In these terms and conditions:
1.1 “Acknowledgement of Order” the Seller’s acknowledgement of the Order;
1.2 “Agreement” the agreement between the Seller and the Buyer comprised of the Order, the Acknowledgement of Order, these Terms and any other document referenced in the Acknowledgement of Order.
1.3 “Buyer” any person(s), unincorporated association or entity which contracts with the Seller on the Terms;
1.4 “Delivery Note” the note provided with the Goods on delivery confirming the details of the Goods supplied;
1.5 “Flags” any flags, banners, standards, pennants, signs and other display materials manufactured or supplied by the Seller and identified in the Acknowledgement of Order;
1.6 “Goods” any flagpoles, flags, goods, equipment, accessories and materials manufactured or supplied by the Seller identified in the Acknowledgement of Order;
1.7 Intellectual Property Rights any and all patents, trade marks, business names, copyright, moral rights, database rights, rights in designs, rights in inventions, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting anywhere in the world and including all applications and rights to apply for any of them together with all or any associated goodwill;
1.8 “Order” the Buyer’s order for the purchase of Goods and/or Services;
1.9 “Premises” the Seller’s premises at Borough Road, Darlington, County Durham, DL1 1SW, United Kingdom or any other factory, warehouse or site as the Seller may specify from time to time;
1.10 “Price” the price of the Goods or Services or both, as confirmed in the Order and Acknowledgement of Order and all other amounts stated to be included within the price, in accordance with the Agreement;
1.11 “Seller” Glassfibre Flagpoles Ltd. of Borough Road, Darlington, County Durham, DL1 1SW, United Kingdom and/or any of its trading divisions, associated or holding companies;
1.12 “Services” any delivery, design, transport, installation and any other services provided by the Seller identified in the Acknowledgement of Order;
1.13 “Site Assessment” the Buyer’s survey of the site where flagpoles purchased by the Buyer from the Seller will be inserted into the ground;
1.14 “Specification” the specification provided by the Buyer detailing the requirements and parameters of the Goods or Services;
1.15 “Terms” these standard terms and of conditions of trade;
1.16 “Warranty Statement” the Seller’s warranty statement in respect of glassfibre flagpoles that have been manufactured within the Seller’s facilities, set out in Appendix to these terms and conditions.
All contracts for the Goods and/or Services (as applicable) are expressly subject to and include these Terms which may not be varied except with the Seller’s written consent. The Seller will confirm any agreed variations in writing. No purported variation of the Terms by any other method shall bind the Seller. These Terms shall have precedence over any other terms or conditions which any Buyer may seek to impose or enforce.
3. QUOTATIONS, ORDERS AND CANCELLATIONS
3.1 The Seller may issue a quotation based on the Specification. The quotation is not an offer to sell or supply any Goods or Services, unless it is in writing and expressly described as an offer and signed by or on behalf of the Seller.
3.2 A quotation is only valid for the period stated in it, and in the absence of a period stated, for fourteen (14) days, and is subject to withdrawal or revision by the Seller at any time.
3.3 If an Order is placed by the Buyer, the Seller shall issue an Acknowledgment of Order and the parties shall enter into an Agreement. Each Agreement is separate from each other Agreement, except to the extent provided in the Agreement in question.
3.4 Unless an Acknowledgement of Order is provided by the Seller within 30 (thirty) days of the date of an Order, the Order shall automatically lapse and shall no longer be capable of acceptance.
3.5 Once accepted by the Seller, no Agreement from the Buyer may be varied, cancelled or terminated by the Buyer without the Seller’s express written consent.
3.6 Subject to Clause 3.5, if a Buyer is permitted to cancel an Agreement (excluding Agreements for the installation of flagpoles) prior to delivery, the Seller reserves the right to charge a cancellation of fee of a minimum of twenty five pounds sterling (£25.00).
4. PRICE, PAYMENT AND SPECIFICATIONS
4.1 The Price, unless otherwise agreed by the Seller, is in sterling, and is exclusive of the cost of delivery, including transport, packaging, insurance and any taxes, duties or surcharges which shall be payable in addition by the Buyer or as otherwise agreed by the parties.
4.2 The Buyer shall pay the Price and all other sums due in accordance with the Agreement in full when due and without set-off or counterclaim in respect of any liability of the Seller incurred under or in connection with the Agreement.
4.3 Unless otherwise stated, all payments due under the Agreement are subject to the receipt by the payer of a valid value added tax invoice and shall be paid within thirty (30) Business Days after the date of the invoice.
4.4 Where credit facilities have been agreed between the parties, the Buyer’s failure to adhere strictly to payment or part payment on the due date shall automatically render such credit terms null and void in respect of the unpaid balance and the whole balance of any payment shall immediately fall due to the Seller.
4.5 Where credit facilities are not agreed, the Buyer can be offered cash terms in cleared funds
4.6 Any amount due to the Seller under the Agreement is not to be taken to have been made or received for the purposes of the Agreement unless and until the amount is received by the Seller in cash, or cleared funds made by direct credit for same day value to the bank account nominated by the Seller from time to time.
4.7 If the Buyer shall fail to make payment within the due date specified on the invoice then the Seller shall be entitled to charge the Buyer interest upon the outstanding balance from time to time at a rate of two per cent above Royal Bank of Scotland Minimum Lending Rate without affecting the Buyer’s remaining or existing liabilities under these Terms.
4.8 The Seller reserves the right to charge a fee for processing credit card payments.
4.9 If the Seller needs to vary the Price (for example due to increases in cost of materials or labour or tax changes (this list is not exhaustive)) the Seller shall notify the Buyer prior to dispatch of the Goods or commencement of the – Services and allow the Buyer the opportunity to terminate the Agreement, if the Seller has not done so.
4.10 The Seller reserves the right at all times to vary any specifications and descriptions appearing in the Seller’s printed matter. Weights, dimensions and other technical data given originally or subsequently shall be deemed to be approximate only.
5. DELIVERY AND RISK
5.1 The Seller shall deliver the Goods, and the Buyer shall take delivery of them at the place in accordance with the Acknowledgement of Order and otherwise in accordance with this Clause 5 Delivery and Risk.
5.2 No stated date or time of delivery shall be deemed to be of the essence of the Agreement and the Seller shall not be liable for any consequences of delay in delivery of the Goods or provisions of the Service. Unless stated otherwise, all dates or times for delivery of the Goods or provisions of the Services stated in the Acknowledgement of Order are estimates only, except the Seller shall use its reasonable endeavours to make delivery no later than the date or time stated in the Acknowledgement of Order. The Buyer shall not be entitled to claim damages for late delivery.
5.3 If, having been notified in writing of the Seller’s readiness to deliver Goods under any Agreement, the Buyer shall request the Seller to postpone such delivery, those Goods shall be placed in a storage area located at the Seller’s option and held to the Buyer’s order and at the Buyer’s cost and risk, pending actual delivery in accordance with the Agreement. In these circumstances, payment of the price for such Goods shall become due on the date when the Seller notifies the Buyer of its readiness to deliver. The Seller’s guarantee (if any) shall run from this date.
5.4 Unless otherwise agreed between the Seller and the Buyer, Delivery by the Seller shall be to one address only, in one or more consignments at the Seller’s sole option but the Buyer shall be responsible for off-loading the Goods without delay.
5.5 Subject to Clause 13.1 where the Seller fails to deliver the Goods or provide the Services as a result of an Event of Default (as defined in Clause 13.1), the Seller’s liability is limited to the price incurred by the Buyer obtaining replacement Goods or Services of an equivalent or similar description and quality to either the Goods or Services or both, as applicable, at the lowest price, less an amount equal to the Price.
5.6 If Goods are delivered in instalments, each instalment shall be treated as a separate part of the Agreement and no default by the Seller in respect of any part delivery shall affect the due performance of the Agreement as a whole nor entitle the Buyer to reject the remaining undelivered balance of Goods, withhold due payment or to claim compensation.
5.7 If transport of the Goods is included in the price, it may be provided by independent carriers or by the Seller’s own transport at the Seller’s sole option. In either case such transport shall be entirely for the Buyer’s own account and at his sole risk.
5.8 Risk of loss or of damage to the Goods shall pass to the Buyer upon delivery to the place specified in the Acknowledgement of Order.
5.9 The Buyer shall give immediate notice in writing to the Seller if Goods are not received by the Buyer within two (2) working days of the date of the Seller’s Delivery Note.
5.10 The consignment note provided by the carrier delivering the Goods must be signed “Condition unexamined” and any damage, shortage, or error must be notified to the Seller and to any carrier within two (2) working days of receipt.
6.1 Passing of Title
Ownership of the Goods passes to the Buyer upon the Seller receiving payment in full of the price and all other amounts due to the Seller from the Buyer from time to time in cash or cleared funds (and not before).
6.2 Retention of Title and Interim Arrangements
6.2.1 Until ownership of the Goods passes to the Buyer, the Buyer shall:
(a) hold the Goods as the Seller’s fiduciary bailee;
(b) maintain the Goods in a satisfactory condition, insured on the Seller’s behalf for their full price against all risks; and
(c) hold the proceeds of insurance referred to in Clause 6.2.1(d) on trust for Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account.
6.2.2 The Seller may at any time recover Goods until they are owned by the Buyer.
6.2.3 The Seller is entitled by its employees or other representatives to enter the premises of the Buyer where the Goods are stored (or where the Seller has reasonable grounds to believe the Goods are stored) without notice:
(a) for auditing the Buyer’s compliance with Clause 6.2.1; or
(b) to recover the Goods under Clause 6.2.2, and the Buyer shall at the request of the Seller procure the right for the Seller, its employees and representative to enter any premises of any third party where the Goods are stored for either or both of these purposes.
7.1 Subject to Clauses 7.1 and 7.2, the Seller guarantees:
7.1.1 Flags for a period of thirty (30) days, provided that the Seller’s instructions for use have been followed by the Buyer; and
7.1.2 Glassfibre flagpoles that have been manufactured within the Seller’s facilities:
(a) for ten years for the glassfibre shaft; and
(b) for one year in respect of accessories other than short-life consumables
Full conditions specified in the Warranty Statement
7.1.3 Goods (excluding those set out in clauses 7.1.1 and 7.1.2) for a period of six (6) months;
exclusively against either the Seller’s faulty workmanship or faulty materials from the date of delivery provided that Goods are used in accordance with the Seller’s display, and aftercare instructions (whether written or oral).
7.2 The Seller’s guarantee in Clause 7.1 is subject to:
7.2.1 Clause 7.3; and
7.2.2 the provision of a specific written notice from the Buyer to the Seller of any alleged defect within the guarantee periods (as specified in Clause 7.1) and the Seller has been afforded reasonable opportunity by the Buyer to inspect the relevant Goods to identify the nature and extent of the alleged defect.
7.3 The Seller’s guarantee in Clause 7.1 does not extend to parts, materials or equipment not manufactured by the Seller, nor does it cover wilful or accidental damage during or after delivery of the Goods, fair wear and tear, bad handling, undue strain placed on the goods, unsuitable storage, lack of maintenance or other causes of a like nature, the Goods conforming with information, drawings or specifications supplied by or on behalf of the Buyer’s alteration or repair of the Goods (other than by or on behalf of the Seller).
7.4 The Seller’s liability under Clause 7.1 shall be limited exclusively at the Seller’s option to repairing or replacing the defective Goods which shall be sent carriage paid to the Seller’s premises at Borough Road, Darlington, County Durham, DL1 1SW or such other place designated by the Seller on receipt of notice from the Buyer under Clause 7.2.2.
7.5 If replaced, the defective Goods shall become the property of the Seller.
7.6 Replacement or repair of defective goods shall not in any way extend the period of guarantee given under Clause 7.1 and 7.2;
7.7 If the Agreement stipulates test or inspection of Goods by or on behalf of the Buyer before delivery, such test and inspection shall be made at the Seller’s place of manufacture and shall constitute the Buyer’s final opportunity of ascertaining that the Goods are in conformity with the Agreement. If after reasonable notice of the Seller’s availability for inspection of the Goods, prior to delivery, the Buyer does not inspect or test Goods or, if having done so at the Seller’s place of manufacture, the Buyer does not within 7 (seven) days thereafter notify the Seller in writing of any claim that Goods are not in conformity with the Agreement (specifying the matters complained of) then the Buyer shall be conclusively deemed to have accepted the goods in accordance with the Agreement.
7.8 The Services shall be provided in accordance with the Agreement.
7.9 If the Buyer can demonstrate that the Services do not comply with the requirements of Clause 7.8, the Seller shall re-perform the Services within a reasonable period of time.
7.10 Clause 7.9 is the Buyer’s only remedy in respect of a breach of Clause 7.8 or otherwise in respect of the provision of the Services by the Seller.
8. PRINTING OF FLAGS
8.1 No Order for Flags shall be accepted by the Seller unless accompanied by artwork in an electronic format specified by the Seller.
8.2 If any Buyer is not able to provide artwork in the specified format the Seller at the Buyer’s expense shall use its reasonable endeavours to produce and provide appropriate artwork.
8.3 Orders for Flags must specify International Pantone Reference Numbers for all colours required.
8.4 Due to the limitations of the production processes and of the materials used the Seller will not guarantee to produce an exact match for such pantone numbers but shall use its reasonable endeavours to match them as closely as is reasonably practicable.
8.5 The Buyer shall not be entitled to rescind any Agreement for Flags or to claim any compensation if there is any discrepancy in the colour of any Flags.
8.6 Due to the production processes involved the number of Flags ordered shall be deemed to be approximate only and the Buyer must accept and pay for variations of +/- ten (10)% of any number of Flags ordered.
8.7 The Seller shall not be liable or responsible in any way to the Buyer for any shortfall of less than 10% on any order for Flags.
9. INSTALLATION OF FLAGPOLES
9.1 The Seller will only enter an Agreement for the installation of flagpoles for a Buyer if the Site Assessment is fully and accurately completed by the Buyer before placing its Order.
9.2 Any drawings or calculations prepared for and supplied to a Buyer in respect of an Order for installation services are for information only and shall not form part of any Agreement.
9.3 If a Buyer provides inaccurate or insufficient information in the Site Questionnaire, any additional charges arising upon the Seller’s installation as a result of such information, shall be raised by the Seller for any consequent work, services, materials or delays.
9.4 If an Agreement for installation services is cancelled less than 72 hours before such installation is due to commence the Seller reserves the right to charge a cancellation fee of 50% of the Price for such installation.
9.5 Additional charges and fees will be incurred and payable by the Buyer if any installation is delayed obstructed or cancelled by the Buyer once it has commenced.
9.6 The Seller shall not be liable for any damages to any ground or sub-soil surrounding the site of any installation caused during said installation, nor for any damage to the structure or site of any installation caused by the use of any flagpole once installed.
Except as provided herein and the Warranty Statement any condition, warranty or statement as to the quality of the Goods, whether express or implied by statute, trade custom or otherwise, is hereby excluded, except to the extent they may not be excluded or limited by law.
11.1 Except as expressly provided for under Clause 7 or by prior consent of the Seller the Buyer shall not be entitled to return any Goods
11.2 If Goods are returned with the Seller’s consent, a credit note to the value of the Goods (excluding delivery charges, taxes, VAT and other expenses) will be issued by the Seller after such Goods have been received at its Premises and have been checked.
11.3 All transport costs for the agreed return of Goods to and from the Premises including handling, packing, restocking and other like charges shall remain the sole responsibility of the Buyer and shall include the cost of reconditioning except where this is covered under the Seller’s guarantee contained in Clause 7.
12. TERMINATION BY SELLER
The Seller has the option without prejudice to any other right and remedies under law, either to terminate wholly or in part any or every Agreement between itself and the Buyer or to suspend any further deliveries due under such contract on the happening of any one of the following events:
12.1 when any debt to the Seller falls due to be paid by the Buyer and remains unpaid;
12.2 if the Buyer has failed to take delivery of Goods from the Seller otherwise than in accordance with the Agreement;
12.3 if the Buyer has ceased to pay its debts in the ordinary course of the Buyer’s business (in which case as a condition of resuming delivery under any Agreement between the Seller and the Buyer the Seller shall be entitled to require prepayment of or such security as may be required for the payment of the price of any further delivery).
13. LIMITATION OF LIABILITY
13.1 The Seller’s total financial liability for a breach of the Agreement, including any wilful or deliberate breach of Contracts and a tortious act or omission (including negligence), breach of statutory duty or misrepresentation in connection with the Agreement (“Event of Default”) shall be limited to the whole or part of the Price paid by the Buyer.
13.2 Nothing shall affect the Seller’s liability for death or personal injury, fraud or any other liability to the extent it cannot be excluded or limited by law, including any implied term as to title to the Goods.
13.3 In no event shall Seller be liable, whether for breach of contract, any tortious act or omission (including negligence) or otherwise, under or in connection with the Agreement for:
13.3.1 any loss, damage or expense for which the Buyer has assumed the risk under the Agreement;
13.3.2 loss of profit;
13.3.3 loss of reputation;
13.3.4 loss of business;
13.3.5 loss of revenue or goodwill;
13.3.6 loss of anticipated savings;
13.3.7 loss or damage to data; or
13.3.8 any consequential or indirect loss, regardless of whether the loss or damage would arise in the ordinary course of events, is reasonably foreseeable, is in the contemplation of the parties, or otherwise.
13.4 The Buyer shall not be entitled to withhold payment of any amount payable under the Agreement to the Seller because of any disputed claim of the Buyer in respect of faulty goods or any other alleged breach of the Agreement, nor shall the Buyer be entitled to set-off against any amount payable under the Agreement to the Seller any monies which are not then presently payable by the Seller or for which the Seller disputes liability.
14. INDEMNITY BY BUYER
The Buyer shall indemnify the Seller against all claims, demands, damages, penalties, costs and expenses for which the Seller may become liable by reason of the infringement or alleged infringement of letters patent or registered designs arising out of its performance of the Agreement in accordance with the Buyer’s specifications.
15. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in the Goods and Services shall be owned by the Seller.
16. WAIVER, INDULGENCE AND FRUSTRATION
16.1 The Seller’s rights shall not be prejudiced or restricted by any indulgence or forbearance extended to the Buyer and no waiver by the Seller in respect of any breach shall operate as a waiver in respect of any subsequent breach.
16.2 The Seller’s obligations under the Agreement shall be suspended, where the Seller is prevented, frustrated or impeded as a consequence of strikes (including industrial action by the Seller’s staff), lock outs, breakdown of plant, fire, Act of God, war, terrorism and natural disasters, and any other event beyond the Seller’s control. If such event prevents, hinders or delays performance of all or any part of the Seller’s obligations for more than one (1) month, then the Seller by notice to the Buyer may terminate the Agreement without liability from the date of the notice.
17. RIGHTS OF THIRD PARTIES
17.1 Except as provided in the Terms, the Terms do not create, confer or purport to confer any benefit or right enforceable by any person not a party to it.
17.2 The Buyer shall not without the prior written consent of the Seller transfer, charge, dispose of, deal with or subcontract its rights or obligations under the Agreement.
17.3 The Seller may assign its rights under the Agreement, including the right to receive the whole or part of the Price.
18. ENTIRE AGREEMENT AND AMENDMENTS
18.1 The Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all representations, including all pre- contract misrepresentations and misstatements negligently or innocently made, agreements, negotiations or understandings between the parties, except that this Clause 18.1 does not affect the liability of either party for any fraudulent misrepresentation.
18.2 An amendment to the Agreement is ineffective unless it is in writing, expressly purports to amend the Agreement and is signed by both parties.
If any provision of the Agreement is held to be illegal, invalid or unenforceable in whole or part, that provision shall to that extent be deemed not to form part of the Agreement and the legality, validity and enforceability of the remainder of the Agreement shall be unaffected.
The Agreement shall be subject to and construed in accordance with the law of England and Wales. All disputes arising in connection with the Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.