1. Interpretation and Application

1.1 In these Conditions:

• (a) “Buyer” means the party with whom the Seller contracts to sell the Goods;
• (b) “Conditions” means these terms and conditions of sale of the Seller;
• (c) “Contract” means any contract between the Buyer and the Seller for the supply of Goods;
• (d) “Delivery” means either:
  • (i) the availability for collection of the Goods from the Seller’s works (where delivery shall be deemed completed after loading of the Goods at the Seller’s works);
  • (ii) delivery to the Buyer’s works in the United Kingdom (where delivery shall be deemed completed after unloading of the Goods at the Buyer’s works) as determined in accordance with Clause 5.1; or
  • (iii) delivery F.O.B. in accordance with Clause 5.5.
• (e) “Goods” means the goods or replacements and any service that the Seller contracts with the Buyer to supply to the Buyer or any third party;
• (f) “Seller” means FM Products (or their successors in title);
• (g) “Supplier” means any person who supplies the Seller with Goods; and
• (h) “Price” means the price for the Goods current at the date of the Contract.

1.2 These Conditions shall apply to any Contract to the exclusion of any other terms and conditions stipulated or referred to by the Buyer, and to inconsistent terms that would otherwise be implied by law, trade custom, practice, or course of dealing.

1.3 No representative or agent of the Seller has authority to agree any terms or make any representation concerning the Goods inconsistent with these Conditions unless it is confirmed in writing by a duly authorised representative of the Seller. The Buyer acknowledges that in entering into a Contract it does not rely on any representations which are not so confirmed.

1.4 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

1.5 The Buyer shall not assign the benefit of the Contract without the Seller’s prior written consent.

1.6 Any general description contained in any sales literature, advertising material, or samples relating to the Goods shall not form a representation or part of the Contract.

1.7 The Goods are subject to improvements and changes without notice. The Seller reserves the right to correct any clerical or typographical errors or omissions in any sales or promotional literature, quotation, price list, order, invoice, or other document issued by the Seller without any liability.

1.8 The Seller reserves the right to replace Goods with products of equal quality should the Goods be unavailable for any reason without any liability.

1.9 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Orders

Quotations issued by the Seller are not offers capable of acceptance so as to make a binding contract. All orders placed with the Seller require its acceptance before a contract arises. No order submitted by the Buyer shall be accepted by the Seller unless its acceptance is confirmed in writing by the Seller or a duly authorised representative of the Seller, or by telephone by a duly authorised representative of the Seller. Each accepted order shall constitute a separate Contract, which shall be made when the Seller confirms acceptance of the order, and the date of this acceptance shall be the date of the Contract.

3. Quotations, Prices, and Packaging

3.1 Unless expressly otherwise agreed in writing by the Seller, prices shall be in accordance with the Seller’s current price list and are exclusive of VAT and any other taxes or duties, which shall be payable by the Buyer in addition. All prices and quotations are valid for 30 days only, after which time they are deemed to have been withdrawn unless otherwise stated. After this date, the Seller reserves the right to alter the price without prior notice to the Buyer.

3.2 Minimum Order Values & Carriage Charges:

• (a) Minimum Order: The minimum order value for all Contracts is £50 (exclusive of VAT and delivery charges).
• (b) Standard Products (under 1m in length): Prices are inclusive of packaging and delivery charges for mainland UK Contracts over £100. For mainland UK orders under £100, a delivery charge of £10 shall apply.
• (c) Long Products (1m or greater in length, including trunking, Radsnaps, and studding): Prices are inclusive of packaging and delivery charges for mainland UK Contracts over £200. For mainland UK orders under £200, a delivery charge of £20 shall apply.
• (d) Offshore & Non-Mainland UK: Carriage charges for deliveries outside mainland UK (including the Channel Islands, Isle of Man, Northern Ireland, Scilly Islands, and Scottish Highlands & Islands) are available on request operating on a 3-day delivery service.

3.3 All Prices shall be subject to revision should the Buyer vary the Contract between the date of the confirmation of the Contract and completion of the Contract.

3.4 If any contract made by the Seller to procure Goods sold to the Buyer is made with a foreign vendor and the price under such contract is varied or such contract is cancelled or materially altered by the vendor for any reason (regardless of their right to do so), then the Buyer shall at its option pay a price correspondingly varied or accept such cancellation or alteration, or the Buyer may itself cancel the contract with the Seller. However, the Seller shall not in any case be liable to pay any sum to the Buyer by way of damages or otherwise howsoever.

4. Payment

4.1 Payment for Goods shall be made in full in accordance with these Conditions. Unless otherwise agreed in writing between the Buyer and the Seller (such agreement in any event to be subject to satisfactory credit checks as to the Buyer’s creditworthiness), invoices shall be paid by the Buyer in full in pounds sterling (£) without any deduction, set-off, or withholding (except as required by law) no later than 30 days from the date of the invoice. Where withholding is required by law, the Buyer shall pay the Seller such amount as will, after such deduction, be equal to the amount which would have been received if no deduction had been made.

4.2 The time of payment of all sums due to the Seller shall be of the essence. In the event of any delay, without prejudice to any of its other rights or remedies, the Seller shall be entitled to:

• (a) cancel the Contract and any other Contracts or suspend any further deliveries to the Buyer; and/or
• (b) appropriate any payment made by the Buyer to such of the Goods as the Seller may think fit notwithstanding any proposed appropriation by the Buyer; and/or
• (c) charge the Buyer interest at a rate of 4% per annum above the Bank of England base rate applying at the time, accruing daily from the due date until the date of payment (both before and after judgment).

4.3 Any extension of credit allowed to the Buyer may be changed or withdrawn at any time on giving written notice to the Buyer.

4.4 The Seller shall not be obliged to deliver or transfer any Goods if, subsequent to the sale thereof, the Seller learns of circumstances which are in the reasonable opinion of the Seller likely to adversely affect the ability of the Buyer to pay for such Goods in accordance with the Contract.

4.5 Any Buyer wishing to pay their account by credit card should note that credit card payments are subject to a 2% surcharge.

5. Delivery

5.1 The Buyer shall specify whether Delivery is to be under Clause 1.1(d)(i), (ii), or (iii) at the time it places its order for the Goods, and the Buyer shall be responsible for the cost of any failure to comply with this requirement. If the Buyer fails to specify a Delivery method or fails to provide an appropriate Delivery address, Delivery shall default to the Buyer’s invoice address.

5.2 Whilst the Seller shall use reasonable endeavours to ensure Delivery of the Goods by any date or within any period quoted, any such dates or periods quoted are approximate and the Seller shall not be liable for any delay in delivery of the Goods. The Buyer shall not be entitled to refuse to accept partial or late delivery, or treat late delivery as a breach of contract. The Seller will attempt to provide a next-day service, but the Seller shall not be liable for failure to meet next-day delivery.

5.3 If the Seller fails to Deliver the Goods for any reason other than any cause referred to in Clause 13 or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess cost (if any) to the Buyer of procuring similar replacement goods of cheapest available cost over the Price.

5.4 The Buyer shall be responsible for the unloading of the Goods. If the Buyer fails to take Delivery of the Goods at the time stated for delivery (otherwise than by reason of any cause referred to in Clause 13 or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitled to:

• (a) store the Goods until actual Delivery and charge the Buyer for reasonable costs of storage and related insurance; and/or
• (b) sell the Goods at the best prices obtainable in all the circumstances, after deducting all reasonable storage and selling expenses, appropriate and credit the remaining sum against the Prices and any other damages claimable by the Seller against the Buyer;

and the Buyer shall be liable to indemnify the Seller against any costs and expenses caused by the failure of the Buyer to unload or accept Delivery of any Goods.

5.5 Unless otherwise agreed in writing, all export orders will be delivered F.O.B. (as defined in Incoterms 2000) at a British port to be notified by the Seller. For the avoidance of doubt, the Seller shall be entitled, and the Buyer hereby authorises it, to make such contracts as it considers appropriate with any carrier of the Goods, and shall not be obliged to give notice under Section 32(2) of the Sale of Goods Act 1979.

6. Risk and Property

6.1 Risk of damage to or loss of Goods shall pass to the Buyer upon Delivery, or if the Buyer wrongfully fails to take Delivery of the Goods, at the time when the Seller has tendered delivery of the Goods.

6.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods shall remain with the Seller until the Buyer has paid in full and in cleared funds all that it owes to the Seller on any account, whether arising out of this or any other contract.

6.3 Until property in the Goods passes to the Buyer, the Buyer shall hold the Goods solely as the Seller’s fiduciary agent and bailee, and shall keep the Goods properly stored, protected, insured, marked as the Seller’s property, and separate from those of the Buyer and third parties.

6.4 The Seller shall be entitled at any time to require the Buyer to deliver up Goods which remain the property of the Seller. The Seller, its employees, or agents shall be entitled to enter upon any premises of the Buyer (or of any third party where the Goods are stored) for the purpose of removing such Goods, and new Goods manufactured with any such Goods, from the premises.

6.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller. However, if such event should occur, all money owing by the Buyer to the Seller shall without prejudice to any other right or remedy of the Seller immediately become due and payable.

6.6 The Buyer may (unless and until notified to the contrary by the Seller) resell the Goods or use or incorporate them into other goods before ownership has passed to it, solely on the basis that any use, incorporation, or sale shall be effected in the ordinary course of the Buyer’s business, and in any such sale of the Goods the Buyer shall deal as principal when making such a sale.

7. Loss or Damage

7.1 The Seller shall not accept liability for defects or shortages discoverable on reasonable inspection, or for failure to deliver, unless the Buyer has notified the Seller within seven days of receipt of Goods (or in the case of total non-delivery, within seven days of notice of dispatch) or within such time as will enable the Seller to comply with the carrier’s notice requirements relating to loss or damage in transit, whichever is earlier.

7.2 Where the price quoted includes Delivery, and provided the Buyer notifies the Seller within the time limits set out in Clause 7.1, the Seller shall replace or repair free of charge Goods damaged or lost in transit, and this shall be the Buyer’s sole and exclusive remedy for non-delivery, mis-delivery, or damage to Goods in transit discoverable on reasonable inspection.

8. Return of Goods

The Seller shall not be liable for or required to give credit in respect of Goods returned for whatever reason, unless:

• (a) Prior written authority has been received from the Seller; and
• (b) The Goods are returned quoting the Seller’s invoice number and date, and on examination are found to be in the same condition in all respects as at the date of delivery.

9. Intellectual Property

9.1 As between the Seller and the Buyer, all intellectual property rights arising from the design, manufacture, or supply of Goods by the Seller—including rights in drawings, designs, patents, and equipment—will remain the property of the Seller.

9.2 The Buyer undertakes:

• (a) not to cause or permit anything which may damage or endanger the intellectual property rights of the Seller or the Seller’s title to such rights, or to assist or allow others to do so;
• (b) to notify the Seller of any suspected infringement of the intellectual property rights of the Seller and to take such reasonable action as the Seller may direct in relation to any such infringement or threatened infringement;
• (c) to indemnify the Seller against all liability incurred as a consequence of its misuse of the Seller’s intellectual property; and
• (d) not to tamper with markings, nameplates, or any other indication of the source of origin of the Goods.

10. Warranties and Indemnities

10.1 The Seller does not manufacture the Goods and accordingly its sole warranty is that it shall use its reasonable endeavours to pass on the benefit of any warranties relating to the Goods given to it by its Supplier. The Seller shall use its reasonable endeavours, at the Buyer’s cost and request, to enforce such terms against the Supplier for the Buyer’s benefit.

10.2 Except 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. For the avoidance of doubt, the Goods are not tested or sold as fit for any particular purpose or as being of a satisfactory quality. The Buyer does not rely on the Seller’s skill or judgement with regard to the Goods.

10.3 The Buyer shall indemnify and keep the Seller fully and effectively indemnified on demand against any losses, costs, liabilities, claims, and demands that the Seller may suffer or incur as a result of drawings, instructions, or specifications supplied by the Buyer, including (without limitation) any claims of breach of intellectual property rights.

10.4 The Buyer shall indemnify and keep indemnified the Seller against all actions, claims, costs, damages, demands, expenses, or other loss arising out of a defect in the Goods (including, without limitation, all liabilities incurred under the Consumer Protection Act 1987) or their application to the extent occasioned or contributed to by any act or omission of the Buyer or its servants or agents.

11. Liability

11.1 The limits of liability set out in these Conditions shall have no application in relation to consumers (meaning natural persons acting for purposes outside the course of their trade, business, or profession). For the avoidance of doubt, these Conditions do not affect the statutory rights of such consumers.

11.2 Nothing in these Conditions shall be construed as limiting or excluding the Seller’s liability for death or personal injury resulting from its negligence.

11.3 The Seller does not manufacture the Goods; therefore, except for fraudulent misrepresentation or death and personal injury resulting from the Seller’s negligence, the Seller’s total liability (in contract, tort including negligence, or otherwise) arising out of or in connection with the Contract or Goods supplied shall not exceed the total sum paid by the Buyer in respect of the Goods concerned.

11.4 For the avoidance of doubt, the Seller shall be under no liability in respect of:

• (a) any defect arising from fair wear and tear, wilful damage, subjection to abnormal or unintended use, failure to follow the Seller’s storage, operating, and maintenance instructions, misuse, or alteration/repair of the Goods without the Seller’s approval, or any other negligent or wilful act or omission of the Buyer, its employees, agents, or third parties; or
• (b) any warranty or guarantee given in these Conditions if the total Price for the Goods has not been received by the Seller by the due date.

11.5 For the avoidance of doubt, the Seller shall not be liable for:

• (a) any loss of profits, loss of contracts, damage to goodwill, increased production costs, or any other consequential costs; or
• (b) any indirect or consequential loss arising out of any breach of these Conditions by the Seller, whether or not the likelihood of such loss was notified to the Seller.

11.6 If the Supplier validly excludes, restricts, or limits its liability to the Seller in respect of the Goods (or any loss/damage arising in connection with them), the liability of the Seller to the Buyer shall be correspondingly excluded, restricted, or limited. Any term, warranty, or condition to the contrary is excluded. The Seller will, upon request, supply details of any such limitation.

11.7 In the event that the Buyer fails to pay for the Goods on the due date, the Buyer shall in addition be liable to pay to the Seller all legal costs, charges, and VAT incurred by the Seller in pursuing claims or proceedings for recovery of payment or interest.

11.8 Where the Seller has incurred any liability to the Buyer, the Seller may set off the amount of such liability against any sum that would otherwise be due from the Buyer to the Seller.

12. Cancellation

No Contract may be cancelled in whole or in part except with the prior written agreement of the Seller. In such event, the Buyer shall fully indemnify the Seller against all losses including loss of profit, costs (including labour, materials, and overheads), damages, charges, and expenses suffered or incurred by the Seller as a result of cancellation.

13. Force Majeure

13.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of its obligations if the delay or failure was due to any cause beyond its reasonable control, including (without limitation) acts of God, war, civil disturbance, terrorism, government restrictions, strikes, lock-outs, difficulties in obtaining materials, breakdown of machinery, or utility failures.

13.2 In such circumstances, the Seller shall be entitled to cancel, suspend, or defer delivery without incurring any liability, but without prejudice to rights accrued in respect of deliveries already made.

13.3 If the force majeure event exceeds three consecutive months, either party may terminate the Contract by written notice without liability.

14. Buyer Default

14.1 The Seller may, without prejudice to any other rights or remedies, defer or cancel further deliveries, stop Goods in transit, and terminate the Contract immediately if:

• (a) the Buyer fails to make any payment when it becomes due;
• (b) the Buyer commits a material breach of these Conditions and fails to remedy it within 30 days of receiving written notice;
• (c) an order is made or resolution passed for the winding up, administration, or receivership of the Buyer;
• (d) the Buyer is unable to pay its debts as they fall due, enters into an arrangement with its creditors, or becomes insolvent; or
• (e) the Buyer ceases or threatens to cease carrying on its business.

15. Data Protection

15.1 In order to perform this Contract, the Seller may process personal data (as defined under UK data protection legislation) relating to employees or personnel of the Buyer (such as names and email addresses). The Buyer shall bring these Conditions to the attention of such individuals.

15.2 The Seller may periodically send commercial communications to such individuals regarding related products and services. Individuals may opt out of receiving these communications at any time by contacting the Seller.

15.3 The Seller considers its databases to be business assets and reserves the right to transfer this data in the event of a sale or transfer of its business operations.

16. Miscellaneous

16.1 Any notice required to be given by either party shall be in writing addressed to the other party at its registered office or principal place of business.

16.2 No failure or delay by the Seller in exercising any of its rights shall be deemed a waiver of that right.

16.3 If Goods are to be processed by a third party on behalf of the Seller, such operations shall be carried out under the standard terms and conditions of that third party.

16.4 The Buyer has no authority to make representations or warranties on behalf of the Seller without prior written approval.

16.5 If any provision of these Conditions is held to be invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected.

16.6 The Seller may assign, sub-contract, or transfer all or part of its rights or obligations under the Contract without the Buyer’s prior written consent.

16.7 A person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

16.8 All Contracts shall be governed by and construed in accordance with the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the English courts.