Fillcrete General Terms & Conditions
In these conditions "Seller" means Fillcrete Limited and "Buyer" means the person whose written order for the goods is accepted by the Seller."Contract" means the contract for the sale and purchase of the goods. "Writing" includes communications by fax or electronic mail.
2. Application of Terms
Contracts and orders are accepted only subject to the Sellers General terms as set out in this document and the Sellers Special Conditions of Sale [if any] endorsed on the accompanying Sales Note and the Buyer shall be bound by such conditions. No modification or variation of these Conditions will be accepted unless expressly agreed in writing. In the event of any conflict between these Conditions and those contained in the Buyer's documentation these Conditions will prevail.
3. Orders and specification
3.1 The quantity, quality and description of the goods and any specification for them shall be as set out in the Seller's Offer.
3.2 The Buyer confirms that he relies on his own reasonable skill and judgement in assessing the suitability of the goods for a particular purpose.
3.3 The Buyer confirms that where he has received a sample for approval that the Buyer is solely responsible for assessing the suitability of the goods for a particular purpose.
4.1 Time of delivery shall not be of the essence of the Contract unless otherwise previously agreed in writing by the Seller.
4.2 Delivery where the goods are sold DDU shall be when the goods are available for discharge from the Sellers transport at the Buyers premises. The Buyer shall provide at the delivery point and at its expense adequate facilities for discharge of the goods.
4.3 If the Buyer is unable to take delivery of the goods at their premises at the agreed time, any handling and storage costs will be borne by the Buyer.
4.4 Where the Buyer has requested the sale of goods under DDU terms all quotations and estimates assume delivery in one consignment. Where delivery in instalments is requested by the Buyer, additional delivery charges may be raised by the Seller.
5. Risk and Property
5.1 Risk in the goods shall pass to the Buyer when the goods are delivered.
5.2 Notwithstanding delivery and the passing of risk in the goods, title and property in the goods, including full legal and beneficial ownership shall not pass to the Buyer, until the Seller has received in cash or cleared funds payment in full, for all goods delivered to the Buyer under this and all other contracts between the Seller and the Buyer for which payment of the full price of the goods thereunder has not been paid. Payment of the full price of the goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the Buyer and the Seller under which the goods were delivered.
5.3 Until such time as the title and property in the goods whether legal or beneficial passes to the Buyer, the Buyer shall hold the goods as the Seller's fiduciary agent and bailee and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer has the right to resell or use the goods in the course of its ordinary course of business.
5.4 Until such time as the title and property in the goods whether legal or beneficial passes to the Buyer, the Seller may at any time require the Buyer to deliver up the goods to it and, if the Buyer fails to do so forthwith enter on any premises of the Buyer or any third party where the goods are stored or remain severable from other goods.
5.5 The Buyer shall not be entitled to offer the goods as security or in any way charge any of the goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller [without limiting any other right or remedy of the Seller] immediately become due and payable.
6.1 Unless previously agreed in writing all prices quoted are DDU delivered to the Buyers premises.
6.2 All prices quoted are exclusive of VAT which shall be due at the prevailing rate.
6.3 All prices quoted are for the quantities specified and should not be taken on a pro rata basis for other quantities.
7.1 Unless otherwise previously agreed in writing the goods shall be paid for in cash by the Buyer 30 calendar days after delivery of the good as defined in clause 4 above.
7.2 Failure to make payment within the agreed terms shall entitle the Buyer to suspend further deliveries until payment is made or to cancel in writing, or treat the contract as repudiated by the Buyer, without prejudice to the Sellers other rights or remedies for breach of Contract.
8. Interest for late Payment
In the event of late payment by the Buyer the Seller shall be entitled to interest at 8% above the base rate prevailing for HSBC bank from the due date to the date of actual payment by the Buyer.
Unless otherwise previously agreed in writing the goods will be package and not individually wrapped. Special requirements by the Buyer for packing must be referred to the Seller for suitability and additional costs if any.
10. Claims for Short Delivery or Goods damaged during Delivery
The Buyer shall inspect the goods immediately on delivery and where patent damage or shortages are present mark the delivery note accordingly. In any event the Buyer shall not later than 5 working days of delivery and in any case prior to use notify the Seller in writing of any shortage or damage caused in transit.
11. Warranty and Liability
11.1 Subject as expressly provided in these Terms, and except where the goods are sold to a consumer as defined in the Unfair Contracts Terms Act 1977 all warranties, conditions or other terms implied by Statute or common law are expressly excluded.
11.2 Where there is a patent defect in the quality or condition of the goods or a failure to meet the agreed specification, the Buyer must notify the Seller of the claim in writing within 5 working days of the delivery. Where the defect or failure was not apparent on reasonable inspection a written claim must be made to the Seller within a reasonable time of its discovery.
11.3 In the event of a claim for quality or condition of the goods or a failure to meet the agreed specification being accepted by the Seller, the Seller may at its own discretion, either replace the goods free of charge or refund to the Buyer the price of the original goods and shall have no further liability to the Buyer.
11.4 Except in respect of death or personal injury caused by the Seller's negligence or liability under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any non fraudulent representation, or any implied warranty, condition or other term or any duty at common law or under the express terms of the Contract for loss of profit or any indirect special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of the goods or their use or resale by the Buyer.
11.5 The entire liability of the Seller shall be limited to the replacement cost of the goods supplied under this Contract.
12. Insolvency of the Buyer
12.1 In the event of any one of the of the events set out in clauses 12.2 to 12.5 applying to the Buyer, then the Seller may, without limiting any other right or remedy available to the Seller, cancel 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.
12.2 The Buyer makes a voluntary arrangement with its creditors or [being an individual or firm] becomes bankrupt or [being a company] becomes subject to an administration order or goes into liquidation [otherwise than for the purposes of amalgamation or reconstruction]; or
12.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property assets of the Buyer; or
12.4 the Buyer ceases or threatens to cease, to carry on business; or
12.5 The Seller has reasonable knowledge that any one of the events mentioned above is about to occur and notifies the Buyer accordingly.
13. Force Majeure
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform its obligations in relation to the goods, if the delay or failure was due to a cause beyond the Seller's reasonable control. For the avoidance of doubt these causes will include but shall not be limited to:
13.1 Acts of God, fire, flood, storm or accident.
13.2 War, hostilities [whether war be declared or not], invasion, act of foreign enemies
13.3 Rebellion, revolution, insurrection, military or usurped power or civil war.
13.4 Riot, civil commotion or disorder.
13.5 Acts, restrictions, regulations, by-laws, refusal to grant any licences or permissions, prohibitions or measures of any kind on the part of any governmental authority.
13.6 Import or export regulations or embargoes.
13.7 Strikes, lock outs or other industrial actions or trade disputes of whatever nature, whether involving the Seller's employees or third parties.
13.8 Defaults of suppliers or sub-contractors for any reason whatsoever.
13.9 Incompleteness or inaccuracy of any technical information which is the responsibility of the Buyer to supply
13.10 Difficulties in obtaining raw materials, labour, fuel, parts or machinery
13.11 A significant weakening of Sterling exchange rates.
13.12 Power failure or breakdown in machinery.
14.1 The Seller's rights under these terms shall not be affected or restricted by any waiver of any breach or subsequent breach by the Seller.
14.2 Any dispute arising out of or in connection with this Contract shall be referred to and finally be resolved by arbitration by appointment of a sole arbitrator appointed, in the absence of agreement between the Seller and Buyer, by the President for the time being of the Timber Trade Federation whose decision on the appointment shall be binding.
14.3 The Order shall be considered to be a contract made in England, and shall be governed in all respects by English Law, and the parties agree to submit to the exclusive jurisdiction of the English courts.
Dated and Valid from January 2011