Terms and conditions for the supply of goods and services
The Customer's attention is drawn in particular to the provisions of clause 7 (Customer obligations), clause 8 (Installation of the Goods) and clause 11 (Limitation of Liability).
(1.1) Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday, or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and, as applicable, the supply of Services, in accordance with these Conditions.
Customer: the person, firm or other organisation who purchases the Goods and/or Services from the Supplier.
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Order: The Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation as the case may be.
Services: the services (or any part of them) set out in the Order.
Specification: any specification for the Goods and/or Services, including any related plans and drawings, that are agreed in writing by the Customer and the Supplier.
Supplier: Rosewater Building & Office Services (registered in England and Wales with company number 11175282).
In these Conditions, a reference to writing or written includes faxes.
2. Basis of contract
(2.1) These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
(2.2) The Order constitutes an offer by the Customer to purchase the Goods and Services in accordance with these Conditions.
(2.3) The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
(2.4) The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
(2.5) Any samples, drawings, descriptive matter, or advertising produced or provided by the Supplier or its suppliers are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
(2.6) Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 15 Business Days from its date of issue whereupon it will automatically lapse.
3. Goods and Services
(3.1) The Goods and Services are described in the Order together with any attached Specification.
(3.2) The Supplier reserves the right to amend any Specification of the Goods and/or the Services up to the point of delivery if required by any applicable statutory or regulatory requirements.
(3.3) The Supplier will provide the Services with reasonable skill and care.
(3.4) Any changes which the Customer requests to the Goods, Services, and/or any Specification after a Contract has been entered into will be accepted by the Supplier at its absolute discretion. In the event that any such change will increase the costs for the Goods and/or Services, the Supplier shall notify the Customer in writing of such increased costs which shall, for the avoidance of doubt, be payable by the Customer in addition.
(3.5) To the extent that the Goods are to be manufactured in accordance with a
Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.5 shall survive termination of the Contract.
(4.1) The Supplier shall use reasonable endeavours to ensure that each delivery of the Goods is accompanied by a delivery note.
(4.2) The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).
(4.3) Delivery of the Goods shall be completed on delivery to or, if applicable, installation by the Supplier at the Delivery Location.
(4.4) The Customer will be responsible for the payment of excise duties, custom duties, fines and import sales tax.
(4.5) Any dates quoted for delivery and/or installation are approximate only, and the time of delivery and/or installation is not of the essence. For the avoidance of doubt, the Supplier shall not be liable for any delay in delivery of the Goods or provision of the Services that is caused by:
(a) a Force Majeure Event;
(b) the Customer's failure to accept delivery; or
(c) the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Services.
(4.6) If the Supplier fails to deliver or install the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods and services of similar description and quality in the cheapest market available, less the price of the Goods. This clause 4.6 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of such failure and, for the avoidance of doubt, is subject to clause 11.
(4.7) The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
(5.1) The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period) the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale or Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
(5.2) Subject to clause 5.3. The Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
(a) the Goods do not comply with clause 5.1 and the Customer gives notice of such in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
(5.3) The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer 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 Supplier following any drawing, design or
Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
(5.4) Except as provided in this clause 5, the Supplier shall have no liability to the
Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
(5.5) These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
(5.6) Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6. Title and risk
(6.1) The risk in the Goods shall pass to the Customer on completion of delivery in accordance with clause 4.
(6.2) Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods and Services.
(6.3) Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(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) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
(6.4) If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Customer obligations
(7.1) The Customer shall:
(a) ensure that the terms of the Order and any Specification submitted by the Customer are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the delivery of the Goods and the provision of the Services;
(c) provide the Supplier (including its employees, agents, consultants and subcontractors) with access to the Customer’s premises at all reasonable times and as may be reasonably required by the Supplier in order for the Supplier to deliver the Goods and/or provide the Services;
(d) provide the Supplier with such information, materials and other resources as the Supplier may reasonably require supplying the Services (including access to and use of (at the Customer’s expense) electrical and water utilities); and
(e) ensure that the proposed site(s) for installation of the Goods are suitable for installation and compliant with any relevant rules and legislation, and that authority has been sought from the appropriate stakeholders (where relevant).
(f) Ensure that all persons using the Goods are aware and informed of the Goods, how to use them and the risks associated with using them. This may include, but not limited to, installing posters, signage or written communication to staff and visitors. The Supplier shall not be liable for any medical conditions, allergic reactions, misuse of the Goods (such as ingestion or eye irritation), or any other harm caused by the Goods after the Goods have been installed as per clause 8.
(7.2) If performance of any of the Supplier’s obligations in respect of delivery of the Goods or installation of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier may suspend delivery of the Goods or performance of the Services until the Customer has remedied the Customer Default;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of the Supplier’s obligations; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8. Installation of the Goods
(8.1) The Supplier will complete installation of the Goods (as applicable) in accordance with the standard installation instructions for the Goods (Installation Instructions) which are available from the Supplier on request by the Customer.
(8.2) The Supplier shall be liable for any damage caused to the Goods as a result of a failure by the Supplier to comply with the Installation Instructions but will not be liable for any minor damages to the installation site that occur as a consequence of the Supplier following the Installation Instructions.
(8.3) As per clause 7.1(f), the Customer should ensure that all persons using the Goods are aware and informed of the Goods, how to use them and the risks associated with using them. This may include, but not limited to, installing posters, signage or written communication to staff and visitors and is at the sole discretion of the Customer.
9. Deposit, charges and payment
(9.1) The price of the Goods and Services (if applicable) shall be the price set out in the Order (as may be amended in accordance with these Conditions) exclusive of VAT (unless otherwise stated).
(9.2) The price of the Goods is exclusive of the costs and charges of packaging, insurance, and transport of the Goods and all of the duties and taxes referred to in clause 4.4, which shall be payable by the Customer.
(9.3) The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
(a) any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or any Specification;
(b) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions; or
(c) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, and other manufacturing costs).
(9.4) Subject to clause 9.5, the Supplier may invoice the Customer for the Goods and/or Services on or at any time after the completion of delivery and if applicable installation of the Goods, in accordance with the Contract.
(9.5) If the Supplier is prevented from completing the Services or delivery of the Goods as a result of a Customer Default, the Supplier will be entitled to invoice the Customer within 10 Business Days of the notification to the Customer of the existence of a Customer Default.
(9.6) The Customer shall pay all the invoices in full and in cleared funds within 30 days of the date of the invoice. Time of payment is of the essence.
(9.7) If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Royal Bank of Scotland's base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
(9.8) The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
(9.9) If the Customer fails to pay an invoice within 10 Business Days from the Due Date, the Supplier shall without limiting its other rights and remedies have the right to suspend delivery of the Goods and/or the supply of Services under the Contract (and any other contract between the Customer and the Supplier) until the Customer has remedied the default, and to rely on the Customer’s non-payment to relieve it from the performance of any of its other obligations under the Contract (or under any other contract between the Customer and the Supplier).
(10.1) If the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
(10.2) For the purposes of clause 10.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a) to 10.2(h) inclusive.
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
(10.3) If the Supplier, acting reasonably, determines that the Customer’s site is not suitable for installation of the Goods and notifies the Customer accordingly then the Supplier may cancel or suspend delivery of the Goods and performance of the Services without incurring any liability to the Customer, and the Supplier may charge the Customer for all related and reasonably incurred wasted costs and expenses.
(10.4) Termination of the Contract, however arising, shall not affect either of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
(10.5) On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
11. Limitation of liability
(11.1) Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
(11.2) Subject to clause 11.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; 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 in no circumstances exceed the price of the Goods and Services paid for by the Customer.
12. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport networks, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
(13.1) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(13.2) The Customer shall not, without the prior written consent of the Supplier, assign, transfer or subcontract all or any of its rights or obligations under the Contract.
(13.3) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax.
(13.4) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2; if sent by prepaid first class post or recorded delivery, at 11.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
(13.5) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(13.6) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(13.7) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
(13.8) A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(13.9) The Contract does not confer any rights on any person or party (other than the parties to the Contract) under the Contract (Rights of Third Parties Act) 1999.
(13.10) The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.