In these conditions “Rescroft” shall mean Rescroft Limited; “the Goods” shall mean and include goods and/or works or any part thereof of any description to be performed under this Contract; “the Customer” shall mean the person, firm or company identified as such overleaf; “Contract” shall mean the contract which is concluded upon the acceptance of an order subject to these Conditions.
1. FORMATION OF CONTRACT
1.1 All quotations, offers and tenders are made and all orders are accepted subject to the following Conditions. Subject to Condition 1.2 all other terms, conditions or warranties whatsoever are excluded to the fullest extent permitted by Law from any contract between Rescroft and the Customer unless expressly accepted in writing by an authorised representative of Rescroft.
1.2 In the event of a conflict between these Conditions and Rescroft’s express terms of any quotation or order acknowledgement then such express terms shall prevail.
1.3 Quotations, offers and tenders issued by Rescroft are for the whole of the Goods referred in them and Rescroft reserves the right to refuse acceptance of any order which relates to only part of the Goods forming the subject of a quotation, offer or tender.
1.4 Quotations shall be available for acceptance for a maximum period of 30 days from date of issue and may be withdrawn by Rescroft at any time prior to the Customer’s acceptance by written or oral notice.
1.5 If any statement or representation has been made to the Customer by Rescroft, or its employees, officers or agents upon which the Customer relies (other than in the document(s) enclosed with Rescroft’s quotation or acknowledgement of order) then the Customer must set out that statement or representation in a document to be attached to or endorsed on the order and, in any such case, Rescroft may confirm, reject or clarify the point and submit a new quotation, if appropriate. Under no circumstances shall Rescroft be responsible or held liable in respect of any statement or representation relied upon by the Customer which is not attached to or endorsed on the order and subsequently confirmed in writing by Rescroft.
1.6 Unless specifically agreed to the contrary in respect of goods for export sale all trade terms shall be interpreted in accordance with the INCOTERMS current at the time the order is accepted.
1.7 Acceptance of delivery of goods shall constitute acceptance of these Conditions where the Customer has not previously communicated acceptance.
2.1 Unless otherwise stated in writing, all prices are quoted net ex works exclusive of VAT which will be payable in addition where applicable. Rescroft reserves the right prior to acceptance of any offer to withdraw or amend its price lists without notice from time to time.
2.2 Where Rescroft delivers the Goods the Customer shall be liable to Rescroft for carriage costs and any demurrage costs incurred by Rescroft in the event of vehicles being unduly delayed at the designated point of delivery.
2.3 Quoted prices are subject to fluctuation in the event of any increase in the cost of labour or in the cost of materials and/or overheads. Any increases in such costs during the period of the contract will be notified to the Customer and added to the quoted price.
2.4 Shipment and freight costs (including insurance) shall be charged extra for the transportation of goods overseas and to destinations which although within Great Britain are not located within mainland Great Britain. Rescroft shall advise the Customer of shipment and freight costs as soon as reasonably practicable upon formation of each contract.
2.5 Quotations issued in a currency other than sterling may, unless otherwise agreed in writing, be subject to amendment in the event of fluctuations in the applicable exchange rate prior to date of invoice.
3.1 Unless otherwise agreed by Rescroft in writing and subject to satisfactory trade references, payment shall be due and payable on the 20th day of the month following the month of invoice.
Payment in respect of the sale of goods for export is due on the date specified by Rescroft at the date when the contract is made, in the currency stated in the invoice and in accordance with the method of payment stipulated by Rescroft. The Customer shall meet all costs incurred by Rescroft in connection with designating a particular method of payment.
3.2 Rescroft shall be entitled to submit its invoice with its delivery advice note or at any time afterwards save that where delivery has been postponed at the request of or by the default of the Customer then Rescroft may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default on the part of the Customer.
3.3 Where Goods are delivered by instalments Rescroft may invoice each instalment separately and the Customer shall pay such invoice in accordance with these Conditions.
3.4 No dispute arising under the contract nor delays beyond the reasonable control of Rescroft shall interfere with prompt payment in full by the Customer.
3.5 In the event of default in payment by the Customer Rescroft shall be entitled, without prejudice to any other right or remedy:-
3.5.1 to suspend all further deliveries under the Contract or any other contracts between Rescroft and the Customer without notice;
3.5.2 to charge interest on any amount outstanding at the rate of either 3% per annum above the Base Rate of National Westminster Bank plc such interest being charged as a separate, continuing obligation not merging with any judgement; and/or
3.5.3 to serve notice on the Customer requiring immediate payment for all Goods supplied by Rescroft under this and all other contracts with the Customer whether or not payment is otherwise due or invoiced.
4.1 Time for delivery is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated.
4.2 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Any delays or alterations by the Customer in design, specifications or quantities required may result in delay in delivery.
4.3 Failure by the Customer to take delivery of or to make payment in respect of any one or more instalments of Goods delivered
under the Contract shall entitle Rescroft to treat the whole or part of the Contract as repudiated by the Customer.
4.4 Rescroft will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no
obligation to do so. Where delivery is postponed, otherwise than due to the default by Rescroft, the Customer shall pay all costs
and expenses, including a reasonable charge for storage and transportation, so occasioned and payment for the Goods shall be made in accordance with these Conditions.
4.5 Any packaging supplied by Rescroft, unless otherwise expressly agreed in writing, is intended to provide adequate protection in normal conditions of transit of usual duration.
4.6 Rescroft will not be liable for unloading the Goods at the designated point of delivery or for placing them in position on site, except by prior agreement in writing.
4.7 The Customer shall in the case of orders for shipment overseas to the Customer’s place of business, be solely responsible for obtaining all necessary import authorisations, the payment of any applicable import taxes, imposts or duties and Rescroft shall be under no obligation to give to the Customer the notice specified in Section 32 (3) of the Sale of Goods Act 1979 (or any re-enactment thereof).
5. RISK AND TITLE
5.1 Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods:-
5.1.1 if Rescroft delivers the Goods by its own transport or in accordance with a specific contractual obligation arranges transport for the Goods at the time when the Goods arrive at the designated place of delivery; or
5.1.2 in all other circumstances at the time when the Goods leave Rescroft's premises.
5.2 Title to the Goods shall only pass to the Customer upon the happening of any one of the following events:-
5.2.1 the Customer has paid to Rescroft all sums (including any default interest) due from it to Rescroft under this Contract and under all other contracts between Rescroft and the Customer including (for the avoidance of doubt) any sums due under contracts made after this contract whether or not the same are immediately payable; or
5.2.2 when Rescroft serves on the Customer notice in writing specifying that title in the Goods has passed.
5.3 Rescroft may recover Goods in respect of which title has not passed to the Customer at any time and the Customer hereby licenses Rescroft, its officers, employees and agents to enter upon any premises of the Customer for the purpose either of satisfying itself that Condition 5.4 below is being complied with by the Customer or of recovering any Goods in respect of which title has not passed to the Customer.
5.4 Until title to the Goods has passed to the Customer pursuant to these terms it shall possess the Goods as fiduciary agent and bailee of Rescroft. If Rescroft so requires, the Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to Rescroft.
6.1 Cancellation will only be agreed to by Rescroft on condition that all costs and expenses incurred by Rescroft up to the time of cancellation and all loss of profits and other loss or damage resulting to Rescroft by reason of such cancellation will be paid forthwith by the Customer to Rescroft.
6.2 Goods returned to Rescroft without Rescroft’s consent will under no circumstances be accepted for credit.
7.1 All variations in design, specification or quantity required by the Customer and accepted by Rescroft shall be agreed in writing and the price, if not agreed prior to the manufacture or delivery of the Goods shall be based on appropriate contracts prices (if any) plus escalation in respect of inflation and increased costs of materials and labour.
7.2 If Rescroft agrees to any variation any dates quoted for delivery shall be extended accordingly.
8.1 Rescroft reserves the right to alter or change dimensions or composition of the Goods supplied to conform to applicable standards or laws or otherwise within reasonable limits having regard to the nature of the Goods.
8.2 The information contained in the advertising, sales and technical literature issued by Rescroft may be relied upon to be accurate in the exact circumstances in which it is expressed otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the Contract unless the Customer shall have complied with Condition 1.5 relating to statements and representations.
9. SHORTAGES AND DEFECTS APPARENT ON INSPECTION
9.1 The Customer shall have no claim for shortages or defects in the Goods supplied apparent on visual inspection unless:-
9.1.1 the Customer inspects the Goods within three working days of their arrival at its premises or other agreed destination; and
9.1.2 a written complaint specifying the shortage or defect is made to Rescroft and to the carrier within seven working days of delivery in the event of shortage, defect or non-delivery of any separate part of a consignment, or within fourteen working days of the notified date of despatch in the event of non-delivery of a whole consignment or, in either event, within such shorter period as the carrier’s conditions (if applicable) require; and
9.1.3 Rescroft is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
9.2 If a complaint is not made to Rescroft as provided in this Condition 9 then the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to pay for the same accordingly.
9.3 Defects in quality or dimension in any instalment delivery shall not be a ground for cancellation of the remainder of the Contract.
10. DEFECTS NOT APPARENT ON INSPECTION
10.1 The Customer shall have no claim in respect of defects in the Goods supplied, which are not apparent on visual inspection at the time of delivery unless:-
10.1.1 a written complaint is sent to Rescroft as soon as reasonably practicable after the defect is discovered and no use is made of the Goods thereafter and no alteration made thereto or interference made therewith before Rescroft is given an opportunity to inspect the Goods in accordance with this Condition; and
10.1.2 the complaint is sent within 12 months of the date of delivery of the Goods or, in the case of an item not manufactured by Rescroft, within the guarantee period specified by the manufacturer of such item.
10.2 The Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without prior specific written consent of Rescroft nor in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse nor in respect of any Goods to which alterations have been made without such consent or to which replacement parts not supplied by Rescroft have been fitted.
10.3 Rescroft shall not be liable for (and the Customer shall indemnify Rescroft against claims arising therefrom) loss or damage suffered by reason of use of the Goods after the Customer becomes aware of a defect or after circumstances which should reasonably have indicated to the Customer the existence of a defect.
10.4 Rescroft may within 15 days of receiving a written complaint (or 28 days where the Goods are situate outside the United Kingdom) inspect the Goods and the Customer, if so required by Rescroft, shall take all steps necessary to enable Rescroft to do so.
11. GUARANTEE CONDITION
11.1 Save as otherwise provided by the other conditions of these Conditions Sections 13 to 15 of the Sale of Goods Act 1979 as amended or consolidated by statute from time to time are to be implied into the Contract.
11.2 In the event of the condition of the Goods being such as might or would (subject to these Conditions) entitle the Customer to claim damages, to repudiate the Contract and/or reject the Goods the Customer shall not then do so but shall first ask Rescroft to repair
or supply satisfactory substitute Goods and Rescroft shall thereupon be entitled at its option to repair or take back the defective Goods and to supply satisfactory substitute Goods free of cost and within a reasonable time or to repay the price of the Goods in respect of which the complaint is made.
11.3 If Rescroft does so repair the Goods or supply satisfactory substitute Goods or effect repayment pursuant to Condition 11.2 above the Customer shall be bound to accept such repaired or substituted Goods or repayment and Rescroft shall be under no liability
in respect of any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the defective Goods are repaired or the substitute Goods are delivered or the repayment is effected.
11.4 Any repaired or replaced goods shall be redelivered by Rescroft free of charge to the original point of delivery, but otherwise in accordance with and subject to these Conditions save that the period of 12 months referred to in Condition 10.1.2 shall be replaced by the unexpired portion of that period calculated from the date of delivery of the original Goods only.
11.5 In the case of Goods not manufactured by Rescroft:-
11.5.1 Rescroft gives no assurance or guarantee whatsoever that the sale or use of the Goods will not infringe the patent, copyright
or other industrial property rights of any other person, firm or company; and
11.5.2 the guarantee will be limited to the guarantee (if any) which Rescroft receives from the manufacturer or supplier.
Save where Rescroft is shown to have failed to exercise reasonable care in the manufacture and/or supply of the Goods and such failure results in death or personal injury, Rescroft shall not be liable in respect of claims arising by reason of death or personal injury. Further, under no circumstances whatsoever shall Rescroft be liable for consequential indirect or economic loss (including removal or rectification work required in connection with the installation of repaired or substitute Goods) loss of profits, damage to property or wasted expenditure.
13. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
13.1 All drawings, documents, confidential records, computer software and other information supplied by Rescroft are supplied on the express understanding that copyright is reserved to Rescroft and that the Customer will not, without the written consent of Rescroft, either give away, loan, exhibit or sell any such drawings, documents, records, software or other information or extracts therefrom or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
13.2 All claims for alleged infringement in respect of patents, trade marks, registered design, design right or copyright received by the Customer must be notified immediately to Rescroft so that Rescroft can be kept fully informed of the conduct of such claims.
14. CUSTOMER’S DRAWINGS
14.1 The Customer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to Rescroft, either directly or indirectly by the Customer or by the Customer’s agents, employees, consultants or advisers, are accurate, correct and suitable. Examination or consideration by Rescroft of such drawings, information, advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless Rescroft under the hand of an authorised representative specifically agrees in writing to accept responsibility.
14.2 The Customer shall indemnify Rescroft from and against all actions, claims, costs and proceedings which arise due to the manufacture of Goods to the drawings or specifications of the Customer where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent, copyright, registered design, design right or design copyright or other exclusive right.
15. FREE ISSUE MATERIALS
15.1 Where materials are supplied by the Customer to Rescroft such materials shall remain at the risk of the Customer at all times and Rescroft shall not be liable for (and shall be indemnified by the Customer against any loss, damage, injury or expense whatsoever
arising directly or indirectly therefrom) the loss of or damage to any material during fabrication by Rescroft or by any sub-contractor employed by Rescroft or whilst on the premises of Rescroft or of any such sub-contractor or in transit to or from the premises
of Rescroft or of any sub-contractor provided that Rescroft may, at its own discretion, make a contribution towards the replacement costs of such material.
15.2 An allowance for material lost as process scrap is (where applicable) included in the contract price and no such losses shall be the subject of any claim by the Customer or contribution by Rescroft. It is agreed between Rescroft and the Customer that the Customer shall be responsible for insurance cover in its own name and at its cost for the risks specified in this Condition 15.
15.3 Where materials are supplied by or on behalf of the Customer to Rescroft the Customer shall be responsible to ensure that the material is of satisfactory quality and is fit for its purpose and shall indemnify Rescroft against any loss, damage, injury or expense whatsoever arising directly or indirectly from any faulty in or incorrect specification of the said material.
If the Customer shall become bankrupt or under the provisions of Section 123 of the Insolvency Act 1986 is deemed to be unable to pay its debts or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the administration
or liquidation of the Customer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation) or if a Receiver or Manager is appointed of all or any part of its assets or undertaking (or in the case of the Customer residing or operating overseas any of the above events or events similar thereto arising under the laws to which the Customer is subject) Rescroft shall be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any other right or remedy accrued or accruing to Rescroft.
17. FORCE MAJEURE
In the event of the performance of any obligation accepted by Rescroft being prevented, delayed, or in any way interfered with by either:-
17.1 direction of government, war, industrial dispute, import or export restrictions, strike, breakdown of machinery or plant, accident, fire or by any other cause beyond Rescroft's control; or
17.2 non-delivery by Rescroft’s supplies or damage to or destruction of the whole or part of the Goods; Rescroft may at its option suspend performance or cancel its obligations under the Contract without liability for any damage or consequential loss resulting therefrom such suspension or cancellation being without prejudice to Rescroft’s right to recover all sums owing to it in respect of consignments delivered and costs incurred prior to the date of suspension or cancellation.
18. CONSUMER PROTECTION ACT 1987 (“the Act”)
18.1 In circumstances where Rescroft supplied parts or products to the Customer for incorporation with, or use ancillary to, any composite or other products to be produced, manufactured, processed or supplied by the Customer then:-
18.1.1 the Customer shall forthwith on demand product for inspection by Rescroft copies of all written instructions, information and warnings to be supplied by the Customer in relation to the said composite or other products, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of Rescroft of such instructions, information or warnings; and
18.1.2 the Customer shall indemnify, reimburse and compensate Rescroft for all losses and damages (including costs, expenses and charges for legal actions in which Rescroft may be involved) that Rescroft may incur in the event that any claim or claims are made against Rescroft pursuant to the Act or otherwise relating to the said composite or other products of
the Customer in circumstances in which the part or product supplied by Rescroft was either (i) not the defective part of the said composite product, or (ii) was only rendered the defective part or became a defective product by reason of actions or omissions of the Customer (including without limitation the supply of defective free issue materials), or (iii) was
only rendered the defective part or became a defective product by reason of instructions or warnings given by the Customer or other supplier of the said composite or other products or (iv) supplied in accordance with a specification and/or drawings furnished by or on behalf of the Customer.
18.1.3 for the purposes of this condition only the word “defective” shall be interpreted in accordance with the definition of “defect” contained in Part 1 of the Act.
18.2 The Customer hereby acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied to it by Rescroft with the Goods.
This Contract is between Rescroft and the Customer as principals and under no circumstances shall the Customer assign the benefit or burden of it without Rescroft’s prior written consent. Rescroft shall be entitled to assign or sub-contract the whole or part of its obligations under the Contract.
In the event of any provision of these Conditions being or becoming void in whole or in part the other provisions of these Conditions shall remain fully valid and enforceable and void provisions shall, where appropriate, be replaced in accordance with the meaning and purpose
of these Conditions.
The Contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only save in respect of any injunctive relief which Rescroft may claim in the Courts of the Country where the Customer
is resident or operates. In the case of any order for the export of goods overseas, the schedule to the Uniform Law on International Sales Act 1967 shall not in any circumstances apply to the Contract and neither shall the limits imposed by the Unfair Contracts Terms Act 1977 on the extent to which liability can be excluded.