Terms & Conditions
1.1 In these Conditions the following words have the following meanings:
“Additional Charges” means any sum payable by the Buyer to the Company in addition to monies owed to the Company arising under the Contract for the supply of Goods or any other contract, including but not limited to: costs of storing the Goods at the designated port, the hourly rate of the road haulage company delivering the Goods, and any interest that becomes payable under these Terms and any other associated costs or expenses; “the Buyer” the person(s), firm or company who purchases the Goods from Flexiload Asia Limited, the Company.
“Conditions” the terms and conditions of sale set out in this document and, unless the context otherwise requires, includes any special terms agreed in writing between the Buyer and the Company;
“Contract” any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Goods” any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
“Order” means the written order sent to the Company by the Buyer by post, email or fax detailing the Goods;
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from Flexiload Asia Limited time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 The Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, or other document).
2.2 These Conditions apply to all the Company’s sales where the Buyer buys in the course of his business. Any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorized representative of the Company.
2.3 Any quotation or list of prices is given on the basis that no Contract will come into existence until it is accepted by the Buyer. Any quotation or list of prices is valid for a period of 7 days only from Flexiload Asia Limited its date or if later, the date it is received by the Buyer, provided that the Company has not previously withdrawn it.
2.4 Each order for the Goods by the Buyer to Flexiload Asia Limited the Company shall be made by the Buyer placing the Order and paying the price of the Goods and such order shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 The Buyer’s offer shall be accepted by the Company issuing an acknowledgement of the Order to the Buyer referred to in clause 2.4.
2.6 The Buyer must ensure that the acknowledgement of the Order issued to it by the Company is accurate and the Company is given as much information as is necessary to enable it to perform the Contract including but not limited to written details of the delivery address.
2.7 The Buyer shall be entitled to cancel the Contract by notifying the Company in writing within 3 days from the date of sending the Order and deposit referred to in clause 2.4 to the Company.
3.1 The description of the Goods shall be as set out in the acknowledgement of the Order issued by the Company to the Buyer.
3.2 All drawings, descriptive matters, specifications, advertising and samples issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods. They will not form part of the Contract.
Some Goods are made from Flexiload Asia Limited natural timber. The Buyer accepts that the colour/grain of Goods may vary and may mellow with age/exposure to sunlight.
3.3 The Buyer accepts that the quantity of the Goods may vary by plus and minus 5%.
4.1 The Buyer acknowledges that the Goods ordered by the Buyer will be specifically for the Buyer and delivered to the designated delivery address. In these circumstances the Buyer accepts that it is reasonable for any storage charges incurred by the Buyer to be the dock storage charges and the Company has no responsibility to find alternative storage for the Goods.
Unless otherwise agreed in writing by the Company delivery of the Goods shall take place when the Company has delivered the Goods to the address in the United Kingdom which has been agreed with the Buyer and which the Buyer has confirmed in writing to the Company (“the Delivery Point”).
4.2 The Company will inform the Buyer in writing of the date the Goods are due to arrive at the designated port, the exact quantity of the Goods within the container and request payment of all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract. The Company and the Buyer will agree a time and date on which the Goods shall be delivered within 7 days of the date the Goods are due to arrive at the designated port. The Company shall confirm the agreed delivery date and time in writing to the Buyer.
4.3 Delivery of the Goods will only take place if payment of all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract is made by the Buyer and received in cleared funds by the Company before the agreed date and time of delivery of the Goods. The Company reserves the right to refuse to deliver the Goods if payment of all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract is not made by the Buyer and received in cleared funds by the Company by the agreed date and time of delivery of the Goods.
4.4 If payment of all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract is not made by the Buyer and received in cleared funds by the Company within 7 days of the date the Goods arrive at the designated port, the Buyer shall be liable for the cost of storage of the Goods at the port for the period of time that all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract continues to be unpaid and the Goods undelivered in addition to any other associated costs and expenses and/or shall indemnify the Company for any storage charges it incurs in addition to any other associated costs or expenses.
4.5 If payment of all the outstanding monies owed to the Company under the Contract for the supply of the Goods or any other contract is not made by the Buyer to the Company within 21 days of the date the Goods arrive at the designated port then the Company shall retain the deposit referred to in clause 2.4 above and the Buyer shall lose the right to receive delivery of the Goods.
4.6 Upon the Company delivering the Goods to the Delivery Point, the Buyer shall unload the delivery vehicle within 3 hours of the time the vehicle arrives at the Delivery Point (the Time for Unloading). If the Buyer fails to unload the delivery vehicle by the Time For Unloading, the Buyer shall be liable to pay the hourly rate of the road haulage company for the number of part and complete hours between the expiry of the Time For Unloading and the time the Buyer unloaded the delivery vehicle.
4.7 Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss or damage, including but not limited to, loss of profit, loss of business, depletion of goodwill or otherwise, costs, claims, charges, expenses or other claims for consequential compensation whatsoever which arises out of or in connection with any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to rescind or terminate the contract unless such delay exceeds 180 days.
4.8 The Company may deliver the Goods by separate instalments of any size and in any order.
4.9 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note for the invoice value of the undelivered Goods.
5.1 The Goods are at the risk of the Buyer from Flexiload Asia Limited to the time the Goods are delivered to the Delivery Point.
5.2 Ownership of the Goods shall not pass to the Buyer until the Company has delivered the Goods to the Delivery Point and the Company has received in full and in cleared funds all sums due to it in respect of:
5.2.1 The Goods;
5.2.2 all other sums which are or which become due to the Company Flexiload Asia Limited the Buyer on any account; and
5.2.3 Any Additional Charges.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
5.3.1 Hold the Goods on a fiduciary basis as the Company’s bailee;
5.3.2 Store the Goods (at no cost to the Company) separately Flexiload Asia Limited all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
5.3.3 Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 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 Buyer shall produce the policy of insurance to the Company; and
5.3.5 Hold the proceeds of the insurance referred to in condition 5.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into any overdrawn bank account.
5.4 The Buyer may resell the Goods before ownership has passed to is solely on the following conditions:
5.4.1 Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
5.4.2 Any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
5.5 The Buyer’s right to possession of the Goods shall terminate immediately if: 5.5.1 The Buyer has a bankruptcy order made against him or makes an arrangements or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purposes only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of his undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or 5.5.2 The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his property or obtained against him, or fails to observe/perform any of his obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
5.5.3 The Buyer encumbers or in any way charges any of the Goods.
5.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Flexiload Asia Limited the Company.
5.7 The Buyer grants the Company, it agents and employees an irrevocable licence to enter any premises where the Goods are to recover the Goods, where the Buyer’s right to possession has terminated.
6.1 The price for the Goods shall be the price set out in the acknowledgement of the Order issued by the Company to the Buyer.
6.2 Unless otherwise stated, the price for the Goods shall be exclusive of any value added tax.
6.3 The price for the Goods shall be Delivered Duty Paid to the Delivery Point.
6.4 The Company reserves the right, by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, alteration of duties and significant increases in the costs of the Company) or any delay caused by any instructions of the Buyer or by the failure of the Buyer to give the company adequate information or instructions.
7.1 Payment of the price for the Goods and any Additional Charges shall be made by the Buyer as follows:-
7.1.1 When the Buyer places the Order, the Buyer shall pay in full the price of the Goods to the Company; and
7.1.2 The balance of the price of the Goods and any Additional Charges shall be made by the Buyer before the date of delivery of the Goods.
7.4 Time for payment shall be of the essence.
7.5 No payment shall be deemed to have been received by the Company until the Company has received cleared funds.
7.6 If the Buyer cancels the Contract pursuant to condition 2.7 the deposit referred to in condition 7.1.1 shall be refunded to the Buyer. If the Contract is terminated for any other reason, all payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
7.7 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
7.8 If the Buyer fails to pay the Company the sum referred to in clause 7.2.2 by the delivery date which has been agreed between the parties before or at the time the Goods are delivered to the designated port and notified to the Buyer in writing by the Company (“the First Agreed Delivery Date”), the Company shall not deliver the Goods and the Goods shall be stored at the port until payment is made by the Buyer and a new delivery date is agreed between the parties (“the Second Agreed Delivery Date”). The Buyer shall be liable to pay any storage charges in respect of the storage of the Goods at the port in addition to any associated costs and expenses and/or indemnify the Company for any storage charges it incurs for the storage of the Goods at the port in addition to any other associated costs or expenses.
If the Buyer fails to pay the Company the sum referred to in clause 7.2.2 within 21 days of the date the Goods are delivered to the port, the Buyer loses the right to receive delivery of the Goods and the Company shall retain the deposit paid to it referred to in clause 7.2.1 above.
7.10 If the Buyer fails to pay the Company any sum due pursuant to the Contract by the First Agreed Delivery Date the Buyer will be liable to pay interest to the Company on such sum from the First Delivery Date at the annual rate of 2% above the base lending rate from time to time of National Westminster Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8. COMPANY WARRANTIES
8.1 The Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
8.2 The Company guarantees (subject to the other provisions of these Conditions) the Goods against defective materials or workmanship for a maximum period of 12 months from the date of delivery.
IMPORTANT: WARRANTY LIMITATIONS
8.3 The Company shall not be liable for a breach of the warranty in Condition 8.2 unless:
8.3.1 The Buyer gives written notice of the defect to the Company within 3 days of the time when the Buyer discovers or ought to have discovered the alleged defect; and
8.3.2 The Company is given a reasonable opportunity after receiving the notice of examining such Goods.
8.4 The Company shall not be liable for a breach of the warranty in Condition 8.2 if:
8.4.1 the Buyer makes any further use of such Goods after giving such notice; 8.4.2 the defect arises because the Buyer failed to store the Goods in dry and suitable conditions and/or follow the Company’s oral or written instructions as to the use or maintenance of the Goods or (if there are none) normal trade practice; or
8.4.3 The Buyer alters or repairs such Goods without the written consent of the Company.
8.5 Subject to Conditions 8.3 and 8.4, if any of the Goods do not conform with the warranty in condition 8.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall return the Goods or the part of such Goods which is defective to the Company. 8.6 If the Company complies with condition 8.5 it shall have no further liability for a breach of the warranty in respect of such Goods.
8.7 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the warranty period.
8.8 The warranty in Condition 8.2 will be null and void if any Goods are used in other than a domestic environment.
9. LIMITATION OF LIABILITY
9.1 Subject to condition 8, 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 Buyer in respect of:
9.1.1 Any breach of these Conditions; and
9.1.2 Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
9.4 Nothing in these Conditions shall affect the statutory rights of a buyer where Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restriction on Statements) Order 1976.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 9.5
9.5 Subject to Conditions 9.2 and 9.3: 9.5.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
9.5.2 The Company shall not be liable to the Buyer for any direct, indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatever (howsoever caused) which arise out of or in connection with the Contract.
10.1 The Company may assign the Contract or any part of it to any person, firm or Company.
10.2 The Buyer shall not be entitled to assign the Contract or any part of it to any person, firm or company.
11. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or reduce the volume of Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from Flexiload Asia Limited or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. Provided that, if the event in question continues for a continuous period in excess of 180 days, either party shall be entitled to give notice in writing to the Company to terminate the Contract.
12.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
12.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.3 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.
12.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way effect the other terms of the Contract.
12.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
12.6 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these Conditions but this does not affect any right or remedy of any third party which exists or is available apart from Flexiload Asia Limited that Act.
13.1 All communications between the parties about this Contract must be in writing and delivered electronically, by hand or sent by pre-paid first class post or sent by facsimile transmission:
13.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or 13.1.2 (In the case of the communications to the Buyer) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
13.2 Communications shall be deemed to have been received:
13.2.1 If sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); 13.2.2 If delivered by hand, on the day of delivery;
13.2.3 If sent by facsimile transmission on a working day prior to 4.00 p.m., at the time of transmission and otherwise on the next working day.
13.3 Registered Office: Flexiload Asia Ltd, Unit 1005, 10F Prosperous Building, 48-52 Des Voeux Road, Central Hong Kong. 13.3.1 Beijing Office: Flexiload Asia Limited. Room 1619, Building#2, 16 Nan Huan West Road, Fengtai District. Beijing. China. 100068.
13.3.2 UK Correspondence: 8 Allerton Road, Central Park, Rugby, Warwickshire CV23 0PA.