STANDARD CONDITIONS OF SALE
In these Conditions (save where the context is inconsistent therewith):-
1.1 the following words and phrases shall have the following meanings:-
"the Buyer" means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
"the Conditions" means the standard terms and conditions of sale set out in this document including any special terms and conditions agreed in writing between the Buyer and the Seller;
"the Contract" means the contract for the purchase and sale of the Goods which shall be subject to the Conditions and shall be made when the Order is accepted by the Seller;
"the Goods" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions as set out in the attached Schedule;
"in writing" includes facsimile transmission or electronic communication or any other comparable means of written communication;
“Intellectual Property Rights” means patents, trade marks, service marks, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright and other similar or obligations whether registrable or not in any country (including but not limited to the United Kingdom)
"the Order" means the quantity description and other information in relation to the Goods set out overleaf and included in the Specification;
"the Seller" means R&D Ventilation Systems Limited (registered number 3028047) whose registered office of address is situate at Industrial Estate, Neath Abbey, Neath, South Wales, SA10 7DR UK
“Specification” includes any plans, drawings, data, dimensions or other information relating to the Goods.
1.2 references to persons include bodies corporate and unincorporated associations and partnerships and words importing the singular include the plural and vice versa and words importing a gender include every gender.
1.3 in these conditions references to any statute or statutory provision shall, unless the context requires otherwise, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.4 headings are for ease of reference only and shall not affect the construction of any provision hereof.
1.5 obligations assumed by more than one party shall be joint and several.
2 BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Order subject in any case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, Specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.4 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing SO THAT in entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
2.5 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any typographical clerical or other error or omission in the Specification the Order or any quotation price list acceptance of offer invoice or other document literature or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.7 Each Order for the Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these conditions.
2.8 Any quotation is given on the basis that no Contract will come into existence until the Seller despatches an acknowledgement of Order to the Buyer. Any quotation is valid for a period of 60 days only from its date, provided that the Seller has not previously withdrawn it.
3 ORDERS AND SPECIFICATIONS
3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative.
3.2 The Buyer must ensure that the terms of its Order and any applicable Specifications provided by the Buyer or requested to be supplied by the Supplier are complete and accurate.
3.3 The quantity quality and description of any Specification for the Goods shall be those set out in the Order PROVIDED THAT all descriptions and illustrations contained in the Seller's catalogues and advertisements or otherwise communicated to the Buyer (other than in a written quotation) are intended merely to present a general idea of the Goods described therein and nothing contained in any of them shall form any part of the Contract.
3.4 Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer it is hereby agreed that such sample was so exhibited and inspected solely to enable the Buyer to judge for himself the quality of the bulk and not so as to constitute a sale by sample SO THAT the Buyer shall take the Goods at his own risk as to their corresponding with the said sample or as to their quality or sufficiency for any purpose.
3.5 The Goods are not tested and sold as fit for any particular purpose and any term of warranty or condition express implied or statutory to the contrary is excluded to the fullest extent allowed in law.
3.6 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with the Specification the Buyer shall indemnify the Seller against all loss damages costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of
any patent copyright registered design design right trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Specification.
3.7 The Seller reserves the right to make any changes in the Specification which are required for the Goods to conform with any applicable safety or other statutory requirements PROVIDED THAT such reservation does not in a way infer that the Seller is providing any warranty to the Buyer as to the Goods conformity with such safety or other statutory requirements.
3.8 No Order may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and material used) damages charges and expenses incurred by the Seller as a result of cancellation and against any claims or actions arising out of such cancellation. Such reservation does not in a way infer that the Seller is providing any.
4 PRICE OF THE GOODS
4.1 Except where the Goods are sold for export the price of the Goods and all costs or charges in relation to loading, carriage and insurance shall be the price quoted to the Buyer by the Seller in the quotation. In respect of Goods sold for export the price quoted shall relate solely to the price of the Goods. Delivery, loading and insurance shall be an additional charge.
4.2 The Seller reserves the right by giving notice in writing to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the cost of labour materials or other costs of manufacture) or any change in delivery dates quantities or Specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 The price for the Goods shall be exclusive of any value added tax.
5 TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods to the Buyer SAVE THAT where the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer under the Contract and in particular but without prejudice to the generality of the foregoing where the Goods are to be supplied by instalments the failure of the Buyer to pay any instalment in due time shall entitle the Seller to treat such failure as a repudiation of the Contract in its entirety by the Buyer and to recover damages for such breach of the Contract;
5.3.2 immediate payment of all payments outstanding in respect of the Goods supplied under the Contract and all other goods under any other contract notwithstanding the fact that the date for payment may not yet have fallen due;
5.3.3 appropriate any payment made by the Buyer for such of the Goods (or goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
5.3.4 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above the Seller's banker's base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); and
5.3.5 receive from the Buyer a sum equivalent to any bank charges legal costs or other costs charges or expenses incurred by the Seller arising from the late payment or recovery of sums due from the Buyer.
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises except where the Goods are for export when clause 10.4 will apply.
6.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
6.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 Should the Seller be prevented from or hindered in delivering the Goods or any part thereof by reason of war riot explosion fire flood strike lock-out shortage of materials or labour or any cause beyond the Seller's control the time for delivery shall be extended by a period equal to that during which the cause preventing or hindering delivery exists.
6.5 Should the Seller be prevented from delivering part of the Goods by reason of any of the causes specified in 6.4 above the Seller shall deliver and the Buyer shall take and pay for such part of the Goods as the Seller shall be able to deliver in accordance with the Contract.
6.6 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault and the Seller is accordingly liable to the Buyer the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.7 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of the Seller's fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
6.7.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.7.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6.8 The Seller shall be entitled to deliver the Goods in one or more consignments unless otherwise expressly agreed.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods.
7.2 The Seller shall not be liable for any loss of any kind to the Buyer arising from any damage to the Goods occurring after the risk has passed to the Buyer however caused nor shall any liability of the Buyer to the Seller be diminished or extinguished by reason of such loss.
7.3 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other sums due from the Buyer to the Seller for which payment is then due be entitled to all rights of access to the Buyer's premises to enforce its rights hereunder.
7.4 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller's property use the Goods in the ordinary course of its business provided that it accounts to the Seller for the proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and in the case of tangible proceeds properly stored protected and insured.
7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.7 The Buyer’s right to possession of the Goods shall terminate immediately if:
7.7.1 the Buyer calls any meeting of its creditors or makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) shall present a petition or have a petition presented by creditors against it for its winding up or goes into liquidation (otherwise that for the purposes of amalgamation or reconstruction); or
7.7.2 an encumbrancer takes possession or a receiver or administrative receiver is appointed over the whole or any part of the property or assets of the Buyer; or
7.7.3 the Buyer shall be deemed unable to pay its debts; or
7.7.4 the Buyer ceases or threatens to cease to carry on business; or
7.7.5 the Buyer commits an irremediable breach of the Conditions; or
7.7.6 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer in writing accordingly.
7.8 If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without incurring any liability to the Buyer and if the Goods have been delivered but not paid for the price for the Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8 WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with the Order at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery or for not more than the intended cycles of use (as referred to in the Contract or any document Specifications or other information issued by the Seller) whichever is the first to be exceeded.
8.2 The warranty in clause 8.1 is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in or unsuitability for the intended purpose of the Goods arising from the Specification or any other drawing design or instruction supplied by the Buyer;
8.2.2 the Seller shall be under no liability in respect any defect in or unsuitability for the intended purpose of the Goods arising from incorrect wall opening sizes, air volume and differential air pressures and any other dimensions and calculations which the
Seller supplied to the Buyer at the Buyer’s request and free of charge;
8.2.3 the Seller shall be under no liability in respect of any defect arising from fair wear and tear wilful damage negligence abnormal working conditions failure to follow the Seller's instructions (whether oral or in writing) misuse or alteration or repair of the Goods without the Seller's approval;
8.2.4 the Seller shall be under no liability in respect of any failure to follow the Seller's Specifications (whether oral or in writing) in respect of the recommended levels of tolerance temperature pressure load tension and other restrictions within which the Goods can be safely used;
8.2.5 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.6 the above warranty does not extend to parts materials or equipment forming part of the Goods not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Seller shall not be liable for a breach of the warranty in condition 8.1 unless:
(a) the Buyer gives written notice of any defect or shortfall to the Seller, and (if the defect is as a result of damage in transit) to the carrier, within 3 days of delivery; and
(b) the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost for the examination to take place there.
8.5 The Seller shall not be liable for a breach of the warranty in condition 8.1 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Seller.
8.6 Where any claim by the Buyer in respect of any of the Goods which is based on any alleged defect in the quality or condition of the Goods or their failure to meet the Specification or Order is notified to the Seller in accordance with these Conditions the Seller shall be entitled to the return of the Goods to the Seller's premises for inspection by it or its representative for the purpose of validating the claim entitled to replace the Goods (or the part in question) free of charge or at the Seller's sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
8.7 Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or fraudulent misrepresentation.
8.8 Subject to Condition 8.7:
8.8.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or
8.8.2 the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9 USE OF GOODS
9.1 Where any items comprised in the Goods have been purchased by the Buyer other than for the purposes of resale the Buyer shall bring to the attention of all persons using the same all of the Seller's intallation instructions and/or recommendations for use packed by the Seller with the Goods.
9.2 If any item comprised in the Goods is resold by the Buyer the Buyer shall bring to the attention of its purchaser all the Seller's installation instructions and/or recommendations for use packed by the Seller with the Goods or subsequently forwarded by the Seller to the Buyer.
9.3 The Buyer shall not remove any plaque or other label affixed to the Goods referring any user thereof to the Seller's instructions and/or recommendations for use.
9.4 In the event that either the Buyer or its purchaser being a person intending to use any part of the Goods at work requires any information as to the use for which such Goods were designed and have been tested and about any conditions necessary to ensure that when put to that use they will be safe and without risk to health for the purposes of satisfying its obligations under any statute for the time being in force relating to health and safety at work the Seller shall provide such information subject to reimbursements of its out-of-pocket expenses, travelling costs and daily charge-out rate incurred in furnishing such information.
9.5 Where the Goods have been manufactured or constructed according to the Specification the Buyer represents and warrants to the Seller that the Buyer has or will have satisfied itself that all necessary tests and examinations have been made or will be made prior to the Goods being brought into use to ensure that the Goods are designed, constructed and operational so as to be safe and without risk to the health or safety of workmen or others using the same and are suitable for the purposes the Buyer intends to use them for and that it will take such steps as are necessary to secure that there will be available in connection with the use of the Goods at work adequate information about the use for which they are designed and have been tested and about any conditions necessary to ensure that when put to that use they will be safe and without risk to health.
9.6 The Buyer shall indemnify the Seller against all actions suits claims demands losses charges costs and expenses which the Seller may suffer or incur in connection with any claim by any third party alleging facts which if established would indicate a breach of the undertaking representations and warranties on the part of the Buyer contained in this Condition 9 or which if established would indicate a breach by any purchaser from the Buyer of any undertaking which the Buyer is required in this Condition 9 to exact from such purchaser.
pression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions the latter shall prevail.
10 EXPORT TERMS
10.1 In these Conditions 'Incoterms' means the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce as are in force at the date when the Contract is made ex
10.2 Where the Goods are supplied for export from the United Kingdom the provisions of this Condition 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
10.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
10.4 Unless otherwise agreed in writing between the Buyer and the Seller the Goods shall be delivered at the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.5 The Buyer shall have the option to arrange for testing and inspection of the Goods at the Seller's premises before shipment PROVIDED THAT in any event the Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
10.6 Payment of all amounts due to the Seller shall be made in accordance with the terms for payment agreed at the time of acknowledgement of the Order. Unless otherwise agreed in writing the Buyer shall make payment for the Goods directly to the Seller by 100% irrevocable Letter of Credit in Sterling confirmed on Barclays Bank. Alternatively, payment shall be made by wire transfer or BACS directly to the Seller in advance of delivery.
10.7 The Buyer undertakes not to offer the Goods for resale in any country other than the country notified by the Seller to the Buyer in writing at or before the time the Order is placed or to sell the Goods to any person if the Buyer knows or has reason to believe that such a person intends to resell the Goods in any country other than the one so notified.
11 INTELLECTUAL PROPERTY AND TRADE MARKS
11.1 The Intellectual Property Rights in any Goods shall, unless otherwise agreed in writing between the parties, belong to the Seller. For the avoidance of doubt Buyer shall only be entitled to use the Goods by way of a non-exclusive licence, subject to payment in full of all sums payable under the Agreement.
12 FORCE MAJEURE
12.1 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller's obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller's reasonable control the following shall be regarded as causes beyond the Seller's reasonable control:-
12.1.1 Act of God explosion flood tempest fire or accident;
12.1.2 war or threat of war sabotage insurrection civil disturbance or requisition;
12.1.3 act restriction regulations bye-laws prohibitions or measures of any kind on the part of the governmental parliamentary or local authority;
12.1.4 import or export regulations or embargoes;
12.1.5 strikes lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or a third party);
12.1.6 difficulties in obtaining raw materials labour fuel parts or machinery;
12.1.7 power failure or breakdown in machinery.
13.1 Any notice required or permitted to be given by either party to the other under the Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified in writing pursuant to this provision to the party giving the notice.
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of the Conditions and/or the Contract is held by any competent authority to be invalid or unenforceable in whole or in part but would be valid and enforceable if part of the wording were deleted the said provision shall be deemed to apply with such modifications as may be necessary to make it valid and enforceable and any such modification such not affect the validity of the other provisions of these Conditions and/or the Contract and the remainder of the provision in question shall not be affected hereby.
13.4 The Contract shall be governed by and interpreted in accordance with English Law and the Seller and the Buyer both submit to the exclusive jurisdiction of the High Court of Justice in England and Wales.
13.5 The Buyer shall not assign any benefit under the Contract without the consent in writing of the Seller which shall not be unreasonably withheld but may if given be on such terms as to guarantee or indemnity or otherwise as the Seller thinks fit.
13.6 Nothing in this Agreement shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999. No variation to this Agreement and no supplemental or ancillary agreement to this Agreement shall create any such rights unless expressly so stated in any such agreement by the Parties. This does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.7 No other conditions or terms (whether contained in any document issued by the Buyer or in any written or oral communication between the parties) shall apply to the Contract nor shall the Conditions be varied without the Seller's written agreement.