In these Conditions:
“Buyer“ means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller
“Goods” means the goods (including any instalment of the goods or any part of them) which the Seller is to supply in accordance with these Conditions
“Seller” means Forster Ecospace Limited
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller
“Contract” means the contract for the purchase and sale of the Goods.
2 Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is excepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed and acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
3 Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless confirmed in writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specifications) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including the cost of all labour and materials used), damages and expenses and loss of profit incurred in by the Seller as a result of the cancellation.
4 Price of the goods
4.1 The price of the Goods shall be the Seller‘s quoted price. All prices quoted are valid for 90 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
5 Terms of payment
5.1 Subject to any special terms agreed in writing, the Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice which shall be rendered on delivery of the Goods or completion of the installation of the Goods where this is to be provided by the Seller whichever is the later. The installation shall be completed when in the Seller’s absolute discretion the installation is available for use by the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.2 If the Buyer fails to make payment on the date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 48 % per annum above Lloyds Bank base rate from time to time, until payment is made.
6.1 Before the Goods are installed or delivered by the Seller the Buyer shall at its own expense and responsibility:
6.1.1 carry out all works that may be necessary in order to prepare the location at which the Goods are to be installed for their receipt and installation, including but not limited to the provision of a level, even and sound floor to permit the proper and safe usage of the goods and provide sufficient light, power, water and other services including secure and waterproof storage facilities for the Goods pending installation and the Sellers or its agents plant, equipment, tools and materials required in connection with such installation
6.1.2. save as otherwise agreed obtain all necessary statutory or other consents and approvals for the installation of the Goods.
6.2 Any dates quoted for delivery and installation of the Goods are approximate only and the Seller shall not be liable for any delay in delivery or installation of the Goods howsoever caused. Time for delivery or installation shall not be of the essence unless previously agreed by the Seller in writing.
6.3 Where the Goods are to be delivered or installed in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of 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 repudiated.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for 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:
6.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage: or
6.5.2 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.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time when they are delivered to the Buyer’s premises or the installation address.
7.2 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 for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
7.4 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.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.1 Subject as expressly provided in these Conditions, and except when the Goods are sold to a person dealing as a consumer ( within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Where the Goods are sold under a consumer transaction (as Defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage ( whether for loss of profit or otherwise) , costs, expenses, or other claims for consequential compensation whatsoever ( and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control, without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4 Import or export regulations or embargoes;
8.6.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery.
8.7 The Seller shall not be liable to the Buyer for any damage caused to the Goods or any objects placed thereon or for any other damage or loss whatsoever including any consequential loss arising out of the Buyers failure to:
8.7.1 Use the Goods in accordance with the Seller’s specification or instruction
8.7.2 Provide a structure of sufficient load bearing capacity for the Goods including any objects placed thereon.
8.8 The Buyer warrants that the walls, floor, fabric and other parts of the structure of the premises at which the Goods are to be installed are of sufficient load bearing capacity for the Goods and any objects placed thereon and any equipment used by the Seller or its agent at the premises for the purpose of installing the Goods.
9 Intellectual Property
9.1 Any drawing, plan, design work, specification or other material including any retained or stored on any computer software either prepared or supplied by the Seller for any purpose whatsoever in connection with the sale or proposed sale of Goods to the Buyer shall at all times remain the property of the Seller and shall not be used or copied by the Buyer for any purpose other than one immediately connected with the supply of the Goods.
10 Insolvency of the Buyer
10.1 This clause applies if:
10.1.1 The Buyer makes any voluntary arrangements with its creditors or becomes subject to an administration order or ( being an individual or firm ) becomes bankrupt or ( being a company ) goes into liquidation ( otherwise than for the purpose of amalgamation or reconstruction ); or
10.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 The Buyer ceases, or threatens to cease, to carry on the business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned in the foregoing is about to occur in relation to the Buyer and notifies the Buyer accordingly
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.1 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 or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
11.2 No waiver by the Seller or any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of any other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.