TERMS AND CONDITONS OF SUPPLY
- Defined Terms
1.1 In this Agreement the following words shall have the following meanings:
“Agreement” means (i) the Quotation and (ii) the Terms and Conditions;
“Care Manual” means any car manual provided to the Customer in respect of any of the Goods by the company;
“Company” means ChillMatic
“Customer” means the individual, firm or company to whom or which the Quotation is addressed;
“Delivery Site” means a specified address in the UK to be agreed in writing between the Company and the Customer [(or such other address in the UK notified by the Customer to the Company in accordance with clause 5.2 below)];
“Goods” means the items specified as Goods in the Quotation;
“Manufacturer’s Guarantee” means any guarantee given by the manufacturer of any Goods;
“Quotation” means the e-mail, fax or letter from the Company to the Customer to which these Terms and Conditions are attached;
“Price” the amount payable for the Goods as specified in the Quotation;
“Terms and Conditions” means the terms and conditions of supply set out herein; and
“Working Days” means a day (other than a Saturday or Sunday) on which clearing banks are open for business in Scotland.
1.2 In this Agreement, (i) the singular shall imply the plural and vice-versa and (ii) headings are for convenience only and shall not affect the interpretation of this Agreement
- Basis of Supply
2.1 The Company shall supply the Goods to the Customer in accordance with the Agreement.
2.2 The Agreement shall commence on the date of receipt by the Company of confirmation from the customer that the Customer wishes to proceed with the order of the Goods on the basis of the Agreement or the first date of acceptance of delivery of any of the Goods by the Customer (whichever is the earlier).
2.3 Unless otherwise agreed in writing between the Company and the Customer, the Quotation shall be valid from the date of its issue to the Customer for: (i) 30 days in respect of any service parts which form part of the Goods; and (ii) 60 days in respect of any plant and equipment which form part of the Goods.
- Guarantee Subject to clause 8.3 below, the Company’s liability in respect of any defect in or failure of the Goods supplied is limited to the liability of the manufacturer under any guarantee (“the Guarantee”) given by the manufacturer in respect of the Goods and is subject to; (i) the Customer having complied fully with the Care Manual and the manufacturers recommended service intervals and (ii) the manufacturer accepting its liability under the Guarantee.
4.1 Subject to any terms or conditions of payments set out in the Quotation, the Price shall be due by the Customer to the Company upon the first date of delivery of any of the Goods.
4.2 The Company shall be entitled to conduct, or arrange for a third party to conduct, a credit check on any Customer at any time prior to delivery and shall be entitled to withhold performance under this Agreement or terminate this Agreement without the Company incurring any liability to the Customer in the event that such a credit check discloses any information which in the opinion of the Company (acting reasonably) raises concerns regarding the ability of the Customer to pay any sums which will or may be due by the Customer under this Agreement.
4.3 All sums payable under the Agreement shall become due and payable immediately upon the happening of any of the following events: bankruptcy, winding –up or insolvency proceedings are brought in respect of the Customer or (without limitation) if the Customer does not make any payment under a judgement of a Court on time, or makes an arrangement with or in respect of any of its creditors, or has an administrative or other receiver or a manager of the whole or any part of its property appointed or goes into liquidation; or has a petition presented for its sequestration or is sequestrated or an interim trustee or a trustee in bankruptcy is appointed in respect of its assets; or any distress, diligence or execution is levied on any of the Customer’s goods; or an administrator is appointed to the Customer; or there occurs in any territory any event which corresponds to that territory to any of the events specified under this clause 4.5
4.4 In the event of non-payment by the Customer of any sums due by the Customer under this Agreement, the Company also reserves the right to:
(i) terminate or suspend the Agreement; and
(ii) charge interest upon the outstanding amount at a rate of [eight] per cent per annum above the base rate from time to time of the [Bank of Scotland], running said interest from the due date for payment of the relevant sum until payment of the outstanding amount together with any interest due thereon is made in full to the Company (both Parties agreeing that this rate of interest is in all respects fair and reasonable).
- Delivery Period
5.1 Any part of this Agreement which relates which relates to the time or rate of delivery, erection or installation of any of the Goods shall constitute an estimate only and shall not be constructed as constituting a binding obligation on the Company or a warranty or guarantee by the Company of any kind. Time is not of the essence in respect of any such estimate. [The Company shall, however, use its reasonable endeavours to deliver, erect and install the Goods in accordance with any such estimate.]
5.2 Delivery of the Goods will take place at the Delivery Site. As soon as practicable following the Goods becoming available for delivery, the Company shall provide the Customer with the up-to-date delivery, erection and installation date(s) for such Goods. [The Customer shall notify the Company within  working days of such notification or  working days prior to the up-to-date estimated delivery, erection and installation date(s) (whichever is the earlier) of any change in the address of the Delivery Site. In the event that such notification by the Customer is not made timeously and the Customer wishes the Goods to be delivered and installed at a site other than the Delivery Site, the Customer shall arrange delivery, erection and installation of the Goods at its own cost and expense.]
5.3 In the event that the Company is unable to complete delivery of the Goods to the Delivery Site due to any act or omission of the Customer, the Customer shall pay such delivery, storage and other ancillary costs properly incurred by the Company in completing such delivery (in addition to the Price).
5.4 For any incorrect deliveries made by the Company to the Customer, the Company shall only be liable to replace the Goods delivered in error within a reasonable time and then only in the event that (i) the Customer has notified the Company of the incorrect delivery within  Working Days of such delivery and (ii) the Goods have been made available for uplift by the Company at a reasonable time notified by the Company to the Customer and are in [good] condition at the time of such uplift.
- Access to Site
6.1 Subject to clauses 5.3 and 6.2 hereof, the cost of delivery, erection and installation of the Goods by the Company at the Delivery Site is included in the Price, provided that throughout the time of such delivery, erection and installation at the Delivery Site:
(i) the area in which the Goods are to be installed is clear and available;
(ii) the Delivery Site has clear access for normal transport;
(iii)reasonable working space and full use of all necessary electrical, water or other services is available for the Company’s employees and sub-contractors at the Delivery Site; and
(iv) the delivery, erection and installation can be carried out between 0830 and 1700 hours on weekdays.
6.2 The Customer shall be liable for any delivery, erection and installation costs properly incurred by the Company as a consequence of any of the Delivery Site conditions not being as specified in 6.1.
6.3 The Company shall not supply any labour r materials for any builder’s work, plumbing, decorating, electrical wiring, woodworking, shop fitting, glazing or making good any brickwork, woodwork, tiling, pipe work or other parts of the Delivery Site unless previously agreed in writing by the Company and the Customer. Any such labour or materials necessary for, or as a result of, the delivery, erection and/or installation of the Goods shall be the responsibility of, and at the sole expense of, the Customer.
- Risk and Responsibility for the Goods
7.1 All risk and responsibility for the Goods shall pass to the Customer on delivery of same to the Customer by the Company. The Customer will fully insure the Goods against theft, damage and destruction from the time of such delivery until the time of transfer of ownership of the Goods to the Customer.
7.2 [In the case of transportation on behalf of the Company by a third party carrier, delivery will be deemed to occur at the moment when those items are delivered to that carrier and the Customer will fully insure the Goods against theft, damage and destruction from the time of such deemed delivery until the time of transfer of ownership of the Goods to the Customer].
7.3 Notwithstanding delivery of the Goods or the passing of risk or responsibility in the goods thereon, until such time as all sums due by the Customer to the Company under or pursuant to this Agreement shall have been paid in cleared funds to the Company:
(i) ownership of the Goods shall remain with the Company;
(ii)the Goods shall be kept in such a way as to be readily identifiable as the property of the Company; and
(iii) the Company shall have the right to remove any of the Goods (whether they have been installed or otherwise) at the sole cost, liability and expense of the Customer and the Customer shall grant the Company full access to the Good
8.1 Subject to clause 8.3 below, the Company shall have no liability whatsoever for any consequential loss or damage (including, without limitation, loss of profits) arising from:
(i) any faulty operation of the Goods whatsoever; or
(ii) the negligence of any of the Company’s employees or sub-contractors.
8.2 Except as expressly provided in this Agreement (including, without limitation, clause 8.3 below) all warranties, conditions, representations or other terms implied by statue or common law as to the quality of the Goods or otherwise are excluded to the fullest extent permitted by law.
8.3 Nothing in this Agreement shall, or shall be construed as, purporting to exclude or restrict liability in respect of death or personal injury.
- Force Majeure
9.1 Notwithstanding anything else contained in the Agreement, neither party shall be liable for any delay in performing its obligations hereunder if such delay is caused by circumstances beyond its reasonable control (including, without limitation, any delay caused by a breakdown in industrial relations of failure of delivery by a Third Party.) Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay and the likely duration of the delay, the performance of such party’s obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of delay.
9.2 Save where a delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the Parties shall be conferred and imposed by the other terms of the Agreement and by law):
(i) any costs arising from such delay shall be borne by the party incurring the same; and
(ii) either party may, if such delay continues for more than  months terminate the Agreement forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination.
Orders placed cannot be cancelled except with the Company’s consent and on terms which will indemnify the Company against any loss or damage which may be suffered by the Company as a result of such cancellation. Goods returned without the Company’s consent will not be accepted for credit.
11.1 The Agreement supersedes all prior agreements, arrangements and understandings between the Parties in relation to the subject mater hereof. Subject to clause 5.2 above, no addition to or modification of any provision of the Agreement shall be binding upon the Parties unless made by written instrument and signed by a duly authorised representative of each of the parties.
11.2 The Company shall be entitled to assign or sub-contract any of its rights or obligations under this agreement.
11.3 Subject to clause 5.2 above, the terms and conditions of this Agreement shall prevail over any terms put forward by the Customer unless the Company expressly agrees otherwise in writing. No conduct by the Company shall be deemed to constitute either acceptance of terms put forward by the Customer or a variation of the terms of this Agreement.
11.4 In the event of any inconsistency between any provision of these Terms and Conditions and any provision of the Quotation, the relevant provision of the Quotation will prevail.
11.5 If any provision or any part of any provision of this Agreement shall to any extent be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions or part of that provision shall not in any way be affected or impaired thereby and each of the provisions of this Agreement shall be valid, legal and enforceable to the fullest extent permitted buy law.
11.6 The Agreement shall be governed by and construed in accordance with Scots law and the Parties hereby submit to the non-exclusive jurisdiction of the Scottish Courts