1. INTERPRETATION
1.1. The following definitions and rules of interpretation apply in these terms and conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions.
Contract: any contract between Remark and the Customer for the sale and purchase of the Equipment, incorporating these terms and conditions.
Customer: the person, firm or company who purchases the Equipment or services from Remark.
Delivery Point: the place where delivery of the Equipment or Services are to take place under condition 4.
Equipment: any equipment agreed in the Contract to be supplied by Remark (including any part or parts of it).
Installation: installation of the Equipment or Services by Remark at the Premises.
Premises: the address for delivery and instalment of the Equipment set out in the Contract.
Price: the price payable by the Customer to Remark for the Equipment and Installation set out in the Contract.
Remark: a business whose address is at Lake Ridge, 4 Flaxley Road, Kingston Park, Peterborough, Cambridgeshire, PE2 9FT.
Services: any services agreed in the Contract to be supplied by Remark.
1.2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3. Words in the singular include the plural and in the plural include the singular.
1.4. A reference to one gender includes a reference to the other gender.
1.5. Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1. The order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with the Contract and these Conditions.
2.2. The order shall only be deemed to be accepted when Remark issues written acceptance if the order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Subject to variation under condition 2.4 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.
2.4. These terms and conditions apply to all sales by Remark and any variation to these conditions and any representations about the Equipment and Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of Remark.
2.5. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Remark which is not set out in the Contract. Nothing in this condition shall exclude or limit Remark’s liability for fraudulent misrepresentation.
3. DESCRIPTION
3.1. The quantity and description of the Equipment shall be as set out in the Contract.
3.2. All drawings, descriptive matter, specifications and advertising issued by Remark and any descriptions or illustrations contained in its catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment described in them and shall not form part of the Contract.
4. DELIVERY AND INSTALLATION
4.1. Unless otherwise agreed in writing by Remark, delivery of the Equipment or Services shall take place at the Premises.
4.2. The Customer shall take delivery of the Equipment or Services within 7 days of Remark giving it notice that the Equipment is ready for delivery. If the Customer fails to accept delivery of the Equipment, then except where such failure or delay is caused by force majeure or by Remark’s failure to comply with its obligations under the Contract in respect of the Equipment:
4.2.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the [eighth] Business Day following the day on which Remark notified the Customer that the Equipment was ready; and
4.2.2. Remark shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.3. Any dates specified by Remark for delivery of the Equipment are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery and Installation shall be within a reasonable time.
4.4. The Customer shall prepare the area of delivery and Installation for the Equipment and provide free access to the Premises and to any services or facilities that may be required to deliver and install the Equipment and carry out any survey before delivery.
4.5. Remark may charge the Customer for any special Installation requirements.
4.6. Remark shall be entitled to cancel the Contract if, in the sole opinion of Remark, Installation cannot be carried out at the Premises for reasons of health and safety.
4.7. If Remark fails to deliver the Equipment, its liability shall be limited to the Price. Remark shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by force majeure in accordance with condition 11 or the Customer’s failure to provide Remark with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.
5. RISK/TITLE
5.1. The Equipment is at the risk of the Customer from the time of delivery.
5.2. Ownership of the Equipment shall not pass to the Customer or a lease finance company engaged by the Customer until Remark has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1. the Equipment; and
5.2.2. all other sums which are or which become due to Remark from the Customer.
5.3. Where the Equipment is leased by the Customer, ownership of the Equipment shall not pass to the Customer at any time.
5.3.1. During the term of a lease agreement or until ownership of the Equipment has passed to the Customer, the Customer shall:
5.3.2. hold the Equipment on a fiduciary basis as the bailee of Remark or the leasing company (as the case may be);
5.3.3. store the Equipment (at no cost to Remark) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Remark’s property;
5.3.4. not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
5.3.5. maintain the Equipment in satisfactory condition and keep it insured on behalf of Remark or the leasing company (as the case may be) for its full price against all risks.
5.4. The Customer’s right to possession of the Equipment shall terminate immediately if:
5.4.1. the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
5.4.2. the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Remark and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
5.4.3. the Customer encumbers or in any way charges any of the Equipment.
5.5. Remark shall be entitled to recover payment for the Equipment notwithstanding that ownership of any of the Equipment has not passed from Remark.
5.6. The Customer grants Remark, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or, where the Customer’s right to possession has terminated, to recover it.
5.7. Where the Company is unable to determine whether any Equipment is the Equipment in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by Remark to the Customer in the order in which they were invoiced to the Customer.
5.8. On termination of the Contract, howsoever caused, Remark’s (but not the Customer’s) rights contained in this condition 5 shall remain in effect.
6. PRICE
6.1. Unless otherwise agreed by Remark in writing, the Price shall be the Price set out in the Contract.
6.2. The Price shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Equipment.
7. PAYMENT
7.1. Subject to condition 7.2, if applicable, payment of the Price is due 50% upon order confirmation and the balance of the remaining 50% upon the date of installation.
7.2. Remark may at its sole discretion arrange financing in relation to the payment of the Price. In the event that the Customer agrees with Remark for the payment of the Price via a financing agreement then the Customer shall pay a non-refundable deposit of 20% at the time of ordering the Equipment and 80% in accordance with the terms of the Customer’s financing agreement.
7.3. Time for payment shall be of the essence.
7.4. No payment shall be deemed to have been received until Remark has received cleared funds.
7.5. All payments payable to Remark under the Contract shall become due immediately on its termination despite any other provision.
7.6. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Remark to the Customer.
7.7. If the Customer fails to make any payment on the due date Remark may:
7.7.1. cancel the Contract;
7.7.2. charge the Customer interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
7.8. Where the Customer enters into a separate agreement for the leasing of the Equipment, the Customer shall use its best endeavours to ensure Remark receives payment for the Equipment as soon as is reasonably practicable.
8. QUALITY
8.1. Remark warrants that (subject to the other provisions of these conditions) on delivery, and for a period of twelve months from the date of delivery, the Equipment and Services shall be of satisfactory quality and be reasonably fit for purpose within the meaning of the Sale of Goods Act 1979.
8.2. The warranty given in condition 8.1 is subject to the following conditions:
8.2.1. Remark shall be under no liability in respect of any defect in the Equipment arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Remark’s or the manufacturer’s instructions, misuse or alteration or repair of the Equipment;
8.2.2. Remark shall be under no liability if the Price has not been paid by the due date for payment.
8.3. Remark shall not be liable for a breach of the warranty if:
8.3.1. the defect arises because the Customer failed to follow Remark’s or the manufacturer’s instructions as to the use or maintenance of the Equipment; or
8.3.2. the Customer alters or repairs the Equipment without the written consent of Remark.
8.4. Subject to condition 8.2, if the Equipment does not conform with the warranty in condition 8.1 Remark shall at its option repair or replace the Equipment (or the defective part) or refund the Price of the Equipment at the pro rata Contract rate provided that, if Remark so requests, the Customer shall, at Remark’s expense, return the Equipment or the part of the Equipment which is defective to Remark.
8.5. If Remark complies with condition 8.4 it shall have no further liability for a breach of the warranty.
8.6. Any Equipment replaced shall belong to Remark and any repaired or replacement Equipment shall be guaranteed on these terms for the unexpired portion of the twelve month period.
9. LIMITATION OF LIABILITY
9.1. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.2. Nothing in these conditions excludes or limits the liability of Remark:
9.2.1. for death or personal injury caused by Remark’s negligence; or
9.2.2. under section 2(3), Consumer Protection Act 1987; or
9.2.3. for any matter which it would be illegal for Remark to exclude or attempt to exclude its liability; or
9.2.4. for fraud or fraudulent misrepresentation.
9.3. Subject to conditions 9.1, 9.2 and 9.3:
9.3.1. Remark’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price; and
9.3.2. Remark shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10. ASSIGNMENT
10.1. Remark may assign the Contract or any part of it to any person, firm or company.
10.2. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Remark.
11. FORCE MAJEURE
Remark reserves the right to defer the date of delivery or Installation or to cancel the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Remark including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to Remark to terminate the Contract.
12. GENERAL
12.1. Assignment and other dealings
12.1.1. Remark may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
12.1.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
12.2. 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.
12.3. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.4. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
12.5. Entire agreement.
12.5.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.5.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.6. Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.7. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
12.8. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
12.9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
13. COMMUNICATIONS
Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to that other party (in the case of notices to Remark) its business address or such other address as may be notified by the Customer to Remark.