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1.1 In These Conditions
"Buyer" means the person whose order is accepted by the seller or the person who accepts a quotation of the seller.
"Conditions" means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes other special terms and conditions agreed in writing between the buyer and 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 conditions.
"Seller" means FPD Group Limited.
1.2 Any reference in these conditions to any provision of a statutes shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings of these Conditions are for convenience only and shall not affect their interpretation
2.1 The Conditions, shall represent the entire agreement between the Seller and the Buyer to the exclusion of all other purported terms and conditions which the Buyer may seek to impose upon the Seller whether on its documentation or otherwise.
2.2 No variation of these Conditions shall be binding unless agreed in writing by an authorised representative of the Buyer and Seller.
2.3 A binding contract shall only come into existence at such time as the Buyer receives written notice from the Seller ("The Acknowledgement of Order") that the order of the Buyer has been received by the Seller and the Goods will be supplied on these Conditions or (if earlier) when the goods ordered by the Buyer have been despatched by the Seller or when written notice of acceptance of a quotation is received by the Seller within the time limit specified in Clause 2.4
2.4 Any quotation by the Seller to the Buyer is, unless previously withdrawn, open for acceptance by the Buyer within seven (7) days of the date of quotation after which prices and terms are subject to revision by the Seller without notice.
2.5 Goods are sold on a supply only basis unless otherwise clearly stated in Quotation and Order documentation.
3.1 Dates and periods quoted by the Seller or detailed on the Acknowledgement of Order for performance, despatch or delivery of goods are estimates only time for that delivery shall not be of the essence of the contract.
3.2 Unless otherwise agreed in writing by the authorised representatives of the Buyer and the Seller all specifications and particulars of dimensions submitted with such specifications are approximate only. The descriptions and illustrations contained in the Seller's catalogues, price lists and other advertisement matter are intended merely to present a general idea of the goods described and none of these shall form part of the contract. The Seller reserves the right to amend the specifications of the goods or to substitute any part of the goods of a similar specification at any time and without notice (whether to conform with any applicable safety or under statutory requirement or otherwise) provided that such change does not materially affect their quality or performance.
3.3 The Buyer shall determine that all goods are suitable for contemplated use whether or not such is known by the Seller. The Seller shall not be liable for any technical advice furnished by its representatives or agents to the Buyer.
4.1 The price of the Goods shall be determined by reference to the Seller's price list current at the date of despatch of the Goods. All prices quoted on such price list are exclusive of value added tax.
5.1 Unless otherwise agreed in writing by the authorised representatives of the Buyer and the Seller
5.1.1 All packing materials are included in the contract price. The manner of the packing shall be at the Seller's discretion. No liability for failure to pack to any particular standard or against any particular risks unless the for such packing is specifically brought to the Seller's attention, accepted by the Seller and paid for by the Buyer.
5.1.2 Delivery shall be affected by means of carriers organised by the Seller.
5.2 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.
5.3 Subject to Clause 3.1 if the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
5.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated by the delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then without prejudice to any other right or remedy available to the Seller, the Seller may:
5.4.1 Charge the Buyer for any amount of any costs incurred by the Seller as a result of such non-delivery or inadequate delivery instructions which the Buyer shall be obliged to pay forthwith at the request of the Sellers;
5.4.2 Store the goods until actual delivery and charge the Buyer for any reasonable costs of storage
5.4.3 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the contract or charge the Buyer for any shortfall below the price under the contract.
Unless otherwise specifically agreed in advance no refund or credit will be given by the Seller in respect of any Goods returned save as the Seller may elect to make pursant to Clauses 11.3.1 to 11.3.3
7.1 A non-refundable deposit shall be payable to the Seller if so stated on the Acknowledgement of Order or on a Quotation of the Seller which is accepted by the Buyer (as appropriate) such deposit shall be paid within the period specified on the Acknowledgement of Order or on a Quotation (as appropriate) and no binding contract shall come into existence until cleared funds shall have been received to the amount of such deposit by the Seller.
7.2 The amount of such deposit shall be as defined on the Acknowledgement of Order or on a Quotation of the Seller which is accepted by the Buyer (as appropriate) and shall not be refundable under any circumstances whatsoever.
7.3 Any deposit shall be treated as part payment for the price due under Clause 8 below.
8.1 Subject to any special items agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of Goods and carriage thereof on or at any timeafter dispatch or delivery of the Goods. Where the Goods are to be collected by the Buyer the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after collection by the Buyer of the Goods. Where the Buyer wrongfully fails to take delivery of the Goods 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.
8.2 The Buyer shall pay the price of the Goods and carriage thereof before the due date specified on the Seller's Invoice, 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 only be issued on upon request.
8.3 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:
8.3.1 Cancel the contract or suspend any further deliveries to the Buyer.
8.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer)
8.3.3 Charge the Buyer the amount of any costs incurred by the Seller in pursuing such non-payment: and
8.3.4 Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4 per cent per annum above Lloyds TSB Bank UK 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).
8.4 No claim by the Buyer under warranty or otherwise shall entitle the buyer to a deduction, retention or withholding of any part of any sums due for payment hereunder. The Buyer shall be entitled to any set-off of obligations pursuant to any contract with the Seller.
8.5 All payments shall be made in sterling (£UK)
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer
9.1.1 In the case of Goods to be delivered at the Seller's premises at the time when the Seller notifies the Buyer that the Goods are available for collection: or
9.1.2 In the case of 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.
9.2 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.
9.3 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.
9.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness or 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 of remedy of the Seller) forthwith become due and payable.
10.1 This clause applies if.
10.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration offer or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise for the purposes of amalgamation or reconstruction) or
10.1.2 An encumbrance takes possession, or a receiver is appointed, of any property or assets of the Buyer, or
10.1.3 The Buyer ceases, or threatens to cease, or carry on business, or
10.1.4 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.
11.1 All conditions, guarantees, or warranties, (whether express, or implied by statute or common law) which may be lawfully excluded are hereby excluded from the contract and neither the Seller nor its authorised representatives or agents shall be under any liability whatsoever in respect of any loss, damage or expenses arising, whether directly or indirectly, from any defect which may be found to exist in any of the Goods or for late delivery of such Goods or for failure to perform any obligations under the contract by the Seller save as set out in Clauses 11.3.1 to 11.3.3
11.2 Nothing in this Agreement shall exclude or restrict the liability of the Seller in respect of Goods supplied within the United Kingdom from personal injury or death resulting from negligence of the Seller in the performance of his obligations under the contract.
11.3.1 An authorised representative of the Buyer shall examine the Goods on delivery and in the event that any of the Goods prove to be defective and/or there is proved to be any shortfall in the Goods and in either case detailed notice of such defect or shortfall shall be given to the Seller and the carriers of the Goods on the delivery note accompanying the Goods which shall be signed by a fully authorised representative of the Buyer.
11.3.2 In the event that an authorised representative of the Buyer examines the Goods on delivery and signs the delivery note accompanying the Goods but fails to notice any defect or shortfall in the Goods detailed notice of any such defect or shortfall shall be given in writing to the Seller and the carriers of the Goods written 7 working days of the date if delivery of the Goods.
11.3.3 In the event of non-delivery of the Goods detailed notice of non-delivery shall be given in writing to the Seller and the carriers of the Goods within 7 days of invoice in respect of the same.
In any of the above cases contained in these sub-clauses 11.3.1 to 11.3.3 the Seller's entire liability shall be to replace or refund or waive payment for the Goods as it may elect, subject to a limit of the agreed price for the Goods PROVIDED ALWAYS that the Seller shall be under no liability to the extent such defects occur as a result of some act or omission of the Buyer.
11.4 In the event that any liability for loss, damage or injury is imposed upon the Seller by virtue of any statute or the common law (other than a liability accepted by the Seller in Clauses 11.3.1 to 11.3.3 (insofar as may be permitted by law) the Buyer shall indemnify the Seller to the full extent of any such liability, including, without limitation, any costs incurred by the Seller in relation to the liability (save insofar as such liability results directly from a reckless or negligent act of the Seller).
12.1 In no event shall the Seller be liable under the contract for any failure or delay in performing any of its obligations under the contract to the extent that such failure or delay is caused by occurrences to
its reasonable control to including, without limitation, acts of God, governmental acts, fire, riot, or industrial disputes, no matter where these occur.
13.1 The intellectual property rights in all designs concepts and know-how incorporated in the Goods and not originally supplied by the Buyer shall remain at all times the property of the Seller or any relevant third party owner of such rights and the Buyer shall take no step which may challenge or endanger such proprietor rights of the Seller or any such third party owner.
13.2 The Buyer warrants that any design, plan, or instruction furnished or given by the Buyer to the Seller shall not be such as will cause the Seller to infringe any Letter Patent, Registered Design, Trade Mark, Copyright or other industrial or intellectual property rights in the execution of the contract and indemnifies the Seller to the full extent of any liability (including without limitation as to costs) which may be incurred by the Seller by any breach of this warranty.
13.3 The Buyer shall not use the Seller's name or logo, or any other identification marks for the purpose of advertising or publicity without the Seller's prior written consent.
13.4 Plans, drawings, specifications and samples submitted are the property of the Seller and only to be used between the Buyer and their client.
14.1 The Buyer will provide a clear level site and remove any existing stock, fixtures or obstructions, necessary to complete the contract. If the company is required to carry out any such clearance or levelling this will then be subject of a separate charge.
14.2 The Buyer shall provide on the site, without charge to the Seller, adequate lighting and electricity for carrying out the work and for the use of portable tools during the progress of the work.
14.3 The Seller reserves the right to employ a subcontractor of its choice on all or part of the works detailed in the specification
14.4 The Seller shall be entitled to write or affix its name on the products sold or work done.
14.5 All site waste and clearance are the responsibility of the Buyer.
14.6 Once a confirmed date for installation is confirmed by the Seller a Buyer must prepare for arrival of Goods arrival and arrange for an authorised person to sign for Goods at the premises on the day of delivery.
15.1 This contract represents the entire agreement between the parties and supersedes all earlier warranties representations or statements (whether oral or in writing) and may only be varied or amended in writing between authorised representatives of the Buyer and Seller.
15.2 The failure of the Seller to exercise or enforce any rights conferred hereunder shall not be deemed to be a waiver of any such right nor operate so as to bear the exercise or enforcement of it at any time or times.
15.3 This contract shall be governed by the laws of England.
15.4 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 of principal place of business or such other address as may be relevant time have been notified pursuant to this provision to the party giving the notice. Proof that an envelope containing such notice was properly addressed, prepaid and posted first class shall be conclusive evidence that such notice was given.
15.5 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whose or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.