TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS (the “Conditions”)
1.1 In these Conditions the following words shall have the following meanings:
« the Buyer »: the person(s), firm or company who purchases the Goods from the Company, as identified in the Contract;
“the Catalogue”: the Company’s catalogue of goods which may be purchased by the Buyer, as made available by the Company from time to time;
« the Company »: Tayplay Limited, (SC148074), Suite D, Riverview House, Friarton Road, Perth, PH2 8DF;
« the Contract »: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Delivered”: has the meaning given to it in condition 4.2 and “Delivery” shall be construed accordingly;
“Delivered at Place”: has the meaning given to it in Incoterms 2010 (the 2010 edition of the standard terms of trading published by the International Chamber of Commerce);
« Delivery Point » means the place of delivery as may be specified in the Quotation as the Delivered at Place address;
« Goods » the goods specified in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
“Quotation”: means the quotation from the Company for the supply of the Goods;
“Specification”: any specification for the Goods, including any relevant plans or drawings, that is agreed between the Buyer and the Company.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings are for convenience only, and will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions and these Conditions shall prevail over any terms or conditions which the Buyer purports to apply under the Contract or any purchase order, confirmation of order, specification or other document.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document, will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any proposed variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing by the Company.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms and specification of the Goods within its order and any applicable specification are complete and accurate.
2.7 Any Quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any Quotation is valid for a period of 90 days only from its date, provided that the Company has not previously withdrawn it.
3.1 In the event that:-
3.1.1 the Buyer orders Goods which are contained in the Catalogue, then the description and full Specification of the Goods shall be as set out in the Catalogue (subject to any variation provided for in the Quotation);
3.1.2 the Buyer requests that the Company provide a Quotation for a Good or Goods which are contained in the Catalogue but of bespoke dimensions (“Bespoke Goods”), then the Specification of the Goods shall be as provided for the applicable goods in the Catalogue but subject to the dimensions and any other variations provided in the Quotation.
3.2 Without prejudice to Condition 3.1 above, all drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s sales literature or brochures (other than the Catalogue) are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
3.3 It shall be the responsibility of the Buyer to determine whether the Goods are fit for their intended purpose, and the Company makes no representations in this regard.
3.4 For the avoidance of doubt, although the Goods will be shown in the Catalogue in their “as built” state, the Goods will be supplied in an unbuilt state and it will be the responsibility of the Buyer to build up the Goods at the location at which they are to be used. The Company shall supply a manual detailing how the Goods should be built up and installed.
4.1 Unless otherwise agreed between the Company and the Buyer in writing, Delivery of the Goods shall take place on a Delivered at Place basis at the Delivery Point. The Buyer shall procure the unloading of the Goods at the Delivery Point immediately upon the arrival of the Goods at the Delivery Point.
4.2 The Goods shall deem to have been “Delivered” on the Company procuring that the Goods are ready to be unloaded at the Delivery Point, provided that this is either (i) during usual business hours or (ii) at such other time as may have been arranged with the Buyer or its agents.
4.3 Any dates specified by the Company for Delivery of the Goods are an estimate unless expressly agreed by the Company in writing, and are subject to change from time to time. Time for delivery shall not be of the essence. If no dates are so specified by the Company, delivery will be within a reasonable time.
4.4 If for any reason the Buyer does not arrange for the Goods to be unloaded at the Delivery Point when they have been made available in accordance with Condition 4.2 above, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.4.2 title to the Goods shall remain with the Company until payment is made in accordance with condition 5.2;
4.4.3 the Goods will be deemed to have been Delivered; and
4.4.4 the Company may store the Goods (or arrange for a third party to store the Goods) until the Buyer either arranges for a carrier to collect the Goods from such place of storage or makes arrangements for the Company to re-attempt delivery of the Goods, whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, the cost of transport from the Delivery Point to wherever the Goods are to be stored, the costs of storage and insurance, and the costs of any subsequent attempt at Delivery).
4.5 The Buyer will (at its expense) unload the Goods at the Delivery Point.
5.1 The Goods are at the risk of the Buyer from the time of Delivery.
5.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Goods; and
5.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
5.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
5.3.1 hold the Goods on a fiduciary basis in trust for the Company;
5.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
5.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
5.3.5 hold the proceeds of the insurance referred to in condition 5.3.4 on trust for the Company and not mix them with any other money; nor pay the proceeds into an overdrawn bank account.
5.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
5.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value;
5.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale; and
5.4.3 the proceeds from such sale are remitted to the Company within 5 working days of receipt by the Buyer in respect of any sums due by the Buyer to the Company.
5.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
5.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with its 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 its 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 a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
5.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
5.5.3 the Buyer encumbers or in any way charges any of the Goods.
5.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
5.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.1 Any price quoted to the Buyer by the Company shall be on a Delivered at Place basis and in Pounds Sterling.
6.2 The price for the Goods shall be inclusive of any costs or charges in relation to packing, packaging, loading, carriage and insurance (such insurance cover being at the rate provided in the standard Road Haulage Association conditions).
6.3 The price for the Goods shall be exclusive of any value-added tax, any import duties or taxes outwith the United Kingdom and all costs or charges in relation to unloading the Goods.
7.1 Unless agreed otherwise with the Company, payment of the price for the Goods is due 30 days from the date of invoice.
7.2 Time for payment shall be of the essence.
7.3 No payment shall be deemed to have been received until the Company has received cleared funds.
7.4 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
7.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
7.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of the Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to alternatively claim such interest and any other sums due to the Company under the Late Payment of Commercial Debts (Interest) Act 1998.
7.7 All bank charges and other related costs of international payments are to be paid by the Buyer.
8.1 The Company warrants that (subject to the other provisions of these Conditions) the Goods will:
8.1.1 where the Goods are contained in the Catalogue in accordance with Condition 3.1.1:
- meet the required safety specification as further described in the Catalogue; and
- be free from any defects in material or workmanship for a period of 24 months from the date of Delivery.
8.1.2 where they are Bespoke Goods in accordance with Condition 3.1.2:
- be free from any defects in material or workmanship for a period of 24 months from the date of Delivery; and
- meet the safety standards or specification detailed in the Quotation.
8.2 The Company shall not be in breach of the warranty contained within condition 8.1.2b where the Company has advised the Buyer in writing that the required Specification, as requested by the Buyer, means that it is not possible for the Bespoke Goods to comply with the required safety standards of any applicable laws.
8.3 The Company shall not be liable for a breach of any of the warranties in condition 8.1 unless:
8.3.1 the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 7 working days of the time when the Buyer discovers or ought to have discovered the defect; and
8.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business for the examination to take place there.
8.4 The Company shall not be liable for a breach of any of the warranties in condition 8.1 if:
8.4.1 the Buyer makes any further use of such Goods after giving such notice referred to in condition 8.3.1; or
8.4.2 the defect arises because of fair wear and tear or arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
8.4.3 the Buyer fails to erect and install the Goods in accordance with the installation manual supplied by the Company;
8.4.4 the Goods were used in adverse environmental conditions for which for which they are not suited, or were fixed or secured to inadequate or unsuitable media;
8.4.5 the defect should have been apparent to the Buyer from a visual inspection of the Goods which has been carried out by the Buyer prior to Delivery; or
8.4.6 the Buyer alters or repairs such Goods without the written consent of the Company.
8.5 Subject to conditions 8.3 and 8.4, if any of the Goods do not conform with any of the warranties in condition 8.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with condition 8.5 it shall have no further liability for a breach of any of the warranties in condition 8.1 in respect of such Goods.
8.7 Any Goods returned to the Company will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 24 month period.
8.8 The Buyer warrants that any specification or other material that it supplies to the Company, and the Company’s use of such materials will not infringe the copyright or other rights of any third party.
8.9 The Company shall not be liable for a breach of any of the warranties in condition 8.1 if:
8.9.1 the goods supplied show reasonable signs of manufacturing processes (including minor rope abrasions, or dirt/grease)
9. LIMITATION OF LIABILITY AND INDEMNITY
9.1 Subject to condition 8, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 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.
9.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
9.4 Subject to conditions 9.2 and 9.3:
9.4.1 the Company’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 this Contract shall be limited to the purchase price of the Goods; and
9.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9.5 The Buyer undertakes that it will keep the Company fully indemnified against all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Company on the advice of its legal advisors to compromise or settle any claim) and all legal costs or other expenses arising out of any breach of a Contract or out of any claim by a third party based on any facts which is substantiated would constitute such a breach.
10.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
10.2 The Company may assign the benefit of the Contract (or any part of it) to any person, firm or company.
11. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, adverse weather conditions, 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 180 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
12.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
12.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
12.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
12.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
13.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post:
13.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer in writing by the Company; or
13.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer in writing.
13.2 Communications shall be deemed to have been received:
13.2.1 if sent by recorded first class post, 3 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); and
13.2.2 if delivered by hand, on the day of receipted delivery.
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