1.1 These conditions apply to all agreements for the supply of products by Fortis IBA Ltd and supersede any previous terms and conditions. No additions or modifications to, or terms inconsistent with these conditions shall be binding upon Fortis unless specifically agreed in writing by Fortis.
1.2 Fortis may require a credit application from the customer and in processing the credit application, the customer consents that Fortis may make enquiries of credit reference agencies or other sources, who may keep a record of Fortis enquiry and that Fortis may use any information obtained for the purposes of risk assessment, fraud prevention and for occasional debt tracing.
1.3 The rights and obligations of the customer under this agreement shall be personal and shall not be assignable without the express consent of Fortis.
1.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement.
2.0 PAYMENT TERMS
2.1 The charge will be calculated as stated on the quotation or price list. The amounts stated are exclusive of VAT and the customer shall pay all sums due in respect of VAT in accordance with the invoice for the service. Fortis will ensure that each invoice for the service contains adequate details of the VAT charged.
2.2 All payments shall be due and payable within 30 days of the date of invoice. All payments made by the customer under this agreement shall be made in full without any set-off or counter-claim and the time of payment shall be of the essence of this agreement.
2.3 Any sums which are not paid by the due date shall thereafter attract interest on a daily basis at a rate of 4% per annum above the base lending rate for the Bank of England at the time. Without prejudice to Fortis other rights in respect thereof, if the customer defaults in payment by the due date of any amount invoiced for the service, Fortis shall be entitled to withhold further performance of this agreement until all arrears have been discharged by the customer.
2.4 The customer shall not be entitled to dispute any payment made. The customer agrees that records will be proof of the service provided.
Fortis shall have the right to increase the charge at any time to take account of any variation in Fortis’s costs including (but not limited to) variation in wages, administration costs, cost of materials and equipment, fuel costs, taxes, duties and cost of compliance with relevant legislation. Fortis shall endeavour to give the customer not less than one calendar months’ notice of any variation of the charge under this clause but notwithstanding this the customer shall be liable to pay any increase from the date specified in the notice.
4.1 The customer must provide safe and adequate access for the delivery of the goods, including adequate manoeuvring space for the delivery vehicle and ensuring that Fortis’ employees and/or agents are safe on the customer’s site. Failure to comply shall entitle Fortis to refuse to make delivery and to charge the customer for any costs and/or losses incurred.
4.2 The customer shall indemnify Fortis and its employees, drivers and agents against any damage or injury caused by the acts and/or omissions of the customer, its employees, subcontractors or agents while the delivery vehicle is present on or accessing the customer’s site, or while the company is collecting the goods from the company’s site.
4.3 On any delivery (howsoever effected), the customer must (i) satisfy itself as to the condition of the goods; (ii) allow unhindered delivery of the goods; (iii) sign for the delivery of the goods received which includes the customers’ acceptance of any additional charges which may occur in respect of any delay on site, including standing time or cancellation on route to the customers site. In the event of no signatory being available Fortis reserve the right to take photographic evidence of the delivery. CORONAVIRUS (COVID-19) UPDATE: To minimise contact in the current situation, our drivers and weighbridge operators will log the first and last name of the customer accepting the delivery/collection and the time and sign on their behalf until further notice.
4.4 Where the customer fails to comply with any of the conditions contained in these terms and conditions, or Fortis is unable to deliver the goods on time because of the customers default then (i) the goods will be deemed to have been delivered; and (ii) Fortis may store the goods until delivery whereupon the customer will be liable for all related costs and expenses (including without limitation storage and insurance).
4.5 Any time, period or date specified by Fortis for delivery of the goods is an estimate only. Fortis shall not be liable for any damages or losses arising out of failure to meet such time, period or date.
4.6 The risk in the goods shall pass on delivery as provided by these conditions.
4.7 Ownership of the goods shall not pass to the customer until Fortis has received in full all sums due to it in respect of the goods. If the customer fails to pay the agreed price by the due date, Fortis shall be entitled to enter the customer’s site to recover the goods and the customer shall indemnify the company against all and any cost incurred in so doing.
5.0 IBAA COLLECTIONS
5.1 The customer must abide by Fortis’ stringent site procedures, conditions and safety rules when accessing sites for the delivery and collection of goods. Failure to comply shall entitle Fortis to refuse to accept delivery or collection and to charge the customer for any costs and/or losses incurred.
5.2 The customer shall indemnify Fortis against damage or injury caused during the presence on or access to the site, unless in the case of agreed negligence by Fortis.
5.3 The customer, authorised employee or agent must promptly (i) accept and inspect the product when departing the site (ii) sign the Fortis collection note confirming this acceptance.
5.4 All IBAA collected by the customer must be used in accordance with the prevailing legislation at the time.
5.5 It is the responsibility of the customer to ensure that all IBAA collected by the customer and distributed to third parties / end users is used in accordance with the prevailing legislation at the time.
6.0 QUALITY AND GUARANTEE
6.1 If the customer can establish to the reasonable satisfaction of Fortis that the materials are not in accordance with the quality or specification contained in the contract then, Fortis, shall at its sole discretion, supply to the purchaser additional materials in the same quantity as the defective or non-compliant materials and which in all respects are in accordance with the contract or will refund all or part (as appropriate) of the price of the relevant materials.
6.2 The guarantee is subject to the following limitations:
6.2.1 The guarantee shall not apply unless the purchaser notifies the company in writing of the alleged defect or failure immediately and in any event within 48 hours of delivery.
6.2.2 Fortis will accept no responsibility for faults in or failure of the materials due to the incorrect placing adopted by the customer, or the effects of frost, heat or inclement weather.
6.2.3 Fortis will accept no responsibility if the defect or failure in respect of the materials results from incorrect specification.
6.2.4 If onsite testing or analysis is required for materials purchased, the purchaser is encouraged to advise the company when placing the order and undertake this testing on delivery and not place the material until they have received the compliant test results back, as Fortis will accept no liability for any labour and plant costs or any other damages associated with replacing materials onsite.
7.0 LIMITATION OF LIABILITY
7.1 Nothing in these conditions shall limit or exclude the liability of Fortis for death or personal injury resulting from the negligence of Fortis, its employees or agents or for fraudulent misrepresentation.
7.2 The maximum aggregate liability of Fortis arising out of condition.
7.3 In the event of defective goods, Fortis’ total liability is limited to the value of materials sold.
8.0 GOVERNING LAW
8.1 This agreement shall be governed by and construed in accordance with the Laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English Courts.
8.2 Any reference to any Act of Parliament Regulation or order shall include any re-enactment, amendment, replacement or modification thereof.
No time indulgence or relaxation on the part of Fortis shown or granted in respect of any of the provisions of this agreement shall in any way affect, diminish, restrict or prejudice the rights or powers of Fortis under this agreement or operate as or be a waiver of any breach by the customer of the terms of this agreement.
In these conditions the following words and expressions shall have the following meanings:
“Customer” means the person or company whose order for the goods is accepted by the company in accordance with these conditions.
“Fortis” means Fortis IBA Ltd or any of their trading divisions.
“Relevant Legislation” means any statute, European Community Directive or the requirements of any government department, local authority or other public or competent authority and guidelines contained in government papers and codes of practice issued by the government for the industry and which are relevant to the parties’ obligations under this agreement.
“Vehicle” means each and every vehicle owned or operated by Fortis, its agents or sub-contractors which visits any site to deliver, empty, replace or remove equipment.