TERMS AND CONDITIONS OF SALE (Rockfort Engineering V2)
1. DEFINITIONS
"The Company" means Rockfort Engineering Ltd.
"Conditions" means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Buyer.
"The Buyer" means the person, firm or company placing an order.
"The Goods" or “Services” means the goods, articles, tests, development, tools, engineering services and materials which are to be supplied by the Company and any other deliverables as agreed in writing between the Buyer and Company.
"The Contract" means any contract howsoever made for the Goods or Services between the Company and the Buyer and shall incorporate the Quotation and these Conditions.
"The Quotation" (if any) means the terms as set out therein and shall include these Conditions.
“Intellectual Property” means patents, utility models, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use (and protect the confidentiality of) confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered, as well as all rights to apply for (and obtain) renewals and extensions of any of the rights listed and all rights to claim priority, together with all similar or equivalent rights or forms of protection in any part of the world.
2. ACCEPTANCE OF CONTRACT
The Company shall sell and the Buyer shall purchase and use any Goods or Services in accordance with any written Quotation of the Company which is accepted by the Buyer or any written order of the Buyer which is accepted by the Company. No order submitted by the Buyer shall be deemed to be accepted by the Company unless and until the Company issues an acknowledgement of the Buyer's order in writing to the Buyer. These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer. Receipt of the Goods or Services by the Buyer shall be deemed to be conclusive proof that the Buyer has accepted these Conditions. To the extent the terms of an order conflict with these Conditions, the terms of the order shall prevail.
3. VARIATION
(a) No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Company.
(b) The Company's employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Company in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
(c) Any storage, application and/or use of the Goods or Services by the Buyer which is not in accordance with instructions provided by the Company and confirmed in writing by as part of the Services is acted entirely at the Buyer’s own risk, and accordingly the Company shall not be liable for such storage, application and/or use outside of the instructions provided by the Company in accordance with this Clause 3(c).
4. ORDERS AND SPECIFICATIONS
(a) The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification)
submitted by the Buyer and for giving the Company any necessary information relating to the Goods or Services (or any other inputs which are required for provision of the Goods or Services and which are the Buyer’s responsibility to provide) within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
(b) The quantity, quality and description of and any specification for the Goods or Services shall be those set out in the Company's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Company).
(c) The Company reserves the right to make any changes in the specification of the Goods or Services which are required to conform with any applicable safety or other statutory requirements or, where the Goods or Services are to be supplied to the Company's specification, which do not materially affect their quality or performance. The Company shall promptly notify the Buyer of any such changes made in accordance with this Clause 4(c).
5. DELIVERY/ACCEPTANCE OF GOODS
(a) Delivery shall be EXW at the Company's place of business in accordance with INCOTERMS 2020. Risk in any Goods shall pass to the Buyer on delivery. Unless expressly stated in an agreed Quotation or order, time for delivery shall not be of the essence and any delivery dates are given in good faith but are not guaranteed. The Company shall use reasonable endeavours to deliver (or, where time for delivery has been agreed to be of the essence as described above, shall deliver) the Goods and/or Services in accordance with any expressly agreed timetable and shall notify the Buyer promptly on becoming aware of any actual or likely delay to such delivery (at which point the parties shall, each acting reasonably and in good faith, agree a revised delivery timetable). Unless the Company is in breach of these obligations, to use reasonable endeavours and promptly notify the Buyer or, where time for delivery has been agreed to be of the essence as described above, to deliver the Goods and/or Services on time (in which case, the Company’s liability for such breach will be governed by and subject to any limitations of such liability as set out in the Contract), Company shall be under no liability for any loss or damage arising directly or indirectly out of late delivery. Subject to the warranties hereinafter contained, the Buyer shall be deemed to have accepted the Goods or Services as being in conformity with the Contract and shall be bound to pay for them unless written notice of defect or shortage is given within 7 days of delivery.
(b) If Goods have been correctly despatched and comply with the Contract, the Buyer shall not be entitled to return the Goods for credit unless, in exceptional circumstances, the Company at its discretion agrees in writing prior to the return of the Goods by the Buyer.
(c) Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6. FULFILMENT OF SERVICES
(a) Should the Buyer wish to terminate a contracted service unilaterally, The Buyer shall pay for Goods, Services and any demonstrable additional expenses the Company has incurred or committed to until the date of receipt of termination in writing. The Buyer shall also pay 50% of unpaid costs detailed in the Quotation unless as agreed in writing between the Buyer and Company.
(b) Test & project reports issued are provided on the basis that they are for the Buyer’s own use and are not to be disseminated. If the information they contain is to be included in any written or electronic form which will be distributed to any third parties, prior express authorisation of the Company shall be required if it can be identified as the originator of the aforementioned information.
(c) All equipment, materials or vehicles belonging to the Buyer required for fulfilment of the Contract must be delivered where necessary, DDP to the premises of the Company, or a designated location where the service will be fulfilled in accordance with INCOTERMS 2020. If, as a result of non-fulfilment of this condition, the Company incurs losses (including, without limitation, losses arising from downtime or rescheduling) expenses or additional labour costs which were not foreseen, these shall be invoiced at their cost price plus £500 to cover financial and administration costs. Delays incurred as a result of such issues shall not be the responsibility of the Company.
(d) Vehicles and other test samples deposited in the Company premises shall be subject to the Company’s standard measures of security and
confidentiality in force, about which the Buyer will be informed upon request. If the Buyer wishes additional measures to be taken, notice must be given by the Buyer in advance, in which case any measures agreed upon shall be expressly stipulated in writing and reflected in the price payable by the Buyer.
(e) Any materials and property of the Buyer left in the premises of the Company shall be the responsibility of the Buyer to insure for any risks the Buyer deems necessary, unless expressly agreed otherwise in writing. Any materials remaining with the Company will be disposed of within 3 months of the end of the Contract unless otherwise expressly requested by the Buyer.
(f) The Buyer shall notify the Company in advance of the value of the property that forms part of a test or that remains in the Company’s custody
for whatever reason. Unless expressly agreed otherwise and except where the Company is in breach of its obligation below regarding care of the Buyer’s property, the Buyer shall indemnify the Company against all risks whilst storing or utilising the property of the Buyer in execution of the tests outlined or any associated activities in fulfilment of the Services contracted. Property that is to be tested in a destructive manner is not liable to compensation for damages owing to incorrect execution of tests when the test is carried out following the obligatory rules for its performance, or those agreed with the Buyer for each test. In these cases, the Buyer expressly renounces any right to claim compensation for property damaged or destroyed by mistakes during such destructive tests. The Company shall store and handle the Buyer’s property, in accordance with any agreed reasonable instructions of the Buyer, when such property is in the Company’s possession.
(g) It is the responsibility of the Buyer to ensure that samples, plans, technical documentation, patents, models or any documentation brought to the Company premises for the realisation of the tests, experiments, studies or development are the property of the Buyer or in their legal possession as legal title holder.
(h) The Buyer is responsible for the validation and fitness for purpose of any persons & their qualifications (drivers, engineers, technicians,
operators & advisors) whom they stipulate are to participate in any aspect of performance of the Contract. The Company will not attempt to validate any skills, reputations or experience and shall not be responsible for any risks or errors created by their input.
7. STORAGE
(a) If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise
than by reason of any cause beyond the Buyer's reasonable control or by reason of the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company may store the goods until actual delivery and charge the Buyer for the reasonable cost of storage, including insurance.
(b) If the Buyer fails to take delivery of the Goods or continues to fail to give the Company adequate delivery instructions for a period exceeding 3 months from the stated delivery date for such Goods, the Company may (to the extent possible without breaching the Company’s confidentiality obligations or infringing the Buyer’s Intellectual Property) sell the Goods at the best price readily obtainable and, after deducting all reasonable storage and selling expenses, account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8. PRICE/PAYMENT
(a) The price of the Goods or Services shall be the Company's quoted price. All prices quoted are valid for 30 days, after which time they may be altered by the Company, in which case a new quote shall be issued by the Company to the Buyer.
(b) The Buyer shall pay the price of the Goods or Services in pounds sterling without deduction or set-off within 30 days of the Buyer’s receipt of the Company's invoice.
(c) Where it is agreed that the Contract is to be or may be fulfilled by stage payments or deliveries then payment for each shall be invoiced and
shall be separately due as in (b) above. If a stage payment becomes overdue then the whole balance shall become due without prejudice to any other rights hereunder.
(d) The Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Company which is due to: (i) any factor beyond the reasonable control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, increase in the costs of labour, materials or other costs of manufacture); (ii) any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer;(iii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions; or (iv) any breach by the Buyer of its obligations in clause 4(a) above.
(e) All prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company's
premises, the Buyer shall be liable to pay the Company's charges for transport, duties, packaging and insurance.
(f) If the Buyer fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Company, the
Company shall be entitled to:
(i) suspend all work and all or any further deliveries to the Buyer made under that or any other contract with the Buyer and in such event the
Buyer shall not be released from its obligations to the Company under that or any other contract or cancel the Contract or any other contract with the Buyer;
(ii) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above Bank of
England base rate from time to time accruing daily, until payment in full is made; and
(iii) as an alternative to the rights in (i) to (iii) above, treat the Contract as terminated for breach by the Buyer and recover damages from the Buyer
accordingly.
(g) Prices are exclusive of VAT and all and any other taxes or governmental charges in connection with the shipment or sale of the Goods or
Services, for which the Buyer shall be additionally liable.
9. WARRANTIES AND LIABILITIES
(a) The Company will, in providing the Goods and Services, comply with all laws applicable to it.
(b) Subject to the Conditions set out below and to any exceptions to this stated in an agreed Quotation or order, the Company warrants that the Goods or Services will be free from defects in material and workmanship.
(c) Any such warranty, if given by the Company as described above, together with any warranty which may be inferred into the Contract by statute or other applicable law, is subject to the following conditions:
(i) the Company shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by the Buyer;
(ii) the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing), or misuse, alteration or repair of the Goods or Services without the Company's approval;
(iii) the Company shall be under no liability in connection with any defect arising out of use of the Goods or Services in connection with motor
racing, rallying or any form of motor sport unless otherwise agreed in writing between the Buyer and the Company;
(iv) if the total price for specific Goods or Services has not been paid by the due date for payment for those specific Goods or Services, the Company shall be under no liability under any such warranty, or any other warranty, condition or guarantee until the total price for those specific Goods or Services has been paid; and(v) any such warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
(d) Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(e) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976)the statutory rights of the Buyer are not affected by these Conditions.
(f) Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods or Services or their failure to correspond with
specification shall, whether or not delivery is refused by the Buyer, be notified to the Company within 20 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. If delivery is not refused, and the Buyer does not notify the Company in accordance with this Condition, the Buyer shall not be entitled to reject the Goods or Services and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods or Services had been delivered in accordance with the Contract.
(g) Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace or repair the Goods (or the part in question) or, in the case of Services, reperform the affected Services free of charge or, at the Company's sole discretion, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price) but the Company shall have no further liability to the Buyer.
(h) Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Buyer 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 consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or Services or their use or resale by the Buyer and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods or Services, except as expressly provided in these Conditions.
(i) Neither party (the “Affected Party”) shall be liable to the other party or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Affected Party’s reasonable control.
10. PROPERTY IN GOODS & SERVICES
(a) The property in the Goods shall remain in the Company until such time as the Company has been paid in full for the Goods and until all other
outstanding accounts due from the Buyer to the Company have been paid in full unless otherwise agreed in writing by the Buyer and the Company. (b) All existing Company Intellectual Property remains the property of the Company. All existing Buyer Intellectual Property remains the property of the Buyer. The Company grants the Buyer a world-wide, perpetual, royalty-free, irrevocable licence to any of the Company’s Intellectual Property subsisting in the Goods or Services solely to the extent necessary to enable the Buyer or its customers to make use of the Goods or Services in accordance with any constraints on such use agreed in any Quotation or elsewhere. Such licence shall be: (i) non-exclusive, except to the extent expressly agreed otherwise in writing; and (ii) non-transferable, other than to the Buyer’s customers, unless the Company gives its prior written consent to any such transfer. Any Intellectual Property developed by the Company during the fulfilment of any Design, Development, Testing or Engineering service shall be the property of the Company (subject to the licence described above and subject to the Company’s confidentiality obligations). To the extent that any designs are produced by the Company specifically for the Buyer as an express part of the Services, the Buyer shall own those designs, but the ownership of and rights to use any Intellectual Property subsisting in those designs will be dealt with as described above.
11. INDEMNITY
(a) Each party will indemnify and keep the other party (the “Indemnified Party”) indemnified against all claims, costs and expenses resulting from any infringement of any industrial or intellectual property rights and assist in the defence of any action brought or threatened against the Indemnified Party in so far as any such alleged infringement is due to any designs, drawings, samples, descriptions or specifications, stipulated or provided by that party to the Indemnified Party, subject to the Indemnified Party:
(i) promptly notifying the other party of any such action or threatened action;
(ii) not admitting any liability and giving the other party sole control of the defence of any such action or threatened action; and
(iii) providing the other party with reasonable assistance (at the other party’s reasonable expense) with responding to any such action or threatened action.
(b) Without prejudice to (a) above the Company reserves the right to cease work on any order being carried out if it should have reason to believe that the Goods or Services may be or are subject to an infringement claim, in which case the property in the work done shall not pass to the Buyer (except at the Company's discretion) and the Company shall be entitled to be paid for the work done and materials supplied.
12. TESTING
If the Buyer requires to test or to inspect the Goods before delivery, the Company reserves the right to stipulate the venue for such testing or
inspection and all expenses in connection with such testing or inspection shall be paid by the Buyer. An adequate supply of suitable materials for proving and testing purposes must be supplied by the Buyer. The Company shall notify the Buyer of all materials required for proving and testing purposes within a reasonable time prior to such proving and testing. If after seven days' notice that the Company is to proceed with the tests there is any delay on the part of the Buyer or its representatives in supplying the materials or in attending such tests, payment shall be deemed to be due as if the tests have been completed and despatch has been made.
13. INSOLVENCY
(a) This clause applies if:
(i) either party makes any voluntary arrangement with its creditors or becomes subject to an administration order (or being an individual or firm) becomes bankrupt or (being a company) goes into liquidation, otherwise than for the purpose of amalgamation or reconstruction; or (ii) an encumbrancer takes possession, or a receiver is appointed, of either party's undertaking or any of its property or assets; or
(iii) either party ceases, or threatens to cease, to carry on business; or
(iv) one party reasonably apprehends that any of the events mentioned above is about to occur in relation to the other party and notifies such party accordingly.
(b) If this clause applies then, without prejudice to any other right or remedy available to either party, the party which is not subject to the circumstances described in (i) to (iii) above or which is “the other party” referred to in (iv) above shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the other party, and if
any Goods or Services have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15. GENERAL
(a) The Company shall be entitled to sub-contract the whole or any part of the Contract.
(b) Neither the Buyer nor the Company shall be entitled to assign the whole or any part of its rights and/or obligations under the Contract without the prior written consent of the other.
(c) Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other
party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant on this provision to the party giving the notice. A notice shall be deemed to have been received, in the case of a facsimile, upon transmission and, in the case of a letter 48 hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted. In proving service by facsimile transmission, it shall be necessary only to produce a report confirming uninterrupted transmission to the recipient.
(d) No waiver by either party of any breach of the Contract by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
(e) 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 unless such provision goes to the root of the Contract.
(f) The Conditions shall constitute the entire agreement in relation to the sale of the Goods and no modification or waiver thereof shall be valid
unless made in writing expressly for the purpose and signed by an authorised officer of the Company and of the Buyer provided that nothing in these Conditions shall exclude or limit liability in the event of fraud.
(g) The Contract and its subject matter and formation shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts to resolve any contract or non-contractual dispute or matter relating to the Contract, its subject matter or its formation.