TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
1. INTERPRETATION
1.1. Definitions.
a) Business Day: a day (other than a Saturday, Sunday or public holiday).
b) Conditions: the terms and conditions set out in this document.
c) Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods, Artwork and Specification in accordance with these conditions.
d) Customer: the person or firm who purchases the Goods from the Supplier.
e) Deposit: unless otherwise agreed in writing, a sum equivalent to 50% of the price.
f) Force Majeure Event: has the meaning given in clause 10.
g) Goods: the goods (or any part of them) set out in the Order.
h) Order: the Customer’s order for the Goods, as set out in the Customer’s written acceptance of the Supplier’s quotation.
i) Specification: any specification for the Goods, including any related plans and drawings referred to in the Supplier’s quotation.
j) Supplier: Ruuger and Partners Ltd. (registered in England and Wales with company number 8020664), trading under the name Transparent MFG.
k) Artwork: Any sketches, 3D models, color swatches, prototypes, samples, technical drawings and any other design documents created by the Supplier.
1.2. Interpretations.
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality.)
b) A reference to a party includes its personal representatives, successors or permitted assigns.
c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the works preceding those terms.
e) A reference to writing or written includes e-mails.
2. BASIS OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless agreed to in writing by the Supplier.
2.2. The Supplier reserves the right to refuse to accept any contract that is deemed to be contrary to the Supplier’s policies in force at the time.
2.3. A quotation for the Goods given by the Supplier shall constitute an offer open for acceptance. A quotation shall only be valid for a period of 30 Days from its date of issue unless otherwise specified or extended in writing by the Supplier.
2.4. The Order shall only be deemed to be accepted when the Customer has issued written confirmation of acceptance of an offer and paid in cleared funds or cash the Deposit (or the full Price, as the case may be), at which point the Contract shall come into existence.
2.5. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.6. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.7. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the supplier’s catalogues or brochures are produced 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 force.
3. GOODS
3.1. The Goods are as described in the Specification.
3.2. The Customer shall satisfy itself as to the suitability of the Goods for its purpose. The Customer shall be deemed to have carried out its own examination and investigation to ensure the suitability of the Goods for their intended purposes and applications.
3.3 Where the Supplier is undertaking an artwork as part of the Order, it shall be the responsibility of the Customer to sign-off any Artwork submitted for the Customer’s approval in advance of fabrication of the Goods. It shall be the responsibility of the Customer to check that every detail within the Artwork is to their satisfaction prior to giving approval to proceed with fabrication. The Supplier shall not be responsible for any errors therein which were not corrected by the Customer
4. DELIVERY
4.1. Subject to clause 7.8. the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Goods are ready.
4.2. The Customer shall provide at the Delivery Location at its expense adequate and appropriate equipment and manual labour for unloading the Goods where such is necessary.
4.3. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4. The Supplier may deliver any goods by a courier service of its choice, and will do so as IncoTerms DAP – Delivered At Place.
4.5. Any dates quoted for delivery are estimates only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in the delivery of the Goods up to 120 days from the date of the Deposit Payment.
4.6. If the Supplier fails to deliver the Goods, its liability shall be limited to the money (if any has been paid) paid by the Customer for the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5. QUALITY
5.1. The Supplier warrants that on delivery, and for a period of 4 weeks from the
date of delivery (Warranty Period), the Goods shall:
a) conform in all material respects with their description and the Specification; and
b) be free from defects in material and workmanship.
5.2. Subject to clause 5.3., if:
a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1.;
b) the Supplier is given a reasonable opportunity of examining such Goods; and
c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods and retain any defective parts.
5.3. The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1. in any of the following events:
a) the defect arises because the Customer failed to follow the Supplier’s written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
b) the defect arises as a result of the Supplier following any instruction, drawing, design or Specification supplied by the Customer;
c) the Customer alters or repairs such Goods without the written consent of the Supplier;
d) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage; or
f) the Customer uses accessories or replacement parts in connection with the Goods which do not conform to the Supplier’s specifications;
5.4. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1. The risk in the Goods shall pass to the Customer upon completion of delivery.
6.2. Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
6.3. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2., or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods.
7. PRICE AND PAYMENT
7.1. The price of the Goods shall be the price set out in the offer, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2. The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
b) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.5. The Supplier will invoice the Customer for the amount of the Deposit. Where the Supplier does not offer to accept a Deposit payment for Goods, the Supplier may invoice the Customer for the full Price of the Goods. Because the Goods are manufactured to order, the Deposit is non-refundable, apart from if the Supplier fails to deliver the Goods.
7.6. The supplier will invoice the Customer for the balance of the price of the Goods when the Goods are ready to be released for delivery.
7.7. The Customer must pay the invoice for the balance of the price of the Goods in full and in cleared funds before the Goods are released for delivery.
7.8. The Customer shall pay the balancing invoice in full and in cleared funds within 10 Business Days from the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.9. If the Customer fails to make the payment for the balancing invoice due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate (as set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998) of 8% per annum above Bank of England Base Rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount.
7.10. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counter-claim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. LIMITATION OF LIABILITY
8.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
a) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
b) defective products under the Consumer Protection Act 1987; or
c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2. Subject to clause 9.1. the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
a) loss of profits; or
b) loss of business; or
c) depletion of goodwill and/ or similar losses; or
d) loss of anticipated savings; or
e) loss of Goods; or
f) loss of contract; or
g) loss of use; or
h) any special indirect consequential or pure economic loss, costs, damages, charges, expenses.
8.3. Or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
9. FORCE MAJEURE
9.1. Force Majeure
a) ‘A Force Majeure Event’ means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or International calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
b) Neither party shall be liable for any failure or delay in performing its obligations under the contract to the extent that such failure or delay is caused by a Force Majeure Event.
10. GENERAL
10.1. Assignment and Subcontracting
a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.2. Intellectual Property
a) Unless otherwise agreed in writing, all intellectual property rights arising out of the Contract shall vest in the Supplier. The Customer shall have a world-wide, non-exclusive, non-transferable, royalty-free licence to use and have used, the intellectual property only for the purpose as specified.
b) The Intellectual Property includes the design appearance of all Artwork, Specification and Goods produced according to the Contract.
c) The Supplier’s acceptance of the Project is agreed on the understanding that no part of the Artwork, Specification or Goods provided to the Customer shall be used in any way except for the purpose specified, unless expressly agreed by the Supplier in writing, and unless the Customer has agreed to pay the Supplier such additional fee as agreed between the Customer and the Supplier.
10.3. Confidentiality
a) Both parties undertake to hold as confidential all disclosures of a technical nature made to them by the other party in the course of setting up or during this Contract.
b) Information which: is the public domain; comes into the public domain or is received in good faith from a third party; disclosed by order of a court of law; provably independently generated; shall not be regarded as confidential.
c) The Supplier may refer to the existence of the Contract or to the Customer in any promotional or experience material.
10.4. Due Acknowledgement
The Supplier is entitled to due acknowledgement in respect of the work provided, whether created wholly or partly to our design or with the benefit of the services provided by us. For the purpose of marketing our services and presenting examples of the work, the Supplier shall be entitled to publish, display or broadcast any work or idea created or designed wholly or partly by us or our agents which are in the public domain.
10.5. Notices
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or e-mail.
b) A notice of other communication shall be deemed to have been received: if delivered personally; when left at the address referred to in clause 11.5.; if sent by pre-paid first class post or recorded delivery, at 9:00 am on the second Business Day after posting; if delivered by commercial courier. On the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.6. Severance
a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
b) if any invalid, unenforceable or illegal provision of the Contract would be valid, minimum modification necessary to make it legal, valid and enforceable.
10.7. Waiver
a) A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, now shall it preclude or restrict the further exercise of that or any other right or remedy.
10.8. Third party rights
a) A person who is not a party to the Contract shall only be binding when agreed in writing and signed by the Supplier.
10.9. Variation
a) Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
10.10. Disputes
a) All disputes in respect of any matter or thing arising out of the Contract shall in the first instance be referred to an alternative dispute resolution procedure (ADR) recommended by the Center for Dispute Resolution, London (CEDR). The courts of England shall in all circumstances remain the competent jurisdiction for any appeal beyond a dispute resolution process.
10.11. Suppliers right of change and amendment
The Supplier reserves the right to make changes from time to time to the nature of and/or the way in which it provides its services under contracts with Customers, and, in consequence, to make variations and amendments to these Terms and to its Policies. Customers who use the Seller’ s services on a regular basis should check the relevant links regularly before placing Orders.
10.12. Governing law and jurisdiction
a) The contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.