1. ACCEPTANCE OF TERMS AND CONDITIONS
a) All contracts and transactions between the Company and its customers whether verbal or in writing are subject to these terms and conditions which shall be deemed to be incorporated in any contract between the Company and all or any customers of the Company.
b) These terms and conditions shall constitute the whole agreement between the Company and any of its customers and may not be modified or varied unless specifically accepted by the Company in writing.
c) In the event of any conflict between these terms and conditions and the terms and conditions if any, in any communication from the Purchaser, these terms and conditions shall prevail.
d) In these Conditions:-
(i) "The Goods" shall mean all goods, including fertilisers, seeds, pesticides, compost, sports equipment and accessories, tools and machinery of all kinds supplied by the Company.
(ii) "The contract" shall mean an order for the supply of the Goods made by the Purchaser and accepted by the Company.
(iii) "The Company" shall mean Aitkens Sportsturf Limited and its subsidiary and associated companies.
(iv) "The Purchaser" shall mean any person, firm, Company or other legal person who shall place an order for the Goods with the Company or with any person who is deemed an agent of the Company.
All quotations given by the Company are based on the current costs to the Company in purchasing, preparing and producing the Goods to be supplied on the date of quotation and upon the information provided by the Purchaser where applicable, and are subject to adjustment by the Company on or after acceptance by, the Company of the Purchaser/s order if there is any rise or fall in such cost, or any alteration in the said information.
3. LIMIT OF CONTRACT
The Company's obligation shall extend to only the goods, work and services specified or referred to in the Contract with the Purchaser. No variations shall be made unless the same shall be agreed in writing between the Company and the Purchaser.
4. CREDIT APPROVALS
Unless otherwise agreed in writing between the Company and the Purchaser, acceptance of each order placed with the Company is subject to the condition that the Company obtains satisfactory credit approval from its credit insurers for each order and in the event of such approval not being granted in terms which the Company in its sole discretion considers satisfactory, the Company may by notice in writing intimate to the Purchaser that such condition has not been satisfied and in that event the Company shall not in any circumstances incur any liability to the Purchaser in respect of any matters directly or indirectly related to such order.
5. CANCELLATION AND EXTRA COSTS
The Company will not accept the cancellation of any orders or the return of the Goods for the credit, unless previously agreed in writing by the Company. Where such cancellation is agreed, the Company reserves the right to charge the Purchaser the amount of any loss or expense incurred, or cost of material used and a reasonable amount for overhead charges and profits. In the event of a delay in or suspension of the work by the Purchaser's instructions or lack of instructions from the Purchaser or any cause beyond the Company' s control, the contract prices shall be increased to cover and the Purchaser shall be liable to the Company for any extra expense thereby incurred by the Company.
a) Unless otherwise specified in writing "delivery" in these Conditions shall mean the time of delivery of the Goods to the place specified by the Purchaser and agreed by Company in writing.
b) Any time quoted for delivery will run from the date of receipt by the Company of a written order to proceed with the supply of the Goods and all other necessary information.
c) Any dates given by the Company for delivery are only estimates and are not essential terms of the Contracts. The Company will not be liable for any loss, damage or expense arising directly or indirectly from any delay or failure to deliver howsoever caused.
d) If the performance of the Contract shall be delayed due to circumstances or conditions beyond the control of the Company, the obligation on the Company shall be suspended for as long as such circumstances prevail.
7. TERMS OF PAYMENT
a) All prices and charges quoted by the Company are exclusive of Value Added Tax or other governmental charges, unless otherwise stated, and are subject to variation in the event of fluctuations in the cost of labour, materials and overheads. Any increase in the costs to the Company in purchasing the Goods to be supplied incurred after the date of Contract may be added to the quoted price but any price quoted by the Company will be maintained for 30 days (errors and emissions excepted) from the date of quotation. The amount of any tax or other governmental charge upon the production, sale and/or shipment or otherwise of the Goods whether now imposed by any government or other authority or hereafter becoming effective, shall be added to the prices and charged specified and shall be payable by the Purchaser.
b) All prices arc inclusive of carriage charges on orders of £150.00 (Excluding VAT) and over, within a radius of (60) Miles (mainland only) except where otherwise stated. Orders out with these conditions may be charged part or the whole cost of carriage, depending on weight, distance and value of the order.
c) Payment in respect of the goods supplied shall be made on or prior to taking delivery of the Goods unless credit arrangements have been agreed in advance in writing with the Company. In that event, the Purchaser shall pay the invoiced price within 30 days of the issue thereof. The Company does not give settlement discounts unless its prior agreement in writing has been given.
d) Time of payment shall be material condition and of the essence of the Contract and unless otherwise agreed in writing between the Company and the Purchaser, interest at the rate of 4% above the base lending rate charged by the Royal Bank of Scotland plc or such other rate as may be intimated in writing by the Company from time to time will be payable by the Purchaser on all sums remaining unpaid after the due date for payment.
8. RESERVATION OF TITLE - SCOTLAND
This provision shal1 apply to the Goods supplied to a Purchaser in Scotland:-
a) Property in the Goods shall not pass from Company to the Purchaser until the price thereof has been paid in full. The Purchaser shall store the Goods in such a manner that they are readily identifiable as the Company's Goods until the full price is paid.
b) In the event of failure by the Purchaser to pay any part of the price by the due date for payment, in addition to any other remedies available to the Company under these terms and conditions or otherwise, the Company shal1 be entitled to repossess the Goods. The Purchaser will assist and allow the Company to repossess the Goods as aforesaid and for this purpose admit or procure the admission of the Company or its employees and agents to the premises in which the Goods are situated.,
c) If the Purchaser becomes apparently insolvent or compounds with his or its creditors or has a Liquidator, Receiver of Administrator appointed over all or any of its assets or carries out or undergoes any analogous act or proceeding under foreign law prior to property in any of the Goods passing, the Purchaser's right to re-sell or otherwise deal in the goods shall automatically terminate and the Company shall be entitled to repossess any of the Goods in respect of which title has not passed as aforesaid.
9. RESERVATION OF TITLE - ENGLAND AND WALES
This Provision shall apply to the goods supplied to a purchaser in England or Wales:-
a) The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such titles as the Purchaser shall have paid to the Company the agreed price together with the full price of any other goods the subject of any other contract with the Company.
b) The Purchaser acknowledges that he is in possession of the Goods solely as bailee for the Company until the full price thereof is paid to the Company together with the full price of any other contract with the Company.
c) Until the Purchaser becomes the owner of the Goods, he will store them on his premises separately from his own goods or those of any other person and in a manner, which makes them readily identifiable as the Goods of the Company.
d) The Purchaser's right to possession of the Goods shall cease if being an individual the Purchaser is or becomes liable to be made bankrupt or if being a company the Purchaser has or becomes liable to have a Receiver over any or all of its assets appointed or has or becomes liable to have a winding Up Petition presented against it or is wound-up or in either case shall suffer any distress or execution to be levied on the Purchaser's goods or assets. The Company may for the purpose of recovery of the Goods enter upon premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
e) Subject to the terms hereof, the Purchaser is licensed by the Company to process the Goods in such fashion as he may wish and/or incorporate them in or with any other product or products subject to the express condition that the new product or products or any other chattel whatsoever containing any part of the Goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods which are the property of the Company.
f) If any of the Goods which are the Company's property are so admixed with goods the property of the Purchaser or are processed with or incorporated therein, the product thereof shall be held by the Purchaser on trust to sell the same (with power to postpone such sale) and the proceeds of such shall be applied First in payment of all or any monies owed by the Purchaser to the Company and Second, to the Company or as the Company shall direct. If any of the Goods which are the property of the Company are admix with goods the property of any person other than the Purchaser of are processed with or incorporated therein, the product thereof shall be held by the Purchaser or such other person on trust to sell the same (with power to postpone such sale) and the proceeds of such shall be applied First in payment of all or any monies owed by the Purchaser to the Company and Second to the Company or as the Company shall direct.
g) The Purchaser shall be at liberty to agree to sell on any product produced from or with the Company's goods and the entire proceeds thereof shall be held on the foregoing trust and shall not be mingled with any other monies belonging to the Purchaser but shall be held in a separate account.
h) If the Purchaser has not received the proceeds of any Such sale he will, if called upon to do so by the company within seven days thereof assign to the Company all rights against the person to whom he has supplied any product or chattel made from or with the Company's goods.
i) For the purposes of this Clause each paragraph contained in this Clause shall be constructed and interpreted separately and if any paragraph or provision or part of a paragraph shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other paragraph, shall remain in full force and effect as if the offending paragraph or provision or part of a paragraph had not appeared herein.
Notwithstanding that property in the Goods has not passed under clauses 9 and 10 hereof, the risk of loss or damage to the Goods shall pass to the Purchaser on delivery. If the Purchaser has paid for the Goods prior to taking delivery, the Purchaser shall insure the Goods to the full replacement value thereof against loss or damage by accident, fire or theft at any stage, prior to delivery.
11. FITNESS FOR PURPOSE
a) No condition is made or implied nor is any warranty given or to be implied as to the life of the Goods supplied or that they will be suitable for any particular purpose or for use under any specific conditions, not withstanding that such purpose or conditions may be known or made known to the Company. The Purchaser shall be deemed to have full knowledge of the nature and properties of the Goods supplied and of any hazards they involve and the proper treatment, storage and handling thereof. In particular, Goods are supplied on the basis that they shall be used in normal conditions appropriate for such Goods, and shall be used in normal conditions appropriate for such Goods, and that they shall be properly maintained and not be abused.
b) The Purchaser agrees that apart from the express terms contained herein or in any quotation or in any document expressly stipulated therein to form part of the Contract and to be outside the provisions of this Clause, no statement or representation has been made by the Company relating to the Goods supplied, or if any such statements or representations have been made the Purchaser warrants that he understood these to be statements of opinion only and did not rely on them.
12. QUALTIY OF GOODS
a) The Purchaser shall be deemed to have accepted the Goods delivered as being in accordance with the Contract and free from all defects which would be apparent on a reasonable examination unless, within seven days after receipt of the Goods. The Purchaser shall have given to the Company a written notice specifying the matters complained of and shall thereafter afford the Company reasonable opportunity to inspect the Goods before they have been used or processed.
b) The Company shall not be liable for defects which would not be apparent on a reasonable examination unless, within three months after the receipt of the Goods and forthwith upon the discovery of such defect, the purchaser shall have given to the Company a written notice specifying the matters complained of and shall thereafter afford the Company a reasonable opportunity of inspecting the Goods in their alleged defective state.
c) Provided that the Purchaser has complied, with the requirements as to notice in terms of this Clause, if the Goods or any parts thereof are found by the Company to be defective or otherwise not in accordance with the Contract then, if the Company and the Purchaser do not agree that the Purchaser should accept the Goods at an agreed value, the Company undertakes to accept a return of the relevant Goods and either, at the Company's option:-
(i) To repay to or credit the Purchaser with the invoice price thereof and any reasonable transports costs incurred by the Purchaser in returning the relevant Goods from the place of delivery of such Goods to the Company's premises; or
(ii) To remedy any defects or replace the Goods as soon as may be reasonably practicable.
a) The Liability of the Company to the Purchaser in respect of defects in the Goods and for breach of the Contract and for negligence in relation thereto shall be limited to the obligations under the terms' of Clause 13 and The Company shall have no other liability whatsoever to the Purchaser. Not withstanding the terms of this paragraph. Nothing contained in these terms and conditions shall affect the Company's liability under the Unfair Contract Terms Act 1977 or the Consumer Protection Act 1987 for death or personal injury caused by the negligence of the Company. Where permitted by law so to do the Company shall be entitled to limit its liability in respect of any such claim for death or personal injury to the sum of(* ) Pounds.
b) The Purchaser shall not be entitled to withhold payment of any amount payable under the Contract to the Company because of any disputed claim of the Purchaser in respect of faulty Goods or any other alleged breach of the Contract, nor shall the Purchaser be entitled to set-off amount payable under the Contract to the Company against any monies which are not then presently payable by the Company or for which the Company disputes liability.
14. SEEDS REGULATIONS
Seed sold by us is guaranteed to comply at the time of delivery with the legal standards (E.E.C rules and standards). All information whether contained in our catalogue or given by our staff and related to variety varietal characteristics or periods of maturity of fitness for any particular purpose or otherwise relating to the performance of seeds is given for general guidance only. In the event of any seeds sold or agreed to be sold by us not complying with the express terms of the contract of sale or with any representation made by us or by any duly authorised agent on our behalf prior to the time of, or any such contract, or any seeds proving defective in varietal purity we will, at our option, replace the defective seeds free of charge to the buyer or will refund all payment made to us by the buyer in respect of the defective seed and this shall be the limit of our obligation. We hereby exclude all liability for any loss or damage arising from the use of any seeds supplied by us and for any consequential loss or damage arising out of such use of any failure in, the performance of or any defect in any seeds supplied by us or for any other loss or damage whatsoever save for, at our option, liability for any such replacement or refund as aforesaid. In accordance with the established customs of the Seed Trade any express or implied condition, statement or warranty or otherwise, not stated in these conditions is hereby excluded. The price of any seed sold or offered for sale by us is based upon the foregoing limitations upon our liability: The price of such seeds would be much greater if a more extensive liability were required to be undertaken by us.
15. INTELLECTUAL PROPERTY
The Purchaser shall indemnify the Company against all damages, penalties, costs and expenses to which the Company may become liable as a result of work done in accordance with the Purchaser's specifications, which involved the infringement of any copyright, letters patent, registered design or other intellectual property rights.
16. CONFIDENTIAL INFORMATION
The Purchaser shall keep all and any information relating to the Goods or the Company's products, formulae, processes, business methods, research , development and business in general, which might come into the purchaser's possession secret and confidential at all times the Purchaser shall nor use or divulge such information except with the express written consent of the Company and the patent, copyright or other intellectual property in same are and shall remain the property of the Company.
a) The Company shall be entitled without prejudice to its other rights and remedies either to terminate wholly or in part Contract between itself and the Purchaser or to suspend any further deliveries under any or every contract in any of the following events:-
(i) The non-payment of any debt due by the Purchaser to the Company on the due date thereof
(ii) The failure by the Purchaser to provide any pre-payment, bill of exchange or other security required by the Contract, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular contract in respect of which the Purchaser shall have so failed.
(iii) The failure by the Purchaser to take delivery of any of the Goods under any contract between the Purchaser and the Company otherwise than in accordance with the Purchaser's contractual rights.
(iv) the Purchaser becoming apparently insolvent or compounding with his or its creditors or the appointment of a Liquidator, Receiver or Administrator over all or any of its assets or carrying out or undergoing any analogous act or proceeding under foreign law.
b) The company shall be entitled to exercise its aforesaid rights of termination or suspension by notice in writing to the Purchaser at any time during the continuance of the event of default giving rise thereto and in the event of any such suspension the Company shall be entitled as a condition of resuming delivery under any Contract between it and the Purchaser to require pre-payment or such security as it may require for the payment of the price .of any further delivery.
Any notice required under a Contract or these terms and conditions may be delivered personally or sent by first class recorded delivery post or airmail or transmitted by telex or facsimile transmission, in each case to the registered office or business address of the party to whom the notice is addressed and any such notice shall be deemed to have been validly served if sent by post on the expiry of forty eight hours from the time of posting and if delivered personally or transmitted by telex or facsimile transmission at the time of delivery or transmission provided that any such telex or facsimile transgression is confirmed by letter sent within twenty four hours of transgression.
a) The Purchaser shall not be entitled to assign the Contract or any benefit there under. The Company shall be entitled to sub-contract the performance of any part of the Contract but shall remain primarily responsible to the Purchaser. The sub-contractor may not again sub-contract the performance of that part of the Contract without first obtaining the prior written approval of the Company.
b) The Contract shall be deemed to have been made in Glasgow, Scotland and shall be governed by and interpreted according to the law of Scotland, except Clause 10, which shall be governed by and interpreted according to the law of Scotland except Clause 10, which shall be governed by the interpreted according to the Law of England.