Terms of Business

Rhopoint Metrology ltd – terms and conditions of sale
1. Definitions and Interpretation:
1.1. Buyer” means the person or other entity who buys or agrees to buy the Goods from the Seller.
1.2. “Conditions” means the terms and conditions of sale set out in this document (as varied from time to time in accordance with
Condition 2.5) and any special terms and conditions agreed in writing between the Seller and the Buyer.
1.3. “Contract” means any contract between the Seller and the Buyer for the sale and purchase of any Goods subject to these
Conditions.
1.4. “Delivery Date(s)” means the date(s) specified by the Seller as to when the Goods are to be delivered.
1.5. “Goods” means any articles (or any part of them) which the Buyer agrees to buy from the Seller and the Seller agrees to source for and
or supply to the Buyer subject to these Conditions.
1.6. “Price” means the price of the Goods as determined in accordance with Condition 3.
1.7. “Seller”, “us’’ and “we” means Rhopoint Metrology Limited (registered in England and Wales with company registration number
02031879), or such other company as may be named as the Seller in any Contract.
1.8. “In writing”, and any similar expression, includes facsimile transmission and electronic mail, but not text messages.
1.9. All headings are for ease of reference only and shall not affect the construction of these Conditions.
1.10. A reference in these Conditions to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
2. General:
2.1. All Goods are supplied by us subject to these Conditions (including any special terms and conditions agreed in writing between
the Seller and the Buyer), which shall apply to all Contracts to the exclusion of all other terms or conditions which the Buyer may purport or
seek to impose or incorporate under any purchase order, confirmation of order or similar document, or which may be implied by trade,
custom, practice or course of dealing.
2.2.. The Buyer is responsible for ensuring that the terms of any order are complete and accurate. All orders for Goods shall be deemed to be
an offer by the Buyer to purchase Goods pursuant to these Conditions and a Contract shall come into existence upon acceptance of any
order by the Seller and/or delivery of the Goods to the Buyer, which shall be deemed to be conclusive evidence of the Buyer’s acceptance
of these Conditions.
2.3. Any Contract shall constitute the entire agreement between the Buyer and the Seller and the Buyer acknowledges that it has not relied on
any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2.4. Any description of the Goods (including without limitation any drawings, descriptive matter, illustrations or advertising produced by the
Seller or contained in its catalogues or brochures) is given by way of identification only and shall not form part of the Contract or have
any contractual force.
2.5. Any variation to these Conditions (including any special terms and conditions agreed between the Buyer and the Seller) shall not be binding
unless agreed in writing and signed by a duly authorised representative of the Seller.
3. Prices:
3.1. The Price shall be the Seller’s quoted price unless otherwise specified in any Contract. Prices are quoted by the Seller on an
ex works basis and are subject to change or withdrawal at any time before acceptance of the Buyer’s order. Prices quoted shall apply to
the stipulated quantities of Goods only and will not necessarily hold good for other quantities of Goods that may subsequently be ordered
by the Buyer.
3.2. All Prices are exclusive of packing, delivery and insurance charges as well as any applicable value added tax (VAT), which shall be payable
by the Buyer at the rate in force on the date of the Seller’s invoice.
4. Variation of Prices:
Orders are accepted by the Seller at the prices current at the time of acceptance provided that the Seller may by
giving notice to the Buyer at any time before delivery of the Goods increase the Price of the Goods to reflect any increase in the cost to
the Seller which is due to factors occurring after the making of the Contract which are beyond the reasonable control of the Seller
including, without limitation, foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the costs of
labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is
requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information
or instructions.
5. Payment:
5.1. Payment of the Price and any applicable VAT and/or packing, delivery and insurance charges shall be due without set-off or
deduction within 30 days of the date of the invoice unless otherwise specified by the Seller. The time for payment of the Price shall be of
the essence of the Contract.
5.2. If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the
Seller may:
5.2.1. cancel the Contract or suspend any further deliveries to the Buyer;
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); and
5.2.3. charge the Buyer interest on the amount unpaid, at the rate of 4% above Barclays Bank Plc’s base rate from time to time
in force, which shall accrue (both before and after any judgment) from the date when payment becomes due from day to day
until the date of payment.
5.3. Notwithstanding Condition 5.2.3, the Seller may in the alternative claim interest at its discretion under the Late Payment of
Commercial Debts (Interest) Act 1998.
6. Order Cancellation and Returns:
6.1. Any Contract may be cancelled by the Buyer only with the prior written consent of the Seller (which it may withold in its sole
discretion) and subject to the Buyer paying all reasonable cancellation and restocking charges incurred by the Seller due to the
Buyer’s cancellation of the order. Seller may designate certain Products/Orders as non-cancellable, non returnable (“NCNR”).
6.2. Returns will be permitted only with the prior written consent of the Seller (which it may withhold in its sole discretion) and provided
that any Goods are returned at the Buyer’s expense in original condition and in the original packaging. Return of part packs of
Goods will not be accepted.
6.3. The Seller may cancel any Contract at any time before the Goods are delivered by giving written notice to the Buyer. On giving such
notice the Seller shall promptly repay to the Buyer any sums already paid by the Buyer in respect of the Price, but the Seller shall
not be liable for any loss or damage arising from such cancellation.
7. Delivery:
7.1. Delivery shall be when the goods are ready and at the Buyers nominated place of delivery which shall be (a) our premises if
the Buyer or Buyer’s carrier or agent collects or if no written nomination has been received by the time the goods are ready or (b) at
the Buyer’s own premises if carriage if effected by ourselves, our carriers or agents. Thereafter the goods shall be at the sole risk
of the Buyer.
7.2. Any Delivery Dates quoted 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 of any Contract unless previously agreed by the Seller in writing and no delivery
shall be considered as overdue until the Buyer has made a written request for delivery and given the Seller reasonable time to
comply with such request. The Goods may be delivered by the Seller in advance of the quoted Delivery Date on giving reasonable
notice to the Buyer.
7.3. If the Buyer fails to take delivery of any Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery
(otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without
limiting any other right or remedy available to the Seller, the Seller may:
7.3.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.4. The Seller reserves the right to deliver by instalments and each separate instalment shall be invoiced and paid for in accordance
with the provisions in these Conditions or as otherwise agreed between the Buyer and the Seller in writing.
7.4.1. The failure of the Buyer to pay for any one or more of the said instalments of the Goods on any respective due date shall
entitle the Seller, at the sole option of the Seller:
7.4.1.1. Without notice to suspend further deliveries of the Goods pending payment by the Buyer; and/or
7.4.1.2. To treat this Contract as repudiated by the Buyer.
7.5. The Buyer shall notify the Seller of any non-delivery within 5 working days of the date of despatch (as stated on the applicable
invoice). Notwithstanding the receipt by the Seller of any such notice, an appropriate signature on a carrier’s delivery advice sheet
shall be deemed to be sufficient evidence of receipt of the quantity of Goods indicated on the advice sheet, except in the case of
manifest error or fraud.
7.6. If the Seller fails to deliver the Goods in whole or in part 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 Buyer’s sole remedy shall be limited to the Seller making
good any shortage by replacing such Goods (or, if the Seller shall elect, by refunding a proportionate part of the Price).
8. Title and Risk:
8.1 Save as otherwise provided for in these Conditions, and notwithstanding delivery having been made, property in the Goods shall not
pass from the Seller, until:
8.1.1. The Buyer shall have paid the Price (plus any packing, delivery and insurance charges as well as any VAT
where applicable) for such Goods in full; and
8.1.2. No other amounts shall be due and outstanding for payment from the Buyer to the Seller.
8.2. Until property in the Goods passes to the Buyer in accordance with Condition 8.1 the Buyer shall hold the Goods and each of them
on a fiduciary basis as Bailee for the Seller, The Buyer shall store the Goods (at no cost to the Seller) separately from all other
goods in its possession and shall ensure that they are properly stored and marked in such a way that they are clearly identified as
the Seller’s property.
8.3. Notwithstanding that the Goods (or any of them) remain the property of the Seller, the Buyer may sell or use the Goods in the
ordinary course of the Buyer’s business at full market value and for the account of the Seller. Any such sale or dealing shall be a sale
or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such
sales or dealings, provided that until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the
Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and
shall be at all material times identified as the Seller’s money.
8.4. The Seller shall be entitled to recover the Price (plus any packing, delivery and insurance charges as well as any VAT where
applicable) notwithstanding that property in any of the Goods has not passed from the Seller.
8.5. Until such time as property in the Goods passes from the Seller, the Buyer shall upon request deliver up to the Seller such of the
Goods as have not ceased to be in existence or resold. If the Buyer fails to do so the Seller may enter upon any premises where the
Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under Condition 8.3 shall
cease.
8.6. The Buyer shall not pledge, create any lien over or in any way charge by way of security for any indebtedness any of the Goods
which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing
by the Buyer to the Seller shall forthwith become due and payable.
8.7. The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until
the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the
relevant policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing
by the Buyer to the Seller shall forthwith become due and payable.
8.8. The risk in the Goods shall pass to the Buyer on completion of delivery or, if the Buyer wrongfully fails to take delivery of any Goods,
the time when the Seller has tendered delivery of the Goods.
9. Export Licences: If any export licence or any Government or regulatory authorisation is required for the manufacture or despatch of the
Goods, the Buyer shall be responsible for obtaining such licence or authorisation and the Contract shall be subject to such licence or
authorisation being granted. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of
the Goods into the country of destination and for the payment of any duties on them and the Buyer shall indemnify the Seller against any
costs or liability incurred in the event of any default in obtaining or complying with the terms of any required licence or authorisation.
10. Installation and Use of the Goods: The Buyer is solely responsible for the installation and use of the Goods, including without limitation,
obtaining all permits, licences, or certificates required for the installation or use of the Goods.
11. Technical Advice: Any technical advice offered or given by the Seller is for guidance purposes only, and Seller accepts no liability or
responsibility to the Buyer or to any third party in any way for the content or use of any such advice that may be provided by the Seller.
12. Claims: The Buyer shall inspect the Goods immediately on delivery thereof. The Goods shall be deemed to be free from defects or damage
and in all respects in accordance with the Contract and the Buyer shall be bound to accept and pay for such Goods at the time or times
specified in the Contract unless a written claim is made by the Buyer and is received: (i) by both the Seller and the carrier within three
days of delivery in respect of any claim relating to damage, delay or partial loss in transit. (ii) by both the Seller and the carrier within 28
days of dispatch in respect of any claim relating to non delivery or (iii) by the Seller within 28 days of delivery in respect of any claim
relating to any other matter. Following any such written claim, the Seller shall be given an opportunity to inspect the Goods within a
resonable time following delivery and before any use is made of them and Goods subject to any claim must be stored by the Buyer free
of charge for our inspection. The Seller reserves the right to request, and if so requested the Buyer shall provide, a failure report for
defective goods that are rejected before a return will be allowed or RMA issued. Where the Buyer rejects or purports to reject any Goods
then the relevant provisions of these Conditions shall apply in respect of any related liability and claims.
13. Warranty:
13.1 Subject to the following provisions the Seller warrants (unless otherwise specified by the Seller in the Contract) that:
13.1.1. it has title to the Goods; and
13.1.2. that the Goods conform in all material respects with their description; and
13.1.3. that the Goods are free from material defects in design, material and workmanship provided that the use of product name or other
methods of description in the Contract does not constitute any representation by the Seller with respect to the performance,
specification, or fitness for purpose of any Goods.
13.2. If any Goods are shown to be in breach of the warranty given under Condition 13.1 above within a period of 1 year from the date
of order, we will (at our option) either refund the Price of such Goods or replace or repair such Goods provided that the Buyer has notified
us in writing and returned the Goods to us for inspection within a period of 1 year from the date of order.
13.3. The above warranty is given by the Seller subject to the following conditions:
13.3.1. The Seller 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 Seller’s instructions (whether oral or in writing), misuse or alteration or
repair of the Goods without the Seller’s approval;
13.3.2. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total
Price for the Goods has not been paid by the due date for payment.
13.4. The above warranty does not extend to 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 (which the Seller
hereby assigns to the Buyer to the extent that such assignment is permitted by the terms thereof). The Buyer acknowledges that
the Seller, in these circumstances, is acting solely as a third party distributor of the Goods and that the manufacturer of the Goods
shall be solely responsible for all liabilities, claims, damages, obligations, and costs and expenses related to the Goods distributed
by the Seller. The Buyer agrees that the manufacturer shall be solely responsible for compliance of the Goods with the
manufacturer’s warranty and for any maintenance, support or repair of the Goods. The Seller makes no representation, covenant
or warranty with respect to the extent or enforceability of the manufacturer’s warranty. No repair or replacement of Goods by the
Seller or the manufacturer shall extend the warranty period of the manufacturer.
13.5. Except where expressly provided in these Conditions and provided that nothing in any Contract shall restrict or exclude liability for
death or personal injury caused by the negligence of the Seller, all other terms, conditions and warranties (whether implied by
statute, common law, custom of trade or course of dealing or made expressly) whether by the Seller or its servants or agents or
otherwise relating to the quality and/or fitness for purpose of the Goods and/or the extent to which they correspond to any
description or sample are excluded to the fullest extent permitted by law.
14. Limitation of Liability:
14.1 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 (whether or not delivery is refused by the Buyer) be notified to the Seller within three
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. Any claim by the Buyer which is for non-delivery of Goods shall be notified to the Seller within
28 days after the date the Goods were to be delivered. If the Buyer does not notify the Seller accordingly within the applicable time
period, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the
Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract, regardless of whether
the facts giving rise to the claim shall have then been discovered or whether processing, further manufacture, other use, or resale
of Goods shall have then taken place.
14.2. Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure
to meet specification is notified to the Seller in accordance with these Conditions, the Seller may replace the Goods (or the part in
question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of
the Price), in which case the Seller shall have no further liability to the Buyer.
14.3. Subject to Condition 14.5 below, the Seller shall not be liable to the Buyer or any third party for any liability, claims, obligations,
damages, costs, or expenses, including without limitation, any direct, indirect, special, incidental, or consequential damages
(including lost profits, business losses, personal property damage, personal injury, and death) arising out of or relating to the sale
of Goods by the Seller to the Buyer or any related services provided by the Seller by reason of any representation (unless
fraudulent), or any implied warranty, condition or other term, or in contract, tort (including negligence), breach of statutory or
common law duty or otherwise.
14.4. The Seller is not liable for, and the Buyer assumes full liability for, all personal injury and property damage connected with the
handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of Goods, whether the
Goods are used alone or in combination with any other material.
14.5. Nothing in these Conditions shall limit or exclude the Seller’s liability for:
14.5.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as
applicable);
14.5.2. fraud or fraudulent misrepresentation;
14.5.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
14.5.4. defective products under the Consumer Protection Act 1987; or
14.5.5. any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
14.6. Subject to Condition 14.5, the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with any
Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the Price of the
Goods.
15. Force Majeure:
15.1. The Seller shall not be liable to the Buyer or be deemed to be in breach of any 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. Without limiting the foregoing, the following shall be regarded as causes beyond
the Seller’s reasonable control:
15.1.1. Act of God, explosion, flood, tempest, fire or accident;
15.1.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
15.1.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental,
parliamentary or local authority;
15.1.4. import or export regulations or embargoes;
15.1.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a
third party);
15.1.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
15.1.7. power failure or breakdown in machinery.
15.2. In the event that the Seller is prevented from delivering the Goods on the agreed Delivery Date by any cause beyond our
reasonable control, we may suspend delivery of the Goods until a reasonable time after the end of such force majeure event
and during such time as is reasonably incidental to the resumption of normal production or sale or cancel or vary the
Contract in accordance with Condition 6.3.
16. Waiver: The Seller’s rights shall not be affected or restricted by any indulgence or forbearance granted to the Buyer. No waiver by us of
any breach shall operate as a waiver of any later breach.
17. Set off and Counterclaim: The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right
of set off or counterclaim which the Buyer may have or alleged to have for any reason whatever.
18. Insolvency:
18.1. If the Buyer fails to make payment for the Goods in accordance with any Contract or commits any other breach of any Contract
or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its
creditors or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable (or is deemed to be unable) to pay its debts
as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation
or reconstruction without insolvency) shall be passed or presented or if a receiver, administrative receiver or manager shall be appointed
over the whole or any part of the Buyer’s business or assets or if any petition for the appointment of an administrator is presented against
the Buyer or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall
become payable immediately. The Seller may in its absolute discretion and without prejudice to any other rights which it may
have:
18.1.1. suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part; and/or
18.1.2. exercise any of its rights pursuant to Condition 8.
19. Severance: Any provisions in this Contract which may be void or unenforceable shall, to the extent of such invalidity or enforceability, be
deemed severable and shall not affect any other provision of these Conditions or of any Contract made between the Seller and the Buyer. If
any invalid, unenforceable or illegal provision of any Contract would be valid, enforceable and legal if some part of it were deleted, the
provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20. Assignment and Sub-Contracting: The Seller may assign, license or sub-contract all or any part of its rights and obligations under these
Conditions or any Contract and the Buyer may do so with the prior written consent of the Seller.
21. Governing Law and Jurisdiction: These Conditions and any Contract made between the Seller and the Buyer are governed by and subject
to the laws of England and Wales and the Buyer and the Seller hereby submit to the exclusive jurisdiction of the English courts.
February 2016
Rhopoint Metrology ltd – terms and conditions of sale