Condition of Sale

Conditions of sale governing the supply of goods and services by Falcon Contract Flooring Sales Ltd.

1 Definitions

'Conditions' means these terms and conditions as amended from time to time.

'Company' means Falcon Contract Flooring Sales Ltd whose Registered Office is at FCF HQ: Unit 101 Potter Space | Kidderminster Road | Cutnall Green | Droitwich | WR9 0NS /or any of its affiliated companies.

'Customer' means the person, firm or company to whom the Company addresses a quotation of whose order is accepted by the Company.

'Contract' means the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

'Goods' means all items (or any part of them) set out in the Order.

'Goods Specification' means the specification for the Goods that is agreed by the Customer and the Company.

'Order'means the Customer's order for the supply of Goods and/or Services set out in the Quotation on the Customer's purchase order form.

'Place of Delivery' means the place of delivery indicated in the Quotation.

'Quotation' means the quotation for the supply of Goods and Services prepared by the Company for the Customer to include any Specification.

'Services' means the services supplied by the Company to the Customer which are the subject of such quotation or order.

'Specification' means the description or specification of the Goods or Services set out in the Quotation.

Email communication between the Company and the Customer shall be an acceptable method of committing any matter to writing.

2 General

The Quotation shall remain open for acceptance by the Customer for a period of 30 days from the date of its despatch by the Company to the Customer, and if accepted by the Customer, shall be attached or referred to in the Customer's Order.

The Order shall, if accepted by the Company, be accepted by the Company within [14] days of the date of receipt of the Order from the Customer, unless otherwise agreed in writing by the Customer and the Company.

The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with the Quotation and these Conditions. The Order shall be deemed to be accepted when the Companyy issues written acceptance of the Order at which point the Customer and the Company shall be legally bound by the Contract.

These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose of incorporate, or which are implied by trade, custom, practice or course of dealing.

All prices quoted by the Company in any Quotation and any variations to them are subject to these Conditions which shall prevail over any other terms and conditions earlier agreed expressly or by conduct between the Company and the Customer, or under which the Customer customarily trades or may purport to trade.

No variation to these Conditions shall be effective unless in writing and agreed by the Company.

3 Limits of Contract

No binding contract is created until an Order is accepted in writing by the Company and all prior correspondence or oral communications are to be regarded as superseded and not forming part of the Contract. Prices quoted are subject to revision for changes in circumstances beyond the Company's reasonable control and for errors and omissions at any time.

4 Goods

The Goods shall be described in the Goods Specification.

5 Price

5.1

The price for the Goods and the Services shall be as set out in the Quotation or, in the Order acceptance despatched by the Company to the Customer, or if not in neither document, shall be as set out in the Company's then current official Price List.

5.2

All prices are exclusive of VAT and any applicable customs or excise duties. The Customer shall pay and reimburse the Company for all such duties incurred by the Company.

5.3

Where a project is sub-divided into multi-phased deliveries, Interim charges will apply according to the scheduled requirements and delivery location.

5.4

The Company reserves the right to charge, and the Customer agrees to pay, an additional charge for frustrated deliveries where it is not able to complete the delivery due to circumstances beyond its control or where delivery conditions are not met, Wasted visits will be charged at £500 + VAT per installer to cover labour time, travel, administration and disruption costs, unless otherwise agreed and signed off in writing.

Payment Terms and Credit Limit

5.5

Unless otherwise agreed by negotiation and confirmed in writing, payment in full and in cleared funds in respect of all Goods and/or Services supplied shall be due as set out in the Quotation or if not set out in the Quotation, no later than the 30 days from invoice date. Time for payment shall be of the essence of the Contract.

5.6

Payment may not be refused or delayed by reason of any defect in the Goods which the Company has agreed by warranty, guarantee or otherwise to remedy.

5.7

All payments shall be made without deduction or set off.

5.8

Failure by the Customer to make payments in the time and manner stipulated above shall entitle the Company:

to refuse to make or delay making further supplies of the Goods;
to charge interest at 8 per cent per annum above the Base Rate from time to time, on all sums remaining unpaid after the date when payment is due, unless otherwise agreed; and
to escalate the matter to external parties for collection where all additional charges fees and expenses shall be payable by the Customer.

5.9

In the case of export sales, unless otherwise agreed in writing the Customer shall establish an irrevocable letter of credit in favour of the Company immediately upon receipt of the Company's acceptance of the Customer's order and confirmed by a United Kingdom bank acceptable to the Company. The letter of credit shall be for the price payable to the Company for the goods (together with any tax or duty payable) and shall be valid for at least 6 months or such longer period as is estimated by the Company for delivery.

5.10

The Company may, at its sole discretion, grant the Customer a credit limit ("Credit Limit"). The Credit Limit represents the maximum value of unpaid invoices, works in progress, or goods/services supplied on credit that may be outstanding at any one time.

5.11

The Company reserves the right to review, vary, suspend, or withdraw the Credit Limit at any time without prior notice.

5.12

If, at any point, the value of works completed, orders placed, goods delivered, or services performed causes the Customer to exceed the agreed Credit Limit, the company shall be entitled to:

Demand immediate payment of the amount exceeding the Credit Limit; and/or
Require full or partial payment in advance for any further works or goods; and/or
Suspend all ongoing and future work until payment is received.

5.13

The Customer agrees that exceeding the Credit Limit shall constitute an automatic entitlement for the Company to invoice the excess amount immediately, with payment due upon receipt, irrespective of any previously agreed credit terms.

5.14

The Company shall not be liable for any delay, loss, or consequential cost arising from suspension of work or withholding of goods/services due to the Customer exceeding the Credit Limit.

5.15

For the avoidance of doubt, if the Customer fails to make immediate payment when required under this clause, the Company may treat such failure as a breach of contract and may pursue all rights and remedies available, including but not limited to:

Withholding delivery of Goods or completion of work
Charging interest at 8 percent per annum above the Base Rate, on all sums remaining unpaid after the date when payment was due, unless otherwise agreed.

5.16

The Customer is solely responsible for monitoring its account balance and shall not rely on the Company to give notice before the Credit Limit is reached and exceeded.

6 Delivery

6.1

Any time or date for the despatch or delivery of Goods or supply of the Services, whether specified in the Quotation, Order or otherwise given by the Company, shall be taken as an estimate made by the Company in good faith, but shall not be binding upon the Company, either as a term of Contract.

6.2

Delivery of the Goods shall take place when the Goods are off loaded at the delivery location specified in the Quotation or otherwise agreed in writing between the parties. Risk in the Goods shall pass to the Customer upon delivery.

6.3

Following delivery, it is the responsibility of the Customer to check that the Goods are not damaged and have arrived in good condition. If any discrepancy in quantity or damage is found in a delivery, then the Customer must notify the Company in writing immediately but no later than 5 working days from delivery.

6.4

The Company cannot accept responsibility for any patent defects in the Goods following the commencement of the supply of the Services.

6.5

Goods will be packed and delivered in accordance with the Company's normal practice unless otherwise specified in its quotation.

6.6

The supply of the Services and the charges are based on the following assumptions, and if they are not correct, additional charges shall apply:

Installation can be completed in the minimum number of visits using the optimum vehicle loads available to the Company.
Free and adequate vehicle access is made.
Free and adequate access is available to the rooms in which the material is to be installed. This includes availability of lifts on all deliveries above the first floor.
Rooms are clean, free of other trades working and of stored equipment.
Compliance with Company Health and Safety regulations for the delivery of the Goods and the supply of the Services.
Installation to be conducted between Monday to Fridays 8:00 am and 5:30pm excluding any bank holiday in England and Wales. Any works required out of these hours will carry an additional out of hours charge of 25%, unless otherwise agreed upon and signed off before commencement of works.

6.7

If the payment of any invoices is outstanding (notwithstanding the due date for payment) by the proposed delivery date for the Goods or supply of Services all further supply may be held pending full payment.

6.8

If the Customer has by act or omission caused delay in delivery or the supply of the Goods or Services, the Company shall be entitled to arrange storage for the Goods. In that event:

the Customer shall reimburse the Company for all costs, charges and expenses incurred in connection with such storage;
the Goods shall be treated for all purposes as delivered on the date that they are put into storage or the original scheduled delivery date whichever is the latest; and
shall be invoiced, at that date, if they have not been invoiced before.

6.9

Should the Company encounter adverse site conditions beyond its control the Company reserves the right to recover all costs associated with the Company fulfilling the contract within the conditions prevailing including parking costs, overtime and additional vehicle costs amongst other costs.

6.10

If the scheduled delivery is not possible because site conditions are not as agreed in the Quotation it will need an Order from the Customer in order to make arrangements for an alternative delivery.

7 Title

7.1

Title to the Goods shall only pass to the Customer upon the happening of any one of the following events: -

the Customer having paid to the Company all sums in cash or cleared funds (including any default interest) due from it to the Company under this Contract and all other contracts between the Company and the Customer including any sums due under contracts made after the Contract, whether or not the same are immediately payable.
The Company serving on the Customer notice in writing specifying that title in the goods has passed.

7.2

The Company may recover Goods in respect of which title has not passed to the Customer on whichever is the earliest of the following dates: -

on the expiration or any agreed period of credit in relation to the Goods.
if the Customer, being a company, registered in the United Kingdom, does anything, or fails to do anything which would entitle a creditor to appoint a receiver to take possession of any of the Customer's assets or which would entitle any person (including the Customer itself) to present a petition for winding up the Customer or to propose an application for an administration of or voluntary arrangement in relation to the Customer under the Insolvency Act 1986 or if a resolution is passed for the winding up of the Customer (otherwise than for the purposes of amalgamation or reconstruction whilst solvent) or if the Customer ceases or threatens to cease to carry on its business by reason of insolvency or approaching insolvency or otherwise;
if the Customer, being an individual, does anything or fails to do anything which would entitle any person to present a petition for bankrupting the Customer or if a statutory demand is served on the customer or if any person (including the Customer) presents a petition for bankrupting the Customer proposes or enters into a formal individual voluntary arrangement or an informal arrangement with the creditors of the Customer or if the Customer refuses or threatens not to pay the creditors of the Customer by reason of insolvency or otherwise; or
in any event, whether the Customer is an individual or a company, if distress or execution is levied against any of the Customer's assets or if a judgement against the Customer remains unsatisfied for more than 7 days or if in the reasonable opinion of the Company the Customer is unable, or is likely to become unable, to pay its creditors as and when its debts fall due. The Customer irrevocably licenses the Company, its officers, employees and agents to enter upon any premises of the Customer, with or without vehicles, for the purpose either of satisfying itself that condition 9.3 below is being complied with by the Customer or of recovering any Goods in respect of which title has not passed to the Customer.

7.3

Until title to the Goods has passed to the Customer under these conditions it shall possess the Goods as fiduciary agent and bailee of the Company. If the Company so requires, the Customer shall store the Goods separately from other Goods and shall ensure that they are clearly identifiable as belonging to the Company. During such time as the Customer possesses the Goods with the Company's consent, the Customer may in the normal course of its business sell or hire the Goods as principal and without committing the Company to any liability to any person dealing with the Customer.

7.4

Notwithstanding that title to the Goods has not passed to the Customer, the Company shall be entitled to maintain an action for payment of all amounts due under this Contract.

8 Immediate Payment and Suspension or Cancellation of Deliveries

8.1

If the Customer fails to pay the Company on the due date any sum payable under this Contract or shall have a receiving order in bankruptcy made against him or make any arrangement with his creditors, or being a body corporate shall have a receiver appointed or if any order shall be made or any resolution passed for winding up the same, the Company may, without prejudice to its other rights, demand immediate payment by the Customer of all unpaid invoices and suspend further deliveries and cancel that contract and any other contract between the Company and Customer without any liability attaching to the Company in respect of such suspension or cancellation and charge to the Customer any loss sustained thereby.

8.2

The Company shall be entitled to impose a restocking charge ("Restocking Fee") in respect of any Goods returned or cancelled by the Customer which were supplied in accordance with the Customer's order and which are accepted for return at the Supplier's sole discretion at the higher of 25% of the total value of returned Goods, or the Restocking Fee imposed by the Supplier.

9 Insurance

10.1

Immediately following from delivery, the Customer shall insure the Goods and keep them insured to their full replacement or reinstatement value against all usual risks and if the goods shall be damaged or destroyed after risk has passed but before payment in full for them has been made, the Customer shall honour all insurance monies payable to the Company to the extent of monies owing but not paid by the Customer to the Company under this Contract.

10.2

Where, at the Customer's request, the Company agrees to retain possession of the Goods after they are ready for delivery ("Bill and Hold Arrangement"), the Goods shall be deemed delivered and risk shall pass to the Customer on the date the Company notifies the Customer that the Goods are available for delivery.

10.3

Notwithstanding that risk has passed to the Customer under Clause 7.2, the Goods shall remain insured by The Company's insurance policy whilst they are held under the Bill and Hold arrangement. The Customer acknowledges that such insurance is provided solely at the discretion of the Company and does not reduce or limit the Customer's liability to pay for the Goods in full.

10.4

The Customer shall remain fully liable for all sums owing under the Contract. The continued insurance cover provided by the Company during a Bill and Hold arrangement does not defer, delay, or otherwise affect the Customer's payment obligations, and the Company shall invoice the Goods in accordance with Clause 10.2.

10.5

If the Goods are lost, damaged, or destroyed while subject to a Bill and Hold arrangement, any insurance proceeds received by the Company shall be applied first towards all outstanding sums owed by the Customer under this Contract. Any shortfall shall remain payable by the Customer.

10.6

The Company may charge reasonable storage or handling fees for Goods held under any Bill and Hold arrangement, payable by the Customer on invoice.

10.7

The Company reserves the right, upon reasonable written notice, to require the Customer to take physical delivery of the Goods. Failure by the Customer to do so may entitle the Company to charge additional storage fees or act in accordance with its rights under this Contract.

10 Safety

The Customer shall comply fully with all user instructions and safety recommendations issued to the Company in relation to the Goods and services and the Company shall not be liable to the Customer for any damage, costs or expenses suffered or incurred by the Customer as a result of the Customer failing to do so.

11 Warranty

The Company warrants that it will within a reasonable period and entirely at its discretion repair or replace the Goods or supply again such of the Services as may be necessary or refund the such part of the charges relating to this Contract in respect of Goods or Services which are accepted by the Company as being defective or not in accordance with the Specification within a period of 12 months from completion of the delivery of the Goods or the supply of the Services, whichever is later (the 'Warranty Period'). The Customer must give notice in writing within a reasonable period of discovery that some or all of the Goods do not comply with the warranty in this clause. The Company must be given the reasonable opportunity of examining such defects.

The Customer's remedies in respect of any claim under the foregoing express warranty or any condition or warranty implied by law or any other claim in respect of the Goods or any workmanship. In relation to them (whether or not involving negligence on the part of the Company) shall in all cases be limited to the repair or replacement of the defective Goods or the supply again of the necessary Services or refund of charges paid as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the Warranty Period. The Company shall not in any circumstances be liable for any damages, compensation, costs expenses, losses or liabilities, whether direct or consequential and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any law.

12 Limit of Liability

12.1

Except for the Company's liability for death or personal injury of any person (which is not limited or excluded in this Contract) and subject to the following sub-clauses of this clause, the Company's maximum aggregate liability under or arising under this Contract shall be limited to a sum equivalent to 75% of the charges invoiced and paid under the Contract (exclusive of VAT).

12.2

The following types of loss are wholly excluded:

loss of revenue or profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings; and;
loss of or damage to goodwill; and
indirect or consequential loss.

12.3

Unless the Customer notifies the Company that it intends to make a claim in respect of an event within [30] days of the matter giving rise to the claim, the Company shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

12.4

The Customer accepts that the limitations and exclusions set out in this Clause are reasonable having regard to circumstance, including the contract price.

12.5

This clause shall survive the termination of the Contract.

13 Force Majeure

If the performance of this Contract shall be delayed or shall fail by any events, circumstances, causes or conditions beyond reasonable control of the Company:

13.1

the Company shall not be in breach of the Contract nor liable for delay in performing or failure to perform; and

13.2

the Company shall have the right at its option: (a) to suspend further performance of the contract until such time as the cause of the delay shall no longer be present or, (b) to be discharged from further performance of and liability under the contract and if the Company exercises such right the Customer shall be called upon to pay the contract price less a reasonable allowance for what was not performed by the Company.

14 Copyright

All the Company's copyright and intellectual property rights in the Goods and/ or Services supplied by the Company to the Customer are owned and will remain vested in the Company.

15 Data Protection

Both parties will comply with all applicable requirements of UK and any other European Union legislation relating to personal data ('Data Protection Legislation'). This clause is in addition to, and does not relieve, move or replace, a party's obligations or rights under any the Data Protection Legislation.

16 English Law

These Conditions and any contract between the Company and the Customer are governed by English Law to the exclusive jurisdiction of whose courts the Customer agrees to submit.

17 Customer's Obligations

17.1

The Customer must obtain any permissions, consents, licences or otherwise that the Company needs and must give the Company access to any and all relevant information which the Company needs to provide the Services.

17.2

The Customer must also complete, to the Company's satisfaction, all Customer onboarding, account set-up, credit assessment, and compliance procedures required by the Company prior to the commencement of any works of Services. The Company shall have no obligation to begin or continue any works until all such onboarding requirements have been fully completed.

17.3

If the Customer does not comply with [clause 17.1], the Company can terminate the Contract.

17.4

The Company is not liable for any delay or failure to provide the Services if this is caused by the Customer's failure to comply with 17.1 and 17.3 above.

17.5

The Customer shall ensure that the terms of the Order are complete and accurate and co-operate with the Company in all matters relating to the Services.

17.6

If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, the Company shall not be liable for any costs or losses, and the Customer shall reimburse the Company on written demand for any costs or losses as a result.

18 Sub-Contracting and Assignment

18.1

The Company can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights and obligations under these Conditions and the Contract.

18.2

The Customer must not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under these Conditions or the Contract.

19 Notices

19.1

Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

19.2

Any notice or communication shall be deemed to have been received:

if delivered by hand, on signature of a delivery receipt; &
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service.

19.3

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Contract.

21 Waiver

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

22 No Partnership or Agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

23 Entire Agreement

23.1

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

23.2

Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

23.3

Nothing in this clause shall limit or exclude any liability for fraud.

24 Third Party Rights

24.1

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

24.2

The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

25 Variation

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

26 Governing Law

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

27 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

28 Divisibility Cause

This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.