GENERAL TERMS AND CONDITIONS OF SALE
In these General Terms and Conditions of Sale:
- the “Company” means Fern Howard Ltd (Company No.3202749) whose registered office is 1 Featherstone Road, Wolverton Mill, Wolverton, Milton Keynes, Buckinghamshire, MK12 5TH;
- the “goods” means any item of whatsoever nature which is to be sold or supplied by the Company including services;
- the “Purchaser” means the person, firm or body corporate which buys or has agreed to buy the goods;
- ‘’the Contract’’ means the Order and the Company’s acceptance of the Order and made in accordance with these General Terms and Conditions of Sale and any Schedule or annex to these.
- ‘’website’’ means the web space, pages and the contents and graphics contained in such space or pages which are under the control of authorised representatives of the Company.
These General Terms and Conditions of Sale shall apply to and form part of every contract of sale entered into by the Company and are the only terms and conditions under which the Company will deal with the Purchaser and these shall apply to the Contract to the entire exclusion of all other terms and conditions whether of the Purchaser, their agents or employees.
All orders or variations of Order are accepted and executed on the understanding that the Purchaser is bound by these General Terms and Conditions of Sale and that these shall have no effect unless expressly agreed in writing by an authorised representative of the parties.
Where there is any inconsistency between these General Terms and Conditions of Sale and any conditions which the Purchaser seeks to impose, these General Terms and Conditions of Sale shall prevail. Unless otherwise specifically agreed in writing no contract of sale shall come into being unless and until the Purchaser has accepted these General Terms and Conditions of Sale either expressly or by implication.
2. LIMITS OF CONTRACT
The Contract includes only such goods, accessories and works as are specified in the quotation or acknowledgement accompanying these General Terms and Conditions of Sale and the parties agree that they have not relied upon any promise, statement or representation made by or on behalf of the other which is not contained in the Contract or in any other document provided that nothing in these Terms and Conditions shall exclude or limit a party’s liability for fraudulent misrepresentation or fraud.
3.1 The price payable for goods shall unless otherwise stated by the Company in writing be the list price of the Company current at the date of dispatch and in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of dispatch of such instalment.
3.2 Unless otherwise expressly stated to be firm for a period, the Company’s prices are subject to variation to take into account variations in wages, materials and other costs. The Company accordingly reserves the right to adjust the invoice price without notice by the amount of any increase or decrease in such costs after the price is quoted. All prices are exclusive of Value Added Tax and this will be charged at the applicable rate and recoverable by the Company from the Purchaser in addition to the price.
4.1 Unless otherwise agreed in writing, payment is due in full on delivery. Where the Purchaser is to collect the goods or the Purchaser wrongfully fails to take delivery of the goods, the Company shall be entitled to invoice the Purchaser for the price at any time after the Company has notified the Purchaser that the goods are ready for collection or (as the case may be) the Company has tendered delivery of the goods.
4.2 Where the Contract provides for delivery by instalments each instalment shall be treated as a separate contract for sale.
4.3 Time for payment shall be of the essence of the Contract.
4.4 Without prejudice to any other rights it may have the Company may charge interest at 4% above the current base rate of Lloyds Bank Plc on overdue payments of the price of the goods or the price of any instalment or partial delivery thereof.
4.5 Without prejudice to its other rights the Company shall be entitled to recover all direct expenses reasonably incurred by the Company in collecting or attempting to collect amounts of the price that is outstanding.
4.6 If the Purchaser fails to make any payment when due in accordance with these General Terms and Conditions of Sale, the Company reserves the right (in its absolute discretion and without prejudice to any of its other rights or remedies) to suspend all further deliveries until such payment has been made in full or, at the Company’s option, to terminate the balance of the order. In either case the Company shall hold the Purchaser liable for costs incurred in respect of goods whether in the course of manufacture or ready for dispatch.
4.7 If the Purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to appropriate any payment made by the Purchaser in respect of such of the goods (or the goods supplied under any other contract between the Purchaser and the Company) as the Company may think fit and this is notwithstanding any purported appropriation by the Purchaser.
4.8 The Company shall be entitled to bring an action for the price or part thereof notwithstanding that the property in the goods has passed.
4.9 The Purchaser shall have no right of set off whether under the Contract, statute, common law or otherwise.
Any contract shall be subject to the Company being satisfied as to the Purchaser’s credit references, and without prejudice to the generality of the foregoing, the Company may (in its absolute discretion), having informed the Purchaser that the goods are ready for dispatch, refrain from delivering the goods until such time as the Purchaser tenders the purchase money to the Company together with any outstanding monies that may be due to the Company on any account whatsoever.
6.1 Where the value of any order exceeds £300 or such other amount notified by the Company to the Purchaser from time to time the cost of delivery of the goods to the Purchaser’s premises on the mainland of Great Britain shall be included in the contract price.
6.2 In all other cases the price is exclusive of carriage and insurance to the Purchaser’s premises.
Where it is necessary to dispatch goods in crates, cases, pallets, stillages or skids or other such packing, a charge will be made for this. Unless otherwise specified this charge will be credited in full on the return, within 28 days of such crates etc being in good condition and carriage being paid. No charge is made for any other form of packaging and no credit will be allowed for its return.
8. LOSS OR DAMAGE IN TRANSIT
When the price quoted includes delivery further to Clause 6.1 the Company shall repair or replace free of charge goods damaged in transit or not delivered in accordance with the Advice Note provided that the Company is given written notification of such damage or non delivery within such time (being not more than 7 days) as will enable the Company to comply with the carrier’s conditions of carriage as affecting loss or damage in transit, or, where delivery is made by the Company’s own transport, within 7 days after receipt of the Advice Note. Notwithstanding the above provision, the Company will only consider claims for alleged shortage if these are received within 7 working days of the receipt of the goods by the Purchaser together with sufficient information to enable the Company properly to identify the shortage including the Advice Note number, case number and condition of case.
Unless otherwise expressly agreed between the parties samples submitted with the Company’s quotation or at the Purchaser’s written request must be returned within 90 days of receipt and the Company shall in its absolute discretion be entitled to charge for these if they are not so returned.
10.1 Delivery of the goods shall be made at the Purchaser’s place of business or such other place as advised by the Purchaser in writing.
10.2 Unless stated to the contrary in the Purchaser’s Order and accepted by the Company in writing all times or dates for delivery of the goods are given in good faith but are approximate only and shall not be of the essence of the Contract.
10.3 All times or dates of delivery shall be calculated from the date of acceptance by the Company of the Order From the Purchaser, or from the date of receipt by the Company from the Purchaser of all information, instructions and drawings as shall be necessary to enable the Company to carry out the Order, whichever shall be the later.
10.4 Unless otherwise stated in writing the Company shall be entitled to make partial deliveries of the goods.
11.1 The Company shall be under no obligation to alter or vary any part of the contract or any work connected therewith. Any alteration to or addition to or amendment or other variation of the specification, including any increase or decrease in the quantity of the goods or any alteration to any drawings or to the quality, performance, weight or measurements of any goods or any alteration or variation of advised delivery schedules, shall, if requested by the Purchaser, be subject to the agreement of the Company, with such alteration or addition to the price and to delivery dates or schedules as may be required by the Company, and shall not be binding upon the Company unless and until accepted by the Company in writing.
11.2 In the event of any variation or suspension of the work due to the Purchaser’s instructions or lack of instructions the Company shall in its absolute discretion be entitled to adjust the contract price to reflect any additional costs incurred, and to adjust delivery dates or schedules.
If the Company does not receive forwarding instructions sufficient to enable it to dispatch the goods within 14 days after notification that the goods are ready for delivery or that they have been tested under Clause 14, the Purchaser shall thereupon take delivery or arrange for storage. If the Purchaser does not take delivery or arrange for storage as aforesaid, the Company shall be entitled to invoice and be paid for the goods as though the goods had been duly delivered in accordance with these General Conditions of Sale and the Company may arrange storage either at the Company’s own works or elsewhere on the Purchaser’s behalf and all charges incurred by the Company as a result of such delay, including storage and insurance, shall be payable by the Purchaser.
Any data, technical information or performance figures provided by the Company are based on tests performed under standard conditions at the Company’s premises. Such tests are believed to be accurate but cannot be guaranteed under different conditions.
14. INSPECTION AND TESTS
The Company’s products are carefully inspected and, where practicable, submitted to its standard tests at the Company’s works before dispatch. If tests other than those specified or tests in the presence of the Purchaser or its representatives are required, these will be charged for. In the event of any delay on the Purchaser’s part in attending tests after the Purchaser has received 7 days notice that the Company is ready to perform the tests, the tests will proceed in the Purchaser’s absence and the Purchaser accordingly hereby agrees to accept and pay for such tests as if they had been performed in the Purchaser’s presence.
All descriptions and illustrations and particulars of weights and dimensions issued by the Company in catalogues, price lists, advertising matter and forwarding specifications are by way of general descriptions and approximate only, and shall not form part of any contract or give rise to any liability on the part of the Company. The Company reserves the right to make any change in the specification of the goods which are required to conform with any applicable statutory or EC requirements. It is the policy of the Company to endeavour to develop and improve its products, and accordingly the Company reserves the right to change all specifications without prior notification or public announcement pursuant to such policy provided that nothing in this Clause shall oblige the Purchaser to accept goods which do not reasonably comply with the Contract.
16.1 The Company will make good by repair, or at the Company’s option by the supply of a replacement, defects which, under proper storage and use appear in the goods within the period of 36 calendar months after the goods have been delivered and arise solely from faulty design (other than design made or furnished by the Purchaser), materials or workmanship.
16.2 The Company’s liability under this Clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the goods, and save as provided in this Clause the Company shall not be under liability by reason of any representation (unless fraudulent), or whether in contract, tort or otherwise, in respect of defects in goods delivered or for any injury (other than personal injury caused by the Company’s negligence as defined in section 1 of the Unfair Contract Terms Act 1977), damage or loss resulting from such defect or from any work done in connection therewith. Provided, however, that nothing in this Clause shall operate to exclude any warranty, term or condition implied by law as to the quality of the goods in the event that the goods when sold by the Purchaser or when sold by any person or persons to whom the Purchaser may sell the goods shall become the subject of a consumer sale as defined in the Sales of Goods Act 1979, or any statutory re-enactment or modification thereof except to the extent that any claim under such warranty or condition shall have arisen from any act or omission of the Purchaser or by any other person or persons selling the goods by way of a consumer sale.
16.3 The Warranty given in this Clause is subject to the following conditions:
- That the Purchaser shall have followed all instructions issued by the Company in relation to the goods;
- That in the case of defects which would have been reasonably apparent to the Purchaser on reasonable examination of the goods on delivery, the Purchaser shall notify the Company of the defects in writing within 14 working days of delivery.
- That in the case of any other defects, the Purchaser shall notify the Company of the defects in writing within 7 working days of the date when the defect becomes apparent;
- That where in discharge of its obligation under the warranty given in this Clause the Company agrees that the Purchaser may undertake any repair or remedial work on its behalf, and the cost of such work shall be agreed in writing between the Purchaser and the Company before the commencement of any such repair or remedial work;
- The Company 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;
- The above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company;
- In no event shall the Purchaser be entitled to reject the goods on the basis of any defect or failure which is so slight that it would be unreasonable for him to reject them.
16.4 The Purchaser shall indemnify and keep the Company indemnified from and against any liability, damages, loss, penalty, costs or expense suffered or incurred directly or indirectly and whether foreseeable or not and howsoever arising except due to any wilful default or fraud on the part of the Company.
16.5 The Company shall not be liable to the Purchaser or any third party for or by reason of any loss or damage sustained or incurred by the Purchaser or any third party for:
- Any defects in hardware caused by fair wear and tear or abnormal storage or use by the Purchaser;
- Any delay in the services or defect in the hardware unless such delay, breakdown or defect is caused by the negligence or wilful misconduct of the Company, its employees, agents or sub-contractors but only then if to the extent not excluded by this Contract;
- Any representation or implied warranty, condition or other term;
And the Purchaser shall insure against any such risks.
16.6 Notwithstanding any other provision in the Contract the Company shall not be liable to the Purchaser or any third party in contract, tort (whether in negligence or otherwise) or breach of statutory duty in respect of business loss or loss of profit, loss of production, income or capital, goodwill or unforeseen loss or any indirect special or consequential loss arising under or in connection with any contract between the parties.
16.7 Save and except in respect of injury to or death of a person, the total liability of the Company under this Clause 16 in respect of each event or series of connected events shall not in aggregate exceed the purchase price of any proven loss and where the number of events of default give rise essentially to the same loss then they shall be regarded as giving rise to only one claim under the Contract.
16.8 The Purchaser shall be responsible for complying with all applicable regulatory requirements.
Unless otherwise agreed in writing, and subject to Clause 16 hereof, goods rejected as not complying with the contract must be rejected within 14 working days of delivery to the Purchaser’s premises or to such other place as the Purchaser shall have specified.
18. RETURN OF GOODS
In no circumstances may goods supplied against a firm order be returned without the Purchaser having first applied for and obtained the written consent of the Company. A handling charge may be deducted from any credit allowed by the Company where it is established that the reason for the return of goods was not the subject of Clause 8 hereof or due to any error on the part of the Company.
19. INTELECTUAL PROPERTY RIGHTS& CONFIDENTIALITY
The purchasers shall indemnify the Company against all damages penalties costs losses and expenses suffered by the Company or for which it may become liable in respect of the infringement of any intellectual property including (but without limitation) any patent copyright registered design trade mark, trade name or knowhow arising out of the Company’s manufacture of goods in accordance with any specification design drawings or other data supplied by the Purchaser or its servants or agents.
All drawings descriptions and other information submitted by the Company including those altered to meet the specification of the Purchaser, together with the copyright therein, shall remain the property of the Company.
- Each party shall treat as confidential all information obtained from the other pursuant to the Contract;
- Upon termination of the Contract, each party shall return to the other any equipment and written or other data without retaining copies thereof in respect of the confidential information;
The obligations and restrictions in this Clause shall be valid for a period of 5 years from the date of the Contract.
20. FORCE MAJEURE /OTHER EVENTS
20.1 The Company shall be entitled, without any liability on its part and without prejudice to its other rights, to terminate the Contract or any unfulfilled part thereof, or at its option to suspend or make partial deliveries or extend the time or times for delivery, if the manufacture of the goods by the Company or the Company’s suppliers, or the delivery of the goods or the performance by the Company of any of its obligations under the Contract is hindered or delayed (whether directly or indirectly) by reason of and including without limitation:
- the Purchaser failing to furnish necessary instructions or information, or by war or other hostilities, civil commotion, act of God, government action or legislation, interruption of transport, strike, lock out or other form of industrial action or trade disputes (including, without limitation, labour disputes with the Company’s or any sub-contractors employees), import and export regulations or embargos or measures of any kind by a government or accidents or stoppages to works, shortage of labour materials equipment fuel or power, breakdown of machinery, a technical failure of the Website or any other cause whatsoever beyond the reasonable control of the Company, its agents or subcontractors, whether or not such cause exists at the date of the Purchaser’s Order.
21. PASSING OF PROPERTY AND RISK
21.1 The risk of loss of goods shall pass to the Purchaser on delivery.
The property of the goods shall not pass to the Purchaser until the Company 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 Company to the Purchaser for which payment is then due.
21.2 In respect of goods which have been not paid in full:
(i) The Purchaser will hold the goods in a fiduciary capacity for the Company as bare trustee and shall keep the goods properly protected and insured against loss or damage relating to third party, public liability and product liability in respect of each and every claim made provided that such insurance is with a reputable insurer and the Purchaser shall promptly submit to the Company evidence satisfactory to it of such insurances upon request;
(ii) The Purchaser shall store the goods separate from other goods and mark the same as the Company’s property or otherwise store them in a manner which indicates the Company’s ownership of the goods;
(iii) The Purchaser shall allow the Company to repossess the Company’s goods on demand and for this purpose grants the Company an irrevocable right, by the Company’s servants, agents or otherwise and by whatever means the Company deems reasonably necessary, to enter at any reasonable hour upon any or all of the Purchaser’s premises or any other premises where the Company’s goods are kept in respect of which the Purchaser is able to grant such a right of entry. The Company shall be entitled, where the goods have been fixed or attached to any other product, to detach the goods in order to gain possession of them. Such redelivery or retaking of possession shall be without prejudice to the obligation of the Purchaser to purchase the goods.
(iv) Subject to the Company’s approval of the re-sale price and any terms or conditions of an individual sub-sale the Purchaser may sell the goods to third parties but in so doing the Purchaser shall be acting on the Company’s behalf as bare trustee and agent for the Company and any such sub-sale to another party shall not be a sale in the ordinary course of the Purchaser’s business. The Company shall be entitled to the whole of the proceeds of any such sub-sale and the Purchaser shall pay the proceeds into a separate bank account and account for the same to the Company. The Company may at the Company’s sole discretion pay the Purchaser a commission on such re-sale not exceeding the difference between the Company’s price to the Purchaser of the goods and the resale price;
(v) The Company shall be entitled to the benefit of any claims the Purchaser may have against a sub-buyer in respect of the goods.
22. INSOLVENCY OF PURCHASER & TERMINATION OF AGREEMENT
22.1 Insolvency – this Clause applies and the Contract may be terminated if:-
(i) The Purchaser becomes insolvent or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Purchaser; or
(ii) the Purchaser ceases, or threatens to cease to carry on business; or
(iii) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Purchaser, 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.
22.2 Termination – The Company shall have the right under this Clause:
(i) to cancel the Order if not completed strictly in accordance with the terms and conditions of the Contract;
(ii) at any time and for any reason to terminate the Contract (whether in whole or in part) on giving the Purchaser written notice if:
- The Purchaser commits a material breach of the Contract or any of its terms or conditions;
- The Purchaser commits a number or a series of minor breaches of any of the terms or conditions of the Contract.
Any notices required to be served pursuant to this Contract shall be in writing and served by first class post, by hand or facsimile or email on the Company at its registered office or principal place of business and on the Purchaser at the Purchaser’s registered office or principal place of business.
24. ENTIRE AGREEMENT
This Contract supersedes all prior agreements, arrangements and understandings between the Company and the Purchaser and constitutes the entire agreement between the parties relating to the subject matter of this Contract.
Save that the Company shall be entitled to assign or sub-contract freely all or any of its obligations under this Contract to a competent Third Party (subsidiaries or associated companies) neither party shall assign or otherwise transfer any of its rights or obligations under this Contract.
If any provision of the Contract is held to by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract, and the remainder of the provisions in question, shall not be affected and shall be valid.
No time given or concession made on the part of the Company shall be construed as a waiver of any of its rights in this Contract.
28. NO PARTNERSHIP/AGENCY
Nothing in this Contract shall create, or be deemed to create a partnership, agency or employment relationship between the Company and the Purchaser.
29. THIRD PARTY RIGHTS
A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999, or any statutory modification or re-enactment thereof, to enforce any term of this Contract.
30. ACCESS TO WEBSITE
The Company will endeavour to ensure that its website is fully available to any Purchaser but will not be liable to any Purchaser or third party if the website is not functioning or unavailable for any reason outside its control.
31. DISPUTE RESOLUTION
- ARBITRATION – If at anytime any question, dispute or difference whatsoever shall arise between the Purchaser and the Company upon or in relation to or in connection with the contract, either party may give the other party notice in writing of the existence of such question, dispute or difference and the same shall be referred to the arbitration of a person to be mutually agreed upon, or failing agreement within 30 days of receipt of such notice, of some person appointed by the President for the time being of the Institution of Electrical Engineers in Great Britain. A submission to arbitration under this Clause shall be deemed to be a submission to a sole arbitrator pursuant to the Arbitration Act 1950 or any statutory modification or re-enactment thereof. Any such arbitration shall be held in London, England.
32. LAWAND JURISDICTION
All contracts to which these General Terms and Conditions of Sale apply shall be governed by and construed in accordance with English Law. The parties hereby submit to the exclusive jurisdiction of the English Courts.
This page was last updated in September 2021