NI:028 7964 2558
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Conditions of Sale (With Technical Assistance)

 

1. Interpretation
1.1 In these Conditions:
“Approval Basis” means (in relation to the provision of Technical Assistance) the provision of
Technical Assistance where the Customer and the Company have agreed that the Company will
bear Design Responsibility;
“Adoption-Only Basis” means (in relation to the provision of Technical Assistance) the provision of
Technical Assistance where the Company bears no Design Responsibility;
“Customer” means a person to whom the Company supplies, or contracts for the supply of goods
and the provision of Technical Assistance;
“Company” means F.P. McCann Limited whose Head Office is situate at Knockloughrim Quarry, 3
Drumard Road, Magherafelt, BT45 8QA, Northern Ireland;
“Company’s Chief Engineer” means a person nominated as such by the Company from time to
time;
“Company’s Insurances” means insurances effected and maintained by the Company in
accordance with conditions 8.1 and 8.2 hereof;
“Conditions” means the standard conditions of sale set out in this document and the Contract
Schedule and (unless the context otherwise requires) includes any special terms and conditions
agreed in writing between the parties;
“Contract” means the contract for sale of Goods and supply of Technical Assistance by the
Company containing these Conditions;
“Contract Schedule” means the schedule annexed to this document and which forms part of the
Contract;
“Design Responsibility” means (but without prejudice to the provisions of condition 4.2) the
obligation to ensure that the Goods are designed to satisfy the requirements of the Technical
Data;
“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;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights,
trade marks and service marks, trade names and domain names, rights in get-up, rights to
goodwill and to sue for passing off and unfair competition, rights in designs, rights in computer
software, database rights, rights in confidential information (including know-how and trade
secrets) and any other intellectual property rights, in each case whether registered or
unregistered and including all applications (and rights to apply) for, and renewals or extensions
of, such rights and all similar or equivalent rights or forms of protection which subsist or will
subsist, now or in the future, in any part of the world;
“Technical Assistance” means technical assistance to be provided by the Company in relation to
the application of Goods either on an “Approval Basis” or alternatively on an “Adoption Only
Basis” as set out in these Conditions;
“Technical Data” means all technical data (including without limitation designs, site condition
reports, load-bearing calculations, load combinations, geotechnical reports, durability and
exposure condition data and interface conditions data) provided by the Customer (or on the
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Customer’s behalf) to the Company before or during the provision by the Company of Technical
Assistance.
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 or Technical Assistance. 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 the Company’s Chief Engineer. Any representations
about the Goods or Technical Assistance, shall have no effect unless expressly agreed in
writing and signed by the Company’s Chief Engineer.
2.3 Each order placed by the Customer shall be deemed to be an offer by the Customer to
purchase Goods and to retain the Company to supply Technical Assistance subject to these
Conditions.
2.4 The quantity and description of 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.
2.5 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.
3. Conditions pertaining to the delivery of Goods
3.1 Specifications
(a) 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.
3.2 Delivery
(a) Any time named by the Company for delivery of Goods 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;
(b) 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;
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(c) 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;
(d) 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; and
(e) 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.
3.3 Notification of rejection, partial loss, damage etc.
(a) 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;
(b) 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; and
(c) Goods supplied by the Company will only be replaced if the Company is satisfied that
they were defective in material or workmanship upon delivery.
3.4 Return of Goods
(a) 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.
3.5 Passing of Property
(a) 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:-
(i) 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;
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(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
(b) 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;
(c) The Customer’s right to possession of the Goods shall terminate immediately if:-
(i) 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
(ii) 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.
4. Conditions pertaining to the provision of Technical Assistance
4.1 The provision by the Company of Technical Assistance shall be deemed to be exclusively on
an Adoption-Only Basis unless otherwise stated in the Contract Schedule (and the Customer
recognises and agrees that the Company will bear no Design Responsibility where Technical
Assistance is provided on an Adoption-Only Basis).
4.2 The Company shall in the provision of Technical Assistance be entitled to assume the
accuracy and adequacy of the Technical Data supplied to it by the Customer (or any third
party retained on the Customer’s behalf) and the Company shall be under no liability to the
Customer in respect of any failure (or alleged failure) to provide Technical Assistance with
reasonable skill and care and/or in breach of the Contract where such failure (or alleged
failure) is as a consequence of the inaccuracy or inadequacy of the Technical Data.
5. Prices
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5.1 The price of Goods (which shall for the purposes of this condition 5 include the provision of
Technical Assistance) 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 or hourly rate at
the date of dispatch of the order.
5.2 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.
5.3 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.
6. Terms of Payment
6.1 Unless otherwise agreed, accounts are strictly nett and payment in full must be made within
30 days from the date of invoice notwithstanding that (in respect of the delivery of Goods)
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.
6.2 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 or the provision of further services
to the Customer;
(b) appropriate any payment made by the Customer to such of the Goods for goods or
services 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.
6.3 The Customer shall make all payments to the Company without any deduction whether by
way of set-off, counterclaim, discount, abatement or otherwise.
7. Limitation of Liability
7.1 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.
7.2 The Company warrants subject to condition 7.4 below to the Customer:-
(a) that the Goods comply with the specification applicable to the Goods published by the
Company (if any);
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(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);
(d) that the Goods will comply with all applicable statutory regulations of application to the
Goods at the date of the Contract; and
(e) that Technical Assistance will be supplied with reasonable skill and care.
7.3 Save as:-
(a) set out in condition 7.2; and
(b) implied by section 12 of the Sale of Goods Act 1979
and subject to condition 7.4 below all other warranties, conditions and terms implied by
statute or by common law are, to the fullest extent permitted by law, excluded from the
Contract.
7.4 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.
7.5 Subject to condition 7.3 and condition 7.4
(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 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 and/or
installation 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:
(i) 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
(ii) 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
(iii) in either case, the actual proceeds received by the Company under its relevant
insurance policy or policies, effected and maintained in accordance with
conditions 8.1 and 8.2, in respect of the liability in question; and
(c) 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 failure on the part of the Company to provide Technical Assistance with
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reasonable skill and care giving rise to any direct or reasonably foreseeable loss shall
be limited to the following:
(i) where Technical Assistance is provided on an Approval Basis, the actual
proceeds received by the Company under its Professional Indemnity insurance
policy effected and maintained in accordance with condition 8.2; or
(ii) where Technical Assistance is provided on an Adoption-Only Basis, the
aggregate amount paid by the Customer under the Contract or £1m (whichever is
the lesser); and
(d) the Company shall not in any event be liable to the Customer for any pure economic
loss, loss of profit, loss of business, depletion of goodwill or otherwise, indirect or
consequential losses, or any claims for consequential compensation whatsoever
(howsoever caused) which arise out of or in connection with the Contract.
7.6 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.
7.7 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 or the provision of Technical Assistance, 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.
7.8 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.
7.9 The Company shall be under no liability in respect of any defect in the Goods or any claim
arising from:-
(a) any application of the Goods for a purpose other than that held out by the Company as
being a purpose for which the Goods are fit (whether or not such intended application
was made known to the Company at the time of the Customer’s order) unless the
Goods have been certified in writing prior to the Contract as being fit for such
application by the Company’s Chief Engineer.
(b) any installation or attempted installation of the Goods in a manner not consistent with
the installation guidelines published by the Company from time to time.
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(c) any alteration or attempted alteration of the Goods after delivery (unless the nature of
such alteration has been certified in writing as not being detrimental or potentially
detrimental to the performance of the Goods by the Company’s Chief Engineer).
(d) any repair or attempted repair of the Goods after delivery (unless the nature of such
repair has been certified in writing as not being detrimental or potentially detrimental to
the performance of the Goods by the Company’s Chief Engineer).
8. Insurance
8.1 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.
8.2 The Company shall effect and maintain, with insurers who are of good financial standing and
who are appropriately regulated, Professional Indemnity insurance in respect of its
obligations and liabilities under this Contract for an amount of not less than £1m in the
aggregate or such greater sum as may be stated in the Contract Schedule.
8.3 Subject to condition 7, 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 8.3 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 Company’s Insurances in place).
8.4 Should one or more of the circumstances set out in condition 8.3(a) to 8.3(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.
8.5 The Company agrees to keep the Customer fully informed of all communications and
negotiations with any insurer should any of the circumstances in conditions 8.3(a) to 8.3(d)
arise, and to provide written copies of any relevant correspondence between the Company
and any insurer if so requested by the Customer.
9. Intellectual Property Rights
9.1 Unless otherwise expressly agreed in writing between the Customer and the Company
(acting by the Company’s Chief Engineer) ownership of all Intellectual Property Rights
created by the Company in the case of the manufacturer of the Goods and/or the delivery of
Technical Assistance and all Intellectual Property Rights subsisting in the Goods or any
deliverable produced by the Company in the case of the provision of Technical Assistance
shall at all times remain vested absolutely in the Company.
10. Insolvency of Customer
10.1 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
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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 administration or shall have a Receiver appointed over all or any part of
its assets, then the Company shall have the right forthwith to determine the Contract.
11. Assignment
11.1 The Customer shall not be entitled to assign the Contract or any part of it without the
Company’s prior written consent.
11.2 The Company may assign the Contract or any part of it to any person, firm or company.
12. Notice
12.1 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.
13. Waiver
13.1 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.
14. Third Party Rights
14.1 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.
15. Severance
15.1 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 or deletion of a provision or partprovision
under this condition 15.1 shall not affect the validity and enforceability of the rest of
the Conditions.
15.2 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.
16. Dispute Resolution
16.1 Any dispute or difference arising out of or in connection with a contract for the supply of
Goods or the provision of Technical Assistance by the Company, (whether in relation to
Goods, 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.
16.2 If any difference or dispute arising out of or in connection with a contract for the supply of
Goods or the provisions of Technical Assistance by the Company cannot be finally resolved
under the adjudication procedure referred to in condition 14.1, 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
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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.
17. Applicable Law and Jurisdiction
17.1 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.
18. Entire Agreement
18.1 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
supply of Goods and/or the provision of Technical Assistance 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.