1 – Interpretation
1.1 In these Conditions:
- ‘BUYER’ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
• ‘GOODS’ means the goods (including any instalment of the goods or any parts for them) set out in the Order which the Seller is to supply in accordance with these Conditions;
- ‘Order’ means the Buyer’s order for the Goods which is submitted to the Seller in Writing either pursuant to the Seller’s quotation or otherwise;
• ‘SELLER’ means flex7 Limited (registered in England under number 3658310);
• ‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
• ‘CONTRACT’ means the contract for the purchase and sale of the Goods in accordance with the Conditions;
• ‘WRITING’ includes facsimile and email transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 – Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Order and subject to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 Any samples or advertising produced by the Seller and any illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.7 A quotation for the Goods given by the Seller shall not constitute an offer.
3 – Orders and specifications
3.1 An Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until either: (a) it is confirmed in Writing by the Seller’s authorised representative, or (b) the Seller does any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses (including any direct, indirect or consequential losses, loss of profit and loss of reputation) awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for actual or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform to any applicable statutory or legal requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 – Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order by the Seller. All prices quoted are valid for 30 days only, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to: (i) any factor beyond the control of the Seller including without limitation increases in taxes and duties, and increases in the cost of labour, materials and manufacturing (ii) any change in delivery date(s), quantities or specifications for the Goods which is requested by the Buyer, or (iii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an Ex Works basis, and the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5 – Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has attempted delivery of the Goods.
5.2 No prompt payment discount is available.
5.3 The Buyer shall pay the invoice in full and with cleared funds within 30 days from the end of the month the invoice was dated, notwithstanding that delivery may not have taken place. The time for payment shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above the prevailing Bank of England base rate, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.5. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
6 – Delivery
6.1 Unless otherwise agreed by the Seller in Writing, the Buyer shall collect each Order from the Seller’s premises at any time after the Seller has notified the Buyer that the Order is ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Order to that place.
6.2 Any dates quoted for delivery of an Order are approximate only and the Seller shall not be liable for any delay in delivery of an Order however caused. Time for delivery shall not be of the essence of the Contract. An Order may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where an Order is to be delivered in instalments, each instalment shall be invoiced and paid for separately. Failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to terminate the Contract as a whole. Unless specifically agreed prior to ordering, all outstanding Goods will be despatched 6-months after the date of the Order.
6.4 If the Seller fails to deliver an Order (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the cost to the Buyer in obtaining replacement goods of similar description in the cheapest market available, less the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage.
7 – Risk and Title
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be collected by the Buyer from the Seller’s premises, at the time when the Buyer collects the Goods; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has attempted delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title to the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods for which payment has become due.
8 – Warranties and liability
8.1 Subject to the remainder of this clause 8, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free of material defects in material and workmanship for a period of 36 months from the date of delivery or collection, as the case may be.
Repaired goods are subject to the same conditions except that the 36 month period shall be replaced by a period of 12 months to run concurrently with the unexpired period of any existing warranty.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, components, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 If the Buyer gives notice in Writing to the Seller that any Goods do not comply with clause 8.1and:
8.4.1 such notice is given to the Seller (a) within 7 days from the date of delivery in the case of a defect that is apparent on normal inspection, or (b) otherwise during the warranty period in the case of a latent defect; and
8.4.2 the Buyer returns such Goods to the Seller at the Buyer’s cost; and
8.4.3 the Seller is given a reasonable opportunity to examine the Goods; and
8.4.4 none of the conditions at clause 8.2 apply,
then the Supplier shall, at its option, repair or replace the defective Goods or refund the price of the defective Goods.
8.5 Except as provided in clause 8.4, the Seller shall have no liability to the buyer in respect of the failure of the Goods to comply with the warranty at clause 8.1.
8.6 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
8.6.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.6.2 fraud or fraudulent misrepresentation;
8.6.3 any matter in respect of which it would be unlawful for the Seller to limit or exclude its liability.
8.7 Subject to clause 8.6:
8.7.1 the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.7.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
8.8 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, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as a non-exhaustive list of causes beyond the Seller’s reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9 – Confidentiality
9.1 Each party agrees that it shall not disclose to any person any confidential information which relates to the business, affairs, customers, suppliers, operations, or processes of the other party provided that each party may disclose the other party’s confidential information:
9.1.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
9.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10 – Termination and Suspension
10.1 This clause applies if:
10.1.1 the Buyer makes any 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
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly;
10.1.5 the Buyer commits a material breach of any term of the Contract and, if such breach is capable of being remedied, fails to remedy such breach within 14 days of being notified to do so by the Seller in writing;
10.1.6 the Buyer fails to pay any amount due under the Contract on the due date for payment.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate 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 notwithstanding any previous agreement or arrangement to the contrary.
11 – General
11.1 These Conditions (together with the terms if any set out in the Order) constitute the entire agreement between the parties and supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise are excluded to the fullest extent permitted by law.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.5 English law shall apply to the Contract and any dispute or claim (including non-contractual disputes or claim) arising out of or in connection with it or its subject matter and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
Issue: September 2018