TERMS and CONDITIONS
The following standard Conditions of Sale shall govern all transactions except as otherwise specifically agreed in writing by the Buyer and the Seller.
1. Terms and Conditions
a) in these Conditions:
“These Conditions” shall mean the conditions contained on this page and overleaf.
“the Goods” shall mean goods supplied by the Seller.
“the Contract(s)” shall mean an order for the supply or purchase of the Goods made by the Buyer and accepted by the Seller in accordance with these Conditions.
“the Buyer” shall mean any person, firm, company or other legal person who shall place an order for the Goods with the Seller or with any agent of the Seller referred to below.
“the Seller” shall mean Francis Cupiss Limited (company number 82490) having its registered office at The Wilderness, The Entry, Diss, Norfolk, England, IP22 4NT.
All quotations, tenders and order forms are given, submitted or received by the Seller on condition that the Seller shall not be bound and no contract will be formed until it has communicated its written acceptance of the Buyer’s order. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order including any applicable specification. Any illustrations, drawings or other illustrative material accompanying any quotation of the Seller or contained in the Sellers catalogues, price lists, web sites or advertisements shall be regarded as illustrative and approximate only and shall not be binding on the Seller or give rise to any liability upon the part of the Seller unless specifically accepted in writing by the Seller.
3. Cost Variation
a) Except where a price is stated to be “fixed” by the seller on its written acceptance of the Buyer’s order any price quoted by the Seller or comprised in the order of Contract is provisional only and the actual price to be paid by the Buyer shall be the Seller’s price ruling at the date of despatch of the goods or the date of completion of the order for the goods.
b) The Seller reserves the right to alter the stated price to include any extra labour charges caused by the Buyer requiring the Goods at a shorter than normal completion that incurs work outside of normal working hours.
a) By Cheque or Bankers Draft. Goods will be dispatched on receipt of payment. We are happy to open Credit Accounts for regular customers. Payment in Sterling.
b) Goods invoiced up to and including the last day of the calendar month shall be paid for not later than the last business day of the following calendar month. Time of payment shall be the essence of each Contract. For the avoidance of doubts, all sums due under each Contract are due to the Seller.
c) Without prejudice to the Seller’s other rights and remedies with respect to non-payment if terms of payment are not complied with the Seller shall (i) have the right to charge interest at the rate of 3% above the base lending rate of Barclays Bank plc per month in the period between the due date of payment and final settlement (ii) cancel any Contract between the Buyer and Seller or suspend any further deliveries and/or iii) appropriate any payment made to the Buyer to such of the Goods (or goods supplied under any Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer)
d) If the Buyer shall fail to pay any amount when it is due under Contract with the Seller, then the Seller shall have the right (without prejudice to any of its other rights against the Buyer) to treat the price that is unpaid on all Goods invoiced or dispatched by the Seller under Contract as having become forthwith due and payable by the Buyer.
5. Value Added Tax
All prices quoted or accepted are exclusive of Value Added Tax (where applicable or otherwise stated by the Seller) and the Contract price shall be such prices plus VAT and any other taxes, duties or levies applicable from time to time.
6. Insolvency or other Default of Buyer
All sums outstanding in respect of the Goods under any Contract shall forthwith become due and payable by the Buyer and the Seller shall have the option (without prejudice to any of its other rights against the Buyer) by notice in writing to the Buyer to terminate any Contract between the Seller and the Buyer, or to suspend delivery of Goods in the following events :
(i) should the Buyer be in breach of any term of the same or any other Contract with the Seller or of these conditions; or
(ii) should any distress or execution be levied upon the Buyer’s Goods or should a Buyer enter into any composition or trust deed or arrangement with or for the benefit of its creditors or should the Buyer be unable to pay its debts as they fall due or (if an individual) commit an act of bankruptcy or should a petition in bankruptcy be presented against the Buyer or, if in Scotland, the Buyer becomes apparently insolvent or (if a corporate body) should a resolution be passed or petition be presented for the appointment of an administrator or receiver over its undertaking, property or assets or any part thereof or if the Buyer shall suffer analogous proceedings under foreign law or in any other jurisdiction or if the Seller has reasonable grounds for believing that any of the foregoing events have occurred or will occur.
7. Delivery and Cancellation
a) If no time for delivery is specified in the Contract, the Buyer shall be bound to accept the Goods when they are ready for delivery by or collection from the Seller to the Buyer at the Buyer’s premises or for collection by the Buyer or their nominee.
If a time for delivery is specified by the Seller, the Seller will adhere to the time specified under all reasonable conditions. Notice will be given to the Buyer if circumstances arise where the stated time may not be possible.
b) Delivery shall be deemed to have taken place and the risk in the Goods shall pass to the Buyer when the Goods (or any part thereof when there is more than one delivery under the Contract) are delivered/collected to/by the Buyer or their nominee in accordance with its instruction. Any complaint of short delivery or of damaged goods (in transit if delivered by the Seller) must be notified in writing within 72 hours of delivery/collection of Goods by the Buyer to the Seller and any complaint of failure to deliver Goods invoiced must be so notified within 10 days of the date of invoice.
c) Where the Contract involves more than one delivery/collection, each delivery will constitute a separate Contract and any failure or defect in anyone delivery/collection shall not entitle the Buyer to treat the Contract as a whole as repudiated.
d) Any contractual times or dates for delivery/collection are estimates only and accordingly time of delivery/collection shall not be the essence of any Contract and the Seller shall not be liable for any loss or damage whatsoever arising either directly or indirectly from any delay in delivery/collection however caused.
e) All costs of storage, insurance and other expenses incurred as a result of the Buyer’s failure to accept delivery or give the Seller adequate delivery instructions (otherwise than by reason of the Seller’s default) will be for the Buyer’s account.
f) 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 that on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit or anticipated savings) costs (including the cost of labour, material, overheads and a reasonable amount representing the anticipated profit of the Seller), damages, charges and expenses incurred by the Seller as a result of such cancellation.
a) Property and title in and to the Goods shall remain with the Seller as legal (and where applicable equitable) owner of the Seller’s sole and absolute property until such time as the Buyer shall have paid to the Seller the price for Goods (in cash or cleared funds) plus VAT (where applicable) in full and any interest and charges relating thereto and paid all other sums due to the Seller from the Buyer (whether under any Contract or otherwise).
b) Where English law applies to this clause in Condition 15 below, the Buyer shall hold the Goods and each of them fiduciary basis as bailee for the Seller until all sums are paid in accordance with Clause 8a and property in the Goods passes to the Buyer.
c) Until all sums are paid by the Buyer to the Seller under all Contracts or otherwise in accordance with Clause 8a and property in the Goods passes to the Buyer.
i) the Buyer shall store the Goods separately from other goods in its possession and marked in a manner which makes them readily identifiable as the Goods of the Seller;
ii) not withstanding that the Goods (or any of them) remain the property of the Seller the Buyer may use or sell the Goods in the ordinary course of its business at full market value for the account of the Seller. Any such sale or dealing in the Goods shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s behalf and the Buyer shall deal as principal when making such sales or dealings;
iii) the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other or paid into an overdrawn bank account and shall at all material times be identified as the Seller’s money:
(iv) the Buyer shall at all times keep the Goods comprehensively insured against normal perils and damage;
(v) the Buyer shall subrogate to the Seller any rights that it may or will have in respect of insurance money recoverable for the Goods;
(vi) the Buyer shall not pledge, encumber or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller;
d) The Buyer’s right to possession of the Goods and the Buyer’s right to resell or otherwise deal in the Goods shall automatically cease if any of the events in Clause 6(ii) should occur. In such circumstances, or if the Buyer fails to pay any sums due to the Seller by the due date for payment, the Seller shall be entitled to repossess any or all of the Goods in respect of which title has not passed as aforesaid and for the purpose of recovery of such Goods shall be entitled to enter upon the premises where they are stored or where they are reasonably thought to be stored. The Buyer will assist and allow the Seller or its employees and agents or other representatives to the premises in which the Goods are situated.
e) If the Buyer pledges, encumbers or charges the Goods by way of security (other than by way of a floating charge which has not crystalized), in addition to any other rights or remedies the Seller may have under these Conditions or otherwise, all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
f) The above provisions shall not be prejudiced by work upon the Goods by the Buyer or merger of the Goods with other goods or materials insofar as the Goods remain reasonably identifiable and/or retrievable.
a) A Buyer shall have no claim for shortage or defects apparent on visual inspection of the Goods unless the Seller receives a written claim from the Buyer within 3 days of delivery.
b) The Buyer shall have no claim in respect of defects not apparent on visual inspection at the time of delivery/collection unless a written claim is received by the Seller within 3 days of the defect in the Goods supplied first becoming apparent to the Buyer and in any event no later than 21 days after the date of delivery/collection of the Goods to the/by the Buyer.
c) Subject to sub-paragraphs 9(a) and (b) above, if any Goods supplied to the Buyer prove on inspection to be defective in material or manufacture the Seller undertakes at its option to replace the same or to refund to the Buyer the price of the Goods. The Buyer’s rights and remedies in respect of Goods rejected or which it is entitled to reject shall be limited to the rights and remedies in this sub-paragraph.
d) No Goods shall be returned without prior agreement between the Buyer and the Seller. No claim will be entertained after the Goods or any part thereof have been processed in any way.
10. Warranties and Liabilities
a) Except insofar as the same cannot be excluded at law or may be expressly agreed or confirmed in writing, the Seller shall not be bound by any oral condition, warranty or representation nor by any express or implied term, condition representation nor by any express or implied term, condition or warranty (including any relating to quality or fitness for purpose of the Goods), whether arising by statute or common law or by usage or otherwise given or made by the Seller, its servants or agents or otherwise given or made by the Seller, its servants or agents or otherwise, save and except for a warranty as to title and a warranty that Goods sold shall correspond in all material respects with the contractual description as contained overleaf.
b) Except as otherwise expressly mentioned in these Conditions and except insofar as the same cannot be excluded at law the Seller shall have no liability of any kind to the Buyer whether in contract or tort or negligence or otherwise in respect of any loss or damage whether direct, indirect or consequential including, without limitation any loss of profit, revenue or goodwill suffered by the Buyer or for any injury, damage or loss resulting from any defects in Goods delivered.
c) Condition 11 shall not apply so as to exclude or restrict the liability of the Seller for death or personal injury received by the Seller’s negligence.
d) Defects in the Goods which arise as a result of improper use, storage or maintenance shall not be the liability of the Seller.
e) The Seller is not liable for Goods that are used by the Buyer contravening English Law.
f) The Seller is not liable to replace any goods that have been checked and accepted by the Buyer prior to collection and then on further inspection found to be defective.
g) No forbearance or indulgence by the Seller shown or granted to the Buyer, whether in respect of these Conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be taken as a waiver of these Conditions.
11. Force Majeure
The performance of all Contracts is subject to variation or cancellation by the Seller owing to any act of God, war, strikes, government regulations or orders, national emergencies, lockouts, fire, flood, drought, tempest or any other cause (whether or not of a like nature) beyond the control of the Seller or owing to any ability of the Seller to procure material or articles required for the performance of the Contract and the Seller shall not be held responsible for any inability to deliver caused by any such contingency.
12. Data Protection
The Sellers agrees to protect the details of the Buyer held by the Seller and not to divulge any information of the Buyer to any third party without the written consent of the Buyer.
13. Set-off and Counterclaim
The Buyer may not withhold payment of any invoice or offer amount due to Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
Any Notices required to be served pursuant to these conditions shall be in writing and served by first class post, by hand or by facsimile (if confirmed in writing) on the Seller at its place of business set out above and on the Buyer at the Buyer’s registered office or such other address as the Buyer or Seller may notify to the other from time to time in accordance with this Clause.
15. Governing Law
These Conditions and any Contract following thereon shall be governed by and construed in accordance with English law save that if any legal proceedings shall be instituted or heard in Scotland the law governing the interpretation of Condition 8 shall be the law of Scotland.