Terms and Conditions of Sale and Contract
Fuel Chip Limited
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this Condition shall apply in these Conditions.
“Client” means the person, company, firm or public authority who accepts a quotation of FCL for the supply of the Goods or whose order for the Goods is accepted by FCL.
“Goods” means the goods which FCL is to supply in accordance with these Conditions.
“FCL” means FUEL CHIP LIMITED (registered in England and Wales under number 07499490) and includes their successors or assignees.
“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 Client and FCL.
“Contract” means the contract to supply the Goods.
“Writing” includes facsimile transmission, e-mail and comparable means of communication.
1.2 A reference to a particular 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 for the time being in force made under it.
1.3 Any reference to parties means the parties to the Contract and party shall be construed accordingly.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to one gender includes a reference to the other gender.
1.7 Condition headings do not affect the interpretation of these Conditions.
2. Basis of supply
2.1 FCL shall supply and the Client shall purchase the Goods in accordance with any written quotation of FCL which is accepted by the Client, or any written order of the Client which is accepted by FCL subject in either case to the Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made, or purported to be made by the Client. Any quotation of FCL is valid for a period of 30 days only from its date (unless otherwise specified), provided that FCL has not previously withdrawn it.
2.2 No variation of these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Client and a company director of FCL.
2.3 FCL’s employees and agents are not authorised to make any representations concerning the Goods unless confirmed by FCL in Writing. In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Nothing in this Condition 2.3 shall exclude or limit FCL’s liability for fraudulent misrepresentation.
2.4 Any advice or recommendation given by FCL or its employees, or agents to the Client or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by FCL is followed or acted upon entirely at the Client’s own risk, and accordingly FCL shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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 FCL shall be subject to correction without any liability on the part of FCL.
3. Orders and specifications
3.1 The Client shall be responsible to FCL for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving FCL any necessary information relating to the Goods within a sufficient time to enable FCL to perform the Contract in accordance with its terms.
3.2 No order which has been accepted by FCL may be cancelled, varied, or deferred by the Client except with the agreement in Writing of FCL and on the terms that the Client shall indemnify FCL 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 FCL as a result of cancellation, variation or deferment.
3.3 FCL will endeavour to supply Goods in accordance with the standard detailed within the FCL quotation and if no standard is detailed within the quotation, FCL will endeavour to supply the Goods in accordance with BS EN 14961 – Part 4:2011 Class A2 – P31.5
3.4 Quantities of Goods will be measured on the basis of volume (m3) or Heat Energy (KWh). Unless agreed otherwise by FCL , Heat Energy will normally be calculated on a heat input basis using a formula agreed between the parties .
3.5 Although reasonable precautions will be taken by FCL to ensure the accuracy of such information, all descriptive matter supplied by FCL and any descriptions and illustrations contained in FCL’s catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation.
3.6 All Goods are supplied on condition that the Client undertakes at all times to take notice of and comply with all instructions, statements and recommendations issued with or relating to the Goods and FCL shall have no liability for any loss or damage arising from the Client’s failure to abide by the provisions of this Condition 3.6.
3.7 FCL may effect minor modifications to the specification of the Goods without the Client’s approval in order to comply with any applicable safety or statutory requirements, or to effect enhancements to the Goods. FCL will notify the Client in writing of any proposed material modifications to the specification of the Goods and the Client shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by FCL within 3 days of the date of FCL’s notice to the Client.
3.8 Subject to the provisions of Condition 8.1 (b), the Client shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.
4. Price of goods
4.1 The price of the Goods shall be FCL’s quoted price.
4.2 FCL reserves the right, by giving notice to the Client at any time prior to the delivery of the Goods, to increase the price of Goods to reflect any increase in the cost to FCL which is due to any factor beyond the control of FCL (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications of the Goods which is requested by the Client, or any delay caused by any instruction of the Client or failure of the Client to give FCL adequate information or instructions.
4.3 Unless otherwise agreed in writing by FCL, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of delivery of the Goods.
4.4 Unless otherwise agreed in writing by FCL, all transportation, packaging and carriage costs related to the delivery of the Goods (including the cost of all related insurance coverage and the cost of loading and unloading the Goods) shall be borne by the Client.
5. Terms of payment
5.1 Unless otherwise agreed in writing payment shall be made in Cash, Bank Transfer or Debit Card in advance. Credit Cards are not accepted.
5.2 FCL may in its absolute discretion agree to open a Credit Account for a Client on the basis of references provided. If such an account is opened the Client shall pay the price of the Goods within 30 days of the date of FCL’s Invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Client. The time of payment of the price shall be the essence of the Contract. Reference renewals may be sought from time to time to maintain such Credit Account.
5.3 Receipts for payment shall be issued only upon request.
5.4 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to FCL, FCL shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to the Client;
(b) appropriate any payment made by the Client to such of the Goods (or any goods supplied under any other contract between the Client and FCL) as FCL may think fit (notwithstanding any purported appropriation by the Client);
(c) charge the Client with any costs incurred by FCL in the course of collecting outstanding monies due to FCL from the Client;
(d) suspend any warranty for the Goods or any other goods supplied by FCL to the Client, whether or not they have been paid for;
(e) set off any amount owed by FCL to the Client against any amount owed by the Client to FCL on any account whatsoever;
(f) charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per cent per annum above National Westminster 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 purposes of calculating interest).
5.5 FCL reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.1 FCL shall deliver the Goods to the place stated by the Client.
6.2 Any dates quoted for the Goods are approximate only and FCL shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be the essence unless previously agreed by FCL in writing. The Goods may be delivered by FCL in advance of the quoted delivery date upon giving reasonable notice to the Client.
6.3 FCL shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by FCL’s negligence), nor shall any delay entitle the Client to terminate or rescind the Contract unless such delay exceeds 180 days.
6.4 The Client must examine the Goods upon delivery and within 7 days thereafter notify FCL in writing of any defect in the Goods. In default the Client will be deemed to have examined and accepted the Goods.
6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by FCL to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated.
6.6 FCL subcontracts transport for some deliveries and cannot be held responsible in any way for any delay in delivery or damage or loss caused whatsoever to any Goods or property by any transport subcontractor.
6.7 If any vehicle of FCL or of its transport subcontractor is not permitted by the Client or its agents or servants or by any other person to unload or is unable to unload for any other reason outside the control of FCL, once it has arrived at the delivery address for any reason whatsoever, FCL reserves the right to charge standing time for the vehicle and/or the transport cost to either offload the material locally or return to the point of collection.
6.8 If the Client fails to take delivery of the Goods or fails to give FCL adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Client’s reasonable control or by reason of FCL’s fault) then, without prejudice to any other right or remedy available to FCL, FCL may:
(a) store the goods until actual delivery and charge the Client for the reasonable costs (including insurance and return transport costs) of storage; or
(b) sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Client for the excess over the price under the Contract or charge the Client for any shortfall below the price under the Contract.
6.9 Unless prior arrangement is made with FCL, any vehicle instructed to leave the public highway to effect delivery does so at the risk of the Client; in such circumstances, the Client shall make good to FCL all loss of or damage to any vehicles, the Goods and any other person or thing whatsoever from whatever cause the same may arise, loss or damage arising from FCL’s negligence excepted.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Client at the time of delivery or, if the Client wrongfully fails to take delivery of the Goods, the time when FCL tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Conditions, the property in the Goods shall not pass to the Client until FCL has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by FCL to the Client for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Client, the Client shall hold the Goods as FCL’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Client and third parties and properly stored, protected and insured and identified as FCL’s property. Until that time the Client shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to FCL 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 moneys or property of the Client and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Client acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Client is not in the ordinary course of the Client’s business.
7.4 Until such time as the property in the Goods passes to the Client (and provided the Goods are still in existence and have not been resold), FCL shall be entitled at any time to require the Client to deliver up the Goods to FCL and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Goods are stored, and repossess the Goods and all and any costs, charges and expenses incurred by FCL in so taking possession of the Goods (including legal fees) shall be payable by the Client upon demand.
7.5 The Client 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 FCL but if the Client does so all moneys owing by the Client to FCL shall (without prejudice to any other right or remedy of FCL) forthwith become due and payable.
8. Warranties and Limitation of Liability
8.1 FCL warrants that upon delivery:
(a) the Goods will conform in all material respects to any specification submitted by the Client and shall be free from any material defects in design, materials and workmanship; and
(b) if the Client has made it expressly known to FCL in writing that the Goods shall be suitable for a particular purpose and FCL has expressly stated in writing that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated.
8.2 FCL shall not be liable for a breach of any of the warranties in Condition 8.1 unless:
(a) the Client gives written notice of any defect in the Goods to FCL within 7 days from the delivery date of the Goods; and
(b) FCL is given a reasonable opportunity after receiving the notice of examining the Goods and the Client arranges for the return of such Goods to FCL’s place of business at FCL’s cost for the examination to take place there, or at the option of FCL, the Goods are made available at the Client’s premises for inspection by FCL (and if requested by FCL, the Client provides FCL with photographic evidence of any alleged defect in the Goods prior to FCL examining or inspecting the Goods as aforesaid).
8.3 FCL shall not be liable for a breach of any of the warranties in Condition 8.1 if:
(a) the Client makes any further use of any Goods which the Client has alleged to be defective after giving notice of any such defect; or
(b) the defect arises because the Client failed to follow any oral or written instructions as to the use or storage of the Goods or (if there are none) good trade practice; or
(c) the defect arises from fair wear and tear, wilful damage, negligence, or from any misuse of the Goods; or
(d) the full price for the Goods has not been paid by the time for payment referred to in Condition 5.2; or
(e) the defect is of a type specifically excluded by FCL by notice in writing.
8.4 Subject to Condition 8.2 and Condition 8.3, if the Goods do not conform to the applicable warranties in Condition 8.1:
(a) FCL shall at its option:
(i) replace the Goods ; or
(ii) issue a credit note for the Goods at the pro rata Contract rate; and
(b) FCL shall, if it opts to replace defective Goods, then deliver replacement Goods to the Client (at FCL’s expense) and ownership of the defective Goods shall, if it has vested in the Client, re-vest in FCL.
8.5 For the avoidance of doubt (but without prejudice to the provisions of Condition 8.4 (a)), the failure of any part of the Goods to conform to the applicable warranties in Condition 8.1 shall only render FCL liable to replace or credit the value of that part of the Goods which is defective and shall not entitle the Client to cancel the remainder of the Contract.
8.6 If FCL complies with Condition 8.4 it shall have no further liability for any breach of the applicable warranties in Condition 8.1.
8.7 Save for any stipulation as to FCL’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of FCL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Client of any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
8.8 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.9 Nothing in these Conditions excludes or limits the liability of FCL:
(a) for death or personal injury caused by FCL’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for FCL to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
8.10 Subject to Condition 8.8 and Condition 8.9:
(a) FCL’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) FCL shall not be liable to the Client for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or for any claims for indirect, special or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9. Insolvency of Client
9.1 This clause applies if:
(a) the Client makes any voluntary arrangements 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 purpose of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
(c) the Client ceases, or threatens to cease, to carry on business; or
(d) FCL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to FCL, FCL shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Client, 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.
10. Force Majeure
FCL reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods ordered by the Client (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of FCL including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Client shall be entitled to give notice in writing to FCL to terminate the Contract.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that party at its registered office or 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, save that any notice required to be given under Condition 8.2 shall be sent by first class registered post.
11.2 Each right or remedy of FCL under the Contract is without prejudice to any other right or remedy of FCL whether under the Contract or not.
11.3 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
11.4 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.
11.5 Failure or delay by FCL in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
11.6 Any waiver by FCL of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
11.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.