FRA North West Limited Terms and Conditions of Physical Product Sales
The Buyer confirms that it agrees and accepts that the liability of the FRA North West Limited under these terms and conditions is limited in accordance with clause 10 and accepts the liquidated damages for cancellation payable in accordance with clause 3.4.
In order to process a Buyer’s Order the Company will supply information including a Customer’s personal information to credit reference agencies (“CRAs”) and they will give the Company information about a Buyer, such as about financial history. The Company does this to assess creditworthiness and product suitability, check identity, manage a Buyer’s account, trace and recover debts and prevent criminal activity. The Company will also continue to exchange information about a Customer with CRAs on an ongoing basis, including about settled accounts and any debts not fully repaid on time. CRAs will share that information with other organisations. The identity of the CRA, and the ways in which it uses and shares our Customer’s personal information, is maintained on the Company’s sub-processor schedule and further details can be provided on request.
1. DEFINITIONS
In these terms and conditions the following expressions have the meanings listed next to them. In these Conditions:
1.1. "Buyer" means any person at whose request goods are supplied by the Company.
1.2. “Company" means FRA North West Limited.
1.3. "goods" means any goods or replacements therefor and any refurbished goods together with (in the case of contracts for the provision of services) any services/ workmanship supplied to the Buyer under the contract.
2. INTERPRETATION
2.1. These Conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing signed by a director or authorised person on behalf of the Company.
2.2. The headings are for convenience only and shall not affect construction of these Conditions.
3. FORMATION AND PARTIES
3.1. The Buyer's order to the Company is an offer to enter into a contract upon these Conditions Acceptance occurs and the contract is formed solely upon the Company dispatching to the Buyer its Acknowledgement of Order or theCompany commencing work on the order (whichever shall first occur). Any terms or conditions proffered at any time by the Buyer are hereby excluded. A quotation by the Company does not constitute an offer. Quotations given are valid only if in writing and may be withdrawn at any time by written notice from the Company. Unless a different period is specified on the Company's written quotation, a quotation is valid for 30 days from the date of issue of the quotation.
3.2. The Buyer shall not assign the benefit of the contract without the Company's prior written consent.
3.3. The contract is not cancellable by the Buyer without express written consent of a director or other authorised person on behalf of the Company.
3.4. If the Company agrees cancellation by the Buyer, the Buyer shall indemnify the Company in full against all expenses incurred up to the time of cancellation together with a reasonable amount by way of liquidated damages for breach of contract as specified by the Company, such sum being acknowledged by the Buyer as representing a genuine pre-estimate of the Company's loss of profit and not in any event to exceed 20% of the contract price.
3.5. The Company may suspend or terminate the contract with immediate effect by giving the Customer written notice if at the commencement of the contract the Company is not satisfied with the result of a credit check, or an international trade compliance check on the Buyer.
4. PRICE
4.1. Unless otherwise specifically agreed by the Company in writing, the price of the goods shall be that stated in the Company's price list applicable to the goods.
4.2. The Company reserves the right to vary the price of the goods without notice to take account of any variation in the cost of materials labour transport duties taxes change rates or any costs of whatsoever nature between the date of the contract and the date of delivery or completion of payment. In addition the Company reserves the right to recover costs and other charges associated with a Brexit Event as set out in these conditions.
4.3. Set-off. Where permitted by law, the Company shall be entitled to set-off any amounts due to the Buyer against any amounts owed to the Company by the Buyer by way of liability whether present or future, liquidated or unliquidated, and whether or not either liability arises under this contract. If the liabilities to be set-off are expressed in different currencies, the Company may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Company of our rights under this clause shall not limit or affect any other rights or remedies available to the Company under this contract or otherwise.
5. DELIVERY
5.1. Delivery dates are estimates only. Time of delivery is not of the essence of the contract. Unless otherwise stated, delivery periods commence from date of the Company's acceptance of Buyer's order. The Company shall use its reasonable endeavours to deliver the goods by the stated delivery date, but may suspend or delay delivery and shall not be liable for any loss whatsoever in the event of late delivery or non-delivery of goods or any instalment owing to anyoccurrence whatsoever beyond its control. The Buyer shall not be entitled to refuse to accept late delivery or treat late delivery as a breach of contract.
5.2. The Company may at its option deliver by instalments; each instalment shall constitute a separate contract on these Conditions.
5.3. Delivery shall take place and risk shall pass upon the earliest of the following:
5.3.1. the Company handing the goods to the Buyer or its agent at the Company's premises; or
5.3.2. the goods leaving the Company's premises; or
5.3.3. on the eighth day following notification that the goods are ready for dispatch; or
5.3.4. in the case of goods supplier at the time of a service visit by the Company, upon the Company handing the goods to the Buyer or its agent at the Buyer's premises.
5.4. All prices are given by the Company on an ex-works basis. Where the Company agrees to deliver the goods to the Buyer's premises, the Company reserves the right to make a reasonable charge for transport, packaging and insurance.The Company shall use reasonable endeavours to give to the Buyer prior notice of any such charges.
5.5. Unless otherwise agreed in writing all export orders will be delivered f.o.b. at a British port to be notified by the Company.
5.6. If the Buyer has failed to collect goods on the expiry of the seventh day following notification of readiness for dispatch the Company shall be entitled to treat the contract as repudiated by the Buyer. Until the contract is so terminated the Company may, at its option, either store the goods itself or have them stored by third parties on such terms as it in its absolute discretion thinks fit. The cost of storage and any
additional transportation will be added to and form part of the price. If the Company elects to treat the contract as repudiated in accordance with this Condition it shall (without prejudice to its rights and
remedies in respect of such repudiation) be entitled to sell the goods and retain the proceeds of the sale
6. LOSS OR DAMAGE IN TRANSIT:
6.1. The Company shall not be liable for loss or damage to goods in transit unless:
6.1.1. the Company has agreed to effect delivery to a place other than the Company's premises; and
6.1.2. the loss or damage occurs prior to arrival at delivery point; and either
in the case of non-export sales, the damage or shortage is reported within 7 days of arrival at delivery point and in the case of export sales the damage or shortage is notified to the Company within 14 days of arrival at the delivery point; or in the case of total loss, non-arrival is notified to the Company within 14 days after dispatch of advice note or invoice (whichever is the earlier).
7. INSPECTION
7.1. The Buyer shall inspect the goods immediately upon receipt and shall (unless such inspection cannot be carried out and the delivery note is marked "not examined"), subject to clause 7.2 below, be deemed to have accepted the goods as delivered.
7.2. The Company shall not be liable for defects or shortages discoverable on reasonable inspection unless the Buyer notifies the Company, in the case of non-export sales before the expiry of 7 days after receipt, and in the case of export sales 14 days after receipt, of any alleged defect or lack of conformity with the contract.
7.3. The Company shall make good shortages notified to it under clause 7.2 as soon as reasonably practicable but shall not be liable for any other loss whatsoever arising from such shortage.
7.4. The Company's liability for goods lost or damaged in transit shall in all circumstances be limited to (at the Company's option) the repair or replacement or crediting the Buyer with the invoice value of the goods in question.
8. WARRANTY
8.1. In this condition "Warranty Period" shall mean:
8.1.1. if the goods are of the type to which warranty conditions published by the Company and current at the time of the Buyer's order apply, the period specified in such published warranty conditions
8.1.2. in any other case, the period determined under clause 8.2 below.
8.2. In the absence of any other warranty period specified in writing by the Company to the Buyer, the Warranty Period specified in this clause 8.2 shall apply, namely:
8.2.1. in respect of hose reels and portable fire extinguishers, subject to the goods being serviced by the Company on an annual basis pursuant to a service contract with the Company, a period of 5 years from the date of delivery;
8.2.2. in respect of refurbished goods a period of 12 months from the date of delivery; and
8.2.3. in respect of any other case not referred to in clauses 8.1, 8.2.1 or 8.2.2 above, a period of 12 months from the date of delivery or, if the goods are not of the Company's manufacture and the manufacturer offers in respect thereof a warranty period of less than 12 months, such warranty period as shall have been specified by the manufacturer.
8.3. If within the Warranty Period a material defect in the goods shall be discovered and:
8.3.1. the Buyer notifies the Company within 14 days after discovery giving particulars and either at its own expense and risk returns the goods to the Company; or (at the Company's sole option) permits the Company to inspect the same; and,
8.3.2. such defect has arisen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection at time of receipt, then the Company shall supply replacements or, at its option, credit the Buyer's account with the Company or refund to the Buyer the purchase price paid for and cost of returning the defective goods.
8.4. The Company's liability for defective goods is limited in all circumstances to (at the Company's option) delivery of replacements or crediting or refunding of the invoice value to the Buyer and the Buyer shall accept such of the aforementioned remedies as the Company shall proffer as being fulfilment of the Company's obligations under the contract.
8.5. The Company's liability under this Condition applies only to defects appearing before the Buyer makes any modification or alteration or repair to the goods and whilst the goods are being properly used or stored and in particular (but without limitation) the Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling or processing by the Buyer, or accelerated deterioration resulting from injurious environmental conditions.
8.6. Where the goods are sold under a consumer transaction the statutory rights of the buyer are not affected by these Conditions.
9. ITEMS SUPPLIED BY BUYER
The Buyer shall be liable for all drawings, specifications and instructions issued to the Company with orders or pursuant to the contract and shall indemnify and keep indemnified the Company against all loss directly or indirectly arising out of any error in or omission from such drawings specifications and instructions, and against all costs claims demands and expenses whatsoever in respect of the infringement or potential infringement of any patent, copyright, registered design or other third party right arising out of the Company's use of such drawings, specifications or instructions.
10. LIMITS OF LIABILITY
10.1. The goods are supplied strictly on the terms that the Buyer has satisfied itself of their suitability for its purposes. The Buyer acknowledges that all specifications and details in catalogues, quotations and acknowledgements of order or similar documents or by word of mouth and all forecasts of performances, howsoever given, are approximate only and do not form part of the contract and that in respect of such specifications details and forecasts the Company shall beunder no liability nor shall the Buyer be entitled to any remedy under the provisions of the Misrepresentation Act 1967.
10.2. The Company's liability under clauses 7 and 8 shall be accepted by the Buyer in lieu of any warranty or condition, whether express or implied by law, as to the quality or fitness for any particular purpose of the goods and, save as provided in this contract, the Company shall not be under any liability to the Buyer (whether in contract, tort or otherwise) for any defects in the goods, materials supplied or workmanship performed by the Company or for any damage, loss,death or injury resulting from such defects and the Buyer shall indemnify the Company against any claims in respect thereof. For the purposes of this clause the Company contracts on its own behalf and on behalf of and as trustee for its subcontractors, servants and agents.
10.3. The Company shall not be liable, whether by way of indemnity or by reason of breach of contract, tort or breach of statutory duty or in any other manner for consequential or indirect loss of whatever nature suffered by the Buyeror for special damages, loss of use, (whether complete or partial) of the goods, or loss of profit or of any contract.
10.4. The Company accepts liability for death or personal injury which is due to the negligence of the Company in performing the contract.
10.5. The Company's total aggregate liability to the Buyer under this contract whether under contract, tort (including negligence), statute or otherwise shall not exceed £50,000.
10.6. Nothing in this clause shall be construed as limiting or excluding the Company's liability under the Consumer Protection Act 1987 or for death or personal injury resulting from its negligence (as defined in Section 1 of the UnfairContract Terms Act 1977).
10.7. Indemnity The Buyer shall indemnify and keep indemnified the Company against all actions, claims, costs, damages, demands and expenses or other loss arising out of a defect in the goods (including, without limitation, all liabilities incurred under the Consumer Protection Act 1987) to the extent occasioned or contributed to by any act or omission of the Buyer its servants, agents or persons under its control.
11 RETENTION OF TITLE
Until the Company has received payment in full of all sums owed to it on any account by the Buyer, whether arising out of this or any other contract, legal and beneficial title to the goods shall remain in
11.1. the Company; such goods are referred to in this clause as "retained goods".
11.2. Retained goods:
11.2.1. are held by the Buyer as fiduciary for the Company and the Buyer shall not pledge or in any way charge by way of security for any indebtedness any retained goods;
11.2.2. shall be at the Buyer's risk, insured by the Buyer from the date of delivery at its own expense for their full replacement value against all usual risks; and kept safe in good condition and stored separately and clearly identifiable as the Company's property and with all identifying marks intact and legible; and
11.2.3. may, subject to clause 11.3 below be used or sold by the Buyer as fiduciary for the Company in the ordinary course of its business on the basis that the proceeds of sale shall be held in trust by the Buyer for the Company absolutely.
11.3.1. may, subject to clause 11.3 below be used or sold by the Buyer as fiduciary for the Company in the ordinary course of its business on the basis that the proceeds of sale shall be held in trust by the Buyer for the Company absolutely.
11.4. The Buyer's powers of use and sale of retained goods shall terminate:
11.4.1. forthwith on notice from the Company if the Buyer is in default of any of its obligations under this or any other contract with the Company or if the Company has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to it on the due date;
11.4.2. automatically upon the occurrence of any of the following:
11.4.2.1. if the Buyer causes a meeting of or makes any arrangement or composition with its creditors; or,
11.4.2.2. if the Buyer becomes insolvent or appears to be unable to pay a debt or to have no reasonable prospect of paying a debt (within the meaning of Section 268 of the Insolvency Act 1986); or, being a company, appears unableto pay its debts (within the meaning of Section 123 of that Act); or,
11.4.2.3. if there is presented a petition for the winding up of the Buyer, or for the appointment of an Administrator of its undertaking; or,
11.4.2.4. if the Buyer has an Administrator or Administrative Receiver appointed over any of its assets or undertaking or a winding up order made against it or it goes into voluntary liquidation (otherwise than for the purposes ofbona fide reconstruction or amalgamation of a solvent company);
11.4.2.5. if anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Buyer.
11.4.3. The Company may at any time, on giving prior notice, enter the Buyer's premises for the purpose of inspecting retained goods and identifying them as the Company's property and the Buyer irrevocably authorizes the Company to enter upon its premises for that purpose.
11.5. Upon suspension, revocation or determination of the Buyer's power of sale and use under this clause 11 the Buyer shall place all the retained goods in its possession or under its control at the Company's disposal and shall be deemed irrevocably to authorise the Company to enter upon any of the Buyer's premises, with or without vehicles, for the purpose of removing such goods.
12. PAYMENT
12.1. Subject to satisfactory trade, banker's and other requisite references, and where no other terms of payment have been specifically agreed in writing, the Company's terms are cash payment in full to be made within 30 days after the date of invoice and without counter claim, deduction, set-off or withholding. Unless otherwise specifically agreed in writing payment for export orders shall be by irrevocable letter of credit confirmed by a London Clearing Bank and issued under the Incoterms then in force. No discount or allowance will be made unless specifically stated by the Company in writing. If you do not pay our charges in full on or before the due date under clause 12.1 then withoutprejudice to any other remedy that we may have under this agreement we may claim interest, costs and compensation on all overdue debt in accordance with the Late Payment of Commercial Debt (Interest) Act 1998 (as amended by subsequent regulations) (“the LPCD”) where applicable; or, where we are not entitled to make a claim under the LPCD we reserve the right to claim simple interest at a rate of 8%. Time for making payment shall be of the essence of thecontract
12.2. The Company may at any time, in its absolute discretion, appropriate any payment made by the Buyer in respect of goods to such outstanding debt as the Company thinks fit, not withstanding any purported appropriation to the contrary by the Buyer.
12.3. The Company shall be entitled to cancel the contract or to postpone any delivery until payment has been received in the event that the Company has reasonable doubts about the Buyer's ability or willingness to pay on thedue date.
12.4. The Company reserves the right at any time at its discretion to demand security for payment before continuing with an order or delivering goods or any instalment.
12.5. VAT will be charged at the rate ruling at the time of dispatch of the goods or, if different, the basic tax point (as defined in regulations governing VAT from time to time in force).
The Buyer shall provide the Company with whatever information it reasonably requests in writing, in order for the Company to satisfy the provisions of clause 17 above. In the event that the requested information is not provided by theBuyer, the Company shall not be held accountable for, accept any liability, or be held in breach of this contract as a result of the Buyer failing to provide the requested information to the Company.
13. REFURBISHED GOODS
13.2. If in the sole opinion of the Company the used equipment submitted for refurbishment cannot be refurbished to an acceptable standard:
13.2.1. the Buyer's order shall be deemed to have been varied from the number of refurbished equipment ordered to that which the Company is able to refurbish; and
13.2.2. the Company may dispose of the used equipment in a manner which the Company deems appropriate without any liability whatsoever to the Buyer or, if so requested by the Buyer, return the equipment at the Buyer's expense.
13.2.3. The Buyer shall indemnify the Company and keep the Company fully and effectively
After taking all reasonable steps to mitigate, the Company shall give the Buyer reasonable notice should the Company suffer during the course of this contract any adverse impact on this contract, including increases in costs and expenses, as a result of an Event i) related to the UK leaving the European Union, ii) related to an epidemic or pandemic, or iii) beyond the Company’s reasonable control. An “Event” shall include, but not be limited to:
(a) changes in law;
(b) government action, public authority action;
(c) national emergency;
(d) changes in health and safety requirements,
(e) changes in environmental requirements;
(f) imposition of sanctions or embargo, the breaking of diplomatic relations;
indemnified against all costs, claims, demands, expenses and liabilities arising from its having th(eg) increases in tariffs or other duties, taxes or levies imposed on exports or imports, fluctuating exchange.
Buyer's equipment in its possession prior to the commencement of refurbishment and in respect of the disposal of the equipment by the Company as referred in clause 13.2.
14. FORCE MAJEURE
14.1. The Company shall not be liable to the Buyer if unable to carry out any provision of the contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, lock out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or owing to any inability to procure parts or materials required for the performance of the contract.
14.2. The Company shall notify the Buyer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such a contingency the Company may, within its absolute discretion,withhold, reduce or suspend performance of its contractual obligations, so far as prevented or hindered by such contingency, without liability to the Buyer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction, or suspension. 14.3.Should such contingency continue for more than three months either party may (subject to the unforeseen at the date of this contract.
In addition, it is further agreed that the Company shall have no liability for any delays to programme or delivery or any penalties, costs or damages that are associated with any programme or delivery if such delay is caused by an Event.
15. NO WAIVER
No waiver of any of the Company's rights under the contract shall be effective unless in writing signed by a director or other authorised person on behalf of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of a Company's rights in relation to different circumstances or the recurrence of similar circumstances.
16. NOTICES
Any notice under these Conditions shall be properly given if in writing and sent by first class post, telex or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Buyer from time to time notify to each other as their respective addresses for service and shall be deemed served in the case of postal notice, on the expiry of 48 hours from time of posting, in the
19 DATA PRIVACY
19.1 The Parties acknowledge and agree that in the execution and the administration of the Agreement, personal information of either Party will be collected and processed, as independent data controllers, for invoicing and contractexecution and management purposes, and comply with any and all Data Privacy Laws. Where a Party provides the other Party with any personal information for such purpose, it will ensure that it has the legal right to do so, including obtaining consent and providing notice to the individuals whose personal information it has provided to the other, if needed. The Parties shall neither sell, nor exchange for anything of value, personal information processed in thecourse of the performance of the Agreement and thereafter.
19.2 Carrier may share personal information with Carrier’s service providers and Carrier may store personal information on servers located and accessible globally by Carrier entities and their service providers but only in accordance with applicable data privacy laws and with appropriate protections in place. Data privacy is important to Carrier. For more information, consult our
19.3 The use of some Carrier products and services may require specific data processing for e.g. user authentication. Depending on the product and services at stake, a specific Privacy Policy and Terms of Use mayneed to be accepted by the end-user.
20. JURISDICTION
English Law shall govern construction and operation of the contract and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.
Each clause of these terms and conditions shall be construed as a separate condition.Should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Company's liability then such provision shall apply with such modification as may be necessary to make it valid and effective. If the Company decides to use a scanned copy of this contract instead of the original then the Buyer agrees that the scanned contract may be treated as the original, and unless the Buyer can show that its validity is in serious doubt.