1 Definitions
1.1 ” Buyer” means the person who accepts Seller’s Written quotation for the sale of the Goods or whose Written order for the Goods is accepted by Seller; “Goods” means the goods (including any instalment of the goods or any parts for them) which Seller is to supply in accordance with these Terms. “Seller” means ROCHFORD INTERTRADE LTD trading as ROCKFORD STONE & SLATE CO. whose registered office is Road Beta, Off Brooks Lane Industrial Estate, Middlewich, Cheshire, CW10 0QF. “Contract” means the contract for the sale and purchase of the Goods. “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force on the date when the Contract is made. “Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between Buyer and Seller.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time. The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 Seller shall sell and Buyer shall purchase the Goods in accordance with Seller’s Written quotation (if accepted by Buyer), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by Buyer.
2.2 No variation to these Terms shall be binding unless agreed in writing between the authorised representatives of Buyer and Seller.
2.3 Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Seller in writing. In entering into the Contract Buyer acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by Seller or its employees or agents to Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Seller is followed or acted upon entirely at Buyer’s own risk, and accordingly Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Seller shall be subject to correction without any liability on the part of Seller.
2.6 Where Seller exports Goods unless the context otherwise requires, only term or expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
3 Orders and specifications
3.1 No order submitted by Buyer shall be deemed to be accepted by Seller unless and until confirmed in writing by Seller’s authorised representative.
3.2 Buyer shall be responsible to Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by Buyer, and for giving Seller any necessary information relating to the Goods within a sufficient time to enable Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in Seller’s quotation.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by Seller in accordance with a specification submitted by Buyer, Buyer shall indemnify Seller against all loss, damages, costs and expenses awarded against or incurred by Seller in connection with, or paid or agreed to be paid by Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Seller’s use of Buyer’s specification.
3.5 Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by Seller may be cancelled by Buyer except with the agreement in Writing of Seller and on terms that Buyer shall indemnify Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Seller as a result of cancellation.
4 Price of the goods
4.1 The price of the Goods shall be Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by Buyer, after which time they may be altered by Seller without giving notice to Buyer. All prices quoted are subject to VAT.
4.2 Seller reserves the right, by giving Written notice to Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Seller which is due to any factor beyond the control of Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by Buyer, or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions.
4.3 Except as otherwise stated in Seller’s Written quotation or in any price list of Seller, and unless otherwise agreed in writing between Buyer and Seller, all prices are given by Seller on an ex
works basis, and where Seller agrees to deliver the Goods otherwise than at Seller’s premises, Buyer shall be liable to pay Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which Buyer shall be additionally liable to pay to Seller.
4.5 The cost of pallets and returnable containers will be charged to Buyer in addition to the price of the Goods, but full credit will be given to Buyer provided they are returned undamaged to Seller before the due payment date.
5 Terms of payment
5.1 Subject to any special terms agreed in writing between Buyer and Seller, Seller may invoice Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by Buyer or Buyer wrongfully fails to take delivery of the Goods, in which event Seller shall be entitled to invoice Buyer for the price at any time after Seller has notified Buyer that the Goods are ready for collection or (as the case may be) Seller has tendered delivery of the Goods.
5.2 Buyer shall pay the price of the Goods (less any discount to which Buyer is entitled, but without any other deduction) within the period specified on the quotation or within 30 days of the date of Seller’s invoice whichever is longer, and 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 Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to Seller, Seller may:
(a) cancel the contract or suspend any further deliveries to Buyer;
(b) appropriate any payment made by Buyer to such of the Goods (or the goods supplied under any other contract between Buyer and Seller) as Seller may think fit (notwithstanding any purported appropriation by Buyer); and
(c) charge Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of five per cent per annum above Nat West Bank 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).
6 Delivery
6.1 Delivery of the Goods shall be made by Buyer collecting the Goods at Seller’s premises at any time after Seller has notified Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Seller, by Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Seller in Writing. The Goods may be delivered by Seller in advance of the quoted delivery date on giving reasonable notice to Buyer.
6.3 Where delivery of the Goods is to be made by Seller in bulk, Seller reserves the right to deliver up to two per cent more or two per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated.
6.5 If Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Seller’s reasonable control or Buyer’s fault, and Seller is accordingly liable to Buyer, Seller’s liability shall be limited to the excess (if any) of the cost to Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6 If Buyer fails to take delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond Buyer’s reasonable control or by reason of Seller’s fault) then, without limiting any other right or remedy available to Seller, Seller may:
(a) store the Goods until actual delivery and charge Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to Buyer for the excess over the price under the Contract or charge Buyer for any shortfall below the price under the Contract.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to Buyer:
(a) in the case of Goods to be delivered at Seller’s premises, at the time when Seller notifies Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at Seller’s premises, at the time of delivery or, if Buyer wrongfully fails to take delivery of the Goods, the time when Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to Buyer until Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Seller to Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller’s property, but Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to Buyer (and provided the Goods are still in existence and have not been resold), Seller may at any time require Buyer to deliver up the Goods to Seller and, if Buyer fails to do so forthwith, enter on any premises of Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 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 Seller, but if Buyer does so all moneys owing by Buyer to Seller shall (without limiting any other right or remedy of Seller) forthwith become due and payable.
8 Quality/Description
8.1 All drawings, descriptive matter, specifications and advertising issued by Seller and any descriptions or illustrations contained in Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
8.2 Buyer acknowledges that Goods made from a natural resource will vary in shading, colour and texture and that manufactured Goods will vary in shading and colour from both samples and from separated manufactured batches. Buyer acknowledges that such variance is acceptable and Buyer will or Buyer will advise its customers to adopt good trade practice of setting out Goods so as to achieve a balance of the various shades, textures and colours. (The reference in this clause to a corresponding sample will not affect the statutory rights of a Buyer who acts as a consumer as defined above).
9 Warranties and liability
9.1 Subject to the following provisions Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of one month from the date of delivery.
9.2 The above warranty is given by Seller subject to the following conditions:
9.2.1 Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by Buyer; Seller shall be under no liability in respect of any defect arising from wilful damage, negligence, abnormal storage conditions, failure to follow Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without Seller’s approval;
9.2.2 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.
9.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of Buyer are not affected by these Terms.
9.5 A claim by Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by Buyer) be notified to Seller within 48 hours from the time of delivery. If delivery is not refused, and Buyer does not notify Seller accordingly, Buyer shall not be entitled to reject the Goods and Seller shall have no
liability for such defect or failure, and Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to Seller in accordance with these Terms, Seller shall be given an opportunity to inspect the Goods and, may replace the Goods (or the part in question) free of charge or, at Seller’s sole discretion, refund to Buyer the price of the Goods (or a proportionate part of the price), in which case Seller shall have no further liability to Buyer.
9.7 Seller shall not be liable for a breach of any of the warranties where Buyer makes any use of such Goods after giving such notice or the defect arises because Buyer failed to follow the Company’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.
9.8 Except in respect of death or personal injury caused by Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, Seller shall not be liable to Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by Buyer, and the entire liability of Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
9.9 Seller shall not be liable to 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 Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond Seller’s reasonable control:
9.9.1 Act of God, explosion, flood, tempest, fire or accident;
9.9.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.9.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.9.4 import or export regulations or embargoes;
9.9.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of Seller or of a third party);
9.9.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.9.7 power failure or breakdown in machinery.
10 Insolvency of buyer
10.1 This clause 10 applies if:
10.1.1 Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of Buyer; or
10.1.3 Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly.
10.2 If this clause applies then, without limiting any other right or remedy available to Seller, Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 General
11.1 A notice required or permitted to be given by either party to the other under these Terms 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 pursuant to this provision to the party giving the notice.
11.2 No waiver by Seller of any breach of the Contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
11.4 Any dispute arising under or in connection with the Contract or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Association, in accordance with the rules of the Association.
11.5 The Contract shall be governed by the laws of England, and Buyer agrees to submit to the non exclusive jurisdiction of the English courts.