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Terms & Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 In these terms and conditions, effective on and from 1 June 2024, the following words will have the meaning set out next to them:


Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between KITE and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from KITE.
Force Majeure: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for Goods as set out in the Customer’s purchase order form, or the Customer’s written acceptance of KITE’s quotation or overleaf, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings the Customer and KITE agree in writing.
KITE: Kite Group Ltd registered in Scotland no. SC511445 of 19 Bankhead Drive, Sighthill Industrial Estate, Edinburgh, EH11 4DW.


1.2 In these Conditions, unless the context otherwise expressly states:


(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);


(b) a reference to a party includes its personal representatives, successors or permitted assigns;


(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, and the like, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;


(e) a reference to writing or written includes e-mails but not fax; and


(f) the singular includes the plural and the plural includes the singular

 

2. BASIS OF CONTRACT

 

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.


2.2 The Order shall only be deemed accepted at the earlier of:


(a) KITE issuing a written acceptance of the Order; or


(b) KITE doing any act consistent with fulfilling the Order;
at which point the Contract shall come into existence.


2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of KITE not set out in the Contract.


2.4 The Customer warrants that the Contract and each Order are made on a business-to-business basis and in contracting and Ordering it is not at any time acting as a consumer.


2.5 Any KITE-produced samples, drawings, descriptive matter, or advertising and any descriptions or illustrations contained in KITE’s catalogues or brochures are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.6 A quotation for the Goods given by KITE shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.

3. GOODS

3.1 The Goods are described in KITE’s catalogue (as updated from time to time) as modified by any applicable Specification or in accordance with any specification, drawings and/or documentation supplied by the Customer and agreed in writing with KITE.

3.2 KITE may amend the Specification if any applicable statutory or regulatory requirements so require.


3.3 Goods that KITE offers as ex-stock are subject to availability.


3.4 The Customer warrants that any materials, documentation, drawings and the like that it provides to KITE are accurate, complete and fit for purpose. The Customer acknowledges that KITE relies on them in providing the Goods and any advice associated with the Goods and their installation, use, handling and storage.


3.5 The Customer acknowledges that KITE does not advise and has not advised in relation to the Goods’ suitability for any particular purpose that the Customer intends, and the Customer accepts all liability if the Goods do not perform as the Customer intends (subject to clause 6).


3.6 The Customer shall indemnify and keep indemnified KITE, and hold KITE harmless against all liabilities, costs, expenses, damages and losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by KITE arising out of or in connection with any claim made against the Supplier for actually or allegedly infringing a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods resulting from using any Customer-provided specifications, materials and/or drawings.

 

4. SHIPPING


4.1 Subject to clause 4.6, KITE shall deliver goods to the address stated at the time of ordering, using a third-party courier service (Royal Mail for small lightweight Orders).


4.2 Standard delivery is between 7.30am to 6.00pm Monday to Friday (these times are estimates; delivery may be earlier or later).


4.3 If the Goods are in stock, KITE aims (but does not undertake or guarantee) to deliver at the earliest opportunity. Normal delivery is two to three Business Days (estimate only). In particular, length and weight of some Goods delivery may slow delivery, and timescales are usually longer for delivery to the Highlands and Islands.


4.4 The Customer accepts that KITE has no liability to compensate the Customer for costs or losses of any kind whatever incurred as a result of delayed delivery (for example: fitting services or wasted contractor time).


4.5 KITE calculates shipping rates based on the Order total weight. KITE may apply additional delivery charges on any Orders delivered to an address outside the UK (and within the UK, to AB, BT, IV, KW, PO31-PO41, and ZE postcodes, the Channel Islands, the Isles of Scilly or the Isle of Man).


4.6 The Customer may collect Goods in an Order without delivery charge at 19 Bankhead Drive, Sighthill Industrial Estate Edinburgh EH11 4DW during the times stated on the contact web page, provided that the Customer:


(a) has first confirmed by telephone (0131 333 4413) (or ordered online appropriately) that the Goods are ready for collection and agreed a collection time; and


(b) brings and on request provides:


(i) identification and/or the card used for purchasing the Goods; and


(ii) a copy of the Order or the order number.


The Customer who collects goods themselves accepts that KITE will not carry out any cutting until the Customer has paid for the Goods.

5. DELIVERY

5.1 KITE shall use reasonable commercial endeavours to procure that:


(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Order is being delivered by installments, the outstanding balance of Goods remaining to be delivered; and


(b) if KITE requires the Customer to return any packaging materials to KITE, the delivery note so states. The Customer shall make any such packaging materials available for collection at such times as KITE shall reasonably request. Returning packaging materials shall be at KITE’s expense.

5.2 KITE shall use its reasonable commercial endeavours to deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after KITE notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.


5.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. KITE shall not be liable for any delay in delivery of the Goods caused by Force Majeure, the acts or omissions of a third party, or the Customer’s not providing KITE with adequate delivery instructions or other instructions relevant to the Goods’ supply.


5.4 KITE will aim to contact the Customer at least five Business Days before any quoted delivery date if the Goods will not be delivered on the quoted delivery date, and the Customer will then use its best endeavours to mitigate any loss incurred by it in relation to the change in the quoted delivery date.


5.5 If KITE does not deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market reasonably available, less the price of the Goods. KITE shall have no liability for not delivering the Goods to the extent caused by Force Majeure or the Customer’s not providing KITE with adequate delivery instructions or other instructions relevant to the Goods’ supply.


5.6 If the Customer does not accept delivery of the Goods within three Business Days of KITE notifying the Customer that the Goods are ready, then, except where such is caused by Force Majeure or KITE’s failure to comply with its obligations under the Contract:


(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which KITE notified the Customer that the Goods were ready; and


(b) KITE shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).


5.7 If ten Business Days after the day on which KITE notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, KITE may resell or otherwise dispose of part or all of the Goods.


5.8 KITE may deliver the Goods by installments, which shall be invoiced and paid for separately.

Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.

6. QUALITY

6.1 KITE warrants that on delivery and for twelve months thereafter, the Goods shall:


(a) conform in all material respects with their description and any applicable Specification; and


(b) be free from material defects in design, material and workmanship.


6.2 Subject to clause 6.3, if:


(a) the Customer gives notice in writing to KITE, that some or all of the Goods do not comply with the warranty set out in clause 6.1 within seven days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within two Business Days after discovering non-compliance; and


(b) KITE is given a reasonable opportunity of examining such Goods; and


(c) the Customer (if asked to do so by KITE) returns such Goods to KITE’s place of business,
then KITE shall, at its option, repair or replace the defective Goods, or refund the defective Goods’ price less a charge for handling and restocking at 25% of the Goods’ price.


6.3 KITE shall not be liable for Goods’ not complying with clause 6.1 if:


(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;


(b) the defect arises:


(i) because the Customer has not followed KITE’s oral or written instructions as to storing, commissioning, installing, handling, using and maintaining the Goods or (if none) good trade or obvious practice regarding the same; and/or


(ii) as a result of KITE following any drawing, design or Specification supplied by the Customer; and/or


(iii) as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; and/or

 

(c) the Customer alters or repairs such Goods without the written consent of KITE; and/or


(d) the Goods differ from the Specification as a result of changes to comply with applicable statutory or regulatory requirements.


6.4 Except as provided in this clause 6, KITE shall have no liability to the Customer in respect of the Goods’ not complying with clause 6.1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.


6.5 These Conditions apply to any repaired or replacement Goods KITE supplies.

7. TITLE AND RISK

7.1 Risk in the Goods shall pass to the Customer on the delivery service referred to clause 4.1 accepting the Goods for shipping or, in the case of a collection in accordance with clause 4.6, the Customer removing the Goods.


7.2 Title to the Goods shall not pass to the Customer until KITE has received payment in full (in cash or cleared funds) for:


(a) the Goods; and


(b) any other goods or services that KITE has supplied to the Customer in respect of which payment has become due.


7.3 Until title to the Goods has passed to the Customer, the Customer shall:


(a) hold the Goods on a fiduciary basis on behalf of KITE; and


(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as KITE’s property; and


(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and


(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and


(e) notify KITE immediately if it becomes subject to any of the events listed in clause 10.2; and


(f) give KITE such information relating to the Goods as KITE may reasonably require from time to time,


but the Customer may resell or use the Goods in its business’ ordinary course

7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any event listed in clause 10.2, or KITE reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy KITE may have, KITE may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

8. CANCELLATIONS & RETURNS


8.1 If the Customer wishes to return Goods, it must do so within 30 calendar days from the date of delivery.

 

8.2 KITE need not accept such returned Goods unless:


(a) the Goods:


(i) are entirely unused and inside the initial, undamaged packaging; and


(ii) are appropriately wrapped and packaged to guarantee safe handling and protection throughout the return shipment; and


(b) the Customer:


(i) provides the proof or receipt of purchase; and


(ii) has contacted KITE quoting the Order reference number and details of the item to be returned on sales@kitegroupltd.com; and


(iii) accepts all shipping expenses for its account; and


(iv) accepts in returning or cancelling any Goods that KITE will apply a 25% handling and re-stocking charge (deducted from credit raised as a result of the return).


8.3 On receiving returned Goods, KITE will inform the Customer of this and the refund or exchange, after inspecting the Goods. If KITE accepts the return, it will begin an exchange or refund to the Customer’s credit card (or original method of payment) for the amount paid, less the handling and re-stocking fee referred to in clause 8.2(b)(iv). The time of the Customer receiving such credit will depend on the policies of the recipient bank or credit card supplier.

9. PRICE AND PAYMENT


9.1 The Goods’ price shall be the price set out in KITE’s quotation, or, if no price is quoted, the price set out in KITE’s published price list in force as at the date of delivery.


9.2 KITE may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods due to any:


(a) factor beyond KITE’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);


(b) Customer request to change the delivery date, quantities or types of Goods ordered, or the Specification; and/or


(c) delay caused by any Customer instructions, or the Customer not giving KITE adequate or accurate information or instructions.


9.3 The Goods’ price is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in accordance with clause 4.


9.4 The Goods’ price shipping is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from KITE, pay to KITE such additional amounts in respect of VAT as are chargeable on the Goods’ supply and shipping.


9.5 If the Customer has an account with KITE, KITE may invoice the Customer for the Goods on or at any time after the completion of delivery.


9.6 The Customer shall pay the invoice in full and in cleared funds within 30 Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by KITE. Time of payment is of the essence.


9.7 If the Customer does not any payment due to KITE under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Royal Bank of Scotland’s base rate from time to time, such interest accruing on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.


9.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer may not assert any credit, set-off or counterclaim against KITE in order to justify withholding payment of any such amount in whole or in part. KITE may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by KITE to the Customer.

10. TERMINATION

10.1 If the Customer becomes subject to any event listed in clause 10.2, or KITE reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to KITE, KITE may cancel or suspend all further deliveries under the Contract and/or under any other contract between the Customer and KITE without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due and owing.


10.2 For the purposes of clause 10.1, the relevant events are the Customer ceases to carry on its activities, becomes unable to pay its debts when they fall due, becomes insolvent or apparently insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily or shall suffer any analogous event under any jurisdiction which it is subject to.


10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

11. LIMITATION OF LIABILITY

11.1 Nothing in these Conditions shall limit or exclude KITE’s liability for:


(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);


(b) fraud or fraudulent misrepresentation;


(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or


(d) any matter in respect of which it would be unlawful for KITE to exclude or restrict liability.

11.2 Subject to clause 11.1:


(a) KITE shall not under any circumstances whatever be liable to the Customer, whether in contract, delict, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connexion with the Contract; and


(b) KITE’s total liability to the Customer in respect of all other losses arising under or in connexion with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not in any circumstances exceed the Goods’ price.

12. FORCE MAJEURE

Subject to the terms of this clause 12, neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by Force Majeure. Force Majeure means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. This clause 12 shall not apply to the Customer’s payment obligations under the Contract.

 

13. GENERAL

(a) Any notice or other communication given to a party under or in connexion with the Contract shall be in writing, addressed to


(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without KITE’s prior written consent

13.2 Notices

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or e-mail.


(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or recorded delivery, at 48 hours after sending (as shown by the sender’s receipt); if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.


(c) This clause 13.2 shall not apply to serving proceedings or other documents in any legal action.


13.3 Severance


(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.


(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.


13.4 Waiver

 

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.


13.5 Third party rights


A person not a party to the Contract shall not have any rights under or in connection with it.

13.6 Variation : Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by KITE.

13.7 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connexion with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Scottish law, and the parties irrevocably submit to the Scottish courts’ exclusive jurisdiction.

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