Rack Repair Specialists
1.1 “ROS” means ROS (UK) Limited.
1.2 “Customer” means the person, firm or company whose order is accepted by ROS.
1.3 “Goods” means all those goods, services, materials and equipment specified in the quotation overleaf or any amendment thereto agreed in writing between ROS and the Customer and which are to be supplied to the Customer by ROS under these conditions of sale.
1.4 “Contract” means the contract for the purchase and sale of the Goods.
1.5 “Site” means the place where the installation (where applicable) of the Goods is to be carried out.
1.6 The headings in these conditions are for convenience only and shall not affect their interpretation.
2.1 All Goods sold by ROS are sold subject to these conditions and these conditions shall be the sole terms and conditions of any sale by ROS to the Customer. Terms and conditions on the Customer’s order form or other document or otherwise shall not be binding on ROS.
2.2 Amendments, variations or additions to the Contract are binding only if confirmed in writing by ROS.
2.3 ROS’ employees or agents are not authorised to make any representations concerning the Goods unless confirmed by ROS in writing. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such
representation which is not so confirmed.
3.1 Upon receipt of the Customer’s order, ROS will confirm price, quantities and delivery date. These will usually be fixed, and if it is not so, specific mention of alternative arrangements will be incorporated into the Contract.
3.2 An order submitted by the Customer shall be deemed to be accepted by ROS when it is confirmed in writing by ROS’ authorised representatives subject to these terms and conditions.
3.3 Once an order has been accepted by ROS the Buyer may only cancel with the agreement in writing of ROS and on terms that the Customer shall indemnify ROS in full against all loss(including loss of profit), cost (including the cost of all labour and materials used), damages, charges and expenses incurred by ROS as a result of cancellation.
3.4 Orders are accepted by ROS subject to the availability of Goods for delivery.
3.5 All drawings, photographs, illustrations, performance data, dimensions, weights and other technical information and particulars of the Goods are given by ROS in the belief that they are as accurate as reasonably possible but are not to be treated as binding or forming part of the Contract. ROS reserves the right to alter the design and specifications of the Goods at any time without notice.
3.6 The Customer will if requested by ROS, take any reasonable steps to satisfy ROS prior to execution of the order as to the Customer’s credit worthiness, such as the provision of trade and banker’s references or of the guarantee of payment from a third party acceptable to ROS. ROS reserves the right to refuse the order, to delay the execution of the order, to request payment in part or in full prior to execution of the order, or to cancel any Contract entered into with the Customer prior to commencement of deliveries to the Customer if ROS’ normal enquiries indicate that the Customer’s credit may not be sufficient to meet the needs of a
Contract.
4.1 The prices contained in the quotation shall be correspondingly increased (subject to any statutory exception) where, between the date of the quotation and the completion of the order there are increases in the scheduled rates, materials prices, or other charges of ROS or where the Customer requests work to be performed by ROS outside its normal working hours.
4.2 Unless otherwise agreed in writing, all prices given by ROS include delivery.
4.3 Unless otherwise agreed in writing, ROS shall package the Goods as ROS in its discretion considers appropriate in the light of the nature of the Goods and the method of transportation. All returnable packing cases, pallets and other containers and packing for the Goods provided to the Customer will be charged to the Customer additionally at ROS’ current prices, but such charge will be refunded by ROS to The Customer if the packing materials are returned to ROS’ designated warehouse carriage paid and in good condition within 30 days of their despatch to the Customer. Any special packaging will be at the Customer’s expenses and may delay delivery.
4.4 The price is exclusive of Value Added Tax and all other taxes, duties and expenses in respect of the Goods, all of which shall be payable by the Customer unless otherwise stipulated in writing by ROS.
5.1 Unless otherwise agreed in writing, payment by the Customer shall be made within thirty (30) days of the date of the invoice. All payments must be made to ROS (UK) Limited at The Techno Centre, Coventry University Technology Park, Puma Way, Coventry, CV1 2TT or alternatively, by credit transfer to HSBC Bank, Sort Code 40-32-03, account ROS (UK) Limited, number 81521446, at Market Place, Market Bosworth, Nuneaton, Warwickshire CV13 0JR.
5.2 The time of payment shall be of the essence of the Contract.
5.3 If payment is not made when due, ROS may, without prejudice to its other rights, charge interest at an annual rate of 4% above the current base rate of HSBC Bank to be calculated on a day to day basis on the balance outstanding until payment is made in full.
5.4 The Customer shall not be entitled to and shall not purport to set off, withhold or deduct any payments claimed by or due to the Customer under this Contract or under any other contract between the Customer and ROS.
5.5 Without prejudice to any other remedy, if the Customer fails to make any payment by the due date, ROS may after giving appropriate notice to the Customer of its intention so to do, suspend any work related to any contract with the Customer until any such delay payment has been received by ROS and ROS shall be entitled to claim any costs reasonably incurred as a result of such a suspension of work and, in addition be entitled to a reasonable extension of time to any programme or programmes agreed for completion of such work.
6.1 Unless agreed by ROS in writing, delivery of the Goods shall be effected at the Customer’s premises or (if earlier) at the premises of the Customer’s specified agent, by ROS delivering the Goods at that place.
6.2 Any dates stated for despatch or delivery of the Goods are approximate only and ROS accepts no liability for loss or damage, either direct, indirect or consequential, resulting from such delay or failure to deliver the Goods for any reason whatsoever.
6.3 Any delay in delivering the Goods shall not give rise to a right by the Customer to treat the Contract as repudiated or to reject the Goods.
6.4 If the Customer refuses or fails to take delivery of the Goods at the time stated for delivery ROS shall be entitled, at its discretion, to store the Goods at the risk of the Customer. The Customer shall in addition pay all costs and expenses of such storage and any additional costs of carriage incurred.
6.5 ROS reserves the right to deliver by installments at its discretion. These conditions shall apply to each such delivery.
6.6 Where ROS delivers the Goods at the Customer’s premises:
6.6.i The Customer shall inspect the Goods on delivery and shall notify ROS in writing within three (3) days of any shortages or any damage in transit.
6.6.ii The Customer shall also on delivery mark on the carrier’s receipt note the details of any visible damage in transit.
6.6.iii ROS will not consider any claims made by the Customer in respect of shortages or damage in transit unless these conditions are observed.
6.6.iv Unless specified otherwise, the Customer shall provide, at the Customer’s own expense, all necessary labour and equipment to offload the Goods on their arrival at the delivery address.
7.1 If ROS is satisfied that any damage to the Goods occurred prior to delivery, ROS shall at its option:-
7.1.i Repair or replace any Goods or part of the Goods so damaged; or
7.1.ii Allow to the Customer credit in respect thereof of such amount as may be agreed with the Customer, or in default settled by ROS at its discretion.
7.2 ROS’ liability in respect of damage to the Goods shall be limited to repairing, replacing or allowing credit as in clause 7.1.ii above.
8.1 If ROS is satisfied that the Goods have been short delivered, ROS shall at its option:
8.1.i Make up any short delivery by despatching to the Customer such Goods as ROS is satisfied were not delivered or
8.1.ii Allow the Customer credit in respect thereof.
8.2 ROS’ liability in respect of short delivery shall be limited to making up the delivery or allowing credit as in clause 8.1 above.
9.1 Except where the order includes installation the risk of loss and damage to the Goods shall pass to the Customer immediately upon delivery.
9.2 Until ROS has been paid in full for all Goods supplied to the Customer under this Contract or any other contract between them and for all other sums due:-
9.2.i Notwithstanding delivery and the passing of risk, ROS shall retain legal and beneficial title to the Goods supplied which the Customer shall hold as bailee and fiduciary for ROS;
9.2.ii The Customer shall safely store the Goods while in the Customer’s possession until payment has been made to ROS in such a way that they are clearly identifiable as ROS’property;
9.2.iii The Customer shall keep the Goods separate from those of the Customer and third parties and shall keep the Goods properly stored, protected and insured and any Goods in the Customer’s possession shall be deemed to belong to ROS unless the Customer can prove that they have been paid for;
9.2.iv ROS shall be entitled to trace the proceeds of any sale of Goods owned by ROS and an insurance proceeds received in respect of Goods owned by ROS. Such proceeds shall on ROS’ request be paid into a separate bank account and shall be held by the Customer on trust for ROS;
9.2.v ROS shall have the right, without prejudice to any other remedies at any time whether or not any sums owed to it are overdue, to enter, without prior notice, any premises, and to repossess and dispose of any Goods owned by it.
9.3 If the Customer enters into, or does anything to enter into, an agreement with its creditors, liquidation, receivership, administrative receivership or administration, it must give immediate written notice to ROS and surrender possession of the Goods to ROS.
9.4 Nothing in this clause shall prevent ROS from suing for the price when due.
9.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of ROS, but if the Customer does so all monies owing by the Customer to ROS shall without prejudice to any other right or remedy of ROS forthwith become due and payable.
9.6 Nothing in these clauses shall prevent ROS from being able to pass title to the Goods to the Customer by giving notice in writing.
The following conditions shall apply in addition to the preceding conditions where the order provides for installation of the Goods (“the Works”).
10.1 It shall be the sole responsibility of the Customer to ensure that the floors and foundations upon which installation of the Goods is to be carried out are suitably surfaced (and comply with the tolerances required by ROS) and are of adequate strength to support the
Works and maximum loads to be imposed on the Works.
10.2 The Customer shall at his own cost and prior to the date of the commencement of the Works prepare the floors or surfaces on which the Works are to be installed in accordance with ROS’ requirements. In the event that the Customer fails to comply with his obligations under this clause, on discovery of such an event, ROS may at its discretion refuse to commence or continue with the Works until such time as the failure has been rectified and the terms of clauses 10.11 and 10.12 hereof will expressly apply. Without prejudice to any other remedy that ROS may have herein or otherwise, any additional costs or expenses which ROS may
reasonably incur due to such floors or services not being in accordance its requirements shall be invoiced by ROS to the Customer and paid by the Customer in accordance with the terms of clause 5 hereof. Notwithstanding anything contained herein or otherwise to the contrary ROS shall have no responsibility for the proper working of the Works if the floors and services on which the Works are installed are not in accordance with the requirements given to the Customer by ROS.
10.3 ROS will not undertake or be responsible for any builders’ work or other work which involves alteration to the structure (including the floors) or the foundations of any building on the Site unless included in the specification or otherwise agreed in writing between ROS and the Customer.
10.4 The Customer will at his own expense provide the following services and attendances to ROS to facilitate the works:
10.4.i secure waterproof storage accommodation for the Goods and for ROS’ construction plant and equipment immediately adjacent to that part of the Site where the Works will take place.
10.4.ii prior to the commencing of the Works, clearance of the Site of all obstructions and other trades or operations to ensure that the Works can be carried out in one continuous uninterrupted operation during ROS’ normal working hours.
10.4.iii lighting of sufficient intensity to enable the Works to be carried out safely and power supplies suitable for operation of construction plant and hand power tools.
10.4.iv where the Goods require a source of power for their operation, provision of power supplies in the manner and at such locations on the Site as ROS shall specify.
10.4.v in addition to off-loading Goods, conveyance of the Goods to that part of the Site where the Works will take place.
10.5 The Customer will ensure that prior to the commencement of the Works the Site is secure and watertight.
10.6 The Customer will ensure that during the course of the Works and until such time as the Works are handed over to the Customer the Goods are protected from loss or damage and from dust and dirt arising from the activities of the Customer or any third party on the Site.
10.7 If for any reason not attributable to ROS the carrying out of the Works is suspended, delayed or hindered ROS has every right to claim interim payment or payments on account and render interim invoice or invoices to the Customer for payment accordingly, irrespective of any schedule of payments previously agreed between the Customer and ROS.
10.8 Any surplus Goods delivered to the Site shall remain the property of ROS. The Customer shall take all reasonable precautions for the safe custody and protection of such surplus Goods until the time of their removal by ROS.
10.9 The Customer at his own expense shall be responsible (other than for statutory obligations placed solely on ROS) for obtaining all consent, permissions, easements and licences for the carrying out of the Works in accordance with the terms hereof and for
conforming with all statutes and orders regulations and by-laws made thereunder applicable at any time to the Works and shall indemnify and keep indemnified ROS against all actions, proceedings, costs, charges, claims or demands arising out of or in connection with any breach of this clause. ROS shall (so far as it is reasonably able) provide such information with respect to the Works as the Customer may request in respect of any applications for such consent, permissions, easements or licences as aforesaid.
10.10 Where the Contract provides for installation of the Goods the risk of loss and damage to Goods shall pass to the Customer immediately at the time of notification to the Customer of the physical completion of the work.
10.11 Where installation work is involved ROS shall endeavor to complete such work within the time scales agreed with the Customer, or in the absence of such agreement as soon as reasonably possible. ROS shall not be liable for any costs, losses, expenses or damages caused by any delay in dispatch of the goods or in completion of the installation work connected therewith. In the event of any such delay ROS shall be entitled to such additional time as may be necessary to complete the Contract and where appropriate to allocate its products and services among its customers in such manner as it considers fair and reasonable. Under no circumstances shall the Customer be entitled to cancel the Order in the event of any such delay unless with the specific consent of ROS on mutually acceptable terms.
10.12 If the Customer requests a suspension of any installation work or if ROS is delayed by the acts or omissions of the Customer, the Customer’s servants or agents or any third party not under ROS’ direct control then ROS shall be entitled to invoice the Customer with any costs or expenses reasonably incurred by ROS arising from the suspension or delay and such costs or expenses shall be paid by the Customer. ROS shall also be entitled to such additional time as may be necessary to complete the Contract.
11.1 ROS warrants that, insofar as they have been supplied by ROS, the Goods will correspond with their specification at the time of delivery and will be free from defects in materials and workmanship for a period of six (6) months from the date of delivery. ROS will at its option refund the purchase price of, or repair or replace free of charge, such part of the Goods which its examination confirms are defective provided:
11.1.i The defect was notified to ROS within three (3) days from the date of delivery, or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, and in any event within six (6) months of delivery;
11.1.ii The defects are not caused by fair wear and tear, neglect, misuse or improper adjustment;
11.1.iii The Customer has used the Goods strictly in accordance with any instructions or recommendations of ROS or any tolerances, capacity limits or other specifications of the Goods laid down by ROS whether orally or in writing;
11.1.iv Any defect in the Goods does not arise from any drawing, design or specification applied by the Customer;
11.1.v The total price for the Goods has been paid by the due date for payment; and
11.1.vi The Customer has allowed ROS reasonable opportunity to inspect the Goods and such inspection confirms that the Goods are defective.
11.2 In no circumstances shall ROS’ liability to the Customer for any breach of this clause exceed the price paid for the Goods with respect to which the claim is made.
11.3 In no circumstance shall the Customer be entitled to reject the Goods, delay acceptance or refuse payment of the price.
11.4 Except as expressly provided for in these conditions, all warranties and conditions express, implied, statutory or otherwise as to quality or fitness of any of the Goods for any particular purposes or of any other kind except as to title are hereby excluded.
11.5 Except in respect of death or personal injury caused by ROS’ negligence, or by the Goods being defective and in respect of loss or damage to private property caused by the Goods being defective, ROS shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any direct, indirect or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or claims for consequential compensation whatsoever (and whether caused by the negligence of ROS, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these conditions. 11.6 Without prejudice to any other provisions hereof ROS shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of ROS’ obligations in relation to the Goods, if the delay or failure was due to any cause beyond ROS’ reasonable control, including without limitation any strikes, lockouts or other industrial action or trade disputes (whether involving employees of ROS or of a third party).
12.1 The Customer shall indemnify ROS from and against all costs, claims, damages, expenses and losses (including loss of profits) whether direct, indirect, special, consequential or otherwise arising out of or in any way connected with the use by ROS of the Customer’s specifications or any failure of the Customer to comply with its obligations under the Contract in all respects or any improper use of the Goods by the Customer.
13.1 All technical data, specifications, drawings, reports, documents and information whatsoever which ROS submits to the Customer in connection with the Contract (and the copyright therein) shall remain ROS’ property and must not be copied or shown to any third party without ROS’ express consent being obtained in advance and in any event upon the condition of a similar condition being imposed upon any third party and must be returned to ROS on demand together with any copies made thereof. The Customer undertakes to use any technical data, specifications, drawings, reports, documents or information whatsoever which ROS submits to the Customer in connection with the Contract only for the erection and/or maintenance of the Goods forming the subject matter of the Contract.
14.1 So far as ROS is aware, the Goods do not infringe any existing U.K. Patents or designs or any other industrial or intellectual property rights but no warranty express or implied is given in respect of such infringement. However, in the event of any claim being made or action being brought against the Customer in respect of any infringement of patents or designs or other industrial or intellectual property rights by the use or sale of the Goods the Customer shall notify ROS immediately and ROS may at its own expense conduct through its own lawyers and experts all negotiations in settlement of the same or any litigation that may arise therefrom.
15.1 ROS shall, without prejudice to any other right or remedy available to ROS, and by giving notice in writing to the Customer, be entitled to suspend or cancel any uncompleted part of the Contract or stop any Goods in transit or require any payment in advance or satisfactory security for further deliveries under the Contract in the event that:
15.1.i The Customer defaults in any payment or is otherwise in breach of its obligations to ROS under the Contract or under any other contract with ROS; or
15.1.ii The Customer makes a voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or commits an act of bankruptcy or (being a company) goes into liquidation; or
15.1.iii An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer; or
15.1.iv The Customer ceases, or threatens to cease, to carry on business; or
15.1.v ROS has reasonable cause to believe that any of these events is likely to occur and notifies the Customer accordingly.
16.1 The Customer shall not assign or transfer or purport to assign or transfer the Contract or the benefit of it to any other person without the written consent of ROS.
17.1 It is condition of sale that no nameplate or transfer affixed by ROS to the Goods shall be removed or covered up without the consent in writing of ROS.
18.1 ROS shall be entitled to arrange for its obligations under these conditions to be performed by a Sub-contractor: ROS will remain fully responsible for the performance of its obligations.
19.1 The failure of ROS to insist upon strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such terms or conditions and shall in no way affect ROS’ right to enforce such provision later.
20.1 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
21.1 The construction, validity and performance of the Contract shall be governed by English Law and the parties shall accept the jurisdiction of the English courts.
