1. INTERPRETATION
1.1 In these Conditions:
'BUYER' means the person who accepts a quotation or sales order of the Company for the provision of Services and/or the sale of the Goods or whose order for the Goods and/or Services is accepted by the Company.
'GOODS' means the goods (including any instalment of the goods or any parts for them) that the Company is to supply in accordance with these Conditions.
'SERVICES' means the Services to be supplied by the Company where specified in any order and which is subject to these Conditions.
'COMPANY' means Four County Services Ltd.
'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 Company.
'CONTRACT' means any contract for the purchase and sale of the Goods and/or the provision of Services and shall compromise these Conditions and any order.
'WRITING' includes facsimile transmissions e-mail and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Company shall sell and the Buyer shall purchase the Goods and/or Services in accordance with any written quotation of the Company which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Company, subject in either case to these Conditions, which shall govern all Contracts and all supplies made to the Buyer 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 The Buyer hereby accepts that these Conditions shall apply to all Contracts between the Company and the Buyer.
2.3 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Company.
2.4 The Company's employees or agents are not authorised to make any representations concerning the Goods or the Services. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations (unless fraudulent).
2.5 Subject to clause 8.1 any advice or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents (whether written or oral) in respect of the Goods and/or Services is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Company unless and until the Company issues an acknowledgement of order or commences to perform its obligations under the Contract whichever is the sooner.
3.2 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Company any necessary information relating to the Goods or Services within sufficient time to enable the Company to perform the Contract in accordance with its terms. The Buyer warrants to the Company that it has satisfied itself without relying on the Company (or its employees or agents) that the Goods and/or Services meet the Buyer’s specification and are fit for the purpose the Buyer intends for them and the Buyer will indemnify the Company if the Company suffers any loss as a result of the Buyer misusing the Goods or using them for any purpose for which they are not suited.
3.3 The quantity, quality and description of and any specification for the Goods and the description of the Services shall be those set out in the Company's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Company).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Buyer:-
3.4.1 the Buyer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company's use of the Buyer's specification; and
3.4.2 the Company shall have no liability in respect of any defect in the Goods in respect of any specification supplied by the Buyer.
3.5 The Company reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform to any applicable safety or other statutory requirements or, where the Goods and/or Services are to be supplied to the Company's specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in Writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods and the Services shall be the Company's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company's published price list current at the date of dispatch of the order. Where the Goods are supplied for export from the United Kingdom, the Company's published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time the Company may alter them without giving notice to the Buyer.
4.2 Except as otherwise stated under the terms of any quotation or in any price list of the Company, and unless otherwise agreed in Writing between the Buyer and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees (as agent of the Buyer) to deliver the Goods to the Buyer's premises or such other address as the Buyer may direct, the Buyer shall be liable to pay the Company's charges (plus any applicable value added tax) for transport, packaging documentation fees and insurance. The Company will use its reasonable endeavours to provide a reasonable estimate of all such expenses upon the request of the Buyer.
4.3 The price of the Goods and Services is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Company.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Company, the Company shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
5.2 Unless otherwise agreed the Buyer shall pay the price of the Goods and Services upon delivery of the Goods to the Buyer. The Buyer shall not be entitled to make any deduction from such payment or exercise any right of set off or counterclaim howsoever arising. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request and only the Company's official receipt or cash credit advice note shall constitute a valid receipt.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.3.1 cancel the Contract and enter the Buyer’s premises to recover the Goods and/or suspend any further deliveries or further performance of the Services to the Buyer;
5.3.2 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 Company) or Services as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of two per cent per calendar month on any account which remains outstanding after the thirtieth day following the date of invoice, such interest to accrue from the date of delivery until payment in full is made.
5.3.4 recover from the Buyer all costs charges and expenses howsoever incurred in collecting payment of any overdue account.
6. DELIVERY
6.1 Delivery of the Goods shall be made by the Company delivering the Goods to the Buyer's premises or some other place for delivery as notified in Writing by the Buyer to the Company or by the Buyer collecting the Goods at the Company's premises.
6.2 The Services shall be performed at the Buyer's premises or such other premises as the Buyer shall notify in Writing to the Company.
6.3 Any dates quoted for delivery of the Goods or performance of the Services are approximate only and the Company shall not be liable for any such delay howsoever caused. Time for delivery or performance shall not be of the essence. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company 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.
6.5 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company's reasonable control or the Buyer's fault, and the Company is accordingly liable to the Buyer, the Company'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.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Company 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 Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 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 and in addition the Buyer shall indemnify the Company against all costs claims expenses or damages howsoever arising as a result of the Buyer's failure to take or delay in taking delivery.
7. RISKS AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 In the case of Goods to be delivered at the Company's premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or
7.1.2 In the case of Goods to be delivered otherwise than at the Company's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
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 Company has received in cash or cleared funds payment in full of the price of the Goods and the Services (if any) and all other goods agreed to be sold by the Company to the Buyer 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 Company'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 Company's property in such a manner as to preserve the proper shelf life of the Goods. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
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 Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company 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 and the Buyer hereby grants the Company a licence to enter upon any such premises for the purpose of repossessing the Goods.
7.5 If the Goods are incorporated into other products the property in those other products is upon such incorporation ipso facto transferred to the Company and the Buyer as bailee of them for the Company will store the same for the Company in a proper manner without charge to the Company.
7.6 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 Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Company warrants that the Goods will correspond with the Company’s quoted technical specification at the time of delivery and will be free from defects in material and workmanship for a period of 1 year.
8.2 The above warranty is given by the Company subject to the following conditions:
8.2.1 The Company shall be under no liability in respect of any defect in the Goods howsoever caused arising from:-
8.2.1.1 the installation or operation of any operating system by the Buyer (or by a third party at the Buyer’s direction);
8.2.1.2 the installation or operation of any software program by the Buyer (or by a third party at the Buyer’s direction) which fails to work or causes the Goods or any software loaded by the Company on the Goods (where relevant) not to work;
8.2.1.3 any contracted virus or any other software of a contaminating or destructive property;
8.2.1.4 from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions relating without limitation to the use and application of the Goods (whether oral or as set out in the Company's instruction booklet accompanying the Goods or as otherwise in Writing), misuse or alteration or repair of the Goods without the Company's approval;
8.2.2 The Company shall be under no liability under the warranty in clause 8.1 above (or, any other warranty, condition or guarantee) if the total price for the Goods and Services has not been paid by the due date for payment;
8.2.3 The warranty in clause 8.1 above does not extend to:-
8.2.3.1 parts, materials or equipment not supplied by the Company; or
8.2.3.2 software written by a third party which is loaded on to the Goods or provided by the Company in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier (as appropriate) to the Company;
8.2.4 The Company shall be under no liability under the warranty in clause 8.1 above where the Buyer fails to store the Goods in such a manner as shall in the opinion of the Company be consistent with preserving the proper shelf life of the Goods.
8.3 The Company warrants that the Services will be performed using reasonable skill and care and as far as reasonably possible in accordance with the terms of the order or any specification.
8.4 Subject as expressly provided in these Conditions, and except where 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.
8.5 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.
8.6 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 the Company’s quoted technical specification shall (whether or not delivery is refused by the Buyer) be notified to the Company within 5 working days inclusive of the day of delivery and shall be confirmed in Writing within 10 working days inclusive of the day of delivery. Time to be of the essence in both cases. If delivery is not refused, and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company 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.
8.7 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 the Company’s quoted technical specification is notified to the Company in accordance with clause 8.6, the Company shall be entitled to replace or repair the Goods (or the part in question) free of charge or, at the Company's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), subject to the provisions of clause 8.7.1 to 8.7.4 (inclusive) and the Company shall have no further liability to the Buyer:
8.7.1 If the Company ascertains that the defect was caused by any of the circumstances in clause 8.2.1, or there is a defect for which the Company is not responsible, the Company reserves the right to charge the Buyer a consultancy fee at the then-current list price for the time spent investigating the defect and for any collection and/or delivery charges incurred by the Company;
8.7.2 Whether or not there is a defect in the Goods, the Company shall be entitled to charge the Buyer (at the then-current list price) for the time spent reloading data and software on the Goods after any defect investigation;
8.7.3 Under no circumstances will the Company be liable for any loss, damage, expenses suffered or incurred by the Customer as a result of any time during which the Goods are unavailable for use by the Buyer whilst the defect is being investigated or corrected;
8.7.4 The Buyer’s attention is drawn to clause 8.8 which shall apply to this clause 8.9.
8.8 The Company takes all reasonable care with the Buyer’s data however, the Company shall be under no liability in respect of any loss or corruption of the Buyer's data arising out of or in connection with the performance of the Contract, the failure or defect in the Goods or the performance of the Services. The Buyer shall at its own expense retain duplicate copies of all data and insure against accidental loss or damage, however caused.
8.9 Except in respect of death or personal injury caused by the Company's negligence, the Company 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 Company, 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 or the performance of the Services, except as expressly provided in these Conditions and the total liability of the Company will be limited to the price of the Contract.
8.10 The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Company's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company's reasonable control:
8.10.1 Act of God, explosion, flood, tempest, fire or accident;
8.10.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.10.3 Acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.10.4 Import or export regulations or embargoes;
8.10.5 Strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
8.10.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.10.7 Power failure or breakdown in machinery and in all such cases the Company shall give notice in Writing to the Buyer accordingly. If any such delay or delays shall continue for a period exceeding twelve weeks to hinder the Company's performance of the Contract then the Buyer may by notice in Writing terminate the Contract in respect of any unperformed portion thereof provided always that where the Company is unable to terminate its contracts with its suppliers the Buyer shall not be entitled to terminate the Contract.
8.11 Without prejudice to the generality of the foregoing it shall be the sole responsibility of the Buyer to ensure that the Goods comply with all the requirements whether statutory or otherwise of the location in which they are to be used and for the avoidance of doubt the Company gives no warranty in this respect.
9. INDEMNITY 9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Company shall indemnify the Buyer against all loss, damages, cost and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:9.1.1 The Company is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 The Buyer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
9.1.4 The Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 The Company shall be entitled to the benefit of, and the Buyer shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6 Without prejudice to any duty of the Buyer at common law, the Company shall be entitled to require the Buyer to take such steps as the Company may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Company is liable to indemnify the Buyer under this clause.
10. INSOLVENCY OF BUYER
10.1 This clause applies if:
10.1.1 The Buyer makes any voluntary arrangement 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 purposes of amalgamation or reconstruction); or
10.1.2 An encumbrance 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 business; or
10.1.4 The Company reasonably apprehends that any of the events mentioned above 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 Company, the Company 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. CONFIDENTIALITY
11.1 The Company acknowledges that during the performance of the Contract it may have access to sensitive or confidential data of the Buyer’s. The Company undertakes to keep such data confidential.
11.2 The provisions of clause 11.1 shall not apply to the said data which is:
11.2.1 in or enters the public domain other than through a breach of this Contract;
11.2.2 obtained from a third party who is lawfully authorised to disclose such information; or
11.2.3 authorised for release by prior written consent of the relevant party.
11.3 Nothing in this clause 11 will be construed so as to prohibit the disclosure of such data to the extent that such disclosure is required by law or valid order of a court or other governmental authority provided that the Company responding shall first have given notice to the Buyer and shall have taken reasonable steps to consult with the Buyer in respect of the method of disclosure (subject to it not being unlawful for the Company to give such notice).
12. GENERAL
12.1 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 the notice and shall be deemed received, in the case of the first class prepaid letter post three days after posting and, in the case of any other means of communication, immediately upon transmission by the sender to the recipient.
12.2 No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 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 the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
12.4 Each party acknowledges that the Contract contains the whole agreement between the parties and that the Buyer has not relied on any oral or written representations made to it by the Company, its employees or agents.
12.5 The Contract shall be governed and interpreted by English Law and any dispute arising under or in connection with these Conditions or the sale of the Goods or the performance of the Services shall be dealt with under the jurisdiction of the English Courts.
12.6 The parties do not intend that any term in these Conditions shall be enforceable by virtue of the Contract (Rights of the Third Parties) Act 1999 by any person who is not a party to the Contract.