1. Interpretation

1.1 The definitions and rules of interpretation in this condition apply in these conditions.

Buyer: the person, firm or company who purchases the Goods and (where applicable) the Services from the Company.
Company: FAUN Trackway USA, Inc. 
Goods: any goods and/or systems agreed in the Order Confirmation to be supplied to the Buyer by the Company.
Order Confirmation: the order acceptance issued by the Company to the Buyer setting out and confirming the sale and purchase of the Goods and (where applicable) the Services which incorporates these conditions. 
Services: any services agreed in the Order Confirmation to be supplied to the Buyer by the Company.

2. Application

2.1 Where there is any conflict or inconsistency between these conditions and any terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document, the provisions of these conditions shall prevail.

2.2 Any variation to these conditions and any representations about the Goods and (where applicable) the Services shall have no effect unless expressly agreed in writing and signed by the business manager of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these conditions.

2.3 Where there is any conflict or inconsistency between these conditions and the provisions of the Order Confirmation, the provisions of the Order Confirmation shall prevail.

3. Delivery

3.1 Delivery of the Goods shall take place at the location specified in the Order Confirmation meaning that:

(i) the Company shall deliver the Goods to the Buyer’s premises or such other location as the parties may agree; or

(ii) the Buyer may elect to collect the Goods from the Company's place of business and in such case the Buyer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery. Provision of any Services shall take place at a location specified in the Order Confirmation.

3.2 Time for delivery/completion shall not be of the essence nor made of the essence by notice. Delivery shall be within a reasonable time as determined by the Company and the Company shall not be liable for any delay in the delivery of the Goods and (where applicable) the provision of the Services irrespective of any time for delivery/completion set out in the Order Confirmation or otherwise agreed by the parties.

3.3 Unless otherwise agreed in the Order Confirmation, the Buyer shall provide at the delivery location and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.

3.4 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery within the period specified at condition 3.1:

(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence);

(b) the Goods shall be deemed to have been delivered; and

(c) the Company may store the Goods until the Buyer accepts delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3.5 Where the Company is providing Services to the Buyer the following shall apply:

(a) the Company shall provide the Services with reasonable skill and care;

(b) the Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event; and

(c) the Buyer agrees: (i) to co-operate with the Company in all matters relating to the Services, including providing the Company with such information as the Company may reasonably require in order to perform the Services, and ensure that such information is accurate in all material respects; (ii) where it is agreed in the Order Confirmation that the Services shall be performed at the Buyer’s premises: (i) to provide the Company, its employees, agents, consultants and subcontractors (as applicable) with access to the Buyer’s premises at such times as may reasonably be required by the Company and at the Buyer’s cost, provide such facilities (including utilities) as may reasonably be required by the Company in order to perform the Services; and (ii) keep and maintain any materials (including equipment) of the Company at the Buyer’s premises in good condition until returned to/removed by the Company and not dispose of or use any such materials or than in accordance with the Company’s written instructions or authorisation; and (iii) to obtain and maintain all necessary licences, permissions and consents which may be required in order for the Company to perform the Services.

4. Risk/title

4.1 The Goods are at the risk of the Buyer from the earlier of the time of delivery under condition 3.1(i) or the expiry of the period referred to at condition 3.1(ii).

4.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of: (a) the Goods; (b) (where applicable) the Services; and (c) all other sums which are or which become due to the Company from the Buyer under any agreement.

4.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall: (i) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf and not carry out any work on or incorporate the Goods in any other products; and (ii) not resell the Goods until ownership of the Goods has passed to it.

4.4 Where payment for the Goods has not been received in full by the Company from the Buyer in accordance with these conditions, the Buyer's right to possession of the Goods shall terminate immediately if: (a) the Buyer becomes bankrupt or insolvent or a resolution to wind up the Buyer is passed or a receiver or administrator is appointed; or (ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or is unable to pay its debts as they fall due or cease to trade.

4.5 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored where the Buyer's right to possession has terminated, to recover them.

5. Price

5.1 The price for the Goods and (where applicable) the Services shall be the price set out in the Order Confirmation subject to revision for errors and omissions at any time.

5.2 Unless otherwise agreed in the Order Confirmation, the price for the Goods and (where applicable) the Services shall be exclusive of any VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition (where applicable) when it is due to pay the price of the Goods and (where applicable) the Services.

6. Payment

6.1 Payment for the price of the Goods and (where applicable) the Services shall be due on delivery of the Goods unless otherwise agreed in the Order Confirmation in which case the date set out in the Order Confirmation shall take precedence. Payment of the price for the Goods and (where applicable) the Services is due in pounds sterling (unless stated otherwise in the Order Confirmation) on delivery or deemed delivery of the Goods (for the avoidance of doubt, unless otherwise agreed in the Order Confirmation payment for the Services shall be made by the Buyer at the same time as payment for the Goods).

6.2 Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds. If the Buyer fails to pay the Company any sum due in accordance with the Order Confirmation, the Buyer shall pay interest to the Company on such sum from the due date for payment at the applicable statutory rate above the base rate of the Bank of England in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis until payment is made.

6.3 The Buyer shall make all payments due under the Order Confirmation in full without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.

7. Quality of Goods

7.1 Where the Company is not the manufacturer of the Goods (or parts thereof), the Company shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given to the Company in respect of the Goods (or parts thereof) and the provisions of condition 7.2 shall not apply.

7.2 All Goods are manufactured under the Company’s ISO 9001:2008 quality procedures (or under equivalent procedures where Goods are manufactured on sites that are not so accredited) and the Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery (or deemed delivery) (the “Warranty Period”), the Goods shall: (a) meet any specification set out in the Order Confirmation; (b) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; (c) be free from material defects in design, material and/or workmanship; and (d) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that purpose to the Company in writing and the Company has agreed to such purpose.

7.3 All Goods must be operated and maintained in line with the Company’s ‘Operator Manuals’, ‘Maintainer Manuals’ and any other instructions issued by the Company respectively.

7.4 The Buyer shall be required to provide proof of purchase of the Goods as a condition of receiving the benefit of the warranty set out under condition 7.2.

7.5 The Company shall not be liable for any failure to comply with the warranties set out in condition 7.2 in and/or to the extent of any of the following circumstances:

(a) the Buyer fails to give written notice of the defect to the Company within 5 working days of the time when the Buyer discovers or ought to have discovered the defect;

(b) the Buyer makes any further use of such Goods after giving such written notice as required under condition 7.5(a);

(c) the Buyer alters/modifies the functionality or capability of the Goods or repairs (or attempts to repair) such Goods without the written consent of the Company (including alterations/modifications or repairs to the Goods using parts not manufactured and/or sold by the Company);

(d) the Buyer has incorrectly incorporated the Goods within any other product/system;

(e) the defect in the Goods arises otherwise than as a result of defective materials, design and/or workmanship;

(f) the Buyer fails to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods;

(g) the defect in the Goods arises as a result of the Company following any drawing, design and/or specification supplied by the Buyer to the Company;

(h) the defect in the Goods arises as a result of: fair wear and tear (including the fair wear of consumable parts i.e. parts that require periodic replacement during the normal course of the Goods’ usage e.g. batteries, buffer strips, rollers, bulbs, fuses and hydraulic hoses), wilful damage, abuse/misuse, contamination, abnormal storage or working conditions, any accident or disaster affecting the Goods (including fire, flood, water, wind, lightening, chemicals (and other substances), excessive heat, improper ventilation, power surges, excessive or incorrect supply or input voltage, radiation, electrostatic discharges (including use of the Goods with accessories, peripheral equipment and other products of a type, condition and standard other than prescribed by the Company), vermin, vandalism, burglary, improper or inadequate maintenance/calibration/use of the Goods in a manner inconsistent with applicable laws (including health and safety laws), and/or negligence;

(i) the serial number on the Goods has been removed, damaged, rendered defective and/or made illegible;

(j) damage to the Goods caused by services/repairs and/or any other modifications to the Goods carried out by anyone other than the Company or a Company a service provider authorised by the Company;

(k) failure by the Buyer to allow the Company (or any representatives of the Company) access to the Goods to carry out any repair/replacement work; and/or

(l) the Goods differ from their description or specification as a result of changes made to ensure the Goods comply with all applicable laws (including regulatory requirements).

7.6 Subject to condition 7.5, if any of the Goods do not conform with any of the warranties in condition 7.2, the Company shall at its option repair or replace such Goods (or the defective part) free of charge at any time during the Warranty Period provided that, if the Company so requests, the Buyer shall, at the Company’s expense and in accordance with the Company’s instructions, return the Goods or the part of such Goods which is defective to the Company. Any Goods (or parts thereof) replaced during the Warranty Period shall become the property of the Company (i.e. the defunct Goods (or parts thereof)) and the new Goods (or parts thereof) shall be the property of the Buyer. Any part(s) of Goods which has/have been repaired or replaced (but not for the avoidance of doubt, parts which have not been repaired or replaced) shall be guaranteed by the Company for a further Warranty Period commencing on the date of the repair or replacement of the part(s) of the Goods.

7.7 If the Company complies with condition 7.6, the Company shall have no further liability for any failure to comply with the warranties in condition 7.2 in respect of such Goods. At the expiration of the Warranty Period, the Company shall have no further liability in relation to the Goods. For the avoidance, the Company shall have no liability whatsoever to the Buyer for any non-availability or delayed availability of the Goods during any period of repair or replacement whether during the Warranty Period or otherwise.

8. Limitation of Liability

8.1 Any liability of the Company (excluding any circumstances pursuant to conditions 8.3 and 9.1): (i) for non-delivery of the Goods or for the supply of defective Goods shall be limited to repairing or replacing the Goods within a reasonable time; and (ii) (where applicable) in respect of the performance of the Services shall be limited to the re-performance of the Services by the Company within a reasonable time.

8.2 All warranties, conditions and other terms implied by statute or common law whether in respect of the Goods and (where applicable) the Services (save as otherwise stated in condition 7.2) are, to the fullest extent permitted by law, excluded from these conditions (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979).

8.3 The Company shall have no liability to the Buyer (including for any costs and/or losses incurred by the Buyer) to the extent the Company’s performance of any of its obligations under these conditions is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any of its obligations.

8.4 Subject to conditions 8.1, 8.2 and 8.5, in relation to the provision of the Goods and (where applicable) the Services: (a) 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 of its obligations under these conditions shall be limited to the price of the Goods and (where applicable) the Services as paid by the Buyer to the Company in accordance with condition 5 under these conditions; and (b) the Company shall not be liable to the Buyer for (i) any indirect or consequential losses, or (ii) loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential.

8.5 Nothing in these conditions excludes or limits the liability of the Company: (a) for death or personal injury caused by the Company’s negligence; (b) for any matter for which it would be illegal for the Company to exclude or attempt to exclude liability; or (c) for fraud or fraudulent misrepresentation.

9. Force Majeure

9.1 The Company shall not be in breach of any of its obligations under these conditions for any reason outside of its reasonable control.

10. General

10.1 Any and all intellectual property rights in or arising out of or in connection with the Goods and (where applicable) the Services shall as between the parties be owned by the Company.

10.2 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under these conditions. The Buyer shall not be entitled to assign, transfer, mortgage, charge or deal in any other manner with any of its rights and obligations under these conditions, without the prior written consent of the Company.

10.3 If any provision of these conditions is found to be illegal or unenforceable in whole or in part it shall to the extent of such illegality or unenforceability be deemed severable and the remaining provisions of these conditions and the remainder of such provision shall continue in full force and effect.

10.4 Failure or delay by the Company in enforcing or partially enforcing any provision of these conditions shall not be construed as a waiver of any of its rights under these conditions.

10.5 The parties do not intend that any term of these conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

10.6 These conditions shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.