Terms & Conditions
These Conditions of Sale (“the Conditions”) supplied by Rosegate Ltd (“the Company”) to a purchaser (“the Buyer”) shall be incorporated into each contract (“the Contract”) made by the Company for the sale of the Company’s goods (“the Goods”). The Company contracts as aforesaid upon such terms as are agreed between the Company and the Buyer and upon the terms of the Conditions alone. No conditions or terms of the Buyer shall apply to this contract. No variation of any of the Conditions shall be effective unless in writing and signed by a duly authorised representative of the Company.
If goods are supplied in accordance with the Buyer’s specifications (“the Specification”) the Buyer shall be solely responsible for the Specifications and ensuring that they are accurate.
The Company shall be entitled to withdraw any quotation at any time prior to the Company’s Acceptance of an order. Unless otherwise stated in the quotation, every quotation shall lapse unless accepted within 7 days from the date on which it was dispatched to the Customer.
- All prices shall be stated by the Company
- All prices shall be exclusive of Value Added Tax and other taxes from time to time in force.
- All prices stated shall be subject to variation at the sole discretion of the Company at any time without prior notice and the Company shall notify the Buyer of any variation before delivery of the Goods.
- Liability for payment for the Goods supplied shall arise on delivery and payment shall be due thirty days from the date of the invoice or as otherwise specifically agreed in writing by the Company. Where the Contract is to be fulfilled in separate instalments deliveries and part payments for each delivery shall be made as if the same constituted a separate contract. Payment shall be due and the Company shall be entitled to sue for the price whether or not property in the Goods has passed by virtue of Clause 10.
- Sums unpaid after the due date shall bear interest until the day payment is received at the rate of 5% per annum above the base rate from time to time of the Bank of England accruing from day to day from the date of delivery until the date of payment in full.
- If the recovery of sums outstanding from the Buyer is passed to a Debt Collection Agency the Buyer shall pay the Company’s costs in instructing the said Debt Collection Agency and all ancillary legal costs.
- Without prejudice to any other rights or remedies of the Company any default by the Buyer in making payment on the due date shall entitle the Company to suspend deliveries under the Contract or any other contract so long as the default continues and to treat the Contract as repudiated by the Buyer and determined if the Buyer has not within 14 days of receiving written notice from the Company paid all sums due to the Company.
- Delivery shall take place when the Goods are unloaded at or delivered to the Buyer’s premises or other delivery location agreed between the Company and the Buyer except that if the Buyer collects or arranges collection of the Goods from the Company’s premises, or nominates a carrier for the Goods delivery shall take place when the Goods are loaded on to the collection or carrier’s vehicle.
- The Company will use its best endeavours to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Company but will not be liable for any delay in delivery.
- The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Company may either:-
- effect delivery by whatever means it thinks most appropriate; or
- arrange storage at the Buyer’s risk and expense pending delivery; or
- re-sell or otherwise dispose of the Goods without prejudice to any other rights the Company may have against the Buyer for breach of contract or otherwise.
- Where the agreement provides for delivery by instalments each instalment shall constitute a separate contract and any failure or defect in any one or more instalments delivered shall not entitle the Buyer to repudiate the agreement not to cancel any subsequent instalments.
- The Buyer shall not be entitled to reject the Goods by reason of short delivery.
- The quantity of the Goods delivered under the Contract shall be recorded by the Company upon despatch from the Company’s factory or warehouse and the Company’s record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
- It is the Buyer’s responsibility to notify the Company if the Goods have not been received by the Buyer within seven days of the date of receipt of the Company’s invoice therefor. If no notification is made the Buyer shall be deemed to have received the Goods.
EXAMINATION AND CLAIMS
- The Buyer shall upon delivery examine the Goods and shall promptly (but in any event within seven working days of delivery) notify in writing the Company and the carrier, where relevant, of any apparent damage defect or shortage.
- The Buyer shall comply with the carriers rules regulations and requirements so as, when appropriate, to enable the Seller to make a claim against the carrier in respect of any damage or loss in transit.
- Claims in respect of damage defects or shortage not apparent on examination must be notified in writing to the Company within twenty-one days of the date of delivery.
- Notification shall be made by phone to 07894 078990 and also by email: firstname.lastname@example.org
- In the case of goods which are defective or at variance with specification the Company may at its option discharge such liability by repairing or replacing the goods free of charge.
- The Company’s obligations to the Buyer under the Warranty shall not apply:-
- to damage caused by the Buyer’s or any third party’s act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods;
- if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
- if the Goods are altered, modified or repaired in any place other than the Company’s factory or by persons not expressly nominated or approved in writing by the Company;
- if the Buyer shall not have paid for all Goods supplied whether under the Contract or under any other contract between the Company and the Buyer.
(a) The Company warrants that any goods sold or supplied hereunder:
* (i) shall be free from defects in workmanship or material
* (ii) shall conform to any written specification expressly agreed by the Company to apply thereto, and
* (iii) shall, in the case of precious metal, conform to the usual purities accepted by the trade as standard
(b) Except as expressly provided by (a) above, all conditions and warranties, express or implied, as to
the quality of any goods sold or their fitness for any particular purpose or their performance capability or otherwise and whether arising by law, custom or any course of dealing are hereby excluded and the Company shall be under no liability whatsoever in respect of any loss, damage, liability or expense suffered or incurred by the Customer as a result of or in connection with the sale or supply of any goods or the performance of any service by the Company even if suffered or incurred in consequence of the negligence of the Company or its servants, agents or sub contractors.
(c) Tolerance on Weights and Dimensions:
(d) where the Customer has not specified otherwise, a tolerance of + or – 5% of the specified weight/dimension shall be applied.
(e) Diamond grades and colours are approximate and may vary by plus or minus 10% and two colours and/or clarities up or down.
PROPERTY AND RISK
- Risk shall pass to the Buyer on delivery and the Goods should be insured accordingly.
- Property (both legal and beneficial) in the Goods shall remain in the Company until all sums owing to the Company whether under the Contract or any other contract made at any time between the Company and the Buyer (“the indebtedness”) shall have been paid in full. Until such time the Buyer shall hold the Goods as bailee for the Company.
- The Buyer until otherwise notified by the Company or on the happening of any of the events specified in (iv) (“the Events”) may in the ordinary course of the business sell the Goods and pass property in them (“the Resale”) subject to the stipulations (the Stipulations”) imposed in (iii).
- The Stipulations are that until the Indebtedness has been fully discharged:-
- the Resale shall be for the account of the Company and, unless the Company by written notice requires the payment to it of the proceeds of the Resale (“the Proceeds”) to the extent of the Indebtedness, in which case the Buyer shall forthwith on receipt of such notice or as soon thereafter as it shall receive the Proceeds make such payment, the Buyer shall retain the Proceeds in a separate bank account to the order of the Company and not mix them with any other monies;
- in the event of a breach by the Buyer of its obligations under (A) the Company shall have the right to trace the Proceeds into any other monies with which they may have been mixed and the Buyer shall indemnify the Company on a full indemnity basis against loss, damage, costs or expenses incurred in such tracing;
- until the Resale the Company shall have the right to repossess the Goods at any time and for this purpose shall have the right to enter on any premises or land in the ownership or possession of the Buyer and remove the Goods and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims;
- The Goods until their Resale shall be stored separately and shall be clearly marked as the Company’s property.
- The Events are:-
- the giving of any notice to the Buyer that a receiver, manager, administrative receiver, administrator, supervisor or nominee is to be or has been appointed over any of the property or assets of the Buyer or that a petition to wind up the Buyer is to be or has been presented or that an application for an administration order is to be or has been made or of any notice of a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation);
- a decision by the Buyer that the Buyer intends to make any arrangement with its creditors generally;
- where the Buyer becomes insolvent or appears to be unable to pay a debt or appears to have no real prospect of being able to pay a debt pursuant to Sections 123 or 268 of the Insolvency Act 1986;
- any distress or execution is levied or threatened to be levied on any property or assets of the Buyer;
- the inability of the Buyer to pay its debts as they fall due.
- On receipt of notification from the Company under (ii) or on the happening of any of the Events, the Buyer’s right of Resale shall cease and the Buyer shall immediately deliver the Goods property in which is then reserved to or vested in the Company to such address as the Company shall specify in default of which, or in the alternative, the Company shall have the right to enter on any premises or land in the ownership or possession of the Buyer and remove the Goods and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims.
If for any cause whatsoever beyond its control the Company is unable to make any delivery on the applicable delivery date or perform any of its obligations under the Contract the Company may by notice in writing to the Buyer terminate the Contract or suspend the Contract without liability for any loss or damage thereby incurred by the Buyer.
Any samples submitted by the Company including any samples submitted for approval by the Buyer may be charged for if not returned in good condition within twenty-eight days from the date of despatch carriage paid.
PATENTS REGISTERED DESIGNS TRADE MARKS TRADE NAMES AND COPYRIGHT
The Buyer shall indemnify the Company against all damages loss costs claims and expenses arising out of any infringement of any letters patent registered design trademark, trade name or copyright or any claim for such infringement or any claim for passing-off arising out of work carried out in accordance with the Buyer’s specification.
- In so far as the performance of the Contract by the Company may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Company’s reasonable control (which shall be construed without reference to the preceding causes) the Company may elect at its absolute discretion either:-
- to terminate the Contract; or
- to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
- In the event that the Company makes an election under clause 16(a) the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
Should any one or more of these Conditions be found to be or become invalid illegal or unenforceable in any respect under any law the enforceability and validity of the remaining Conditions shall not in any way be affected or impaired thereby.
The Contract is and shall be deemed to have been made in England and shall in all respects be governed by English Law and shall be subject to the non-exclusive jurisdiction of the English Courts.