In these Terms and Conditions:
‘BUYER’ means the person or company who accepts a quotation from the seller for the sale of Goods or whose order for Goods is accepted by the Seller;
‘GOODS’ means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms and Conditions.
SELLER’ means First Fix Plastics Ltd (registered in England under Number 06840761)
‘TERMS AND 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.
‘WRITING’ includes facsimile transmission and comparable means of communication.
Any reference in these Terms and 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.
The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
Basis of the sale
The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
No variation to these Terms and Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
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.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the 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.
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.
Orders and Specifications
No order submitted by the Buyer shall be deemed to be accepted by the Seller unless it has been placed by an authorised representative of the Buyer either in Writing or by Telephone.
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 process the order in accordance with its terms.
The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller)
If the goods 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, damage, costs and expenses 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 infringement of any patent, copyright, design, trade mark or other industrial or intellectual property of any other person which results from the Seller’s use of the Buyer’s specification.
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 EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing or by Telephone to the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), cost (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
Price of the goods
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. All prices quoted will normally be valid for 30 days unless quoted differently in writing by the Seller, or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
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 any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
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 where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
All orders for Goods may be subject to a delivery charge per order.
The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
Terms of Payment
Subject to any special terms 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 despatch 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 tendered delivery of the Goods.
The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice (unless agreed in writing) and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
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:
cancel the contract or suspend any further deliveries to the Buyer;
charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above Lloyds Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the seller delivering the Goods to that place.
Any dates quoted for delivery of the Goods are approximate and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
Where delivery of the Goods is to be made by the Seller in bulk (box quantity), the Seller reserves the right to adjust to quantity despatched to full box quantity without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered.
Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and 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 treat the Contract as a whole as repudiated.
If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for the delivery (other than by reason of any cause beyond the Buyer’s reasonable control) 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; or
sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract; or
where an incorrect delivery address has been supplied by the Buyer, the Seller reserves the right to charge the Buyer any additional costs for the re-direction of the Goods.
Risk and property
Risk of damage to or loss of the Goods shall pass to the Buyer:
in the case of the Goods to be delivered at the Seller’s premises, at the time when the Buyer or his agent have signed for and removed the Goods from the Seller’s premises.
in the case of the 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 tendered delivery of the Goods.
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in 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 and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold 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 shall be entitled to resell or use the Goods in the ordinary course of its business.
Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness 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 shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
If any claim is made against the Buyer that the Goods infringe or that use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of the drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
the Seller is given full control of any proceedings or negotiations in connection with any such claim;
the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
the Seller shall be entitled to the benefit of, and the Buyer accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, other party in respect of any such claim; and
without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
Insolvency of buyer
This clause applies if:
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
an encumbrance takes possession, or receiver is appointed, of any of the property or assets of the Buyer; or
the Buyer ceases, or threatens to cease, to carry on business; or
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.
If this clause applies then, without prejudice to any other right or remedy available to the Seller shall be entitled to cancel the Contact 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.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that 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.
No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
No omission or delay upon the part of any party in exercising any right, power or privilege under these Conditions shall operate as a waiver by that party of any right to exercise it in the future.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part validity of the other provisions of these Conditions and the remainder of the provision shall not be affected.
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of the delay in performing, or any failure to perform, any of the Seller’s obligations 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 causes beyond the Seller’s reasonable control:
Act of God, explosion, flood, tempest, fire or accident:
War or threat of war, sabotage, insurrection, civil disturbance or requisition;
Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
Import or export regulations or embargoes;
Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller of a third party);
Difficulties in obtaining raw material, labour, fuel, parts or machinery; or
Power failure or breakdown in machinery.
These conditions do not apply to export transactions for which separate conditions of sales exist. In the event that Goods supplied within the UK are ultimately exported, the Buyer will be responsible at their expense for obtaining any licence and complying with any export regulations within the country for which the Goods are destined.
This Contract forms the entire agreement between the parties and neither has relied on any representations or warranty except as expressly set out in these Conditions or agreed in Writing between the parties.
These Conditions supersede any prior arrangements, understandings and agreements between, or any oral representations made by, the parties to it relating to its subject matter.
Law & Jurisdiction
Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Birmingham Law Society, in accordance with the rules of Arbitration Act or any statutory modification pre-enactment thereof for the time being in force.
The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of English courts.
Contract (Rights of Third Parties) Act 1999
A person who is not party to this Contract has no right under the Contract (Right of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right of remedy of a third party which exists or is available apart from that Act.