Terms and Conditions-Scotengineering
1.1 In these Conditions:
"Buyer" means the person who accepts a
quotation of the Seller for the sale of the Goods or whose order
for the Goods is accepted by the Seller.
"Goods" means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods.
"Conditions" means the standard terms
and conditions of sale set out in this document and (unless the
context otherwise requires) includes any special terms and
conditions agreed in writing between the Buyer and the Seller.
"Contract" means the contract for the
purchase and sale of the Goods.
"Writing" includes letter, cable,
facsimile transmission, email and comparable means of
communication.
1.2 Any reference in these Conditions
to any provision of a statute shall be construed as a reference to
that provision as amended, re-enacted or extended at the relevant
time.
1.3 The headings in these Conditions are for
convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the
Buyer shall purchase the Goods in accordance with any written
quotation of the Seller which is accepted by the Buyer, or any
written order of the Buyer which is accepted by the Seller,
subject in either case to these Conditions which shall govern the
Contract to the exclusion of any other terms and conditions
subject to which any such quotation is accepted or purported to be
accepted, or any such order is made or purported to be made, by
the Buyer.
2.2 No variation to these Conditions shall be
binding unless agreed in Writing between the authorised
representatives of the Buyer and the Seller.
2.3 The
Seller's employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the
Seller in Writing. In entering into the Contract, the Buyer
acknowledges that it does not rely on, and waives any claim for
breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its
employees or agents to the Buyer or its employees or agents as to
the storage, application or use of the Goods which is not
confirmed in Writing by the Seller is followed or acted upon
entirely at the Buyer's own risk, and accordingly the Seller shall
not be liable for any such advice or recommendation which is not
so confirmed.
2.5 Any typographical, clerical or other
error or omission in any sales literature, quotation, price list,
acceptance of offer, invoice or other document or information
issued by the Seller shall be subject to correction without any
liability on the part of the Seller
3. Orders and specifications
3.1 No order submitted by the Buyer
shall be deemed to be accepted by the Seller unless and until
confirmed by the Seller's authorised representative.
3.2
The Buyer shall be responsible to the Seller for ensuring the
accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer and for giving the Seller
any necessary information relating to the Goods within a
sufficient time to enable the Seller to perform the Contract in
accordance with its terms.
3.3 The quantity, quality and
description of and any specification for the Goods shall be those
set out in the Seller's quotation (if accepted by the Buyer) or
the Buyer's order (if accepted by the Seller).
3.4 If the
Goods are to be manufactured or any process is to be applied to
the Goods by the Seller in accordance with a specification
submitted by the Buyer the Buyer shall indemnify the Seller
against all loss damages, costs and expenses awarded against or
incurred by the Seller in connection with or paid or agreed to be
paid by the Seller in settlement of any claim of infringement of
any patent, copyright, design, trade mark or other industrial or
intellectual property rights of any other person which results
from the Seller's use of the Buyer's specification.
3.5 The
Seller reserves the right to make any changes in the specification
of the Goods which are required to conform with any applicable
safety or other statutory requirements or, where the Goods are to
be supplied to the Seller's specification, which do not materially
affect their quality or performance.
3.6 No order which has
been accepted by the Seller may be cancelled by the Buyer except
with the agreement in Writing of the Seller and the Buyer shall
indemnify the Seller in full against all loss (including loss of
profit) costs (including the cost of all labour and materials
used), damages, charges and expenses incurred by the Seller as a
result of any cancellation. However, from the date of the order, a
14 day cooling off period will be allowed during which
cancellations or reducing the order will be accepted by the seller
without penalty. Without prejudice to the generality of the
foregoing, should the Buyer purport without the agreement in
Writing of the Seller to cancel any order which has been accepted
by the Seller or refuse to accept delivery of any of the Goods
such action shall constitute a breach of the agreement and, at the
option of the Seller, the Seller shall be entitled to require the
Buyer to pay to the Seller by way of liquidated damages an amount
equivalent to 50% of the invoice value of the order so purported
to be cancelled or 50% of the invoice value of the Goods delivery
of which is so refused (as the case may be). In the event of the
Seller so requiring the Buyer shall pay such amount to the Seller
(without any deduction) within 7 days of receiving from the Seller
written notification of the amount required to be paid. The Seller
and the Buyer hereby agree that such amount represents a genuine
pre-estimate of the monetary value of the loss and damage likely
to be suffered by the Seller as a result of such breach of
agreement on the part of the Buyer. For the avoidance of doubt, in
the event that the Seller opts to require the Buyer to pay
liquidated damages as set out above, and the Buyer duly pays such
liquidated damages, neither party shall have any further liability
to the other in relation to the Goods in respect of which such
liquidated damages are paid.
4. Price of the goods
4.1 The price of the Goods shall be
the Seller's quoted price or, where no price has been quoted (or a
quoted price is no longer valid), the price listed in the Seller's
published price list current at the date of acceptance of the
order. All prices quoted are valid
for 30 days only or such lesser period as shall be stated by the
Seller on the face of the relevant quotation or until earlier
acceptance by the Buyer, after which time they may be altered by
the Seller without giving notice to the Buyer.
4.2 The
Seller reserves the right by giving notice to the Buyer at any
time before delivery to increase the price of the Goods to reflect
any increase in the cost to the Seller which is due to any factor
beyond the control of the Seller (such as, without limitation, any
foreign exchange fluctuation, currency regulation, alteration of
duties, significant increase in the costs of labour, materials or
other costs of manufacture)or to 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.
4.3 Except as otherwise stated under the
terms of any quotation or in any price list of the Seller, and
unless otherwise agreed in Writing between the Buyer and the
Seller, all prices are given by the Seller are exclusive of
carriage charges.
4.4 The price is exclusive of any
applicable value added tax that the Buyer shall be additionally
liable to pay to the Seller.
5. Terms of payment
20% deposit with order for Garage
Doors, the full balance being due on day of installation completion.
50% deposit with order for all Gate
Automation Equipment,
the full balance being due on day of installation completion.
50% deposit with order for any Security or
Fire Shutters, the
full balance being due on day of installation completion.
50%
deposit with order for all Carports and
Patio Roofs, the full balance
being due on day of installation completion.
100% payment
due with order for all supply only equipment.
All goods
will remain the property of
Scotengineering until paid for in full by the
buyer/customer.
5.1 Subject to any special terms
agreed in Writing between the Buyer and the Seller the Seller
shall be entitled to invoice the Buyer for the price of the Goods
at any time before or after delivery of the Goods.
5.2 All
Invoices are payable net by credit card, by
BAC'S Transfer or on a pro-forma basis,
unless credit facilities have been approved, in which case
Invoices are payable net by the end of the month following the
date of the invoice. The Buyer shall pay all invoices without any
other deductions notwithstanding that delivery may not have taken
place and the property in the Goods has not been passed to the
Buyer. The time of payment of the price shall be of the essence of
the Contract. We always issue receipts for any payments.
5.3 If the Buyer fails to make any payment on the
due date then, without prejudice to any other right or remedy
available to the Seller, the Seller shall be entitled to.
5.3.1 cancel the contract or suspend
any further deliveries to the Buyer;
5.3.2 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
5.3.3 charge the Buyer interest
(both before and after any judgment) on the amount unpaid, at the
rate of 4 per cent per annum above HSBC base rate from time to
time, until payment in full is made (a part of a month being
treated as a full month for the purpose of calculating interest).
5.4 In the event that the Seller shall
cancel the contract under the provisions of Clause 5.3.1 above the
Buyer shall indemnify the Seller in full against all loss
(including loss of profit), costs (including the cost of all
labour and materials used), damages, charges and expenses incurred
by the Seller as a result of such cancellation. Without prejudice
to the generality of the foregoing, at the option of the Seller,
the Seller shall be entitled to require the Buyer to pay to the
Seller by way of liquidated damages an amount equivalent to 50% of
the invoice value of the contract so cancelled. In the event of
the Seller so requiring, the Buyer shall pay such amount to the
Seller (without any deduction) within seven days of receiving from
the Seller written notification of the amount required to be paid.
The Seller and the Buyer hereby agree that such amount represents
a genuine pre-estimate of the monetary value of the loss and
damage likely to be suffered by the Seller as a result of such
cancellation.
6. Delivery
6.1 Delivery of the Goods shall be
made by the Buyer collecting the Goods at the Seller's premises at
any time after the Seller has notified the Buyer that the Goods
are ready for collection or, if some other place for delivery is
agreed by the Seller, by the Seller delivering the Goods to that
place.
6.2 Any dates quoted for delivery of the Goods are
approximate only and the Seller shall not be liable for any delay
in delivery of the Goods howsoever caused. Time for delivery shall
not be of the essence unless previously agreed by the Seller in
writing. The Goods may be delivered by the Seller in advance of
the quoted delivery date upon giving reasonable notice to the
Buyer. The Seller shall be entitled to make part delivery of the
Goods at any time.
6.3 Where the Goods are delivered in
instalments, each delivery shall constitute a separate contract
and failure by the Seller to deliver any one or more of the
instalments in accordance with these Conditions or any claim by
the Buyer in respect of any one or more instalments shall not
entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods 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 Seller's liability shall be limited to the excess (if any) of
the cost to the Buyer (in the cheapest available market) of
similar goods to replace those not delivered over the price of the
Goods.
6.5 If the Buyer fails to take delivery of the Goods
or fails to give 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 prejudice to any other right or remedy available to
the Seller, the Seller may:
6.5.1 store the Goods until actual
delivery and charge the Buyer for the reasonable costs (including
insurance) of storage; or
6.5.2 sell the Goods at the best
price readily obtainable and (after deducting all reasonable
storage and selling expenses) account to the Buyer for the excess
over the price under the Contract or charge the Buyer for any
shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the
Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be
delivered at the Seller's premises, at the time when the Seller
notifies the Buyer that the Goods are available for collection: or
7.1.2 in the case of Goods to be delivered otherwise than at the
Seller's premises, at the time of delivery or, if the Buyer
wrongfully fails to take delivery of the Goods, the time when the
Seller has tendered delivered of the Goods
7.2 Notwithstanding delivery and the
passing of risk in the Goods, or any other provision of these
Conditions, the property in the Goods shall not pass to the Buyer
until the Seller has received in cash or cleared funds payment in
full of the price of the Goods and payment in full of all sums due
from the Buyer to the Seller whether under the Contract or by
virtue of any other liability of the Buyer to the Seller.
7.3 Until such time as the property in the Goods passes to the
Buyer, the Buyer shall hold the Goods as the Seller's fiduciary
agent and bailee and shall keep the Goods separate from those of
the Buyer and third parties and properly stored protected and
insured and identified as the Seller's property. Until that time
the Buyer shall be entitled to resell or use the Goods in the
ordinary course of its business, but shall account to the Seller
for such part of the proceeds of sale or otherwise of the Goods,
whether tangible or intangible, including insurance proceeds, as
is equivalent to the invoice value of the Goods and shall keep all
such proceeds separate from any moneys or property of the Buyer
and third parties and, in the case of tangible proceeds, properly
stored, protected and insured
7.4 Until such time as the
property in the Goods passes to the Buyer (and provided the Goods
are still in existence and have not been resold) the Seller shall
be entitled at any time to require the Buyer to deliver up the
Goods to the Seller and, if the Buyer fails to do so forthwith, to
enter upon any premises of the Buyer or any third party where the
Goods are stored and repossess the Goods.
7.5 The Buyer
shall not be entitled to pledge or in any way charge by way of
security for any indebtedness any of the Goods which remain the
property of the Seller but if the Buyer does so all moneys owing
by the Buyer to the Seller shall (without prejudice to any other
right or remedy of the Seller) become due and payable.
7.6
For the avoidance of doubt, nothing contained in this Clause 7
shall entitle the Buyer to return any of the Goods to the Seller
save as expressly provided in these terms and conditions or as
expressly agreed in writing between the Seller and the Buyer.
8. Warranties and liability
8.1 Subject to the conditions set out
below the Seller warrants that the Goods will correspond with
their specification subject to such tolerances as are reasonable
and as are normally accepted in the trade and will be free from
defects in material and workmanship at the time of delivery.
8.2 The above warranty is given by the Seller subject to the
following conditions:
8.2.1 the Seller shall be under no
liability in respect of any defect in the Goods arising from any
drawing, design or specification supplied by the Buyer:
8.2.2
the Seller shall be under no liability in respect of any defect
arising from fair wear and tear, willful damage, negligence,
abnormal working conditions, failure to follow the Seller's
instructions (whether oral or in writing), misuse or alternation
or repair of the Goods without the Seller's approval.
8.2.3 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.
8.2.4
the above warranty does not extend to Goods 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.
8.3 Subject as expressly provided in
these Conditions, and except where the Goods are sold to a person
dealing as a consumer (within the meaning of the Unfair Contract
Terms Act 1977), all warranties, conditions or other terms implied
by statute or common law are excluded to the fullest extent
permitted by law.
8.4 Where the Goods are sold under a
consumer transaction (as defined by the Consumer Transactions
(Restrictions on Statements) Order 1976 the statutory rights of
the Buyer are not affected by these Conditions.
8.5 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 30 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. If delivery is not refused, and the Buyer
does not notify the Seller accordingly, 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.
8.6 Any claim by the Buyer which is
based on short delivery or non-delivery shall be notified to the
Seller in Writing (in the case of short delivery) within 7 days of
delivery and (in the case of non-delivery) within 30 days of
receipt by the Buyer of the Seller's Invoice for the goods which
the Buyer claims have not been delivered. If the Buyer does not
notify the Seller accordingly the Buyer shall not be entitled to
reject any goods that have been delivered and the Seller shall
have no liability for such short delivery or non-delivery.
8.7 Where any valid claim in respect of any of the Goods which is
based on any 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 shall be entitled to
replace the Goods or (refund to the Buyer the price of the Goods)
(or a proportionate part of the price), but the Seller shall have
no further liability to the Buyer.
8.8 Except in respect of
death or personal injury caused by the Seller's negligence, the
Seller shall not be liable to the Buyer by reason of any
representation, or any implied warranty, condition or other term,
or any duty at common law, or under the express terms of the
Contract for any consequential loss or damage (whether for loss of
profit or otherwise) costs, expenses or other claims for
consequential compensation whatsoever(and whether caused by the
negligence of the Seller, its employees or agents or otherwise)
which arise out of or in connection with the supply of the Goods
or their use or resale by the Buyer, except as expressly provided
in these Conditions.
8.9 The Seller shall not be liable to
the Buyer or be deemed to be in breach of the 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 prejudice to the generality of the foregoing, the
following shall be regarded as causes beyond the Seller's
reasonable control:
8.9.1 Act of God, explosion, flood,
tempest, fire or accident;
8.9.2 war or threat of war,
sabotage, insurrection, civil disturbance, or requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or
measures of any kind on the part of any governmental,
parliamentary or local authority;
8.9.4 import or export
regulations or embargoes;
8.9.5 strikes, lock-outs or other
industrial actions or trade disputes (whether involving employees
of the Seller or of a third party);
8.9.6 difficulties in
obtaining raw materials labour, fuel, parts or machinery;
8.9.7
power failure or breakdown in machinery.
9. Insolvency of buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary
arrangement with its creditors or becomes subject to an
administration order or (being an individual or firm) becomes
bankrupt or (being a company) goes into liquidation (otherwise
than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is
appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on
business; or
9.1.4 the Seller reasonably apprehends that any of
the events mentioned above is about to occur in relation to the
Buyer and notifies the Buyer accordingly.
9.2 If this clause applies, then,
without prejudice to any other right or remedy available to the
Seller, the Seller shall be entitled to cancel the Contract or
suspend any further deliveries under the Contract without any
liability to the Buyer, and if the Goods have been delivered, but
not paid for, the price shall become immediately due and payable
notwithstanding any previous agreement or arrangement to the
contrary.
10. Data Protection Act 1998
10.1 from time to
time, may make searches of your record at credit reference
agencies where your record with such agencies may include searches
made and information given by other businesses; details of their
searches will be kept by such agencies but will not be seen by
other organisations that may make searches;
10.4 may give
information about you and your indebtedness to the following:
10.4.1 our insurers for
underwriting and claims purposes;
10.4.2 any guarantor or
indemnifier of your or our obligations to enable them to assess
such obligations;
10.4.3
our bankers
or any advisers acting on our behalf;
10.4.4 any business to which your indebtedness
or our arrangements with our company may be transferred – to
facilitate such transfer;
10.6 in the event that they transfer all or any
of their rights and obligations under their agreement with us to a
third party, may transfer information about you to enable the
third part to enforce their rights or comply with the obligations.
10.7 We will provide you with details of our Data Privacy Policy on request,
including a contact telephone number if you want to have details
of the credit reference agencies and other third parties referred
to above from whom we obtain and to whom
we may obtain information about you. You also have a right to receive a copy of
certain information we hold about you if
you apply to us in
writing, however, a fee will be payable.
11.General
11.1 Any notice required or permitted
to be given by either party to the other under these Conditions
shall be in Writing addressed to that other party at its
registered office or principal place of business or such other
address as may at the relevant time have been notified pursuant to
this provision to the party given the notice
11.2 No waiver
by the Seller of any breach of the Contract by the Buyer shall be
considered as a waiver of any subsequent breach of the same or any
other provision.
11.3 If any provision of these Conditions
is held by any competent authority to be invalid or unenforceable
in whole or in part the validity of the other provisions of these
Conditions and the remainder of the provision in question shall
not be affected thereby.
11.4 The contract shall be
governed by the laws of Scotland.