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1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions 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 Scotland are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
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 Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods as set out in the Customer’s purchase order form, 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 that are agreed in writing by the Customer and KITE.
KITE: Kite Group Ltd 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, 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 faxes and e-mails.
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.
2.2 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.
2.3 The Order shall only be deemed to be accepted at the earlier of: (i) KITE issuing a written acceptance of the Order; and (ii) KITE doing any act consistent with fulfilling the Order at which point the Contract shall come into existence.
2.4 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 which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by KITE and any descriptions or illustrations contained in KITE’s catalogues or brochures are produced 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.
3.1 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 with KITE.
3.2 KITE reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.3 Any Goods offered as ex-stock are subject to remaining unsold.
3.4 The Customer warrants that any materials, documentation, drawings
3.5 The Customer shall indemnify KITE 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 actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods resulting from the use of any specifications, materials and drawings provided by the Customer.
4.1 KITE shall ensure 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), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) If KITE requires the Customer to return any packaging materials to KITE, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as KITE shall reasonably request. Returns of packaging materials shall be at KITE’s expense.
4.2 KITE shall 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.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.4 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 that is caused by a Force Majeure Event, the acts or omissions of a third party, or the Customer’s failure to provide KITE with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 KITE will contact the Customer no less than five business days in advance of any quoted delivery date in the event that the Goods will not be delivered on the quoted delivery date and the Customer will use best endeavours to mitigate any loss incurred by it in relation to the change in the quoted delivery date.
4.6 If KITE fails to 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 available, less the price of the Goods. KITE shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide KITE with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to accept delivery of the Goods within 3 Business Days of KITE notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event 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).
4.8 If 10 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.
4.9 KITE may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 KITE warrants that on delivery, 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.
5.2 Subject to clause 5.3, 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 5.1 within 7 days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within 48 hours after discovery of the defect or failure;
(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,
KITE shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods less a charge for handling and restocking at 25% of the price of the Goods.
5.3 KITE shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) The Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) The defect arises because the Customer failed to follow KITE’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) The defect arises as a result of KITE following any drawing, design or Specification supplied by the Customer;
(d) The Customer alters or repairs such Goods without the written consent of KITE;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) The Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, KITE shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by KITE.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 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.
6.3 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;
(b) Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as KITE’s property;
(c) Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) Notify KITE immediately if it becomes subject to any of the events listed in clause 8.2; and
(f) Give KITE such information relating to the Goods as KITE may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, 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.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in KITE’s published price list in force as at the date of delivery.
7.2 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 that is due to:
(a) any factor beyond KITE’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) Any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) Any delay caused by any instructions of the Customer or failure of the Customer to give KITE adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods 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 supply of the Goods.
7.5 KITE may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds within 20 Business 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.
7.7 If the Customer fails to make 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 shall accrue 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.
7.8 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 shall not be entitled to 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.
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, 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 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.
8.2 For the purposes of clause 8.1, 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.
8.3 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.
9. LIMITATION OF LIABILITY
9.1 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;
(d) Defective products under the Consumer Protection Act 1987; or
(e) Any matter in respect of which it would be unlawful for KITE to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) KITE shall under no 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 connection with the Contract; and
(b) KITE’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
10. FORCE MAJEURE
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 a Force Majeure Event. A Force Majeure Event 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.
11.1 Assignation and subcontracting
(a) KITE may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(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 the prior written consent of KITE.
(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, fax 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 11.2(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 fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(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.
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.
11.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
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.
11.7 Governing law and jurisdiction
The Contract, and any dispute or claim arising out of or in connection 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 exclusive jurisdiction of the courts of Scotland.