Terms and Conditions of Sale
The Rodin Group Limited (The Company)
Conditions of Sale
In these conditions, except where the context otherwise requires, the following words shall have the meanings set Opposite each respectively: ‘the Buyer’ the person, firm or company with whom or with which the Company contracts subject to these conditions; the ‘Contract’ the contract made or to be made between the Company and the Buyer subject to these conditions; ‘the Goods’ the articles, products and/or things (if any), including samples where relevant, the subject matter of the Contract.
Any quotation, whether written or oral, submitted by the Company shall be deemed to be an invitation to treat and not an offer. The placing by the Buyer of any order, whether written or oral, and whether or not any quotation may have been submitted by the Company, shall constitute an offer by the Buyer, and the Contract shall not be taken to have come into existence unless and until the Company shall have accepted the Buyer’s offer in writing.
Any order placed by the Buyer with any of the Company’s salesmen or other employees or representatives shall be subject to written acceptance by the Company as aforesaid. Acceptance by the Company shall be deemed to include acceptance of these conditions, which shall form the conditions of the Contract and shall apply to the exclusion of any terms or conditions put forward by or on behalf of the Buyer.
The Buyer’s attention is specifically drawn to the fact that any directors of the Company have authority to make or give on behalf of the Company any representation, warranty, condition or statement other than those contained in these conditions, and accordingly no variation of or addition to these conditions, whether written or oral, shall have effect unless and until agreed in writing by the Company and signed by a director of the Company.
4.1 Where appropriate the Buyers shall submit sufficient data, instructions, specifications and other information within a reasonable time to enable the Company to proceed forth with any order that is accepted.
4.2 In the event that any data, instructions, specifications and/or other information supplied by the Buyer are incorrect or incomplete or are altered or added to in any material respect, the Company shall be entitled to amend any quotation made by it so as to take account of any increase to it in costs, whether actual or projected.
5. TIME LIMITS
Any time or date quoted by the Company for delivery of all or any of the Goods is an estimate only, and the Company shall not be liable for any failure to meet any such estimate, nor for any loss, whether financial or otherwise, resulting directly or indirectly there from.
All Goods quoted from stock are quoted subject to being unsold when the Buyer’s order is accepted.
The Company shall deliver the Goods, when ready, to the Buyer at such address in the UK as the Buyer may specify or, if no such address is specified, to any address of the Buyer to which correspondence and/or Goods may previously have been addressed or sent under the Contract. Unless otherwise agreed in writing, delivery shall take place at a time convenient to the Company between the hours of 9.00am and 4.00pm Monday to Friday inclusive but excluding bank holidays. The manner of delivery shall be such as the Company in its sole discretion shall deem appropriate.
8. LOSS OR DAMAGE IN TRANSIT
The Company accepts no liability whatsoever for loss of or damage to Goods (other than Goods collected by or on behalf of the Buyer) in transit unless notified in writing of the details within seven days following despatch.
In event that the Buyer shall be unable to accept delivery of the Goods the Buyer shall arrange for the Goods to be at once removed and stored at its own risk and expense. If the Goods shall not have been removed as aforesaid, the Company shall be entitled without further reference to the Buyer to store the Goods upon any of its own premises or arrange for their storage with a third party in which event any costs (including VAT thereon) so incurred by the Company (including but not unlimited storage, carriage and insurance) shall be borne by the Buyer.
Any specification, drawing and/or other particulars relating to the Goods is, unless otherwise expressly stated in writing, approximate only, and any specification, description, design, drawing, illustration and/or other particulars contained in any catalogue and/or other promotional and/or advertising matter of the Company is intended merely to present a general idea of the Goods therein described and shall not be taken as forming part of the Contract. Accordingly, the Company reserves the right without notice to the Buyer to alter any such specification, description, design, drawing, illustration and/or other particulars and to supply the Goods as so altered in performance on the Contract.
11.1 All information (including without limitation figures) given by the Company relating to the performance of the Goods or the cost of operating the Goods is based upon the Company’s experience in the field in question, and all such figures are such as the Company might as a result of such experience expect to obtain on test, but the Company shall (subject to condition 21.4), unless such information shall have been specifically guaranteed in writing, accept no liability should it prove to be in any way inaccurate.
11.2 In the event that the performance of the Goods shall fail to fulfil the terms of any written guarantee given by the Company, the Buyer shall allow to the Company reasonable time and opportunity to fulfil the said terms. If after such reasonable time and opportunity the Company shall fail to fulfil the said terms, the Buyer shall be entitled to cancel the Contract only as regards such of the Goods as fail to fulfil the said terms.
11.3 It shall, (subject to condition 21.4) be the responsibility of the Buyer to ensure that the capacity and performance of the Goods are sufficient and suitable for the purpose or purposes intended or for which the Goods are to be sold by the Buyer.
11.4 Where the Buyer provides any item of equipment for the installation and/or operation of the Goods and/or ancillary to and/or for use in connection with the Goods, it shall be the Buyer’s responsibility to ensure that the use of any such item does not adversely affect the performance of the Goods.
Following acceptance as aforesaid by the Company of the Buyer’s order, no cancellation, either in whole or in part, may be made by the Buyer other than with the prior written consent of the Company and upon terms which fully pay to the Company the amount or amounts of all work undertaken, time expended and costs incurred by it in connection with the Buyer’s order together with a reasonable profit margin.
Any price quoted by the Company is based upon current costs at the date appearing on the quotation, but the actual price to be charged to the Buyer under the Contract shall be based upon costs current as at the date of invoice and shall include to the Company of any carriage, insurance and/or storage effected by it in connection with the Buyer’s order in accordance with the terms of this condition, the Company shall be entitled at any time up to the date of the invoice to vary the price quoted to the Buyer.
14.1 Credit accounts are only opened subject to satisfactory references being received and maintained and subject to the Buyer’s observance of the terms on which credit is given.
14.2 If the Buyer has an approved credit account, settlement of invoices is required within 30 days from when the invoice is issued. Interest at the monthly rate of 2% above Barclays Base Lending Rate will be charged form day to day on all monies outstanding after this time until the actual date of payment, and any cash discount referred to in the quotation, correspondence and/or elsewhere will not be allowed to the Buyer.
14.3 Where payment is agreed to be made by instalments, any delay or default by the Buyer in making payment in respect of any one instalment shall render all the remaining instalments due forthwith, and interest will be charged in accordance with condition 14.2 with immediate effect until the actual date of payment.
14.4 The Company reserves the right, on giving to the Buyer notice of its intention to do so, to close a credit account and/or withhold performance of any or all of its obligations under the Contract if in its absolute discretion it considers the Buyer’s credit status to be unsatisfactory.
15. DATE FOR PAYMENT
Subject to 14.2 Goods will not be delivered until cleared funds have been received in full.
16. DELIVERY BY INSTALMENTS
Where delivery is agreed to be made by instalments, each instalment shall be deemed to be a separate and distinct contract, and no default by the Company in respect of any one or more instalment shall entitle the Buyer to reject or withhold payment in respect of any other instalment or instalments.
17. DISPUTES AND SET-OFF
Any liability of the Company under the Contract shall be subject to and conditional upon the due performance and observance by the Buyer of all its obligations under these conditions, and subject to these conditions, the Buyer shall not be entitled to withhold or delay payment or exercise any right of set-off whatsoever and howsoever arising or arisen which might otherwise be available to it.
Subject to condition 19, the risk of loss of or damage to the Goods or any of them shall pass to the Buyer upon delivery.
Notwithstanding the passing of risk under condition 18, unless and until payment shall have been made to the Company of all sums due to it under the Contract and/or under any other contract between the Buyer and the Company on any account whatsoever.
19.1 Property in and title to the Goods shall remain in the Company; and,
19.2 The Buyer shall store the Goods separately from all other goods and products and in such a way that they can be readily identified as being the property of the Company; and
19.3 Subject to conditions 19.4 and19.5, the Buyer shall be free to sell the Goods in the ordinary course of its business on the basis that the proceeds of sale shall be the property of the Company, and the Buyer shall account therefore to the Company on demand; provided that the Buyer shall have no authority to enter into any contract for sale on behalf of the Company, and any contract for sale shall accordingly be concluded in the name of the Buyer; and
19.4 The Company may at any time revoke the Buyer’s power of sale referred to in 19.3 by written notice to the Buyer if the Buyer shall for seven days or more be in default in the payment of any sum whatsoever due to the Company (whether in respect of the Goods or any other goods supplied by the Company or services rendered, whether or not under the Contract, by the Company or for any other reason whatsoever), or if any bill of exchange, cheque or other instrument drawn or accepted by the Buyer in favour of the Company shall on presentation for payment be dishonoured, or if the Company in good faith shall have doubts as to the solvency of the Buyer; and
19.5 The Buyer’s power of sale referred to in 19.3 above shall automatically cease if any receiver or manager shall be appointed over any or all of the assets or undertaking of the Buyer, or if any winding up order shall be made against the Buyer, or if the Buyer shall go into voluntary liquidation (otherwise than for the purposes of, and followed by, reconstruction or amalgamation) or call any meeting of or make any arrangement or composition with creditors or commits any act or bankruptcy; and
19.6 Upon determination of the Buyer’s power of sale under 19.4 or 19.5, the Buyer shall place with the Goods at the disposal of the Company and the Company shall be entitled, using only such force as may be necessary, to enter upon any premises of the Buyer for the purpose of removing the Goods and any such new product or products from the premises (including severance from the reality where necessary).
Where payment may be made by means of any bill of exchange, cheque or other negotiable instrument, the Company shall be deemed not to have received payment for the purposes of this condition unless and until the bill of exchange, cheque or other negotiable instrument shall have been honoured on presentation for payment, notwithstanding that the Company may have negotiated it and received value therefore.
20. TERMINATION AND SUSPENSION
Without prejudice to any rights and remedies available to it, whether under the Contract or otherwise, the Company shall be entitled, in its absolute discretion and upon giving to the Buyer written notice of its intention to do so, either to terminate wholly or in part the Contract and/or any other contract with the Buyer or to withhold performance of all or any of its obligations under the Contract and/or any other contract in any one or more of the following events:
20.1 If any sum owing to the Company from the Buyer on any account whatsoever shall be unpaid after the due date for payment; or
20.2 If the Buyer shall refuse to take delivery of or collect any of the Goods in accordance with the terms of the Contract; or
20.3 If the Buyer shall commit any breach of the Contract or of any other of its obligations to the Company; or
20.4 If any distress or execution shall be levied upon any of the Buyer’s property or assets; or
20.5 If the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him; or
20.6 If the Buyer is a limited company and any resolution or petition to wind up the Buyer’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented or if a receiver is appointed of the Buyer’s undertaking, property or assets or any part thereof; or
20.7 If the Buyer shall refuse to provide any security for credit as hereinafter provided.
The Company shall be entitled to exercise its’ rights of termination or suspension hereunder at any time during which the event or default giving rise thereto shall not have ceased or been remedied, and, in the event of any such suspension the Company shall be entitled to require, as a condition of resuming performance under the Contract, to require prepayment of or such security as it may stipulate for, the payment of any sum or sums due or to become due to it.
21. DEFECTIVE GOODS
21.1 The Company shall make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement any defect developing under normal use in the Goods and due solely to faulty design (except where supplied by or on behalf of the Buyer), materials or workmanship, provided that:
21.1.1 Written notice of any such defect shall be given to the Company within twelve months after the Buyer shall have taken possession of the goods in question; and
21.1.2 Any goods alleged to be defective shall be promptly made available to the Company (including without prejudice to the generality return at the Buyer’s risk and expense to the Company’s works for inspection) and the Company shall in its’ reasonable opinion consider them to be defective solely by reason of faulty design (except as to the Company’s works for inspection) and the Company shall in its reasonable opinion consider them to be defective solely by reason of faulty design (except as aforesaid), materials and/or workmanship; and
21.1.3 No attempt shall have been made by the Buyer or by any third party to remedy any defect before the Goods in question shall have been returned to the Company for inspection; and
21.1.4 The Goods in question shall have been fitted serviced and maintained properly and in accordance with the Company’s and/or its suppliers recommendations and specifications and shall not have been fitted with any parts, components and/or accessories other than those manufactured or recommended by the Company and/or its suppliers; and
21.1.5 Where any such defect is due to a fault in any part, component, accessory and/or other item of the Goods not manufactured by the Company, the Buyer shall be entitled, as against the Company, only to such remedy as the Company may be able to obtain against the relevant manufacturer or supplier’; and
21.1.6 In default of any claim being made under this condition within the period of twelve months above referred to, the Goods shall be deemed to comply with the Contract and shall be in all respects satisfactory.
21.2 The Company’s liability shall (subject to condition 21.4) be limited to reimbursement of the price or repair or replacement of the Goods as aforesaid and shall be subject to compliance by the Buyer with the terms of the foregoing part of this condition. Apart from such reimbursement, replacement or repair, the Company, its employees and agents shall be under no liability to the Buyer or to any third party for any injury, loss or damage of any kind whatsoever and howsoever arising or arisen, and whether direct or indirect, including without limitation any injury, loss or damage arising out of and/or incidental to:
21.2.1 Any negligence of the Company, of any of its’ employees and/or agents (except insofar as such negligence may result in death or personal injury); and/or
21.2.2 The Company’s performance of and/or failure to perform and/or breach of any of its obligations, whether express or implied, under the Contract and/or otherwise; and/or
21.2.3 The supply, installation, repair and/or maintenance of any of the Goods; and/or
21.2.4 Any defect in any of the Goods; and/or
21.2.5 Any advice given and/or representation made by the Company or on its behalf in relation to the nature, quality, specification, design, performance, use and/or installation of any of the Goods.
21.3 Subject to condition 21.4 the terms of this condition replace all conditions, warranties, representations, statements, liabilities and other terms whatsoever implied by common law, statute, and/or otherwise, all of which shall accordingly be excluded to the extent allowed by law, and the Company shall have no obligation to the Buyer, either in tort or in contract (and whether under the Contract or under any other contract) other than the express obligations contained in these conditions or in any other document expressly incorporated in writing into the Contract. Accordingly, it shall be for the Buyer to insure against any liability arising from its use of the Goods.
21.4 Nothing in these conditions of sale shall be construed as attempting to exclude or restrict the liability of the Company to a consumer as referred to in section 6(2) Unfair contract Terms Act 1977.
These conditions are stipulated by the Company on behalf of the Company and on behalf of all its employees and agents and apply for their benefit as for that of the Company, and the Buyer shall not sue or make any claim against any employee or agent of the Company in respect of any alleged negligence and/or other default on the part of the Company and/or any such person in relation to the Contract.
23. THIRD PARTY CLAIMS
The Buyer shall indemnify the Company in full against any liability whatsoever (including any liability based on the negligence of the Company) which it may incur resulting from any claim made against the Company by any third party, including without limitation any employee or agent of the Buyer or any subsequent buyer or hirer or other bailee of the Goods or any of them, arising or arisen directly or indirectly out of the performance and/or any non-performance and/or breach of the Contract and/or otherwise out of or connected with the manufacture and/or supply of the Goods or any of them or the provision of any services.
24. INTELLECTUAL PROPERTY RIGHTS
The Buyer shall forthwith notify the Company in writing of any claim made or action brought against the Buyer for infringement of any intellectual property right or rights or for unauthorized use of any confidential information or for passing of by reason of the manufacture and/or sale of any Goods, and the company (or its nominee) shall be free to conduct any negotiations for the settlement of any such claim and/or to conduct any litigation resulting there from without any obligation or responsibility whatsoever to the Buyer other than where it is decided by a competent court of law or agreed by the Company (or its nominee) in writing that there has been any such infringement or unauthorized use or passing off, to give credit for the Goods giving rise to the claim or action or at the option of the Company (or its nominee) provide such facilities and assistance as the Company (or its nominee) may reasonably require to enable it to investigate and conduct any such claim or action. Where any goods are manufactured in accordance with a design or specification provided by, or on behalf of the Buyer, and sold by the Company to the Buyer than, as regards any such Goods, the Buyer shall indemnify the Company (and where appropriate its supplier) against all actions, costs, claims, demands, damages, liabilities and expenses whatsoever and howsoever arisen, together with interest and any VAT thereon, in relation to any claim or action for infringement of any intellectual property right or rights or for unauthorized use of any confidential information or for passing off, whether actual or alleged.
25. COMPLIANCE WTH REGULATIONS
It shall be the responsibility of the Buyer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, are duly completed with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Buyer.
26. FORCE MAJEURE
The Company shall have no liability whatsoever for any failure to perform, or for any delay in the performance of, any of its obligations under the Contract arising Wholly or in part by reason of any factor beyond its direct control, including without limitation shortage of raw materials, components or services, act of God, war, national emergency, laws or regulations of any country, industrial dispute, civil commotion, fire, tempest and/or flood.
No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by the Company of any breach by the Buyer of any of its obligations under the Contract shall not affect the rights of the Company in the event of any further or additional breach or breaches.
The Contract is personal to the Buyer, who shall not assign or in any way part with the benefit thereof without the Company’s prior written consent.
Each and every obligation contained in these conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation.
30. CLAUSE HEADINGS
The clause headings in these conditions are for convenience only and shall not in any way affect the interpretation of the Contract.
31. GOVERNING LAW AND JURISDICTION
The Contract shall be governed by and construed in all respects in accordance with English Law, and the Company and the Buyer shall submit to the exclusive jurisdiction of the English courts.