1. RED FORGE LIMITED. All references to ‘Red Forge’ or ‘Red Forge Limited’ in these ‘Terms & Conditions’ shall refer to Red Forge Limited of Alders Drive, Moons Moat East, Redditch, Worcestershire, B98 0RF
2. APPLICATION OF TERMS & CONDITIONS. Quotations issued by Red Forge are given on the basis that no contract will come into existence between Red Forge and any Customer of Red Forge or Purchaser of Red Forge’s services, unless and until Red Forge accepts such an order – and that no goods or services will be supplied on any terms other than the Contract Terms and by placing an order with Red Forge a Customer will be deemed to agree that these Contract terms will apply.
3. BLANKET ORDERS. Where goods or services are to be supplied by us under a Blanket Order given by the Buyer or other arrangement whereby deliveries are only made pursuant to Delivery Schedules, Release Authorisations or other Instruction given by the Buyer then notwithstanding the placing of an Order by the Buyer or our acceptance of it, no contract will come into existence until we have accepted each such Schedule, Release Authorisation or Instruction. Thereupon each such Schedule, Release Authorisation or Instruction will be deemed to conclude a separate contract upon the Contract Terms.
4. TRANSFER OF WARRANTY. So far as we reasonably can, we will transfer or make over to the Buyer the benefit of any guarantee warranty or free service or maintenance commitment which may have been given by the manufacturer or any other person in respect of any goods the subject of this contract which are not made by us. In addition if during the period of one year from the date of delivery any part manufactured by us is found upon inspection by or for us to have proved defective in material or workmanship under normal use and service and when properly installed, connected and used, we will, free of cost repair, or if we so wish, replace such part provided the part is returned carriage paid to us as soon as possible after discovery of the defect. Any cost or expense incurred by us or any other person in dismantling or reassembling the part, item, unit or system, must be borne by the Buyer. We will not, however, be liable to repair or replace any part if any identification or serial number thereon has been altered, defaced or removed or if the part has not been properly maintained in accordance with our recommended maintenance procedure or has been subjected to any misuse, unauthorised repair, replacement, modification or alteration.
5.0 INVALIDATION OF WARRANTY. Save as aforesaid we will in no circumstances be liable for any loss or damage of any kind whatsoever caused either directly or indirectly by any defect in material or workmanship or any defect in the goods or services supplied or by any negligence on the part of any of our servants or agents and all warranties and conditions express or implied statutory or otherwise are hereby expressly excluded.
5.1 The terms of clause 4 are in lieu of all conditions and warranties whether expressed or implied by statute, customs of the trade or otherwise, and any such condition or warranty is excluded.
5.2 Subject to clause 4, 5 and 5.1, the Company’s Act Liability in Tort and/or for Breach of Contract and/or Misrepresentation and/or Breach of Statutory Duty in connection with the goods and/or installation and/or all services shall be limited to damages of an amount not exceeding the contract price for the goods and/or installation and/or services in relation to which such liability may have arisen. The Company shall have no liability in case for loss of profit or other consequential losses. To the extent that the law may prevent such limitation of liability to a third party the buyer will indemnify the Company against any claim in excess of this limit.
5.3 Nothing contained in these terms shall purport to exclude or restrict any liability, the exclusion or restriction of which is prohibited by Section 2 (1) or Section (6) of the Unfair Contract Terms Act 1997
5.4 The parties have freely negotiated the contract including the price, and acknowledge that the liability of Red Forge is to be limited in accordance with these terms. The buyer acknowledges that a higher price would be payable but for such limitation.
6. ANTI-TAMPER SEALS. Anti-tamper seals may be in evidence on equipment or systems supplied and/or fitted by Red Forge, furthermore, Red Forge will not accept any claims relating to defective operation of such equipment or systems if such seals are found to have been disturbed in any way. It is the Customers responsibility to ensure that such seals are in tact upon delivery of equipment or systems to them.
7. PERSONS OR COMPANIES ACTING AS AGENTS. Persons or Companies dealing in our goods are in no way our agents and have no right to authorise to bind us in any way or to assume on our behalf any obligation express or implied.
8. RECOMMENDATION. No recommendation by us of any goods or services supplied by any other person will make us in any way liable in respect of any such goods or services.
9. FAIR ADJUSTMENT. Unless otherwise stated the price is based upon the costs of materials, labour, transport, customs and other duties and other overheads ruling at the date of the Sales Note and the price is subject to fair adjustment by us to take into account any alteration therein prior to delivery of the goods or (in the case if delivery by instalments) to the final delivery.
10. LATE PAYMENT. Our standard payment terms are Nett Monthly (the end of the month following the month in which the invoice is raised). Except where stated otherwise. Any outstanding payments will be charged for at the rate of 2% above Lloyds TSB Bank Minimum Lending rate.
11. CARRIAGE CHARGES. Provisions about charges for carriage etc. e.g.:- All inland orders of the value of £1,000.00 or over will be despatched carriage paid by road or rail, but the cost of any excess for special or express delivery will be borne by the Buyer. Carriage on all other inland orders will be charged to the Buyer, a minimum ‘handling charge’ of £50.00 may be applied for packages. All export orders will be despatched carriage paid to a British Port to be notified by us, packing included. The ‘minimum handling charge’ of £50.00 will still be made for carriage when the goods are collected from our premises by the Buyer unless this facility is specified by the buyer at the time of placing an order with Red Forge.
12. DAMAGED GOODS. No claim for damages or shortages will be considered unless we and the carrier are advised in writing within 3 days of delivery and no claim for non-delivery will be considered unless we and the carrier are notified in writing within 10 days of despatch.
13. INSTALLMENTS. We will be entitled to make delivery of the goods by instalments.
14. DELIVERY TIME. We will endeavour to complete the contract or deliver the goods within the time agreed and if no time is agreed within a reasonable time but in no circumstances will we be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in the completion of the contract or the delivery of the goods. If for any reason whatsoever the completion of the contract or the delivery of the goods is in our opinion rendered impracticable we may terminate the contract by sending by ordinary post, fax, e-mail or by delivery to the Buyer a notice in writing to that effect. Thereupon the Buyer will pay to us such a sum as will together with any other sum paid previously bear the same proportion to the contract price (including any variation thereof) as the goods delivered or services supplied bear to the goods or services contracted for.
15. STAGED PAYMENTS. Where orders are received by Red Forge for quantities of items or systems, Red Forge will reserve the right to demand payment upon the completion of each item or system.
16. PROPERTY. The property in the goods will pass on payment of the price.
17. RISK. The risk will pass on delivery to the Buyer or the carrier whichever is the earlier.
18. PRICE. The price will become payable irrespective of delivery when we send our Invoice to the Company and unless otherwise stated payment will be made by the end of the month following the month in which the invoice is raised. All payments are to be made on or before due date as a condition precedent to future deliveries.
19. CANCELLATION. If the Buyer cancels or purports to cancel the Contract or any part of it or fails to take delivery of any goods such cancellation or failure is calculated to cause dislocation to production or onward supply and the Buyer will be liable, without prejudice to any of our other rights to claim damages, to indemnify us against any loss damage or claim resulting from such dislocation and against any loss damage or expense incurred by us in connection with the manufacture or non-manufacture of the goods including the payment of licence ad other fees the cost of any material plant or tools used or intended to be used therefor and the cost of labour and other overheads.
20. ASSIGNMENT. We will be entitled to assign, sub-contract or sub-let this contract or any part thereof.
21. FAILURE TO ENFORCE. Failure by us to enforce any of the Contract Terms will not be construed as a waiver of any of our rights hereunder.
22. AUTHORITY OF LAW. This contact will be construed and operate in accordance with English Law. The Buyer hereby submits himself to the jurisdiction of the English Courts to which all disputes relating to this Contract will be submitted.
23. OUT OF HOURS WORK. If at the Buyer’s request or with the Buyer’s consent we carry out work otherwise than during normal working hours an extra charge will be made and will be payable by the Buyer within 28 days of our sending an invoice for the same or any part thereof to the Buyer. This extra charge will equate to the extra number of hours worked multiplied by the extra overtime percentage rate applicable.
24. SAFEGUARDING GOODS. The Buyer will be responsible for protecting and safeguarding the goods against all damage, whether caused by weather, accident or otherwise from the time of delivery to the site or our premises as the case may be, down to the time of installation.
25. FORCE MAJEURE Red Forge shall not be liable for failing to perform or delay in performance of any contract or for loss or damage to goods directly or indirectly resulting from any cause whatsoever, beyond the reasonable control of Red Forge, including, but not limited to, acts of God, fire, theft, riot, war, embargo, strikes, shortages of labour, delays of materials by sub-suppliers, prohibition of export or import, confiscation or the act of any Government.
26. PRICES, specifications and availability of products are subject to change without notice. Due to the continued development of the vehicle weighing systems market, descriptions may not reflect current technical information. Any typographical, photographic, or specification error in our products, offers or pricing may be subject to correction.
27. ACCESS TO VEHICLES. If following an arrangement for Red Forge technical personnel to visit a customers premises, such personnel find that the agreed vehicle/s are not made available to them for reasons associated with the customer and/or their agent/s, then Red Forge will reserve the right to charge for the return journey, time due to be spent on site and any hotel or other charges liable to be incurred by Red Forge in connection with the planned visit to the customer.
28. VEHICLE MOVEMENTS. All Costs incurred in vehicle movements between a customer or their agent/s site and Red Forge Limited, shall be paid for by the ‘Customer’ or their agent/s and arranged by the Customer and/or their agent/s.
29. VEHICLE CONDITION. All vehicles entering Red Forge Limited premises must be in a safe, road-worthy and clean condition and without any waste materials on-board, unless by prior arrangement in writing with Red Forge. Any vehicles arriving at Red Forge, which fail to meet this criteria, may be rejected / cleaned / emptied by Red Forge at the Customers cost or the vehicle may be kept outside of the Red Forge workshops in a compound at the owners risk or simply rejected from entering Red Forge premises.
Any damaged, missing or defective items on incoming vehicles must be brought to the immediate attention of the Red Forge Workshop Manager or his deputy on arrival at Red Forge and noted on all relevant paperwork.
30. PREMATURE DELIVERY. Any vehicle delivered to Red Forge Limited in advance of an agreed delivery date will incur a minimum storage charge of £25.00 and a daily storage charge of between £10.00/day and £250/day. The vehicle/s concerned may if space does not permit, be placed outside of our workshops but within our compounds at the owners or their agents risk at Red Forge’s discretion.
31. LATE DELIVERY. Any vehicle delivered to Red Forge Limited later than an agreed delivery date will incur a minimum ‘Fail to show’ charge of £25.00 and a daily ‘Fail to show’ charge of between £10.00/day and £250/day at Red Forge’s discretion.
32. FITTING SCHEDULES. Fitting schedules must be agreed in writing with Red Forge. Furthermore, no vehicle/s can be accepted into our workshops or onto our property for fitting, until such time as the relevant fitting schedules have been agreed in writing with Red Forge and the relevant written order or orders have also been received by Red Forge.
33. DRIVERS. Drivers arriving at Red Forge Limited to pick-up a vehicle following fitting, rectification or other work must report to the Red Forge Workshop Manager in the first instance and be prepared to provide proof of their identity and authorisation to collect any vehicle/s from Red Forge before said vehicles can be released.
34. VEHICLES subject to the above, can only be delivered to, or collected from Red Forge Limited, during normal Red Forge Workshop hours, unless express prior authority is given by Red Forge in writing to the contrary.
35.1 Retention of title
35.1.1 Title to the goods comprise each invoice rendered under the Contract shall not pass to the Purchaser before the total amount due under such invoice is paid to the Company. Further, title to such goods shall not pass until payment to the Company of all sums owed to it by the Purchaser on any account.
35.1.2 Until title passes to the Buyer, the Buyer shall not deal with or dispose of the goods other than for full value in its normal course of business. Any permission to deal with the goods ceases immediately on the appointment of an Administrative Receiver, on the presentation of a Winding up or Bankruptcy Petition, or of a Petition for the making of an Administration Order, the appointment of a Liquidator, the giving of notice of any meeting to pass a Winding up Resolution, or any act of Insolvency
35.1.3 If prior to making payments to Red Forge for the goods, the Buyer contracts to resell the goods to a third party in substantially the same form which they were delivered to the Buyer, or if the goods are used or incorporated in the production of any other product which is sold by the Buyer to a third party, then in each case the title of such goods shall pass directly from Red Forge to such third party pursuant to clause 35.1.1. upon payment in full to Red Forge.
35.2 Until title passes the Buyer shall hold the goods as bailee for Red Forge and shall be a fiduciary to Red Forge in respect of the goods and shall account to Red Forge in respect of any process of sale received by the Buyer on sale of the goods to a third party.
35.3 Until title passes under 35.1, Red Forge may at anytime (regardless of any period of credit given to the Buyer) enter onto the premises of the Buyer or of its agents or customers to re-posses all or part of the goods and the Contract shall terminate in respect of those goods without prejudice to any rights that Red Forge might have.
35.4 Where goods belonging to Red Forge are stored in common with similar rights belonging with others, it shall be conclusively presumed (regardless of any evidence to the contrary) that the goods are withdrawn last from the store.
35.5 Any fixing of installed goods are agreed to be temporary only pending payment under clause 35.1 and the parties agree that regardless of actual facts the goods will be deemed not to be annexed to any property prior to any payment. After payment Red Forge will if it considers it necessary arrange for permanent fixing.
35.6 Until title passes to the Buyer the Buyer will ensure the goods are clearly identifiable as the property of Red Forge.
35.7 Until title in the goods shall pass to the Buyer, if any of the goods are incorporated in or attached to any products manufactured or assembled by the Buyer, the Buyer shall maintain records sufficient to enable such goods so incorporated to be identified or quantified. Red Forge may at anytime remove any goods belonging to it regardless of any practical difficult or damage caused to such products.
36. WELVAARTS DEPOSIT. Most Welvaarts b.v. Systems are tailor made for each Customer, we insist that all orders for Welvaarts Systems include 25% of the full system price, which must be paid prior to the commencement of our installation work with the remainder paid within 30 days of completion.
37. WELVAARTS SYSTEMS. No vehicle being fitted with a Red Forge Welvaarts System will be permitted to leave Red Forge Workshops until the Red Forge Welvaarts fit is completed, this must include full calibration and certification by Trading Standards/weights and Measures where applicable, the only exception to this will be, when full payment for any quoted system has already been received by Red Forge.
38. WELVAARTS SOFTWARE. All orders received for Red Forge Welvaarts Systems will include primary download software which will allow data to be downloaded from a ‘data memory card’ to a suitable datacard memory reader, such software will enable the transfer of basic recorded data into common software suites which will include for example MicrosoftTM Excel TM, Access TM or Lotus TM SmartsuiteTM. Any manipulation of the data required to customize the displayed data to an individual customers requirements can be carried out at the ‘Red Forge On-Site Software Implementation Rate’ applicable at the time.
39. CANCELLATION OF ORDERS. Any orders placed with us which are subsequently cancelled by the Customer or their Agent/s prior to installation, will incur a ‘Re-stocking Cancellation Charge’ of £100 or 15% of the full cost, which ever is the greater, in addition full carriage, insurance and freight costs will also be charged to the customer. These charges may be applied at the complete discretion of Red Forge Limited. Any goods returned must be in original new condition, in original packing and with all manuals, accessories and include the original invoice, any discrepancies will result in forfeiture of any refund.
40. WARRANTY INVALIDATION. Any tampering with or use of any system outside of its design parameters may invalidate any implied warranty given by Red Forge Limited
41. LOADCELLS. All load cells are susceptible to damage if subjected to those high temperatures or currents that are usually associated with close proximity welding. In view of this, all customers or their agents/s must ensure that whilst welding takes place on a vehicle, that no direct current path is allowed to pass through a ‘live’ load cell or load cells.
‘Dummy load cells’ must be used by all Bodyshops installing Red Forge load cell based systems onto vehicles until all welding work is complete, at which time ‘live’ load cells may be fitted.
42. WELDING. Welding on a body whilst its chassis is earthed or vice versa, shall be avoided at all times and no welding shall be allowed to take place within 50 cms of a load cell without adequate precautions having been taken to prevent localised high temperatures being transmitted to the load cell/s.
43. WARRANTY INVALIDATION. Any signs of welding having taken place on a vehicle fitted with a Red Forge or Welvaarts On-board Weighing System in the vicinity of load cells whilst such load cells were in situ, or the evidence of any ‘weld splatter’ will immediately invalidate any warranty of such a system and any diagnostic action necessary in order to repair or rectify such a system will be charged to the customer or their agent/s at our standard Red Forge rates prevailing at the time, even if such welding was carried out by a third party.
44. CUSTOMER SITE FACILITIES. If the Customer requires Red Forge Limited Personnel to carry out installation, diagnostic, rectification, calibration or other such technical work at their site, then reasonable facilities will have to be provided by the Customer, these must include protection from the elements, sufficient lighting, power supplies, a hard-standing area and hand-washing facilities.
45. CONSEQUENTIAL DAMAGES. In no event shall Red Forge Limited, its subsidiaries or affiliates, or their respective officers, directors, employees, representatives or agents (collectively Red Forge) be liable for special, incidental, consequential, or other special damages, including but not limited to, loss of data, use, or profits, however caused, breach of contract, negligence, or otherwise, and whether or not Red Forge Limited has been advised of the possibility of any such damages.
46. REVISION OF TERMS & CONDITIONS. Red Forge may revise these terms and conditions at any time. These terms and conditions are governed and construed by the laws (but not the rules governing conflicts of law) of the U.K. You agree that if a part of the terms and conditions are found to be uninforceable, the remainder of these terms and conditions will remain in full force and effect.
47. ENTIRE AGREEMENT. Upon acceptance by the Buyer/Purchaser, this agreement including any addendum hereto accepted by the Buyer and the Seller, shall constitute the entire agreement between them, and any change or modification in order to be binding upon either party, must be in writing and signed by both parties.
48. TRADEMARKS & LOGO’S. All trademarks published are the property of their respective Companies.
49. MONETARY VALUES. All monetary sums mentioned above will alter at the rate of 3% per annum from the issue date of October 2002.
50. LANDFILL/OFF-ROAD OPERATION. As with any device or system which has sensors or associated hardware fitted beneath a vehicle’s bodyline, the use of a vehicle fitted with such a system which operates on a landfill site or over other such ‘off-road terrain’ may be liable to suffer damage caused by obstacles or debris coming into contact with such devices. For this reason Red Forge does not recommend the use of such systems in these circumstances, further Red Forge will not accept liability for any damage so caused or for any calibrations, which may become necessary due to damage caused by vehicles with such devices/systems fitted, operating at landfill sites or being utilised for ‘Off-road use’.
© IDM March 2004 – QAD 04 Issue 5