Terms & Conditions of Sale & Delivery
The following words and expressions shall have the following meanings:
“Buyer” means the person, firm or company who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted in writing by the Company.
“Company” RTR GmbH & Co. KG
“Contract” means the contract(s) for the purchase and sale of the Goods
“Goods” means the goods (including any instalment of the goods or any arts for them) which the Company is to supply in accordance with these items.
1.1 These terms and conditions (“terms”) will apply to all Contracts between the Company and the Buyer.
1.2 The Contract shall be formed by the issue of a contract form or acknowledgement of order by the Company.
1.3 No variation, waiver or addition to these terms shall be valid unless previously agreed to in writing by the Company.
1.4 The Buyer’s terms and conditions shall not be binding on the Company.
1.5 All goods agreed to be sold by the Company are sold subject to capacity and subject to Goods remaining unsold.
2.1 All tenders or quotations by the Company shall be without engagement. Any contracts and other agreements shall only become binding on the Company in accordance with clause 1 above.
2.2 Any statements, drawings, figures, technical data as well as weights, measures and performances described and contained in brochures, catalogues, circulars,
2.3 advertisements, price lists or in any other documents pertaining to the Contract shall not be binding unless expressly stated in the acknowledgement of the order or contract form as being binding.
2.4 Any verbal representations, agreements and promises made by the Company’s sales representatives shall require written confirmation by the Company in order to become binding on the Company.
3.1 Any prices are net prices, plus freight, ex-works or storehouse as well as the respective legal turn-over tax (for example, VAT) except as otherwise agreed upon.
3.2 Any additional costs of any nature, public fees as well as taxes, freight or increases thereof pertaining to or raising the price of supply directly or indirectly shall be borne by the Buyer except as prohibited under any legal regulations.
3.3 The Contract prices shall not be fixed prices unless the Company has expressly confirmed in writing a fixed price.
3.4 The price in the contract is based on information available to the Company at the date of the relevant tender, quote order or contract. If between that date and the date on which the Goods are delivered to the Buyer there shall be any increase in the cost of materials, labour or other costs relating (directly or indirectly) to the costs of the Goods, the Company shall have the right to increase the price to take account of the said increased costs.
4.1 Unless otherwise provided in the Contract, the price and all taxes (including VAT), duties and charges (non of which are included in the price) are payable net cash on the due date without any deduction, set-off, or counterclaim whatsoever. All bank charges etc are for the account of the Buyer.
4.2 The price of the goods shall be payable according to the terms of the Company’s invoice (time for payment being of the essence).
4.3 Without prejudice to any other rights the Company shall be entitled to interest on any part of the contract price not paid by its due date from that date until payment is received at the rate of 2% per annum above Lloyds Bank PLC’s base rate from time to time during such period.
4.4 The Buyer shall not be entitled to withhold payment of any amount due and payable under this or any other contract to the Company because of any dispute or claim by the Buyer in respect of faulty Goods or any other alleged breach of contract nor shall the buyer be entitled to set-off against any amount payable under the Contract, any monies payable by the Company to the Buyer.
4.5 The Company shall be entitled to sue for payment of the price of the Goods even if title in the Goods has not passed to the Buyer.
5.1 The delivery dates stated in the Contract are only approximate and not conditions of the Contract. Time for delivery shall not be of the essence unless previously agreed by the Company in writing.
5.2 Where the Company has agreed in writing to be responsible for the delivery, in the event of shortages or damage in transit, claims must be sent in writing to the Company within five days of delivery and to the carrier within three days of delivery, specifying the shortages or damages in transit and the Company must be given an opportunity to inspect the Goods before any resale or use is made thereof or any alteration or modification is made thereto by the Buyer.
5.3 Where the Company has agreed in writing to be responsible for delivery, in the event of non-delivery, claims must be sent in writing to the carrier and to the Company within seven days of the date of the Company’s advice note or invoice or other notification of despatch or such shorter time limit as may be specified in any conditions of the carrier.
5.4 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 then, without prejudice to any other right or remedy available to the Company, the Company may:-
5.4.1 store the Goods until actual delivery and charge the Buyer for all costs (including insurance) of storage: or
5.4.2 sell the goods at such price as is reasonably obtainable and (after deducting all storage, insurance 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.
6. Risk and Property
6.1 The risk in the Goods (if ascertained) shall pass to the Buyer at the time of delivery to the nominated address, or at the time of collection by the Buyer or its agent, as the case may be. In the case where the Buyer or its agent is to be responsible for collection of the Goods, then the risk in the Goods shall pass to the Buyer immediately upon notification in writing by the Company that the Goods are available for collection and accordingly, the Buyer must take out appropriate insurance. If the Goods are unascertained, the risk shall pass on appropriation by the Company.
6.2 The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such a time as the Buyer shall have paid to the Company the price due under the Contract together with the full price of any other goods the subject of any other contract between the Company and the Buyer for which payment is due.
6.3 Until such time as the Buyer becomes the owner of the Goods he will store them on his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Company’s Goods.
6.4 The Buyer acknowledges that until such time as the property the Goods passes to the Company he is in possession of the Goods as a bailee for the Company.
6.5 The Company may, at any time, for the purpose of recovery of its Goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
7.1 Subject to the terms of this Contract, the Company hereby warrants that:the Goods shall comply with the description stated in the Contract (unless subsequently varied) subject to standard tolerances of the Company relating to dimension, weight etc; the Goods are of satisfactory quality.
7.2 No representation, condition of warranty is given or implied as to the fitness for purpose or suitability for their intended purpose of the Goods whether known to the Company or not.
7.3 The Buyer hereby acknowledges:
that it fully appreciates that the Company act as stockists and merchants only and are in no way concerned with the manufacture of the Goods;
that the Goods were purchased by it relying totally on its own assessment as to fitness for the purpose required and having regard to the facility for inspection and testing by it whether or not it took advantage of the facility for such inspection and testing offered to it by the Company;
that it purchased the Goods in a competitive market and that the bargaining strength of the Company was in no way a relevant factor in the purchase of the Goods from the Company; and
that (unless it has given previous notice in writing to the Company and such notice has been agreed in writing by the Company) it purchased the Goods in the course of business and not as a “consumer”.
8.1 Any claim by the Buyer against the Company pursuant to Clause 7 hereof shall be notified in writing to the Company within three months of delivery of the Goods (time being of the essence).
8.2 If the Buyer present a valid claim pursuant to Clause 5.3 or Clause 8.1 hereof then the Company shall, it if accepts the claim (or is held liable by a court for the claim), have absolute discretion to adopt one of the following courses:
8.2.1 replacing the Goods;
8.2.2 repairing the Goods;
8.2.3 refunding the whole or part of the price which the Buyer has paid to the Company.
If the Company decides to replace the Goods, then the Buyer shall be responsible for and shall pay the cost of returning the Goods to the Company prior to such replacement being delivered. The Company shall not be liable in any event for any loss arising out of the exercise of its discretion in accordance with the above.
8.3 Save as stated in Clause 8.2 (and save in respect of death or personal injury resulting from the negligence of the Company, its servants or agents) the Company shall not be liable for any claim or claims for direct or indirect, consequential (which shall include but shall not be limited to loss of profits, loss of contracts, loss of goodwill, increased overheads and expenses) or incidental injury, loss or damage made by the Buyer against the Company whether in contract or in tort (including negligence on the part of the Company its servants or agents) or in any manner whatsoever.
8.4 Without prejudice to the foregoing, the Company’s liability for any loss or damage of any nature and howsoever arising shall not in any event exceed the contract price for the goods.
8.5 All processing of or any work done on the Buyers materials is entirely at the Buyer’s risk and the Company accepts no liability for damage to such material howsoever arising and the Buyer shall indemnify the Company against all liabilities of any nature, damages, penalties, costs and expenses to which the Company may become liable as a result of such processing.
8.6 All warranties, conditions or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
8.7 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 effected by these conditions.
8.8 Nothing in these terms shall exclude or limit the liability of the Company for fraudulent misrepresentation or failing to give good title to the Goods to the Buyer.
8.9 The Company shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as being causes beyond the Company’s reasonable control; acts of God, explosion, flood, tempest, fire or accident, war (whether declared or not) or threat of war, sabotage, insurrection, civil disturbance or requisition, rules or laws of any governmental authority: import or export regulations or embargoes: strikes, lock-outs or industrial action of any nature, (whether involving the Company’s employees or those of a third party): difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
9. Insolvency or other Default of Buyer
If the Buyer fails to make payment for the Goods in accordance with the Contract or commits any breach of these terms or if any distress or execution shall be levied upon any of the Buyers Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign laws, all sums outstanding in respect of the Goods shall become payable immediately. The Company may in its absolute discretion and without prejudice to any other right which it may have:
– suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part; and/or
– exercise any of its rights pursuant to Clause 6 hereof.
If at any time any clause of these conditions or part thereof shall be found to be invalid, ineffective or unenforceable the invalidity, ineffectiveness or unenforceability shall not effect the remainder of these conditions. The invalid/ineffective clauses shall be replaced by such regulations that will meet the economic intention of the contract best and at the same time serve the mutual interests.
11.1 The Contract shall be governed by and construed in accordance with the law of England.
11.2 The parties hereby submit to the exclusive jurisdiction of the English courts provided that the Company may sue the Buyer in the courts of any country such proviso being for the sole benefit of the Company.