Terms & Conditions
JAMES BLAKE & CO (ENGINEERS) LIMITED
TERMS AND CONDITIONS OF BUSINESS
1.1 In these Conditions, the following terms shall have the following definitions:-
“the Customer” means the person identified as such in the Quotation;
“Contract” means the contract between James Blake & Co and the Customer for the supply of Products and/or Services, which shall incorporate the Quotation and these terms and conditions and is formed when the Customer accepts the Quotation;
“Blake Group” means James Blake & Co (Engineers) Limited, company number SC036390 and having its registered office at 1 Rutland Court, Edinburgh, EH3 8EY;
“Quotation” means the quotation letter (including any drawings, diagrams and correspondence attached to that quotation letter) provided to the Customer by Blake Group detailing, among other things, the Products and/or Services and the sums to be paid by the Customer for the Products and/or Services;
“Products” means any products or other goods agreed in the Contract to be supplied to the Customer by Blake Group (including any part or parts of the same);
“Services” means any services agreed in the Contract to be provided to the Customer by Blake Group (including any part or parts of the same);
“Working Day” means Monday to Friday (inclusive) of each week, excluding any bank holidays in Scotland.
1.2 In these Conditions: (a) references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as
from time to time amended, consolidated, modified, extended, re-enacted or replaced; (b) references to one gender include the other genders and to the singular include the plural and vice versa;
(c) references to a Condition is to are to the relevant condition of these conditions and (d) headings will not affect the construction of these Conditions.
2 APPLICATION OF TERMS
2.1 These Conditions apply to every supply of Products and/or Services by Blake Group to the Customer, and no variation to these Conditions and any representations about the quality or
otherwise of the Products and/or Services shall have effect unless expressly agreed in writing and signed by or on behalf of Blake Group. Subject to any such effective variation, the Contract will be on these Conditions to the exclusion of all other terms and conditions including any terms or conditions which the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Quotation shall be open for acceptance by the Customer for a period of 21 days from the date of the Quotation and may be withdrawn at any time prior to its written acceptance by
3 DESCRIPTION AND SCOPE OF WORK
3.1 The description of the Products and/or Services shall be as set out in the Quotation, unless otherwise agreed by Blake Group in writing.
3.2 All drawings, samples, descriptive matter, specifications and advertising issued by Blake Group and any descriptions or illustrations contained in James Blake & Co’s promotional materials are issued or published for the sole purpose of giving an approximate idea of the goods and/or services described in them, and will not form part of any Contract. Where the Products and/or Services form part of a larger project or series of work carried out by the Customer, or by a third party on the Customer’s behalf, Blake Group shall have no responsibility or liability whatsoever for the success or failure of that larger project or series of work or any part of it other than the Products and/or Services. Provided that Blake Group performs its obligations under the Contract with reasonable skill and care, Blake Group shall be entitled to payment in full. To the extent that the products are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify Blake Group 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 Blake Group in connection with any claim made against Blake Group for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Blake Group’s use of the specification. This clause 3.4 shall survive termination of the Contract.
4 DELIVERY, RISK AND TITLE
4.1 The Products are at the risk of the Customer from the time of delivery or at the time of collection by the Customer, as agreed. Title to the Products supplied shall remain with Blake Group until such time as the Customer makes payment in full for the Products and/or Services supplied and for any other Products and/or Services supplied by Blake Group to the Customer. Until title to the Products passes to the Customer, provided the Products still exist and have not been resold, Blake Group shall be entitled to demand the return of the Products and if the Customer fails to do so, to enter the Customer’s premises or those of any third party where the Products are stored and repossess the Products.
4.2 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the products separately from all other goods held by the Customer so that they remain readily identifiable as the property of Blake Group;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Blake Group immediately if it becomes subject to any of the events listed in clause 9.3; and
(e) give Blake Group such information relating to the Products as the Supplier may require from time to time, If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.3, or Blake Group reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Blake Group may have, Blake Group 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 Products are stored in order to recover them.
4.4 The Customer undertakes to provide evidence to Blake Group within 5 working days of the date the Customer accepts the Quotation that the Customer has notified all contractors contracted to undertake works in relation to the premises where the Products are intended to be installed, any proposed, existing or potential purchasers of the Products from the Customer, and the owner of any premises that the Products are to be installed into, that title to the Products supplied shall, notwithstanding attachment or annexation of the Products to any building or property, remain with Blake Group until such time as the Customer makes payment in full for the Products and/or Services and the Customer shall disclose the identity of any such third party to Blake Group within 2 working days.
4.5 The Customer shall indemnify Blake Group against any loss, damage or injury which is attributable to the Customer or which is sustained to Blake Group or its employees, subcontractors or agents while they are working on the Customer’s premises for any purpose.
4.6 Subject always to the provisions of clause 8, no warranty, undertaking, standard of care, representation or undertaking relating to any Products or Services shall be created and no action or claim shall be raised against Blake Group until payment in full is received by Blake Group of all sums falling due and payable by the Customer to Blake Group.
5.1 Blake Group will use reasonable endeavours to meet any estimated timescales or dates set out in the Quotation, but any dates specified by Blake Group for delivery of the Products or provision of the Services are intended to be approximate and time for delivery or provision shall not be of the essence (nor made so by notice). If no dates are so specified, delivery or provision will be within a reasonable time.
5.2 Acceptance of any requests by the Customer for final dates of delivery and/or installation of Products to be changed shall be at Blake Group’s sole discretion, and shall only be valid if at least twenty four hours notice thereof shall be given by the Customer. Blake Group shall be entitled to charge the Customer at Blake Group standard rates from time to time for any lost time, materials, costs, expenses and loss of profit arising from any abortive visits to the Customer’s premises.
5.3 Subject to the other provisions of these Conditions, Blake Group will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any non-delivery or delay in the delivery of the Products or any non-provision or delay in the provision of the Services (even if caused by Blake Group’s negligence).
6.1 Subject to Condition 6.2, the price payable by the Customer to Blake Group for the Products and/or Services shall be the price stated in the Quotation. Unless set out in the Quotation or otherwise agreed in writing by Blake Group, the price stated is exclusive of Value Added Tax, the whole costs of delivery, carriage, insurance, installation and erection of the Products and any other expenses or disbursements incurred by Blake Group in providing the Products and/or Services.
6.2 Blake Group may increase the price at any time prior to the date of delivery, if Blake Group’s costs have in Blake Group’s reasonable opinion been increased for any of the following reasons:- (a) any delay or failure on the Customer’s part (including but not limited to a delay or failure to obtain or provide materials which the Quotation states are to be obtained or provided by the Customer); (b) any amendment or alteration to Products and/or Services requested by the Customer; (c) any increase in costs attributable to the Customer’s request to expedite or delay delivery of the Products or provision of the Services. Blake Group shall use reasonable endeavours to discuss any such increase in price with the Customer prior to incurring any increased costs.
7.1 If the Customer does not have an existing credit account with Blake Group, payment of all sums due shall, unless otherwise agreed in writing by Blake Group, be made to Blake Group in full prior to delivery, collection or provision of the Products and/or Services.
7.2 Unless otherwise agreed in writing by Blake Group or otherwise provided for in these Conditions, payments shall become due 30 days from the date of delivery of an invoice by Blake Group to the Customer. The final date for payment shall be 7 days from the due date.
7.4 If the Customer fails to pay Blake Group any sum due on or before the final date for payment, the Customer will be liable to pay interest to Blake Group on such sum from the day following the final date for payment at the annual rate of five per cent (5%) above the base lending rate from time to time of The Bank of England, accruing on a daily basis until payment is made, whether before or after any judgement. Blake Group reserves the right to claim interest and late payment penalties under the Late Payment of Commercial Debts (Interest) Act 1998.
8 WARRANTIES, QUALITY AND LIMITATION OF LIABILITY
8.1 Nothing in the Contract excludes or limits Blake Group’s liability for death or personal injury caused by Blake Group’s negligence or fraudulent misrepresentation.
8.2 Subject only to Condition 8.3, Blake Group does not make or give any representation or undertaking (express or implied) about the condition, description, quality or performance of the Products or the fitness for purpose thereof.
8.3.1 Subject to Condition 8.3.2, Blake Group warrants that on delivery, and for a period of 12 months from the date of delivery (the warranty period), the Products shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship
8.3.2 Where any part of the Products supplied are ancillary items supplied by others, the warranty offered in Condition 8.3.1 and the “warranty period” for the purposes of those items shall apply from the date those items were received by Blake Group for incorporation in the Products, provided that Blake Group identify such items in writing to the Customer.
8.4 Subject to Condition 8.3, if:
(a) the Customer gives notice in writing to Blake Group during the warranty period within a reasonable time of discovery that some or all of the Products do not comply with
the warranty set out in Condition 8.3;
(b) Blake Group is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by Blake Group) returns such Products to the Blake Group’s place of business at the Customer’s cost, Blake Group shall, at its option, repair or replace the defective Products, or make a reasonable refund or adjustment to cost. Blake Group’s liability under Condition 8.3 shall be deemed to be fully discharged by Blake Group repairing or replacing the defective or by making a reasonable refund or adjustment to cost.
8.5 Blake Group shall not be liable for Products’ failure to comply with the warranty set out in Condition 8.3 in any of the following events:
(a) the Customer makes any further use of such Products after giving notice in accordance with Condition 8.4
(b) the defect arises because the Customer failed to follow Blake Group’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the
Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Blake Group following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Products without the written consent of Blake Group
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
8.6 Except as provided in this Condition 8, Blake Group shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 8.3. 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. Nothing in the Contract limits or excludes the statutory rights of a Customer who is a consumer to the extent that to do so would be unlawful.
8.7 Blake Group shall have no liability whatsoever for any loss, injury, damages, costs or expenses incurred by or on behalf of the Customer (including without limitation, any loss of income, loss of business, diminution of goodwill or any consequential loss or compensation whatever) which arise out of or in connection with:-
8.7.1 any error or failure in delivery, any mis-delivery or non-delivery of Products, or any error or failure in performance, mis-performance or non-performance of Services;
8.7.2 any defect in Products due to the Customer’s failure to follow Blake Group ‘s oral or written instructions on the storage, use or maintenance of the Products;
8.7.3 any defect arising from fair wear and tear, wilful damage, negligence, mis-use, alteration or repair of the Products; or
8.7.4 any defect arising from deficiencies in materials provided by the Customer.
8.8 The total liability of Blake Group under this Contract, whether in contract or delict, in negligence or for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed the price payable for the Products and/or Services as the same is stated in the Quotation.
8.9 Blake Group shall under no circumstances whatever 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 delivery, provision and installation of Products and/or Services including any losses that may result from Blake Group’s deliberate personal repudiatory breach of the Contract or a deliberate breach of the Contract by Blake Group, its employees, agents or subcontractors.
8.10 No action or proceedings under or in respect of this Contract whether in contract or in delict or in negligence or for breach of statutory duty or otherwise shall be commenced against Blake Group after the expiry of 36 months from the last date of delivery or provision of the Products and/or Services.
9.1 The Customer may terminate the Contract (a) in the event of a material breach of the Contract by Blake Group by giving 14 day’s prior written notice provided the Customer shall have first given Blake Group written notice of the said breach and allowed Blake Group a reasonable time thereafter (of no less than 14 days) within which to remedy the said breach or (b) with the express prior written consent of Blake Group.
9.2 Blake Group may terminate the Contract forthwith at any time:- (a) if the Customer fails to provide Blake Group with access to his premises for the purpose of delivering the Products and/or Services; or (b) the Customer fails to make any payment on or before the final date for payment or (c) the Customer commits any material breach of the Contract.
9.3 Either party may terminate the Contract forthwith if the other party (being an individual or firm) is sequestrated or becomes apparently insolvent or enters into any scheme or arrangement with its creditors or signs a trust deed for the benefit of its creditors or (being a body corporate) goes into liquidation or has an administrator, receiver or administrative receiver appointed to it, except for the purposes of a corporate re-organisation.
9.4 On termination or cancellation of the Contract for any reason:
9.4.1 Blake Group may retain a reasonable portion of the price to be determined by Blake Group in their absolute discretion; and
9.4.2 the Customer shall pay to Blake Group all costs and expenses incurred by Blake Group, or which Blake Group is obliged at the date of termination to incur, in relation to or in anticipation of the provision of the Products and/or Services (including but not limited to the costs of any materials specially ordered by Blake Group); and
9.4.3 (at Blake Group’s discretion) the Customer shall pay to Blake Group a reasonable premium representing Blake Group ‘s loss of profit incurred as a result of the termination or cancellation.
9.5 Conditions 7 and 8 shall remain in full force and effect notwithstanding termination of the Contract.
10.1 The Customer may not assign the Contract or any part of it without the prior written consent of Blake Group. Blake Group shall be entitled to assign the Contract or sub-contract any of its obligations under the Contract at its discretion.
11 FORCE MAJEURE
11.1 Blake Group reserves the right to defer the date of delivery of the Products or provision of the Services, or to cancel the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Blake Group including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to Blake Group’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
12.1 Any notice under a Contract must be given in writing and delivered by first class prepaid post or by fax to Blake Group or the last known address of the Customer and will be deemed to be received (if sent by post) 2 Working Days after posting; (if sent by fax before 3 p.m. on a Working Day) on the day of sending or (if sent by fax otherwise than before 3 p.m. on a Working Day), the next Working Day after sending.
12.2 Failure or delay by either party in enforcing or partially enforcing any provision of a Contract shall not be construed as a waiver of any of its rights under the Contract.
12.3 If any provision of a Contract is found by any court of competent jurisdiction to be unenforceable in any way, the remaining provisions of the Contract shall continue in full force and effect.
12.4 These Conditions together with the Quotation, and any amendments in writing signed by both parties, form the entire agreement between Blake Group and the Customer with respect to the subject matter of the Contract. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
12.5 The Contract shall be construed in accordance with Scots law and the parties submit to the non-exclusive jurisdiction of the Scottish Courts.