1 Basis of contract
1.1 In these conditions “Contract” means the contract between you (being the person or entity who orders goods from us) and us (being Gaelforce Marine Equipment Limited a company registered in Scotland under company number SC101936 whose registered office is at 136 Anderson Street, Inverness, IV3 8DH) for the sale and purchase of the “Goods” (as specified in our correspondence with you) or any part of them in accordance with these conditions, which incorporates these conditions, your order provided to us for the supply of Goods, and the attached correspondence. These items, and no other terms (whether referenced by you in your order, correspondence or otherwise) apply to the Contract. Any variation to the Contract, including the introduction of any additional terms, shall only be binding when agreed in writing by you and us. In the event of a conflict between the parts of the Contract the following order of precedence shall apply: (1) the attached correspondence; (2) these conditions; and (3) your order. For the purposes of the Contract “Specifications” shall mean the specifications for the Goods given or referred to in our correspondence with you.
1.2 Your order (which may be given in writing or verbally) is an offer to purchase the Goods under these conditions, which will be accepted by us when we issue our acceptance (which may for the avoidance of doubt be provided via email, letter, fax, or failing which, shall be deemed by our commencement of performance of our obligations hereunder, which shall for the avoidance of doubt include our taking of any action pursuant to your order), and then the Contract shall come into existence (the date of such being referred to herein as the “Contract Date”). Quotations given by us are not an offer and are only valid for thirty (30) days from their date of issue, or until withdrawn by us. You acknowledge that you have not relied on any statement, promise or representation which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by us and any descriptions or illustrations contained in our website, catalogues or brochures do not form part of the Contract, unless explicitly agreed by us in writing.
2.1 Delivery of Goods shall be completed on their arrival at the “Delivery Location” (the location specified in your order, unless our acceptance of your order specifies otherwise). You will provide all information required to allow us to deliver the Goods. We will not be responsible for any delay or failure to deliver the Goods if you do not provide us with adequate, or provide us with incorrect, delivery instructions, including in respect of any loss, cost, expense, damage or other liability incurred by you as a result thereof. You may change the Delivery Location before the Goods are despatched for delivery. We may then amend the Delivery Costs (as defined in clause 4) as required, or cancel the Contract without liability to you.
2.2 We shall use reasonable endeavours to deliver the Goods to the Delivery Location by any date(s) specified by us for delivery. However, such dates are approximate only. We may deliver the Goods to the Delivery Location at any time after we notify you that the Goods are ready for delivery. We may deliver the Goods in instalments and invoice you separately for each instalment. Any delay in delivery or defect in an instalment shall not provide a right to reject any other instalment.
2.3 If you do not accept delivery of the Goods, and we are not in material breach of our obligations concerning delivery of the Goods, then delivery of the Goods shall be deemed to have been completed at 9.00am on the day upon which delivery of the Goods was attempted, and we shall arrange for the Goods to be stored until delivery takes place (you may at our discretion be charged for all related costs and expenses), or we may dispose of part or all of the Goods and (after deducting our reasonable costs) account to you for any excess of the Price (as defined in clause 4) received by us for the relevant Goods over such costs. Any difference of less than 5% between the amount of Goods ordered and those actually delivered shall not entitle you to cancel the Contract, however, we will adjust the Price accordingly, and refund you (if necessary) any excess paid by you.
3 Terms relating to the Goods
3.1 You may only use the Goods for the purpose for which they were manufactured, and in accordance with the manufacturer’s instructions and all applicable laws, regulations and guidance. The Goods are to be used only by properly skilled and trained personnel. You are responsible for putting in place all licences and permits which may be required to enable you to use the Goods.
3.2 Until title to the Goods has passed to you, you shall hold the Goods in trust for us, not remove, deface or obscure any identifying mark on the Goods, and maintain the Goods in a satisfactory condition and keep them insured against all risks for their full replacement value from the date of delivery.
3.3 We may notify you at any time of any changes to the Specifications which are required to conform to any applicable legal requirements. If such changes materially affect the quality or performance of the relevant Goods, you have seven (7) days of receipt of such notice, to cancel the Contract without liability to us.
4 Price and payment
4.1 You shall pay to us the price specified in the Contract for the Goods (the “Price”). We shall invoice you for the Price on the date(s) specified in the attached correspondence, and in the event that no such dates are specified on or before the Contract Date. Except as specified otherwise in our correspondence with you, you shall pay any such invoices in full and in cleared funds within thirty (30) days of the invoice date via such means as is specified by us. You acknowledge that we may require payment of our invoice before we despatch the Goods to you. Time of payment is of the essence of the Contract. The Price is exclusive of all “VAT” being value added tax or similar sales tax, “Duties” being importation taxes or sums payable to any customs authority or similar governmental authority, and “Delivery Costs” being the costs of delivery of the Goods, include packaging, insurance and transport costs, which shall be paid by you when you pay the Price. We may, by giving you notice at any time up to five (5) days before the Goods are despatched for delivery, increase the Price, VAT, Duties and/or the Delivery Costs to reflect any increase in the cost of the supply of the Goods that is due to any factor beyond our control, or your breach of the Contract.
4.2 We reserve the right to make delivery of the Goods conditional on us having received the Price, along with any applicable VAT, Duties and Delivery Costs in full and cleared funds. Where we grant any deferred payment or credit terms to you, we may withdraw such terms at any point in time and for whatever reason we determine. If you fail to make any payment due to us under the Contract by the due date for payment (the “Due Date”), then you shall pay interest on the overdue amount at the rate of five percent (5%) per annum above HBOS plc’s base lending rate as published from time to time. 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. You shall pay the interest together with the overdue amount.
4.3 You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount. We may at any time, without limiting any other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
4.4 Where the Goods are to be supplied to a person resident or established outside the United Kingdom, if we so direct the Price, along with any applicable VAT, Duties and Delivery Costs, shall be secured by an irrevocable letter of credit satisfactory to us established by you in favour of us and confirmed by a United Kingdom bank acceptable to us valid for at least six (6) months from the Contract Date (or such longer period as we specify) and which shall entitle us to payment on the presentation to such United Kingdom bank of the documents stipulated therein.
5 Title and risk
Risk in the Goods shall pass to you on completion of delivery in accordance with clause 2.1 or clause 2.3. Title to the Goods shall not pass to you until we have received payment in full (in cash or cleared funds) of the Price, all VAT, Duties and Delivery Costs, and all other sums which are due from you to us.
6.1 Where we have manufactured the Goods, we warrant that on delivery and for twelve (12) months thereafter (the “Warranty Period”) the Goods shall conform to any Specifications and be free from material defects. Where we do not manufacture the Goods we shall, where possible, pass to you the benefit of any warranty or guarantee given to us in respect of the Goods. If you believe that the Goods do not comply with the Contract under the consumer rights act you have a limited period of Thirty (30) days to reject faulty goods. . We may ask you to return the Goods to us or make the Goods available for collection. If we are liable to you, in full satisfaction of our liability we may, at our sole discretion, either repair or replace the Goods or provide you with a refund for the Goods if within the afore mentioned thirty (30) days. If reported to us outwith this period we will take all suitable remedies to repair or replace in the first instance and if goods still remain fualty we will offer a more suitable remedy such as price reduction or refund... These conditions shall apply to any repaired or replaced Goods supplied by us. We shall not be liable if the Goods fail to comply with this clause or other applicable requirements under law (in so far as such apply to the Contract) if you continue to use the Goods after informing us as required by this clause; if the defect or lack of fitness for purpose arises because you have failed to follow instructions or good trade practice relating to the storage, maintenance and/or use of the Goods; if the Goods are employed other than in normal operating conditions; if the defect or lack of fitness for purpose arises from fair wear and tear, wilful damage or negligence; or if the defect or lack of fitness for purpose arises as a result of any instructions, design specifications or other information provided by you to us and upon which we have relied in relation to the performance of our obligations hereunder.
6.2 You acknowledge that you have selected the Goods for your own purposes and that we do not warrant that the Goods will be fit for your particular purposes, unless we have agreed with you in writing to provide advice to you on the selection of the Goods and we have subsequently advised you in writing that the Goods will be fit for those purposes. Otherwise, you acknowledge and agree that we are not providing advice in connection with the suitability of the Goods for any particular purpose, and that you shall be solely responsible for (and indemnify us against) all loss, cost, expense, damage or other liability arising out of a failure of the Goods to be suitable for any purpose to which they are applied. If you request such advice from us, you must provide all relevant information to enable us to give such advice. If you fail to do so, we will not be liable for any loss you suffer as a result of a failure of you to provide such information.
7.1 Nothing in the Contract shall limit or exclude our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any other matter we cannot lawfully limit or exclude liability for. We shall not be liable to you in any respect for loss of profit or decrease in turnover, or any indirect, secondary or consequential loss (including any such loss that may result from a deliberate breach of the Contract by us, or our employees, agents or subcontractors).
7.2 Subject to clause 7.1, our total liability to you shall not exceed the Price paid by you to us. Except as set out in these conditions, all warranties, conditions, representations, guarantees and other terms implied by statute or common law are, to the extent permitted by law, excluded.
7.3 This clause does not apply if you are a consumer.
8 Return, cancellation & suspension
8.1 If you have not used the Goods and they are undamaged and in their original packaging, you may within fourteen (14) days of the delivery date cancel the Contract by notifying us in writing. This does not apply where the Contract is for the supply of books, charts, boxed software, or items made to order or made to order for you by a third party. In such an event you shall return to us at your cost the Goods, properly packed to ensure safe delivery, to our address as set out above. We shall refund any part of the Price paid for the returned Goods to you within thirty (30) days of our receipt of the Goods.
8.2 If you become (or we reasonably believe that you are about to become) subject to any of the events listed in clause 8.3, and we notify you accordingly, without limiting any other right or remedy available to us, we may require you to deliver up any Goods to which title has not passed to you and, if you fail to do so promptly, enter the premises where such Goods are stored to recover them, and/or cancel the Contract or suspend our performance under the Contract, without liability to you, and all outstanding sums due to us from you shall become immediately due and payable by you.
8.3 For the purposes of clause 8.2, the relevant events are: you breach a material term of the Contract; you suspend or threaten to suspend, payment of your debts as they fall due; you admit inability to pay your debts or are deemed unable to pay your debts in accordance with the Insolvency Act 1986; you commence negotiations with any class of your creditors; a creditor or encumbrancer attaches or takes possession of, or other such process is levied or enforced on or sued against any part of your assets and such attachment or process is not discharged within ten (10) days; an application is made to court or an order is made for the appointment of an administrator or administrative receiver or a notice of intention to appoint an administrator or administrative receiver is given; any event occurs in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in this clause; or you threaten to suspend, cease or threaten to cease carrying on substantially the whole of your business. You shall notify us immediately if you become subject to any of the events listed in this clause.
9 Dealing as a consumer
9.1 If you are ordering Goods by mail, telephone or via the internet, not in the course of business, you have the right under the Consumer Protection (Distance Selling) Regulations 2000 to cancel the Contract, provided you do so in writing within seven (7) days of the Contract Date. If you do so we shall refund any part of the Price paid for the relevant Goods to you within thirty (30) days, provided always that you make available or return the Goods to us in accordance with clause 9.3.
9.2 Your right under clause 9.1 does not apply if the Goods are made to your specifications or personalised, if by reason of their nature they cannot be returned or are liable to deteriorate or expire rapidly, audio or video recordings or computer software if they are unsealed by you, or newspapers, periodicals or magazines.
9.3 If the Goods have been delivered prior to you cancelling under clause 9.1 you shall retain possession, take reasonable care of the Goods and either make them available for collection at the Delivery Location or return the Goods using such method as arranged by us.
9.4 Nothing in the Contract shall limit or exclude our liability for death of personal injury caused by our (or our employees, agents or subcontractors) negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any other matter we cannot lawfully limit or exclude liability for. Subject to this, we shall not be liable to you in any respect for loss of profit or decrease in turnover, or any loss which we both thought unlikely at the date of the Contract, and our total liability to you shall not exceed the Price paid by you to us. Except as set out in these conditions, all warranties, conditions, representations, guarantees and other terms implied by statute or common law are, to the extent permitted by law, excluded. You should contact your local Citizen’s Advice Bureau for further information on our exclusions and limitations of liability.
9.5 Nothing in these conditions shall affect, and these conditions operate subject to, your rights as a consumer under applicable law. You should contact your local Citizen’s Advice Bureau for further information on these rights.
9.6 For the purposes of these conditions you are a consumer if you are purchasing the Goods other than in the course of your business.
10.1 We are not liable for any failure or delay in performing our obligations under the Contract if caused by any event beyond our reasonable control which by its nature could not have been foreseen or was unavoidable.
10.2 We may assign or otherwise deal in any other manner with all or any of our rights or obligations under the Contract. You may not assign or otherwise deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
10.3 Any notice given to us under or in connection with the Contract shall be in writing and addressed to us at our registered office, and any notice given to you shall be in writing, addressed to you at your registered office, unless either of us notify the other accordingly.
10.4 If any court finds that any part of any provision of the Contract is invalid, illegal or unenforceable, that provision shall be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were modified, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.5 A waiver of any right or remedy under the Contract must be given in writing and is not a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law is a waiver of that or any other right or remedy. No single or partial exercise of such right or remedy shall restrict the further exercise of that or any other right or remedy.
10.6 The Contract and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with Scots law, and the parties submit to the exclusive jurisdiction of the courts of Scotland.