Roll-Tec Safety Ltd & Fuel Proof Ltd

Contents

1. Definitions
2. Conditions applicable
3. Price and payment
4. The Goods
5. Warranties and liability
6. Delivery of the Goods
7. Returns
8. Retention of title
9. Buyers Insolvency or Incapacity
10. Further Conditions and Warranties
11. Agreements for ‘Specifically Designated Goods’
12. Frustration
13. Proper Law

1. Definitions
   In these conditions, unless the context requires otherwise:
   1. ‘Business Days’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
   2. ‘Buyer’ means the person or Company who buys or agrees to buy the Goods from the Seller;
   3. ‘Collection Date’ means the date specified by the Seller when the goods are to be collected;
   4. ‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
   5. ‘Goods’ means the articles which the Buyer agrees to buy from the Seller and for the avoidance of doubt includes Specifically Designated Goods
   6. ‘Price’ means the Seller’s quoted price for the Goods excluding carriage, packing, insurance and VAT; and
   7. ‘Seller’ means Fuel Proof Ltd or Roll-tec Safety Ltd of Middleton Business Park, Middleton Road, Heysham, Lancashire, LA3 3FH
   8. ‘Seller’s Premises’ means Middleton Business Park, Middleton Road, Heysham, Lancashire, LA3 3FH
   9. ‘Specifically Designated Goods’ means goods which are made to the individual design specifications and dimensions of the Buyer
2. Conditions applicable
   1. These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
   2. All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
   3. Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
   4. Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
   5. If the customer is hiring goods from Fuel Proof Ltd, Fuel Proof Ltd Hire Terms and Conditions also apply.
3. Price and payment
   1. The Price shall be the Seller’s quoted price which shall be binding on the Seller provided that the Buyer shall accept the Seller’s quotation within 14 days of the date of the Seller’s quote. (The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice).
   2. The Price is subject to adjustment to take account of any variation in the Seller’s costs (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties and other costs since the date of the Seller’s quotation. The Seller accordingly reserves the right to adjust the invoice price by the amount of the increase or decrease in such costs after the price is quoted by giving notice of the increase to the Buyer not less than 7 days before delivery. The adjusted invoice shall be payable as if the price set out therein was the original contract price.
   3. Payment of the Price and VAT shall be due by return if purchased on a pro-forma basis, or within 30 days of the date of the invoice if you have been granted account terms (accounts are reviewed on an ongoing basis and may at the Seller’s discretion be closed due to inactivity, poor payment performance or adverse credit information). Time for payment shall be of the essence.
   4. Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 5% above HSBC Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment
   5. The Buyer shall pay all amounts due to the Seller in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in any part. 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. The Seller takes any deposit(s) paid by The Buyer as a commitment to proceed with the order at the agreed Price. Deposits are non-refundable. 
4. The Goods
   The quantity and description of the Goods shall be as set out in the Seller’s quotation. 
5. Warranties and liability
   1. The Seller warrants that the Goods supplied will at the time of delivery correspond in all material respects to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12 as amended and/or the Unfair Terms in Consumer Contracts Regulations 1999 Regulation 3(1) all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law
   2. The Seller’s liability to the Buyer shall not be limited for :
      1. death or personal injury relating from its own or that of its employees servants or agents negligence;
      2. fraud or fraudulent misrepresentations; or
   3. The Seller has no special knowledge of the nature and value of the contents of the Buyer’s premises for which the Goods have been specified. Because the potential losses which the Buyer may suffer as a result of any breach of Contract by the Seller could be disproportionate to the Price and so that the Seller can keep the Price as low as possible, the Seller must limit its liability in respect of all other matters as follows:
      1. subject to clauses 5.1 and 5.2 the Seller’s entire liability in respect of any breach of this Agreement shall be limited to £500,000.00
      2. subject to clause 5.1 above the Seller shall not be liable to the Buyer for any losses which were unforseeable at the date of this Agreement, or losses which were not caused by any breach on the part of the Seller or any business losses. For the avoidance of doubt these losses will include; loss of profits, loss of production and loss of business and any other indirect or consequential loss
6. Delivery of the Goods
   1. The Goods shall be delivered to the Buyer at the Seller’s Premises
   2. Should the Buyer and Seller expressly agree for the Goods to be delivered to a specified address then the Seller will arrange carriage but such carriage will be at the Buyers cost and subject to the terms and conditions of the carrier. All haulage undertaken by Fuel Proof Ltd and/or Roll-tec Safety Ltd is carried out under the terms of the Road Haulage Association.
   3. All times or dates given for the delivery of the Goods are given in good faith but without any responsibility on the part of the Seller time of delivery should not be of the essence nor shall the Seller be under any liability for any delay beyond the Company’s control.
   4. Where the Goods are handed to a carrier for carriage to the Buyer or the United Kingdom Port for export, such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of Section 44. 45 and 46 of the Sale of Goods Act 1979.
   5. If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a situation described in clause 12 or the Buyer’s failure to provide the Seller with adequate delivery instructions or other instructions that are relevant to the supply of the Goods
   6. If the Buyer fails to take delivery of the Goods within three Business Days of the Seller notifying the Buyer that the Goods are ready then, except where such failure delay is frustrated in accordance with clause 12 or the Seller’s failure to comply with its obligations under these terms:
      1. delivery of the Goods shall be deemed to have been completed at 9:00am on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
      2. the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
   7. If ten Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
7. Returns
   1. Subject to clause 7.2, if:
      1. the Buyer gives notice in writing to the Seller within 7 days of delivery that the Goods do not comply with the warranty set out in clause 5.1;
      2. the Seller is given a reasonable opportunity of examining such Goods; and
      3. the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s Premises at the Buyer’s cost, the Seller shall at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
   2. The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events;
      1. the Buyer makes any further use of the Goods after giving notice in accordance with clause 7.1;
      2. the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods of (if there are none) good trade practice regarding the same;
      3. the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
      4. the Buyer alters or repairs the Goods without the written consent of the Seller;
      5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
      6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
   3. Except as provided in this clause 7 and clause 5 the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
   4. These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
8. Retention of title
   1. The risk in the Goods shall pass to the Buyer on completion of delivery.
   2. Title to the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for:
      1. the Goods; and
      2. any other goods or services that the Seller has supplied to the Buyer in respect of which payment has become due.
   3. Until title to the Goods has passed to the Buyer, the Buyer shall:
      1. hold the Goods on a fiduciary basis as the Seller’s bailee;
      2. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
      3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      4. maintain the Goods in satisfactory condition and keep them insured against all the risks for their full price from the date of delivery;
      5. notify the Seller immediately if it becomes subject to any of the events listed in clause 9.2; and
      6. give the Seller such information relating to the Goods as the Seller may require from time to time, But the Buyer may resell of use the Goods in the ordinary course of its business.
   4. If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 9,2 or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly them provided that the Goods have not been resold or irrevocably incorporated into another product and without limiting any other right or remedy the Seller may at any time require the Buyer to deliver up the Goods and if the Buyer fails to do so promptly enter any premises of the Buyer or any third party where the Goods are stored in order to recover them,
9. Buyers Insolvency or Incapacity
   1. If the Buyer becomes subject to any of the events listed in clause 9.2 or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly then without limiting any other right or remedy available to the Seller the Seller may cancel or suspend all further deliveries under any contract between the Buyer and the Seller without incurring any liability to the Buyer and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due.
   2. For the purposes of clauses 9.1 relevant events are:
      1. the Buyer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits an ability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or has having no reasonable prospect of so doing in either case within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
      2. the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into an compromise or arrangement with its creditors;
      3. (being a company) a petition is filed, a notice if given, a resolution is passed, an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
      4. (being an individual) the Buyer is the subject of a bankruptcy petition or order;
      5. a creditor or encumbrancer of the Buyer attached or takes possession of, or a distress, execution, sequestration or such other process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
      6. (being a company) an application is made to court or order is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
      7. (being a company) a floating charge holder over the Buyers assets has become entitled to appoint or has appointed an administrative receiver;
      8. a person becomes entitled to appoint a receiver over the Buyers assets or a receiver is appointed over the Buyer’s assets;
      9. any event occurs or proceeding is taken with respect to the Buyer in any jurisdiction to which is it subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.1 to 9.2.8 (inclusive);
      10. the Buyer suspends, threatens to suspend, cease or threatens to cease to carry on all or substantial of the whole of its business;
      11. the Buyers financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations to the Seller has been placed in jeopardy; and
      12. (being an individual) the Buyer dies or by reason of illness or incapacity (whether mental or physical) is in capable of managing his or her own affairs or becomes a patient under any health legislation,
   3. Termination of the contract however arising shall not affect any of the parties rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the contract shall continue in full force and effect.
10. Further Conditions and Warranties
    1. Any conditions or warranties (whether express or implied by statue or common law or arising from conduct or a previous course of dealings) as to the quality of the goods or their fitness for any particular purpose (even when that purpose is made known to the Seller) or as to the correspondence with any description are hereby excluded.
    2. The Seller accepts no liability for any losses or damage caused by pollution resulting from improper use of the Goods after Delivery.
    3. The Seller reserves the right to modify designs without prior notice to the Buyer. By agreeing to these Conditions, the Buyer acknowledges and accepts that design modifications may occur at the discretion of the Seller.
11. Agreements for ‘Specifically Designated Goods’
    In the event that the Buyer orders Specifically Designated Goods the Buyer will be liable for the full Price of the Contract once production starts of the Specifically Designated Goods UNLESS the Contract is frustrated in accordance with clause 12 or terminated by the Seller.
12. Frustration
    The Seller shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented or hindered in or delayed in manufacturing obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including but not limited to strikes, lock outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant and machinery or shortage or unavailability of raw materials from normal source or supply.
13. Proper Law
    This contract shall in all respects be governed by and deemed to have been made in England and the Buyer and Seller agree to submit to the non-exclusive Jurisdiction of the English Courts