms and Conditions.
2.5 The Contract is formed when the order is accepted by the Seller by way of a written acknowledgement of order. No Contract will come into existence until a written acknowledgement of order is issued by the Seller or if earlier the Seller delivers the Goods or provides the Services to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any specification are complete and accurate.
2.7 Any quotation is valid for a period of 30 days only from its date provided the Seller has not previously withdrawn it.
3. Goods and Services
3.1 The quantity and description of the Goods or Services will be as set out in the Seller’s quotation or acknowledgment of order.
3.2 Where the Seller sells goods or performs services which are not to its standard specification in preparing and submitting a specification and/or written acceptance of the Buyer’s offer the Seller relies upon the Buyer supplying all necessary relevant and accurate particulars and information. Any errors or omissions contained in such particulars and information supplied at any time resulting in any loss or damage to the Buyer shall be the Buyer’s sole responsibility.
3.3 The Seller may make any change to the specification design materials or finishes of the Goods or provision of the Services which are:-
3.3.1 required to conform with any applicable safety statutory or regulatory requirement; or
3.3.2 do not materially affect their quality or performance.
3.4 Any samples, drawings, descriptions or advertising issued by the Seller and any descriptions or illustrations contained in any catalogues or brochures published by the Seller are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this shall not be deemed to be a sale by sample.
3.5 In the event that the manufacturer discontinues the sale of the Goods or alters any specification for the Goods, the Seller reserves the right to:
3.5.1 Deliver in fulfilment of the Contract goods conforming to the manufacturers specification prevailing at the time of delivery in which case such goods shall be deemed to be within the definition of the Goods contained in these Terms and Conditions; or
3.5.2 Cancel the Contract and return any deposit paid by the Buyer without any further liability on the part of the Seller including any liability for consequential loss that may be suffered.
4.1 The Deposit will be such amount as shall be agreed between the Seller and the Buyer (which may be up to 100% of the price for the Goods or Services if so required by the Seller) and shall be paid by the Buyer.
4.2 In the event of the Buyer cancelling the Contract in the following circumstances:
4.2.1 prior to receipt of the Goods or Services; or
4.2.2 failing to accept delivery; or
4.2.3 failing to complete the Contract; or
then the Deposit shall be forfeited to the Seller but such forfeiture shall not prejudice any other remedy that the Seller may have for breach of any Contract.
5. Price and Payment
5.1 The price and terms of payment for the Goods and Services shall be as set out in the Seller’s order acknowledgement and the price shall be exclusive of any value added tax and all costs and charges in relation to packaging, loading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
5.2 If prior to payment being received in full by the Seller, there is any increase in the quoted price of the Goods the Seller shall be entitled to pass on any increase to the Buyer by providing written notice and the Buyer may:
5.2.1 Purchase the Goods at the new stated price; or
5.2.2 Cancel the order and forfeit the Deposit that may have been paid to the Seller.
5.3 Payment for the supply shall be due in full and in pounds sterling prior to delivery unless agreed otherwise in writing whereby payment will be due within the stipulated time.
5.4 Time for payment shall be of the essence and no payment shall be deemed to have been received until the Seller has received cleared funds.
5.5 All payments to be made by the Buyer to the Seller will be made in full without any set-off restriction or condition and without any deduction for or on account of any counterclaim unless the Buyer has a valid court order requiring an amount equal to such deduction be paid by the Seller to the Buyer and that order is not disputed.
5.6 If any sum payable is not paid when due and without prejudice to any of the Seller’s other rights that sum will bear interest from the due date until payment in full both before and after any judgement at the rate of 7 per cent per annum over the Bank of England base rate from time to time and the Seller will be entitled to suspend deliveries of the Goods or performance of the Services until the outstanding amount has been received.
5.7 The Seller reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998.
The Seller may deliver the Goods in separate instalments or perform the Services in stages. Each instalment or stage will be a separate contract and no cancellation or termination of any one contract relating to any one instalment or stage will entitle the Buyer to repudiate or cancel any other contract instalment or stage.
7.1 Unless otherwise expressly provided for in writing in the Acknowledgement of Order all sales are ex-works and delivery of goods to the carrier shall constitute delivery thereof to the Buyer. Any claim for shortage or damage occurring after such delivery or for transportation over charges should be addressed by the Buyer to the carrier and the Seller shall be under no obligation under S32(2) of the Sale of Goods Act 1979.
7.2 Any period or date for delivery or performance of services stated in the Acknowledgement of Order or elsewhere is the best estimate when stated but is not a contractual statement and the Seller shall not be liable for any direct, indirect, consequential loss (all three of which include without limitation, economic loss, loss of profits, loss of business and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Seller) nor shall any delay entitle the Buyer to terminate or rescind the Contract. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
7.3 Delivery of the Goods will be accepted by the Buyer at any time of the day. If the Buyer fails to take delivery or provide any necessary documents the Goods will be deemed to have been delivered and the Seller without prejudice to any other rights may at its option:
7.3.1 store or arrange for storage of the Goods until actual delivery and charge the Buyer for all related costs and expenses (including without limitation storage and insurance); and/or
7.3.2 following written notice to the Buyer sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the contract price.
7.4 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
7.5 If the Seller delivers a quantity of Goods which is more or less than the quantity expected by the Buyer then the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
7.6 The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery and the Seller shall not be liable for any non delivery of Goods even if caused by the Seller’s negligence.
8.1 The Goods are at risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all the sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are due or which become due to the Seller from the Buyer on any account.
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.3.1 hold the Goods on a fiduciary basis as the Seller’s bailee;
8.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.3.4 maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall procure the policy of insurance to the Seller.
8.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
8.4.1 any sale shall be effected in the ordinary course of business and at full market value; and
8.4.2 any such sale shall be a sale of the Seller’s property on the Buyer own behalf and the Buyer shall deal as principal when making such a sale.
8.5 The Buyer’s right to possession will terminate immediately upon the occurrence of the following events:
8.5.1 the Buyer has a bankruptcy order made against it or makes any arrangement with its 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 its creditors (whether formal or informal), or enters into liquidation (whether voluntary or involuntary), or has an administrator or receiver appointed, or documents are filed with the Court for the appointment of an administrator or notice of intention to appoint under paragraph 14 of Schedule B1 of the Insolvency Act 1986 is served by its Directors or any qualifying floating charge holder, or a resolution is passed or a petition presented for the granting of an administration order or any proceedings commenced relating to insolvency or the possible insolvency of the Buyer;
8.5.2 The Buyer suffers or allows execution, whether legal or equitable, to be levied on his/ its property or obtained against him/it, or fails to observe or perform any of his / its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
8.5.3 The Buyer in any way encumbers or charges the Goods.
8.6 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
8.7 The Buyer grants to the Seller its agents and employees an irrevocable licence to enter any premises at any time 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.
8.8 On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 7 and 9 shall remain in effect.
9.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to pass to the Buyer the benefit of any warranty or guarantee that it has received from the manufacturer but is not obliged to do so.
9.2 Within 14 days of completion of any Services or of provision of any Goods under a Contract, the Buyer will notify the Seller in writing of any fault or defect in such provision (Defect Notice). If no such notification is received the Customer will be deemed to have accepted the Services and any Goods so provided.
9.3 If the Seller receives a Defect Notice then the Seller or the Seller’s representatives will attend the Buyer in order to undertake a diagnosis. If a fault is discovered then the Seller will use all reasonable endeavours to correct any defect which has arisen from normal use or is due to faulty Goods. In such circumstances the Supplier may elect to:-
9.3.1 take the Goods or any of them away from to examine the Goods or carry out repair work or return them to the manufacturer without incurring any liability;
9.3.2 replace all or any part of the Goods; or
9.3.3 refund the price or such part of it as relates to the defective Goods or Services.
9.4 The Seller’s obligations in relation to defective Goods shall not exceed the extent of any manufacturer’s guarantee provided to the Seller from the manufacturer or the Seller’s own supplier, whether as to the time during which Goods will be replaced/repaired or as to any other matter.
9.5 The Seller may refuse to provide any further services under this clause 9 or may invoice the Buyer for the cost of any work or materials brought about by the Buyer’s notification of any defect where such defect is not attributable to any act or omission of the Seller or any defect in the Goods, or is attributable to :-
9.5.1 misuse of the Goods by the Buyer;
9.5.2 failure to follow the Seller’s advice as to use and maintenance of the Goods;
9.5.3 any modification made to the Goods by the Buyer or by third parties;
9.5.4 the Goods have been improperly installed or connected; and
9.5.5 any instructions as to storage of the Goods have not been complied with.
10. Limitation of Liability
10.1 Subject to clause 10.2 and 10.3 below, the Seller’s total liability to the Buyer in contract, tort or otherwise will be limited the total value of the order in question under the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for conditions implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Sale of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 The Seller does not exclude its liability (if any) to the Buyer:
10.3.1 for personal injury or death resulting from the Seller’s negligence;
10.3.2 under section 2(3) Consumer Protection Act 1987;
10.3.3 for any matter which it would be illegal for the Seller to exclude (or to attempt to exclude) its liability; or
10.3.4 for fraud or fraudulent misrepresentation.
10.4 Except as provided for in this clause 10 the Seller will be under no liability to the Buyer whatsoever (whether in contract tort breach of statutory duty restitution or otherwise) for any injury death damage or direct indirect or consequential loss of profits loss of business depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
10.4.1 any of the Goods or the manufacture sale or supply or failure or delay in supply of the Goods by the Seller or on the part of the Seller's employees agents or sub-contractors;
10.4.2 any breach by the Seller of any of the express or implied terms of the Contract;
10.4.3 any use made or resale by the Buyer of any of the Goods or of any product incorporating any of the Goods; or
10.4.4 any statement made or not made or advice given or not given by or on behalf of the Seller.
10.4.5 Except as set out in this clause 10 the Seller hereby excludes to the fullest possible extent permissible in law all conditions warranties and stipulations express (other than those set out in the contract) or implied statutory customary or otherwise which but for such exclusion would or might subsist in favour of the Buyer.
10.4.6 Each of the Seller’s employees agents and subcontractors may rely upon and enforce the exclusions and restrictions of liability in that person’s own name and for that person’s own benefit as if the words ‘its employees agents and sub-contractors’ followed the word Seller wherever it appears in these Terms and Conditions.
10.4.7 The Buyer acknowledges that the provisions of this clause 10 are reasonable and reflected in the price which would be higher without these provisions and the Buyer will accept such risk and/or insure accordingly.
11.1 The Buyer agrees to indemnify keep indemnified and hold harmless the Seller from and against all costs (including the costs of enforcement) expenses liabilities injuries direct or indirect or consequential loss damages claims demands proceedings or legal costs (on a full indemnity basis) and judgements which the Seller incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance by the Buyer of the terms of the contract.
12. Events beyond the Control of the Seller
12.1 The Seller does not accept liability incurred under the contract for supply whenever and to the extent to which the fulfilment of the Seller’s obligations are prevented, frustrated, impended and/or delayed as a consequence of any force majeure and/or any occurrence whatever beyond the control of the seller, such to include, but not be limited to acts of God, Fires, Floods or other catastrophes, Wars, Riots, Civil commotion, Embargoes, Government Regulations or obtaining necessary material from the Sellers usual sources of supply, Shortage of transport facilities or delays in transit, Existing or future strikes or other labour troubles affecting the performance hereof whether involving the Sellers employees or employees of others, regardless of the responsibility or fault on the part of the employee, and failure in the whole or in part of power supplies.
12.2 The Seller will make such reasonable efforts within its power to overcome difficulties arising in connection therewith but reserves the right to cancel suspend or vary its obligations under the contract for supply and in the event of shortage of goods or of valuable resources or of their production, storage or delivery or continued difficulty in rendering services arising from any of the events or circumstances referred to in paragraph 12.1 of this clause. The Seller reserves the right to allocate as it may think fit its available goods and resources and performance of services between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase goods from a third party or sub-contract to make good such shortages or performance.
12.3 If any events mentioned above prevent the Seller from delivering all or part of the Goods of performing all or any part of the Services for longer than six months either party may at any time after the expiry of such a period of 6 months by notice in writing and without liability cancel the contract as regard such undelivered Goods or unperformed Services
12.4 If either party shall so cancel the contract the Buyer shall promptly pay such sum as represents the proportionate part of the contract price for the Good supply and/or for Services performed up to the date of cancellation and the Seller may retain any deposit or interim payment to satisfy such sum that any excess shall be repaid to the Buyer.
13.1 The Seller reserves the right without notification to the Buyer to suspend further deliveries and/or performance of Services in the event of:
13.1.1 any payment not having been made when due;
13.1.2 the Buyer committing an act of insolvency;
13.1.3 the Buyer ceasing to or threatening to cease to carry on its business; or
13.1.4 should the Seller at its discretion consider at any time the financial circumstances of the Buyer have ceased to justify the credit terms allowed.
13.2 If Goods have been delivered and not paid for and an event occurs as set out in this clause 13 the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.3 The termination of the Contract however arising is without prejudice to the rights duties and liabilities of either the Buyer or the Seller accrued prior to termination.
14.1 The precise limits of any appropriate insurance cover are primarily within the Buyers knowledge thereby enabling the Buyer to effect his own insurance at more economic rates than the Seller, the Buyer agrees that in so far as the Buyer may require any insurance cover the Buyer shall effect the same such to include without prejudice to the generality of the foregoing.
14.1.1 Damage to physical property of any kind.
14.1.2 Economic and other consequence or indirect loss or damage. Therefore the Buyer acknowledges and accepts that it is reasonable for the seller to limit its legal liability and its liability to pay damages as set out in these conditions
14.2 The Buyer insurers shall in no circumstances whatsoever have any rights arising or remedies against the Seller additional to those of the Buyer.
15. Health and Safety
15.1 The Buyer agrees only to use the goods and obtain services for uses specified in the Seller’s current sales literature or for other uses which the Seller has specified notified in writing to the Buyer as being in Sellers opinion free from risk to health and safety.
15.2 The Buyer agrees to pay due regard to any information or advice relating to the use of the goods or products or the services which the Seller may at any tie furnish to it and agrees that before the goods are used it will if requested by the Seller furnish the Seller with a written undertaking to take any steps which the Seller may specify with a view to ensuring that the goods will be safe and without risk to health when used.
15.3 Any written undertaking given pursuant to paragraph 13.2 above shall be deemed to have effect as forming part of the contract for supply
16.1 On all orders the Seller shall have the right to ship and bill for a quantity of goods greater or less than the exact quantity up to a variation of 10% unless otherwise expressly provided for on the Order Acknowledgement
17. Buyer’s Property
17.1 Any material or property of the Buyer or material or property supplied to the Seller by or on behalf of the Buyer is supplied entirely at the Buyer’s risk and the Seller will not be liable or held responsible for any loss or damages to such material or property whether or not attributable to the acts defaults or negligence of the Seller or any of the Seller employees or agents.
18.1 The Seller may assign delegate license hold on trust or sub-contract all or any part of its rights or obligations hereunder.
18.2 The contract is personal to the Buyer who may not assign delegate license hold on trust or sub-contract all or any of its rights or obligations hereunder without the Seller’s prior written consent.
19. Intellectual Property
19.1 It is acknowledged that all Intellectual Property Rights in the Goods are not sold to the Buyer, and that the Buyer has no rights in, or to, the Intellectual Property Rights.
20.1 Save as set out in the Contract these Terms and Conditions may only be varied or amended in writing and signed by a director of the Seller.
21.1 The rights of the Seller shall not be prejudiced or restricted by any indulgence or forbearance extended to the Buyer and no waiver of any breach shall operate as a waiver of any subsequent breach and shall only apply to the individual contract for supply in relation to which it is made.
22.1 If any provision of the Contract or part thereof is found to be invalid, illegal, void, unenforceable or unreasonable for any reason by any court or competent authority, then it is to be deemed severeable from the Contract without prejudice to the validity or effectiveness of the remaining terms and conditions which shall continue in full force and effect.
23.1 The Buyer shall only be able to cancel this Contract within 14 days (“Notice Period”) of the date of the acknowledgment of order form whereafter the Buyer shall not be entitled to cancel the Contract and shall be required to accept delivery of the Goods and meet payment in full notwithstanding whether it has accepted delivery of the Goods or supply of the Services.
23.2 The Seller shall not be obliged in any way to mitigate its losses in respect of any cancellation which occurs after the Notice Period.
24. Determination of Contract
24.1 If the Buyer shall make default in or commit a breach of contract or of any of his obligations to the Seller or of any of his obligations to the Seller or if any distress or execution shall be levied upon the Buyer’s property or assets or if the Buyer shall make or offer to make any arrangement or composition with his or its creditors or apply for an “interim order” in connection with a voluntary arrangement, or if a bankruptcy petition shall be presented or made against him or if the Buyer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of a bona fide amalgamation or reconstruction) shall be passed or presented, or if the Receiver or an Administrative Receiver of such company’s undertaking or assets or any part thereof shall be appointed or if an application is made for the appointment of an Administrator of such a company, or if the Directors of such a company propose a composition of debts or scheme of arrangement, the Seller shall have the right forthwith to determine any contract then subsisting with the Buyer and upon written notice of such determination being posted to the Buyer’s last know address any subsisting contract shall be deemed to be determined but without prejudice to any claim that the Seller may have in respect of any antecedent breach by the Buyer of any of his obligations under the said contract or in respect of any Goods delivered to the Buyer for which payment in fully has not been received.
25.1 The Seller and the Buyer hereby submit to the exclusive jurisdiction of the English Courts and this Contract shall be governed by and interpreted in accordance with English Law.
26. Set Off
26.1 The Buyer shall not be entitled to any right of set off as against the Seller and the Buyer shall not be entitled to retain or keep back any proportion of the purchase price for any reason whatsoever unless it is able to produce to the Seller a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer and that order is not disputed.
27.1 The Buyer hereby confirms that it has been made thoroughly acquainted with the operation of the machine and has had the sources of danger expressly pointed out to it and further confirms that it has carefully considered the operating instructions. The Buyer also undertakes to follow the operating instructions exactly in order to avoid injury to persons and damage to the goods and other property.
28.1 Alterations or additions to the contract must be in writing. If a term of the contract should be or become invalid, it is agreed that the nearest possible similar condition with the same economic purpose shall be substituted in its place and that this will not affect the validity of the remaining conditions. If a FELDER partner agreement exists, the conditions of that contract shall take precedence over these conditions
29.1 Each right and remedy under the Contract is without prejudice to any other right or remedy of the parties whether under the Contract or not.
29.2 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of its rights under the Contract.
29.3 The parties to the Contract do not intend any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not party to it.