1.1 In these Terms and Conditions, the below terms have the following meaning:
1.1.1 “Authorised Representative” means a manager or a director of the Seller/the Buyer with the authority to act on behalf of the Seller/the Buyer in a relevant matter.
1.1.2 “Business Day” means any day other than a Saturday, a Sunday or a public/bank holiday in the UK.
1.1.3 “Buyer” means a person that accepts a quotation of the Seller for the sale of Products/the provision of Services and whose Order for Products/Services is accepted by the Seller.
1.1.4 “Conditions” mean the terms and conditions of sale set out in this document together with any special terms and conditions agreed in writing between the Buyer and the Seller.
1.1.5 “Confidential Information” means all data relating to the Seller’s, its associated or group company’s technical or business matters, including customers, suppliers, business plans, prices, finances, marketing, market opportunities, computer systems, software, manufacturing processes, Product information (including Intellectual Property Rights), new product details, research, development, and such other matters as may be reasonably regarded by the Seller or its associated or group company as confidential.
1.1.6 “Contract” means a contract of sale under Conditions mutually agreed by the Parties.
1.1.7 “Deposit” means any money payable by the Buyer to the Seller as a first instalment in respect of Products and/or Services.
1.1.8 “Intellectual Property Rights” mean all rights and any interest in any patents, designs, trademarks, copyright, know-how, trade secrets and any other proprietary rights of intellectual property related to any concept, idea, data, software, formula, design, system, process or other matters existing or conceived, used, developed or produced.
1.1.9 “On-Event Services” mean any services provided by the Seller away from the Seller’s premises.
1.1.10 “Order” means an Order submitted by the Buyer in the form approved by the Seller.
1.1.11 “Party” means the Seller or the Buyer and “Parties” mean the Seller and the Buyer.
1.1.12 “Premises” mean Fiba Tech Industries Limited, Willmotts Business Park, Waterlip near Shepton Mallet, Somerset, BA4 4RN, UK and any other permanent place of business operations of the Seller.
1.1.13 “Products” mean goods specified in the Order.
1.1.14 “Seller” means Fiba Tech Industries Limited (registered in England and Wales under 03088819 and hereinafter referred to as “FTI”) and any other company which is a subsidiary or a holding company of FTI or a subsidiary of FTI’s holding company at the material time.
1.1.15 “Services” mean any services specified in the Order.
1.1.16 “Tooling” means jigs, moulds, casts, patterns, test equipment or other items used by the Seller in connection with any Order.
1.1.17 “Written” or “in writing” means communication by e-mail, cable, facsimile transmissions and any other comparable form of communication.
1.2 Any reference in this document to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the material time.
1.3 The headings to the clauses in this document are for convenience of reference only and shall not affect the meanings or construction of anything contained in this document.
1.4 References to the singular include the plural and vice versa and references to the masculine include the feminine and vice versa. References to persons include natural persons, corporate bodies, unincorporated associations and partnerships whether or not having a separate legal identity.
2.1 The sale of Products/the provision of Services shall be governed by any Order submitted by the Buyer and accepted by the Seller and by the Conditions defined in clause 1.1.4.
2.2 Quotations represent an invitation to treat, but do not form an offer. Unless agreed in writing by the Parties otherwise, a price given in any quotation shall remain valid for thirty (30) days from the date of issue or the date the quotation is withdrawn, if earlier.
2.3 A Deposit may be required at placing an Order.
2.4 No variation to these Conditions shall be binding unless agreed in writing between by the Parties.
2.5 Unless otherwise agreed in writing, the Seller’s staff members or agents other than the Seller’s Authorised Representative(s) are not authorised to make any representations concerning Products/Services. The Buyer hereby acknowledges that it does not rely on any such representations.
2.6 Any advice or recommendation given by the Seller as to the storage, application or use of Products/Services which is not confirmed in writing by the Seller is acted on entirely at the Buyer’s own risk.
2.7 Descriptions and illustrations contained in catalogues, price lists, leaflets or other materials produced by the Seller in any form do not constitute part of the Contract. Any description or sample of Products and/or Services is by way of identification only and does not represent a sale by description or sample.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 No Order placed by the Buyer shall be deemed accepted by the Seller until it is confirmed in writing by an Authorised Representative of the Seller.
3.2 The Buyer shall be responsible for the accuracy of its Order (including any applicable specification), and for the timely provision of all information on Products and/or Services essential to Contract performance.
3.3 The Buyer shall be responsible for complying with all legislative and regulatory requirements governing the import of Products into the country of destination and for the payment of any associated duties.
3.4 The Buyer shall indemnify the Seller against the cost of drawing design incurred by the Seller and/or any loss, damages, costs and/or expenses incurred by the Seller in connection with any infringement of another person’s Intellectual Property Rights resulting from the Seller’s use of the Buyer’s specification.
3.5 If the Seller believes that changes in the drawing design and/or specification of Products and/or Services will improve the safety or performance of the Products/the Services, the Seller shall not make such changes without the Buyer’s prior written consent. If the Buyer’s consent is granted, the Seller shall be entitled to charge any costs associated with such changes to the Buyer.
3.6 With the Buyer’s written consent, the Seller shall be entitled to subcontract any part of the design or manufacturing of Products and to subcontract the provision of Services. The Buyer’s consent will not be unreasonably withheld or delayed.
3.7 The Buyer shall not cancel any Order accepted by the Seller unless an Authorised Representative of the Seller has agreed to the cancellation in writing. The Deposit and all payments made to the date of the agreed cancellation shall be forfeited to the Seller, and the Buyer shall indemnify the Seller in full against all losses, damages, costs and expenses incurred by the Seller.
4.1 The price of Products and/or Services shall be the Seller’s quoted price. All prices quoted are valid for thirty (30) days only or until the Buyer’s acceptance, if earlier.
4.2 The Seller reserves the right, by giving notice to the Buyer before delivering the Products and/or before providing the Services, to adjust the price of the Products and/or the Services to reflect any unavoidable additional expenses not already included in the price.
4.3 Unless agreed by the Parties in writing otherwise, all prices are given on the basis that the delivery of Products is ex works, and where the Seller agrees to deliver the Products otherwise than at the Premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable Value Added Tax (“VAT”). The Buyer shall pay VAT to the Seller or, where applicable, directly to the relevant authorities.
4.5 Any quotation/price given by the Seller in any currency other than the pound sterling serves as guidance only.
4.6 The price for the Products and/or the Services only covers delivery on the Seller’s Business Days during normal business hours. Where the delivery/collection of the Products and/or the Services is made at any time outside normal business hours, the price will be increased accordingly.
5. PAYMENT TERMS
5.1 The Seller shall be entitled to invoice the Buyer for the price of the Products and/or the Services on or at any time after accepting the Buyer’s Order.
5.2 A Deposit paid in relation to an accepted Order is non-refundable. The Deposit must be paid in accordance with the payment schedule stipulated in the Order.
5.3 The Buyer shall pay the full price of the Products and/or the Services, VAT and all other applicable duties and charges without deductions or offset on or before the due date specified in the Order and prior to delivery/despatch or performance at the latest. The time of payment of the price shall be of the essence.
5.4 Where any costs are incurred after delivery or performance, the Buyer shall indemnify the Seller against all such costs within fifteen (15) days of the end of the month in which the Seller’s invoice is issued.
5.5 If the Buyer fails to make payment on the due date, the Seller shall be entitled to exercise all and any of the following remedies with immediate effect:
5.5.1 To suspend its contractual obligations;
5.5.2 To cancel the Contract and forfeit any Deposit and other payments made by the Buyer;
5.5.3 To sell the Products at the best price readily obtainable and, after deducting its reasonable costs, charge the Buyer for any shortfall between the price obtained and the price due under the Contract;
5.5.4 To appropriate any payment made by the Buyer for any products/services supplied under any contract between the Buyer and the Seller as the Seller sees fit;
5.5.5 To charge the Buyer compound interest on the amount unpaid under the Late Payment of Commercial Debts (Interest) Act 1998 until payment in full is made together with all costs and expenses incurred by the Seller in connection with collecting overdue monies; and
5.5.6 Where the Seller has not cancelled the Contract, to suspend any further deliveries of the Products and/or any further provision of the Services to the Buyer. The Seller shall deliver such Products and/or Services to the Buyer within a reasonable time period after the Buyer has paid all monies due (including accrued interest) in full.
5.6 If the Buyer does not make payment in the currency agreed under the Contract (hereinafter referred to as the “Contractual Currency”), the Seller shall convert the payment into the Contractual Currency at the exchange rate prevailing at the bank used by the Seller from time to time. If the Seller receives less than full payment in the Contractual Currency, the Buyer shall pay the shortfall upon demand.
5.7 The Buyer shall pay on demand all receiving bank charges charged to the Seller from time to time in respect of the Contract.
5.8 Each Contract with the Buyer is subject to the Seller being satisfied with the Buyer’s credit status. The Seller is entitled to carry out enquiries with a licensed credit reference agency before processing the Buyer’s Order. If the Seller becomes dissatisfied with the Buyer’s credit status, the Seller may require security for payment before any Order.
6.1 The Products and/or the Services shall not be delivered and/or provided until any agreed milestone payment is made in full by the Buyer.
6.2 Any date or period quoted for the delivery of the Products and/or the provision of the Services by the Seller represents an estimate only and is not binding on the Seller. Delivery time shall not be of the essence unless agreed in writing by the Parties. The Seller may deliver the Products in advance of the quoted delivery time upon giving reasonable notice to the Buyer.
6.3 Where the Products are to be packed by the Seller, the Seller exercises its discretion in all matters related to packaging. If the Buyer requests packaging other than that included in the price, the Buyer will bear the increased cost of the packaging.
6.4 Where the Products are delivered in instalments, each delivery represents a separate Contract.
6.5 If the Seller fails to deliver the Products/the Services for any reason other than the Buyer’s fault/any other circumstances beyond the Seller’s control, the Seller’s liability shall be limited to the excess of the lowest cost of similar products and/or services in the relevant market needed to replace those not delivered/performed over the price of the Products and/or the Services.
6.6 If the Buyer requests postponed delivery, refuses delivery made in accordance with the Contract, fails to collect the Products when notified of their availability, or fails to provide the Seller with adequate delivery instructions, then:
6.6.1 With immediate effect, any risk of damage to or loss of the Products shall pass to the Buyer;
6.6.2 The Products will be considered to have been delivered;
6.6.3 The Seller may store the Products until their delivery at the Buyer’s cost;
6.6.4 The Seller may increase the price of the Products to that applicable according to price lists in force at the time of actual delivery.
6.7 After one (1) calendar month of any postponement, of the Buyer’s refusal to accept delivery or of the Buyer’s failure to co-operate with the Seller, the Seller may:
6.7.1 Lease the Products on reasonable terms; or
6.7.2 Cancel the Contract and forfeit the Deposit and any other payments made by the Buyer and
6.7.3 Sell the Products at the best price readily obtainable and, after deducting its reasonable costs, charge the Buyer for any shortfall in price. Any payment made by the Buyer will be taken into consideration when calculating the amount charged to the Buyer.
6.8 The Buyer shall inspect the Products at the time of their delivery to ensure their compliance with contractual terms (hereinafter referred to as “Acceptance”). It is the Buyer’s responsibility to arrange for the Acceptance of the Products immediately on delivery and to sign an Acceptance receipt if requested by the Seller.
7. RISK AND PROPERTY
7.1 The risk of damage to or loss of the Products shall pass to the Buyer:
7.1.1 Where Products are delivered at the Premises, at the time when the Buyer is notified that the Products are available for collection; or
7.1.2 Where Products are delivered in a location other than at the Premises, at the time of despatch, from which point the Seller shall have no further responsibility for the loss of, damage to or deterioration of the Products. For the avoidance of doubt, the Seller shall have no liability for any such damage incurred up to and including the time of delivery. The Buyer is advised to insure against any such liability.
7.2 The property in the Products shall not pass to the Buyer until the price of all products agreed to be sold by the Seller to the Buyer and/or the price of all services to be performed by the Seller for the Buyer has been paid in full without any deductions or offset.
7.3 Until such time as the property in the Products passes to the Buyer, the Buyer shall:
a) Hold the Products as the Seller’s fiduciary agent and bailee, keeping the Products separate from those of the Buyer and third parties, properly stored and identified as the Seller’s property;
b) Not temper with any identifying mark or packaging relating to the Products;
c) Maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
d) Inform the Seller immediately if the Buyer becomes subject to any of the events listed in clause 12.1.
7.4 Until the property in the Products passes to the Buyer, the Seller shall be entitled to ask the Buyer to deliver up the Products to the Seller and, if the Buyer fails to do so forthwith, the Seller shall have the right to immediately enter any premises of the Buyer or any third party where the Products are stored to repossess the Products.
7.5 The Buyer shall not be entitled to pledge or use any of the Products which remain the Seller’s property as a security. If the Buyer does so, all monies owing by the Buyer to the Seller shall become immediately due.
7.6 If the Buyer provides property to the Seller to deliver the Products and/or the Services or for any other purpose:
7.6.1 The risk of damage to or the loss of any such property remains with the Buyer or the owner (as the case may be) and the Seller shall bear no responsibility for damage to or deterioration of such property whilst in its possession;
7.6.2 Such property shall be returned once the Seller has received payment in full for all Products and/or Services.
8. STORAGE FEE AND LIABILITY
8.1 The Seller may charge a fee agreed between the Parties for storing the Tooling at the Seller’s premises.
8.2 The Seller shall bear no liability for any defect in the Products resulting from any drawing, design or specification supplied by the Buyer except where the Products are sold to a person acting 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.
8.3 The Buyer must satisfy itself as to the suitability of the Products and/or the Services.
8.4 Any claim by the Buyer which is based on any defect in the quality of the Products or their failure to correspond with any drawing, design or specification shall be notified to the Seller within five (5) calendar days from the delivery date or where the defect or failure was not apparent on reasonable inspection, within a reasonable timescale not exceeding one (1) month after discovering the defect. If the above notification requirements are not met, the Products shall be deemed to have been delivered in accordance with the Contract.
8.5 Where any valid claim is made in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet any drawing, design or specification notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Products or the part in question free of charge or refund to the Buyer the price of the Products or a proportionate part of the price. The Seller shall have no further liability to the Buyer.
8.6 Any Products which are returned to the Seller under this document must be returned to the following address: FTI, Willmotts Business Park, Waterlip near Shepton Mallet, Somerset, BA4 4RN, UK or such other place as the Seller may from time to time specify.
8.7 The Seller is unable to provide any warranty or guarantee for Products not manufactured by the Seller and supplied by the Seller or incorporated with the Seller’s Products.
8.8 Except for death or personal injury caused by the Seller’s negligence, the Seller shall not be liable for any indirect, special or consequential loss, damage or costs in connection with the supply of the Products, their use or resale by the Buyer or the provision of the Services and the Seller’s liability under the Contract shall be limited to the price of the Products and/or the Services.
8.9 The Buyer shall be solely responsible for and shall hold the Seller fully indemnified against all claims, liabilities, losses, damages, and costs which may arise as a result of any accident or incident involving the Products or the Services sold to the Buyer. The Seller remains liable for death or personal injury resulting from its negligence.
8.10 The Buyer shall indemnify the Seller against any liability, loss and costs attributable to any breach of the Contract by the Buyer.
9. SAFETY & GENERAL TESTING
9.1 For the purpose of safety and general testing, the Buyer should inspect the Products on delivery, installation, or collection as the case may be and also upon the completion of any Service(s). The examination of the Products and/or the Services by a qualified engineer/quality person is strongly recommended.
10. SUSPENSION OF ORDERS
10.1 Having secured the Seller’s written consent, the Buyer may suspend all or any part of an Order by giving the Seller a reasonable written notice (hereinafter referred to as “Stop Work Order”) for a maximum period of twenty (20) Working Days or for a longer period agreed by the Parties in writing. On receiving the Stop Work Order, the Seller shall forthwith stop work and take all reasonable steps to minimise the costs of the work covered by the Stop Work Order. Before the expiry of the Stop Work Order, the Buyer shall inform the Seller in writing that it shall:
10.1.1 Cancel the Stop Work Order; or
10.1.2 Expect the Seller to continue the work once the Stop Work Order has expired; or
10.1.3 Terminate the work covered by such Stop Work Order and shall pay to the Seller the monies set out in clause 10.3.
10.2 If a Stop Work Order is cancelled or the period of the Stop Work Order expires, the Seller shall resume work. If the Stop Work Order results in an increase in the time required for and/or the cost of Contract performance, and if the Seller asserts a claim for such increase within ninety (90) calendar days after the end of the period of work stoppage, the Buyer shall reimburse the Seller for the direct costs incurred by the Seller as a result of the Stop Work Order, having taken into consideration the Seller’s obligation to minimise its costs under clause 10.1. Reasonable changes to contractual provisions will be agreed by the Parties in writing.
10.3 The Seller shall be entitled to claim a termination charge covering all costs reasonably incurred by the Seller in connection with the Products and/or the Services at the date of termination and all direct costs arising after the date of termination.
11. FORCE MAJEURE
11.1 The Seller shall not be liable for any failure to deliver the Products or provide the Services arising from circumstances outside the Seller’s reasonable control (hereinafter referred to as a “Force Majeure”).
11.2 Force Majeure includes, but is not limited to, Acts of God, government restrictions, war, fire, terrorist attacks and extreme adverse weather conditions.
11.3 Should the Seller be prevented from delivering the Products or providing the Services due to Force Majeure, it will notify the Buyer in writing as soon as reasonably practicable.
11.4 The Seller shall use reasonable endeavours to bring Force Majeure to a close or to perform the Contract despite Force Majeure.
11.5 If such an occurrence still continues six (6) months after the Seller’s written notice, either Party may serve written notice to the other cancelling the Contract with immediate effect.
11.6 If the Contract is cancelled, the Seller shall refund any payment already made by the Buyer on account of the price, subject to any deductions permitted by the Contract and deductions of any payment for Products already delivered and/or Services already provided. The Seller shall not be liable to compensate the Buyer for any further claims, loss or damage attributable to its failure to deliver due to Force Majeure.
12. INSOLVENCY, CHANGE IN CREDIT STATUS, AND MATERIAL BREACH OF CONTRACT
12.1.1 The Buyer makes any voluntary arrangement with its creditors, becomes bankrupt, appoints a receiver, an administrative receiver or an administrator, gives notice of intention to appoint an administrator, appoints a manager or an official receiver over its affairs, goes into liquidation unless for the purpose of a solvent reconstruction or amalgamation, has distress, execution, sequestration levied or issued against any part of its assets, or is otherwise unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986;
12.1.2 A qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986) gives notice of intention to appoint an administrator;
12.1.3 The Buyer ceases or threatens to cease to carry on its business or a significant part of it or the Seller reasonably expects that the Buyer will do so; or
12.1.4 The Buyer suffers any similar proceedings under foreign law, the Seller shall be entitled to cancel the Contract forthwith or to suspend any further deliveries under the Contract without any liability to the Buyer. If the Products/the Services have been delivered but not paid for, then the price shall become immediately due and payable. If the Buyer fails to pay immediately, the Seller shall be entitled to the immediate possession of the Products and to exercise the rights set in clause 7.4.
12.2 The Seller shall be entitled to terminate the Contract forthwith upon serving written notice on the Buyer if the Buyer is in material breach of the Contract. Where such breach is capable of remedy, the Seller shall be entitled to terminate the Contract only if the Buyer fails to remedy the breach within twenty-one (21) calendar days of receiving the Seller’s written notice requesting remedial action or within a shorter period of time which is deemed reasonable in the circumstances.
12.3 The termination of the Contract shall not release either Party from any liability which has already accrued to the other Party at the time of termination, nor affect the survival of any other right or obligation of the Parties intended to survive such termination. For the avoidance of doubt, sections 8, 9, 12, 13, 14 and 16 shall survive Contract termination.
12.4 Upon termination under this section, the Buyer shall pay all monies related to the Products/the Services completed /delivered to the Buyer without deduction or offset within five (5) Business Days from and including the date of termination. The Buyer shall pay monies related to Products ordered, but not yet delivered without deduction or offset within five (5) Business Days from and including the date of termination. Where the Seller has incurred costs related to unfinished Products, part performed Services or is contractually bound to incur costs related to the Products/the Services at the time of Contract termination, the Seller shall be entitled to be reimbursed such costs without deduction or offset within five (5) Business Days of its written request for reimbursement.
13.1 The Buyer shall keep Confidential Information in strict confidence and use it exclusively for the purpose(s) authorised by the Seller in writing. The Buyer shall only make Confidential Information accessible to its staff who need to be in possession of it in so far as it is required for such purpose(s). The Buyer shall disclose Confidential Information to third parties only with the Seller’s written consent and only after the receiving party has signed a non-disclosure agreement containing terms set out in this document.
13.2 All Confidential Information shall remain the property of the Seller.
13.3 Immediately upon the Seller’s request and automatically after the termination of the Contract, the Buyer shall, at the direction of the Seller, deliver up to the Seller or destroy all Confidential Information received under this Contract. If and to the extent that the Seller instructs the Buyer to destroy the Confidential Information, the Buyer shall certify that all such Confidential Information has been destroyed.
13.4 The obligations of confidence and non-disclosure do not apply to Confidential Information which:
13.4.1 Was in the public domain or already known to the Buyer at the time of disclosure;
13.4.2 Subsequently comes into the public domain other than by breach of the Contract; or
13.4.3 Subsequently comes into the Buyer’s possession lawfully via a third party.
13.5 The Buyer accepts that any breach of this section could be extremely detrimental to the Seller and that monetary damages would not represent an adequate remedy. In the event of the Buyer’s breach or threatened breach of any obligation related to Confidential Information, the Seller shall be entitled to injunctive relief in any court of competent jurisdiction and the Buyer shall reimburse the Seller for any costs, claims, damages or liabilities arising directly or indirectly out of such breach.
14. INTELLECTUAL PROPERTY
14.1 All Intellectual Property Rights in any Product designed or manufactured by the Seller shall belong exclusively to the Seller. No licence is hereby granted to the Buyer in respect of any such Intellectual Property Right except for its right to use and/or sell the Products.
14.2.1 The Buyer shall not add any image/decals/logos/trademarks relating to the Seller to the Products or alter any image/decals/logos/trademarks relating to the Seller that are on the Products on delivery without the Seller’s prior written consent; and
14.2.2 The Buyer shall not alter any software included in the Products without the Seller’s prior written consent.
14.3 The Buyer shall not do or authorise any third party to do any act in respect of the Products or the Services which would or might invalidate the Seller’s Intellectual Property Rights, be inconsistent with the Seller’s Intellectual Property Rights or those of its associated companies. The Buyer shall not omit or authorise any third party to omit to do any act in respect of the Products/the Services which would have that effect.
14.4 The Buyer shall not use any Intellectual Property Rights of the Seller or its sponsors without the Seller’s prior written consent.
Any notice served under these Conditions shall be in writing and is deemed to have been properly served if sent or delivered to the receiving Party at its address specified in the Order or such other address as that Party may from time to time notify the other in writing. Any notice may be delivered personally, by first class post, first class air mail, facsimile transmission or by e-mail and shall be deemed to have been served as follows:
If sent by first class post, three (3) Business Days after posting;
If sent by first class air mail, five (5) Business Days after posting;
If delivered by hand, upon delivery;
If sent by facsimile transmission; upon transmission (subject to a successful delivery receipt); and
If sent by e-mail, immediately after the e-mail was sent (subject to the e-mail address being correct and the sender having obtained a delivery receipt).
16.1 With the Buyer’s prior consent, which will not be unreasonably withheld or delayed, the Seller shall be entitled to refer to the Buyer as its customer, to promote the fact that the Buyer has purchased Products and/or Services and to use any image of the Products in the Seller’s marketing materials. The Buyer shall use its best endeavours to procure any necessary consent or licences from any third parties in order for the Seller to use such images for these purposes.
16.2 The Buyer may promote the fact that it has purchased Products and/or Services from the Seller, but shall ensure that the Buyer, its staff, agents, or subcontractors do not make any adverse comments about the Products and/or the Services or the Seller’s name, business or its staff to the media or the public.
16.3 Any failure by the Seller to exercise or delay exercising any right or remedy shall not constitute a waiver of that right or remedy. For any waiver made by the Seller to be effective, it must be made in writing by the Seller’s Authorised Representative. Any waiver so given by the Seller shall not be considered a waiver of any subsequent breach of the same or any other provision.
16.4 The Buyer confirms that it is contracting with the Seller as the principal and not as an agent acting for another party.
16.5 If any part of this document is held by any competent authority to be invalid or unenforceable, the validity of the remainder of the document shall not be affected.
16.6 Unless expressly provided in the Contract, no clause is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to the Contract.
16.7 The Contract shall be governed by the laws of England and Wales, and all disputes arising under the Contract shall be submitted to the exclusive jurisdiction of English and Welsh courts.
Fiba Tech Industries Limited Terms and Conditions of Order
In these Terms and Conditions, the below terms have the following meaning:
1.1 “Business Day” means any day other than a Saturday, a Sunday or a public/bank holiday in the UK.
1.2 “Goods” mean all goods and articles, whether raw materials or finished products, covered by the Order.
1.3 “Order” means a Fiba Tech Industries Limited Purchase Order.
1.4 “Party” means the Purchaser or the Supplier and “Parties” mean both the Purchaser and the Supplier.
1.5 “Purchaser” means Fiba Tech Industries Limited (“FTI”).
1.6 “Services” mean all work and/or services to be performed by the Supplier pursuant to the Order.
1.7 “Supplier” means a person stated on the Order. For the avoidance of doubt, persons include natural persons, corporate bodies, unincorporated associations and partnerships whether or not having a separate legal identity.
2. ACCEPTANCE OF ORDER
The Order shall not be binding upon the Purchaser until these Terms and Conditions are accepted in writing by the Supplier or until the Supplier commences work on the Order with the Purchaser’s prior consent, whichever is earlier. The Purchaser reserves the right to reject any acceptance received by the Purchaser more than fourteen (14) Business Days after the date of the Order. Conditions other than these Terms and Conditions shall have no effect unless expressly agreed in writing by the Parties. No amendments or variations to the Order shall be valid unless agreed in writing by the Parties and evidenced on an official Order form.
The Purchaser shall not be bound by any order, order amendment or instructions to proceed with any order which is not confirmed on the Purchaser’s official Order form.
Unless specifically agreed by the Parties in writing otherwise, all prices shall be fixed and not subject to any form of surcharge or variation.
Any time for delivery, despatch, performance or completion by the Supplier shall be of the essence. The Purchaser shall be entitled to cancel the Order and/or be indemnified by the Supplier against all losses and costs incurred if:
(a) The Supplier fails to deliver Goods or provide Services in accordance with the Order, or
(b) The Supplier fails to make progress with the Order so as to jeopardise the purpose of the Order.
The Supplier shall immediately notify the Purchaser in writing if it reasonably believes that the agreed delivery time cannot be met. Such notification shall state the cause of the delay and the likely overrun of the delivery time. The Supplier shall do its utmost to reduce the delay and damage resulting therefrom.
5. SUBCONTRACTING AND ASSIGNING
No Goods or Services shall be subcontracted without the Purchaser’s prior written consent. The Supplier shall remain responsible for the performance of the Order and shall not assign the Order or its right to payment hereunder.
6. QUALITY ASSURANCE
On the Purchaser’s authority, the Purchaser’s inspector/representative, any inspector/ representative of the Purchaser’s customer or its agent or any inspector or representative of any government department shall be entitled to access the Supplier’s premises and those of its subcontractors to check the progress, carry out the inspection or testing of the Goods and/or the Services at any reasonable time. Upon the Purchaser’s request, the Supplier shall give the Purchaser adequate notice of the Supplier’s works tests which the Purchaser shall be entitled to attend. The inspector or representative shall be provided with reasonable facilities at the Supplier’s cost. The Supplier shall supply such certificates as the Purchaser may reasonably require. Neither such inspection nor its absence shall relieve the Supplier of any liability nor imply the Purchaser’s acceptance of the Goods/the Services. The Purchaser shall be entitled to request the provision of test records and calculations from the Supplier.
The Supplier shall be subject to whichever of the following Quality Assurance conditions are specified in the Order:
1. The Supplier shall ensure that the Goods are accompanied by a certificate of conformity.
2. The Supplier shall ensure that the Goods are accompanied by a certificate of test.
3. The Supplier shall ensure that the work is carried out in accordance with the Supplier’s CAA/JAA/FAA approval.
4. The Supplier shall ensure that the work is carried out in accordance with the Supplier’s ISO 9001 approval or another Quality Plan approved by the Purchaser.
5. The Supplier shall ensure that the work is carried out in accordance with the Supplier’s AS 9100 approval or another Quality Plan approved by the Purchaser.
7. PACKING, DELIVERY AND MARKING
All Goods supplied against the Order must be adequately protected against damage in transit, delivered to the Purchaser’s address with carriage paid and packaging bearing the Purchaser’s Order number. Unless otherwise agreed in writing by the Parties, the Goods shall be at the Supplier’s risk until delivered to the Purchaser at the point specified in the Order. Unless otherwise stated on the Order, all containers and packing materials shall be non-returnable and their costs included in the price. Where the Purchaser receives Goods or Services unexamined, the Purchaser’s right to inspect them, reject non-conforming Goods/Services and/or claim for shortage shall not be affected. When Goods are rejected, they will be returned at the Supplier’s risk and cost.
Property in the subject matter of the Order shall pass to the Purchaser upon delivery. The passing of the title shall not prejudice either the Purchaser’s right to reject non-conforming Goods or any other remedy available to the Purchaser. Where advance or progress payments are made, the title but not risk shall pass to the Purchaser upon allocating such items to the Order. All items so allocated shall be visibly marked as the Purchaser’s property.
Inattention to the following matters may result in delayed payment but no prompt payment discount shall be forfeited by the Purchaser because of the Supplier’s failure:
(a) On the day of despatch, to send advice of despatch and invoice(s) for each consignment required by the Order,
(b) To send a monthly statement of account by the 10th of each relevant month quoting the invoice numbers applicable to each item thereon,
(c) To clearly mark the Order number on all relevant documentation, or
(d) To supply any certificate or other documentation required by the Order.
All payments made shall be without prejudice to the Purchaser’s rights should the Goods and/or the Services prove unsatisfactory or non-conforming to the Order.
10. SUSPENSION OF ORDER
If the Purchaser’s business experiences any disruptions attributable to circumstances beyond its control, the Purchaser shall have the right to suspend the Order until such circumstances have ceased. Any time for performing the Order shall be extended by the Parties by the period of suspension.
11. JIGS, TOOLS, TEST EQUIPMENT AND MATERIALS
a) Jigs, tools, test equipment or other materials supplied by the Purchaser solely for use in connection with its Order(s) shall remain the Purchaser’s property. The Supplier shall be responsible for assessing their fitness for purpose, their safe custody and maintenance, fair wear and tear excepted.
b) Where the Order price includes the cost of making or purchasing jigs, tools, etc., these shall become the Purchaser’s property.
c) On completion of the Order or its earlier termination, all items supplied under this section must be held in safe custody and maintained in good condition until the Purchaser issues disposal instructions to the Supplier.
d) Any such jigs, tools, test equipment or other materials shall be used by the Supplier only for performing the work ordered by the Purchaser and shall be returned at the Supplier’s expense at the completion of the work unless otherwise agreed by the Parties in writing. Surplus and/or scrap materials shall be disposed of in accordance with the Purchaser’s instructions.
a) The Supplier shall not make any disclosure related to the Order for marketing or any other purposes without the Purchaser’s prior written consent.
b) The Supplier shall keep all technical information, drawings, design and other data supplied by the Purchaser strictly confidential, shall use them solely for the performance of the Order, and shall not disclose them to any third party without the Purchaser’s prior written consent.
c) Where drawings or other data are issued, the Supplier shall exercise proper custody and control and return/dispose of them in accordance with the Purchaser’s instructions.
13. INTELLECTUAL PROPERTY RIGHTS
Where development constitutes part of the Order, the ownership of any intellectual property rights shall be transferred to the Purchaser. The Supplier shall fully co-operate in such matters with the Purchaser and shall take all reasonable steps essential to making such transfer effective as soon as any such right arises.
14. INTELLECTUAL PROPERTY INDEMNITY
The Supplier shall keep the Purchaser indemnified in respect of any infringement of intellectual property rights related to the use or sale of any Goods or Services supplied under the Order and against all losses, costs and damages which the Purchaser may incur in connection with any such claim.
Where software is to be supplied, the Supplier shall provide the Purchaser with any conditions of use or licence terms relating to such software prior to the date of the Order. If such conditions or licence terms have not been provided, the Supplier shall waive their application and shall fully indemnify the Purchaser against all losses, damages, liabilities and costs arising from the Purchaser’s use or sale of the software in contravention of any such conditions or licence terms. The Supplier warrants that it is the owner of the copyright and/or other intellectual property in software to be supplied or has a valid licence from the owner of the copyright or intellectual property to sell or sub-licence the software to the Purchaser.
16. DEFECTIVE MATERIALS/WORKMANSHIP
The Supplier will, at the Purchaser’s request and option, remedy, repair or replace any defective item(s) free of charge. The Supplier shall keep the Purchaser indemnified against any loss, damage, injury, liability, costs and expenses occurring during proper use directly or indirectly from defective Goods and/or Services, including any Statutory Liability. The Supplier shall also keep the Purchaser indemnified against any damage to the Purchaser’s property and against any claims for loss/damage to any person’s property, injury to or the death of any person to the extent caused by the Supplier’s negligence or any act or omission on the part of the Supplier’s employees, subcontractors or agents arising out of the performance of the Order.
17. HEALTH AND SAFETY
In accordance with the Health and Safety at Work Act 1974 as amended and any other applicable legislation governing health and safety, all safety precautions required for the handling of the material covered by the Order shall be clearly indicated on each consignment.
The Purchaser shall be entitled to terminate the contract by written notice without compensation to the Supplier, and to collect forthwith all materials, tools and articles provided to the Supplier if:
(a) The Supplier ceases trading, becomes insolvent, makes any composition or arrangement with its creditors, has a receiver, an administrative receiver or a similar person appointed to it, or
(b) Any petition is presented for the Supplier’s winding up, or
(c) The Supplier passes any resolution for the Supplier’s winding up, or
(d) The Purchaser reasonably believes that any of the above events is about to occur and notifies the Supplier accordingly.
No failure or delay on the part of the Purchaser to exercise any right or remedy shall be construed as a waiver, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
20. DOCUMENT STORAGE
The Purchaser shall have the right to copy any document, item or media in any format as may be reasonably required for its own internal purposes in connection with the performance of the Order.
21. ORDER ACKNOWLEDGEMENT AND SUBMISSION OF INVOICES
The acknowledgement of an Order shall be sent to the Order Processing & Procurement Officer while the Supplier’s invoices shall be sent to the Accounts Department, both based at the following address: FTI, Willmotts Business Park, Waterlip near Shepton Mallet, Somerset, BA4 4RN, UK. The Supplier shall present separate invoices for each Order number.
22. CONFORMANCE TO SPECIFICATIONS
All Goods and Services shall conform to requirements related to quantity, quality and description specified in the Order. Unless specifically agreed otherwise by the Parties in writing, all materials shall be new. If the Supplier provides samples or patterns which are approved by the Purchaser, the Goods or Services shall not be inferior to the approved samples or patterns.
23. PROGRESS REPORTS
The Supplier shall submit a regular Progress Report to the Purchaser detailing progress towards completing the Order. The contents and frequency of the Progress Report shall be specified on the Order or otherwise agreed between the Parties.
24. GOVERNING LAW AND JURISDICTION
The Order and the contractual relationship between the Parties arising out of the Order shall be governed by the laws of England and Wales and the Parties submit to the exclusive jurisdiction of English and Welsh courts. Clause headings in this document are for convenience only and shall not affect interpretation.