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In these general terms and conditions of sale: -
1.1. "the Company" means Rayware Limited.
1.2. "the Customer" means the person, firm or company to whom the Company agrees to supply any goods under the Contract;
1.3. "Goods" means goods the Company agrees to supply to the Customer under the Contract.
1.4. "the Contract" means the agreement, to which these Conditions apply, made by the Company for the supply of any goods; and
1.5. "these Conditions" means the terms and conditions of sale of which this definition forms part.
2. Application & Incorporation
These Conditions shall apply as between the Company and every customer of the Company, and shall apply to and be deemed to be incorporated in, every agreement made by the Company for the supply of any goods. No variations or modifications of or substitution for these Conditions made by any such customer shall be binding on the Company unless specifically accepted by the Company in writing.
3.1. The Company's quotation in respect of any goods is merely an invitation for an order for such goods which is subject to these Conditions. No agreement for the sale of such goods will result until the Company's authorised representative has accepted such order.
3.2. Any prices quoted by the Company for goods will be held by the Company in respect of such goods provided that a Contract is made in respect of such goods within the period stated in the quotation, save that the Company shall be entitled to increase such prices to cover any increased costs which the Company may incur or for any reasons beyond the Company's control.
4. Pre-Contractual Representations
The Customer acknowledges that in entering into the Contract it has not and does not rely upon any oral or written representations made by or for the Company, save any such representations which are set forth in writing as terms of the Contract and the Customer shall have no legal remedies and the Company no liability, for any representation not incorporated as written terms of the Contract.
The Company reserves the right to update and amend any specification of Goods without notice to the Customer.
6.1. Subject to Clause 3, all Goods will be supplied at the Company's current and applicable prices as at the date on which the Goods are collected or delivered.
6.2. The prices quoted by the Company, stated in its price lists and publications or agreed with the Company are exclusive of Value Added Tax (VAT) and other taxes or duties applicable at the time of collection or delivery, which will be charged and payable by the Customer in addition to such applicable prices.
6.3. The Customer shall pay the Company the current market value of any pallets used to make delivery of Goods unless such pallets are returned or delivered up to the Company on demand.
7.1. The Customer shall pay the Company in full for all Goods within thirty days of the date of the invoice for the Goods, unless otherwise agreed in writing by the Company.
7.2. The Company may deliver or allow the Customer to Collect Goods by instalments and invoice each instalment at the time of such collection or delivery. Where the Contract is to be or may be fulfilled in separate instalments, each instalment shall be deemed to constitute a separate contract to which these Conditions apply, and payment shall be due accordingly.
7.3. Without prejudice to the Company's other rights, the Company shall at its discretion be entitled to charge interest on a daily basis on any overdue account of the Customer, both before and after any judgment, at the rate of 3 per cent over Midland Bank Plc base rate from time to time. Interest will accrue on a daily basis from the due date until the date of actual payment.
8.1. The Company will use its reasonable endeavours to deliver, or prepare for collection, Goods on quoted delivery or collection dates. However, such dates are not of the essence to the Contract and the Company shall incur no liability for failure to deliver or prepare for collection Goods by any such dates.
8.2. Without prejudice to Clause 12 below, the Company reserves the right to withhold delivery or refuse to allow collection of any Goods where it has reasonable and bona fide doubts as to the financial standing of the Customer, or where the Customer has failed to comply with the payment terms of previous contracts for sale of Goods.
8.3. The Customer shall indemnify the Company for all storage and other costs incurred by the Company as a result of the Customer's wrongful failure to collect or accept delivery of any Goods.
9. Examination & Acceptance
9.1. The Customer shall examine the Goods upon collection or delivery and notify the Company in writing of any breakages, shortages or defects within 3 working days of collection or delivery.
9.2. Subject to any notification made by the Customer under Clause 9.1, the Goods shall be conclusively presumed to have been accepted by the Customer after a period of 3 working days has elapsed from the date on which such Goods were collected by or delivered to the Customer.
9.3. Where the Company accepts any claim for breakages, shortages or defects brought to its attention under Clause 9.1, it shall either (at its option) replace the Goods or allow the Customer credit in respect of the Goods which are the subject of the claim.
9.4. The Company shall have no liability for breakages, shortages or defects in any Goods that would be apparent on any reasonable inspection unless the same are brought to the Company's attention within the period stated in Clause 9.1. 9.2 The Company shall, in any event, have no liability whatsoever in relation to breakages, shortages or defects in the Goods unless the broken, missing or defective Goods make up more than 5 per cent of the amount invoiced to the Customer.
10. Cancellation by Customer
10.1. The Customer has no right to cancel the Contract and shall not wrongfully refuse to accept any Goods.
10.2. If the Customer purports to cancel the Contract in whole or in part or wrongfully fails to accept the Goods, the Customer agrees to pay the Company such an amount as the Company shall reasonable estimate to represent its loss (including without limitation any difference between the amount invoiced to the Customer and the price at which the Goods were eventually sold for, or failing such sale, the lowest price at which the Goods could have been sold for by the Company) resulting from such cancellation.
11. Force Majeure
The Company shall not be liable to the Customer in respect of any failure to perform or delay in performing any of its obligations under the Contract where such failure or delay is attributable to any cause of whatsoever nature beyond the Company's reasonable control. Such failure or delay shall not be deemed for any purpose to constitute a breach of the Contract.
The Company shall be entitled to determine the Contract and, without prejudice to its other right, recover from the Customer any loss for damage it incurs, where: -
12.1. the Customer fails to collect or take delivery of any Goods within thirty days from the agreed collection or delivery date; or
12.2. the Customer defaults on or commits a breach of any of its obligations under the Contract or any other agreement with the Company; or
12.3. distress or execution of any other legal process shall be levied upon any of the Customer's property, goods or assets; or
12.4. the Customer makes or offers to make an arrangement or composition with its creditors, or commits any act of bankruptcy; or, being a limited company, goes into liquidation or suffers the appointment of a receiver, administrator or administrative receiver of its undertaking, property or assets or any part thereof.
13.1. Should any failure or defect in the Goods or become apparent within 12 months from the date of collection or delivery which is proved to the Company's satisfaction to be the result of defective material or workmanship and not caused by fair wear and tear, damage in transit or accident, the Company, subject to Clause 13.2 below, shall either (at its option) replace such defective Goods or allow the Customer credit in respect of the such Goods.
13.2. The aforesaid guarantee shall not apply in respect of: -
13.2.1. defects which would have been reasonably apparent to the Purchaser on reasonable examination of the Goods on collection or delivery and which have not been notified to the Company in accordance with Clause 9.1 here of;
13.2.2. defects or failures (not being defects to which Clause 13.2.1 applies) which are not reported to the Company within 30 days of the occurrence of failure or the defect becoming apparent;
13.2.3. any failure or damage due to Goods being misused for neglected operated in excess of their rated capacity or contrary to instructions issued by the Company in relation to the Goods or under conditions likely to cause excessive wear or tear;
13.2.4. Goods that have been modified or re-worked by the Customer or any third party;
13.2.5. Goods which have continued to be used by the Customer (or any sub-buyer from the Customer) after the failure or defects of the Goods first became apparent; or
13.2.6. subject to Clause 14, any direct, indirect or other losses, injury or damage howsoever arising (including without limitation loss of business, contracts or profits or any money paid by the Customer to other parties (other than death or personal injury) arising through any such failure or defect)
14.1 Subject to Clause 14.2 below, the obligations of the Company under Clauses 9 and 13 are undertaken by the Company and shall be accepted by the Customer in lieu of and to the exclusion of all conditions and warranties express or implied statutory (save for the implied condition as to the Company's title to the Goods) or otherwise. Save as provided in Clause 14.2 the liability of the Company to the Customer for loss or damage in relation to any Goods shall not in any event exceed the amount invoiced by the Company to the Customer for such Goods, whether such liability arises in contract or in tort (including negligence) or otherwise howsoever.
14.2 The limitation of liability referred to in Clause 14.1 shall not apply so as to exclude or restrict the Company's liability for: -
14.2.1 death or personal injury resulting from the negligence of the Company its servants or agents; or
14.2.2 the breach of the Company's implied undertaking as to title.
14.3 The Customer will indemnify and keep indemnified the Company against all claims, proceedings, costs and expenses in connection with any third party claim based upon any allegation that the safety of the Goods (or materials or components comprised within the Goods or any goods in which the Goods are incorporated) is not such as persons are generally entitled to expect, save where such deficiency in their safety was present at the time the Goods were despatched to the Customer or its agents by the Company or its agents.
15. Retention of Title
15.1 In respect of Goods which are the subject of the Contract, legal and beneficial title therein shall be retained by the Company until the earlier of: -
15.1.1 the resale of such Goods by the Customer in the ordinary course of its business; and
15.1.2 the payment in full for such Goods and all other monies owing by the Customer to the Company on any account whatsoever by the Company. Notwithstanding any purported appropriation by the Customer, the Company shall be entitled at its sole discretion to appropriate any payment made by the Customer to any account, and to any goods, of its choice.
15.2 The Customer and the Company hereby agree that the Goods shall (notwithstanding and without prejudice to the retention of title therein) be at the Customer's risk from the time the Goods are despatched to the Customer or its agents by the Company or its agents.
15.3 The Customer, as the Company's gratuitous bailee, shall ensure that the Goods are stored separately and securely in such a manner that they remain identifiable as the Company's property and do not deteriorate in condition until legal and beneficial title therein passes to the Customer.
15.4 Upon the occurrence of any of the following three events: -
15.4.1 any payment or payments for the Goods or any other monies owing by the Customer to the Company becoming overdue; or
15.4.2 a court making an administration order with respect to the Customer or any composition in satisfaction of the debt of, or a scheme of arrangement of the affairs of, the Customer or the Customer undergoing any comparable procedure under the laws of any competent jurisdiction; or
15.4.3 the Customer entering into liquidation, or being declared insolvent or bankrupt, or making an assignment or other arrangement for the benefit of its creditors, or having an administrative receiver appointed to it, or having a receiver or manager of its assets or a material part thereof appointed, or undergoing any comparable procedure under the laws of any competent jurisdiction.
Then (without prejudice to the Company's other rights and remedies in respect thereof) the Company may recover the Goods or any of them which are still in the Customer's possession, with the power to resell the same. This Clause shall constitute an irrevocable licence given by the Customer to the Company, to allow the servants, agents and representatives of the Company to enter the Customer's premises and remove there from such of the Goods as might be found therein upon the occurrence of any event listed in Clauses 15.1, 15.2 and 15.3.
The rights of the Company or the Customer shall not be prejudiced or restricted by any indulgence or forbearance extended to the other party and no waiver of either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
The Company reserves the right to correct any clerical or typographical errors made by its employees, servants or agents at any time.
18. Customer is Principal in Sub-Sale
In respect of any resale of the Goods, the Customer shall resell the Goods as a principal and not as the Company's agent.
19. Governing Law
The Contract shall be governed by and construed in accordance with English law and each party submits to the exclusive jurisdiction of the Supreme Court of Judicature of England in relation to any claim, dispute or difference that may arise in relation to the Contract.