1. Definitions and Interpretation.
1.1 In these Conditions:
‘CUSTOMER’ means the person or entity who or which concludes a Contract by accepting a quotation for the sale of Goods or for the purchase of Specific Services as set out in the Specification Sheet, or by the Supplier’s accepting a prior offer made by the before mentioned person or entity;
‘CONDITIONS’ means the standard terms and conditions of sale of Goods and supply of services set out in this document and includes any special terms agreed upon in Writing between the Customer and the Supplier including the Specification sheet for Specified Services;
‘CONTRACT’ means the contract for the purchase and sale of the Goods and Services including Specified Services;
‘GOODS’ means the goods and services including Specified Services to be supplied in accordance with the Conditions;
‘INPUT MATERIAL’ means any Documents or other materials, and any data or other information provided by the Customer relating to the Specified Service;
‘INTERLECTUAL PROPERTY RIGHTS’ means patents, trademarks, service marks, registered designs, applications for any of the foregoing, copyright, design rights, know-how, confidential information, trade secrets and business names and any other similar protected rights in any country;
‘OUTPUT MATERIAL’ means any Documents or other materials, and any data or other information provided by the Supplier relating to the Specified Service;
‘SPECIFICATION SHEET’ means the sheet to which these terms are appended;
‘SPECIFIED SERVICE’ means the service to be provided by the Supplier for the Customer and referred to in the Specification Sheet;
‘SUPPLIER’ means ROCOL®, a division of ITW Inc.;
‘SUPPLIER’S STANDARD CHARGES’ means the charges shown in the Supplier’s brochure or other published literature relating to the Specified Service from time to time; and
‘Writing’ includes facsimile or electronic transmission and comparable means of communication.
1.2 The headings in these Terms shall not affect their interpretation.
2. Basis of Sale of Goods
2.1 The Goods shall be purchased in accordance with the Supplier’s written quotation which is accepted by the Customer, or the Customer’s written order which is accepted by the Supplier, subject in either case to these Conditions to the exclusion of any other terms and conditions.
2.2 Unless otherwise agreed in Writing, these Conditions shall prevail over any inconsistent terms implied by law or trade custom, practice or course of dealing which are hereby expressly excluded to the furthermost extent.
2.3 No variation of these Conditions shall be binding unless agreed in Writing between the authorized representatives of the Customer and the Supplier.
2.4 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in Writing. 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 are not so confirmed.
2.5 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to storage, application or use of the Goods which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Customer’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Quotations and offers are open for acceptance within 30 days from the date thereof after which the Supplier reserves the right to withdraw the offer or vary any of its terms at any time prior to acceptance.
3. Orders, Specifications and Supply of Specified Service
3.1 All orders are subject to a minimum order value (£750 in respect of Goods to be supplied within the UK and £1000 in respect of Goods to be supplied outside the UK) at the Supplier’s current price as set out from time to time in its end user price list unless otherwise specified by the Supplier.
3.2 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in Writing by the Supplier ‘s authorised representative.
3.3 The Customer shall at its own expense and responsibility supply the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to any order, including any specification and Specified Service, within sufficient time to enable the Supplier to provide the Specified Service in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material.
3.4 The Supplier shall provide the Goods to the Customer subject to these Conditions. Any changes or additions to specifications including the Specified Services or these Conditions must be agreed in Writing by the Supplier and the Customer.
3.5 The Supplier reserves the right to make changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements relating to the manufacture of the Goods and which do not affect the use of the Goods or, where the Goods are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
3.7 No order which has been accepted by the Supplier may be cancelled by the Customer except with the written agreement of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all losses, costs, damages, charges and expenses incurred by the Supplier as a result of cancellation.
4. Rights in Input Material and Output Material
4.1 The property and any copyright or other intellectual property rights in:
4.1.1 Any Input Material shall belong to the Customer.
4.1.2 Any Output Material shall, unless otherwise agreed in Writing between the Customer and the Supplier, belong to the Supplier, subject only to the right of the Customer to use the Output Material for the purposes of utilising the Specified Service.
4.2. Any Input Material or other information provided by the Customer which is so designated by the Customer and any Output Material shall be kept confidential by the Supplier, and all Output Material or other information provided by the Supplier which is so designated by the Supplier shall be kept confidential by the Customer; but the foregoing shall not apply to any documents or other materials , data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
4.3 The Customer warrants that any Input Material and its use by the Supplier for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Customer shall indemnify the Supplier against any loss, damages, costs, expenses or other claims arising from any such infringement.
4.4 Subject to paragraph 4.3, the Supplier warrants that any Output Material and its use by the Customer for the purposes of utilising the Specified Service will not infringe the copyright or other rights of any third party.
5. Warranties and Liability
5.1 Subject to the conditions set out below the Supplier warrants that the Goods will be manufactured in accordance with the contract description referred to at clause 3.3 hereof and shall be of sound material and good workmanship.
5.2 The Supplier warrants to the Customer that the orders with specifications including Specified Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the mutually agreed Conditions of the purchase or the Specification Sheet. Where the Supplier supplies in connection with the provision of the Specified Service any goods (including Output Material) supplied by a third party, THE SUPPLIER DOES NOT GIVE ANY WARRANTY, GUARANTEE OR OTHER TERM AS TO THEIR QUALITY, FITNESS FOR PURPOSE OR OTHERWISE, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
5.3 The warranty provided for in this clause is given by the Supplier subject to the following conditions:
(a) the Supplier shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
(b) the Supplier shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence on the part of the Customer, abnormal conditions of use, failure to follow the Supplier’s written instructions, misuse or alteration or repair of the Goods without the Supplier’s approval;
(c ) the Supplier shall be under no liability if the total price for the Contract has not been paid by the due date of payment;
(d) this warranty does not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier;
(e) where the Goods supplied by the Supplier are not manufactured or supplied in accordance with the contract description or are not of sound material or good workmanship and the defect is apparent on reasonable inspection the Customer shall (whether or not delivery is refused by the Customer) notify the Supplier in Writing within 7 days from the date of delivery. If the Customer does not notify the Supplier accordingly, the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract;
(f) where any valid claim in this respect is notified to the Supplier in accordance with these conditions, the Supplier shall at its sole option be entitled to repair or replace the Goods free of charge, refund the Customer the price of the Goods (or a proportionate part of the price) but the Supplier shall have no further liability to the Customer.
5.4 The Supplier shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform any of its obligations under the Contract where such delay or failure is due to any cause beyond the Supplier’s reasonable control and the Supplier shall be entitled to a reasonable extension of time for performing such obligations.
5.5 Except in respect of death or personal injury caused by the Supplier’s negligence, THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER IN TORT OR CONTRACT BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED WARRANTY, CONDITION OR OTHER TERMS, OR ANY DUTY AT COMMON LAW, OR UNDER THE EXPRESS TERMS OF THE CONTRACT, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER (AND WHETHER CAUSED BY THE NEGLIGENCE OF THE SUPPLIER, ITS SERVANTS OR AGENTS OR OTHERWISE) WHICH ARISE OUT OF OR IN CONNECTION WITH THE SUPPLY OF THE GOODS OR THEIR USE OR RESALE BY THE CUSTOMER, EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS. THE SUPPLIER SHALL IN PARTICULAR HAVE NO LIABILITY TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR COMPENSATION ARISING FROM ANY INPUT MATERIAL OR INSTRUCTIONS SUPPLIED BY THE CUSTOMER WHICH ARE INCOMPLETE, INCORRECT, INACCURATE, ILLEGIBLE, OUT OF SEQUENCE OR IN THE WRONG FORM, OR ARISING FROM THEIR LATE ARRIVAL OR NON-ARRIVAL, OR ANY OTHER FAULT OF THE CUSTOMER. THE ENTIRE LIABILITY OF THE SUPPLIER UNDER OR IN CONNECTION WITH THE CONTRACT SHALL NOT EXCEED THE AMOUNT OF THE SUPPLIER’S CHARGES FOR THE PROVISION OF THE GOODS, EXCEPT AS EXPRESSLY PROVIDED IN THE CONDITIONS OF THE AGREEMENT.
5.6 The Supplier shall not be liable to the Customer 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 Supplier’s obligations in relation to the order of goods with specifications and in particular to the Specified Service, if the delay or failure was due to any cause beyond the Supplier’s reasonable control or if the delay or failure results from the Supplier’s use of the Customer’s specifications.
5.7 Subject as expressly provided in these Conditions all warranties, conditions or other term implied by statute or common law are excluded to the fullest extent permitted by law.
6. Price of the Goods
6.1 The price of the Goods shall be the Supplier’s quoted price.
6.2 The Supplier has the right by giving notice to the Customer at any time after acceptance of the Customer’s order or the Supplier’s quotation but before delivery to increase the price of such of the Goods as have not been delivered to reflect any increase due to any factor beyond the control of the Supplier, any change in delivery dates by the Customer, or any delay caused by any instructions of the Customer or failure by the Customer to give the Supplier adequate information or instructions.
6.3 Except as otherwise stated under the terms of any quotation of the Supplier, and unless otherwise agreed in Writing between the Customer and the Supplier, all prices are given by the Supplier exclusive of value added tax and on a CPT basis for UK and European sales and EX-Works for Rest of the World unless otherwise specified or agreed.
7. Terms of Payment
7.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall (subject to any agreed retention) be entitled to invoice the Customer for the price of the Goods on or at any time after delivery of the Goods unless the Goods are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Supplier shall be entitled to invoice the Customer for the price of the Goods at any time after the Supplier has notified the Customer that the Goods are ready for collection or (as the case may be) the Supplier has tendered delivery of the Goods.
7.2 The terms of payment shall be the 20th of the month following the date of the Supplier’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods had not passed to the Customer. The time of payment shall be of the essence of the Contract.
7.3 If the Customer fails to make any payment on the due date then the whole of the balance of the price of the Goods then outstanding shall become due and payable forthwith and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
(a) cancel the contract or suspend further deliveries of Goods (whether ordered under the same Contract or not);
(b) charge the Customer interest on the amount outstanding, at the rate of 2 per cent per annum above the base rate of HSBC from time to time, from the due date until payment is made in full;
(c ) make a storage charge for any undelivered Goods;
(d) stop the Goods in transit.
7.4 In the event that the Supplier cancels the Contract pursuant to clause 5.3(a), the Customer shall remain liable to pay for any Goods already delivered or made available for collection by the Supplier. Cancellation shall be without prejudice to any other rights or remedies the Supplier may have in respect of the Customer’s failure to make payment. For the avoidance of doubt, the Customer shall remain liable for any losses, damages or costs incurred by the Supplier as a result of cancelling the Contract.
7.5 No deduction shall be made by the Customer in respect of any set off or counter claim howsoever arising.
8.1 Delivery of the Goods shall be made to the Customer’s premises or at another mutually agreed location by the Supplier delivering the Goods to that place, location or premises.
8.2 Any dates quoted for delivery of the Goods are approximate only and whilst Supplier shall use its best endeavours it shall not be liable for any delay in delivery or installation of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Supplier in Writing. The Supplier reserves the right at its sole discretion to make partial deliveries of the Goods and each part so delivered shall, for the purpose of payment, be deemed to be a separate contract and may be invoiced separately.
The Goods may be delivered to the agreed location by the Supplier in advance of the quoted delivery date upon giving reasonable notice to the Customer.
8.3 Where the date has been specified for delivery of the Goods the Customer shall give the Supplier all necessary instructions and authorities and generally make all necessary arrangements so that the Goods may be delivered in accordance with the Contract.
8.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and a failure by the Supplier to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
8.5 If the Customer fails to take delivery of the Goods or fails to give the Supplier adequate instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then, without prejudice to any other right or remedy available to the Supplier, the
(a) store the Goods until actual delivery and charge the Customer for the reasonable costs of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price of the Contract or charge the Customer for any shortfall below the price under the Contract.
9. Risk and Property
9.1 Risk and damage to or loss of the Goods shall pass to the Customer in accordance with shipment term EXW (Incoterms 2010) unless otherwise stated.
9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the legal and beneficial title in the Goods shall not pass to the Customer until the Supplier has received payment in full, including VAT, (in cash or cleared funds) for:
(a) the Goods;
(b) and other goods or services the Supplier has supplied to the Customer for which payment has become due
9.3 Until such time as the title in the Goods passes to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) keep the Goods separate from those of the Customer and third parties and properly stored and protected and identified as the Supplier’s property;
(c ) not remove, obscure or deface any marks or packaging identifying the Goods as belonging to the Supplier;
(d) maintain the Goods in satisfactory condition and keep the Goods fully insured, from the time that risk in the Goods passes, in an amount not less than the price payable for the Goods and all proceeds of such insurance shall be held on trust for the Supplier; and
(e) notify the Supplier if the Customer becomes subject to any of the events listed in clause 10.1.
But the Customer may resell or use the Goods in the ordinary course of its business.
9.4 The Customer’s right of possession of the Goods shall cease upon the happening of the earliest of the following events;
(a) any failure by the Customer to make any payment to the Supplier on the due date;
(b) any of those events referred to in clause 10.1 hereof.
9.5 If the Customer’s right of possession shall cease in accordance with clause 7.4 hereof the Supplier may, without prejudice to any other right or remedy it may have, enter any premises of the Customer or any third party where the Goods are stored in order to repossess the Goods and thereafter sell the same and for this purpose the Customer hereby grants to the Supplier and its employees and agents an irrevocable right and licence to enter upon any of the Customer’s premises to remove the Goods.
10 Insolvency of Customer
10.1 This condition applies if;
(a) the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or partnership) becomes bankrupt or is dissolved or (being a company) goes into liquidation; or
(b) an encumbrancer takes possession of or a receiver or administrative receiver is appointed of the Customer or of or over any of its property; or
(c ) any judgment is obtained against the Customer or any distress or execution is levied on any premises owned or occupied by the Customer; or
(d) the Customer ceases or threatens to cease to carry on business; or
(e) the Supplier reasonably apprehends that any of the events mentioned in this clause 10.1 is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If this condition applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangements to the contrary.
11. Intellectual Property
Unless otherwise agreed in writing with the Supplier or his authorised representative:-
11.1 The Supplier shall retain the exclusive property and reserve the copyright in all documents supplied or produced for the Customer in connection with the Contract (including any installation plans or specification produced at the request of the Customer) and it shall be a condition of such supply or production that the contents of such documents or any part thereof shall not be communicated either directly or indirectly to any other person, firm or company without the prior consent of the Supplier in writing.
11.2 The Intellectual Property Rights in or relating to the Goods shall (subject to any existing rights of any third party in any design or invention incorporated or used in the design of the Goods) remain exclusively the property of the Supplier and neither the Customer nor any agent, contractor or other person authorised by the Customer shall at any time make any unauthorised use thereof.
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing and may be given either personally or by first class post or facsimile transmission addressed to that other party at its registered office or principal place of business. Where given by first class post, such notice will be deemed to have been served 48 hours after posting. Notice given in person or by facsimile shall be deemed to be served immediately.
12.2 No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same condition or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be held invalid or unenforceable in whole or in part the validity of the other provisions and the remainder of the provision shall not be affected thereby.
12.4 Customer shall not be entitled to assign or otherwise transfer the Contract or any of its rights or obligations there under without the prior written consent of the Supplier.
12.5 These Conditions shall be governed by and construed in accordance with the laws of England and both parties hereby submit to the exclusive jurisdiction of the English courts for the settlement of all disputes or claims which may arise out of or in connection with these Conditions.
12.6 These Conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in Writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
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