TERMS & CONDITIONS OF SALE
1.1 In these Conditions: “Buyer” means a person whose order for the Goods is accepted by the Seller and, where the context admits, references to Buyer are to the Buyer acting through its duly authorised representative. “Goods” means the goods or services (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions; “Seller” means Franchi plc and, where the context admits, references to the Seller are to the Seller acting through its duly authorised representatives; “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller; “Contract” means the contract for the purchase and sale of the Goods.
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 Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer, which is accepted by the Seller. These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 A quotation shall not be capable of acceptance by the Buyer and the submission of a quotation is no guarantee that the Seller will accept or be bound by a resulting order. For the avoidance of doubt if these Conditions are inconsistent with the terms and conditions in the Buyer’s order then the order will be treated as a counter-offer, subject to acceptance by the Seller. All Seller’s quotations are given subject to the Goods described in that quotation being unsold and available on receipt of the Buyer’s order.
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 Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless confirmed in writing by the Seller. Such confirmation may include the issue of an invoice or delivery note.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 When ordering, the Buyer shall quote catalogue references, quantities, sizes and finishes. (Subject to Clause 8.2) samples submitted or illustrations or descriptions given in catalogues, trade literature or quotations must be considered as showing type or class only without warranty as to substance, performance, colour, shape or size. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller 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 Seller’s use of the Buyer’s specification. It is the Buyer’s responsibility to ensure that any Goods supplied by the Seller are suitable for the Buyer’s purpose.
3.5 Any recommendation made by the Seller to the Buyer in respect of the use of any installer or fitter is made in good faith and without any responsibility nor warranty as to the ability, capacity or other qualities of the installer or fitter. The Seller shall have no liability for any loss, damage or expense suffered by the Buyers or any third party by reason of any act, default, omission or delay on the part of the fitter or installer. The Buyer agrees that any such fitter or installer is not the Seller’s agent and has no authority to pledge the Seller’s credit or buying the Seller in any way whatsoever.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. With exception to distance/online selling of which the terms are to conform to Government guidelines. (see clause 11 for eCommerce)
4. Price of the Goods
4.1 The price of the Goods will be the price prevailing at the date that an order is accepted by the Seller. The Seller reserves the right to increase the prices quoted whether orally or in any catalogue or other literature to cover any error, omission or increase in cost which the Seller may incur before delivery of the Goods in addition to any other price review in all cases without prior notice.
4.2 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Seller may make a charge for transport, packaging and insurance including additional charges for deliveries outside the Seller’s normal business hours and any similar charges made to the Seller by any of its suppliers.
4.3. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.4 The Seller reserves the right to make a minimum invoice charge.
5. Payment Terms
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller 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 Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 Credit accounts may be opened on the Seller’s usual terms and conditions and after receipt of satisfactory trade, bank and personal bank references. The Seller may terminate any credit account at any time without prior notice.
5.3 All credit account invoices must be paid to the terms and within the period stated on the invoice. All other invoices must be paid before the delivery of the Goods. All payments shall be made without deduction or any withholding and the Buyer shall not be entitled to exercise any right of set-off, counterclaim or otherwise in respect of any amount shown on an invoice as payable. The Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.4 The Buyer shall pay interest (both before and after any judgment) on any amount not paid on the due date, at the rate of 3 per cent per annum above Barclays Bank PLC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at the time when the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Time for delivery shall not be of the essence unless agreed by the Seller in writing. The Seller shall have no liability whatsoever in respect of any losses or liabilities arising from late deliveries. The Seller may deliver Goods in advance of quoted delivery dates on giving all reasonable notice to the Buyer. If delivery is other than at the Seller’s premises and unless other otherwise agreed in writing by the Buyer, the Seller shall deliver Goods to the site or ground floor entrance of the building. The Buyer shall give such assistance as the Seller may reasonably require to assist in the unloading Goods. The Buyer shall take all such steps as may be necessary to ensure the safety of any of the Seller’s representatives when they deliver Goods at premises other than those of the Seller and shall indemnify the Seller against all loses of whatever nature suffered as a result of any claim brought by any, of the Seller’s representatives as a result of any harm suffered by them as result of a breach of this obligation by the Buyer. The Buyer shall advise the Seller of any restrictions (whether by virtue of local traffic regulations or otherwise) that may affect delivery and give such assistance as is necessary to ensure that delivery can take place at the agreed times.
6.3 All deliveries must be signed for by the Buyer as proof of delivery. The Seller reserves the right to withhold delivery unless written acceptance of delivery is given by the Buyer.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller 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 Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’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 Seller adequate delivery instructions at the time stated for delivery then, without prejudice to any other right of the Seller, the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risks and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; and in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller 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 Seller has received in cash or cleared funds payment in full of,
7.2.1 the price of the Goods, and
7.2.2 the price of all other goods agreed to be sold by the Seller to the Buyer, whether before or after delivery of the Goods in question, and;
7.2.3 any other amounts due to the Seller from the Buyer.
7.3 Until the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. 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 Seller 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 money, or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 For the avoidance of doubt the Buyer’s ownership of the Goods shall extend to any Goods, which are incorporated in any other thing if the Goods can be unincorporated with reasonable ease.
7.5 Until the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time (including without limitation if clause 9 applies) require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. Including the removal of the Goods from any other Goods into which they have been incorporated provided that such removal can be undertaken with reasonable ease. If the Seller exercises its right under this clause 7.5 the Buyer’s right to re-sell these goods shall come to an end.
7.6 The Seller may appropriate payments made by the Buyer in respect of the Goods or any other goods supplied by the Seller to the Buyer to settle such invoices as, notwithstanding any instructions to the contrary given by the Buyer, the Buyer’s determines.
7.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods, which remain the property of the Seller. If the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right of the Seller) forthwith become due and payable.
8. Warranties and Liability
8.1 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 Where any claim based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller may replace the relevant Goods free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.6 Without prejudice to any other Condition the Seller 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to that generality, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.6.4 import or export regulations or embargoes;
8.6.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.6.6 difficulties in obtaining raw materials, labour, fuel – parts or machinery;
8.6.7 power failure or breakdown in machinery.
9. Insolvency and default of Buyer
Without prejudice to any other right available to the Seller, the Seller may 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 if:
9.1 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 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.2 the Buyer ceases, or threatens to cease, to carry on business; or
9.3 the Buyer defaults or is late on any payment obligation to the Seller;
9.4 the Seller reasonably apprehends that any of the events mentioned above are about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.1 The Seller may, in its absolute discretion, accept the return of Goods subject to such conditions as it wishes including the levying of a handling charge and production of satisfactory evidence of acquisition of those Goods having been made from the Seller by the Buyer. With exception to distance/online selling of which the terms are to conform to Government guidelines. (see clause 11 for eCommerce)
10.2 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’s 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. Unless previously notified to the contrary any notices served by the Buyer on the Seller shall be addressed to the Seller at Unit 8 Orpington Business Park, Faraday Way, Orpington Kent, BR5 3AA.
10.3 No waiver by the Seller 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.
10.4 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 provision in question shall not be affected thereby.
10.5 The Contract shall be governed by the laws of England.
11.1 The Buyer may return any unwanted, faulty or damaged Goods to us within 14 days without any handling charge, providing the Goods, including packaging, are in a re-sellable condition subject to clause 11.4.
11.2 In the unlikely event of the Order being supplied incomplete or Goods arriving damaged in transit the Buyer must notify the Seller in writing within 7 days of delivery.
11.3 The Seller will refund by the same method of payment used to purchase the Goods.
11.4 The Seller is unable to accept the return of any non-standard special product that has been supplied correctly in accordance with the Buyer’s instructions.
11.5 The Buyer may cancel its order by giving the Seller notice of cancellation within 14 days of the date of delivery to the Buyer or collection from a trade counter. Such notice may be given by phone, mail, fax or email. If the Buyer is cancelling because of any problem with the Goods, please notify the Seller of the problem at the time of cancellation.
11.6 On cancellation for whatever reason, the Buyer must return the Goods to the Seller at the Buyer’s cost unless the Seller agrees that the Buyer may dispose of them in which case please comply with the manufacturer’s instructions before disposing of hazardous Goods. Where the Goods are being returned because they are faulty, incorrect Goods or because of unsuitable substitution by the Seller, the Seller will meet the cost of return and the Seller can nominate the carrier.
11.7 The Seller will endeavour to deliver the Goods in accordance with the Order within the stated delivery time. In the unlikely event that the Seller does not make the Goods available to the Buyer within 30 days of the Order, or any extended period specified by the Seller prior to acceptance of order, the Seller will have the option of cancelling the Order by notifying the Buyer accordingly prior to delivery.