The customer's attention is drawn in particular to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
the contract between Restmor and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
the person or firm who purchases the Goods from Restmor.
|Force Majeure Event:||has the meaning given in clause 10.|
the goods (or any part of them) set out in the Order.
the Customer's order for the Goods, as detailed over the telephone or in person to a Restmor sales agent or employee (thereafter confirmed by email from Restmor to the Customer), as set out in the Customer's purchase order form, the Customer's written acceptance of Restmor's quotation, or overleaf, as the case may be.
Restmor Limited (registered in England and Wales with company number 06876331).
any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Restmor.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 Any reference 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.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and e-mails.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 Restmor will confirm acceptance of the Order by sending a dispatch notice to the Customer, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Restmor which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Restmor and any descriptions or illustrations contained in Restmor's website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by Restmor shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.1 The Goods are described in Restmor's website, catalogue or brochure as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Restmor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Restmor in connection with any claim made against Restmor for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Restmor's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Restmor reserves the right to amend the specification of the Goods or the Specification if required by any applicable statutory or regulatory requirements.
4.1 Restmor shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the dispatch notice, all relevant Customer and Restmor reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Restmor shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Restmor notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Restmor shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Restmor with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Restmor fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Restmor shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Restmor with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods within three Business Days of Restmor notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Restmor's failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Restmor notified the Customer that the Goods were ready; and
4.6.2 Restmor shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which Restmor notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Restmor may resell or otherwise dispose of part or all of the Goods.
4.8 The Customer shall not be entitled to reject the Goods if Restmor delivers up to and including 5% more or less than the quantity of Goods ordered.
4.9 Restmor may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Restmor warrants that on delivery, the Goods shall:
5.1.1 conform with their description and any applicable Specification;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by Restmor.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Restmor during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 Restmor is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Restmor) returns such Goods to Restmor's place of business at the Customer's cost,
Restmor shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Restmor shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow Restmor's oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of Restmor following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of Restmor;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Restmor shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Restmor.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Restmor has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that Restmor has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as Restmor's bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Restmor's property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify Restmor immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give Restmor such information relating to the Goods as Restmor may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Restmor reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Restmor may have, Restmor may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Restmor's published price list in force as at the date of delivery.
7.2 Restmor may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond Restmor's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Restmor adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from Restmor, pay to Restmor such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 Restmor may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds within 30 calendar days, unless otherwise agreed in writing by Restmor. Payment shall be made to the bank account nominated in writing by Restmor or by cheque made payable to ‘Restmor Limited’. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to Restmor under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Restmor may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Restmor to the Customer.
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or Restmor reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Restmor, Restmor may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Restmor without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 an encumbrancer takes possession or a receiver or trustee is appointed over any of the property or assets of the Customer;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
8.2.3 that other party goes into liquidation or administration (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the Customer under these Conditions);
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order or the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;
8.2.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or
8.2.6 that other party ceases, or threatens to cease, to carry on business.
8.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.1 Nothing in these Conditions shall limit or exclude Restmor's liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for Restmor to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 Restmor shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 Restmor's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and other dealings.
11.1.1 Restmor may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Restmor.
11.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3 Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Restmor.
11.7 Governing law. The Contract, and any dispute or claim 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 law of England and Wales.
11.8 Jurisdiction. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).