ROMA CONTRACTS CONDITIONS OF SALE
1. INTERPRETATION
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 and where the context admits, references to Buyer are to the Buyer acting through its duly authorised Representative;
“Goods” means the Goods and/or Services, as the case may be, (including any installment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
“Seller” means Hillton Limited t/a Roma Contracts (registered in England under number 3960059) or Roma Tiles Limited (registered in England under number 4011299) and where the context admits, references to Seller are to the Seller acting through its duly authorised representative;
“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;
“Contract” means the contract for the purchase and sale of the Goods;
“Writing” includes facsimile transmission.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
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 Buyer and the Seller.
2.3 No representations concerning the Goods shall be incorporated in the Contract unless confirmed by the Seller in Writing. The Buyer acknowledges that it does not rely on, and waives any claim for breach of all other representations. Any advice or recommendation given by the Seller to the Buyer as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer’s own risk. The Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 The submission of a quotation is no guarantee that the Seller can or will accept and be bound by a resulting order. If these Conditions are inconsistent with any terms and conditions in the Buyer’s order, then the order will be treated as a counter-offer, subject to acceptance by the Seller.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or any other document or information issued by the Seller may be corrected without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless confirmed in Writing by the Seller.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 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).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, costs and expenses incurred by the Seller in connection with any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller may make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or which do not materially affect their quality or performance.
3.6 No order 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 costs of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid),the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer,after which time they may bealtered by the Seller without giving notice to the Buyer.
4.2 The Seller may, by giving notice to the Buyer at any time before delivery,increase the price of the Goods to reflect any increase in the costs to the Seller due to any factor beyond the control of the Seller(such as, without limitation,any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour,materials or other costs of manufacture),any change in deliverydates, quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer to give the Seller adequate informationor instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1 The Buyer shall pay the price (or any balance remaining) of the Goods (without any deduction) in cash or cleared funds on delivery. A 50% deposit shall be paid in cash or cleared funds on the order being accepted. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request and an invoice rendered after payment has been made.
5.2 If the Buyer fails to make any payment on the due date, the Seller may :
5.2.1 cancel the Contract or suspend any further deliveries
5.2.2 appropriate any payment made by the Buyer to such of the Goods (or 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) ;
5.2.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum above the Barclays Bank PLC 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) ; and
5.2.4 withdraw any discounts offered on Goods not paid for.
6. DELIVERY
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place
6.2 Delivery dates for the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments 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.
6.4 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, and 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.
6.5 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 the Seller may, in addition to its other rights:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage ; or
6.5.2 sell the Goods and keep the proceeds.
6.6 Unless otherwise stated, the Buyer will give access to the premises at which delivery is to be made to the Seller at all reasonable times so that the Seller may complete the delivery in accordance with the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer :
7.1.1 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 will be available for collection; or
7.1.2 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.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, 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.
7.3 Until property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the 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 resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of the sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails 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.
7.5 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 money owing by the Buyer to the Seller shall forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the Conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery.
8.2 The Seller shall be under no liability under the warranty in Condition 8.1 (or any other warranty, condition or guarantee) in respect of :
8.2.1 any defect in the Goods arising from any drawing, design calculation or specification supplied by the Buyer;
8.2.2 any defect arising after delivery including, without limitation, 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 or for Goods or materials used other than as recommended by the Seller ;
8.2.3 if the total price for the Goods has not been paid by the due date for payment ;
8.2.4 any 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;
8.2.5 where the Goods comprise marble, granite and similar materials, the Buyer acknowledging (i) such Goods are subject to variations in colour, veining and natural markings, (ii) exact matching to samples cannot be guaranteed,(iii) quoted thicknesses are nominal and accepted trade variances are plus or minus10% ;
8.2.6 the quality of any work undertaken by any person recommended or suggested by the Seller to the Buyer or any loss, costs or expenses suffered or incurred by the Buyer as a result of such work.
8.3 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
8.5 The Buyer acknowledges that it is his responsibility to examine the Goods on delivery. Any claim by the Buyer based on any defect in the Goods or failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 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]. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer cannot reject the Goods, the Seller shall have no liability for such a defect or failure and the Buyer must pay the price.
8.6 Where any valid claim under Condition 8.5 is notified to the Seller, the Seller may replace the relevant Goods free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part), but the Seller shall have no further liability to the Buyer.
8.7 Except in the event 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), costs, 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 Goods or their use or resale by the Buyer, except as expressly provided in the Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Causes beyond the Seller’s reasonable control shall include but not be limited to:
8.8.1 Act of God, explosion, flood, tempest, fire or accident ;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition ;
8.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery ;
8.8.7 power failure or breakdown in machinery.
9. INSOLVENCY OF BUYER
The Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer,and if any Goods have been delivered but not paid for the price shall become immediately due and payable not with standing any previous agreement or arrangement to the contrary if:-
9.1 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 purpose of amalgamation or reconstruction) ; or
9.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer ; or
9.3 The Buyer ceases, or threatens to cease, to carry on business ; or
9.4 The Seller reasonably believes that any of the above events is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10. GENERAL
10.1 Any notice given by either party under the 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 to this provision to the party giving the notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision and any right or remedy granted to the Seller in the Conditions is in addition to all other rights and remedies available to the Seller.
10.3 If any provision of the 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.
10.4 Any dispute arising under or in connection with the Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of [ ], in accordance with the rules of [ ].
10.5 The Contract shall be governed by the laws of England.