1 In these conditions, the following words shall have the following meanings:-
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller or the person to whom he Seller has agreed to provide the Services;
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and including when appropriate (but without prejudice to the generality of these Conditions) products supplied by the Buyer to the Seller so the Seller may perform a specified service in accordance with these Conditions. [we should specify the goods];
“Seller” means [REMS/REMS International];
“Services” means the services that the Seller has agreed to provide to the Buyer as set out in the Contract;
“Conditions” means the standard terms and conditions of sale set out in herein [and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller];
["Contract" means the contract for the purchase and sale of the Goods or when appropriate the supply of the Services and includes these conditions ];
“Writing” includes writing, cable, facsimile transmission and comparable means of communication;
“Buyer’s Group” means the Buyer and any subsidiary of the Buyer or any subsidiary of a holding company of the Buyer”
“Seller’s Group” repeat as above except refer to seller”
Any reference in these Conditions to any 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 Conditions are for convenience only and shall not affect their interpretation.
2 Basis of Sale or Provision of Services
2.1 The Seller shall sell and the Buyer shall purchase the Goods and/or the Services in accordance with [any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller] [make reference to the front part – re an order form] subject in either case to these Conditions, which together with the Contract shall govern to the exclusion of any other terms and conditions 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 the Buyer, the Agreement between the Buyer and the Seller.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods or the Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or the Services which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the 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, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller with such confirmation being signed by a director of the Seller.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods or the Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods or the Services shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 The Seller reserves the right to make any changes in the specification of the Goods or the Services which are required to conform with any applicable statutory or EC requirements or, where the Goods or the Services are to be supplied to the Seller’s specification, which do not materially affect their quality.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the 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 the Seller as a result of cancellation.
4 Price of the Goods or the Services
4.1 The price of the Goods or the Services shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s acknowledgement of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or the Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulations, alterations of duties, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.)
4.3 Except as otherwise stated under the terms of any quotation or any acknowledgement of the order by the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller exclusive of delivery costs, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, under the Road Haulage Associations standard conditions or otherwise as agreed between the Seller and the Buyer and confirmed by the Seller in Writing
4.4 The price of the Goods or the Services is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5 The cost of returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
4.6 Any repair work quoted for is undertaken solely upon the basis that to ensure a satisfactory repair it may be necessary to replace parts which appear to be re-usable and/or to carry out more work than was quoted for. The Seller may therefore invoice for repair work on the basis of actual cost. If following receipt of a quotation for the repair of goods the Buyer decides not to proceed the Seller reserves the right to charge for dismantling and re‑assembly. If within twenty one days from receipt of a quotation for the repair of goods the Buyer does not give any instructions the Seller will not thereafter accept any liability for loss or damage to any of the Buyers property remaining in its hands.
5 Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods or the Services on or at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (without any deduction) within 30 days of the date of the Seller’s invoice and the 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 the Buyer. For the purposes of these Conditions and the Contract, time shall be deemed to be of the essence. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make full payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries or the provision of the Services to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent (4%) per annum above Midland Bank plc 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).
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence for the purposes of these Conditions of the Contract. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 The Seller shall have the right to deliver the Goods by instalments of such quantities and at such intervals as it may decide and any express provisions as to instalments in the Contract shall be in addition to and not in derogation of this right.
6.4 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the 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 the Buyer:
7.1.1 in the case of the Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the 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 Conditions, the property in the Goods shall not pass to the Buyer until the 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 the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but shall be entitled to 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 the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. PROVIDED ALWAYS that in every such case the Buyer shall return the goods to the Seller in the same containers as originally supplied or a container of similar quality
7.5 The 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 the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and Liability
8.1 Subject to the conditions set out in Clause 8.2 below the Seller warrants that the Goods will correspond with their specification at the time of delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.3 the Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Buyer;
8.4 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller’s approval;
8.5 In respect of any of the Goods or part of the Goods not manufactured by the Seller the Seller shall pass on to the Buyer such guarantee (if any) as the manufacturer of the same may have given to the Seller but the Seller shall be under no further liability to the Buyer in respect thereof.
8.6 The Seller shall be under no liability pursuant to the provisions of clauses 8.2 or 8.3 (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.7 Subject as expressly provided in these Conditions, 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.
8.8 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restriction on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
8.9 Any claim by the 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 the Buyer) be notified to the Seller in Writing within 3 days from the date of delivery or from the date when the Seller tendered delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time (which shall in no circumstances be more than 3 months after such delivery) after discovery of the defect or failure. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.10 Where the Goods are despatched to the Buyer by a carrier no claim for non-delivery of the same shall be made against the Seller unless it shall receive written notice of such non-delivery within such time after despatch as shall enable the Seller to make a valid claim against the carrier in respect thereof.
8.11 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to either replace or repair the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.12 The Seller shall use reasonable care and skill in the provision of the Services.
8.13 Subject to the provision of Clause 8.10, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.14 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the 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 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or the Services or the use or resale by the Buyer of the Goods, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods or the amount due to the Seller for the provision of Services, except as expressly provided in these Conditions.
8.15 The Seller shall not be liable to the 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 the Seller’s obligations in relation to the Goods or the Services, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.15.1 Act of God, explosion, flood, tempest, fire or accident;
8.15.2 war or threat or war, sabotage, insurrection, civil disturbance or requisition;
8.15.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.15.4 import or export regulations or embargoes;
8.15.5 illegal acts, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a trade party);
8.15.6 difficulties in obtaining raw materials, labour, fuels, parts or machinery;
8.15.7 power failure or breakdown in machinery.
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any specification supplied by, or the instructions of, the Buyer (in which case clause 9.2 shall apply), the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller in Writing (which shall not be unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other such party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
9.2 The Buyer shall indemnify the Seller against all costs claims expenses damages charges or liability whatsoever in respect of or arising from any claim for infringement of any patent copyright design or other industrial or intellectual property right relating to any of the Goods supplied to the design or specification of the Buyer or following the instructions of the Buyer.
10 Insolvency of Buyer
10.1 This Clause 10 applies if:
10.1.1 the Buyer makes any 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, or any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause 10 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries or provision of Services under the Contract without liability to the Buyer, and if the Goods have been delivered or the Services provided, but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11 Export Terms
11.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.3.1 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be ex-works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.5 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a clearing bank in London acceptable to the Seller or, if the Seller has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller at such branch of Barclays Bank plc in England as may be specified in the bill of exchange.
12 Protections for Seller
12.1 The Buyer undertakes to the Seller not to and to procure that no other member of the Buyer’s Group shall for the period from the date of this Contract and for five years thereafter (“the Restricted Period”) either on its own behalf or jointly with or as manager advisor, consultant or agent for any other person directly or indirectly:-
12.2 seek to contract with or engage [(in such a way as to adversely affect the business of the Seller or any other member of the Seller’s Group as carried on at the relevant time)] any person who has provided goods or services to the Buyer or any member of the Buyer’s Group pursuant to this Contract either as a sub-contractor, agent or otherwise;
12.3 approach, canvass, solicit, engage or employ or otherwise endeavour to entice away any person who shall be or shall have been an employee, officer or manager of the Seller or any member of the Seller’s Group as at the date of this Contract.
13 Protections for Sellers Sub Contractors
13.1 The Buyer undertakes to the Seller not to and to procure that no other member of the Buyer’s Group shall for the period from the date of this Contract and for five years thereafter (“the Restricted Period”) either on its own behalf or jointly with or as manager advisor, consultant or agent for any other person directly or indirectly:-
13.2 The Sub-contractor agrees not to and to procure that no other member of the Sub-contractor’s Group will approach any customer or client of [REMS] or any member of the REMS Group, to whom the Sub-contractor has provided goods or services to at the request of REMS or any other member of the REMS Group.
14.1 Any notice required or permitted to be given by either party to the other under these Conditions 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.
14.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
14.4 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
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