TERMS AND CONDITIONS OF SALE
1.1 In these Terms and Conditions:
“Buyer” means the person(s) or company that purchases the Goods from Fieger;
“Contract” means any contract between Fieger and the Buyer for the sale and purchase of the Goods, incorporating these Terms and Conditions;
“Fieger” means Fieger Limited a company incorporated in England under number 6092433 with registered office at Swatton Barn, Badbury, Swindon, Wiltshire SN4 0EU; and
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by Fieger (including any part or parts of them).
1.2 In these Terms and Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Terms and Conditions headings are for convenience only and do not affect the construction of these Terms and Conditions.
2. Application of terms
2.1 Subject to any variation under clause 2.3 the Contract will be on these Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Terms and Conditions apply to all Fieger’s sales and any variation to these Terms and Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the Managing Director of Fieger.
2.4 Each order for Goods by the Buyer from Fieger shall be deemed to be an offer by the Buyer to purchase Goods subject to these Terms and Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by Fieger until a written acknowledgement of order is issued by Fieger or (if earlier) Fieger delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until Fieger despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 120 days only from its date, provided that Fieger has not previously withdrawn it.
2.8 The attention of the Buyer is drawn particularly to clause 10 in which the liability of Fieger under the Contract is limited.
3.1 The description of the Goods shall be as set out in Fieger’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by Fieger and any descriptions or illustrations contained in Fieger’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4.1 Unless otherwise agreed in writing by Fieger delivery of the Goods shall take place at the Buyer’s place of business.
4.2 The Buyer will pay the full costs of delivery of the Goods from Fieger’s warehouse in Germany to the Buyer’s place of business.
4.3 Any dates specified by Fieger for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.4 Fieger may at its discretion deliver the Goods by instalments and in any sequence but will use its reasonable endeavours to deliver the Goods in accordance with any schedule provided by the Buyer. Fieger does not accept liability for any delay caused by its failure to deliver the Goods in accordance with such schedule.
4.5 Subject to the other provisions of these Terms and Conditions Fieger will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of any one or more instalments of the Goods (even if caused by Fieger’s negligence), nor will any such delay entitle the Buyer to terminate or rescind the Contract in respect of any of the Goods previously delivered or undelivered. Any one instalment may be terminated if it is delayed by more than 90 days.
4.6 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Fieger is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods will pass to the Buyer (including for loss or damage caused by Fieger’s negligence);
(b) the Goods will be deemed to have been delivered; and
(c) Fieger may store the Goods until delivery when the Buyer will be liable for all related costs and expenses.
4.7 The Buyer will provide at its expense at the place where delivery takes place adequate and appropriate equipment and manual labour for unloading the Goods.
4.8 If Fieger delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by Fieger the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
5.1 The quantity of any consignment of Goods as recorded by Fieger upon despatch from Fieger’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Fieger shall not be liable for any non-delivery of Goods (even if caused by Fieger’s negligence) unless written notice is given to Fieger within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of Fieger for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. Risk and title
6.1 The Goods are at the risk of the Buyer from the time of delivery (i.e. from the time when unloading begins).
6.2 Ownership of the Goods shall not pass to the Buyer until Fieger has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to Fieger from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as Fieger’s Bailee;
(b) store the Goods (at no cost to Fieger) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Fieger’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition insured on Fieger’s behalf for their full price against all risks to the reasonable satisfaction of Fieger. On request the Buyer shall produce the policy of insurance to Fieger; and
(e) hold the proceeds of the insurance referred to in clause 6.3 (d) on trust for Fieger and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between Fieger and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
6.5 Fieger shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Fieger.
6.6 The Buyer grants Fieger, 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.
7.1 Unless otherwise agreed by Fieger in writing the price for the Goods shall be the price set out in Fieger’s price list published on the date of delivery or deemed delivery. Fieger may make changes to its published price list at any time.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to delivery.
7.3 Where Fieger is unable to obtain credit insurance at a premium acceptable to Fieger in respect of any order made by the Buyer, Fieger may require 50% of the price for the Goods to be paid within 14 days of its acceptance of the Buyer’s order. The remaining 50% must be paid to Fieger prior to delivery of the Goods.
8.1 Payment for the Goods is due within 30 days of the date of Fieger’s invoice.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until Fieger has received cleared funds.
8.4 All payments payable to Fieger under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Fieger to the Buyer.
8.6 If the Buyer fails to pay Fieger any sum due under the Contract then (a) the Buyer will be liable to pay interest to Fieger on such sum from the due date for payment at the rate set by order of the Secretary of State from time to time for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis until payment is made, whether before or after any judgment and (b) Fieger may, without prejudice to any available remedy and without prior notice to Fieger, re-sell any Goods that have been appropriated to the Contract and which Fieger has not paid for.
9.1 Where Fieger is not the manufacturer of the Goods, it will use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to Fieger.
9.2 Where Fieger is the manufacturer of the Goods it warrants that (subject to the other provisions of these Terms and Conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods will:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
(b) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that purpose to Fieger in writing and Fieger has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of Fieger.
9.3 Fieger shall not be liable for a breach of any of the warranties in clause 9.2 unless:
(a) the Buyer gives written notice of the defect to Fieger, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) Fieger is given a reasonable opportunity, after receiving the notice, of examining such Goods and the Buyer (if asked to do so by Fieger) returns such Goods to Fieger’s place of business at the Buyer’s cost for the examination to take place there.
9.4 Fieger shall not be liable for a breach of any of the warranties in clause 9.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow Fieger’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of Fieger.
9.5 Subject to clauses 9.3 and 9.4 if any of the Goods do not comply with any of the warranties in clause 9.2 Fieger shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Fieger so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to Fieger.
9.6 If Fieger complies with clause 9.5 it shall have no further liability for a breach of any of the warranties in clause 9.2 in respect of such Goods.
9.7 Any Goods repaired or replaced will be guaranteed on these terms for the unexpired portion of the 12 month period.
10. Limitation of liability
10.1 Subject to clause 9, the following provisions set out the entire financial liability of Fieger (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Terms and Conditions; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Terms and Conditions excludes or limits the liability of Fieger for death or personal injury caused by Fieger’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 10.4
10.4 Subject to clauses 10.2 and 10.3:
(a) Fieger’s total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the amount paid by the Buyer to Fieger during the 12 month period immediately preceding the date of the claim; and
(b) subject to clause 10.4 (a), Fieger shall be liable to the Customer in respect of direct loss or damage caused by the acts or omissions of Fieger, its employees, agents or sub-contractors, other than Excluded Loss. In this clause the expression “Excluded Loss” means all special loss (whether or not the possibility of such loss arising on a particular breach of contract or duty has been brought to the attention of Fieger at the time of making the Contract) and all third party claims, economic loss or other loss of business, production, revenue, profit, goodwill or anticipated savings and loss of data, whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
10.5 For the avoidance of doubt, in no event shall either party be liable to the other for any indirect or consequential loss of any nature and howsoever caused.
10.6 The Buyer acknowledges that the prices charged by Fieger for the Goods have been calculated on the basis that Fieger may rely upon the exclusions and limitations of liability set out in this clause.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Fieger.
11.2 Fieger may assign the Contract or any part of it to any person, firm or company.
12. Force majeure
Fieger reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Fieger including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to Fieger to terminate the Contract.
13.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post:
(a) (in case of communications to Fieger) to its registered office or such changed address as shall be notified to the Buyer by Fieger; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to Fieger by the Buyer.
13.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery.
13.3 Communications addressed to Fieger shall be marked for the attention of the Managing Director.
14. Right to cancel
14.1 If the Buyer is not acting in the course of business when it buys the Goods at a distance it has the right to cancel its order with Fieger without charge by notice in writing to Fieger within 7 working days of delivery of the Goods. This right may not apply where the Buyer purchases from Fieger bespoke Goods made to the Buyer’s order. The Buyer must, however, take reasonable care of the Goods and return them to Fieger at its own cost.
14.2 If the Buyer is not acting in the course of business when it buys the Goods at a distance Fieger agrees to reimburse the Buyer, free of charge within 30 days of notification of cancellation, the purchase price paid for the Goods. Fieger reserves the right to charge the Buyer for the cost of recovering any Goods that the Buyer does not return (which will be by deduction from the purchase price).
15.1 Each right or remedy of Fieger under the Contract is without prejudice to any other right or remedy of Fieger whether under the Contract or not.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by Fieger in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by Fieger of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.4 Any person, firm or company that is not a party to the Contract may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15.5 All aspects of the Contract and these Terms and Conditions shall be governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.