B Rae Contracting Limited
Terms and Conditions for the Supply of Goods and Services
1. INTERPRETATION
The following definitions and rules of interpretation apply in these terms and conditions:
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Commencement Date: has the meaning given in clause
2.2. Conditions: these terms and conditions as amended from time to time in accordance with clause 15.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person who purchases the Goods and/or Services from the Supplier.
Delivery Location: has the meaning given in clause 4.3.Facilities: includes the following:-
(a) access to electricity from standard approved sockets;
(b) access to a water supply;
(c) use of the Customer’s toilet and washing facilities; and
(d) sufficient work space.Force Majeure Event: has the meaning given to it in clause 14.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods that is provided in writing by the Supplier in the quotation or otherwise as the case may be.
Order: the Customer's order for the supply of Goods and/or Services or Supplier's quotation, as the case may be.
Services: the services supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer in the quotation or otherwise as the case may be.
Supplier: B. Rae Contracting Limited registered in Scotland with company number SC279942 and having its registered office at 47-49 The Square, Kelso, Roxburghshire, TD5 7HW.
Supplier Materials: has the meaning given in clause 8.1(h).
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body.
(b) A reference to a party includes its representatives, successors and permitted assignees.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.(e) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Supplier’s quotation constitutes an offer by the Supplier to provide Goods and/or Services in accordance with these Conditions and shall be deemed to be accepted when the Customer signs the Supplier’s quotation at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 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.
2.3 Any quotation is only valid for acceptance for a period of 20 Business Days from its date of issue unless extended by the Supplier in writing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Goods are described in the Goods Specification.
3.2 The Supplier reserves the right to amend the Goods Specification if required by supply difficulties or by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 If the Customer is required to return any packaging material to the Supplier, the Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.3 The Supplier 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 the Supplier notifies the Customer that the Goods are ready. If no agreement can be reached, the Goods will be delivered to the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods on the date quoted for delivery, the Supplier and the Customer shall agree a new delivery date (Second Delivery Date). If the Supplier fails to deliver the Goods on the Second Delivery Date, 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. The Supplier 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 the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and the Supplier may charge the Customer for any shortfall below the price of the Goods.
4.7 The Supplier 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.
5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery, the Goods shall:
(a) conform with their description; and
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, the Supplier shall, at its option and in full and final settlement of any liability that it may have to the Customer, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or(e) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier 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 of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE & RISK
6.1 The risk in the Goods shall pass to the Customer on delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.2(b) to clause 12.1(d); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7. SUPPLY OF SERVICES
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, the Facilities, and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services in accordance with the Supplier’s instructions;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws and regulations in place, including health and safety laws; and environmental regulations from the Scottish Environment Protection Agency (SEPA), Environment Agency (EA), and Department For Environment, Food & Rural Affairs (DEFRA).
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
i) inform the Supplier of any dangers or hazards, whether hidden or not, buried pipes, cables or other objects which the Supplier is likely to encounter during the performance of the Services and any plant, fixtures, fittings, equipment, or other items which are fragile or vulnerable to damage and which the Supplier is likely to encounter during the performance of the Services and supply field maps for any land to be worked by the Supplier (if applicable); and
(j) be responsible for the care of all plants and livestock at all times after they have been planted or the Services have been performed.
8.2 In addition to the obligations set out in clause 8.1 and any specific requirements of the Supplier set out in the quotation or the Service Specification:
(a) if Services involve AgBag contracting work, the Customer shall:
(i) monitor the crop and give the Supplier a minimum of 10 Business Days’ notice as to when the Services are likely to commence, taking into account the weather conditions;
(ii) provide a sufficient area which is hard and level to lay the AgBags, which area must be a minimum of 10 metres from a watercourse;
(iii) ensure the crop is of a dry matter content so that it will not cause any unnecessary effluent run off or excess build-up of effluent in the AgBag;
(iv) ensure the crop is cut short enough and in a condition that it can be compacted in the AgBag;
(v) ensure there is no soil or any other contamination in the processed crop;
(vi) provide a sufficient quantity of red diesel for the AgBag machine and the tractor (if necessary to tow the AgBag machine to the site) and the Customer agrees that the Supplier may charge the Customer for the cost of any shortfall in red diesel at the market price plus £0.20 per litre; and
(vii) maintain the AgBags after completion of the Services, including (without limitation) managing any bird or rodent damage, managing any effluent build up and ensuring the AgBags are kept in good condition to prevent possible crop spoilage and environmental pollution.
(b) if Services involve general maintenance work, the Customer shall:
(i) [any specific Customer responsibilities for general maintenance work?]; and
(c) if the Services involve winter maintenance works, the Customer shall:
(i) [any specific Customer responsibilities for winter maintenance work?].
8.3 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including (without limitation) the obligations set out in clause 8.1 and clause 8.2 (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations; and
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.3.9.
9. Charges and Payment
9.1 The price for Goods shall be the price set out in the quotation provided by the Supplier to the Customer.
9.2 The charges for Services shall be the charges:-
(a) set out in the quotation provided by the Supplier;
(b) calculated in accordance with the pricing structure set out in the quotation provided by the Supplier; or
(c) otherwise agreed in writing between the Supplier and the Customer as the case may be.
9.3 The Supplier reserves the right to:
(a) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs; and
(b) charge the Customer for the cost of any materials in connection with the Services.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
9.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 12 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 5% a year above the base rate of Bank Of England from time to time.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. CONFIDENTIALITY
10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause
10.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11. LIMITATION OF LIABILITY
11.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2B or section 11B of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
11.2 Subject to clause 11.1, the Supplier shall not be liable to the Customer, whether in contract, delict (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of or damage to goodwill; and
(e) any indirect or consequential loss.
11.3 Subject to clause 11.1, in connection with the Services, the Supplier shall not be liable to the Customer for any breach of or liability under any or any applicable law, common law, regulation, code of practice or guidance which has as a purpose or effects the protection or restoration or remediation of or prevention of harm to the environment
11.4 Subject to clause 11.1, the Supplier's total liability to the Customer, whether in contract, delict or tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the total charges paid under the Contract.
11.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.6 This clause 11 shall survive termination of the Contract.
12. TERMINATION
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than three months' written notice.
12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 20 Business Days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services and/or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment or if the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and/or Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall return all of the Supplier Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
13.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
14. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control including (without limitation):
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) collapse of buildings, fire, explosion or accident;
(c) terrorist attack, civil war, civil commotion or riots or war;
(d) chemical or biological contamination;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) interruption or failure of utility service;
(Force Majeure Event).
15. GENERAL
15.1 Assignation and other dealings.
(a) The Supplier may at any time assign, subcontract, delegate or deal in any other manner with any or all of its rights and/or obligations under the Contract without reference to or the consent or approval of the Customer.
(b) The Customer shall not assign, transfer, subcontract or deal in any other manner with any of its rights and/or obligations under the Contract without the prior written consent of the Supplier.
15.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address nominated by that party.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 No Partnership or Agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.6 Entire Agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party confirms that, without prejudice to any liability for fraud or fraudulent misrepresentation, it has not relied on any representation or warranty or undertaking (express or implied) which is not contained in these Conditions and to the extent that it did, hereby fully, effectively and irrevocably waives any and all rights and remedies that it may have (howsoever arising) in respect of such representation or warranty or undertaking.
15.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties.
15.8 Governing Law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Scotland.
15.9 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
