NI:028 7964 2558
GB:01530 240000

 

Conditions of Sale

1 Interpretation
1.1 In these Conditions:
“Customer” means a person to whom the Company supplies,
or contracts for the supply of goods;
“Goods” means the goods which the Company is to supply in
accordance with these Conditions and which may be more
particularly described in the Company’s written order
acknowledgement;
“Company” means F.P. McCann Limited whose Head Office
is situate at Knockloughrim Quarry, 3 Drumard Road,
Magherafelt, BT45 8QA, Northern Ireland;
“Company’s Insurances” means insurances effected and
maintained by the Company in accordance with condition
11.1 hereof;
“Conditions” means the standard 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 parties;
“Contract” means any contract for sale of Goods by the
Company.
1.2 The headings in these Conditions are for convenience only
and shall not affect interpretation.
2 Orders
2.1 Orders accepted by the Company are accepted on these
Conditions (as evidenced by any written order
acknowledgement which might be provided by the Company)
to the exclusion of all other conditions including any the
Customer purports to apply to any purchase order,
confirmation or order, specification, delivery note or other
document or which might otherwise have been relied upon by
the Customer whether in negotiation or at any stage in the
dealings between the parties in respect of any Goods. Any
Contract (whether, for example, by an exchange of
correspondence or over the telephone and which may be
followed up by the Company’s written order
acknowledgement) shall be subject to these Conditions.
2.2 In the event of inconsistency between these Conditions and
any other apparent Contract term, these Conditions shall
apply except where a change to these Conditions is expressly
agreed to in writing and signed by an authorised
representative of the Company. Any representations about
the Goods, shall have no effect unless expressly agreed in
writing and signed by an authorised representative of the
Company.
2.3 Each order placed by the Customer shall be deemed to be an
offer by the Customer to purchase Goods subject to these
Conditions.
3 Specifications
3.1 The quantity, quality, description of and specification for the
Goods shall be those set out in the Customer’s order (if
accepted by the Company) provided always that the
acceptance by the Company shall only be valid if an order
acknowledgment is sent to the Customer.
3.2 The Company reserves the right to make any changes in
specification of Goods required to conform with any applicable
safety or other statutory requirements or, where Goods are to
be supplied to the Company’s specification, which do not
materially affect their quality or performance.
3.3 No order which has been accepted by the Company may be
cancelled by the Customer except with the agreement in
writing of the Company and on terms that the Customer shall
indemnify the Company in full against all losses (including
loss of profit), costs (including cost of all labour and materials
used), damages, charges and expenses incurred by the
Company as a result of cancellation.
4 Prices
4.1 The price of Goods shall be the Company’s quoted price or
where no price has been quoted (or a quoted price is no
longer valid), the Company’s current price at the date of
dispatch of the order.
4.2 All prices quoted are valid for 21 days only or until earlier
acceptance by the Customer, after which time they may be
altered by the Company without giving notice to the Customer.
4.3 If at any time after the acceptance of an order any duty or tax
of any kind whatsoever shall be levied by the Government or
other authority, or any duty or tax in existence at the date of
acceptance of the order shall be increased and such duty or
tax or increased duty or tax shall be payable by the Company,
the amount of such duty or tax or the increase in duty or tax,
as the case may be, shall be borne by the Customer and shall
be repaid by the Customer to the Company as an increase in
the price.
4.4 The price is exclusive of any applicable insurance, customs
and Value Added Tax and other duties which the Customer
shall be additionally liable to pay to the Company.
5 Terms of Payment
5.1 Unless otherwise agreed, accounts are strictly nett and
payment in full must be made within 30 days from the date of
invoice notwithstanding that where delivery is on a
consignment basis full delivery may not have taken place and
property in the Goods has not passed to the Customer.
Settlement discount, where agreed by the Company, may be
deducted only where the account is paid within 30 days of the
date of invoice irrespective of whether the total order has
been executed or not. Accounts are due and should be paid
to F.P. McCann Ltd, Knockloughrim Quarry, 3 Drumard Road,
Magherafelt, BT45 8QA, Northern Ireland.
5.2 If the Customer fails to make a payment on a due date then
without prejudice to any other right or remedy available to the
Company, the Company shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to
the Customer;
(b) appropriate any payment made by the Customer to such
of the Goods for goods supplied under any other
contract between the Customer and the Company as the
Company may think fit (notwithstanding any purported
appropriation by the Customer);
(c) charge interest on overdue accounts at the rate of 3%
above the Bank of England Base Rate for sales in
Pounds Sterling or 3% above the Euro Repo Rate for
sales in Euros; and
(d) use any legal means deemed appropriate to recover any
amounts owing by the Customer and then recoup the
costs associated therewith from the Customer.
5.3 The Customer shall make all payments to the Company
without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise.
6 Delivery
6.1 Any time named by the Company for delivery shall mean the
time of delivery at the Company’s works and time required for
transit is additional. When goods are offered for delivery to
site the Company’s obligation is to deliver to the nearest hard
road to site, it is the Customer’s responsibility to off-load
without any undue delay to the Company’s delivery vehicle.
6.2 Delivery ex-stock is intended to convey that the goods are in
stock at date of quotation, and such delivery is offered subject
to the goods being available on receipt of the order. Where a
period is named for delivery and such period is not extended
by mutual consent in writing, the Customer shall take delivery
within that period.
6.3 The Customer’s signature on any delivery note, or other
documentation presented for signature in connection with a
delivery, shall be evidence of the receipt by the Customer of
the delivery and that the amount of Goods specified on the
delivery note have been delivered and the Goods are in good
condition and undamaged by transit.
6.4 If the Company delivers to the Customer a quantity of Goods
(where such Goods constitute materials delivered in bulk) of
up to 10% more or less than the quantity ordered, the
Customer shall not be entitled to object to or reject the Goods
or any of them by reason of the surplus or shortfall and shall
pay for such Goods at the pro rata Contract rate.
FPM/CoS/Rev1.0/Mar 2017
6.5 All illustrations, drawings and other information issued by the
Company in catalogues, price lists, advertisements, or any
other publications, must be regarded as approximate
representations only, except where otherwise specified.
Weights, dimensions, measurements, capacities and all other
particulars of the Goods are stated by the Company in good
faith as being approximately correct and are given as
accurately as circumstances permit but are not taken as
conclusive. Defects in quality or dimensions in any delivery
shall not be a ground for cancellation of the remainder of the
order.
6.6 Time for delivery shall not be of the essence unless previously
agreed by the Company in writing.
7 Notification of rejection, partial loss, damage etc.
7.1 The Company must be notified in writing of any claim to reject
the Goods within three days of such goods being delivered if
such claim is to be considered.
7.2 The Company (and where appropriate the carrier) must be
notified in writing of a claim for damage to or partial loss of the
Goods within three days of delivery.
7.3 Goods supplied by the Company will only be replaced if the
Company is satisfied that they were defective in material or
workmanship upon delivery.
8 Return of Goods
8.1 Goods shall not be returned to the Company’s works unless
an arrangement has been made with the Company to that
effect and receipt by the Company at its works or sales office
or returned goods shall not be deemed to be evidence of any
agreement to cancel an order nor an admission of any defect
in such goods. Goods will only be exchanged or credited
(where agreed by the Company) subject to a handling charge,
if in good, clean and saleable condition, and returned to the
Company carriage paid giving date of invoice or purchase. A
further charge will be made for cleaning where necessary.
Specially-made goods cannot be credited in any
circumstances.
9 Passing of Property
9.1 Ownership of the Goods shall not pass to the Customer until
the Company has received in full (in cash or cleared funds) all
sums due it in respect of the Goods and all other sums which
are or which become due to the Company from the Customer
on any account.
9.2 Until ownership of the Goods has passed to the Customer, the
Customer must:
(a) hold the Goods on a fiduciary basis as the Company’s
bailee;
(b) store the Goods (at no cost to the Company) separately
from all other goods of the Customer or any third party in
such a way that they remain readily identifiable as the
Company’s property;
(c) not destroy, deface or obscure any identifying mark or
packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition insured on
the Company’s behalf for their full price against all risks
to the reasonable satisfaction of the Company. On
request the Customer shall produce the policy of
insurance to the Company; and
(e) hold the proceeds of the insurance referred to in this
condition on trust for the Company and not mix them
with any other money, nor pay the proceeds into an
overdrawn bank account.
9.3 The Customer may resell the Goods before ownership has
passed to it solely on the conditions that any sale shall be
effected in the ordinary course of the Customer’s business at
full market value and any such sale shall be a sale of the
Company’s property on the Customer’s own behalf and the
Customer shall deal as principal when making such a sale.
9.4 The Customer’s right to possession of the Goods shall
terminate immediately if:
(a) the Customer has a bankruptcy order made against it or
makes an arrangement or composition with its creditors,
or otherwise takes the benefit of any Act for the time
being in force for the relief of insolvent debtors, or (being
a body corporate) convenes a meeting of creditors
(whether formal or informal), or enters into liquidation
(whether voluntary or compulsory) except a solvent
voluntary liquidation for the purpose only of
reconstruction or amalgamation, or has a receiver and/or
manager, administrator or administrative receiver
appointed (either in court or otherwise) of its undertaking
or any part thereof, or a resolution is passed or a petition
presented to any court for the winding up of the
Customer or for the granting of an administration order
in respect of the Customer, or any proceedings are
commenced relating to the insolvency or possible
insolvency of the Customer; or
(b) the Customer suffers or allows any execution, whether
legal or equitable, to be levied on its property or
obtained against the Customer suffers or allows any
execution, whether legal or equitable, to be levied on its
property or obtained against it, or fails to
observe/perform any of its obligations under the
Contract or any other contract between the Company
and the Customer, or is unable to pay its debts as
defined by the Insolvency (Northern Ireland) Order 1989
(or any equivalent legislation applicable to the
Customer)
and the Customer grants the Company, its agents and
employees an irrevocable licence at any time to enter any
premises where Goods are or may be stored in order to
inspect them, or, where the Customer’s right to possession
has terminated, to recover them.
10 Limitation of Liability
10.1 The following provisions set out the entire financial liability of
the Company (including any liability for the acts or omissions
of its employees, agents and sub-contractors) to the
Customer in respect of both any breach of these Conditions
and any representation, statement or tortious act or omission
including negligence arising under or in connection with the
Contract.
10.2 The Company warrants to the Customer, subject to condition
10.3 below:
(a) that the Goods comply with the specification
applicable to the Goods published by the Company (if
any);
(b) that the Goods will be of satisfactory quality (within
the meaning of the Sale of Goods Act 1979);
(c) that the Goods will be fit for any purpose held out for
such Goods by the Company (if any); and
(d) that the Goods will comply with all applicable statutory
regulations of application to the Goods as at the date
of the Contract.
10.3 Save as set out in condition 10.2 and implied by section 12 of
the Sale of Goods Act 1979, and subject to condition 10.4
below, all other warranties, conditions and terms implied by
statute or common law are, to the fullest extent permitted by
law, excluded from the Contract.
10.4 Nothing in these conditions excludes or limits the liability of
the Company
(a) for death or personal injury caused by the Company's
negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company
to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.5 Subject to condition 10.3 and condition 10.4:
(a) the Company's total liability in contract, tort (including
negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in
connection with any actual or alleged defect in the
Goods shall be limited to the direct cost of replacement
of such of the Goods as are defective (but for the
avoidance of doubt the direct cost shall not include
removal, recovery or extraction of the defective Goods
or the relaying of the replacement Goods); and
(b) the Company'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
following:
FPM/CoS/Rev1.0/Mar 2017
a. where the aggregate price paid by the Customer
for the Goods is £100,000 or less, the aggregate
price paid for the Goods by the Customer; or
b. where the aggregate price paid by the Customer
for the Goods exceeds £100,000, the greater of: (i)
£100,000 and (ii) 10% of the aggregate price paid
by the Customer for the Goods; and
c. in either case, the actual proceeds received by the
Company under its relevant insurance policy or
policies effected and maintained in accordance
with condition 11.1 in respect of the liability in
question; and
(c) the Company shall not accept any liability whatsoever in
contract, tort (including negligence or breach of statutory
duty), misrepresentation, restitution or otherwise, arising
in connection with the provision by the Company of
technical assistance in relation to the installation, use or
performance of the Goods; and
(d) the Company shall not be liable to the Customer for any
pure economic loss, loss of profit, loss of business,
depletion of goodwill or otherwise, in each case whether
direct, indirect or consequential, or any claims for
consequential compensation whatsoever (howsoever
caused) which arise out of or in connection with the
Contract.
10.6 The Company shall not be liable for any breach by it of these
Conditions (which breach will be subject to the limitation of
liability provisions in these Conditions) unless the Customer
notifies the Company within 7 days of the date on which it
became aware, or ought upon diligent enquiry to have
become aware, of such breach and unless after receiving
such notice the Company is given a reasonable opportunity of
remedying the alleged breach.
10.7 The Company shall not be liable to the Customer for any loss
(including loss of profit), costs, damages, charges or
expenses caused directly or indirectly by any delay in the
delivery of the Goods (even if caused by the Company’s
negligence), nor will the Company be deemed to be in breach
of the Contract by reason of any delay in performing, or any
failure to perform any of the Company’s obligations in relation
to the Goods, if the delay or failure was due to any cause
beyond the Company’s reasonable control.
10.8 Without prejudice to the generality of the foregoing, the
following shall be regarded as causes beyond the Company’s
reasonable control:
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil
disturbance or requisition;
(c) acts, restrictions, bye-laws, prohibitions or measures of
any kind on the party of government, parliamentary or
local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade
disputes (whether involving employees of the Company
or a third party);
(f) difficulties in obtaining raw material, labour, fuel, part of
machinery; and
(g) power failure or breakdown of machinery.
10.9 The Company shall be under no liability in respect of any
defect in Goods arising from any drawing, design or
specification supplied by the Customer or resulting from the
installation of the Goods.
10.10 The Company shall not be responsible for any direct loss or
damage and any indirect or consequential loss or damage
(including any loss of income, loss of profits or loss of interest
or opportunity) arising from any breach by the Customer of
these Conditions and the Customer will fully and effectively
indemnify the Company on demand against any such loss that
it suffers whether directly or as a result of a claim against it by
any third party.
11 Insurance
11.1 The Company shall effect and maintain, with insurers who are
of good financial standing and who are appropriately
regulated, Employer’s Liability insurance and Public Liability
insurance as required by law in respect of its obligations and
liabilities under this Contract for an amount of not less than
£10m per any one occurrence.
11.2 Subject to condition 10, the Customer shall have no recourse
or claim against the Company in the event that:
(a) the proceeds from the Company’s Insurances are
insufficient to indemnify the Customer in respect of its
losses, costs, damages and/or expenses suffered as a
consequence of the occurrence of a given risk;
(b) the relevant insurer or underwriter refuses or delays
payment of any insurance proceeds;
(c) proceeds under the Company’s Insurances become
irrecoverable in whole or in part; or
(d) insurance proceeds (in whole or in part) are not received
by the Company for any other reason,
save where any of the events set out in this condition 11.2
occur as a direct result of a default of the Company or any
negligent act or omission on the part of the Company
(including any failure on the part of the Company to have the
Required Insurances in place).
11.3 Should one or more of the circumstances set out in condition
11.2(a) to 11.2(d) arise, the Company agrees to communicate
with the relevant insurer of the Company’s Insurance(s) and to
the extent practicable, to negotiate with that insurer in good
faith in an effort to recover the proceeds, in whole or in part,
under the Company’s Insurances for the benefit of the
Customer.
11.4 The Company agrees to keep the Customer fully informed of
all communications and negotiations with any insurer should
any of the circumstances in condition 11.2(a) to 11.2(d) arise,
and to provide written copies of any relevant correspondence
between the Company and any insurer if so requested by the
Customer.
12 Insolvency of Customer
12.1 Without prejudice to common law and statutory rights relating
to stoppage in transit, and rights in respect of any antecedent
breaches, if the Customer fails or is unable to comply with, or
perform any of the terms of the Contract, or commits any act
of bankruptcy, or shall suffer any execution or distress to be
levied on his goods or being a company shall enter into
liquidation whether compulsory or voluntary (save for the
purposes of reconstruction or amalgamation) or shall have a
Receiver appointed, then the Company shall have the right
forthwith to determine the Contract.
13 Assignment
13.1 The Customer shall not be entitled to assign the Contract or
any part of it without the Company’s prior written consent.
13.2 The Company may assign the Contract or any part of it to any
person, firm or company.
14 Notice
14.1 Any notice required or permitted to be given by either party to
the other under these Conditions shall be in writing addressed
to that other party at its 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.
15 Waiver
15.1 Failure or delay by the Company in enforcing or partially
enforcing any provision of the Contract will not be construed
as a waiver of any of its rights under the Contract. Any waiver
by the Company of any breach of, or any default under, any
provision of the Contract by the Customer will not be deemed
a waiver of any subsequent breach or default and will in no
way affect the other terms of the Contract.
16 Third Party Rights
16.1 Neither the Company nor the Customer intend that any term
of this Contract will be enforceable by virtue of the Contracts
(Rights of Third Parties) Act 1999 by any person that is not a
party to it.
17 Severance
17.1 If any provision or part-provision of these Conditions 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
FPM/CoS/Rev1.0/Mar 2017
under this condition 17.1 shall not affect the validity and
enforceability of the rest of the Conditions.
17.2 If any provision or part-provision of these Conditions is invalid,
illegal or unenforceable, the Company and the Customer shall
negotiate in good faith to amend such provision so that, as
amended, it is legal, valid and enforceable and, to the greatest
extent possible, achieves the intended commercial result of
the original position.
18 Dispute Resolution
18.1 Any dispute or difference arising out of or in connection with a
contract for the supply of goods by the Company, whether on
a supply-only basis or not, may be referred to adjudication as
a construction contract in accordance with the provisions of
the Construction Contracts (Northern Ireland) Order 1997.
18.2 If any difference or dispute arising out of or in connection with
a contract for the supply of goods by the Company cannot be
finally resolved under the adjudication procedure referred to in
condition 18.1, it shall be referred for final settlement by a
single arbitrator sitting in Northern Ireland under the Rules of
the Chartered Institute of Arbitrators. Such arbitrator shall be
appointed (in default of agreement) by the President for the
time being of the Chartered Institute of Arbitrators, and such
reference shall be deemed a submission to Arbitration in
accordance with the Arbitration Act 1996 or any statutory
modification or re-enactment thereof for the time being in
force.
19 Applicable Law and Jurisdiction
19.1 These Conditions shall be governed by and construed in
accordance with the law of Northern Ireland and the Northern
Ireland Courts shall have exclusive jurisdiction over all
differences and disputes which shall arise between the
Company and the Customer.
20 Entire Agreement
20.1 These Conditions together with the Company’s order
acknowledgement (where such order acknowledgement
exists) contain the entire agreement between the parties in
respect of the Goods and supersede any previous
agreements, arrangements, undertakings or proposals, written
or oral between the parties. In agreeing to these Conditions,
the Customer confirms that he has not relied on any
representation other than those expressly stated and agrees
that he shall have no remedy in respect of any
misrepresentation that has not been made expressly in these
Conditions or on the Company’s order acknowledgement.