Terms of service
Flocon Valves & Fittings Ltd. – Conditions of Sale
The Buyer’s attention is drawn in particular to clause 8.
1. Definitions & Interpretation
1.1. Definitions
‘Buyer’ means the person or firm who buys or agrees to buy the Goods from the Seller.
‘Conditions’ means the terms and conditions of sale set out in this document as amended from time to time in accordance with clause 11.11.
‘Contract’ means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
‘Delivery Date’ means the date specified by the Seller when Goods are to be delivered.
‘Delivery Location’ has the meaning given in clause 6.1.
‘Goods’ means the goods (or any part of them) which the Buyer agrees to buy from the Seller as set out in the Order.
‘Order’ means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be.
‘Price’ means the price for the Goods excluding carriage, packing, insurance and VAT.
‘Seller’ means Flocon Valves & Fittings Limited (registered in England and Wales with company number 02438118) of Unit D8.3, Main Avenue, Treforest Industrial Estate, Pontypridd, Mid Glamorgan, Wales CF37 5UR.
‘Specification’ means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Buyer and the Seller.
1.2. Interpretation:
1.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2. A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
1.2.4. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5. A reference to writing or written excludes fax but not email.
2. Basis of contract
2.1. These Conditions shall apply to all Contracts to the exclusion of all other terms and conditions including any terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing and which the Buyer may choose to apply under any purchase order confirmation or similar document.
2.2. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer must ensure that the terms of the Order and any applicable Specification are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.
2.4. The Buyer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.5. Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6. A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.7. All Orders must contain:
2.7.1. The Seller’s quotation number/reference, if any.
2.7.2. A clear statement of the Goods including size and quantity.
3. The Price and Payment
3.1. The price of the Goods shall be the Seller’s quoted price, or, if no price is quoted, the price set out on the Seller’s website as at the Order is accepted. The Price of the Goods is exclusive of VAT, which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice.
3.2. Payment of the Price and VAT shall be due within 30 days of the Seller’s invoice or as otherwise agreed in writing between the Buyer and the Seller.
3.3. Interest on overdue invoices shall accrue from the date when the payment becomes due from day to day until the date of payment at a rate of 4% above National Westminster Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgement.
3.4. If the Buyer fails to make payment on the due date, then without prejudice to any of the Seller’s rights, the Seller may:
3.4.1. Suspend or cancel deliveries of any Goods due to the Buyer; and/or
3.4.2. Appropriate any payment made by the Buyer to such of the Goods (or goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.
3.5. The Price is the Seller’s ex works price. Where the Seller agrees to arrange for the Goods to be sent to the Buyer, the Buyer shall be responsible for the costs of carriage, loading and unloading and the Seller shall notify the Buyer of such costs at the point of acceptance of the Order.
3.6. The costs of pallets and returnable packaging will be due from the Buyer in addition to the Price but will be credited to the Buyer provided that they are returned to the Seller in good condition before the due payment date.
4. The Goods
4.1. The quantity and description of the Goods shall be as set out in the Seller’s quotation or invoice.
5. Quality
5.1. The Seller warrants that the Goods will at the time of delivery:
5.1.1. correspond to the description given by the Seller; and
5.1.2. be free from material defects in design, material and workmanship.
5.2. Subject to clause 5.3, if:
5.2.1. the Buyer gives notice in writing to the Seller within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2. the Seller is given a reasonable opportunity of examining such Goods; and
5.2.3. the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,
the Seller shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in clause 5.1, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3. The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1. the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2. the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3. the defect arises as a result of the Seller following any drawing, design or specification supplied by or on behalf of the Buyer;
5.3.4. the Buyer alters or repairs such Goods without the written consent of the Seller;
5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4. Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
5.7. All other warranties, conditions or terms relating to fitness for purpose, merchantability, quality or condition of the Goods and whether implied by statue or common law or otherwise are excluded.
6. Delivery of Goods
6.1. Delivery of the Goods shall be made to the Buyer’s address (or such other location as the parties may agree in writing) on the Delivery Date. The Buyer shall make all the arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2. The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance.
6.3. The failure of the Seller to deliver any one or more of the said instalments of the Goods on the due dates shall not entitle the Buyer to treat this contract as repudiated but the Buyer must notify the Seller and carrier of such non-delivery within 14 days of the due date.
6.4. The Seller won’t be liable for any loss or any damage due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.5. Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly, the Buyer shall be bound to accept, deliver and pay for the Goods in full, provided that the delivery shall be tendered at any time within 3 months of the Delivery Date.
6.6. Any loss, damage, breakage to or suspected pilferage of the Goods (and where appropriate any packaging) whilst in transit must be notified to both the Seller and the carrier within 3 working days of the Delivery Date and any subsequent claim in respect of such loss, damage, breakage, or suspected pilferage must be submitted to both the Seller and the carrier in writing within 7 days of the Delivery Date.
7. Title and Risk
7.1. Risk in the Goods shall pass to the Buyer on completion of delivery.
7.2. Title to the Goods shall not pass to the Buyer until the earlier of:
7.2.1. the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer; and
7.2.2. the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.4.
7.3. Until title to the Goods has passed to the Buyer, the Buyer shall:
7.3.1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
7.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
7.3.4. notify the Seller immediately if it becomes subject to any insolvency events; and
7.3.5. give the Seller such information as the Seller may reasonably require from time to time relating to:
• the Goods; and
• the Buyer’s ongoing financial position.
7.4. Subject to clause 7.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
7.4.1. it does so as principal and not as the Seller’s agent; and
7.4.2. title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
7.5. At any time before title to the Goods passes to the Buyer, the Seller may:
7.5.1. by notice in writing to the Buyer, terminate the Buyer’s right under clause 7.4 to resell the Goods or use them in the ordinary course of its business; and
7.5.2. require the Buyer to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored, to recover them. The Buyer shall procure entry to any such third party's premises if requested to do so by the Seller.
7.6. The Buyer shall not pledge or in any way charge by way of security for any indebtedness of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so, all sums owing by the Buyer to the Seller shall forthwith become due and payable.
8. Limitation of liability
8.1. The limits and exclusions in this clause 8 reflect the insurance cover the Seller has been able to arrange. The Buyer is responsible for making its own arrangements for the insurance of any excess liability.
8.2. References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
8.3. Nothing in the Contract limits any liability for:
8.3.1. death or personal injury caused by negligence;
8.3.2. fraud or fraudulent misrepresentation;
8.3.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.3.4. defective products under the Consumer Protection Act 1987; [or]
8.3.5. any liability that cannot legally be limited; or
8.3.6. the Buyer's payment obligations under the Contract.
8.4. Subject to clause 8.3, the Seller’s total liability to the Buyer shall not exceed the price paid for the Goods.
8.5. Subject to clause 8.3, the following types of loss are wholly excluded:
8.5.1. loss of profits (including loss of anticipated savings);
8.5.2. loss of sales or business;
8.5.3. loss of agreements or contracts;
8.5.4. loss of use or corruption of software, data or information;
8.5.5. loss of or damage to goodwill; and
8.5.6. indirect or consequential loss.
8.6. This clause 8 shall survive termination of the Contract.
9. Governing law and Jurisdiction
9.1. The Contract and any dispute or claims (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 laws of Wales and England.
9.2. 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.
10. Miscellaneous
11.1. Notices – Any notice required to be served pursuant to this Contract shall be in writing and served by first class post or by hand:
10.1.1. on the Seller at the Seller’s registered office address or such other address as the Seller may from time to time notify the Buyer; and
10.1.2. on the Buyer at the Buyer’s address stated in the Order.
11.2. Insolvency or other default of Buyer – If the Buyer fails to make payment for the Goods in accordance with this Contract or commits any other breach of this Contract or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its creditors or the Buyer is unable to pay its debts as they fall due or (if being a limited company) any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator, administrative receive or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights in which it may have, suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part.
11.3. Set-Off and Counterclaim – The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off counterclaim which the Buyer may have or allege to have for any reason whatsoever.
11.4. Back Orders – The Seller shall be entitled to a general lien on all Goods in the Seller’s possession (including Goods which have been paid for) for the unpaid price of all Goods sold to the Buyer by the Seller under this or any other Contract.
11.5. Severance – If any provision or part provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that should not affect the validity and enforceability of any other provision or part-provision of this Contract.
11.6. Waiver – A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
11.7. Force Majeure – Neither party shall be liable for any delay or default in the performance of its obligations due to an act of God, war, strike, lockout, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
11.8. Cancellation – The Seller may cancel this Contract at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice, the Seller shall promptly repay to the Buyer any sums paid in respect of the Goods. The Seller shall not be liable for any loss or damage arising from a cancellation. The Buyer may not cancel the Order without prior written agreement of the Seller. If the Seller agrees to the Buyer to cancel the Order, it may at its absolute discretion make a charge for such cancellation. The Seller shall be entitled to withhold its consent where the Goods have been manufactured to the Buyer’s Specification or obtained by the Seller specifically for the Buyer on the Buyer’s instructions.
11.9. Contracts (Rights of Third Parties) Act 1999 – For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Contract is not intended to give, and does not give, any person who is not a party any right to enforce any of its provisions.
11.10. Headings – All headings are for ease of reference only and shall not affect the construction of this Contract.
11.11. Variation – no variation of the Contract shall be effective unless it is in writing and signed by the Seller.
11.12. Entire agreement – The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.