FIRMAC LIMITED

STANDARD TERMS AND CONDITIONS OF SALE

  1. INTERPRETATION

 In these Conditions the following words will have the following meanings unless inconsistent with the context:-

“Bespoke Goods” Goods manufactured pursuant to a Specification provided to Firmac by the Buyer or developed by Firmac specifically for the Buyer;
“Buyer” the customer named in the Confirmation of Order;
“Contract” the contract for the purchase and sale of the Goods incorporating these Conditions, the terms of the Confirmation of Order and the Incoterms. If any conflict arises between these Conditions, the Confirmation of Order and the Incoterms then the following order of precedence will prevail:-
  1. the Confirmation of Order;
  2. these Conditions; and
  3. the Incoterms.
“Conditions” the terms and conditions set out below;
“Confirmation of Order” the order acknowledgement issued by Firmac confirming the Buyer’s order for the Goods;
“Deposit” means the deposit detailed in the Confirmation of Order;
“Ex Works” has the meaning given to it in the Incoterms;
“Firmac” means Firmac Limited (registered in England under number 01840612) whose registered address is: 2 Belgrave Crescent, Scarborough, North Yorkshire YO11 1UD;
“Goods” the goods to be purchased by the Buyer as more particularly described in the Specification;
“Incoterms” the terms comprising the year 2000 edition of the standardised set of international trade terms published by the International Chamber of Commerce;
“Insolvency Related Event” each and any of the following in relation to the Buyer:-
  1. any procedure is commenced with a view to the winding-up or re-organisation of the Buyer and that procedure is not terminated or discharged within 30 days (save that no right to terminate will rise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction);
  2. any procedure is commenced with a view to the appointment of an administrator, receiver, administrative receiver or trustees in bankruptcy in relation to the Buyer or its assets and that procedure is not terminated or discharged within 30 days;
  3. the holder of any security over the assets of the Buyer takes any step to enforce that security and that enforcement is not discharged within 30 days;
  4. the assets of the Buyer are subject to attachment, sequestration, execution or similar process and that process is not terminated or discharged within 30 days;
  5. the Buyer is unable to pay its debts as they fall due or enters into a composition or arrangement with its creditors or any class of them; or
  6. any event analogous to those described in (1)-(5) above in any jurisdiction to which the Buyer is subject;
“Intellectual Property Rights” all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
“Specification” the specification of the Goods set out or referred to in the Confirmation of Order; and
“Used Goods” Goods that have been used prior to their sale to the Buyer (including reconditioned Goods but excluding Goods which are new but have been subjected to acceptance testing following manufacture).

 

2         In these Conditions:-

2.1          references to “includes”, “including”, “in particular” or “for example” shall be construed without limitation to the generality of the preceding words;

2.2          any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force; and

2.3          references to “the Contract”, “the Goods” or any payment includes any part of any of them.

BASIS OF THE SALE

1         Firmac shall sell and the Buyer shall buy the Goods subject to the terms of the Contract, and the Contract contains the only terms on which Firmac is prepared to provide the Goods to the Buyer.

2         The Contract shall supersede any other terms which may govern the supply of the Goods to the Buyer to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing.

3         No terms or conditions endorsed upon, delivered with or contained in the Buyer’s order or other document will form part of the Contract simply as a result of such document being delivered to Firmac or referred to in the Contract.

4         Any variation to these Conditions is of no effect unless agreed in writing by a director of Firmac.

QUOTATIONS AND ORDERS

1         A quotation by Firmac is not an offer.  Quotations are valid for 60 days only and subject to withdrawal or revision at any time before acceptance of the Buyer’s order by Firmac.

2         Each order for Goods by the Buyer is an offer by the Buyer to purchase the Goods subject to the Contract.

3         No order submitted by the Buyer will be accepted by Firmac until Firmac confirms its written acceptance of that order by sending a Confirmation of Order to the Buyer.

4         No order may be cancelled by the Buyer except with Firmac’s prior written agreement.

5         If Goods are being delivered in instalments, any defect in one or more instalment(s) shall not entitle the Buyer to cancel any other instalment(s).

Guarantee and Testing

1     Guarantee

1.1          Subject to conditions 4.1.2 and 4.1.5, Firmac guarantees that the Goods will be defect free and comply with the Specification in all material respects (the “Guarantee”):- in the case of Goods which are not Used Goods for the period ending on the earlier of:-the date which is 12 months from the date that the Goods are first put to commercial use; orthe date which is 15 months from the date that the Goods were delivered to the Buyer; orin the case of Used Goods for the period ending on the date which is 6 months from the date that the Used Goods were delivered to the Buyer, the “Guarantee Period”.

1.2          The Guarantee

shall not apply to any Goods (or any part(s) of the Goods) which have not been manufactured by Firmac;

shall not apply if the Buyer has not paid Firmac for those Goods in full; and

shall only cover defects in Used Goods provided those defects relate to tool fittings and shafts, bearings and gears incorporated in the Goods (and, in particular, does not cover defects to existing proprietary items such as motors, starters, gearboxes and castings).

1.3          During the Guarantee Period Firmac shall (at Firmac’s option) either replace or repair, or refund to the Buyer the price of any Goods which are in Firmac’s opinion (acting reasonably) found not to comply with the Specification in all materials respects.

1.4          Any Goods which are replaced or repaired in accordance with condition 4.1.3 shall be Guaranteed in accordance with condition the remaining period of the contract as stated in 4.1.1

1.5          Firmac gives no warranty that the Goods are fit for any particular purpose beyond the capabilities explicitly set out in the Specification.

1.6          Firmac will assign to the Buyer, the benefit of any warranty, guarantee or similar right which it has against any third party manufacturer or supplier of the Goods or any part or parts of the Goods.

1.7          All descriptions, samples and illustrations provided by Firmac (other than textual descriptions that form part of the Specification) are intended only to present a general idea of the Goods described and do not form part of the Contract unless explicitly stated to do so.

2         Inspection and testing

2.1          Prior to delivery of the Goods Firmac shall provide the Buyer with a reasonable opportunity to inspect the Goods at Firmac’s premises and carry out tests on the Goods to ascertain if the Goods comply with the Specification in all material respects (the “Factory Acceptance Tests” F.A.T).

2.2          The Acceptance Tests may only be carried out under the supervision of Firmac and during Firmac’s normal working hours.

2.3          The Acceptance Tests shall be repeated until the Goods pass the Acceptance Tests. Once the Goods have passed the Acceptance Tests (as evidenced by the signature by both parties of an acceptance certificate) the Buyer shall have no right to reject the Goods unless incorrect Goods are delivered to the Buyer or the Goods are damaged during delivery by Firmac to the Buyer. For the avoidance of doubt, when assessing when delivery occurs under this condition 4.2.3 (in the case of delivery Ex Works:Firmac premises) to ascertain if the Goods have been damaged during delivery, “delivery” shall mean the period from completion of the Acceptance Tests until the date that the Goods are made available to the Buyer for collection.

2.4          If the Buyer is unable to attend Firmac’s premises to carry out the Acceptance Tests then, prior to delivery, Firmac shall provide the Buyer with materials (such as completed work sheets and video footage) which demonstrate that the Goods comply with the Specification in all material respects (the “Acceptance Materials”). Within 7 days of receipt of the Acceptance Materials the Buyer shall confirm in writing that it either accepts or rejects the Goods based on its analysis of the Acceptance Materials. If the Buyer rejects the Goods then it must provide full written details as to why it believes the Goods do not comply with the Specification in all material respects based on its analysis of the Acceptance Materials.

2.5          If the Buyer has rejected the Goods under condition 4.2.4 Firmac shall rectify any material issues identified by the Buyer and issue new Acceptance Materials to the Buyer. This process shall only be repeated twice at which time Firmac shall be entitled to require the Buyer to either accept delivery of the Goods or attend Firmac’s premises to carry out the F.A.T.

2.6          The Goods shall be inspected by or on behalf of the Buyer:-

(when the Buyer has only had access to Acceptance Materials prior to delivery) within a reasonable time of their delivery and in any case within 7 days from the date of delivery to ascertain that the Goods comply with the Specification in all material respects; or

(when the Buyer has carried out the Acceptance Tests prior to delivery) immediately on delivery to ascertain that the Goods are of the correct quantity and have not been damaged prior to delivery.

2.7          If, following delivery, the Goods are found not to comply with Specification in all material respects the Buyer’s sole remedy shall be to require Firmac to comply with condition 4.1.3.

PRICE

1         Unless otherwise stated in the Confirmation of Order and subject to condition 5.2, the price of the Goods will be the price listed for those Goods in Firmac’s quotation at the time that the order was placed.

2         Firmac reserves the right at any time before delivery of the Goods to amend the price of the Goods to take into account any variation in cost to Firmac as a result of complying with instructions from the Buyer (including changes to the Specification) or any other factors beyond Firmac’s control.

3         The price of the Goods is exclusive of any applicable value added tax or any other applicable sales tax or duty which shall be for the account of the Buyer.

PAYMENT

1         Payment shall be in accordance with the terms set out in this condition 6 as varied or supplemented by the Confirmation of Order.

2         Firmac shall be under no obligation to perform any of its obligations under the Contract until it has received the Deposit. Payment of subsequent invoices shall be due no later than 5 days from the agreed payment milestones.

3         If the Goods are delivered by instalments, Firmac shall be entitled to render an invoice for each delivery. Any failure by the Buyer to pay an invoice in relation to an instalment shall cause the whole of the balance of the price to become immediately due and payable.

4         Time of payment is of the essence.  For the purposes of these Conditions, payment is received when Firmac receives it in cleared funds.

5         Payment by the Buyer shall be made without any deduction or set off.

6         Firmac reserves the right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.

7         Without prejudice to condition 6.6, if the Buyer fails to make any payment on the due date then the whole price of all Goods ordered by the Buyer shall become immediately due and payable and Firmac may:-

7.1          cancel the Contract or suspend deliveries and/or performance of the Contract; and/or

7.2          allocate any payment made by the Buyer to Firmac to such Goods as Firmac thinks fit.

8         Despite any provision allowing credit, payment is due and payable to Firmac immediately upon cancellation or termination of the Contract.

9         Firmac is entitled to off-set sums owed by Firmac to the Buyer against sums owed by the Buyer to Firmac.

DELIVERY AND RISK

1         Delivery of the Goods shall be Ex Works: Firmac Ltd, Scarborough unless otherwise stated on the Confirmation of Order.

2         Risk in the Goods shall pass to the buyer on delivery.

3         Any dates for delivery and/or performance are approximate only and time of delivery and/or performance of the Goods is not of the essence, unless otherwise stated on the Confirmation of Order.

4         Firmac reserves the right to defer the date of delivery or performance or to cancel the Contract without liability to the Buyer if it is prevented from or delayed in carrying on its business by any cause beyond Firmac’s reasonable control.

OWNERSHIP

1         Ownership of the Goods shall not pass to the Buyer until Firmac has received in full (in cash or cleared funds) all sums due to it in respect of:-

1.1          the Goods; and

1.2          all other sums which are or which become due to Firmac from the Buyer on any account.

2         Until ownership of the Goods has passed to the Buyer, the Buyer shall (subject to the rights given to the Buyer by condition 8.5):-

2.1          hold the Goods on a fiduciary basis as Firmac’s bailee;

2.2          store the Goods, at no cost to Firmac, separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as Firmac’s property in respect of the relevant order or delivery to which they relate;

2.3          not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

2.4          maintain the Goods in satisfactory condition and keep them insured on Firmac’s behalf for their full price against all risks to the reasonable satisfaction of Firmac.  On request the Buyer shall produce the policy of insurance to Firmac together with evidence that any premiums have been paid and are up to date.

3         The Buyer’s right to possession of the Goods shall terminate:-

3.1          forthwith on notice from Firmac if the Buyer is in default of any of its obligations under this Contract or any other contract with Firmac or if Firmac has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to it on the due date; or

3.2          automatically upon the Buyer suffering an Insolvency Related Event.

4         If payments received from the Buyer are not stated to refer to a particular invoice Firmac may appropriate such payments to any outstanding invoice.

5         Notwithstanding that the Goods remain the property of Firmac the Buyer may sell or use the Goods in the ordinary course of the Buyer's business (but excluding creating a charge or similar security over the Goods) at full market value for the account of Firmac. Any such sale or dealing shall be a sale or use of the Firmac's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from Firmac the entire proceeds of sale or otherwise of the Goods shall be held in trust for Firmac and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as Firmac's money.

6         Firmac shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Firmac.

7         The Buyer grants Firmac, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

8         Where Firmac is unable to determine whether any Goods are the Goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all Goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.

9         On termination of the Contract, howsoever caused, Firmac’s, but not the Buyer’s, rights contained in this condition 8 shall remain in effect.

limitation of liability

1         Nothing in the Contract limits either party’s liability for death or personal injury, for fraud or fraudulent misrepresentation, or for any other liability to the extent it may not be excluded or limited by law.

2         Subject to condition 9.1, neither party shall be liable to the other for any special, indirect, consequential or pure economic loss, loss of turnover, profits (save as incorporated into the price of the Goods) or goodwill, whether or not the loss in question would arise in the ordinary course of events or was in the contemplation of the parties as at the date of the Contract, is reasonably foreseeable or otherwise.

3         Subject to conditions 9.1 and 9.2, Firmac’s total liability to the Buyer in contract, tort (including in negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance or lack of performance of the Contract, supply of the Goods or otherwise shall be limited to the price paid for the Goods (in aggregate).

4         All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to any implied condition that Firmac has or will have the right to sell the Goods when the property is to pass.

5         This condition 9 shall survive termination or expiry of the Contract for whatever reason.

Buyer materials and bespoke goods

1      The Buyer shall ensure that the Buyer Materials are complete, accurate and fit for purpose and that it provides the Buyer Materials to Firmac within sufficient time to enable Firmac to perform the Contract.

2      The Buyer shall indemnify and keep Firmac indemnified against any liabilities incurred by Firmac pursuant to:-

2.1       Firmac’s use of any of the Buyer Materials to manufacture Bespoke Goods; or

2.2       the supply or delivery by Firmac of Bespoke Goods which have been manufactured using the Buyer Materials,

including pursuant to an infringement, or alleged infringement, of any third party Intellectual Property Rights by that use, manufacture, supply or delivery.

3      The Buyer acknowledges that Firmac is unable to resell or use Bespoke Goods and therefore in the event of termination of the Contract pursuant to the Buyer’s breach Firmac will be unable to mitigate its losses by reselling or reusing the Bespoke Goods.

TERMINATION

1      The Contract shall terminate immediately if the Buyer:-

1.1        suffers an Insolvency Related Event;

1.2        commits a material breach of the Contract which is incapable of remedy; or

1.3        commits a material breach of the Contract which is capable of remedy and which is not remedied within 30 days after Firmac has given written notice requiring such breach to be remedied.

2      For the purposes of condition 11.1 the Buyer shall be deemed (without limitation) to have committed a material breach if it fails to pay the price of the Goods:-

2.1       within 30 days from the date that payment become due and payable under condition 6.2; or

2.2       in accordance with condition 6.2 on more than three occasions.

3      Termination of the Contract shall not affect rights and duties accrued before termination or those conditions which expressly or impliedly survive termination.

GENERAL

1      Each right or remedy of Firmac under the Contract is without prejudice to any other right or remedy of Firmac, whether or not under the Contract.

2      If any provision of the Contract (including any provision of condition 9) is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.

3      Failure or delay by Firmac in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.

4      Any waiver by Firmac of any breach by the Buyer is not a waiver of any subsequent breach.

5      Any notice to be given by either party to the other under these Conditions must be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified for these purposes.

6      Notices addressed to Firmac shall be marked for the attention of [                                 ].

7      Notices shall be delivered personally or sent by first class post or sent by facsimile transmission.

8      A notice is deemed to have been received:-

8.1       if delivered personally, at the time of delivery;

8.2       if sent by prepaid first class post, on the second working day after posting (exclusive of the day of posting);

8.3       if sent by facsimile transmission, on a working day prior to 4.00pm at the time of completed transmission and otherwise on the next working day.

9      The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.

10   Firmac may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.

11   The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.

12   The English text shall be the definitive and authoritative version of these Conditions and shall prevail over any translation into another language.

entire agreement

Except that this condition 13 does not affect the liability of either party for fraudulent misrepresentation:

1      the Contract constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior representations, agreements, negotiations or understandings between the parties; and

2      each party agrees that in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract.

ENGLISH LAW

The Contract shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.