ROSS UK LIMITED
GENERAL CONDITIONS OF SALE OF GOODS
1.1. In these conditions the “seller” means Ross UK Limited of Unit 7A Zone 4 Burntwood Business Park, Burntwood, Staffordshire, WS7 3XD, ENGLAND (the Premises) and the “Buyer” means any person placing an order with the Seller for the purchase of goods or the provisions of services (the “Goods”).
2.1. All orders accepted by the Seller and all Goods supplied by the Seller are subject to these conditions and to no other terms, conditions or provisions whether proposed by the Buyer orally or in writing (whether or not orally accepted by the Seller), shall be of no effect unless expressly accepted in writing and signed by an authorised representative of the Seller. The sale of goods by the Seller by the Buyer shall not constitute acceptance of such other terms, conditions or provisions.
2.2. Unless stated in these conditions or expressly agreed I writing and signed by the Seller, no term, condition warranty or representation (whether express or implied by statute, law custom or usage) as to the nature, quality or fitness of the goods or their conformity with any description or sample is given or assumed by the seller, or shall form part of any contract between the seller or the buyer, and are hereby excluded.
2.3. The contract comprised by these conditions and any document referred to overleaf and the particulars shown on the overleaf and upon the Seller’s Quotation or Acknowledgement of Order Form (the “Contract) shall comprise the entire contract between the seller and the buyer. No director, employee, agent, representative or consultant of the seller is the authorised to make any representation on behalf of the Seller in respect of the seller in respect of any matter to which the Contract relates and no representation shall impose any obligation upon the Seller whether in respect of negligence or otherwise. Any representation made by or on behalf of the Seller prior to the date hereof is hereby withdrawn.
2.4. The terms of this Contract shall override and supersede any previous negotiations. Agreement or arrangement between the Seller and the Buyer in relation to the supply at the Goods.
2.5. An order is only accepted by the Seller and a Contract shall only come into existence with the Buyer once the Seller has:
Received the Buyer’s order within the time specified in the sellers quotation (if any); and
Despatched to the Buyer the Sellers Acknowledgement of Order Form; and until such time the seller shall be under no obligation to the buyer.
2.6. Any Q quotation issued by the seller is subject to satisfactory trade and credit references and shall remain open to acceptance for 28 days. All quotations are subject to review for errors and omissions and to alteration without notice at any time.
2.7. All specifications, drawings, particulars of weights or any other material supplied with the Sellers Quotation and information contained in its publicity material, advertisements and catalogs in correspondence are for information only and, unless specifically stated in the Contract, are not to form part of this contract.
3.1. The seller’s prices are in pound sterling and are ex-works.
3.2. The seller shall endeavour to maintain prices given on its Quotation or Acknowledgement of order form but reserves the right to change its prices without notice after the date or quotation or Acknowledgement of Order Form but reserves the right to change its prices given on its Quotation or Acknowledgement and in particular but without limitation as a result of:
Any alteration in or addition to the Buyers requirements;
The Buyers instructions or lack of instructions;
Fluctuations in foreign exchange rates, which effect prices in any manner,
Any changes in the Seller costs.
3.3. The Sellers prices do not include any applicable value added tax or other taxes which may be chargeable in connection with the supply of the Goods to the Buyer. The costs of such value added tax and/or taxes shall be payable by the buyer in addition to the Seller’s prices. The price quoted is ex- works the premises and excludes and carriage, packing, insurance, delivery or transportation charge which will be payable in addition to the price.
4.1. Delivery shall be affected in the manner specified by the Buyer. In the event the buyer does not specify method of delivery, the Seller may use any means it may select for the transportation of the goods.
4.2. If the buyer agrees in this contract to collect or arrange for collection of the goods from the premises, delivery shall be effected and risk but not title shall pass when the goods are handed to the buyer or its carrier at the premises. The seller will notify the buyer when the goods are ready for collection and the buyer agree to collect the goods within seven days of such notice.
4.3. If the Seller agrees in this contract to arrange for delivery to a place within the United Kingdom nominated by the Buyer delivery shall be affected and risk but not title shall pass when delivery is tendered to the carrier.
4.4. The seller should use its best endeavours to deliver the goods in accordance with the date and in the manner specified overleaf but does not represent that the expected date of delivery shall be met and shall be under no liability whatsoever for delay in delivery from any cause including negligence. Time shall not be of the essence in terms of delivery.
4.5. The Buyer shall notify the Seller if the goods delivered in accordance with 4.3 do not arrive
4.6. The buyer shall carefully examine goods delivered in accordance with 4.3 on receipt and immediately notify to the seller, and within five working days confirm in writing details of short delivery or defects reasonably discoverable on careful examination.
4.7. The seller shall replace or, at its option refund the purchase price of any defective or undelivered goods falling within 4.5 or 4.6, but shall not be under any other liability to the buyer in this respect if the seller does not receive the notices referred to in 4.5 or 4.6, it shall be discharged from all liability (whether arising in negligence or otherwise) arising from none delivery, short delivery or from such defects.
4.8. The seller shall pack and secure the goods in such a manner as to reach the agreed point of delivery in good condition under normal modes of transport.
4.9. Failure by the seller to deliver one or more instalment in the case of any agreement for delivery by instalments shall not entitle the buyer to terminate this contract or reject those or subsequent deliveries.
If the seller agrees to install the Goods in the buyers designated location (the “buyers location”) then:
5.1. The buyer shall at its prevailing charge and after inspection provide the Buyer with written advice on the preparation of, alteration to, and provision of services to the Buyers Location if necessary for the installation and operation of the goods and on the proper environmental and operating conditions of the Goods. The buyer shall, at its expense make these preparations before the expected day of delivery for the goods contained in the sellers quotation or Acknowledgement of Order Form shown overleaf
5.2. The buyer shall promptly provide the seller and its sub-contractors with any information or assistance it may require to enable it to perform its obligation under this contract
5.3. The buyer shall allow the seller’s personnel and its sub-contractors uninterrupted full and safe access to the Buyers location during usual working hours, and provide adequate free working space and such other facilities that may be requested to enable the seller to perform its obligations under this contract.
5.4. The seller shall endeavour to deliver and install the goods in accordance with the expected delivery date contained in the Quotation or Acknowledgement of Order Form or shown overleaf. Dates given for delivery or installation of goods are given as estimates only and shall not constitute a term or condition of any contract between the seller and the buyer. Time shall not be of the essence. The seller reserves the right to amend any estimate without notification.
5.5. The buyer shall indemnify the seller against any liability the seller may incur for death, personal injury, damage to property or consequential loss arising out of work carried out at the buyers location, unless caused by the sellers or its sub-contractors negligence or breach of this contract.
5.6. Risk in the goods shall pass to the buyer when delivery is tendered at the buyer’s location.
Until payment in full (including value added tax) has been received by the seller for all goods supplied on any account and under any transaction by the seller to the buyer:
6.1 The property in and absolute ownership of the goods shall remain in the seller and buyer shall be entitled to possession thereof only on the terms hereof
6.2 The buyer shall hold the goods in a fiduciary capacity as bailee.
6.3 The buyer shall keep the goods in good condition and shall maintain full insurance in respect thereof on the sellers behalf in an amount which is not less than the price payable is the seller thereof and all the proceeds of such insurance shall be held on the trust for the seller
6.4 The buyer shall have a licence to sell the goods in the ordinary course of business provided always that:
(i) Any such sale shall be as principal and the proceeds of any such sale for the sellers account alone and shall be paid to the seller forthwith and pending payment shall be held on trust for the seller, and
(ii) Any such sale shall only be permitted until the happening of one or more of the events referred to in 6.5 below
6.5 The seller may be written notice at any time and at the sellers sole discretion terminate the licence conferred to the buyer by 6.4 above and in particular but without limitation may so terminate the licence whether payment has become due or not and also in the event that distress execution is levied against any of the buyers assets or if a judgement against the buyer remains unsatisfied for more than 7 days or if a receiver is appointed over any of the buyers assets or if a winding-up petition is against the buyer or if a resolution is passed for the winding-up of the buyer (otherwise than for the purposes of amalgamation or reconstruction)
6.6 The seller may repossess any of the goods at any time and all costs reasonably incurred by the seller in repossessing such unpaid items shall be borne by the buyer. Such goods repossessed shall be credited against the current account at the value at time of return. The buyer grants the seller an irrevocable licence to enter the buyer’s premises to recover any goods or other materials that are the seller’s property.
6.7 Each of the above sub-paragraphs shall be construed independently of, and shall be in no way limited by reference to, any other sub paragraph and if any other sub-paragraph and if any of the other above provisions is held to be invalid for any reason but would be valid if part of the wording in the same or another sub paragraph was deleted or modified, then such provision shall apply with such modification as to may be necessary to make it valid and enforceable.
6.8 The risk in the goods will pass to the buyer upon delivery in accordance with paragraph 4 above
7.1 The buyer shall make full payment to the seller of the invoice price no more than thirty days from end of month.
7.2 If payment is not made in full on the due date interest shall thereafter be payable on so much as is from time to time outstanding at the rate of 2 per cent per month compounded monthly until payment
7.3 The seller shall have the right to invoice the buyer for a partial delivery of goods under this contract
7.4 The buyer shall not be entitled to withhold payment of any invoice by any reason of any right of set off or any claim or dispute with the seller, whether relating to the quality or performance of the goods or otherwise.
7.5 The seller reserves the right to suspend delivery where it reasonably believes that the buyer will not make payment in accordance with clause 7.1 above all orders are accepted subject to the sellers continuing reasonable approval of the buyers creditworthiness
7.6 The sellers collection expenses, including those for drafts when payment is made and accepted by the seller in a currency other than pound sterling, are chargeable to the buyer in addition to the price for the goods
7.7 Any advance payment made by the buyer shall be held by the seller as a deposit
8. Storage & Payment
8.1 If buyer does not accept delivery of the goods in accordance with paragraph 4 above, the seller (without affecting its rights to terminate this contract) arrange for the storage of the goods on the buyers behalf but without liability for the loss or damage occurring after that date, and the buyer agrees to pay in addition to the price all reasonable charges for storage, insurance and transport occasioned by its failure to take delivery.
8.2 The seller will not be liable for any loss or damage to the goods in transit but will endeavor to pass onto the buyer the benefit of any claim the buyer may have against the carrier provided by the seller, provided the seller is notified of the claim within such a time limit as the carrier may impose and in any event within seven days
9. Warranty & Condition
9.1 Products manufactured by the Ross group of companies are warranted by the seller to be free of defects in material and workmanship for a period of one year from the date of despatch
9.2 The seller shall at its option repair, replace or refund the purchase price of any goods of the sellers manufacturer (which for the purpose of this paragraph 9 shall include any replacement goods supplied to the buyer pursuant of this paragraph) proved to its reasonable satisfaction not to conform to the guarantee in 9.1 above (“defect”) subject to the limitation in 9.3
9.3 The limitations referred to in 9.2 are
(a) The buyer must inform the seller promptly in writing on discovery of the alleged defect and promptly return the goods, carriage paid with a full written report on the defect unless the seller agrees to inspect or replace or repair on site:
(b) The goods must have been stored, installed, maintained and used with reasonable care in accordance with the sellers recommendations
(c) The fault derives solely from the sellers materials, workmanship, or design and was not caused wholly or partly of delivery to the buyer or to its order or of the buyers or any third party’s work, materials or design
9.4 If warranty in 9.1 does not or no longer applies to the goods the seller shall endeavour to provide servicing facilities at the sellers tariff and terms then in force
9.5 In case of goods not of the Ross group of companies manufacture, the warranty set out at 9.1 shall not apply and the seller will use reasonable endeavours to procure for the benefit of the buyer any warranty provided by the third party to the seller.
10.1 The seller accepts liability arising at law;
(a) For the personal injury or death directly caused by the sellers negligence; and
(b) For physical damage to the buyers tangible property directly caused by the sellers negligence, wilful default or breach of this contract
10.2 THE SELLERS TOTAL LIABILITY TO THE BUYER UNDER 10.1 (b) SHALL NOT EXCEED £50 000 IN AGGREGATE FOR CLAIMS MADE TO IT BY THE BUYER IN ANY PERIOD OF 12 MONTHS BEGINNING 31ST MARCH IN ANY YEAR
10.3 SUBJECT TO 10.1 THE SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANT LOSS EXPENSE OR DAMAGE OF ANT KIND (DIRECT, INDIRECT FINANCIAL ECONOMIC OR CONSEQUENTIAL AND WHETHER ARISING FROM NEGLIGENCE OR OTHERWISE, INCLUDING LOSS OF PROFITS) RESULTING FROM THE SELLERS SUPPLY OR FAILURE TO SUPPLY THE GOODS, FROM THE BUYERS USE, POSSESSION OR RESALE OF THE GOODS, OR FROM ANY OTHER ACT OR OMISSION OF THE SELLER
11. Patent Infringement
The seller shall, in lieu of all other liability to the buyer for loss where United Kingdom patents, trademarks, registered designs, copyrights or other intellectual proprietary rights published at the date of this Contract (*rights) are alleged to have been infringed by use or sale of the goods, indemnify the buyer against claims (including costs thereof) by owners o licences of rights that the buyers use possession or supply of the goods infringes those rights PROVIDED:
(a) This indemnity shall not extend to infringements resulting from
(i) Any act or omission of the buyer whereby it is negligent or in default or breach under this contract; or
(ii) Modification of the goods by or for the buyer or use of the buyers parts, designs, specifications, or specific instructions; or
(iii) Use or sale of the goods in combination with other items where but some combination infringements would not have occurred; or
(iv) Use of sale in a manner or for a purpose not disclosed to the seller before the date of this contract
(b) The buyer shall immediately inform the seller in writing of, and admit no liability for, claims for infringement shall make no settlement and shall permit the seller alone at the sellers option (and at the sellers expense) to deal with such claims (the buyer providing, at the buyers expense, all assistance reasonably requested for this purpose by the seller.
(c) If the seller does not assume defence of a claim, the buyer shall consult with the seller before taking any material action in relation to the claim and keep the seller full informed of the progress of the defence or compromise or settlement of the claim and make no admission in relation to, compromise or settlement of the claim except with, and in accordance with the terms of the sellers written prior consent.
12. Copyright & Confidentiality
12.1 All copyright, patent, trade secret, trade secrets, trademark and other proprietary and intellectual property rights in the goods and in all the sellers know-how, specification, drawings and other information (whether oral or in writing) which the seller may provide for the buyer or its agents for the purposes of this contract shall at all times remain vested in the seller and the buyer shall not acquire any intellectual property rights or licence relating to the goods; and may not cop or intimidate the goods
12.2 The buyer shall (both during and after completion of this contract) treat as confidential information which the seller may make available to it and shall only use or disclose it as may be necessary to enable it to use the goods
13. Determination of Contract
13.1 The seller may terminate this contract at any time by giving the buyer not less that 30 days written notice
13.2 The seller may (without prejudice to any other claim or remedy) suspend performance of or determine this or any other contract with the buyer immediately by written notice if:
(a) The buyer shall break any provision of this contract with the seller, or if distress or execution is levied any of the buyers assets or if the buyer, remains unsatisfied for more than 7 days or if a receiver is appointed over any of the buyers assets or if the buyer shall in the sellers reasonable estimation appear unable to meet its obligations as they fall due;
(b) If the buyer is a company and a winding-up petition is presented against the buyer or if a resolution is passed for a winding up of the buyer (otherwise than for the purpose of its amalgamation or reconstruction on terms approved in writing by the seller) or if a petition is presented for the administration of the buyer or a voluntary arrangement under part 1 of the insolvency act 1986against the buyer or any of its partners; or
(c) If the buyer is an individual or unincorporated business, and a bankruptcy petition is presented or an application is made for an interim order under Viii of the insolvency act 1986 against the buyer or any of its partners; or
(d) In any event a foreign jurisdiction analogues to, or comparable with (a) to (c) occurs
13.3 On termination of this contract for any reason;
(a) The buyer shall pay the seller on demand for all goods already delivered and work performed by the seller for the buyer prior to termination at the sellers usual rate; and
(b) The seller is granted an irrevocable licence to enter the buyers premises to recover any goods or other materials which are the sellers property; and
(c) The buyer promptly return the seller all documents and materials (and all copies) containing the sellers confidential information
14. Force Majeure
The seller shall not be liable in any way for loss damage or delay consequent upon strikes, lockouts, shortage of labour or material, disputes, prohibitions or imports, delays in deliveries of goods or services of sub contractors, fire, theft, storm, explosion, war, civil commotion, act of god, or any other circumstances beyond the control of the seller however arising or however caused.
The Contract shall be governed by the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the courts of England.
Should any provision of this contract become void or otherwise unenforceable by any reason, the validity of the remaining provisions shall not be affected thereby and the parties shall use their best endeavours to replace the provision which is void or unenforceable with a provision of similar economic effect.
Any variation to this contract shall only be binding if it is in writing, refers specifically to this contract, and is signed by an authorised representative of the seller
The seller may terminate any express or implied waiver by the seller of any team or condition of these conditions or of any breach of default of the buyer at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the seller from acting upon that or any subsequent breach or default or from enforcing any of these conditions
19.1 Should it become necessary for any reasons for the seller to make a partial delivery under the buyer’s order, such a partial delivery shall be treated as a separate and independent contract.
19.2 The buyer agrees to indemnify and keep indemnified the seller against all reasonable fees, costs and other expenses incurred by the seller in enforcing this contract of any of its terms or provisions.
19.3 Subject to paragraph 11, the buyer will indemnify the seller against any loss it may suffer or liability it may incur in consequence of any claim brought by a third party arising out of the buyers use or possession of the goods.
19.4 All paragraph ad other headings contained n these conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of this contract
19.5 Notices shall be give by hand to a director, or by being sent to a parties address facsimile, telex or registered post and by airmail where appropriate. Each party shall promptly notify to the other in writing any change of address or of telex or facsimile number
19.6 It is the buyer’s obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by governmental and other authorities or corporations relating to the possession, use, import, export or resale of the goods.
20. Returning Goods
20.1 Only standard, volume product in current demand & new unused condition will be considered for return for credit or replacement. Special, custom and/or ROSS/Flex®–developed product may not be returned.
20.2 Returns for credit or replacement (whether pursuant to Paragraph 8C hereof or otherwise) must be accepted only if previous consent in writing was received from Ross UK Ltd. Products approved for return must be accompanied by a packing slip, which must make reference to Purchaser’s order number and ROSS’ original invoice number covering the products being returned. Unless the return is due to an error on the part of ROSS, goods approved for return must be shipped to ROSS, transportation charges prepaid, and the Purchaser must be subject to a restocking or
handling charge with respect thereto.
Special, custom and/or Ross/Flex®-developed product may not be cancelled. Any other order cancelled by Purchaser must be subject to a reasonable cancellation charge, which will be taken into consideration expenses incurred and commitments made by ROSS in performance of its obligations with respect to the order cancelled.