ESP Scotland Limited - Terms and Conditions of Sale
1.1.1 In these Conditions, the following definitions apply:
- Business Day; a day (other than a Saturday, Sunday or public holiday);
- Conditions; the terms and conditions set out in this document together with any special terms agreed in writing between the Customer and ESP;
- Confidential Information; information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of ESP for the time being confidential to ESP and trade secrets including, without limitation, technical data and know-how relating to the business of ESP or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential;
- Contract; the contract between ESP and the Customer for the sale and purchase of the Goods and Services (if applicable) in accordance with these Conditions;
- Customer Sign Off; the sign off document issued by ESP, to be completed and signed by the Customer;
- Customer; the person or firm who purchases the Goods and Services (if applicable) from ESP;
- ESP; ESP Scotland Limited, a company registered in Scotland under company number SC355740;
- Force Majeure Event; 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 but not limited to 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, extremes of weather, 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;
- Goods; the goods (or any part of them) set out in the Order;
- Insolvency Event; where in respect of a party an order is made or a resolution is passed for the winding up of that party (otherwise than for the purpose of solvent amalgamation or reconstruction) or that party becomes subject to an administrative order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of that party's assets or undertaking or that party, being a partnership shall be dissolved or, that party ceases or threaten to cease to carry on its business or be unable to pay its debts or becomes insolvent (within the meaning of Insolvency Act 1986), or makes or proposes to make an arrangement or composition with its creditors or anything which, under the law of any jurisdiction, is analogous to any of the acts or events specified in this definition;
- Intellectual Property Rights; patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
- Maintenance and After Sales Care Pack; the after sales care document provided by ESP to the Customer, after the Customer Sign Off is completed and signed by the Customer, as amended and updated from time to time;
- Order; the order for the Goods and the Services (if applicable), as set out in the Customer's order form; and
- Services; the services supplied by ESP to the Customer as set out in the Order;
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 ESP to sell the Goods and Services in accordance with these Conditions. The Customer must ensure that the terms of the Order signed by the Customer are complete and accurate.
2.3 The Order shall be deemed to be accepted when the Customer returns a signed version of the Order to ESP, at which point the Contract shall come into existence.
2.4 The Customer has a 7 (seven) day cooling off period from the date the Contract comes into existence to cancel the Order with no charge being applied. After the 7 (seven) day period, if the Customer wishes to cancel the Order it shall pay 25 (twenty five) per cent of the total value of the Order to ESP as a cancellation charge.
2.5 Any samples, descriptive matter, or advertising produced by ESP and any descriptions contained on ESP's website are produced for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or have any contractual force and this is not sale by sample.
2.6 A quotation for the Goods and Services given by ESP shall not constitute an offer. A quotation shall only be valid for a period of 20 (twenty) Business Days from its date of issue.
3. Goods and Services
3.1 The description of the Goods and Services will be as set out on ESP's website and in ESP’s brochures and catalogues from time to time.
3.2 ESP reserves the right to amend the specification of the Goods and/or Services if required by any applicable statutory or regulatory requirements. If such amendments will materially change the nature or quality of the Goods and/or Services, ESP shall notify the Customer who may then cancel the Order.
3.3 ESP warrants to the Customer that the Services will be provided using reasonable care and skill. ESP shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.4 If, as part of the Services, ESP shall install the Goods for the Customer, ESP shall use its best endeavours to locate underground services and pipes prior to commencing the work. ESP shall not be liable for any damage caused or subsequent damage, repair, or disruption to any underground services or pipes that are not correctly sited. ESP shall not be responsible for any planning permission or building regulation approval which may be required in connection with the installation of any Goods.
4. CPD Training Sessions
4.1 ESP may provide pre-arranged CPD training sessions to delegates of the Customer as part of the Services as set out in the Order.
4.2 ESP reserves the right for its representatives to decline delegates of the Customer to attend the training session, at their sole discretion, if ESP’s representative deems the Customer’s delegate incapable of taking part, for whatever reason.
4.3 ESP reserves the right to cancel any training sessions up to 24 (twenty four) hours before for reasons including but not limited to inclement weather, hazards affecting the delivery of the session and health and safety risks. Any training session cancelled by ESP shall be rearranged. ESP shall not be liable to the Customer for any additional costs incurred for such rearrangement.
4.4 The Customer may cancel a training session by written notice up to 1 (one) week before, for any reason. If the Customer cancels a training session, ESP reserves the right to charge the Customer for the costs of the cancelled session.
5.1 ESP shall use its reasonable endeavours to ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer reference numbers, the quantity of the Goods and special storage instructions (if any).
5.2 ESP 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 ESP notifies the Customer that the Goods are ready. Delivery of the Goods will be made during the Customer’s usual business hours if possible. Customers may also collect the Goods from ESP’s premises.
5.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location unless the Goods are collected from ESP in which case delivery of the Goods shall be completed on collection from ESP. The Customer will provide, at its expense, at the Delivery Location, adequate and appropriate equipment and manual labour for off-loading the Goods.
5.4 Following installation of the Goods (or delivery if the Goods do not require installation), the Customer is required to complete and sign the Customer Sign Off confirming receipt of the Goods and Services (if applicable). In signing the Customer Sign Off, the Customer acknowledges that it is happy with the Goods and Services ESP has provided and that the Customer’s Order is completed in full. It is the responsibility of the Customer to ensure the Customer Sign Off is signed by an authorised representative of the Customer.
5.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. ESP shall not be liable for any delay in delivery of the Goods or failure to deliver the Goods if caused by a Force Majeure Event or the Customer's failure to provide ESP with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If ESP 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. ESP shall have no liability to the Customer for direct, indirect or consequential loss, howsoever caused (including in negligence) by any delay in delivery except as set out above.
5.7 If the Customer fails to take delivery of the Goods within 3 (three) Business Days of ESP notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or ESP's failure to comply with its obligations under the Contract:
5.7.1 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 ESP notified the Customer that the Goods were ready; and
5.7.2 ESP shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.8 If 10 (ten) Business Days after the day on which ESP notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, ESP may:
5.8.1 store or arrange for storage of the Goods until actual delivery or sale in accordance with clause 7.2 and charge the Customer for all related costs and expenses (including without limitation, storage and insurance); and/or
5.8.2 following written notice to the Customer, resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage 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.
5.9 ESP may deliver the Goods by instalments, which shall be invoiced and paid for separately in accordance with these Conditions. 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.
6.1 The Maintenance and After Sales Care Pack sets out the warranties and guarantees provided by ESP to the Customer. The guarantees and warranties provided by ESP are only valid if the Goods have been installed by ESP (unless no installation is required) and payment has been made in full by the Customer to ESP. The term of each relevant warranty and guarantee shall start from the date of installation.
6.2 Subject to clause 3, if:
6.2.1 the Customer gives notice in writing to ESP during the relevant warranty period within 48 (forty eight) hours of discovery that some or all of the Goods do not comply with the warranty set out in the Maintenance and After Sales Care Pack;
6.2.2 ESP is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by ESP) returns such Goods (being all the Goods unless otherwise agreed with ESP) to ESP's place of business at the Customer's cost,
ESP shall, at its option, repair or replace the defective Goods.
6.3 ESP shall not be liable for Goods' failure to comply with any warranty and/or guarantee set out in the Maintenance and After Sales Care Pack in any of the following events:
6.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
6.3.2 the Customer fails to follow any of ESP's instructions as set out in the Maintenance and After Sales Care Pack;
6.3.3 the Customer is unable to provide ESP with inspection records for such Goods for the 2 (two) months before the discovery set out in clause 2.1 was made;
6.3.4 the Customer alters such Goods without the written consent of ESP;
6.3.5 the Goods are not used for their intended purpose or used by the children of an inappropriate age;
6.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, vandalism, abnormal storage, severe weather conditions, collapsed drains or ground movement;
6.3.7 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
6.3.8 ESP has not received payment of all sums due in full for the Goods in question in accordance with clause 5.
6.4 Except as provided in this clause 6 and the Maintenance and After Sales Care Pack, ESP shall have no liability to the Customer in respect of the Goods' failure to comply with the warranties and guarantees set out in the Maintenance and After Sales Care Pack.
6.5 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.
6.6 These Conditions shall apply to any replacement Goods supplied by ESP.
6.7 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, ESP reserves the right to appoint an independent third party to ensure that the Goods comply with the relevant standards required. The Customer agrees, that if such third party is required, that it shall pay towards the fees of such third party, the value of which shall be at the sole discretion of ESP.
6.8 The Customer shall indemnify ESP 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ESP arising out of or in connection with any claim made against ESP for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with ESP's use of the specification provided by the Customer.
7. Return of Non-Faulty Goods
7.1 In relation to Goods that do not require installation, at the discretion of ESP, such Goods may be returned within one month of delivery at the Customers expense, provided the Goods are complete, undamaged and in their original, undamaged packaging. Any such return will be subject to a 15 (fifteen) per cent restocking charge.
8. Title and risk
8.1 The risk of damage to or loss of the Goods shall pass to the Customer on completion of delivery (or deemed delivery in accordance with clause 1).
8.2 Ownership of the Goods shall not pass to the Customer until ESP has received payment of all sums due in full for:
8.2.1 the Goods and the Services; and
8.2.2 any other goods or services that ESP has supplied to the Customer in respect of which payment has become due.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods on a fiduciary basis as ESP's bailee;
8.3.2 store the Goods (at no cost to ESP) separately from all other goods held by the Customer so that they remain readily identifiable as ESP's property;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.5 notify ESP immediately if it becomes subject to an Insolvency Event; and
8.3.6 give ESP such information relating to the Goods as ESP may require from time to time.
8.4 Notwithstanding the terms of clause 3, the Customer may resell or use the Goods in the ordinary course of its business before ownership has passed to it provided that:
8.4.1 any sale will be at full market value and the Customer will account to ESP accordingly;
8.4.2 any such sale will be a sale of ESP’s property on the Customer’s own behalf and the Customer will deal as principal when making such a sale; and/or
8.4.3 if before title to the Goods passes to the Customer the Customer becomes subject to an Insolvency Event or EPS 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 ESP may have, ESP 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. ESP will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from ESP.
9. Customer Obligations
9.1 The Customer shall:
9.1.1 provide ESP, its employees, agents, consultants and subcontractors, with access to the Customer's premises and other facilities as reasonably required by ESP to provide the Services;
9.1.2 provide ESP with such information and materials as ESP may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
9.1.3 arrange for an annual inspection of the Goods to be carried out by an independent accredited RPII inspector to determine the overall level of safety of the Goods, foundations, surfaces and all areas connected with the Goods;
9.1.4 prepare the Customer's premises for the supply of the Services; and
9.1.5 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.
10. Price and Payment
10.1 The price of the Goods and Services shall be the price set out in the Order. There is a minimum order value for any Goods and Services (if applicable) of £1,000 plus VAT.
10.2 ESP reserve the right to vary the price of the Goods and Services if there are any unforeseen circumstances that would affect the price of the Goods and Services after the Contract is entered into. The Customer shall be entitled to pay any reasonable additional costs incurred as a consequence of such circumstances, such amount shall be determined by ESP and fully detailed in a variation to order ticket.
10.3 The price of the Goods is exclusive of the costs and charges of transport of the Goods, which shall be invoiced to the Customer as set out in the Order.
10.4 The price of the Goods and Services is exclusive of VAT which shall be payable by the Customer to ESP at the rate prescribed by law.
10.5 At the discretion of ESP, ESP may carry out a credit check on the Customer and depending on the outcome of the credit check, the Customer may be required to make payment up front before delivery of the Goods and, if applicable, the supply of the Services.
10.6 In respect of the Goods, unless stated otherwise, ESP shall, following the Customer returning the signed Order, require the Customer to pay a deposit of up to 25 (twenty five) per cent of the value of the Goods ordered before the Goods are delivered.
10.7 ESP may invoice the Customer for the remaining price of the Goods on or at any time after the completion of delivery and in respect of the Services, on completion of the Services or at the discretion of ESP, on an interim basis. The Customer shall pay each invoice in full and in cleared funds 5 (five) Business Days from the date of receipt. Payment shall be made in full and cleared funds in pounds’ sterling, by electronic transfer to the bank account nominated by ESP from time to time. Time of payment is of the essence.
10.8 If the Customer fails to make any payment due to ESP under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate set in the Late Payment of Commercial Debts (Interest) Act 1998. 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.
10.9 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 ESP in order to justify withholding payment of any such amount in whole or in part.
11.1 Either party may terminate this Contract if the other party:
11.1.1 commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within a period of 10 (ten) Business Days after receipt of notice in writing requiring it to do so; or
11.1.2 enters into an Insolvency Event or either party reasonable believes that an Insolvency Event is about to occur in relation to the other party.
11.2 ESP may terminate this Contract upon giving 1 (one) months prior written notice to the Customer.
11.3 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.
12. Limitation of Liability
12.1 Nothing in these Conditions shall limit or exclude ESP's liability for:
12.1.1 death or personal injury caused by its negligence;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 any matter in respect of which it would be unlawful for ESP to exclude or restrict liability.
12.2 Subject to clause 1:
12.2.1 ESP shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss (including at all times, without limitation, economic loss, loss of business, depletion of goodwill or similar) howsoever caused arising under or in connection with:
22.214.171.124 any of the Goods, or the manufacture, sale or supply, or failure or delay in supply of the Goods by ESP or on the part of ESP’s business;
126.96.36.199 any breach by ESP of any of the express or implied terms of the Contract;
188.8.131.52 any use made by the Customer of any of the Goods, or of any product incorporating the Goods;
184.108.40.206 any statement made or not made, or advice given or not given, by or on behalf of ESP; and
220.127.116.11 or otherwise under the Contract.
12.2.2 ESP'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 a sum equal to the price paid for the Goods and Services in the Order under which the liability has arisen.
12.3 ESP hereby excludes to the fullest extent permitted in law, all conditions and warranties, whether express (other than as set out in these Conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
13. Intellectual Property Rights
13.1 No right or licence is granted to the Customer in respect of the Intellectual Property Rights of ESP, except the right to use the Goods in the Customer’s ordinary course of business.
14. Force Majeure
14.1 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.
15. Variation and Waiver
15.1 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 ESP.
15.2 No failure to exercise or delay in exercising any right or remedy provided under the Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
15.3 No single or partial exercise of any right or remedy under the Contract shall prevent or restrict the further exercise of that or any other right or remedy.
16.1 Any notice shall only be effective if it is in writing, sent to a party at its registered address (or such other address as that party may notify the other in writing from time to time) and is given in accordance with clause 2 below.
16.2 Any notice will be deemed to have been duly served if delivered personally, on delivery, if sent by post, on the second Business Day after it was posted or if sent by facsimile process, when correctly despatched provided that, if in any case notice would be deemed to be given outside of 9am to 5.30pm on a Business Day, such notice shall instead be deemed to have been given at the start of the next Business Day.
17. Entire Agreement
17.1 The Contract constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract. Each party acknowledges that it has not relied upon any warranty, representation, statement or understanding other than those expressly set out in these Conditions.
18. Rights of Third Parties
18.1 No term of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
19.1 ESP 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.
19.2 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 ESP.
20.1 The Customer shall keep confidential any Confidential Information that it may acquire and shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract and will ensure that its officers and employees comply with the provisions of this clause 20.
21.1 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 and the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
22. Governing Law and Jurisdiction
22.1 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.