Contracts with Supply Only and Installation: UK and Export
In these Conditions of Sale the following words shall bear the following meanings: “Company” shall mean Franklin Hodge Industries Limited; “Goods” shall mean the goods being supplied by the Company; “Customer” shall mean the party for whom the Company is providing the Goods. The “Contract” shall mean the arrangement incorporating these conditions arising under Clause 3 hereof. Where such expressions as EX WORKS, FOB and CIF are used, they shall bear the meanings assigned to them in INCOTERMS 2020
Unless previously withdrawn, any quotation issued by the Company is open for acceptance within the period stated therein or, when no period is so stated, within 30 days only after its date.
No order shall be binding on the Company unless and to the extent that it has been accepted in writing by a duly authorised officer of the Company. Unless otherwise agreed in writing, by a duly authorised officer of the Company, these Conditions of Sale shall override and operate to the exclusion of all terms and conditions contained in any document emanating from the Customer and shall not be validly varied except as specifically agreed by the Company in writing acting by a duly authorised officer.
Unless otherwise stated by the Company in writing all prices quoted are net. All prices are exclusive of VAT which shall be charged at the appropriate rate at the date of delivery.
There shall be added to the price for the goods any tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods (whether initially charged on or payable by the Company or the Customer).
In the event of a variation to design, specification, quantity or time scale requested by the Customer and agreed by the Company, the price shall be adjusted accordingly by the Company. Where the price for the Goods is varied the price as varied shall be binding on both parties and shall not give either party the right to cancel the order.
Where the Customer orders Goods of a type, size or quality not normally produced by the Company the Company will take all reasonable endeavours to execute the order but if it proves impossible, impractical or uneconomical to carry out or complete the order the Company reserves the right to cancel the order of the uncompleted part of it in which even the Customer shall only be liable to pay for the part of it delivered or performed by duly authorised officer.
Quotations in a currency other than sterling are based on the rate of exchange at the time of quoting and, unless otherwise stated, the price may be subject to revision up or down if any difference rate of exchange is ruling at the date of invoice.
5. Drawings etc.
All specifications, drawings and particulars of quantities, weights, dimensions and stated performances submitted with the quotation issued by the Company are approximate only, and the descriptions and illustrations contained in any catalogues, price lists and/or other advertisement matter issued by the Company are intended merely to present a general idea of the goods described therein and none of these shall constitute any representation, term, condition, warranty or otherwise form part of the contract between the Company and the Customer. After acceptance of the quotation issued by the Company, a General Arrangement drawing will be supplied free of charge where appropriate and if requested.
Copyright, patent, trademark design and other intellectual property rights in specifications and drawings and particulars of quantities, weights, dimensions and stated performances or other documents vested in or emanating from the Company shall be and shall remain the property of the Company and shall not be reproduced, used or disclosed to third parties without the express permission of the Company in writing.
The Company’s products are carefully inspected and, where practicable, submitted to standard tests at the Company’s works before despatch. If tests other than those specified in the quotation or tests in the presence of the Customer or the Customer’s representative are required, these will be charged for. In the event of any delay on the Customer’s part in attending such tests or in carrying out any inspection required by the Customer after seven days’ notice that the Company is ready, the tests will proceed in the Customer’s absence and shall be deemed to have been made in the Customer’s presence.
The Company will accept no liability for failure to attain any performance figures quoted by the Company unless the Company have specifically guaranteed them.
The customer assumes responsibility that Goods stipulated by the Customer are sufficient and suitable for the Customer’s purpose.
For Goods sold within the United Kingdom subject to credit being agreed in writing by a duly authorised officer of the Company payment shall be made in Sterling within 30 days of the invoice date otherwise the Company must receive payment in full before delivery and shall be entitled without prejudice to any other rights to charge interest upon all monies from time to time payable at a rate equivalent to 2% above Barclays Bank Plc Lending Rate prevailing from time to time.
For Goods sold outside the United Kingdom unless otherwise agreed in writing by a duly authorised officer of the Company, payment in full for the supply of goods shall be made prior to despatch of the goods, or alternatively, at sight of shipping documents and invoices in the United Kingdom against an irrevocable and confirmed letter of credit confirmed by a leading UK clearing bank. All bank charges associated with the letter of credit shall be payable by the Customer.
For the purpose of Part II of the Housing Grants, Construction & Regeneration Act 1996 or any amendment thereof (the “Construction Act”), the due date for payment shall be 15 days and final date for payment shall be 30 days after the date of the invoice respectively. Any notice to withhold payment shall be given not less than 7 days before the final date for payment.
Title in the Goods shall not pass to the Customer until they have been paid for in full. Until title to the Goods passes to the Customer the Customer shall keep the Goods separately and readily identifiable as the Company’s property.
Any resale of the Goods by the Customer in which property has not passed to the Customer shall be made by the Customer as agent for the Company.
At any time before title to the Goods passes to the Customer the Company may retake possession of all or part of the Goods and enter any premises for that purpose and required delivery up to the Company of all or part of the Goods. The Customer shall ensure that until the Goods have been paid for in full and title in them has passed to the Customer that the Goods do not become annexed to any property and premises and can be easily and readily detached from any property and premises in the event of the Company retaking possession of the Goods.
The Goods shall be at the Customer’s risk as soon as they are delivered to the Customer. From the time risk passes to the Customer and until the Company receives payment for the Goods the Customer shall insure the Goods with a reputable insurer and shall hold monies received by virtue of any insurance in respect of the Goods on trust for the Company.
The Company will repair or at the Company’s option replace free of charge Goods lost or damaged in transit provided that the Company is given written notification of such loss or damage within such time as will enable the Company to comply with the carrier’s conditions of carriage as affecting loss or damage in transit or, where delivery is made by the Company’s own transport, within a reasonable time after receipt of the delivery note.
9. Liability for Delay
Dates and/or times quoted for despatch, delivery and/or performance are estimates only dating from receipt by the Company of the appropriate letter of credit in the case of Goods being sold outside the United Kingdom and all necessary information enabling commencement of manufacture of Goods. Such dates and/or times shall be extended by a reasonable period if delay in despatch or delivery is caused by instructions, or lack of instructions, from the Customer or by industrial dispute or any cause beyond the Company’s reasonable control.
The Company shall be under no liability for any direct or indirect loss resulting from any delay in delivery of the Goods.
Unless otherwise stated all prices quoted are based on costs current at the date of quotation and are subject to adjustment in accordance with the appropriate BEAMA (British Electrotechnical and Allied Manufacturers' Association) contract price adjustment formula to reflect changes in cost of labour and/or materials between the date of quotation and the date of execution of the material and/or labour.
The Company shall be entitled to deliver any part of the material and/or labour as and when they become available.
If at the request of the Customer the Company agrees to suspend or delay the manufacture and/or delivery of the material and/or labour the Company shall be entitled to be paid the value of all the work performed to the date of suspension or delay and all costs, losses and expenses incurred as a result of the suspension or delay including overheads, wasted expenditure and/or loss of profit.
If the suspension or delay continues for a period of one calendar month (or such longer period as may have been agreed above) then the Company may at any time, by giving 7 days’ notice, require the Customer to agree to a resumption of manufacture and/or installation. Failure by the Customer to agree will entitle the Company to terminate the contract pursuant to Clause 16 of these conditions.
12. Import Licences
The Contract shall be subject to the procurement by the Customer at his expense, of any import licences or other documentation required for the import of the Goods into the country to which they are to be delivered.
13. Liability for Defects
The Company will make good, by repair or, at its option, the supply of a replacement, defects which under proper use appear in the Goods and arise solely from faulty design, materials or workmanship, provided always that:
(a) The defect is notified to the Company in writing and in any event not later than 12 calendar months after the Goods are delivered (The Defects Liability Period).
(b) The Goods are properly maintained in accordance with the Company’s laid down procedures by adequately trained and skilled operatives.
(c) The defective part has been returned should the Company so require.
The Company shall refund the cost of carriage on any parts so returned and repaired or new parts will be supplied free of charge by any method of transport at the Company’s sole discretion.
(d) The Company shall owe no liability whatsoever to the Customer in respect of any direct or indirect loss including without prejudice to the generality of the foregoing loss of profit or of contracts or for any loss or damage of any kind whatsoever and whether caused by the Company’s breach of contract, tort, statutory duty or otherwise howsoever and irrespective of the cause or extent thereof save for damages for death or personal injury.
(e) The Customer agrees to arrange its own insurance cover for any losses which may be suffered by it arising out of any delay in the supply of the Goods or any defects therein.
14. Force Majeure
The Force Majeure (Exemption) clause 2020 of the International Chamber of Commerce (ICC publication no. 421) shall be incorporated into the contract.
15. Liability for Damage or Injury
The Customer shall indemnify and save the Company harmless from any claims arising out of any damage or injury to persons or property (including the material and/or labour) in connection with the material and/or labour save where caused by the negligence or breach of Contract of the Company, and the Customer shall be responsible for arranging and paying for satisfactory insurance in the joint names of the Company and the customer to cover the risks.
It shall be the Customer’s responsibility to obtain all necessary permissions from landlord, local authority or other body for the carrying out of any work to which the contract with the Customer relates.
The Company shall be entitled without prejudice to any other rights forthwith to terminate any contract in the event that the Customer:
(a) is in default of any of its obligations or
(b) goes into liquidation whether voluntary or otherwise (except for the purposes of and followed by an amalgamation or reconstruction) or is adjudicated bankrupt or
(c) fails to pay any of its debts as and when they fall due or
(d) has a receiver, administrative receiver or manager appointed to any part of its business or becomes subject to an administration order or
(e) prevents or hinders the Company from performing the contract or if the Company is otherwise prevented from performing the contract for any cause beyond its reasonable control.
The Company shall be entitled without prejudice to any other rights to recover an appropriate portion of the price and any additional costs incurred as a result of such termination including overheads, wasted expenditure and/or loss of profit.
Each and every clause, sub-clause or any part thereof appearing in these terms and conditions is a separate and severable provision and any such found to be void shall be deemed deleted and the remaining provisions shall continue in full force and effect.
The Company shall be entitled to transfer, assign or subcontract the Contract with the Customer without any reference to the Customer.
This Contract with the Company and the rights and interests arising thereunder are personal to the Customer who shall not be entitled to assign the same in any manner whatsoever, either in whole or in part.
20. Dispute Resolution
The Contractor and the Customer each has the right to refer any dispute under the Sub-Contract to adjudication but are not obliged to do so and either party may at any time give notice in writing (hereinafter called the Notice of Adjudication) to the other of its intention to refer the dispute to adjudication. Any dispute referred to adjudication shall be conducted in accordance with TeCSA (Technology and Construction Solicitors Association (est. 1990; UK) Adjudication Rules or any amendment or modification thereof being in force at the time of appointment of the adjudicator.
The decision of the adjudicator shall be binding until the dispute is finally determined by legal proceedings.
Subject to the TeCSA (Technology and Construction Solicitors Association (est. 1990; UK) rules any adjudication shall be conducted and have effect as if this contract was a construction contract within the meaning of Part II of the Housing Grants Construction & Regeneration Act 1996, (“the Construction Act”) or any amendment thereof.
21. Legal Construction
Unless otherwise agreed in writing the Contract shall in all respects be construed and operate as an English contract and in conformity with English law and the English courts shall have exclusive jurisdiction over any matter arising out of the Contract otherwise If this Contract should fall within the definition of a construction contract in the Construction Act, then the Company’s Conditions of Sale: Contracts with Installations shall apply to this Contract.
22. Third Party Rights
A person who is not a party to the Contract between the Company and the Customer shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of the Contract. This clause does not effect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
23. Set Off
Any claim on the part of the Company or any of its subsidiary associated or holding companies and each subsidiary undertaking thereof (as defined by sections 258 and 736 of the Companies Act, 2006 and section 146 of the Income and Corporation Taxes Act, 1988) whether arising out of the Contract or otherwise and whether present or future, certain or contingent ascertained or sounding only in damages, may be set off against any claim on the part of the Customer.
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