1.1 DEFINITION & INTERPRETATION
“FE” or “our” or means Fortitude Equip with company number 15094724, registered office is at Units 1 – 4 Holloway Drive, Worsley, Manchester UK, M28 2LA;
“Customer” means the person and/or company who accepts our quotation for the sale of the Goods and/or Services or whose order for the Goods and/or Services is accepted by Fortitude Equip;
“Conditions” means our standard terms and conditions of supply of the Goods and Services as set out in this document; “Contract” means the contents of this document;
“Delivery Date” means the date for delivery by Fortitude Equip to the Customer of the Goods and/or the date of commencement of provision of the Services as detailed in the Confirmation Order;
“Force Majeure” means events which may result in delay of Goods and/or Services including, but not limited to, an Act of God, weather of exceptional severity, war, military operations, terrorist action, strikes, the act or omission of any party for whom that party is not responsible or any other cause whatsoever beyond that party’s reasonable control;
“Goods” means the goods (including any instalment or any parts of them) which we are to supply to the Customer in accordance with these conditions as confirmed on our Confirmation Order;
“Quotation” means the Goods and/or Services Fortitude Equip send to the Customer outlining the proposed details of supply;
“Services” means the services which we are to provide to the Customer in accordance with these Conditions as confirmed on our Order Acknowledgment;
“Confirmation Order” means the order acknowledgment which Fortitude Equip send to the Customer confirming details of the order for Goods and/or Services, the Price;
“Price” means the amount in pounds sterling for the Goods and/or Services as detailed in the Confirmation Order, excluding VAT; “VAT” means value added tax;
References to “written” or “in writing” include letter, fax or email communications.
1.2 Any contract entered into by Fortitude Equip for the supply of Goods and Services is subject to these Conditions.
1.3 Telephone orders must be confirmed in writing. Fortitude Equip accepts no responsibility for inaccuracies of orders given by telephone. 1.4 These Conditions and the Confirmation Order represent the entire agreement between the Customer and Fortitude Equip. No other terms or conditions (including any written on or attached to any purchase order form, document or correspondence) shall be included or implied unless previously agreed in writing and signed by an authorised officer of Fortitude Equip. No purported variation of the Contract will be effective unless confirmed in writing by Fortitude Equip and in no event will the Customer’s standard terms and conditions of business apply. No liability shall attach to Fortitude Equip, our agents or employees in respect of any representations or statements made, whether before or after agreement is reached, unless confirmed in writing by our authorised representative.
2. ORDERS
2.1 The Customer is responsible for ensuring the accuracy of the terms of the order and for giving all necessary information relating to the Goods and/or Services.
2.2 No order shall be deemed accepted by Fortitude Equip unless received in writing and until receipt of Fortitude Equip’s official Confirmation Order or Invoice Number.
2.3 Any quotation issued by Fortitude Equip shall be open for acceptance for a period of 60 days from the date of the quotation provided that it has not previously been withdrawn. After expiration of the acceptance period or withdrawal, the quotation must be reconfirmed in writing by Fortitude Equip and may be subject to change.
2.4 Any quotation is made on the understanding that it may be accepted in full and not in part. In the event of purported partial acceptance of the quotation by the Customer a written revised quotation may be sent by Fortitude Equip to the Customer.
2.5 Any personal data that Fortitude Equip gather concerning the Customer shall be used only in accordance with Fortitude Equip’s Privacy Policy.
3. PRICE
3.1 The Price shall be the invoiced amount stated on the Confirmation Order.
3.2 The Customer covenants all information provided to Fortitude Equip is complete, accurate and not misleading. In the event that information provided does not comply Fortitude Equip have the right to adjust the Price.
3.4 Prices quoted are exclusive of VAT which is chargeable at the current rate.
3.5 The Customer shall have no right to set off any counterclaim or deduction against any monies which are payable by the Customer to Fortitude Equip.
4. PAYMENT
4.1 Unless otherwise agreed in writing prior to the order being placed by the Customer, payment terms are 30% non-refundable deposit to be paid at the time of the order being placed, with the balance being due one day prior to the date of installation, payable by electronic transfer or banker’s draft. The time for payment shall be the essence of the contract. In the event of default in payment by the due date Fortitude Equip reserves the right at any time to impose a late payment charge of 4% per annum above the base lending rate of RBS Natwest Bank current at the time, accruing on a daily basis, on monies overdue and to suspend delivery or terminate the contract in respect of any equipment remaining undelivered.
4.2 All costs incurred by Fortitude Equip in the collection of unpaid invoices including all administration costs and any costs and disbursements paid to solicitors and/or others acting on behalf of Fortitude Equip shall be recoverable and paid for in full by the Customer. It is agreed that the amount of all late payment charges should reflect the commercial rates that would be applied by a financial institution in a case of unauthorised and unsecured borrowing. Such charges will be recoverable by action if necessary. Cheques delivered will not be considered as payment until cleared. Any sum tendered that is less than the sum due and owing may in any event be accepted by Fortitude Equip as a payment on account only.
4.3 Following the delivery of any incomplete order, full payment is due for all of the items received. Fortitude Equip will not invoice any items undelivered unless requested by the Customer.
4.4 If the Customer fails to make any payment when due this will be deemed a material breach of this Contract and Fortitude Equip may, at its sole option and without incurring any liability, suspend its performance until such time as the overdue payment is made or the Customer has provided assurances acceptable to Fortitude Equip that the overdue payments will be made. In the event of any such suspension of performance Fortitude Equip shall be entitled to make an adjustment to the delivery schedule and Price to reflect the delay and costs caused by the suspension.
5. DELIVERY AND INSTALLATION
5.1 Fortitude Equip shall arrange for the carriage of the goods to the Customer unless otherwise specified in the confirmation order.
5.2 Time of delivery shall not be of the essence of any contract and any time or date given is given as an estimate only.
5.3 Fortitude Equip shall not be liable to make good any damage or loss whatsoever and howsoever arising directly or indirectly from delay or advance in delivery. Notwithstanding the foregoing Fortitude Equip shall make every commercially reasonable effort to deliver the goods by the agreed delivery date.
5.4 Where part delivery takes place each delivery shall be deemed to be under a separate contract for the purpose of these conditions. Failure to comply with one or more delivery dates shall not be deemed to be a repudiation of any contract
5.6 If the Customer fails to accept delivery of the goods or fails to give Fortitude Equip adequate delivery instructions then, without prejudice to any other right or remedy available to it:
5.6.1 Fortitude Equip reserve the right to charge all reasonable costs of redelivering the goods, storing the goods, and all costs involved in insuring the goods against loss or damage whilst stored. Storage where the Customer delay delivery or installation of the Goods after the date of delivery or installation stated in the Confirmation Order.
5.6.2 Re-sell the goods to any other person at the best price readily available and (after deducting all reasonable storage, insurance and selling expenses incurred by Fortitude Equip) charge the Customer for any shortfall below the price that would have been charged to the Customer.
5.7 The Customer will be liable for any charges incurred during the delivery and installation of the Goods if any mechanical devices are required to make the physical delivery and installation.
5.8 Fortitude Equip shall not be liable to the Customer or any third party for any losses, damage or injury caused to the Customer or any third party, whether arising in contract, tort (including negligence), misrepresentation or otherwise, as a result of or in connection with the Customer’s failure to comply with the Guidelines and/or Fortitude Equip’s instructions in respect of such Guidelines.
5.9 Neither party shall be liable for any failure or delay in performance of its obligations under any contract due to any Force Majeure event except that the obligations to make payment when due will continue. If any such delay occurs then the period for that party to perform its obligations shall be extended by such period (not limited to the length of the delay) as is reasonably required for that party to complete the performance of its obligations.
6. CANCELLATION
6.1 The Customer has no right to cancel any order after dispatch of the Confirmation Order except with the written agreement of Fortitude Equip. Without prejudice to any other right or remedies, Fortitude Equip will have the right to charge a cancellation fee to cover all costs, expenses and/or losses arising as a result of any cancellation. This clause does not affect the Customer’s rights arising out of any breach by Fortitude Equip.
6.2 If the Customer wishes to exchange, remove and/or alter Goods after the agreed dispatch date through no breach of Fortitude Equip, this can be done at the discretion of Fortitude Equip on the basis that the Customer returns the Goods in perfect condition and pays a restocking charge of £150.00 per item +VAT or 15% of the invoiced Order value, whichever is higher.
7. RISK AND PROPERTY TITLE
7.1 Risk or damage to or loss of the Goods will pass to the Customer at the time of delivery.
7.2 Claims for loss or damage to the Goods in transit must be made by the Customer directly to Fortitude Equip within three days of receipt of the Goods.
7.3 The Goods should be signed for ‘not examined’ unless opened on receipt and found correct, otherwise Fortitude Equip cannot accept responsibility for loss or damage to the Goods caused in transit.
7.4 If the Customer notifies Fortitude Equip of a claim pursuant to Condition 8.2 and if the Goods, following inspection by Fortitude Equip, are not found to be defective, Fortitude Equip costs of inspection shall be borne by the Customer. If the Goods are found to be defective, Fortitude Equip shall at our option replace them or credit the Customer with the Goods’ invoiced value or part thereof and this shall be the limit of Fortitude Equip’s liability.
7.5 Title in the Goods shall not pass to the Customer until Fortitude Equip have received in cleared funds payment in full for the Goods and for all other Goods agreed to be sold by Fortitude Equip to the Customer and until such time the Customer shall: (i) hold the Goods in a fiduciary capacity as agent for Fortitude Equip and shall be accountable to Fortitude Equip for the proceeds of sale of such Goods; (ii) inform any sub-purchaser that the Goods are sold subject to retention of title clause and impose a clause in similar terms to the sub-purchaser, providing for the same rights as in this clause; (iii) pay the proceeds of sale of goods belonging to Fortitude Equip into a separate bank account; (iv) if requested so to do by Fortitude Equip, produce payment by a sub-purchaser direct to Fortitude Equip; (v) in the event of any breach of this clause, if requested by Fortitude Equip, permit Fortitude Equip to enter the premises where the goods are being stored and permit removal of the goods into Fortitude Equip’s possession.
7.6 Any equipment provided by Fortitude Equip, but not manufactured by Fortitude Equip will be covered by the manufacturer’s warranty only. Any claim arising outside the manufacturer’s warranty period will not be covered by Fortitude Equip.
8. LIABILITY
8.1 Fortitude Equip shall indemnify the Customer against damage to property other than the goods and in respect of death or injury to
persons to the extent caused by the negligence of Fortitude Equip but not otherwise and provided that: (i) Fortitude Equip shall be immediately notified of any claim and shall have full power to negotiate and settle any and all claims; and (ii) Fortitude Equip’s liability for damage to property shall be limited to £1,000,000 for any one event or series of connected events in any twelve-month period.
8.2 Without prejudice to any other provision of this clause Fortitude Equip hereby excludes all liability, whether that liability arises under or in connection with the contract, its negligence (in whole or in part), any breach of contract, statutory duty or otherwise (to the fullest extent permitted by law) in respect of any loss of profit or other economic loss, indirect loss, consequential loss, special loss, loss of a chance, damage to goodwill or any other tangible asset.
8.3 Without prejudice to any liabilities of Fortitude Equip that may arise under 10.1 and 10.2 above the Customer hereby agrees that the total aggregate liability of Fortitude Equip to the Customer under any contract or otherwise shall be no more than the amount paid by the Customer in respect of any goods purchased by the Customer under the relevant contract.
8.4 Clause 10 sets out the entire liability of Fortitude Equip under or in connection with any contract and shall apply before and / or after any termination of the contract.
9. TERMINATION
9.1 If the Customer shall offer to make a scheme or arrangement with creditors or commit any act of bankruptcy or, being a company, has a receiver or manager appointment over any part of its undertaking or assets, or if a resolution for the winding up of the company be passed then Fortitude Equip may treat all sums due or to become due on any accounts as immediately payable and suspend or cancel further delivery or require payment in advance or recover any goods which are unsold wherever they are stored, or treat the contract as repudiated by the Customer but without prejudice to any other rights of Fortitude Equip.
9.2 If the Customer fails to make any payment when due under any contract with Fortitude Equip or fails to give delivery instructions or fails to take delivery of goods at the time agreed (if any) or, if no time is agreed, within a reasonable time, or the Customer breaches any other term of any contract then Fortitude Equip may (i) stop any goods in transit and suspend further deliveries; and/or (ii) suspend work on any contract; and/or (iii) terminate any or all contracts with the Customer forthwith and if the goods or any part of them have been delivered but not paid for the full price shall become immediately due and payable notwithstanding any previous agreement or arrangement with the Customer and the provisions of 6 above shall apply without prejudice to Fortitude Equip ‘s right to claim damages for loss.
10. MISC.
10.1 The Customer shall not assign any rights or delegate any duties hereunder and Fortitude Equip reserves the right to subcontract any or all of its obligations hereunder.
10.2 Fortitude Equip reserves the right to amend equipment specifications or prices without prior notice.
10.3 These conditions shall be subject to and construed in accordance with English law and the Customer shall submit to the
10.4 Except as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law but where the Customer is a consumer the statutory rights of the Customer are not affected by these conditions.
10.5 Nothing in these conditions confers or purports to confer any benefit on any third party or any right to enforce any benefit by any third party in accordance with the Contract (Rights of Third Parties) Act 1999.
10.6 Neither forbearance nor indulgence by Fortitude Equip in enforcing any term shall constitute a variation of it or a waiver of any of Fortitude Equip ‘s rights. Waiver by Fortitude Equip of any of any term shall not in any way affect the validity of any other terms or conditions. In the event that any provision of any contract would be held to be invalid or unenforceable the remaining provisions shall not be affected. No waiver, alteration or modification of any of the provisions of these conditions or any contract shall be binding on Fortitude Equip unless made in writing and executed by a duly authorised representative of Fortitude Equip.