1. CONDITION OF CONTRACT
In these conditions of Sale ‘the Seller’ shall mean Russell Leisure Limited (trading as Russell Play); "the Buyer” shall mean any person, firm, company or other body by whom the Order is made; "the Goods” shall mean the articles or things or item’s described in the Order; "the Services” shall mean the work to be carried out by the Seller for the Buyer; and "the Contract” shall mean the contract for the sale or supply of the Goods and/or Services by the Seller to the Buyer. "The Estimate” shall mean any price list, tender, quotation or estimate as appropriate issued by the Seller.
(a) The right is reserved to withdraw or cancel any Estimate without notice at any time prior to acceptance and any Estimate shall be deemed to be withdrawn if not accepted by the Buyer within 60 days from the date hereof.
(b) The Contract for the sale or supply of the Goods and/or the Services by the Seller to the Buyer shall be concluded when the Estimate shall be met by an unqualified acceptance of that Estimate from the Buyer. The Seller shall not be bound by any terms or conditions other than those set out herein together with any Special Conditions referred to by the Seller all of which shall supersede and prevail over any other terms or conditions stipulated or referred to by the Buyer.
(c) Any variation of the Contract must be instructed in writing by the Buyer and will not be binding on the Seller until accepted by the Seller in writing.
(d) In the event of discrepancies, errors and ambiguities with regards to the specification for the Works, then the buyer shall instruct the Seller in writing to vary Goods and/or Services as necessary to resolve the discrepancy, error and/or ambiguity and the variation shall be valued as per clause 3(a) below. Should the buyer fail to issue the variations within a reasonable time then the Seller may, 7 days after giving notice to the Buyer in writing, carry out any necessary variation which shall be deemed to be a variation by the Buyer and valued as such.
(a) The prices set out in the Estimate may be varied by the Seller to take account of any increase in prices or costs which may occur at any time before the Contract is completed except where the words "fixed price” appear in relation to any price quoted in the Estimate. However any variation by the Buyer in design, quantities, delivery, instalment arrangements, specification, instructions and any suspension of work, will give rise to adjustment of the price to take account of any increase in prices or costs incurred by the Seller.
(b) All prices quoted are strictly net. In addition to the quoted price the Buyer shall pay (i) Carriage and Freight charges (ii) Insurance (iii) Value Added Tax, where applicable, and (iv) the cost to the Seller of carrying out any special test, examination or inspection requested by the Buyer.
(c) Any installation prices quoted are subject to a detailed SITE SURVEY and any alteration to the quoted prices which arise as a result of this survey will be notified in writing by the Seller and agreed with the Buyer all prior to commencement of the works.
(d) Unless stated otherwise within the Estimate, all prices are based upon the site being level and well drained, and that no underground obstructions of any kind will be encountered. Should such obstructions be encountered, this will give rise to adjustment of the price to take account of any increase in prices or costs incurred by the Seller.
(e) The estimate excludes any Main Contractor’s Discount, unless stated. If a 2.5% Main Contractor’s Discount is applicable,
2.563% should be added to the Estimate total.
4. CREDIT CHECK
The Company reserves the right to make use of a Credit Reference Agency who will keep a record of that search.
Unless otherwise agreed in writing, the terms of payment are as follows:-
(i) for Local Authority customers, where the Contract provides for the supply of Goods only, payment shall be due within 30 days after the date of the Seller's invoice, which will be issued on dispatch of the Goods from the Seller's premises. For all other customers, 25% of the Contract value is due on receipt of the customer order. A further 25% is due prior to the date of delivery of the equipment, with the balance payable 30 days after delivery. Payment will be requested in advance for all spares orders and in certain circumstances where the Seller has concerns over giving credit to the Buyer.
(ii) for Local Authority customers, where the Contract provides for the supply of Goods and Services, payment shall be due within 30 days of the date of Practical Completion. Practical Completion is the point where the Contract is completed subject to snagging and in certain cases, a post installation inspection. For all other customers, 25% of the Contract value is due on receipt of the customer order. A further 25% is due prior to the date of delivery of the equipment, with the balance payable 30 days after Practical Completion.
(iii) where the Seller is unable to complete the works or sections thereof due to weather or other circumstances beyond the control of the Seller including those circumstances detailed within clause 15 (a) of these conditions, then the Seller shall be entitled to payment for the works carried out up to that date as per clause 4 (ii) above.
The Seller shall have the right to charge interest on all sums overdue for payment in terms of the contract at the rate per month of 4% above Royal Bank of Scotland PLC Base Rate from time to time.
The time for delivery whether expressly stated or not shall not be or be deemed to be of the essence of the Contract. In no circumstances shall the Seller be liable to compensate the Buyer for non-delivery or late delivery of the Goods or any of them and any such circumstance shall not render the Seller in breach of contract and shall not entitle the Buyer to rescind the contract.
7. FAILURE TO TAKE DELIVERY
Should the Buyer fail to take delivery of the Goods on the date or dates specified in the contract of which these conditions form part, the Seller, at its option, reserves the following rights:
(a) The Seller may treat the contract, or the balance of the contract as repudiated and recover from the Buyer by way of damages any loss or expense which the Seller may suffer or incur as a result of the Buyer’s default.
(b) The Goods may be invoiced to the Buyer in accordance with the payment terms specified in paragraph 4 hereof.
(c) The Goods may be held by the Seller for the Buyer and the Seller shall have the right to charge interest at the rate per month of 4% above Royal Bank of Scotland PLC base rate from time to time on the price of the Goods held and storage may be charged to the Buyer.
(d) After giving reasonable written notice, the Seller may treat as repudiated any other outstanding contracts between the
Seller and Buyer.
8. EXAMINATION OF THE GOODS
The Buyer shall inspect the Goods immediately on delivery thereof and shall within 7 days from such delivery give notice to the Seller of any matter, or thing by reason whereof the Buyer may allege that the Goods are damaged, or are not in accordance with the contract, or are defective in materials or workmanship.
9. PASSING OF PROPERTY
The property in the Goods shall not pass to the Buyer until the whole of the price for the Goods and all other sums due by the
Buyer to the Seller have been received by the Seller.
Notwithstanding the foregoing, the risk of damage to or destruction of the Goods shall pass to the Buyer at the time of delivery to the Buyer’s premises or site.
10. TECHNICAL DATA
All information contained in the Seller’s catalogues, sales manuals, technical data sheets or given by any of the Seller’s employees, whether verbally or in writing, is intended to be and may be construed only as of a generally informative nature and the foregoing shall not form any part of or be incorporated in any way into the Contract. It is further acknowledged by the Buyer that such prior information has not been relied upon by the Buyer in entering into this Contract.
It is acknowledged by the Buyer that Robinia products, being a natural material, may not look exactly as reflected in the brochure. The buyer acknowledge the colour will change as the material matures in situ.
11. INDUSTRIAL PROPERTY RIGHTS
(a) All drawings, specifications or other technical data provided by the Seller in connection with the contract and all other material of similar nature supplied for any purpose whatsoever shall remain the property of the Seller and shall be treated as confidential by the Buyer.
(b) All patents, copyright and any other intellectual property rights in any drawings, specifications, technical data, models, or other property used by the Seller in connection with the contract and any such rights in the design of the Goods provided by the Seller shall be and shall remain the sole property of the Seller.
12. SELLER’S WARRANTY AND LIABILITY FOR DEFECTS
(a) Where any of the Goods supplied by the Seller to the Buyer are found by the Buyer within twelve calendar months after delivery or such any other time as previously agreed by the Seller, to be defective in material or workmanship, the Buyer shall notify the Seller of such defect within 10 days of discovery of such defect or failure to conform and the Seller shall either repair such Goods or free of charge replace such Goods or refund to the Buyer the price thereof, but in no circumstances whatsoever shall the liability of the Seller in connection with any such Goods exceed the cost of the replacement thereof.
The liability of the Seller under this Clause is conditional upon the Buyer (i) adhering strictly to the terms of payment provided for in the Contract (ii) bringing the defect in the Goods to the attention of the Seller within the period of 10 days and (iii) not attempting to repair or allowing anyone not previously approved by the Seller to repair any part or parts of the Goods.
There shall be no liability on the Seller in terms of this Clause for any defects which in the opinion of the Seller, occur as a result of:-
(i) misuse of the Goods or any negligence on the part of any person other than the Seller; (ii) loss or theft of the Goods or any part of them;
(iii) damage from any cause other than negligence by the Seller or the Seller’s personnel; and
(iv) unauthorised modification, alteration or repair of any of the Goods.
(v) The Seller accepts no responsibility in any circumstances for any direct, indirect or consequential loss or damage, howsoever arising, which the buyer may sustain in connection with Goods supplied under the contract.
13. SUB CONTRACTORS
The Seller reserves the right at its sole discretion to assign or sub-contract the whole or any part of the work involved in the supply of the Goods or the Services.
14. ACCESS TO SITE
(a) The Buyer will ensure that at all times the Seller has free access to the site where the Goods are to be delivered or the Services performed. The Buyer will ensure that at all times the site is in a condition in which the Seller can deliver the Goods or carry out the services.
(b) In the event of the Seller being unable to obtain access to the site, or the site not being in a condition in which the Seller can deliver the Goods or carry out the services, then the Buyer shall be liable for all of the costs of the Seller incurred in any abortive visits to the site in addition to any extra visits to the site required to deliver the Goods or perform the services.
(c) The Buyer is repsonsible for checking for any underground services within the site. The Buyer is repsonsible for advising the Seller of any underground services within the site. Any damage to said services will only be the liability of the Seller, if the Buyer had made the Seller aware of them in writing, in advance of any works being carried out.
15. SUSPENSION OR CANCELLATION OF DELIVERIES
If the Buyer shall fail to make payment to the Seller within 28 days of the due date of any sum payable under the contract, or shall be declared bankrupt or shall grant a Trust Deed for behoof of his creditors, or being a body corporate shall have a Receiver, Provisional Liquidator or an Official Liquidator, Administrator or Manager appointed to it or if any order shall be made or any resolution passed for winding up the Buyer, then the Seller may, without prejudice to its other rights, either suspend or cancel deliveries or further deliveries of the Goods supply or further supply of the services and charge the Buyer in respect of any loss sustained thereby.
16. FORCE MAJEURE
(a) If performance of the Contract shall be delayed by any circumstances or conditions beyond the control of the Seller including (but without prejudice to the generality of the foregoing) any war, industrial dispute, strike, lock out, riot, malicious damage, fire, storm, flood, Act of God, accident, non-availability or shortage of material or labour, failure by any sub- contractor or supplier to perform, failure of production equipment, any statute, rule, byelaw, order, regulation or requisition made or issued by any government department, local or other duly constituted authority, then the Seller shall have the right to suspend further performance of the Contract until such time as the cause of the delay shall no longer be present.
(b) If performance of the Contract by the Seller shall be prevented by any such circumstances or conditions beyond the control of the Seller, then the Seller shall have the right to be discharged from further performance of and liability under the Contract. If the Seller exercises such right the Buyer shall thereupon pay all sums due in terms of the Contract less a reasonable allowance for such part of the Contract as has not then been performed by the Seller.
17. SEPARATE AND SEVERABLE
Each Clause and Sub-Clause in these Conditions of Sale is separate and severable and enforceable accordingly.
18. RULING LAW
The Contract of which these Terms and Conditions form part of, shall be governed by and construed in all respects, in accordance with the Law of England and shall be subject to the non-exclusive jurisdiction of the English Courts.
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