R & S PVCU PRODUCTS LIMITED trading as C I PRODUCTS TERMS & CONDITIONS OF SALE
(a) These conditions and any special conditions specified within the Seller’s official order form constitute the only conditions (“these conditions”) upon which R & S PVCU Limited trading as C I Products (“the Seller”) is willing to supply the goods specified within the Seller’s official order (‘the goods’) to the buyer named on the Seller’s official order form (“the Buyer”) from whom an order to supply goods the goods is received by the Seller.
(b) These conditions take precedence over any other conditions contained on or in any letter, order form, acceptance form, receipt or the like received by the Seller in connection with the goods so ordered and that no such other conditions will form part of the contract between the Seller and the Buyer (“the Contract”), unless specifically agreed in writing. These Conditions apply to all the Seller’s sales of goods, and the Buyer and Seller agree that any variation of these Conditions and any representations about the goods shall have no effect unless expressly authorised in writing by a director of the Seller.
(c) Statements in the Seller’s price lists, catalogues and advertisements shall not constitute an offer to sell and the Seller reserves the rights to vary its published prices at any time without notice.
(d) No contract shall exist unless and until either the Buyer signs the Seller’s official order form and returns it to an authorised representative of the Seller or the Seller delivers a written acknowledge of the order to the Buyer, whichever happens earlier.
2. THE PRICE
(a) The prices quoted are Ex Works and exclude Value Added Tax and delivery. The price for such goods and services as are to be supplied as stated in the invoice.
(b) The Seller shall have the right at any time before despatch to vary the price stated in the invoice:
(i) to reflect increases in the cost of labour, materials, packing or transport or other factors not under the control of the Seller which may occur between the date of the contract and the date of despatch, or
(ii) to take account of the cost of implementing any request by the Buyer for charges in delivery schedules, completions dates, quantities, designs or specification and/or delays caused by any other instructions of the Buyer or by any failure of the Buyer to give adequate information or instructions.
(a) If no time for delivery is specified in the Contract, the Buyer shall be bound to accept the goods when they are ready for delivery by the Seller. If the Buyer does not properly accept delivery, the goods will be deemed to have been delivered, risk in the goods will pass to the Buyer (including for loss or damage caused by the Seller’s negligence). The Seller may store the goods until delivery, whereupon the Buyer will be liable for all related costs and expenses (including storage and insurance)
(b) The quantity of any consignment of goods as recorded by the Seller upon dispatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. Any complaint of short delivery or of damaged goods in transit must be notified within 24 hours of receipt of goods and confirmed in writing at that time by the Buyer to the Seller and any complaint of failure to deliver goods invoiced must be so notified within 10 days of the date of the invoice. The Seller’s liability for non-delivery of goods shall be limited to replacing the goods within a reasonable time or issuing a credit note at the appropriate rate.
(c) Each delivery will constitute a separate Contract and any failure or defect in any one delivery will not vitiate the Contract as to the remaining deliveries.
(d) Any time or date for delivery named by the Seller is an estimate only and time for delivery shall not be made of the essence by notice. The Seller shall not accept liability for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods (even if caused by the Seller’s negligence).
(a) Fifty percent of total contract value is payable as a deposit at the time of order, with payment of the balance of the price for the goods supplied, due prior to delivery or collection of the goods. Any variation to these payment terms are only accepted by the Seller if otherwise agreed in writing between the Buyer and Seller.
(b) Time of payment shall be of the essence of the contract.
(c) The Buyer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the price of the goods by way of set-off claim or otherwise.
(d) If the Buyer fails to pay any amount when it is due under any Contract with the Seller; or if the Buyer is in breach of any Contract between the Buyer and the Seller may (without prejudice to any other rights against the Buyer) in accordance with these Conditions:
(i) by giving the Buyer written notice treat the unpaid purchase price of all goods and services delivered by the Seller to the Buyer as being immediately due and payable;
(ii) entitled to charge interest at the rate of 4% per annum above Barclays Bank plc base lending rate from time to time in force, on all sums outstanding from the due date to the day of actual payment thereof, such interest to accrue from day to day;
(iii) entitled to refuse to make any deliveries of any goods ordered by the Buyer under the same or any other contract with the Seller, without incurring any liability whatsoever to the Buyer, until payment in full of all sums due has been received by the Seller;
(iv) entitled to recover all costs and expenses incurred by the Seller in the collection or recovery of sums due and the Buyer hereby agrees to reimburse the Seller in full in respect of all costs and expenses;
(v) reserves the right to claim interest and fixed sum compensation under the Late Payment of Commercial Debts (Interest) Act 1998;
(vi) by giving the Buyer written notice treat any or all Contracts between the Buyer and the Seller as being repudiated and claim damages (including, without limitation, the right to sue for the price of any undelivered goods specifically purchased or ordered for the Buyer).
(e) Payments by credit card will be subject to a 2.5% surcharge.
With respect to windows, doors, conservatories and sealed units each item is specially manufactured to the Buyer’s requirements, if the Buyer cancels this contract at any time, the Seller shall be entitled
(a) to retain any deposit paid and
(b) to recover forthwith the full contract price.
Items ordered by the Buyer which are available from stock from either the Seller or the Seller’s supplier cannot be returned for credit or exchange unless expressly agreed to in writing by the Seller and on the Seller’s terms. This does not affect the Buyer’s rights to return incorrect or faulty goods subject to section 8 below of these terms and conditions.
6. RISK AND TITLE
(a) The Seller and the Buyer expressly agree that legal ownership of the goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it (including any interest charged) in respect of the goods; and all other sums which are or which become due to the Seller from the Buyer on any account. Notwithstanding the provisions of Condition 6(b) below, the goods shall remain the sole and absolute property of the Seller as legal and equitable owner until full payment (including any interest) has been received by the Seller.
(b) The risk in goods shall pass to the Buyer when the goods are delivered to the Buyer, or in accordance with his instruction, and thereafter and for so long as the goods remain in the Buyer’s possession, the Buyer shall insure the goods against all risks for at least the contract value.
(c) The Buyer acknowledges that he is in possession of the goods solely as bailee and in a fiduciary capacity for the Seller until such time as payment in full (including any interest) whether under this contract or any other contract with the Buyer has been received by the Seller or the goods have been resold in the ordinary course of the Buyer’s business. Until such time or until the goods have been installed or incorporated into other articles, the Buyer will; store the goods on its premises separately from its own and others goods and in a manner which makes them readily identifiable as belonging to the Seller and shall not alter, modify or add to any such goods or to any marking or identification on them and shall maintain them in good condition. (d) Subject to the terms of this Condition 6, the Buyer may dispose of the goods before ownership has passed to it in the ordinary course of its business at full market value as principal (but any warranties, conditions, or representations given or made by the Buyer to any third party shall not be binding on the Seller who shall be indemnified by the Buyer with respect thereto) and may pass good title in the goods to a third party being a bona fide purchaser for value without notice of the Seller’s rights.
(e) Where the Buyer resells the goods before the title hereto has passed, the Buyer shall sell as agent for and as bailee of the Seller, (but the Buyer has no authority to create contractual relations between the Seller and any sub-Buyer and the Buyer shall not hold himself out as the Seller’s agents). The Buyer shall keep such part of the proceeds of sales represents the price at which the goods were invoiced by the Seller to the Buyer in a separate account, and such part of the proceeds shall not be mingled with any other monies or paid into any overdrawn bank account and shall at all times be identifiable as the Seller’s monies and such part of the proceeds shall be held on trust for the Seller.
(f) If the Buyer becomes insolvent, or commits an act of bankruptcy or if a petition of bankruptcy is presented against the Buyer, or if the Buyer shall enter into any negotiations for an arrangement with its creditors, or, the Buyer being a company, if a petition is presented for an administration order or if a petition is presented or a resolution is proposed to wind up the Buyer or if a receiver of its assets or undertaking or part thereof is appointed or if an administration order is made against it, then:
(i) Notwithstanding any other agreement as to the terms of payment, the price under this contract shall immediately become due and payable in full;
(ii) the Buyer of possession shall cease forthwith;
(iii) the Seller shall have the rights set out in Condition 6(g) below;
(iv) the Seller shall have the right forthwith to terminate this contract (without prejudice to any other of its rights);
(v) the Buyer’s right of resale under Condition 6(d) above shall cease.
(g) If payment for the goods supplied under this or any other contract is overdue in whole or in part the Seller may (without prejudice to any of its other rights) the Seller may recover the goods (excluding any goods ownership of which had already passed to the Buyer) from the Buyer at any time and for that purpose the Buyer grants the Seller, its servants and agents an irrevocable licence at any time to enter upon any land or buildings for the purpose of recovering possession of such goods and in a case where the goods have been installed, for the purpose of taking out the goods from their installed position and removing them.
(h) Notwithstanding that the Seller retains title to the goods, the Seller shall be entitled to maintain an action for the price of the goods.
All drawings specifications and particulars of the goods submitted are approximate only. The description and illustrations contained in catalogues, price lists and other advertising of the Seller are intended merely to present a general idea of the goods described therein and shall not form part of the Contract. Whilst every effort is made to ensure that the latest specification is available, the Seller reserves the right to incorporate new features and to supply products which may not be strictly in accordance with the specification agreed upon, provided that any changes in specification shall not materially prejudice the performance of the goods.
(a) The Seller warrants that the goods are of satisfactory quality and that they comply with any specific description or specification supplied by the Seller to the Buyer in writing.
(b) The Seller gives no warranty that the goods are suitable for any particular purpose or for use under any specific conditions. It is in all cases the responsibility of the Buyer to satisfy itself that there is no apparent defect, irregularity or unevenness in the goods or incompatibility of the goods, and the Seller gives no warranty that the goods will not cause any such damage.
(c) Subject to the provision of these conditions, the Seller guarantees the goods against any defect which can be proved to the Seller’s satisfaction to have been caused by faulty materials or workmanship and which appears within six months from the date of the invoice. If the Buyer alleges any goods fail to comply with the warranty given, it shall give written notice to the Seller within 10 days of the time when the Buyer discovers or ought to have discovered the defect.
(d) Should such defect appear within six months from the date of the invoice, the Seller’s liability will be limited solely to repairing (at the Seller’s premises only) or replacing the defective goods free of charge or refunding the price of those goods (at its option), provided that the Seller shall not be under any liability for such a defect in the following circumstances:
(i) in any case where a defect in the goods is not apparent on delivery, unless and until the Buyer has paid the full price for the goods, or
(ii) if the goods have been subjected to unsuitable storage treatment or handling prior to use or to abnormal use or used under abnormal conditions or to used contrary to the Seller’s instructions or recommendations, or
(iii) the defect has been caused or contributed to by the faulty installation or repair of the goods by any person other than a duly authorised representative of the Seller, or
(iv) the Buyer fails as soon as possible after the assumed defect has become apparent to notify that defect to the Seller in writing quoting the date of purchase.
(v) no claim can be entertained after the goods or any part thereof have been processed in any way or if the Buyer continues to use the goods after giving notice to the Seller, or if the defect arises because the Buyer failed to follow the Seller’s instructions or (if there are none) good trade practice.
(e) Under no circumstances whatsoever shall the Seller be under any responsibility or obligation or be liable to the Buyer for the installation of the products or any replacement products of the Buyer under the Contract.
(a) Except as otherwise provided in these Conditions all warranties, conditions as to the quality of fitness of the goods, their description or correspondence with sample and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
(b) Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence.
(c) Subject to Conditions 9(a) and 9(b) above, the Seller shall not be liable to the Buyer for any loss, damage or injury of any kind whether direct, indirect or consequential (including for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) whether suffered by the Buyer or by any other party and whether such liability be in contract, tort, breach of statutory duty or otherwise howsoever (including for the avoidance of doubt liability for any negligence whether in relation to the design or manufacture or at all).
(d) The Seller shall not be liable to the Buyer or any third party for any loss or damage of any kind whether direct, indirect or consequential (including for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever arising from any representations, statements, warranties, recommendations, options or advice made or given before the making of the Contract, whether the same be made negligently or otherwise.
The Buyer undertakes to the Seller that it will immediately and fully indemnify the Seller against all proceedings, costs, fees, expenses, payments, liabilities, losses and damages whatsoever (including all legal costs and expenses) arising out of any act or omission of the Buyer in connection with the use, storage or sale of the goods.
11. FORCE MAJEURE
If the Seller is prevented, hindered or delayed (directly or indirectly) from delivering the goods or part thereof or from otherwise performing the Contract or part thereof by reason of act of God, exceptionally severe weather, war, national emergency, embargo, riot, strike, lockout, trade dispute, fire, flood, breakdown, governmental actions, interruption of transport or delay in or cessation of delivery to the Seller of any goods or materials by any cause whatsoever outside its control the Seller shall be entitled to cancel or defer the contract without any liability to the Buyer or, to extend the time for performance of the contract without any liability to the Buyer.
12. UNFAIR CONTRACT TERMS
The Seller has drawn up these conditions in light of the Unfair Contract Terms Act 1977 as amended and considers them to be fair and reasonable and its prices and insurance arrangements are based upon contracts made on these conditions. If the Buyer considers these conditions to be unreasonable, they must inform the Seller in writing before the Contract is made otherwise the Buyer will be deemed to have accepted that the Seller’s conditions are fair and reasonable and fully binding upon the Buyer.
(a) A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefits of any term of the Contract.
(b) If any provision of this Contract is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions of the Contract shall continue in full force and effect and will not be affected or impaired in any way.
(c) No concession or permission by the Seller whether in respect of these Conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be taken as a waiver of any of these Conditions.
14. GOVERNING LAW AND JURISDICTION
These conditions and the Contract shall be governed by and construed in accordance with English Law, and the Buyer and Seller submit to the exclusive jurisdiction of the English courts. All Contracts to which these conditions apply shall be deemed to have been made at the Sellers head office at Unit 3, Courtwell Business Park, Farningham Road, Jarvis Brook, Crowborough, East Sussex TN6 2JR.
© R & S PVCU PRODUCTS LIMITED trading as C I PRODUCTS – January 2011