1.In these conditions the following terms shall have the following meanings
‘the Business’ means Rosemead Aviaries
‘Customer’ means the customer of the Business
‘Contract’ means and contract for the manufacture and supply of Goods by the Business to the Customer
‘Goods’ means any goods forming the subject of this contract including parts and components of or materials incorporated in them
‘Price’ means the price as detailed on the order form
1.1. Any contract between Rosemead Aviaries and any of its customers for the manufacture and supply of products shall automatically incorporate these conditions which shall prevail over any other terms and conditions attached to the Customer’s order.
1.2. The waiver of any of the conditions herein at any time by the Customer shall not be effective unless it is specifically agreed in writing by Rosemead Aviaries and shall constitute a waiver for the purpose of that particular transaction only and all other conditions herein shall remain in full force and effect.
1.3. Any contract between Rosemead Aviaries and the Customer shall only arise on the written acceptance by Rosemead Aviaries of the Customer’s order.
2. PRICE AND PAYMENT
2.1. The Price for the Goods shall be the Price as stated on the quotation or estimate provided by Rosemead Aviaries , or such other price as the parties may subsequently agree in writing.
2.2. Rosemead Aviaries will exercise its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if the Customer defaults in the payment terms under this Agreement.
2.3. Rosemead Aviaries requires payment as follows:
25% of the Price when the order is confirmed,
25% of the Price five days before delivery/collection
and the remaining 50% of the Price upon delivery/collection.
2.4 In no circumstances shall the Customer be entitled to make any deduction or withhold payment for any reason at all
3.1. Any quotation provided by Rosemead Aviaries shall be valid for acceptance by the Customer for a period of 1month only from the date of the quotation.
3.2. The Price quoted is exclusive of VAT and all costs or charges in relation to packaging, loading, unloading, carriage and insurance and any other taxed or duties.
3.3 Rosemead Aviaries shall have the right to adjust its prices for any increase in the price of materials , parts, labour transport, changes in work or delivery schedules or quantities or any other costs of any kind arising for any reason after the date of this Contract.
3.4. Price changes shall take effect on the date of service on the Customer of notice of the change
4.1. All Goods shall be required to conform to the specification in the order for Goods by the Customer as accepted by Rosemead Aviaries or as otherwise expressly agreed in writing.
4.2. Any order for Goods Submitted by the Customer to Rosemead Aviaries shall be deemed to be accepted subject to the Conditions contained herein.
4.3. Each order for Goods accepted by Rosemead Aviaries shall be deemed to be an individual legally binding contract between the parties.
4.4. Where any designs or patterns or specifications have been supplied by the Customer for manufacture by or to the order of Rosemead Aviaries then the Customer warrants that the use of those designs, patterns or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the intellectual property or other rights of any third party. The Customer shall indemnify and keep indemnified Rosemead Aviaries against any loss in respect of any proceedings or otherwise resulting from any infringement of any letters, patent, copyright, registered design, registered trademark or any other protection subsisting in favour of any third party in any such pattern or specification.
4.5 Except for any which is expressly agreed to be included in the Goods all tolls, patterns , materials, drawings , specifications and other data provided by Rosemead Aviaries shall remain its property and all technical information , patentable or unpatentable, copyright and registered designs arising from the execution of any orders shall become the property of Rosemead Aviaries
5.1. The Customer shall be deemed to have accepted the Goods when Rosemead Aviaries makes them available to the Customer or any agent of the Customer or any carrier (who shall be the agent of the Customer whoever pays its charges) at the premises of Rosemead Aviaries or other point of delivery agreed by Rosemead Aviaries.
5.2. Risk in the Goods passes when they are delivered in accordance with clause 5.1
5.3 Any dates quoted by Rosemead Aviaries for the delivery of the Goods are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of Rosemead Aviaries no regards has been paid to any quoted delivery dates
5.4 If the Customer fails to take delivery of the Goods or any part of them on the due date and fails to provide any instructions or documents required to enable the Goods to be delivered on the due date, Rosemead Aviaries may on giving written notice to the Customer store or arrange for the storage of the Goods, and on the service of the notice:
5.4.1 risk in the Goods shall pass to the Customer
5.4.2 delivery of the Goods shall be deemed to have taken place
5.4.3 the Customer shall pay to Rosemead Aviaries all costs and expenses including storage, any redelivery and insurance charges arising from its failure
5.5 Rosemead Aviaries shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract
5.6. Orders for Goods which have to be made especially for the Customer will be charged in full unless written notice of cancellation is received prior to Rosemead Aviaries ordering any of the materials and components for theGoods.
5.7 Any cancellation of an order for Goods must be sent by the Customer to Rosemead Aviaries in writing. The Customer is liable to be charged for any materials ordered and/or work started for an order at the time of cancellation.
6. TITLE TO GOODS
6.1. Rosemead Aviaries warrants that it has good title to the Goods and that it will transfer title in the Goods to the Customer pursuant to Clause 6.2.
6.2. Notwithstanding delivery, title in the Goods shall remain with Rosemead Aviaries and shall not pass to the Customer until Rosemead Aviaries has been paid in full for the Goods(including interest and costs).
6.3 Until title passes the Customer shall hold the Goods as bailee for Rosemead Aviaries and shall store or mark them so that they can at all times be identified as the property of Rosemead Aviaries
6.4 Rosemead Aviaries may at any time before title passes and without any liability to the Customer repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Customer’s rights to use , sell or otherwise deal in them ; and for that purpose enter any premises of or occupied by the Customer
6.5 Nothing in this Clause shall prevent Rosemead Aviaries from maintaining an action for the price of the Goods notwithstanding that title has not passed to the Customer.
7. EXTENT OF LIABILITY
7.1 Rosemead Aviaries shall have no liability to the Customer for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence , breach of statutory or other duty on the part of Rosemead Aviaries or in any other way out of or in connection with the performance or purported performance of or any failure to perform the Contract except :
7.1.1 for death or personal injury resulting from Rosemead Aviaries negligence
7.1.1 as expressly stated in these conditions
7.2 Where the Goods have been manufactured by Rosemead Aviaries and are found to be defective, Rosemead Aviaries shall repair or, at its sole discretion, replace defective Goods free of charge upon the following conditions:
7.2.1. the Customer giving notice of the defect within 24 hours of the defect coming to the Customer’s attention;
7.2.2 the defect being due to Rosemead Aviaries faulty design, workmanship or materials;
7.2.3 subject to Clause 8 the liability of Rosemead Aviaries under this Contract howsoever arising shall not exceed the Price.
8. DEFAULT BY CUSTOMER
8.1. If the Customer shall fail to pay the price for the Goods by the due date for payment, then (without prejudice to any other rights of Rosemead Aviaries arising from such failure) the Customer shall pay interest on any overdue amount on a daily basis at a rate of 5% per above the base rate from time to time quoted by Barclays Bank and reimburse to Rosemead Aviaries all costs and expenses (including legal costs) incurred in collecting any overdue amount.
8.2. If the Customer shall commit default in or commit any breach of it’s obligations to Rosemead Aviaries , or if any distress or execution shall be levied upon the Customer, its property or assets or if the Customer shall make or offer to make any arrangements or compositions with its creditors or commit any act of bankruptcy or if the Customer shall be a company and any resolution or petition or receiving order in bankruptcy shall be presented or made against him, or if the Customer shall be a company and any resolution or petition to wind up such company’s business shall be passed or presented otherwise than for the purpose of amalgamation or reconstruction whilst solvent, or if a receiver of such company’s undertaking property or assets or any part thereof shall be appointed, or if the Customer shall be insolvent then without prejudice to any other rights available to Rosemead Aviaries it may forthwith cancel any contract then subsisting with the Customer or alternatively may suspend or cancel delivery of any of the goods to be supplied there under.
9. FORCE MAJEURE
9.1. If the performance of the contract shall be delayed by any circumstances beyond
the control of Rosemead Aviaries including (but without prejudice to the generality
of the foregoing) war, hostilities (whether war shall be declared or not), insurrection,
industrial disputes, strikes, lock-
9.2. If the performance of the contract by Rosemead Aviaries shall be prevented by any such circumstances beyond the control of Rosemead Aviaries then Rosemead Aviaries shall have the right to be discharged from the further performance of any liability under the contract. If Rosemead Aviaries exercises such a right then the Customer shall thereupon pay the contract price less a reasonable allowance for what has not been performed by Rosemead Aviaries .
10. GOVERNING LAW AND JURISDICTION
10.1. This Agreement shall be governed by and construed in accordance with the law
of England and Wales and the parties hereto submit to the non-