FRIEDHEIM INTERNATIONAL LIMITED (the Company)
1. Definitions and Interpretations
1.1 In these Conditions
1.1.1 the “Company” means Friedheim International Limited, whose registered office is at Unit 1 Zodiac Boundary Way, Hemel Hempstead Industrial Estate, Hemel Hempstead, Hertfordshire, England, HP2 7SJ, registered in England and Wales under number 127303 and with VAT number 236898217;
1.1.2 the “Buyer” means the person, firm or company who places an order with the Company for the purchase and/or supply of any Goods or Services;
1.1.3 Contract means any contract between the Company and the Buyer for the purchase and/or supply of any Goods or Services incorporating these Conditions;
1.1.4 the “Goods” means the products supplied by the Company which are the subject of an order placed by the Buyer with the Company;
1.1.5 the “Services” means the Services performed by the Company which are the subject of an order placed by the Buyer with the Company.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine including the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In the Conditions headings will not affect the construction of these Conditions.
2. Contractual Terms
2.1 Subject to any variation under Conditions 2.4 or 10, these Conditions shall apply to all contracts for the sale of Goods and/or the performance of Services entered into by the Company to the exclusion of all other terms and conditions (including but not limited to any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 All drawings, illustrations, performance data and other details in the Company’s catalogues, sales or promotional literature or elsewhere are included as a guide only, and whilst such details are printed in good faith they shall not bind the Company. The Company reserves the right to change specifications without prior notice at its absolute discretion.
2.4 No variation, cancellation or waiver of these Conditions shall be of any effect unless made in writing signed by a duly authorised officer of the Company and the Buyer. Nothing in this Condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.5 Typographical or clerical errors or omissions shall be subject to correction.
3. Creation of Contractual Relations
3.1 Where Services are provided or Goods comprising machines (capital equipment) are supplied, the Contract shall be formed when the Buyer confirms the relevant Company quotation in writing by way of an Order and the Company accepts such quotation in writing (eg. by way of Order Confirmation) or supplies the Services or Goods (or by such other method as the parties may mutually agree).
3.2 Where Goods comprising spare parts or consumables are supplied, the Contact will be formed when the Company accepts in writing an order placed by the Buyer online, by telephone, via the Company’s website or by such other method as the parties may mutually agree.
3.3 Unless previously withdrawn any quotation and/ or tenders provided by the Company shall remain valid for the period stated therein or if no period is stated for 30 days from their date.
3.4 The Company’s offers, estimates, quotations, tenders and price lists are invitations to treat only.
3.5 All orders must be in writing and must be accompanied by sufficient information to enable the Company to proceed without delay with the execution of the order.
3.6 All orders require the Company’s acceptance in writing in order to create a Contract but the Company will also be deemed to have accepted an order if it actually supplies the Services or Goods to the Buyer.
3.7 Any such acceptance shall nevertheless be subject to the Buyer’s credit being approved and cancellation without liability at the instance of the Company subsequently finding the Buyer’s credit inadequate.
4. Prices
4.1 All prices include only such Goods, accessories and Services as are specified in the quotation and are for the quantities therein expressed. If the Buyer shall request any variation in quantity or performance the price may be varied accordingly.
4.2 Unless otherwise specified prices quoted do not include Value Added Tax or any other local taxes or duties payable in the country or destination and all such taxes will be added at the rate prevailing at the appropriate tax point.
4.3 Unless otherwise specified prices quoted do not include carriage, which will be charged at extra cost. Where the quoted prices do not include carriage the Company shall determine the route and method of carriage and any special requirements of the Buyer shall be subject to an additional charge.
4.4 Unless otherwise specified prices quoted for Goods include the Company and/or its suppliers’ standard non-returnable packaging. It is the Buyer’s responsibility to dispose of all packaging after delivery. The Buyer shall provide adequate packaging when the Buyer’s Goods are for transport to or from the Company’s possession in accordance with Condition 16 and good sale practices.
4.5 At any time before delivery has been completed the Company shall be entitled to make reasonable adjustments to the price of the Goods and or Services. Reasons for so doing may include but shall not be limited to any of the following:
4.5.1 Where Goods are imported any variation of currency exchange rates or special taxes or charges imposed by any government.
4.5.2 Increased costs resulting from the prohibition or other actions of any government.
4.5.3 Increased labour costs;
4.5.4 Increased material or processing costs;
4.5.5 Increased transport costs (if carriage is included in the quote price);
4.5.6 Implementing any request by the Buyer for expedited despatch or changes in delivery, schedules, completion dates, quantities, design specification or performance;
4.5.7 Delays caused by instructions of the Buyer or by failure to give adequate instructions or information.
5. Payment
5.1 Unless otherwise agreed in writing by the Company, payment is strictly net 30 days from the date of the invoice.
5.2 Time for payment shall be of the essence.
5.3 No payment shall be deemed to have been received until the Company has received cleared funds.
5.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
5.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
5.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 3 per cent above the base lending rate from time to time of National Westminster Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 The Company shall at its discretion (without prejudice to its right to treat the contract as repudiated and claim damages) be entitled to withhold despatch of the Goods and/or performance of the Services of any of them until all monies owing to the Company by the Buyer have been paid in full. In accordance with the foregoing the Company shall also at its discretion be entitled to dispose of such property for consideration or otherwise. Any proceeds of such a disposal will be applied to recover any monies owing to the Company by the Buyer (less reasonable costs incurred in performance of such disposal and/or storage). Any excess monies after recovery of amounts due to the Company by the Buyer shall be applied to the credit of the Buyer in the Ledgers of the Company and notified to the Buyer by provision of a Statement of Account within six weeks of such a disposal. The Buyer shall be entitled to request payment of such an excess which the Company undertakes to settle (without interest) within 30 days of receipt or such a request in writing.
6. Property and Risk
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods or the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer subject to Condition 6.4.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risk to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
6.3.5 hold the proceeds of the insurance referred to in Condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Company on behalf of the Company and the Buyer shall account to the Company accordingly; and
6.4.2 any such sale shall be of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way changes any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7. Delivery and Performance
7.1 Time of delivery of the Goods and/or performance of the Services shall not be of the essence of the contract. The periods quoted commence from the date of confirmation of order but are estimates only. Whilst the Company shall use reasonable commercial endeavours to deliver the Goods or perform the Services by the date (if any) specified on the confirmation of order it shall not be liable in any way for delay in the delivery or performance from any cause whatsoever and however arising nor shall such delay entitle the Buyer to reject the Goods or Services or treat the contract as repudiated or render the Company liable for damages in any way.
7.2 Where delivery charges are specified the Company nevertheless reserves the right to make an additional charge for loading, delivery or offloading outside the hours of 9.00am and 5.00pm Monday to Friday or in the event of any special arrangement of whatever nature being required;
7.3 The Company shall have the right to despatch any portion(s) of the Goods covered by the contract separately.
7.4 It is the Buyer’s duty to inform the Company of the detailed delivery requirements in advance and to provide due warning and notice of any changes in such requirements.
7.5 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business (such place of business to include any premises owned by the Company or any of its agents or associated companies whether within or outside the United Kingdom).
7.6 Unless otherwise agreed the Buyer will provide at its expense all adequate and appropriate equipment and manual labour for loading the Goods.
7.7 Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
7.8 If the Company delivers to the Buyer a quantity of Goods of up to 5 per cent more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods on a pro rata basis in accordance with the price specified in the Contract.
8. Non-Acceptance by Buyer
8.1 If by reason of the Buyer’s default the Goods or any of them have not been taken up or delivered by any date specified for such taking up of delivery then:
8.1.1 the Buyer shall nevertheless pay the Company in accordance with Condition 5 of these Conditions as if such taking up or delivery has occurred; and
8.1.2 the Goods will be deemed to have been delivered.
8.2 The Buyer shall pay the Company a reasonable storage charge in respect of any of the Goods which have not been taken up or delivered together with the cost of any additional handling and transport incurred.
8.3 In the event that such storage by the Company shall continue for a period exceeding six weeks the Company may (without prejudice to any other rights which may have accrued) treat the Contract as repudiated.
8.4 During the period of any storage of the Goods or any of them by the Company as contemplated by Condition 8.2 such Goods shall be at the risk of the Buyer.
9. Loss or Damage in Transit and Non-delivery of Goods
9.1 No claim for damage in transit, shortage of delivery or loss of Goods will be entertained unless the Buyer shall have given the Company written notice of such damage, shortage or loss with reasonable particulars thereof within 3 working days after receipt of Goods or (in the case of total loss) within 10 days of receipt of the invoice or other notification of despatch.
9.2 The Company’s liability, if any, in relation to any such damage, shortage or loss shall be limited to replacing or (at its discretion) repairing such Goods and it shall be a condition precedent to any such liability that the Buyer shall if so requested have returned damaged Goods to the Company within 14 days of such request.
9.3 Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any such damage, shortage or loss.
9.4 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
9.5 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note on a pro rata basis in accordance with the price specified in the Contract against any invoice raised for such Goods.
10. Cancellation and Variation
10.1 No cancellation or variation of an order or Condition by the Buyer shall be effective unless made in writing and until accepted in writing by an authorised officer of the Company. The Company reserves the right to refuse or to accept cancellation or variation only subject to such conditions as the Company may determine.
10.2 Acceptance by the Company shall be subject to payment by the Buyer of such cancellation or variation charges as the Company shall deem reasonable. Such charges shall take into account expenses incurred and commitments made to the Company and all other losses due to such cancellation or variation.
10.3 Where the Company accepts cancellation or variation of any order by the Buyer, in whole or in part, after delivery, the Company reserves the right to retain any deposit paid by the Buyer.
10.4 If the value of the deposit is not considered by the Company to be commensurate with its costs incurred up to the date of cancellation or variation, the Buyer shall be liable to pay such additional cancellation fees as the Company shall deem reasonable.
10.5 The Company reserves the right to deduct such sums owed in respect of its costs from any credit amounts for any Goods or Services ordered by the Buyer.
11. Force Majeure
11.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-out, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials PROVIDED THAT, if the event in question continues for a continuous period in excess of 50 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
12. Guarantee and Limitation of Liability
12.1 The Buyer shall have the benefit of and be subject to such product and service guarantees or warranties as the Company may provide from time to time in respect of the Goods and Services. The Company may vary the terms of such guarantees or warranties from time to time at its discretion. Copies of all such guarantees or warranties will be supplied to the Buyer by the Company on request and the Buyer is deemed to have full knowledge of terms of such guarantee or warranty.
12.2 Subject to Condition 12.1, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
12.2.1 any breach of these Conditions; and
12.2.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.3 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.4 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
12.5 Subject to Conditions 12.3 and 12.4:
12.5.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
12.5.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.6 Condition 12.1 shall be subject to the proviso that no guarantees provided by the Company will apply:
12.6.1 where the Goods have been installed, repaired or alteration made by anyone other than the Company’s representatives or authorised agent: or
12.6.2 where the Goods have not been commissioned or operated in accordance with procedures prescribed by the Company.
13. Substitutions
In the event of non-availability of materials or parts the Company reserves the right to use suitable alternative materials or parts where possible. Such substitutes shall be accepted by the Buyer in full satisfaction and performance of the Contract or that part thereof for which it is a substitute as the case may be. In the event that the Company is unable to obtain a satisfactory substitute its obligations to complete performance of the contract shall upon notification in writing to the Buyer be suspended until such a time as the unavailable materials or parts of suitable substitutes become available.
14. Sub-Contracting
The Company shall be free to employ sub-contractors.
15. Indemnity
15.1 The Buyer shall indemnify the Company against all claims, demands, damages, penalties, costs and expenses for which the Company may become liable by reason of the infringement of any patent, registered design, trade mark, copyright (including design copyright) or any other intellectual property right arising out of the Company’s performance of the contract in accordance with the Buyer’s specification.
15.2 The Buyer will indemnify the Company against any loss, damage or delay of any kind whatsoever, irrespective of who may have caused such loss except where such loss is caused by the negligence of the Company’s servants or agents.
16. Health and Safety
The Buyer shall comply with the provisions of all relevant Health and Safety legislation applicable at the time and any amendments to it and any other relevant regulations to ensure the safety of the Company’s employees and agents. The Buyer shall provide safe access to all systems and equipment that may be accessed within these Services. The Buyer shall indemnify the Company in respect of any proceedings, actions or claims as a result of any failure to comply with this Condition.
17. Copyright and Confidentiality
The Buyer hereby acknowledges that the copyright in all documents (including drawings) supplied by the Company to the Buyer shall vest in the Company. In no circumstances whatsoever shall such documents of their contents be used for any purpose other than that for which they were supplied.
18. Waiver
Failure or delay by the Company to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
19. Severability
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severeable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect
20. Third Party Rights
The Contract does not create any right (including the benefit of any exclusion of limitation), that is enforceable by any person who is not a party to it, under the Contracts (Rights of Third Parties) Act 1999.
21. Notices
Any notices required to be served hereunder shall be deemed to be properly served if sent by prepaid registered or recorded delivery post to the registered office of the party to be served and deemed to be duly served the day following the date of posting. Whilst all legal notices must be served by post, the Company may be contacted at info@friedheim.co.uk.
22. Non-Assignment
The Buyer shall not be entitled to assign or transfer (in whole or in part) or purport to assign or transfer the benefit of the Contract to any third party howsoever.
23. Governing Law and Jurisdiction
Any Contract of which these Conditions form part shall be governed by the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
