1.1 In these Conditions BUYER -means the person who accepts a quotation of the Seller for the sale of the Goods or whose Order for the goods is accepted by the Seller.
1.2 GOODS - means the Goods (including any instalment of the Goods or any part of them) which the Seller is to supply in accordance with these Conditions.
1.3 SELLER - means RACS (Refrigeration, Air-conditioning & Catering Services Ltd, registered in England & Wales under number 2227560).
1.4 CONDITIONS - means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.5 CONTRACT - means the contract for the purchase and sale of the Goods.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written Order of the Buyer which is accepted by the Seller; subject in either case to these Conditions, which 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.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller 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.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical clerical or other error or omission in any sa1es literature, quotation, price list, acceptance of offer, invoice or other document or other information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1 The quantity quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's Order (if accepted by the Seller).
3.2 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.3 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement: in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges, and expenses incurred by the Seller as a result of cancellation.
3.4 The Seller, as the designer, own all Intellectual Property rights of layouts and designs, including the copyright and sensitive confidential information in documents and drawings produced in the course of the contract, whether it be electronic, hard copy, or any physical example.
3.5 The Buyer, or any other party, cannot register the Sellers' designs, or any part of the design, under the “Registered Design Regulations” without our written consent and the granting of a licence to do so.
3.6 The Buyer, or any other party, cannot use our copyright drawings for other projects without the Seller's written permission and the granting of a licence to do so.
3.7 The Buyer will be issued drawings and layouts in 2D PDF format, but not before a firm commitment has been received from the Buyer.
4.1 Subject to any special terms agreed in Writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be ) the Seller has tendered delivery of the Goods.
4.2 The Buyer shall pay the price of the goods within 30 days of the date of the Seller's invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
4.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
4.3.1 Cancel the contract or suspend any further deliveries to the Buyer;
4.3.2 Appropriate any payment made by the Buyer to such of the Goods (of the goods supplied under any other contract between the Buyer and the Seller), as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
4.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of ten per cent per annum above Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.1 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
5.2 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, end the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
5.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller 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 Seller's fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
5.3.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
5.3.2 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.
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer;
6.1.1 In the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection: or
6.1.2 In the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
6.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to re sell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
6.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer falls to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
6.5 The Buyer 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 the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy to the Seller) forthwith become due and payable.
7.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 12 months from delivery, whichever is the first to expire.
7.2 The above warranty is given by the Seller subject to the following conditions: -
7.2.1 The Seller shall be under no liability in respect of any detect in the Goods arising from any drawing, design or specification supplied by the Buyer;
7.2.2 The Seller 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 Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval;
7.2.3 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
7.2.4 The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, 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 Seller;
7.2.5 The above warranty shall be of no application and shall be void and not binding against the Seller unless the Buyer shall have properly maintained the Goods in accordance with all and any recommendations issued to the Buyer from time to time by the Seller and/or by the manufacturer of the goods .
7.3 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, and except in respect of death or personal injury caused by the Seller's negligence, the Seller 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) expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or re-sale by the Buyer except as expressly provided in these Conditions.
8.1 This clause applies if:
8.1.1 The Buyer 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 purposes of amalgamation or reconstruction); or
8.1.2 An encumbrances takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
8.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
8.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9.1 Waiver: A waiver of any right or remedy under this Agreement or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No delay or omission by RACS in exercising or enforcing any right or remedy under this Agreement shall operate as a waiver thereof or of any other right or remedy, and no waiver of any breach of this Agreement by Developer shall be deemed a waiver of any subsequent breach.
9.2 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
9.3 Third Parties: A person who is not a party to this Agreement shall not have any rights to enforce its terms.
9.4 Governing Law and Jurisdiction: This Agreement, and any dispute 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 the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
9.5 Variation: No provision of this Agreement may be amended, altered, modified or varied except by an instrument in writing, specifying such amendment, alteration, modification or variation, executed by both parties.
9.6 Entire Agreement: This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes and extinguishes any prior oral or written agreements, promises, assurances, warranties, representations and understandings between them.
Refrigeration Air-conditioning & Catering Services
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