TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS
The customer’s attention is drawn in particular to the provisions of clause 10.
1. INTERPRETATION
1.1 Definitions:
Astrak: Astrak Group Limited incorporated and registered in Scotland with company number SC468615 whose registered office is at Wheatfield Road, Dunnikier Business Park, Kirkcaldy, KY1 3PD together with any group company, any of its subsidiaries or holding companies from time to time, and any subsidiary of any holding company from time to time, including (but not limited to) Astrak UK. Limited (SC460501), the Company’s international entities in France, Germany and Denmark.
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.
Contract: the contract between Astrak 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 Astrak.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) ordered from Astrak.
Interpretation:
(a) 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.
(b) 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.
(c) a reference to writing or written includes emails.
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 An order for the Goods 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 for the Goods and any applicable specification of the Goods are complete and accurate.
2.3 The order for the Goods shall only be deemed to be accepted when Astrak issues an acceptance of the order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by Astrak and any descriptions or illustrations contained in Astrak’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 Any quotation for the Goods given by Astrak shall not constitute an offer.
3. GOODS
Astrak reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. DELIVERY
4.1 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.3 Astrak shall not be liable for: (i) any failure to deliver the Goods; (ii) any delay in delivery of the Goods that is caused by a Force Majeure Event; or (iii) the Customer’s failure to provide Astrak with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5. QUALITY
5.1 Subject to clause 3, Astrak warrants that on delivery and for the warranty period expressed to the Customer at any time before the Contract is entered into (“the warranty period”) the Goods shall:
(a) conform in all material respects with their description; and
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 3, if:
(a) the Customer gives notice in writing to Astrak within the warranty period that some or all of the Goods do not comply with the warranty set out in clause 1;
(b) Astrak is given a reasonable opportunity of examining such Goods; and
(c) such Goods are returned to Astrak’s place of business (at Astrak’s cost),
Astrak shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Astrak shall not be liable for the Goods’ failure to comply with the warranty set out in clause 1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
(b) the defect arises because the Customer failed to follow Astrak’s 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 Astrak following any specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Astrak;
(e) the Customer uses such Goods out with the ordinary course of good trade practice;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(g) the Goods differ from their description 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, Astrak shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.
(a) 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.
(b) These Conditions shall apply to any repaired or replacement Goods supplied by Astrak.
6. RETURN OF GOODS
6.1 Subject to clause 1, Astrak reserves the right to refund the price of Goods in circumstances where there has been no breach of the warranty at clause 5.1 and the Customer has changed their mind in respect of the Goods.
6.2 Subject to clause 3, if:
(a) the Customer gives notice in writing to Astrak within 30 days of the date of delivery of their wish to return to the Goods;
(b) Astrak is given a reasonable opportunity of examining such Goods;
(c) the Customer returns all paperwork, including the order number and return authorisation number; and
(d) such Goods are returned to Astrak’s place of business within 90 days of the date of delivery (at the Customer’s cost),
Astrak shall, at its option, refund the price of the Goods less the ‘re-stocking charge’ set out at clause 6.4 below.
6.3 The Customer shall not be entitled to a refund of the price of Goods in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
(b) the Customer alters or repairs such Goods;
(c) the Customer uses such Goods out with the ordinary course of good trade practice;
(d) the Goods are not in a good or re-saleable condition; or
(e) the Goods differ from their description.
6.4 Astrak is entitled to apply a ‘re-stocking charge’ against the price of the Goods, as follows:
(a) 10% of the price of the Goods returned shall be applied where the Goods are returned within 30 days of the date of delivery; and
(b) 25% of the total price of the Goods returned shall be applied where the Goods are returned between 31 and 90 days of the date of delivery.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until Astrak receives payment in full (in cash or cleared funds) for the Goods and any other goods that Astrak has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) if appropriate, store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Astrak’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods so far as possible;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Astrak immediately if it becomes subject to any of the events listed in clause 1; and
(e) give Astrak such information relating to the Goods as Astrak may require from time to time.
7.4 Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Astrak receives payment for the Goods. However, if the Customer resells the Goods before that time title to the Goods shall pass from Astrak to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 1, then, without limiting any other right or remedy Astrak may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Astrak may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) 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. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price notified to the Customer at the time of acceptance of the order.
8.2 Astrak 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 Astrak’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), or quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Astrak adequate or accurate information or instructions.
8.3 The price of the Goods shall be specified together with any amounts in respect of value added tax (VAT). Any other applicable charges such as transport charges and any costs and charges for packaging and insurance shall also be specified on an invoice.
8.4 Astrak may invoice the Customer for the Goods on or at any time after dispatch of the Goods.
8.5 Except where the Customer holds a credit account with Astrak, payment will be made at the time of ordering the Goods. Where the customer holds a credit account, payment will be due on the last day of the month following the one in which the invoice is dated. All payment dates shall be indicated on each invoice issued to the Customer.
8.6 Payment shall be made to the bank account nominated in writing by Astrak. Time for payment is of the essence.
8.7 If the Customer fails to make any payment due to Astrak under the Contract by the due date for payment, then Astrak reserves the right to charge interest on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Astrak 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 Astrak to the Customer.
9. TERMINATION
9.1 Without limiting its other rights or remedies, Astrak may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 60 days of that party being notified in writing to do so;
(b) the Customer 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in Astrak’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, Astrak may suspend provision of the Goods under the Contract or any other contract between the Customer and Astrak if the Customer becomes subject to any of the events listed in clause 1(a) to clause 9.1(d), or Astrak reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, Astrak 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Astrak all of Astrak’s outstanding unpaid invoices and interest together with any costs and expenses reasonably incurred by Astrak in connection with the collection of payment of such outstanding sums due by the Customer.
9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude Astrak’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 Astrak to exclude or restrict liability.
10.2 Subject to clause 1:
(a) Astrak shall under no circumstances whatsoever be liable to the Customer, whether in contract, delict (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) Astrak’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
11. LIMITED COMPANIES
Where the Customer is a limited company rather than a sole trader or partnership, Astrak will act on the basis that all directors of the limited company are liable jointly and severally for price of the Goods. This applies irrespective of when a director may be appointed to the company. Joint and several liability of the directors of the limited company will apply whilst an invoice is outstanding, and whilst the terms of this agreement apply, as aforementioned. These provisions shall apply mutatis mutandis where the Customer is a limited liability partnership.
12. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 4 weeks written notice to the affected party.
13. GENERAL
13.1 Assignment and other dealings
(a) Astrak may at any time assign, transfer, mortgage, 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, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Astrak.
13.2 Confidentiality
(a) 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 or of any member of the group to which the other party belongs, except as permitted by clause 2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
13.3 Entire agreement
(a) This 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.6 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.
13.7 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 or other next working day delivery service, commercial courier, or email.
(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 7(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, 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.
13.8 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
13.9 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 Scots law.
13.10 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
