PLEASE NOTE THE LIMITATION OF LIABILITY PROVISIONS IN CONDITION 11.
1. Definition & Interpretation
1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below: “Conditions” means these terms and conditions;
“Contract” means the contract between the Supplier and the Customer relating to the sale and purchase of the Products, such contract being subject to these Conditions;
“Credit Facility” means the extension of a line of credit to the Customer by the Supplier, the details and existence of which are evidenced in correspondence to the Customer;
“Customer” means the company, person or party detailed in the Customer Order
“Customer Order” means an order from the Customer relating to the purchase of Products, always with reference to the Price List;
“Limited Warranty Policy” means the Suppliers warranties regarding the quality of the Products, as detailed in the section at the end of the Conditions;
“Price” means the price payable for the Products, always calculated with reference to the Price List;
“Price List” means the Suppliers standard price list prevailing at the date of the Customer Order;
“Products” means the products detailed in the Customer Order to be supplied to the Customer by the Supplier;
“Special Conditions” means the special terms and conditions (if any) detailed in the Quotation;
“Supplier” means Redtronic Limited, (company number 01764067) whose registered office is at Unit 9 Quebec Mills, Quebec Street, Elland, West Yorkshire, HX5 9BX;
“Supplier Confirmation” means the Suppliers confirmation of a Customer Order, given either orally, in writing or electronically, such conformation constituting acceptance by the Supplier of the Customer Order;
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to the parties shall be a reference to the Supplier and Customer.
1.5 Condition headings do not affect the interpretation of these terms and conditions.
2. Application of Conditions
2.1 Subject to any variation under condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any quotation, confirmation of order, specification, other document, trade custom, practice or course of dealing), which, together with the Quotation, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it, superseding any previous agreement between the parties relating to such matters.
2.2 Any variation to these Conditions and any representations about the Products shall have no effect unless expressly agreed in writing and signed by a director of the Supplier.
2.3 If there is any conflict, inconsistency or ambiguity when interpreting the Contract, the following order of precedence shall always apply:
(a) firstly, any Special Conditions;
(b) secondly the Conditions; and
(c) finally the Customer Order.
3. Basis of Sale
3.1 Each Customer Order shall be deemed to be an offer by the Customer, subject to the Conditions. The Customer shall ensure that the Customer Order is complete and accurate.
3.2 A binding Contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a Supplier Confirmation, or the Supplier despatches the Products to the Customer (whichever occurs earlier).
3.3 The Customer acknowledges that it has:
(a) not relied on any statement, promise or representation made or given by or on behalf of the Supplier which are not set out in the Contract; and
(b) satisfied itself that the Products are suitable for its own requirements and those of any end-customer.
4.1 The description and/or quantity of the Products shall be as set out in the Customer Order.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in the Supplier Confirmation, any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.4 The Supplier's employees, contractors and agents are not authorised to make any contractually binding representations concerning the Products. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of the Supplier. However, nothing in these conditions limits the Supplier's liability for fraudulent misrepresentation.
4.5 Any advice or recommendation given by the Supplier or its employees, contractors or agents to the Customer or its employees, contractors or agents about the storage, application or use of the Products which is not confirmed in writing by an authorised officer of the Supplier is followed or acted on entirely at the Customer's own risk.
5.1 Unless otherwise agreed in writing, delivery of the Products shall be made to the Customer’s address stipulated on the Customer Order.
5.2 Any dates specified by the Supplier for delivery of the Products 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 shall be within a reasonable time.
5.3 If delivery is made at the premises of the Supplier (ex works), the Customer shall take delivery of the Products within two (2) days of the Supplier giving it notice that the Products are ready for delivery.
5.4 If for any reason the Customer fails to accept delivery of any of the Products when they are ready for delivery, or the Supplier is unable to deliver the Products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Products shall pass to the Customer (including for loss or damage caused by the Supplier’s negligence);
(b) the Products shall be deemed to have been delivered; and
(c) the Supplier may store the Products until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.5 If the Supplier is requested to re-deliver the Products following a failed delivery in accordance with condition 5.4, the Supplier reserves the right to make an additional charge for such re-delivery.
5.6 The Supplier may deliver the Products by separate instalments. Each separate instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.7 The Supplier shall not be liable for any non-delivery of the Products (even if caused by the Supplier's negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within seven (7) days after the scheduled delivery date.
5.8 Any liability of the Supplier for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Products.
6.1 If the Customer Order or Supplier Confirmation does not include details of the Price, the price for the Products shall be the price set out in the Supplier’s Price List in publication on the date of delivery.
6.2 The Price shall be deemed to be in UK £s (pounds sterling) and unless expressly stated otherwise, shall exclude value added tax (where applicable) at the applicable current rate and delivery charges, which shall be payable in addition.
7. Payment Terms
7.1 Unless the Customer has the benefit of a Credit Facility the Customer shall settle all the Supplier’s invoices immediately upon receipt, and the Supplier shall not deliver the Products until it has received in full (in cleared funds) all sums due to it in respect of the Contract.
7.2 If the Customer has the benefit of a Credit Facility the Supplier shall issue an invoice for payment of the Price the day on which the Products are delivered.
7.3 Notwithstanding conditions 7.1 and 7.2, if the Products are considered ‘special’ or ‘non-standard’, the Customer shall settle all the Supplier’s invoices immediately upon receipt, and the Supplier shall not manufacture or deliver the Products until it has received in full (in cleared funds) all sums due to it in respect of the Contract.
7.4 The Customer shall pay any invoice issued pursuant to condition 7.2 within thirty (30) days of the end of the month in which the Products are delivered. Time for payment of any invoice shall be of the essence.
7.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
7.6 If the Customer fails to pay the Supplier any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest, compensation and costs under the Late Payment of Commercial Debts (Interest) Act 1998.
8. Risk & Retention of Title
8.1 The Products are at the risk of the Supplier, until delivery in accordance with condition 5, whereupon risk in the Products shall transfer in full to the Customer.
8.2 Full legal and beneficial title and ownership of the Products shall pass to the Customer once the Supplier has received in full (in cleared funds) all sums due to it in respect of:
(a) the Contract; and
(b) all other sums which are or which become due to the Supplier from the Customer under any other contract or account.
8.3 Until title and ownership of the Products has passed to the Customer, the Customer shall:
(a) hold the Products on a fiduciary basis as the Supplier’s bailee;
(b) store the Products (at no cost to the Supplier) separately from all other Products of the Customer or any third party in such a way that they remain readily identifiable as the property of the Supplier;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
(d) maintain the Products in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Customer shall produce the policy of insurance to the Supplier.
8.4 The Supplier shall be entitled to recover payment for the Products notwithstanding that legal and beneficial ownership and title of any of the Products has not passed from the Supplier.
8.5 The Customer’s right to possession of the Products shall terminate with immediate effect if the Contract is terminated by the Supplier in accordance with condition 9 and the Supplier has not been paid the price in respect of such Products.
8.6 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to recover them where the Customer’s right to possession has terminated in accordance with condition 8.5.
9. Early Termination
9.1 Without prejudice to any other rights the Supplier may have under the Contract, at any time prior to delivery of the Products, the Supplier shall have the right to terminate the Contract on written notice to the Customer, with immediate effect, if the Customer:
(a) (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
(b) (being a body corporate) has a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors;
(c) suspends or ceases or threatens to suspend or cease, to carry on all or a substantial part of its trade or business; or
(d) encumbers or in any way charges any of the Products.
9.2 Every effort is made by the Supplier to ensure that the Price is accurate. Notwithstanding that the Contract has been formed, the Supplier shall have the right to terminate the Contract without liability to the Customer where the Products have been mistakenly priced in the Quotation. The Supplier will always give the Customer the option of reconfirming the Contract at the correct Price.
9.3 Termination of the Contract (however occasioned) shall not affect any accrued rights or liabilities of either party.
10. Quality & Warranties
10.1 The Supplier warrants the Products in accordance with the Limited Warranty Policy.
10.2 Except as otherwise provided for under these Conditions and the Limited Warranty Policy, all other warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Products Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11. Limitation of Liability
11.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Customer of any Products, or of any product incorporating any of the Products;
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 Nothing in these conditions excludes or limits the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence;
(b) under section 2(3), Consumer Protection Act 1987 or section 12 of the Sale of Products Act 1979;
(c) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
11.3 Subject to conditions 11.1 and 11.2:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any losses arising under or in connection with the Contract, including any loss of revenue, loss of profit, economic loss, loss of opportunity, loss of reputation (in all instances whether direct, indirect or consequential); and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the repair or replacement of the Products which are the subject of any claim, so that they will comply with the warranties detailed in the Limited Warranty Policy.
12. Confidentiality & Suppliers Property
12.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
12.2 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
12.3 This condition 12 shall survive termination of the Contract, however arising.
13. Unforeseeable Delays
13.1 The Supplier reserves the right to defer the performance of the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, power failure, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
14. Export of Products
14. EXPORT OF PRODUCTS
14.1 The Products may be supplied by the Supplier for export from the United Kingdom. The Customer shall comply with all applicable legislation and regulations and payment of any duties, import taxes or other costs of import. If the Supplier notifies the Customer that export of the Products into a country is prohibited under the Customers import licence, the Customer shall not supply or offer the Products for supply into or within that country.
15. Regulatory of Compliance
15.1 If a licence, consent, permission or any government or other authority is required in relation to the Contract, the Customer shall obtain the licence or consent at its own expense and if requested, produce the evidence to the Supplier on demand. Failure to obtain any licence or consent shall not entitle the Customer withhold or delay payment or terminate the Contract.
16.1 All communications between the Supplier and the Customer regarding the Contract shall be by email or in writing and be delivered to:
(a) (in case of communications to the Supplier) its registered address or any other address notified in writing from time to time; or
(b) (in the case of the communications to the Customer) the address detailed in the Quotation or any other address notified in writing from time to time.
17.1 The Supplier may assign the Contract or any part of it to any third party. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
17.2 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.4 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.5 Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.6 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in the Contract. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of the Contract.
17.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.