1. Interpretation

In these Conditions:

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‘BUSINESS DAYS’ a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

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‘BUYER’ means the person or firm who accepts a quotation of the Seller for the sale of the Goods/supply of the Services or whose order for the Goods/Services is accepted by the Seller;

‘CONDITIONS’ means these terms and conditions terms and conditions of sale as amended from time to time 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 between the Buyer and the Seller for the supply of Goods and/or services in accordance with these Conditions;

‘DELIVERABLES’ the deliverables set out in the Buyer’s order for the supply of Goods and/or Services, as set out in the Buyer’s purchase order form accepted by the Seller or the Quote accepted by the Buyer as the case may be;

‘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;

‘QUOTE’ the description or specification for the Services and/or Goods to be provided by the Seller to the Buyer;

‘SELLER’ means ROWE HANKINS LIMITED;

‘SERVICES’ means the services, including the Deliverables, supplied by the Seller to the Buyer as set out in the Quote;

‘WRITING’ includes e-mail facsimile transmission and comparable means of communication;

 

1.2

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.

1.3

The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2. Basis of the sale/supply

2.1      

The Seller shall sell and the Buyer shall purchase the Goods in accordance with any Quote of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Buyer’s order shall only be deemed to be accepted when the Seller issues a written acceptance of the order at which point and on which date the Contract shall come into existence. The Buyer is responsible for ensuring the terms of any order are in accordance with any applicable specification submitted by the Buyer and are complete and accurate.

2.2      

In the case of any inconsistency with any letter order contract or quotation incorporating or referring to these Conditions whatever may be their respective dates the provisions of these Conditions shall prevail unless expressly varied in Writing and signed on behalf of the Seller. These Conditions shall apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.

2.3      

Any Conditions emanating from the Buyer’s documents are sent by the Buyer and received by the Seller on the understanding that they appear on the Buyer’s documents because they are printed thereon but have no legal effect whatsoever and the Buyer waives any right which the Buyer might have to rely on such Conditions.

2.4      

No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.5      

The Seller’s employees or agents are not authorised to make any representations concerning the Goods 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.

2.6      

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 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.

2.7      

Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods contained in the Seller’s catalogues or brochures are issued or published 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 form.

2.8      

The Contract for the sale and supply of Goods and/or Services is personal to the Buyer and incapable of assignment or charge without the consent in writing of the Seller.

2.9      

All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

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3. Orders and specifications

3.1      

No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and to the extent confirmed in writing by the Seller’s authorised representative. The Seller shall supply the Services to the Buyer in accordance with the Quote in all material respects.

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 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 shall be those set out in the Seller’s Quote (if accepted by the Buyer) or the Buyer’s order (to the extent acknowledged by the Seller).

3.4      

If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller or its agents or sub-contractors against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, cop right, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification. This clause 3.4 shall survive termination of the Contract.

3.5      

The Seller reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform with any applicable statutory or regulatory requirements or, where the Goods and/or Services are to be supplied to the Seller’s specification, which do not materially affect their quality or performance and the Seller shall notify the Buyer in any such event.

3.6      

No order which has been accepted or acknowledged 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. The Buyer shall incur a cancellation charge payable to the Seller of 20% of the total (cancelled) order price against which losses as aforesaid shall be offset.

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3.7      

No returns of Goods shall be made to the Seller without its consent in writing and in the event of such consent returned Goods shall be returned at the Buyer’s expense and shall be in the condition in which they were supplied. Goods returned may be subject to a minimum charge payable by the Buyer of 20% of the total order price.

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4. Price of the goods/services

4.1      

The price of the Goods shall be the Seller’s quoted price. Prices quoted are valid for 14 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 charges for Services shall be calculated on a time and materials basis unless otherwise specified in the Quote.

4.3      

The Seller’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days, unless otherwise agreed in Writing.

4.4      

The Seller shall be entitled to charge the Buyer (in addition to any price quoted) for any expenses reasonably incurred by the individuals whom the Seller engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Seller for the performance of the Services, and for the cost of any materials.

4.5      

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to:

4.5.1    

the Buyer’s request to expedite delivery;

4.5.2    

any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration or increase of tax or of import/export duties, significant increase in the costs of labour, materials (including a price increase in raw materials) or other costs of manufacture);

4.5.3    

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 at timely information or instructions;

 

4.5.4    

any request by the Buyer to change the delivery date(s), quantities or types of Goods order or change in specification to the Services;

4.5.5    

any delay caused by any instructions of the Buyer in respect of the Goods and/or Services or failure of the Buyer to give the Seller adequate or accurate information or instructions in respect of the Goods and/or Services.

4.6      

Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, 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, packaging and insurance.

4.7      

The Seller reserves the right to amend the Quote if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Seller shall notify the Buyer in any such event

4.8      

The price is exclusive of any applicable value added tax (VAT), which the Buyer shall be additionally liable to pay to the Seller. Where any taxable supply for VAT purposes is made under the Contract by the Seller to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

4.9      

The Buyer shall:

4.9.1    

ensure that any information it provides in the Quote are complete and accurate;

4.9.2    

co-operate with the Seller in all matters relating to the Services;

4.9.3    

provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services;

4.9.4    

provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

4.9.5    

prepare the Buyer’s premises for the supply of the Services;

4.9.6    

obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

4.9.7    

comply with all applicable laws, including health and safety laws;

4.9.8    

keep all materials, equipment, documents and other property of the Seller (Seller Materials) at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation;

4.9.9    

comply with any additional obligations as set out in the Quote or stipulated by the Seller in connection with the use, storage and maintenance of the Goods.

4.10    

If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):

4.10.1  

without limiting or affecting any other right or remedy available to it, the Seller shall have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations in each case to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;

4.10.2  

the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this clause; and

4.10.3  

the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.

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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 on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price 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. In respect of Services, the Seller shall invoice the Buyer on completion of the Services unless otherwise specified in the Quote.

 

5.2      

The Buyer shall pay the price of the Goods or the fee for the Service within 30 days of the date of the Seller’s invoice (unless otherwise stated on the 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. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3      

If the Buyer fails to make any 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 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 judgment) on the amount unpaid, at the rate of two per cent per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.4      

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

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6. Delivery

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 or procuring the delivery of the Goods to that place.

6.2      

Any dates quoted for delivery of the Goods are approximate only and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods however caused. The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified by the Seller but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

6.3      

The Goods may be delivered by the Seller in advance of any quoted or agreed delivery date upon the Seller giving reasonable notice to the Buyer.

6.4      

The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. 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 Seller fails to deliver the Goods (or any instalment) for an unreasonable length of time for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.6      

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:

6.6.1    

store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

 

6.6.2    

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.

6.7      

Without prejudice to any other rights, it may have the Seller may withhold delivery of any of the Goods or any instalment thereof if it has reasonable grounds for doubting the Buyer’s ability to pay the price thereof.

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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 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

7.1.2    

in the case of Goods being handed to a carrier for carriage to the Buyer or to a port for export at the time of such handing over; or

7.1.3    

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.

7.1.4    

Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in and title to 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, except where the Buyer resells the Goods in which case title shall pass to the Buyer at the time specified in clause 7.3.

7.2      

Until such time as the property in the Goods passes to the Buyer, the Buyer shall:

7.2.1    

store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; 

7.2.2    

not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

 

7.2.3    

maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of delivery;

7.2.4    

notify the Seller immediately if it becomes

subject to any of the events listed in clauses 8.13, 8.16 and 9; and

7.2.5    

give the Seller such information as the Seller may reasonably require from time to time relating to:

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1. the Goods; and

2. the ongoing financial position of the Buyer.

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7.3      

Subject to clause 7.4, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:

7.3.1    

it does so as principal and not as the Seller’s agent; and

7.3.2    

title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.

7.4      

At any time before title to the Goods passes to the Buyer, the Seller may:

7.4.1    

by notice in writing, terminate the Buyer’s right under clause 7.3 to resell the Goods or use them in the ordinary course of its business; and

7.4.2    

require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.