TERMS AND CONDITIONS OF SALE

TERMS AND CONDITIONS OF SALE

(November 2020)

 

These Terms and Conditions of Sale (also referred to as the “Agreement”) apply to the Contract, to the exclusion of any terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or cause of dealing.

AGREED TERMS

1.	DEFINITIONS AND INTERPRETATION
1.1	The definitions and rules of interpretation in this clause apply in these Conditions (unless the context requires otherwise).
	“Buyer” refers to the individual firm or company to whom a quotation for the sale of Products is addressed or whose purchase order for the purchase of Products is accepted by Falcon. “Conditions” means these standard terms and conditions of sale. “Contract” means the particular individual contract for the supply of Products by Falcon to the Buyer created by the issue by Falcon to the Buyer of the Sales Order Acknowledgement pursuant to Condition 3.2 below. “Falcon” means Falcon Trunking Systems Limited, incorporated and registered in England and Wales with company number 02645669 whose registered office is at Butterworth Street, Littleborough, Rochdale, Lancs, OL15 8JS. “Group Company” means in relation to a party, that party, each and any subsidiary or holding company from time to time and each and any subsidiary from time to time of a holding company of that party (with “holding company” and “subsidiary” defined in accordance with Section 1159 of the Companies Act 2006). “Incoterms” means Incoterms 2020 as published by International Chamber of Commerce or such other edition in force at the date when the Contract is made. “Products” means goods and/or materials as specified in a Sales Order Acknowledgement. “Sales Order Acknowledgement” means the document entitled Sales Order Acknowledgement generated by Falcon and sent by post, courier, fax or e mail by Falcon to the Buyer. “Services” means any services to be provided by Falcon to the Buyer as ancillary services in respect of the supply of the Products by Falcon. “Special Conditions” Means any such additional terms agreed from time to time in writing between Falcon and the Buyer.
1.2	The headings in these Conditions are inserted for convenience only and shall not affect their construction.
1.3	A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re enactment and includes any subordinate legislation for the time being in force made under it.
1.4	Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5	Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
1.6	All references to prices, Products and Services contained in these Conditions shall be taken to mean the prices, Products and Services detailed in Falcon’s Sales Order Acknowledgement.
2.	APPLICATION
2.1	These Conditions shall govern and be incorporated in every Contract made by or on behalf of Falcon with the Buyer and unless otherwise expressly agreed in writing between Falcon and the Buyer shall prevail over any terms and conditions contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing.
2.2	Falcon’s quotation is not to be taken as an offer and no Contract shall take effect unless and until a Sales Order Acknowledgement has been issued by Falcon to the Buyer.
2.3	Falcon is prepared to receive the Buyer’s order by telephone, by fax or by e mail but will have no responsibility whatsoever for any error or omission in the transmission of the Buyer’s order.
2.4	Falcon shall be entitled to rely in all respects and in all circumstances on the contents of the Sales Order Acknowledgement as stating the quantity and grade of the Products and any Services to be supplied. Accordingly it shall be the Buyer’s sole responsibility to check the Sales Order Acknowledgement and to notify Falcon forthwith after the receipt of the same where the Products and any Services are not properly stated in the Sales Order Acknowledgement.
2.5	The Buyer acknowledges that these Conditions shall prevail over any qualification or condition purported to be imposed by the Buyer in any previous course of dealing between the Buyer and Falcon.
2.6	The Contract shall be based solely on these Conditions and any Special Conditions.
2.7	The Buyer expressly agrees that these Conditions and any Special Conditions shall take precedence over any contractual provisions offered by the Buyer. Falcon shall not be bound by and does not agree to any contractual provisions offered by the Buyer save to the extent, if any, that Falcon expressly agrees to the same in writing. The Buyer agrees that no actions taken by Falcon shall be interpreted as Falcon’s acceptance of any contractual provisions offered by the Buyer.
2.8	Any samples produced or shared by Falcon and by description or illustrations, contained in Falcon’s brochures, data sheets or displayed on Falcon’s website shall not form part of the Contract.
3.	ORDERS
3.1	Unless otherwise agreed in writing between the parties, the Buyer shall place orders for Products in bulk with a lead time of at least 14 days (or pursuant to any Special Conditions which may be agreed to between Falcon and the Buyer) and each order shall be in full unit quantities.
3.2	Falcon shall, as soon as reasonably practicable after receipt of an order, notify Buyer of whether it accepts such order and the anticipated delivery date for that order by issuing a Sales Order Acknowledgement. Each order which is so accepted shall constitute an individually binding Contract.
4.	DELIVERY
4.1	Time for delivery of the Products and completion of the Services is given as accurately as possible but is not guaranteed. Except where otherwise agreed in the Sales Order Acknowledgement, Falcon shall deliver to the Buyer’s premises as stated in the Buyer’s order(s).
4.2	The Buyer shall have no right to cancel the Contract for failure of Falcon to meet any delivery or completion time stated.
4.3	Upon receipt of each delivery of Products sold hereunder, the Buyer shall examine such Products for any damage, defects or shortage. Falcon will have no liability for damage in transit unless the Buyer notifies Falcon within three days of receipt of the Products and confirms by notification in writing within seven days of receipt of the goods, following which the provisions of Condition 10.2 shall apply. If the Buyer fails to give either such notice of rejection, the Buyer shall be deemed to have accepted the delivery in full.
4.4	Failure by the Buyer to take delivery of any one or more instalments of Products delivered in accordance with the Contract shall entitle Falcon to terminate the Contract either in whole or part.
4.5	Falcon shall be entitled to deliver the Products by instalments. Each instalment shall be treated as if it constituted a separate and distinct contract between Falcon and the Buyer.
5.	PRICE
	Save as otherwise agreed in writing by Falcon, or as indicated in the Sales Order Acknowledgement or any Special Conditions, the prices of the Products:
5.1	will be those prevailing at the time of delivery;
5.2	are stated as a price per unit of issue (as defined), tonne, litre, metre, squared metre or kilogram (as appropriate);
5.3	shall exclude all costs associated with expedited delivery including but not limited to costs relating to freight, transportation, insurance, delivery and unloading; and
5.4	are exclusive of any sales, excise or other taxes, which Falcon shall add at the appropriate prevailing rate.
6.	RETENTION OF TITLE
6.1	Risk of damage or loss of the Products shall pass to the Buyer at the time of delivery.
6.2	Notwithstanding delivery and passing of the risk of loss, Products will remain the property of Falcon until Falcon receives payment in full (in cash or cleared funds) for the Products and any other goods or Services that Falcon has supplied to the Buyer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums.
6.3	From delivery until title to the Products passes to the Buyer, the Buyer shall insure the Products for full value. The Buyer shall hold the proceeds of any claim on the insurance policy on trust for Falcon and shall immediately account to Falcon for any proceeds.
6.4	Until such time as the property in the Products passes to the Buyer the Buyer shall hold the Products as Falcon’s trustee and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Falcon property, but shall be entitled to use (or where authorised by Falcon in writing in advance, resell) the Products in the ordinary course of its business in which case all proceeds from such resale or reuse shall be held by the Buyer in trust for the benefit of Falcon.
6.5	Until such time as title to the Products passes to the Buyer, (and provided the Products are still in separate identifiable existence and have not been resold) Falcon shall be entitled at any time to require the Buyer to deliver up the Products to Falcon and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer where the Products are stored and repossess the Products (all to the fullest extent permitted by law, and where the Products are stored at the premises of a third party the Buyer shall procure a right for Falcon to enter such third party’s premises to repossess the Products).
6.6	The Buyer shall not be entitled to pledge, grant a security interest in, or charge by way of security for any indebtedness any of the Products which remain the property of Falcon, and if the Buyer does so all monies owing by the Buyer to Falcon shall (forthwith become due and payable, without prejudice to any other right or remedy of Falcon).
6.7	6.7.1 the Buyer shall be entitled to use (or where authorised by Falcon in writing in advance, resell) the Products in the ordinary course of business, provided that this right shall automatically cease should the Buyer become subject to any of the events listed in Condition 11.1.2; and 6.7.2 Falcon may elect for title to the Products to pass to the Buyer at any time following delivery to the Buyer.
7.	SERVICES
7.1	The provisions of this Condition 7 shall only apply if Falcon is providing Services to the Buyer.
7.2	In providing Services Falcon shall:
	7.2.1 provide Services with reasonable care and skill; 7.2.2 use reasonable endeavours to meet any performance dates agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; and 7.2.3 have the right to make any changes to the Services that are necessary to comply with any applicable law or safety requirement, or which do not materially or adversely affect the nature or quality of the Services.
8.	PAYMENT
8.1	Falcon may, on or after the date it sends any instalment of the Products, invoice the Buyer for those Products.
8.2	Buyer shall pay each invoice in full in accordance with the payment terms as set out on the invoice. Time shall be of the essence for payment of invoices by the Buyer.
8.3	Notwithstanding the provisions of Conditions 8.1 and 8.2, Falcon reserves the right (in Falcon’s absolute discretion) to require payment in full for the Products on or before delivery or otherwise to change any credit terms given to the Buyer from time to time.
8.4	Interest is payable on overdue amounts of invoices at the rate of 3% over the Bak of England base rate from time to time, to run from the due date for payment until receipt by Falcon of the full amount (including any accrued interest) whether before or after judgment.
8.5	All sums payable in respect of an order shall be payable in full by the Buyer without deduction of any kind, whether by way of set off, counterclaim or otherwise howsoever. The Buyer shall not be entitled to set off an amount owing or alleged to be owing to it by Falcon against amounts owing by it to Falcon.
9.	EXPORT SALES
9.1	The Buyer acknowledges that the export of Products and any associated technology, including intellectual property as further described in Condition 12, may be subject to export control regulations in certain applicable jurisdictions (as such regulations may be amended from time to time).
9.2	Buyer agrees that as a condition of Falcon’s acceptance of any order and therefore any Contract made under these Conditions, that:
	9.2.1 the Products and any associated technology will not be used: 9.2.1.1 for purposes associated with any chemical, biological, nuclear weapons or missiles capable of delivering such weapons, or in support of any terrorist activity; or 9.2.1.2 in breach of any applicable laws, trade sanctions or trade embargoes, including without limitation, in violation of licence requirements 1 C 998 under the Bureau of Industry and Security Export Administration Regulations; and 9.2.2 the Products and any associated technology will not be resold if it is known or suspected that they are intended to be used for such purposes.
9.3	In the event that Falcon is not able to obtain any requisite governmental licence, consent or permit or other authorisation in fulfilment of any order or Contract, Falcon shall not be liable to the Buyer or any third party in respect of any bond or guarantee or for any loss, damage or other resultant financial penalty.
9.4	The sales of the Products are subject to the Incoterm (if any) stated in the Sales Order Acknowledgement. In the event of any conflict between the provisions of Incoterms and these Conditions, then the Sales Acknowledgement Order shall prevail.
9.5	It is hereby agreed between the parties that the United Nations Convention on Contracts for the International Sales of Products shall not apply to any Contract pursuant to these Conditions.
9.6	The Buyer shall be responsible for complying with any legislation or regulations governing the importation of Products into the country of destination and for the payment of any duties on them.
10.	WARRANTY AND LIABILITY
10.1	Falcon warrants that the Products will, when delivered, comply with Falcon’s standard specification applicable at the time of manufacture.
10.2	Falcon is not liable for any defect in the Products unless the Buyer has given notice to Falcon within the time periods provided in Condition 4.3. If the Buyer notifies Falcon of a defect in the Products within the specified time periods, Falcon’s only obligation is, at its option, to either:
	10.2.1 replace or repair any quantity of the Products that are damaged or defective; or 10.2.2 refund to the Buyer the amount paid by the Buyer for the quantity of the Products that are the subject of the claim, together with the applicable transportation costs.
10.3	Falcon makes no representations and gives no warranties or undertakings:
	10.3.1 as to the suitability or otherwise of the Products for use in the manufacture of products by the Buyer or any other application; 10.3.2 as to the ownership, validity or subsistence of any intellectual property that may subsist in the Products or in any application or use thereof; or 10.3.3 for the benefit of the Buyer or the Buyer’s customers or agents.
10.4	It shall be the sole responsibility of Buyer to determine the suitability of the Products for use in the manufacture of products by Buyer or any other application and any use that Buyer may make of the Products is at Buyer’s own risk.
10.5	Falcon has not and will not participate in the design, manufacture, sale or distribution of any of the Buyer’s products.
10.6	Falcon is not liable to the Buyer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for:
	10.6.1 any defect in the Products or Services caused by fair wear and tear, abnormal or unsuitable conditions of storage or use after delivery, or an act, omission or default of the Buyer or a third party; or 10.6.2 loss of revenues, loss of contracts or loss of profits, whether direct, indirect or consequential loss, nor for any indirect or consequential loss and whether arising from negligence, breach of contract or otherwise.
10.7	The entire liability of Falcon under or in connection with the Contract, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, is limited to an amount equal to the total of the charges payable by the Buyer under the Contract.
10.8	Except as set out in these Conditions, all conditions, warranties and representations, express or implied by:
	10.8.1 statute; 10.8.2 common law; or 10.8.3 otherwise, in relation to: 10.8.3.1 the Products; or 10.8.3.2 any intellectual property that may subsist in the Products or in any use or application thereof, are excluded to the fullest extent permitted by law.
10.9	Nothing in these Conditions shall exclude or limit a party’s liability for fraud, for death or personal injury caused by its negligence, or for any other matter, if and to the extent that under English Law, liability for it cannot be excluded, restricted or limited in the context of this Agreement. The invalidity, illegality or unenforceability of any part of these Conditions does not affect or impair the continuation in force of the remainder of these Conditions.
11.	TERMINATION
11.1	Either party shall be entitled to terminate the Contract by giving written notice to the other if:
	11.1.1 the other party commits a material breach of any of the terms and conditions of the Contract and in the case of a material breach capable of remedy, fails to do so within 30 days of written notice being received specifying the material breach and requiring its remedy; and/or 11.1.2 if any encumbrancer takes possession of or a receiver, administrative receiver or similar officer is appointed over any of the property or assets of the other party or if the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or has a resolution for its winding up passed (except for the purpose of amalgamation or reconstruction not involving insolvency where the resulting entity agrees to be bound by or assumes the obligations imposed on the other party) or becomes insolvent or bankrupt or anything analogous to any of these events under the law of any jurisdiction occurs in relation to the other party or if the other party ceases or threatens to cease to carry on business or if the financial position of the other party deteriorates to such an extent that in the reasonable opinion of the performing party the capability of the other party adequately to fulfil its obligations under the Contract has been placed in jeopardy.
11.2	The termination or expiry of the Contract, however arising, will be without prejudice to the rights and remedies of Falcon accrued prior to termination. The Conditions that expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination or expiry of the Contract.
12.	INTELLECTUAL PROPERTY
12.1	All intellectual property rights (including but not limited to patents, trademarks, service marks, rights in designs, copyrights, database rights (whether or not any of these is registered and including applications for registration of the foregoing) and all rights and forms of protection of a similar nature or which have equivalent or similar effect to any of the foregoing which may subsist anywhere in the world) in or to the Products which vest in Falcon shall remain vested in Falcon. The Buyer acknowledges that these Conditions or any Contract do not operate to vest in the Buyer any right, title or interest in or to any such rights. The Buyer shall not at any time assert any rights in the goodwill attaching to any of Falcon’s trademarks or other intellectual property, and all such rights shall vest in and ensure exclusively for the benefit of Falcon. If the Buyer challenges the validity of Falcon’s rights in or to, or the validity of any of Falcon’s trademarks (or any applications or registrations thereof) or any other intellectual property of Falcon, then Falcon shall be entitled to terminate the Contract immediately.
12.2	The Buyer shall not cause or allow to be analysed and/or reverse engineered any Products, or any samples provided by Falcon, to determine the chemical composition, formulation, design and raw material content or measure the properties of such Products or samples, unless with the prior written consent of Falcon, which may be given or withheld in the sole and absolute discretion of Falcon.
13.	CONFIDENTIALITY
13.1	Each party agrees that all information received from the other party under the Contract, including the nature of the Products and/or Services to be provided by Falcon and the existence of any Contract shall be maintained in confidence and not disclosed to others, except as such disclosure may be required by applicable law or court order and the receiving party agrees not to use such information for any purpose other than the fulfilment of a Contract without the prior written consent of the other party. The obligations of confidentiality shall survive termination or expiry of the Contract.
13.2	Each party shall use reasonable care to protect the confidentiality of information received from the other party but in all events no lesser standard of care to protect the confidentiality of information received from the other party than it uses to protect its own confidential information, and shall limit disclosure of such information to those of its personnel and consultants and those of Falcon’s Group Companies who have an actual need to know and have a written obligation to protect the confidentiality of such information.
14.	ANTI-BRIBERY
14.1	Each party shall comply with all applicable laws, statutes, regulations and codes relating to anti bribery and anti corruption in any jurisdiction applicable to the parties and the supply of the Products and/or Services (“Applicable Bribery Law”). No party shall place the other in breach of any Applicable Bribery Law.
14.2	Each party shall maintain in place throughout the term of this Contract its own adequate policies and procedures to ensure compliance by it and its personnel with the Applicable Bribery Law, and will enforce those policies and procedures as necessary to avoid any breach by it or its personnel of Applicable Bribery Law. Each party shall promptly answer reasonable enquiries from the other party relating to those policies and procedures.
14.3	The Buyer shall promptly report to Falcon any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of this Contract.
14.4	Breach of this Condition 14 shall be deemed a material breach and not capable of remedy.
15.	FORCE MAJEURE
	If Falcon is prevented, hindered or delayed from or in supplying Products by an event or circumstance beyond its control (including, without limitation, strikes, lockouts and other industrial disputes, accidents, act of God, war, riot, civil commotion, malicious damage, compliance with a law or governmental order, rule, regulation or direction, reductions in or unavailability of power at manufacturing plant, breakdown of plant or machinery, or shortage or unavailability of raw materials from normal sources or routes of supply or delay by the Buyer in the performance of any of its obligations under the Contract (each of the foregoing being a “Force Majeure Event”)) Falcon may, at its option and without any liability for any loss or damage suffered by Buyer:
15.1	suspend deliveries while the Force Majeure Event (or its effects) continues (or continue); or
15.2	terminate any Contract so affected with immediate effect by written notice to the Buyer.
16.	REMEDIES AND WAIVERS
	No delay or omission by either party in exercising any right, power or remedy provided by law or under these Conditions shall:
16.1	affect that right, power or remedy; or
16.2	operate as a waiver of it.
	The single or partial exercise of any right, power or remedy provided by law or under these Conditions shall not preclude any other or further exercise of it or the exercise of any other right, power or remedy. The rights, powers and remedies provided in these Conditions are cumulative and not exclusive of any rights, powers and remedies provided by law.
17.	CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
17.1	The Buyer agrees that the controls, benefits, rights and licences granted to Falcon under the Contract are also granted to each member of Falcon’s Group and that any loss suffered by Falcon or a member of Falcon’s Group as a result of any action or omission under the Contract shall be deemed to be a loss of Falcon and recoverable from the Buyer under the Contract (subject to the agreed exclusions and limits on liability).
17.2	Other than as set out in Condition 17.1 above, a person who is not a party to the Contract will have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any of its terms.
18.	NO PARTNERSHIP
	Nothing in these Conditions and no action taken by the parties pursuant to these Conditions and any Contract made under them shall constitute a partnership, association, joint venture or other co-operative entity between the parties.
19.	GOVERNING LAW
19.1	These Conditions and any Contract made under them are governed by and shall be construed in accordance with English law. The parties submit to the exclusive jurisdiction of the English Courts in this respect.
19.2	1All disputes are to be settled by arbitration in London (in English) under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such rules.
20.	EXPERT DETERMINATION
20.1	An Expert is a person appointed in accordance with this clause to resolve a matter under the Agreement.
20.2	The parties shall agree on the appointment of an independent Expert and shall agree with the Expert the terms of their appointment.
20.3	If the parties are unable to agree on an Expert or the terms of their appointment within seven days of either party serving details of a suggested expert on the other, either party shall then be entitled to request CEDR (https://www.cedr.com/) to appoint an Expert of repute with international experience.
20.4	The Expert is required to prepare a written decision including reasons and give notice (including a copy) of the decision to the parties within a maximum of three months of the matter being referred to the Expert.
20.5	If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause then:
	20.5.1 either party may apply to CEDR to discharge the Expert and to appoint a replacement Expert with the required expertise; and 20.5.2 this clause shall apply to the new Expert as if they were the first Expert appointed.
20.6	All matters under this clause must be conducted, and the Expert’s decision shall be written, in the English language.
20.7	The parties are entitled to make submissions to the Expert (including oral submissions) and will provide (or procure that others provide) the Expert with such assistance and documents as the Expert reasonably requires for the purpose of reaching a decision.
20.8	To the extent not provided for by this clause, the Expert may in their reasonable discretion determine such other procedures to assist with the conduct of the determination as they consider just or appropriate [including (to the extent considered necessary) instructing professional advisers to assist them in reaching their determination.
20.9	Each party shall with reasonable promptness supply each other with all information and give each other access to all documentation and personnel and/or things as the other party may reasonably require to make a submission under this clause.
20.10	The Expert shall act as an expert and not as an arbitrator. The Expert shall determine the matter under the Agreement. The Expert may award interest as part of their decision. The Expert’s written decision on the matters referred to them shall be final and binding on the parties in the absence of manifest error or fraud.
20.11	Each party shall bear its own costs in relation to the reference to the Expert.
20.12	All matters concerning the process and result of the determination by the Expert shall be kept confidential among the parties and the Expert.
20.13	Each party shall act reasonably and co-operate to give effect to the provisions of this clause and otherwise do nothing to hinder or prevent the Expert from reaching their determination.
21.	INDEMNITY
	The Buyer agrees to indemnify, hold harmless, and defend Falcon, any Group Company of Falcon, and each of its or their respective officers, directors, agents, employees, representatives, successors, and assigns (collectively, “Indemnified Parties”) from and against any and all claims, demands, damages, fines, penalties, losses, causes of action, liabilities, and judgments (collectively, “Claims”) of every kind (including all expenses of litigation, court costs, and reasonable legal fees), for damage to any property or injury to or death of any person (including, but not limited to, employees of the Buyer) resulting from, arising out of, or in any way connected with the acts or omissions to act, of the Buyer, its officers, agents, employees, representatives, and contractors (collectively, the “Buyer Parties”), including to the extent any such Claims are based in part upon the joint or concurrent negligence or strict liability of Indemnified Parties, or whether any such Claims are by way of tort or contract or otherwise. The Buyer will not be required to indemnify Indemnified Parties for any Claims determined by final judgment of a court to have been caused by the wilful misconduct or gross negligence of Indemnified Parties. The Buyer shall also indemnify, hold harmless, and defend Indemnified Parties from and against any and all Claims resulting from, arising out of, or in any way connected with, any breach of the Agreement by any of the Buyer Parties, including breaches of any representation or warranty made hereunder, or the failure of any of the Buyer Parties to comply with any third party requirements or with any laws including, but not limited to, fines, penalties, and monetary sanctions imposed by any governmental entity, or political subdivision or agency thereof, associated with any such failure.