Terms & Conditions
The Customer should note the provisions of clause 13 (limitation of liability).
In this document the following words shall have the following meanings:
means the documents comprising an Agreement and includes the Conditions, an Order Acknowledgement and its related Purchase Order for Goods. If there is any inconsistency between the documents comprising an Agreement, they shall have precedence in the order listed herein.
means the organisation or person with whom an Agreement is made by the Company, whether directly or indirectly through an agent or third party who is acting for or instructed by or whose actions are ratified by such organisation or person.
means these terms and conditions as amended from time to time in accordance with clause 10 (alterations) and clause 19 (variation).
means the articles or things, or part of them, described in a Purchase Order including, without limitation, raw materials, processed materials or fabricated products, concept designs, drawings and prototypes.
Intellectual Property Rights
means patents, all rights to inventions, prototypes, products, discoveries, techniques or processes, systems, data, information, copyright and related rights, moral rights, trade marks and service marks, trade names, domain names, brand names, rights to goodwill, rights in design, rights in computer software (including source code and object code), database rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights relating to the Goods in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights owned by the Company and similar or equivalent rights which subsist or will subsist now or in the future in any part of the world.
means the Company’s acknowledgement of a Purchase Order for Goods confirming acceptance of that Purchase Order.
means the Customer and the Company.
means an order for the purchase of Goods submitted to the Company by the Customer.
Sales of Goods Act
means the Sales of Goods Act 1979.
Statement of Works
Means a document explaining the Agreement between the parties in the format of the document at schedule 1
means Fastrak Retail (UK) Ltd, Heapy Street, Macclesfield.
2.1 In these Conditions, the following rules apply:
2.1.1 A person includes a natural person, corporate or unincorporated body (whether or not they have separate legal personality).
2.1.2 A reference to a party includes its personal representatives, successors or permitted assigns.
2.1.3 A reference to 'writing' or 'written' includes faxes emails and texts.
2.1.4 Any reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision.
2.1.5 Any phrase introduced by the terms 'including' or 'include' or any similar expression shall not limit the sense of the words preceding those terms.
2.1.6 Any reference to a ‘day’ shall refer to business days
3.1 The Conditions shall apply to all Agreements for the sale of Goods by the Company to the Customer to the exclusion of all other terms and conditions referred to, offered or relied on by the Customer, whether in the negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Customer, unless the Customer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been agreed by the Company in writing.
4.1 Unless verbal or telephone Purchase Orders and any variations to Purchase Orders are confirmed in writing by the Customer to the Company, the Company shall not be responsible for errors or subsequent misunderstandings.
4.2 Notwithstanding that the Company may have given a detailed quotation, no Purchase Order shall be binding on the Company unless and until it has been accepted in writing by the Company by means of an Order Acknowledgement.
5. Price and payment
5.1 All prices estimated, quoted or invoiced are in Sterling (UK Pounds) unless specifically stated otherwise.
5.2 Unless otherwise agreed in writing by the Company any quotation for the Goods and/or Services are provisional and may be altered at any time for any reason.
5.3 The price of the Goods will be the price stated in the Order Acknowledgement, being, unless otherwise stated by the Company, the list price of the Company current at the date of the Order Acknowledgement. The Company’s prices are subject to adjustment to take account of any variation in the Company’s costs including (without limitation) variations in wages, the cost of materials, exchange rate fluctuations, alterations of duties, any alteration in the delivery instructions and other costs since the date of the Company’s quotation or (if no quotation is issued) the Purchase Order. The Company may also increase its prices at any time to take account of any error or inadequacy in any specification, instruction or design provided by the Customer or any modification carried out by the Company at the Customer's request,
5.4 The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted or the Purchase Order is submitted (as applicable). The invoice so adjusted shall be payable as if the price set out therein were the original Agreement price.
5.5 The price is exclusive of VAT, which will be charged at the appropriate rate. The price is also exclusive of transport, packaging, insurance and any other applicable duties or taxes, unless otherwise explicitly agreed.
5.6 All invoices of the Company shall, unless otherwise agreed in writing by the Company, be paid by the Customer within 30 days of the date of the Company’s invoice without deduction or withholding and free of set off or counterclaim. Time for payment shall be of the essence. The Company shall be entitled to render an invoice for the Goods sold under an Agreement as soon as the Company has provided an Order Acknowledgement.
5.7 The Company shall be entitled to charge interest on overdue invoices from the date when payment becomes due in accordance with the Late Payment of Commercial Debts (Interest) Act 1988 as amended.
5.8 If the payment of the price or any part thereof is not made by the due date, or the Company shall have reason to believe that the Customer will not make payment in accordance with this clause for the Agreement, or any other Agreement with the Customer, the Company shall be entitled to:
5.8.1 require payment in advance of delivery in relation to any Goods not previously delivered;
5.8.2 refuse to make delivery of any undelivered Goods whether ordered under an Agreement or not and without incurring any liability whatsoever to the Customer for non-delivery or any delay in delivery;
5.8.3 terminate the Agreement and or other Agreements with the Customer.
6. Specification of Goods
6.1 No description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Company and no representation written or oral, correspondence or statement made by the Company or any of its employees, agents or representatives, whether expressed or implied, shall form part of any Agreement.
6.2 Goods described in the Company’s literature or elsewhere are subject to a continuing process of technical change and development and the Company therefore reserves the right to alter specifications without notice at any time before delivery. All descriptions, illustrations, specifications and dimensions are approximate and are only intended to present a general guideline as to the type of Goods represented thereby. It is therefore agreed by the Customer that Goods supplied may not comply in all respects with the description in the Company’s literature or elsewhere.
6.3 If goods are made or services carried out to the Customer’s specification, instruction or design, then the suitability and accuracy of specification, instruction or design will be the Customer’s responsibility. The Customer will indemnify the Company against any infringement of any statute, patent, design right, registered design, trademark, trade name, copyright or other intellectual property right and any loss, damage or expense it may incur because of any such infringement or alleged infringement in any country worldwide.
6.4 The Company reserves the right to make any changes in the specification, instruction or design of the goods and/or Services which are required to conform to any applicable safety or other statutory requirements. Where the Goods and/or Services are to be supplied to the Customer’s specification, instruction or design the Company reserves the right to make any changes in the specification, instruction or design of the Goods and/or Services which do not materially affect the quality or performance of the Goods and/or Services,
6.5 The Customer will pass on to all third parties to whom it may supply the goods all information as to the use and safe handling of the Goods which has been provided to the Customer by the Company. The Customer shall identify the requirements for such information prior to Agreement, or industry standards will prevail.
7. Delivery and risk
7.1 The date of delivery specified by the Company is an estimate only given in good faith.
7.2 The Company undertakes to use reasonable endeavours to despatch the Goods on the agreed date, but does not guarantee to do so.
7.3 Time of delivery shall not be the essence of the Agreement, unless expressly agreed in writing by the Company and the Company shall not be liable for any loss, damage or expense suffered by the Customer or any other party by reason of any alleged delay in delivery.
7.4 Where the Company is authorised or required by the Customer to deliver the Goods to the Customer:
7.4.1 the Goods will be deemed to be delivered upon delivery of the Goods to a carrier (whether named by the Customer or not);
7.4.2 all risk in the Goods shall pass to the Customer on delivery, such that the Customer shall be liable for any subsequent loss or damage to Goods however caused;
7.4.3 the Parties agree that the Company will be under no obligation to give a notice under section 32(3) of the Sale of Goods Act;
7.4.4 the Customer authorises the Company to enter into an agreement with the carrier on its standard terms and conditions which the Customer confirms shall satisfy the requirements of the Company under section 32(2) of the Sale of Goods Act.
7.5 If the Company agrees to deliver goods or provide the services other than at the premises of the Customer, the Customer will provide all necessary instructions for offloading or for delivery of the services which will be at the expense and risk of the Customer
7.6 Goods collected by the Customer from the Company’s premises shall be deemed to be delivered and risk shall pass to the Customer upon the Customer arriving at the Company's premises.
7.7 Goods transported by the Company shall be deemed to be delivered and risk shall pass to the Customer when they are ready to be unloaded at the site specified by the Customer and the Customer agrees that Section 32(3) of the Sale of Goods Act shall not apply to Goods sent by the Company.
7.8 If delivery is refused by the Customer or is delayed, suspended or made by instalments at the request of the Customer, risk in the Goods (or any of them not delivered in these circumstances) shall pass to the Customer immediately upon such refusal or request by the Customer and (without prejudice to the generality of the foregoing) the Company shall place such Goods into store and the Customer shall be responsible to pay the costs of storage and insurance of such Goods and of any attempted delivery of such Goods.
7.9 No liability for non-delivery, loss of or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with an Agreement will attach to the Company unless claims to that effect are notified in writing by the Customer to the Company: (a) within 7 days of delivery for loss damage or non-compliance with the Agreement or (b) for non-delivery within 10 days of the delivery date specified by the Company. If the Customer fails to give such notice the Goods shall be deemed to be in all respects in accordance with the Agreement and, without prejudice to earlier acceptance by the Customer, the Customer shall be bound to accept and pay for the same accordingly.
7.10 In the event of a valid claim for non-delivery, loss, damage or non-compliance with the Agreement the Company undertakes at its option either to repair or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery loss damage or non-compliance.
7.11 If forwarding instructions are not received within 5 days, or 14 days for export orders, of the Company’s advice to the Customer that Goods are ready for despatch, the Company shall be entitled to make an appropriate storage charge from the date of such advice.
7.12 In the event Agreement is an international Supply Contract, it will be deemed to incorporate the latest edition of "Incoterms" current at the date of the Agreement. If there is any inconsistency between Incoterms' and any express term of the Agreement the latter will prevail
7.13 The Customer shall make the Company aware of any delivery restrictions, procedures or other special delivery consideration prior to the Agreement
8.1 In spite of delivery having been made, title in the Goods shall not pass from the Company until the Customer has paid the price of all the Goods under any Agreement and no other sums are due from the Customer to the Company.
8.2 Until the property in the Goods passes to the Customer, the Customer shall hold the Goods and each of them on a fiduciary basis as a custodier/bailee for the Company. The Customer shall store the Goods separately from all other Goods in its possession and marked in such a way that they are clearly identified as the property of the Company. The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Customer shall maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
8.3 Notwithstanding that the Goods remain the property of the Company; the Customer may sell the Goods in the ordinary course of the Customer’s business at full market value for the account of the Company. Until title in the Goods passes from the Company, the entire proceeds of sale or otherwise of the Goods shall be held on trust by the Customer for the Company.
8.4 Until such time as title in the Goods passes from the Company to the Customer, the Customer shall, upon request, deliver up such Goods as have not ceased to be in existence or resold, to the Company. If the Customer fails to do so, the Company may enter upon any premises owned or occupied or controlled by the Customer where the Goods are situated and repossess the Goods.
8.5 The Company shall have the right to pursue an action for the price of the Goods notwithstanding that title may not have passed to the Customer.
9. Customer's obligations
9.1 The Customer shall provide the Company with any information reasonably required by the Company as well as obtain all necessary permissions and consents including (without prejudice to the generality of the foregoing) promptly obtaining all necessary import licences, clearances and other consents necessary for the purchase of the Goods.
9.2 Without prejudice to any other rights to which the Company may be entitled, in the event that the Customer unlawfully terminates or cancels any Agreement, the Customer shall be required to pay to the Company, as agreed damages and not as a penalty, the full price of the Goods as set out in the Agreement, and the Customer agrees this is a genuine pre-estimate of the Company's losses as the goods produced by the Company are Customer specific and cannot be resold.
10. Alterations to the Agreement
10.1 Subject to clause 19.1, the Parties may, at any time, mutually agree upon variations to an Agreement, save for an Order Acknowledgement, provision for which is set out below.
10.2 Any alterations in the scope of Goods to be provided under an Agreement shall be set out in a revised Order Acknowledgement or if applicable a Statement of Works, which shall reflect the changed Goods and price and all other terms agreed between the Parties.
10.3 The Customer may at any time within 2 days of the Order Acknowledgement/Statement of Works request in writing alterations to it. On receipt of the request for alterations, the Company shall, within 2 days, or such other period as may be agreed between the Parties, advise the Customer by notice in writing whether it is prepared to alter the Order Acknowledgement/Statement of Works in accordance with the Customer’s request and, if it is, the basis upon which it is prepared to do so having regard to the changes which the Company shall require to the price and any other terms previously agreed between the Parties ('an alteration notice').
10.4 The Customer shall, within 2 days of receipt of an alteration notice, or such other period as may be agreed between the Parties, advise the Company by notice in writing whether or not it wishes an Agreement to be altered on the basis set out in the alteration notice. If such a notice is given by the Customer, the terms of the altered Agreement shall be set out in a revised Order Acknowledgement/Statement of Works.
11. Defective Goods or Services – Limitation of Liability
11.1 The Customer will carefully examine the Goods on receipt and notify the Company and the carrier of any damage loss or shortage. In the case of damage loss or shortage such notice to the Company shall be given by endorsement by the Customer on the delivery and/or advice note. The Customer shall retain the goods in their delivered state and shall allow the Company’s servants or agents 5 working days to inspect. In addition, within three days of receipt or (in the case of total loss) of receipt of the invoice or other notification of despatch the Customer will give the Company written-confirmation of the damage loss or shortage. The Company's liability, if any will be limited to replacing or (at its option) repairing such Goods. The Customer will not be entitled to make any claim against the Company for consequential loss arising out of the damage, loss or shortage.
11.2 The Company will only be liable to the Customer in respect of the matters set out in clauses 11.1 and 12 below PROVIDED THAT the Customer informs the Company of the defect as soon as is reasonably practicable
11.3 Where the Company agrees to repair or replace Goods any time specified for delivery under the Agreement will be extended for such period as the Company may reasonably require.
11.4 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12. Installation Testing or Servicing
12.1 If under the Agreement the erection, installation, testing or servicing of any equipment is to be carried out by or under the supervision of the Company, the Customer warrants that it will make all necessary preparations to the site by such date as may be specified in the Agreement or reasonably required by the Company; and further warrants that it will provide suitable access to and possession of the site, suitable protection of Goods from the time of delivery and all facilities required to enable the Company to perform its obligations
12.2 The Company will indemnify the Customer in respect of any direct damage to property caused in the course of erection installation testing servicing or repair by the negligence of the Company or the negligence or wilful default of its servants or agents PROVIDED that the Company's liability hereunder shall not exceed the price payable under the Agreement
12.3 The Company reserves the right to sub-contract the installation of Goods or the performance of any other Services required under the Agreement
12.4 The Customer warrants that it will at all times provide a safe working environment for the Company's employees, agents or subcontractors and will comply with all statutory or other regulations in connection therewith and will indemnify the Company in respect of any loss incurred by the Company due to the Customer's breach of this warranty
13.1 The Company warrants that it has the right to sell the Goods, but otherwise the Goods are provided on an 'as-is' basis without warranty of any kind, express or implied, oral or written.
13.2 Where the Goods have been manufactured by the Company and are found under proper use (fair wear and tear excepted) to be defective, the Company shall repair, or in its sole discretion, replace such defective Goods free of charge within 90 days from the receipt of notification from the Customer, subject to the following conditions:
13.2.1 the Customer notifying the Company in writing immediately upon the defect becoming apparent;
13.2.2 the defect being solely due to faulty design, materials or workmanship.
13.3 Any Goods to be so repaired or replaced shall be returned to the Company at the Customer’s expense.
13.4 Where the Goods have been manufactured and supplied to the Company by a third party, any warranty granted to the Company shall be passed on to the Customer to the extent that the Company is able and subject to the Goods having been accepted and paid for by the Customer.
13.5 The Company shall be entitled in its absolute discretion to refund the price of defective Goods in the event that such price has already been paid.
14.1 The Customer shall indemnify the Company against all claims (including but not limited to loss of profit), costs and expenses in respect of any dispute, suit, action, arbitration or proceedings that arise out of, or in connection with an Agreement (including without limitation legal fees and other professional fees) which the Company may incur and which arise, directly or indirectly, from the Customer's breach of any of its obligations under an Agreement.
15. Limitation of liability
15.1 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 Customer in respect of:
15.1.1 any breach of any Agreement;
15.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
15.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with any Agreement.
15.2 To the extent permitted by law, no liability of any nature shall be incurred or accepted by the Company in respect of any representation made by the Company, or on its behalf, to the Customer, or to any party acting on the Customer's behalf, prior to the making of an Agreement, where such representations were made or given in relation to:
15.2.1 the correspondence of the Goods with any description;
15.2.2 the quality of the Goods; or
15.2.3 the fitness of the Goods for any purpose whatsoever.
15.3 No liability of any nature, including, but not limited to negligence, shall be incurred or accepted by the Company in respect of any express term in any Agreement where such term relates in any way to:
15.3.1 the correspondence of the Goods with any description;
15.3.2 the quality of the Goods; or
15.3.3 the fitness of the Goods for any purpose whatsoever.
15.4 Without limitation, any implied term under sections 13 to 15 of the Sale of Goods Act 1979 as to the quality, fitness for purpose or description of the Goods, all of which are specifically and unreservedly excluded to the fullest extent permitted by law. In particular, but without limitation, no warranty is given that the Goods are suitable for any specific purpose intended by the Customer.
15.5 An Agreement shall not constitute a sale by description or sample.
15.6 Save as expressly provided in the Agreement, all conditions, warranties and other terms implied by statute or common law are to the fullest extent permitted by law excluded from any Agreement.
15.7 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 any Agreement shall be limited to the price stated in the Order Acknowledgement.
15.8 In no event shall the Company be liable to the Customer for any loss of business, loss of opportunity, loss of profits, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of contract, loss of use, loss or corruption of data or information or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with any Agreement. This shall apply even where such a loss was reasonably foreseeable or the Company had been made aware of the possibility of the Customer incurring such a loss.
15.9 Nothing in an Agreement shall exclude or limit the Company’s liability for death or personal injury resulting from the Company’s negligence or that of its employees, agents or sub-contractors.
16.1 The Company may, by written notice, terminate any Agreement immediately if the Customer is in breach of any of the terms of an Agreement, which, if capable of remedy, is not remedied within 2 days of a notice served by the Company requiring such breach to be remedied. Failure to pay any sums due is a breach of the terms of the Agreement which is not capable of remedy.
16.2 Any Agreement shall be terminated if an order is made for bankruptcy of the Customer or an effective resolution is passed for the winding-up of the Customer or the Customer makes a composition with its creditors or if a supervisor, receiver, administrator, administrative receiver or other encumbrancer takes possession of or is appointed over the whole or any part of the assets of the Customer.
16.3 Any Agreement shall be terminated if either party ceases to carry on its business or substantially the whole of its business or where either party is declared insolvent.
16.4 Termination of an Agreement shall not affect any rights or obligations of the Parties arising prior to such termination.
16.5 Upon termination, the Customer shall pay to the Company the full price of the Goods as set out in the Agreement and the Company shall be entitled to damages for any consequential loss due to the Termination
16.6 The Company may, by written notice, terminate any Agreement immediately if currency fluctuations make it commercially unviable to provide the Goods at the price quoted.
17. Intellectual property rights
17.1 The specification and design of the Goods and all Intellectual Property Rights therein shall as between the Parties be the property of the Company. Where any designs or specifications have been supplied by the Customer for manufacture by the Company or to the order of the Customer then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party and the Customer shall indemnify the Company against all claims, costs, damages and expenses which the Company may incur and which arise, directly or indirectly, from the Customer’s breach of such warranty.
17.2 The Customer shall not:
17.2.1 claim any right of property in any of the Company's Intellectual Property Rights;
17.2.2 register or cause to be registered any Intellectual Property Rights that is similar to or an imitation of any Intellectual Property Rights of the Company;
17.2.3 make any modifications to the Goods or their packaging;
17.2.4 alter, remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods;
17.2.5 use any of the Company's Intellectual Property Rights in any way that might prejudice their distinctiveness or validity or the goodwill of the Company in them;
17.2.6 use in relation to the Goods any intellectual property rights other than the Intellectual Property Rights without obtaining the prior written consent of the Company.
17.3 For the avoidance of doubt, nothing in an Agreement confers upon the Customer any rights whatsoever in the Company's Intellectual Property Rights or the goodwill associated with them. The Customer acknowledges that, except as expressly provided in this Agreement, it will not acquire any rights in respect of the Company's Intellectual Property Rights and goodwill and that they are, and shall remain, vested in the Company.
18. Force majeure
18.1 The Company shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to, acts of God, decrees or restraints by civil authorities including acts of local and national government, extreme weather conditions, labour disputes of whatever nature including, without prejudice to the generality of the foregoing, work to rule, strikes and lockouts, perils of the sea or air, fire, flood, drought, explosion, pandemic, embargo, war, riots, civil commotions, sabotage, terrorism, breakdown of plant or machinery or shortage or unavailability of labour or raw materials from a natural source of supply, or currency fluctuations resulting from any of the aforementioned and the Company shall be entitled in these circumstances to delay or cancel delivery or to reduce the amount delivered.
19.1 The Customer shall not be entitled to assign an Agreement or any part of it without the prior written consent of the Company.
19.2 The Company may assign an Agreement or any part of it to any person, firm or company.
20.1 The failure by either party to enforce, at any time or for any period, any one or more of the terms and conditions of the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of an Agreement.
21.1 Any variation to the Conditions (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by and signed by an authorised person on behalf of the Company.
22.1 If any term or provision of the Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
23. Rights of third Parties
23.1 The Parties do not intend any part of an Agreement to be enforceable by any person not a party to it, by virtue of the Contracts (Rights of Third Parties) Act 1999.
24. Governing law
24.1 This Agreement shall be governed by and construed in accordance with the law of England and Wales and the Company and the Customer irrevocably agree that the courts of England and Wales have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which arises out of, or in connection with an Agreement.