CONDITIONS OF SALE
In these Terms and Conditions (the “Conditions”), the following words shall have the following meanings:-
“Company” shall mean RF Landscape Products 1990 LTD
“Force Majeure Event” an event or circumstance beyond a party’s reasonable control.
“Group” shall mean RF Landscape Products 1990 LTD and its subsidiary companies whether directly or indirectly owned
“Goods” shall mean the products or materials supplied by the Company
“Buyer” shall mean the corporate entity firm or person to which the Goods and/or Services are supplied
“Order” the Customer’s order for the Goods, as set out in the Customer’s purchase order form
“Services” shall mean the whole or any part of the services which the Company is to supply or carry out under the contract
2. MAKING THE CONTRACT
2.1 Any order issued by the Buyer is subject to acceptance by the Company. A contract will only be formed when the Company has accepted the Buyer’s order. The quotation, order and acceptance shall together form the contract governed by these Conditions.
2.2 All orders are placed and accepted under these Conditions alone.
3. CANCELLATION/SUSPENSION OF DELIVERIES
3.1 Once the contract is formed, no cancellation by the Buyer is permitted except where expressly agreed by the Company in writing.
3.2 The Buyer will in the event of agreed cancellation by the Buyer indemnify the Company fully against all charges costs and losses (including loss of profit) sustained by it as a result of the cancellation. The Company’s certificate as to the amount of such loss shall be final.
3.3 The Company may without prejudice to its other rights, suspend or cancel further deliveries and/or work under this and any other contract between the parties hereto if the Buyer shall fail to make payment of any sum on its due date for payment or if the Buyer shall become insolvent or have any form of insolvency proceedings or action (whether or not involving the intervention of a court) taken against it, including (but without limitation any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any procedures similar to any of them under the laws of England or any other jurisdiction whatsoever). In such circumstances the Company shall be entitled to immediate payment from the Buyer of a proportionate part of the price in respect of Goods and/or Services already delivered and/or manufactured to the order of and/or purchased for and/or carried out for, the Buyer together with an amount representing anticipated further loss sustained or to be sustained due to such suspension or cancellation.
4.1 Unless otherwise stated the price payable for the Goods will be that set out in the Company’s quotation and confirmed by its acceptance of the Buyer’s order, or, if higher or if no such quotation was given, the price currently charged by the Company at the date of delivery of the Goods (“Price”). The price and any fees costs and disbursements expressed to be payable to the Company shall be deemed to be exclusive of Value Added Tax unless expressly stated otherwise.
4.2 The Company reserves the right at its sole discretion at any time before delivery of the Goods to adjust the price to take account of any increase in the price to the Company of goods, or services, or raw materials, labour or other inputs used in the production of the Goods or goods of that kind or of the Services, or to take account of any increase in taxation or duty payable, or to take account of any currency fluctuation increasing the cost of producing or purchasing the Goods or goods of that kind or the supply of Services in each case measured in Sterling.
4.3 The prices quoted assume that delivery will be made on normal working days during normal working hours. For deliveries agreed to be made on Saturdays, Sundays, public holidays or outside normal working hours the Company reserves the right to make an extra charge.
5. TERMS OF PAYMENT
5.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery.
5.2 The Buyer may, by giving notice to the Customer at any time up to 7 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Buyer’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
5.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods,which shall be invoiced to the Buyer.
5.4 Subject to clause 5.5, the Buyer shall pay the invoice in full and in cleared funds before the Goods are due to be dispatched.
5.5 if it has been agreed by the Company that the Buyer has a Trade Account, the Buyer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated.
5.6 Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
5.7 The Company reserves the right to withhold a delivery until a final and full payment is provided by the Buyer to the Company for the Goods been delivered under the contract.
5.8 If the Buyer fails to make any payment due to the Company by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. The Buyer shall pay the interest together with the overdue amount.
5.9 The Buyer shall pay all amounts due in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
6.1 Each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered;
6.2 Where Goods are delivered to the Buyer, the Buyer shall be responsible for unloading unless the Company has expressly agreed to unload the Goods. Where Goods are collected by the Buyer at the Company’s premises, the Company will load the Buyer’s vehicle.
6.3 Where the Company delivers to the Buyer’s premises the Company reserves the right to make an extra charge where unloading of the Goods is delayed.
6.4 Where the Company delivers to the Buyer’s premises the Buyer shall provide reasonable assistance in unloading the Goods.
6.5 The Company may refuse to deliver the Goods to any location where access is considered by it to be unsuitable for the safe passage of its vehicles. Where delivery is made to the Buyer’s premises the Buyer will indemnify the Company against any loss suffered during unloading or as a result of the access way being unsuitable.
6.6 The Company shall not be liable for any overloading of vehicles by the Buyer or its hauliers.
6.7 Whilst the Company will seek to deliver in accordance with the date agreed for dispatch or delivery, any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.8 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.9 If the Buyer fails to take delivery of the Goods within three Business Days of the Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Buyer that the Goods were ready; and
(b) the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
6.10 If ten Business Days after the day on which the Supplier notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6.11 The Company reserves the right to dispatch and/or make delivery by instalments and to tender a separate invoice in respect of each instalment.
6.12 When dispatch and/or delivery is to be by instalments or the Company exercises its right to deliver by instalments or if there be delay in the dispatch and/or delivery of any one or more instalments for whatever reason, this will not entitle the Buyer to treat the contract as repudiated or to any damages.
6.13 If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them.
7. RISK AND THE PASSING OF PROPERTY
7.1 Risk in the Goods shall pass to the Buyer when the Goods leave the dispatching premises of the Company (or of the Company’s supplier if delivery is to be made directly to the Buyer) regardless of whether they remain on a vehicle of the Company or not.
7.2 Notwithstanding risk in the Goods passing to the Buyer, title in Goods shall not pass to the Buyer until payment is received by the Company for those Goods in full and there are no other amounts then outstanding from the Buyer to the Company in respect of other goods or services supplied by the Company.
7.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
d) give the Company such information relating to the Goods as the Company may require from time to time.
7.4 The Buyer is licensed by the Company to use or to agree to sell Goods delivered to the Buyer. Subject to this, the Goods shall be stored at the Buyer’s premises in such a way as to be clearly identifiable as belonging to the Company and the Company shall be entitled to enter upon the premises where the Goods are stored to recover possession.
7.5 The Buyer’s power of sale and use under this Condition shall automatically cease if the Buyer becomes insolvent or suffers any form of insolvency proceedings or action (whether or not involving the intervention of the court) against it (including but without limitation any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any similar procedures under the laws of England or any other jurisdiction). The power of sale and use shall also be determinable at any time by notice of the Company to the Buyer.
8.1 The Company warrants that on delivery the Goods shall:
(a) be of satisfactory quality; and
(b) be fit for any purpose held out by the Company
8.2 Subject to clause 8.3, if:
(a) the Buyer gives notice in writing to the Customer within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
8.3 The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2;
(b) the defect arises because the Buyer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Company following any drawing or design supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Goods differ from their description due to natural products being used.
(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.4 Except as provided in this clause 8, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 8.
8.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
8.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
8.7 Unless otherwise expressly agreed in writing by the Company, any samples provided and/or technical details issued by the Company are merely indicative of the type of Goods or Services to be supplied and shall not constitute any representation, warranty or condition of the contract as to colour, composition, quality, fitness for any purpose, or compliance with such sample or technical details.
9.1 The Company shall not be liable for any direct, indirect or consequential loss suffered by the Buyer whether this loss arises in contract or tort or in other way (including without limitation from non-fraudulent misrepresentation).
9.2 The Company shall in no event (whether in contract, tort or otherwise) be liable for any loss or damage that is or arises from:-
a) loss of profits;
b) loss of anticipated savings;
c) loss of or interruption to production;
d) delay to other works;
e) delay in the completion of any project or works;
f) damage to reputation;
g) increased costs of working;
h) liability to pay compensation to third parties;
i) loss of enjoyment of end customers;
j) administrative or management costs or time used in dealing with the issues relating to defective product and each of the above sub-clauses shall be read as an independent term where the introductory wording forms part of each sub-clause.
9.3 The Company’s total aggregate liability to the Buyer arising from or related to this contract in respect of any and all claims (whether arising in contract, tort or otherwise whatsoever and including without limitation non-fraudulent misrepresentation) shall not exceed £50,000 or five times the value of the contract, whichever is the greater, up to a maximum aggregate of £1,000,000 (one million pounds).
9.4 These Conditions shall not be interpreted as seeking to exclude or restrict any liability of the Company or any contract term or grant any indemnity to the Company which cannot, or cannot in the circumstances applying to the contract, be so excluded or restricted or granted under any applicable legislation or other rule of law. To the extent that any restriction or exclusion or indemnity is in part compatible and in part incompatible with such legislation or rule of law, such restriction or exclusion or indemnity shall be interpreted as applying only in those circumstances and to those matters which would not offend the legislation or rule of law concerned.
9.5 Each of these Conditions is to be treated as separate and independent.
9.6 No claim of any description related to the Goods or Services, or to the terms or circumstances or statements surrounding their supply, shall be brought by the Buyer against the Company at any time after one year from the date of the invoice in respect of the contract price for such Goods.
9.7 The Buyer agrees to indemnify the Company against any claim (including any legal or other costs incurred by the Company defending such a claim) made by a third party against the Company in respect of which liability is excluded or limited as between the Company and the Buyer under these Conditions of sale, and arising from or related or connected to:-
a) 9.12.1 the Goods, including their packaging and instructions (or any part of them) or Services; or
b) 9.12.2 any other matter.
9.8 To the extent not otherwise excluded or limited under these Conditions, the Company’s liability to the Buyer whether contractual, in tort and/or for any breach of statutory duty or otherwise shall in all events be limited to that proportion of the Buyer’s losses which it would be just and equitable to require the Company to pay having regard to the extent of the Company’s responsibility for the same on the following assumptions, namely that:
a) 9.13.1 all other consultants, contractors, sub-contractors and suppliers in respect of any project for which the Goods are purchased have provided contractual undertakings to the Buyer that they have exercised and shall continue to exercise all reasonable skill and care in the performance of their services in connection with the said project and that they have and will supply only goods and materials that comply with their contracts;
b) 9.13.2 any such other consultants, contractors, sub-contractors and suppliers have paid to the Buyer such proportion of the losses which it would be just and equitable for them to pay having regard to the extent of their responsibility for the Buyer’s losses.
10. FORCE MAJEURE
10.1 The Company shall not be liable for any failure to carry out its obligations arising from circumstances outside the Company’s reasonable control.
10.2 Non-exhaustive illustrations, of such circumstances would include act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lock-outs, government action or regulations (UK or otherwise), delay by suppliers, accidents and shortages of materials, labour or manufacturing facilities.
10.3 If the circumstances preventing the performance of the contract are still continuing three months after the said circumstances have arisen, then either party may give written notice to the other cancelling the contract and neither party shall be under any further liability to the other except that the Buyer shall be liable to pay any outstanding amount for Goods delivered prior to the Force Majeure event.
10.4 The Buyer shall not have the right to return the Goods once they have been installed, by whatever means, as the Good are then deemed to have been accepted by the Buyer.
11. SALES DOCUMENTATION AND TECHNICAL DATA
No information or expression of opinion contained in any catalogues, technical circulars, pricelists and other literature or material published on the Company’s or any other website shall give rise to any liability whatsoever for the Company, whether in contract, tort, misrepresentation or otherwise.
12. PACKAGING AND HANDLING
12.1 Any packaging supplied is intended for delivery to the Buyer and is not intended for onward transportation purposes and the Buyer is responsible for any subsequent movement of the Goods and any necessary packaging in that regard. If the Buyer supplies packaging materials to the Company it shall be solely responsible for the suitability and safety of such packaging and shall be responsible for any loss or damage arising out of the Company’s use of such packaging.
12.2 Goods will, unless otherwise agreed in writing between the Company and the Buyer, be packaged in a manner that the Company deems reasonably suitable for the method of delivery to be adopted. The Buyer will not be entitled to reject Goods on the basis of defective or inadequate packaging.
Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified overleaf or such other address as the party may from time to time notify in writing and shall be deemed to have been served, if sent by post, 48 hours after posting. If no address is specified overleaf notice may be sent to the address where the persons placing or accepting the order for Goods and/or Services corresponded from or by email to the address specified overleaf.
14. GOVERNING LAW AND JURISDICTION
14.1 The contract shall be governed by English Law and any dispute or action arising out of this agreement or related to the substance of or otherwise in connection with this agreement shall be subject to the exclusive jurisdiction of the English Courts save that the Company may at any time at its option and whether in relation to one or more matters of dispute or actions bring proceedings against the Buyer in any state or territory that the Company chooses and which accepts jurisdiction.
14.2 Nothing in this agreement shall be treated as limiting the right of the Company to proceed to enforce any judgement or order or award in any other jurisdiction as it may in its discretion determine, nor shall the taking of proceedings or enforcing any judgement or order or award in one or more jurisdictions preclude the Company from taking proceedings or enforcing any judgement or order in any other jurisdiction whether concurrently or not.
The rights and remedies of the Company shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.
The headings of these Conditions are for convenience only and shall have no effect on the interpretation.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it
shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
Any modification to or deletion of a provision or part-provision under this clause shall not affect the
validity and enforceability of the rest of the Contract.
18. Third Party Rights
No one other than a party to this agreement shall have any right to enforce any of its terms.
19. Entire Agreement
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.