FRANK KEY (GROUP) LIMITED TERMS AND CONDITIONS FOR THE SALE OF GOODS
- Definitions and Interpretation
- Basis of Contract
- Payment Terms
- Risk and Title
- Hire of Plant and Tools
- Supplier Warranties and Liability
- Force Majeure
- Third Party Rights
- Entire Agreement
- No Partnership or Agency
- Law and Jurisdiction
- Cumulative Remedies
1. Definitions and Interpretation
1.1 The following words and expressions shall have the following meanings unless the context otherwise requires:
“Additional Charges” means the costs of carriage, any additional packaging, remittance charges, any taxes, duties or other charges levied by any Governmental or authority in respect of or by reason of the sale, delivery, export or import of the Goods, courier and messenger costs and any other charges referred to in these Conditions;
“Collection Note” means the note issued by the Supplier on collection of the Goods;
“Conditions” means these terms and conditions;
“Contract” means any agreement for the sale of Goods by the Supplier to the Customer in accordance with Condition 2.4 of these Conditions;
“Customer” means the person who has accepted these Conditions;
“Delivery Note” means the note issued by the Supplier or the Supplier’s carrier on delivery of the Goods; “Goods” means the goods to be supplied by the Supplier to the Customer pursuant to the Contract and as detailed in the Collection Note or Delivery Note as applicable;
“Order” means an order for Goods placed by the Customer or a person authorised by the Customer in writing, which may be submitted to the Supplier over the telephone or at the Supplier’s premises and on provision by the Customer or its authorised representative of any official order number allocated by the Supplier to the Customer;
“Price” means the price due from the Customer for the Goods, plus any Additional Charges;
“Special Order Goods” means those Goods which are procured by the Supplier specifically in relation to the Order and which are identified as such at the time of the Order and in the Collection Note or Delivery Note as applicable;
“Supplier” means any Frank Key Group Limited trading subsidiary, namely: Frank Key (Nottingham) Limited incorporated and registered in England and Wales with company number 000494174, Sinbad Tools Limited incorporated and registered in England and Wales with company number 01282649, The Builders Centre (Sheffield) Limited incorporated and registered in England and Wales with company number 00624494, Robert M Sansom Plant Limited (Trading as Frank Key Plant and Tool Hire) incorporated and registered in England and Wales with company number 1296549. All Frank Key Group Limited companies’ registered offices are at Portland Street, Daybrook, Nottingham NG5 6BL; and “Working Day” means any day from Monday to Friday other than a statutory or public holiday in England. 1.2 In these Conditions:
1.2.1 a reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation;
1.2.2 words in the singular include the plural and words in the plural include the singular;
1.2.3 a reference to one gender includes a reference to the other gender and the neutral;
1.2.4 words importing persons include firms, companies, associations, organisations, governments, states, foundations, trusts and corporations and vice versa;
1.2.5 the headings to Conditions do not affect the interpretation of these Conditions;
1.2.6 where the word ‘including’ is used in these Conditions, it shall be understood as meaning ‘including without limitation’ and where the context permits, the words ‘other’ and ‘otherwise’ are illustrative and shall not limit the sense of the words preceding them; and
1.2.7 any reference to ‘writing’ or any cognate expression includes communications by post, facsimile transmission and e-mail, but excludes text messages.
2. Basis of Contract
2.1 These Conditions shall apply to the sale by the Supplier of all Goods purchased by the Customer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
2.2 No variation of these Conditions shall be binding unless agreed in writing by a director of the Supplier and no collateral or supplemental contract may be made or construed unless confirmed in writing by a director of the Supplier.
2.3 Any proposal submitted to the Customer will not constitute an offer and shall remain valid for the period stated therein, but if no period is specified such proposal shall be valid for the date of issue.
2.4 The Contract shall be made when the Order is entered by the Supplier as an Order onto the Supplier’s system and not before. In the event that the Supplier is unable to fulfil any Order it shall be entitled to cancel the Contract without liability to the Customer provided that it notifies the Customer of the cancellation within 5 Working Days of Order placement.
2.5 The Supplier may at any time without notifying the Customer make any changes to the Goods which do not materially affect the nature or quality of the Goods.
2.6 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Condition excludes the Supplier’s liability for fraudulent misrepresentation.
2.7 In the event that the Customer wishes to cancel an Order, it may only do so with the written consent of the Supplier and where the Supplier agrees to the cancellation:
2.7.1 the Supplier shall be entitled to charge the Customer an Additional Charge for the restocking costs incurred by the Supplier as a result of the cancellation which shall be notified to the Customer at the time of the cancellation request and shall be payable as an Additional Charge; and
2.7.2 the Customer shall indemnify the Supplier 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 Supplier as a result of cancellation;
and for the avoidance of doubt, the Supplier shall not agree to the cancellation of any Order for Special Order Goods.
2.8 Any typographical, clerical or other omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3.1 The Price shall be as set out:
3.1.1 in the Collection Note or Delivery Note where applicable; or
3.1.2 as otherwise agreed between the parties from time to time.
3.2 The Price is exclusive of transportation and insurance costs and where the Supplier is responsible for delivery it shall be entitled to invoice the Customer for the costs of delivery as an Additional Charge.
3.3 All Prices quoted are exclusive of VAT or any other sales tax which will be charged at the rate in force at the time of despatch.
3.4 The Supplier reserves the right to charge the Customer, for any additional work undertaken over and above that which would have been otherwise required, (including any expenses or financial penalties incurred by the Company) as a result of any instructions supplied by the Customer being incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or provided to the Supplier too late to enable it to meet a deadline.
4. Payment Terms
4.1 The payment terms in this Condition 4 apply save to the extent that they are inconsistent with any specific payment terms agreed in writing between the Supplier and the Customer.
4.2 The Supplier shall be entitled to invoice the Customer for the Price and, where applicable, any Additional Charges at any time from when the Goods (or part thereof) are made available for collection or despatched for delivery and if any Additional Charges arise following the issue by the Supplier of the invoice, the Supplier shall be entitled to invoice the Customer for any Additional Charges as and when they arise.
4.3 The Customer shall make payment for the Price, where applicable any Additional Charges in Sterling in cash, by electronic transfer, debit or credit card or by cheque. The Supplier shall be entitled to charge the Customer a surcharge where payment is made by credit card. Any payment received by the Supplier in any other currency or by any other payment method will not be deemed to be payment for the Goods. Payment will not be deemed payment for the Goods unless and until it is received in full and in cleared funds.
4.4 The Customer shall pay each invoice from the Supplier without any set-off or other deduction on the later of:
4.4.1 collection or delivery of the Goods; or
4.4.2 in accordance with any credit terms agreed by the Supplier in writing.
4.5 The Supplier’s invoices shall be payable in accordance with these Conditions, notwithstanding that collection or delivery of the Goods may not have taken place and the property in the Goods may not have passed to the Customer. The time of payment of the Supplier’s invoices shall be of the essence of the Contract.
4.6 If the Customer either fails to pay in full any invoice from the Supplier by the due date for payment or exceeds the maximum outstanding credit facility agreed by the Supplier in writing, without prejudice to any other right or remedy the Supplier may have:
4.6.1 all invoices issued by the Supplier under the Contract (or in relation to any other contract which may exist between the parties) shall immediately fall due for payment;
4.6.2 the Supplier shall be entitled (without prejudice to any other right or remedy it may have) to: 126.96.36.199 cancel or suspend any further deliveries to the Customer under any order;
188.8.131.52 sell or otherwise dispose of any Goods (or goods supplied under any other contract which may exist between the parties) whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment or reduction in the excess over the maximum credit facility;
184.108.40.206 Interest at the rate of 8% over the base rate of the Bank of England from the date payment fell due to the date of payment, pursuant to the Late Payment of
Commercial Debts (interest) Act 1988, as amended;’
220.127.116.11 Compensation for each invoice late paid pursuant to the Late Payment of Commercial Debts Regulations 2002, as amended’
18.104.22.168 Debt recovery costs for our debt recovery company Final Demand Limited, pursuant to the Late Payment of commercial Debts Regulations 2013.
22.214.171.124 by notice to the Customer unilaterally vary the Customer’s credit available and/or payment terms for future contracts.
4.7 Unless otherwise agreed in writing by the Supplier, all queries from the Customer regarding any invoice must be received prior to the required payment date in Condition 4.4.
5.1 The packaging of Goods shall be entirely at the discretion of the Supplier and the Supplier shall have the right to pack all Goods in such manner and in such quantities as the Supplier thinks fit and shall not be obliged to comply with any packaging requests or instructions from the Customer unless agreed by the Supplier and the Customer in writing.
5.2 Where it is agreed that the Supplier shall package the Goods in a manner requested by the Customer and such packaging is in addition to that normally used by the Supplier, Additional Charges will be payable by the Customer and will appear separately on the invoice, to be payable in accordance with Condition 4 above.
6. Risk and Title
6.1 Risk of damage to or loss of the Goods shall pass to the Customer:
6.1.1 at the time of collection or delivery in accordance with Condition 7; or
6.1.2 if the Customer wrongfully fails to collect or take delivery of the Goods, in accordance with Condition 7, risk shall pass to the Customer at the time when the Goods were made available for collection or the Supplier tendered delivery of the Goods.
6.2 Notwithstanding collection or delivery and the passing of risk in the Goods, or any other provision of these Conditions, title in the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of:
6.2.1 the Price and any Additional Charges; and
6.2.2 all other sums payable by the Customer to the Supplier for which payment is then due.
6.3 Until such time as title in the Goods passes to the Customer:
6.3.1 the Customer shall hold the Goods as the Supplier’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Supplier’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business;
6.3.2 if Goods are destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for the Supplier; and
6.3.3 the Supplier shall be entitled at any time to require the Customer to deliver up the Goods to the Supplier and if the Customer fails to do so forthwith, to enter upon any premises where the Goods are stored and mark identify and repossess the Goods and the Customer grants to the Supplier, its agents, contractors and employees an irrevocable right to enter onto premises for such purposes.
6.4 The Customer 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 Supplier, but if the Customer does so all monies owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) forthwith become due and payable.
7.1 The Goods shall be delivered:
7.1.1 when they are collected by the Customer or its representative from the Supplier’s principal place of business; or
7.1.2 where the Supplier is responsible for delivery when they are delivered to the kerbside of the address in the Order or as otherwise agreed by the parties from time to time and where the Supplier is responsible for delivery it shall be entitled to recover the costs of delivery from the Customer as an Additional Charge in accordance with Condition 4.
7.2 The Supplier shall reasonably endeavour to make the Goods available for collection or deliver the Goods on the date(s) agreed between the parties from time to time (“Anticipated Delivery Date”), but such Anticipated Delivery Date shall be approximate only and the time the Goods are made available for collection or delivery shall not be of the essence.
7.3 The Supplier shall have the right to make available for collection or deliver Goods ordered in instalments.
7.4 In the event that the Supplier is unable for any reason to make the Goods available for collection or fulfil any delivery of the Goods on any Anticipated Delivery Date the Supplier shall not be deemed to be in breach of contract or have any liability to the Customer. Failure by the Supplier to make available for collection or deliver any one or more of the instalments on any Anticipated Delivery Date or any claim by the Customer in respect of the Goods collected or delivered in any one or more instalments shall not entitle the Customer either to treat the Contract as a whole as repudiated or to reject or refuse to collect or take delivery of any of the Goods made available for collection or delivered in any other instalment.
7.5 If the Customer fails to collect the Goods or take delivery of the Goods (otherwise than by reason of the Supplier’s fault) or fails to give the Supplier adequate instructions for collection or delivery then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
7.5.1 store the Goods until the Goods are collected or until actual delivery and charge the Customer for the costs (including insurance) of storage and redelivery; or
7.5.2 sell the Goods at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Customer for any shortfall below the Price and any Additional Charges under the Contract.
7.6 The Customer shall accept delivery of the Goods and shall assist the Supplier or the Supplier’s carrier in unloading the Goods. If there is no representative of the Customer at the point and time of delivery unless otherwise agreed in writing between the parties the Goods shall be conclusively deemed to be satisfactorily delivered when they are unloaded by the Supplier or the Supplier’s carrier and delivered to the kerbside of the address in the Order or such other address as otherwise agreed between the parties in writing from time to time. The Customer shall be charged for wasted time at the Supplier’s standard rate and for any other expenses incurred by the Supplier for:
7.6.1 any delay in unloading howsoever caused, including without limitation, the Customer’s inability to assist the Supplier or the Supplier’s carrier in unloading the Goods; and/or
7.6.2 each repeat delivery where the Supplier or the Supplier’s carrier leaves the delivery point and subsequently returns to the delivery point with the Goods
as a result of the Customer’s inability or unwillingness to accept delivery of the Goods.
7.7 The Customer shall notify the Supplier in writing of any shortfall of Goods collected or delivered, or any non-delivery of the Goods, within 2 Working Days of collection or delivery or, in the event of non-delivery, of the Anticipated Delivery Date. The Supplier shall be entitled to make good any shortage or non delivery of the Goods.
7.8 The Customer shall notify the Supplier immediately in writing and in any event within 5 Working Days of discovery of any alleged damage caused by the Supplier or the Supplier’s carrier to property at the delivery point.
7.9 Upon collection or delivery the Customer or its representative shall:
7.9.1 where applicable:
126.96.36.199 quote the Customer’s account number and unique order reference number; and/or
188.8.131.52 confirm that the registration number of the collection vehicle corresponds with any agreed between the parties; and
7.9.2 sign the Delivery Note or Collection Note as applicable which shall constitute conclusive evidence that collection or delivery has been made
and if for any reason the Customer or its representative is unable to satisfy the requirements of this Condition 7.9 the Customer will have failed to collect or take delivery of the Goods in accordance with this Condition 7 and the provisions of Condition 7.5 shall apply.
8. Hire of Plant and Tools
8.1 All plant and tools hired from Robert M. Sansom Plant Limited and Sinbad Tools Limited (subsidiaries of Frank Key Group Limited), are hired under the terms and conditions of the Hire Association (HAE). Copies of the Terms and conditions of the Hire Association Europe are available on request or direct from the Hire Association Europe.
8.2 Where goods are purchased from Robert M. Sansom Plant Limited and Sinbad Tools Limited, the “Frank Key Group Limited” Terms and conditions for the sale of goods will apply.
9. Supplier Warranties and Liability
9.1 The Supplier shall reasonably endeavour to transfer the benefit of any warranty or guarantee given by the manufacturer of the Goods to the Customer and the Supplier’s warranty shall be limited to such. 9.2 Subject to the Conditions set out below the Supplier warrants that on collection or delivery the Goods will be free from material defects in materials or workmanship.
9.3 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. In particular, the Supplier makes no warranty as to the fitness of the Goods for any particular purpose even if that purpose is stated in the Customer’s Order. This exclusion includes recommendations or advice from the Supplier to the Customer relating to a specific enquiry. The Customer must satisfy itself as to the fitness of the Goods for the purposes for which they are intended.
9.4 The Supplier shall not be liable for a breach of the warranty in Condition 9.2 unless:
9.4.1 the Customer gives written notice of the defect to the Supplier and if the defect is as a result of damage in transit gives written notice to the Supplier or the Supplier’s carrier within 2 working days of receipt specifying the serial number (where applicable), details of the defect and delivery date. In the event of a defect which is not apparent on collection or delivery the Customer shall inform the Supplier of such defect as soon as possible and in any event no later than 2 working days following discovery and in any event by no later than 1 month from collection or delivery of the Goods; and
9.4.2 the Supplier is given a reasonable opportunity after receiving the notice of examining the Goods and the Customer complies with any request from the Supplier to return Goods to the Supplier’s place of business at the Customer’s cost for examination to take place there. The reasonable cost of packaging and carriage of returned Goods incurred by the Customer will be reimbursed by the Supplier if the Goods are found to be damaged or defective.
9.5 The Supplier shall not be liable for breach of the warranty under Condition 9.2 if:
9.5.1 the Customer makes further use of the Goods after giving notice under Condition 9.4; or
9.5.2 the defect arises because the Customer has failed to follow the Supplier and/or the manufacturer’s instructions (whether oral or in writing) as to the storage, installation, commissioning, proper use and maintenance of the Goods; or
9.5.3 the Customer alters or repairs the Goods without the written consent of the Supplier.
9.6 Where any valid claim in respect of the Goods is made by the Customer the Supplier shall be entitled at its option to:
9.6.1 replace, or repair or correct the Goods (or the part in question) found not to conform to warranty; or
9.6.2 at the Supplier’s sole discretion, refund to the Customer the Price (or a proportionate part of the Price) of the relevant part of the Goods found not to conform to warranty
and subject to Conditions 9.7 and 9.8 the Supplier shall have no further liability to the Customer.
9.7 Subject to Condition 9.8 the Supplier’s liability in connection with the sale of Goods shall be as follows:-
9.7.1 in respect of physical damage to or loss of the Customer’s tangible property to the extent that it results from the wilful default or negligence of the Supplier, its employees, agents or contractors, the Supplier’s liability shall be limited to an amount of £5,000,000 in respect of each incident or series of connected incidents;
9.7.2 in respect of all other direct loss (whether in contract, tort or otherwise) the Supplier’s liability shall be limited to the Price; and
9.7.3 in respect of any loss of goodwill, loss of business, loss of profits, loss of anticipated savings, loss of use or for any type of consequential, special or indirect loss the Supplier’s liability shall be nil.
9.8 Nothing in these Conditions seeks to limit the Supplier’s liability for death or personal injury in respect of which the Supplier’s liability shall be unlimited.
9.9 Subject to Condition 9.8 the Supplier shall have no liability under the provisions of these Conditions or otherwise if the Goods have not been paid for by the due date for payment in accordance with Condition 4.4.
9.10 Any claim by the Customer under this Condition 9 shall not entitle the Customer to withhold or delay payment in respect of any other Goods (or goods supplied under any other contract) in respect of which no such claim has been made whether or not those Goods form part of the same consignment.
10.1 Without prejudice to any other right or remedy available to it, whether under the Contract or otherwise, either party shall be entitled to terminate the Contract with immediate effect if: –
10.1.1 the other party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession or a receiver is appointed, of any of the property or assets of the other party; or
10.1.3 the other party ceases, or threatens to cease, to carry on business; or
10.1.4 it reasonably apprehends that any of the events mentioned above is about to occur in relation to the other party and notifies the other party accordingly.
10.2 Without prejudice to any other right or remedy available to it, whether under the Contract or otherwise, the Supplier may terminate the Contract at any time by written notice to the Customer if the Customer:
10.2.1 has not paid the Price (or part thereof) or any Additional Charges; or
10.2.2 exceeds any agreed credit facility and such amount remains outstanding for 30 days.
10.3 On termination for any reason:
10.3.1 the Customer shall immediately pay to the Supplier all outstanding invoices and interest and, in respect of any part of the Price or Additional Charges payable by the Customer but for which no invoice has been submitted, the Supplier may submit an invoice will shall be payable immediately on receipt; and
10.3.2 the Customer shall immediately pay to the Supplier all sums owing on any credit facility notwithstanding that such sums would not be due if it were not for termination; and
10.3.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.1 The Supplier shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Contract, if the delay or failure was due to any cause beyond the Supplier’s reasonable control such as (but without limitation) any strike, lock-out or other form of industrial action, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of supplier or sub-contractors.
12. Third Party Rights
12.1 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.1 Notice given under the Contract shall be in writing to that other party to the address, e-mail address or fax number as the relevant party may notify to the other party. Notices sent by first class post shall be deemed served on the next Working Day following posting where the recipient’s address is in the United Kingdom, or 7 Working Days following posting where the recipient’s address is outside of the United Kingdom. Any notice delivered personally shall be deemed served at the time of personal delivery, provided that the same occurs on a Working Day. Any notice sent by fax or e-mail shall be deemed served at the time of transmission provided that the same occurs on a Working Day and between the hours of 9:00a.m. to 5:00p.m. Greenwich Mean Time, and if it does not shall be deemed served on the next Working Day. To prove service it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party, by e-mail to the address of the party or in the case of post, that the envelope containing the notice was properly addressed and posted.
14. Entire Agreement
14.1 Each Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
15. No Partnership or Agency
15.1 This Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these Conditions. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
16.1 The Supplier may assign the Contract or any part of it to any person.
16.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
17.1 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 shall remain in full force and effect.
18.1 No waiver or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
19. Law and Jurisdiction
19.1 The Contract shall be governed by the laws of England, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
20. Cumulative Remedies
20.1 All rights and remedies available to either of the parties under the terms of the Contract or under the general law are to be cumulative, and no exercise by either of the parties of any such right or remedy is to restrict or prejudice the exercise of any other right or remedy granted by the Contract or otherwise available to that party.