- Company: Blue Canyon Limited, registered in Scotland (number SC280177).
- Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 3.
- Contract: the contract between the Company 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 the Company.
- Delivery Location: has the meaning given in clause 1.
- Force Majeure Event: an event, circumstance or cause beyond the Company’s reasonable control.
- Goods: the goods (or any part of them) set out in the Order.
- Order: the Customer’s order for the Goods.
- Specification: any specification for the Goods that is agreed by the Customer and the Company.
- A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
- 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.
- A reference to writing or written includes email.
2.0 Basis of contract
- 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 law, 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.
- The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
- An Order which has been accepted by the Company may not be cancelled by the Customer except with the written consent of the Company. The Customer shall indemnify the Company in respect of all loss, including loss of profit, costs, damages and expenses incurred by the Company as a result of any cancellation.
- These Conditions apply in substitution for and to the exclusion of any terms and conditions that the Customer seeks to apply, and 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.
- A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 20 days from its date of issue.
- The Goods are as described in any quotation provided by the Company to the Customer, subject to clause 2.
- Any samples, drawings or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures (including colours and other specifications) are produced for the sole purpose of giving an approximate idea of the Goods. They shall not form part of the Contract nor have any contractual force.
- If the Goods are to be manufactured or any process applied in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification. This clause 3 shall survive termination of the Contract.
- The Company reserves the right to amend the Goods or any Specification if required by any applicable statutory or regulatory requirements.
- The Company 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 Company notifies the Customer that the Goods are ready.
- Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Company 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 Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Company 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. The Company 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 Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- If the Customer fails to take or accept delivery of the Goods within 3 days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00 am on the third day after the day on which the Company notified the Customer that the Goods were ready; and
- the Company may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If 10 days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, the Company may resell or otherwise dispose of part or all of the Goods (including any Goods that carry a Customer’s own, or the Customer’s specified, branding or other distinguishing marks) and, after deducting storage, insurance and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
- If the Company delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them.
- The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- (5.1) Subject to clause 5.2, if:
- the Customer gives notice in writing to the Company as soon as it is discovered that some or all of the Goods are defective or do not comply with the Contract;
- the Company is given a reasonable opportunity of examining such Goods; and
- the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods.
- (5.2) The Company shall not be liable for any defect in the Goods in any of the following events:
- the Customer fails to notify the Company of any alleged defect within 7 days of delivery or deemed delivery;
- the Customer makes any further use of such Goods after giving notice in accordance with clause 1;
- the defect arises because the Customer failed to follow the Company’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;
- the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of the Company;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- (5.3) Except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with any warranty set out in these Conditions or implied by law.
- (5.4) The terms implied in the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- (5.5) These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
6.0 Title and Risk
- The risk in the Goods shall pass to the Customer on completion of delivery.
- Title to the Goods shall not pass to the Customer until the Company receives payment in full (in cleared funds) for the Goods and any other goods that the Company 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.
- Until title to the Goods has passed to the Customer, the Customer shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify the Company immediately if it becomes subject to any of the events listed in clause 1(b) to clause 9.1(d); and
- give the Company such information as the Company may reasonably require from time to time relating to:
- the Goods; and
- the ongoing financial position of the Customer.
- At any time before title to the Goods passes to the Customer, the Company may require the Customer to deliver up all Goods in its possession 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.
- This clause 6 applies whether or not the Goods display the Customer’s own branding or other identification (or any other branding or identification specified by the Customer), and if the Customer shall fail to pay for the Goods in full as described in clause 2 the Company shall be entitled to sell such Goods as principal (and not as agent of the Customer) to any other person and to retain as its own property the whole proceeds of any such sale.
7.0 Price and Payment
- 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 the Company’s published price list in force as at the date of delivery.
- The Company 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:
- any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date, quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
- The price of the Goods:
- excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
- excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
- The Company may invoice the Customer for the Goods on or at any time after the completion of delivery or deemed delivery.
- The Customer shall pay each invoice submitted by the Company:
- within 30 days of the date of the invoice or in accordance with any other terms agreed by the Company and confirmed in writing to the Customer (the date for payment being the due date under the Contract); and
- in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
- If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under the Contract, 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 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
- 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).
- If the Customer does not pay for the Goods in full by the due date, it shall be responsible for any levy or other charges imposed by the Company’s debt collection agency.
8.0 Limitation of liability
- Subject to clause 2, the Company shall not be liable to the Customer for any loss or damage suffered or incurred by the Customer due to any defect in the Goods or for any other reason.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence.
- This clause 8 shall survive termination of the Contract.
- (9.1) Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of being notified in writing to do so;
- 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), obtaining a moratorium, 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;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- (9.2) Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 1(b) to clause 9.1(d), or the Company 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, the Company 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 the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
- (9.5) Termination of the Contract, however arising, 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 the Contract which 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 of the Contract shall remain in full force and effect.
10.0 Force majeure
The Company shall not 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 a Force Majeure Event. In such circumstances the Company shall be entitled to (a) a reasonable extension of the time for performing such obligations or (b) at the Company’s option, terminate the Contract.
- (11.1) Assignment and other dealings.
- The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 the Company.
- (11.2) Entire agreement.
- 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.
- 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- (11.3) Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- (11.4) 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.
- (11.5) Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- (11.6) Notices.
- Any notice 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 email to the address provided by the party receiving the notice.
- Any notice 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 day after posting or at the time recorded by the delivery service; and
- if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume (meaning 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt).
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- (11.7) 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.
- (11.8) 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.