RADIUS SYSTEMS LIMITED STANDARD CONDITIONS OF SALE
1 INTERPRETATION
1.1 In these Conditions:
Buyer
means the company, firm, body or person buying the Goods and/or Services or whose order for the Goods and/or Services is accepted by the Supplier;
Conditions
means the terms and conditions set out in this document and includes any special terms and conditions agreed in Writing between the Buyer and the Supplier. Any special terms and conditions shall prevail;
Contract
means the contract for the sale of the Goods and/or Services to be provided by the Supplier pursuant to the Contract together with any special terms and conditions agreed by the Supplier in Writing and notified on the Supplier's confirmation of order;
Force Majeure
means any cause beyond the reasonable control of the Supplier (including, without limitation, fire, flood, war (declared or undeclared), embargoes, blockades, riots, insurrections, legal restrictions and third party industrial actions)and which results in the Supplier not being able to perform its obligations under this Contract;
Goods
means the goods, products and materials (including any instalment or any part of them) that the Supplier agrees to supply;
Incoterms
means the international rules for the interpretation of trade terms of the International Chamber of Commerce sales dated 2000;
Non-Standard Project
has the meaning in Condition 10;
Services
means the services the Supplier agrees to supply;
Supplier
means Radius Systems Limited (registered number 1585669) with its registered address at Radius House, Berristow Lane, Blackwell, Alfreton, Derbyshire, United Kingdom, DE55 5JD;
Working Day
means a day when the banks are ordinarily open for business in the City of London; and
Writing
includes facsimile transmission (but not email) and other comparable means of communication.
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 Any reference to any English legal concept or term shall, where relevant, be deemed to apply to the nearest analogous concept or term in any other jurisdiction.
2 BASIS OF THE SALE
2.1 The Supplier shall sell the Goods and/or Services in accordance with any written quotation of the Supplier which is accepted by the Buyer or written order of the Buyer which is accepted by the Supplier, subject in either case to these Conditions.
2.2 The Conditions shall govern the Contract to the exclusion of any other terms and Conditions.
2.3 No variation to these Conditions shall be binding unless agreed in Writing by an authorised representative of the Supplier.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3 ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer is accepted by the Supplier unless confirmed in Writing by the Supplier's authorised representative or delivery of the Goods and/or Services by the Supplier.
3.2 The Buyer is responsible for ensuring the accuracy of the terms of any order (including any applicable technical and publically available specifications) and for giving the Supplier any necessary information relating to the Goods and/or Services within a sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods and/or Services are those set out in the Supplier's quotation or the Buyer's order; (to the extent accepted by the Supplier).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Supplier in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Supplier against all loss, damages, costs and expenses incurred by the Supplier in connection with any claim in any jurisdiction for infringement of any patent, copyright, design, trade mark or other intellectual property rights.
3.5 The Supplier gives no warranty that any Goods based on the specification of the Buyer will be fit for their intended purpose.
3.6 The Supplier may make any changes in the specification of the Goods and/or Services which are required to conform to any applicable statutory or EU requirements or which do not materially affect their quality or performance.
3.7 No order which has been accepted by the Supplier may be cancelled by the Buyer, except with the agreement in Writing of the Supplier and on terms that the Buyer indemnifies the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used and any fees of any professional advisor), damages, charges and expenses incurred by the Supplier as a result of cancellation.
3.8 All drawings, designs, specifications and other information provided by the Supplier are confidential and all rights of copyright ownership and other intellectual property rights in respect of them shall remain vested in the Supplier and shall not pass to the Buyer unless agreed otherwise in Writing.
4 PRICE OF GOODS
4.1 The price of the Goods and/or Services shall be the price specified on the Supplier's confirmation of order or, if none, the price specified in the Supplier's quotation or, if none, the Supplier's published price list current at the date of supply of the Goods and/or Services. All prices quoted are valid for 28 days only or until earlier acceptance by the Buyer.
4.2 The Supplier may vary the price of the Goods and/or Services at any time before delivery to reflect any change in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, cost of inflation, foreign exchange fluctuation, currency regulation, increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate information or instructions.
4.3 Unless otherwise agreed in Writing by the Supplier, all prices are given by the Supplier on an ex works basis and exclude Value Added Tax and other duties and the Buyer shall be liable to pay those duties and the Supplier's charges for transport, packaging and insurance.
4.4 In the event of the Buyer's breach of the Contract, the Supplier may sue the Buyer for the price of the Goods, notwithstanding that title to them has not passed to the Buyer.
5 TERMS OF PAYMENT
5.1 The Supplier may invoice the Buyer at any time for the price of the Goods and/or Services or part of it or them and, without limitation, may invoice the Buyer in respect of any instalment of an order. Unless the Supplier specifies otherwise, the Buyer shall pay the invoice, (in full without any set off, deduction or counterclaim), within 28 days of the end of the calendar month in which the invoice is dated. The time of payment of the price shall be of the essence of the Contract.
5.2 If the Buyer fails to make any payment by the due date or the Supplier has reasonable grounds for believing that the Buyer will not make any payment by the due date, without prejudice to any other right or remedy available to the Supplier, the Supplier may cancel the Contract and/or suspend any further deliveries to the Buyer.
6. DELIVERY AND PERFORMANCE
6.1 Unless otherwise agreed in Writing by the parties, delivery of the Goods shall be made by the Supplier "ex works" as that term is defined in Incoterms.
6.2 Any dates quoted for delivery of the Goods and/or Services are approximate only and the Supplier shall not be liable for any delay in delivery of the Goods and/or Services.
6.3 If the Supplier fails to deliver the Goods or Services (or any instalment thereof) and the Supplier is liable under these Conditions, the Supplier's maximum liability to the Buyer shall be the difference (if any) of the cost to the Buyer of similar goods or services to replace those not delivered or performed over the agreed price of the Goods or Services.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Supplier adequate delivery instructions then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
6.4.1 store the Goods until actual delivery and including insurance) of storage and redelivery and/or sell the Goods at the best price readily obtainable; and
6.4.2 (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.
6.5 The Buyer shall comply with all laws governing the importation of the Goods into the country of destination.
7 RISK AND PROPERTY
7.1 Risk of damage to, or loss of the Goods, shall pass to the Buyer at the point of delivery or, if the Buyer wrongfully fails to take delivery, at the date when the Supplier has tendered delivery of the Goods. The Buyer shall insure the Goods accordingly.
7.2 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 Supplier has received in cash or cleared funds payment in full the price of the Goods and all other goods and services sold and/or agreed to be sold by the Supplier to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Supplier'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 Supplier's property, and shall not be entitled to dispose of the Goods.
7.4 Until such time as the property in the Goods passes to the Buyer, the Supplier may at any time require the Buyer to deliver up the Goods to the Supplier and, if the Buyer fails to do so forthwith, enter upon any premises of the Buyer or of any third party where the Goods are stored and repossess the Goods.
8 WARRANTIES AND LIABILITY
Warranties
8.1 Subject to the Conditions set out below, the Supplier warrants that the Goods will correspond with their specification at the time of delivery and will, unless otherwise agreed in Writing, be free from defects in material and workmanship for a period of 12 months from the date of delivery. The Supplier warrants that it shall perform the Services with reasonable skill and care.
8.2 The warranties set out in Condition 8.1 are given by the Supplier subject to the following Conditions:
8.2.1 the Supplier shall be under no liability in respect of any defect arising from any drawing, design or specification supplied by the Buyer;
8.2.2 the Supplier 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 Supplier's instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Supplier's approval; and
8.3 the warranties do not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Buyer may only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Buyer.
8.4 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. Without limitation, the Supplier does not warrant the accuracy or otherwise of any design, drawing, specification, instructions, other information or advice that it provides as part of the Services and/or as ancillary information in relation to the Goods.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified in Writing to the Supplier within 7 days 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 but, in any event (unless otherwise agreed in Writing), within 12 months of delivery to the Buyer.
8.6 Where any valid claim is made in accordance with this Condition 8, the Supplier may replace or repair the Goods (or the part in question) or re-supply the Services (or the part in question) free of or the part of the price in question).
8.7 Other than as set out in this Condition 8 the Supplier gives no other warranty or guarantee in respect of the Goods and/or Services. The Buyer's sole remedy for any breach of warranty is set out in this Condition 8.
General Liability
8.8 Notwithstanding other terms of this Contract, a party to the Contract does not limit or exclude its liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
8.9 The Supplier shall not be liable to the Buyer for loss of contracts, profits, anticipated savings, revenue, business, stoppage to other work or indirect or consequential loss (including, without limitation, loss of business, loss of reputation and loss of goodwill) (whether caused by the negligence of the Supplier, its employees or agents or otherwise) in connection with this Contract.
8.10 Notwithstanding any other provision in the Contract, the entire liability of the Supplier under or in connection with the Contract (whether in contract, tort, negligence or otherwise) shall not exceed the sum paid to the Supplier by the Buyer for the Goods or the Services (or both, where both Goods and Services are to be supplied) which are the subject of the claim in question by the Buyer.
8.11 The Supplier shall not be liable for any breach of its obligations to the extent that the Supplier is prevented or hindered from complying with them by an event of Force Majeure.
9 INSOLVENCY OF BUYER
9.1 Without prejudice to any other right or remedy available to the Supplier, the Supplier may cancel the Contract or suspend any further deliveries without any liability to the Buyer, if :
9.1.1 the Buyer becomes insolvent or bankrupt or goes into liquidation, receivership or administration or is wound up or enters into a composition or arrangement with its creditors;
9.1.2 the Buyer is unable to pay its debts, makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation; or
9.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.4 the Buyer ceases, or threatens to cease, to carry on business;
9.1.5 the Supplier reasonably believes that any of the foregoing events is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
9.1.6 in relation to Conditions 9.1.1 to 9.1.4, the Buyer suffers any similar or analogous event in any jurisdiction.
9.2 If the Goods and/or Services have been delivered but not paid for and the Supplier cancels the Contract under Condition 5.2 and/or Condition 9, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10 NON-STANDARD PROJECTS
10.1 Where the Buyer orders Goods and/or Services of a type, size or quality not ordinarily produced/performed by the Supplier, such order will be deemed a "Non-Standard Project". The Supplier's sole obligation is to use reasonable endeavours to deliver such Non-Standard Project. Without prejudice to any other provision of this Contract limiting the Supplier's liability, if, in the Supplier's absolute discretion, it proves impossible, impracticable or uneconomical to carry out the whole or part of the Non-Standard Project, the Supplier may on reasonable notice terminate the whole or part of the Contract for the Non-Standard Project without liability. In such circumstance the Buyer shall only be liable to pay for that part of the Non-Standard Project delivered and/or performed.
11 EXPORT SALES
11.1 Subject to Condition 6.1, where Goods are sold on the basis of international trade terms, they shall be defined in accordance with Incoterms.
11.2 Where Goods are sold FOB, the Supplier shall not be required to give the Buyer the notice specified in Section 32(3) of the Sale of Goods Act 1979.
11.3 Unless otherwise agreed by the Supplier in Writing, the price of the Goods and/or Services to be exported from the United Kingdom shall be secured by an irrevocable letter of credit satisfactory to the Supplier and established by the Buyer in favour of the Supplier immediately upon receipt of the Supplier's confirmation of order and confirmed by a United Kingdom bank acceptable to the Supplier. The letter of credit shall be for the price payable plus any and all duties and taxes payable to the Supplier and shall be valid for the longer of six (6) months or any period estimated by the Supplier for delivery of the Goods and/or Services.
12 PACKING
12.1 Unless otherwise agreed in Writing by the parties, the price specified by the Supplier excludes the cost of packing cases and packing materials, for which the Buyer shall be additionally liable. If the Supplier notifies the Buyer that packing cases and/or materials are returnable, then the full cost of these is payable by the Buyer if the Buyer does not return them in good condition to the Supplier either (at the Supplier's option) carriage paid or in the Supplier's vehicle within three (3) months of their delivery to the Buyer. Where not returnable, the Buyer will dispose of all packing in accordance with applicable regulations, (whether statutory or otherwise).
12.2 The Supplier shall use reasonable endeavours to ensure, where necessary, the appropriateness of packing before despatch, but the Supplier shall not be liable for any damage to or loss of Goods between despatch from the Supplier and delivery in accordance with this Contract.
13 CONFIDENTIALITY
13.1 Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to the Contract or in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to those of its directors, shareholders and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract (or, in respect of the Supplier, is required for disclosure for its business purposes).
13.2 The obligations of Condition 13.1 above shall survive expiry or termination of the Contract but shall not apply to any information which:
13.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at Condition 13.1 above;
13.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
13.2.3 enters the public domain through no act or default of the recipient, its agents or employees; or
13.2.4 is required by law to be disclosed.
14 GENERAL
14.1 The Supplier may perform any of its obligations or exercise any of its rights under this Contract through any other member of its group.
14.2 The Buyer may not assign any of its rights or obligations or mortgage, otherwise than by floating charge) any of its rights under this Contract without the prior written consent of the Supplier. The Supplier may assign the Contract and/or its rights and obligations under it without the consent of the Buyer.
14.3 Each party acknowledges that, in entering into this Contract, it does not do so on the basis of and does not rely on any representation, warranty or other provision except as expressly provided in this Contract and all conditions, warranties or other terms implied by statute or common law are excluded. This Condition shall only apply to the extent permitted by law.
14.4 Any notice given or made under or in connection with the Contract will be in Writing and given to the Company Secretary of the relevant party, either personally, by prepaid first class post (or registered carrier if the address for service is outside the United Kingdom) or facsimile. Notices will be deemed to have been duly given or made:
14.4.1 if delivered by hand, upon delivery at the registered office address of the relevant party;
14.4.2 if sent by prepaid first class post, 2 Working Days after posting (or if sent by registered carrier if the address for service is outside the United Kingdom, 5 Working Days after posting); or
14.4.3 if sent by fax, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post or registered carrier if the address for service is outside the United Kingdom).
14.5 No waiver by the Supplier 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.
14.6 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
14.7 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15 GOVERNING LAW AND DISPUTES
15.1 The Contract shall be governed by and construed in accordance with the laws of England, and the Supplier agrees to submit to the non-exclusive jurisdiction of the English courts.
15.2 In the event of any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, the parties shall attempt to resolve such dispute in good faith and without recourse to legal proceedings.
15.3 If the parties are unable to resolve such dispute after the expiry of 10 Working Days from the date on which discussions between the parties began, either party may request to the other in Writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within 10 Working Days of the written request to do so.
15.4 If the dispute is not resolved by the senior representatives of the parties pursuant to Condition 15.3 within the prescribed time period set out in that Condition, the matter shall be referred to, and finally resolved by court proceedings.
