1.1 We will sell and you will purchase the Goods subject to these Conditions. These Conditions set out the entire agreement between you and us, save for any variations agreed in writing by us and attached hereto.
1.2 The “Goods” means the goods and/or services that we have agreed to supply to you (including the equipment, installation and any other preparatory or ancillary work).
1.3 No order is deemed to be accepted until confirmed by us in writing.
1.4 You are responsible for ensuring that your order is accurate and for providing us with such information as we require to complete the order.
1.5 All rights expressly reserved or granted to us by these Conditions shall be without prejudice to any other rights which we may have from time to time.
2. Basis of Sale
2.1 These Conditions shall apply to all contracts for the sale of Goods by us to you to the exclusion of all other terms and conditions, including any terms or conditions which you may purport to apply under any purchase order, and no variation of these Conditions shall be binding unless agreed in writing by us and attached hereto.
2.2 We shall notify you as to whether we are supplying the Goods on a ‘supply only’ basis or an ‘install’ basis. Where we are providing a ‘supply only’ basis, such of these Conditions as relate to installation only shall not apply.
2.3 Our employees or agents are not authorised to make any representations concerning the Goods unless confirmed by us in writing. In entering into a contract to purchase Goods, you acknowledge that you do not rely on any such representations which are not so confirmed.
3. Orders and Specifications
3.1 We will take no responsibility for any drawings, specifications and particulars submitted by you and if the Goods are to be manufactured or any process is to be applied to the Goods by us in accordance with a specification submitted by you, you shall indemnify us against all loss, damages, costs and expenses incurred by us in connection with settlement of any claim for infringement of any patent, copyright, design right, trade mark or other intellectual property rights if any other person which results from our use of your specification. We reverse the right to make changes in the specification. We reserve the right to make changes in the specification of the Goods which are required to conform to any applicable statuary or EU requirement.
3.2 All descriptions, illustrations and other material contained in our Catalogue and other advertising material are intended merely to present a general description of the Goods therein and none shall form part of the Contract
3.3 If the signing-off of our installation is dependent on a third party (e.g. Council, H&S Executive), you must inform us upon placing your order as subsequent notification will affect the delivery date, installation date and price
4.1 You shall make all arrangements to take delivery of the Goods whenever they are tendered for delivery (including outside normal business hours). You must ensure that an authorised representative is present at the time of delivery in order to ensure access and take delivery.
4.2 Where the Goods are to be delivered by instalments, each instalment shall constitute a separate contract into which these Conditions shall be incorporated. Failure by us to deliver any instalment shall not entitle you to treat these Conditions as repudiated.
4.3 Any dates quoted for delivery of the Goods are approximate only and we shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed in writing by us.
4.4 You shall be required to ensure all the Goods are present at the time of delivery and you will be required to sign for the delivery of the Goods. A full breakdown of the Goods delivered will be provided upon delivery. It is your responsibility to ensure the Goods are checked in their entirety. We will accept no responsibility for shortage of Goods once they have been signed for. If Goods are accepted from a carrier without being checked or signed for as unchecked, we will take no responsibility for any damages or shortages
4.5 No claim for damage in transit, shortage of delivery or loss of Goods or materials will be entertained unless, in the case of damaged in transit or shortage of delivery, a separate notice in writing is given within 48 hours of receipt of the Goods.
4.6 We may deliver the Goods in advance of the quoted delivery date upon giving you reasonable notice, and may also deliver at a date earlier than the proposed installation date. You must advise us at the time of placing your order if this is not acceptable as subsequent variations will affect the delivery date, installation date and price.
4.7 If we fail to deliver the Goods (or any instalment) for any reason other than any cause beyond our reasonable control or your fault, and we are accordingly liable to you, our liability shall be limited to the excess (if any) of the cost to you (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
4.8 If you fail to take delivery of the Goods or fail to give us adequate delivery instructions at the time stated for delivery, then we reserve the right (without prejudice to clause 17) to:
(a) Store the Goods until actual delivery and charge you for the reasonable costs (including insurance) of storage; and/or
(b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the agreed price, or charge you for any shortfall below the agreed price.
5.1 You must ensure that an authorised representative is present at the time of installation or any preparatory work being carried out in order to ensure access to the premises and provide confirmation as to design and layout.
5.2 We will cordon off the installation area using temporary orange fencing. If you require more substantial fencing, you must advise us before the agreed delivery date. The price will be altered accordingly.
5.3 Any dates quoted for installation or any preparatory works are approximate only and we shall not be liable for any delay howsoever caused. Time for installation shall not be of the essence unless previously agreed in writing by us. Where we need to change an installation or preparatory work date, we will give you at least 24 hours’ prior notice, whenever practical.
5.4 You must ensure that there are no loose aggregates on the surface where any markings are to be applied or any Goods to be installed.
5.5 You acknowledge that installation of floor markings is completed by a specialist team and may not take place on the same day as installation of the Goods.
5.6 You acknowledge that we may need access to the premises outside normal business hours.
5.7 Although we shall take reasonable steps to avoid causing damage to floor, surfaces and access routes, we shall not be liable for such damage (unless caused by our negligence or wilful default) when you have given us permission to access such floor, surface or access routes.
6.1 The price of the Goods shall be our quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by you, after which time they may be altered by us without giving notice to you. Goods shall be invoiced at the prices prevailing at the time of despatch. All prices are subject to completion of a full site survey.
6.2 Any price quoted by us for the Goods shall be deemed to exclude all costs of delivery and any applicable VAT unless otherwise stated. Unless otherwise specified, packing cases and pallets will be charged in addition to the price but will be credited in full on return (carriage paid) and in good condition within one month of delivery.
6.3 We reserve the right, by giving notice to you at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to us which is due to any delay caused by your instructions, any change to those instructions or failure to give us adequate instructions.
6.4 If we are unable to deliver or install the Goods on the agreed date due to your default, you will pay us an abortive fee of £200 plus VAT per half-day or £400 plus VAT per full day. We will reschedule your delivery and/or installation, but there will be a consequential delay.
6.5 The price excludes the connection or relocation of any services unless expressly stated otherwise.
7.1 You agree to pay the price of the Goods within 15 days of the date of our invoice, which we shall deliver at any time after delivery of the Goods, unless otherwise agreed by use. Time for payment shall be of the essence.
7.2 For all Companies ordering with us for the first time, unless otherwise agreed in writing, payment of 100% shall become due on a Pro-Forma basis.
7.3 Payment is accepted by BACS, CHAPS, cheque or credit card. The payment will require sufficient time to clear and only then will we contact you to arrange a delivery / installation date.
7.4 Payments by credit card will incur a 2.5% surcharge.
7.5 Subsequent orders will be subject to a credit check and then a credit limit will be set by us, at our discretion. This credit limited will be reviewed upon receipt of any further orders.
7.6 Payment shall be made without deduction or set-off, and shall be made notwithstanding any delay in obtaining such sign off of the instalment by any third party (e.g. Council, H&S Executive, RoSPA) however if any remedial works are required, we will allow you to hold 10% of the total order value for a maximum period of four weeks.
7.7 Where we have agreed special discount, payment or other terms with you, these shall be strictly subject to your compliance with these Conditions, and such terms shall cease and revert to our standard terms upon your non-compliance.
7.8 The installation of certain items are carried out by different specialist teams and may not take place at the same time as the installation of the playground equipment and will consequently be invoiced separately.
8. Overdue Accounts
8.1 We shall be entitled to charge interest (calculated pro rata on a daily basis) on overdue accounts from the date payment is due in accordance with the terms of the Late Payment of Commercial Debts (interest) Act 1998 (as amended) until the date of actual payment.
8.2 We shall be entitled to cancel the contract or withhold delivery of the Goods to any customer whose account becomes overdue.
9. Risk and Ownership
9.1 As soon as the Goods are delivered either to the site or into storage accommodation, you shall assume sole risk for any loss or damage to such Goods or materials howsoever caused. If you are unable to accept delivery of all or any part of the Goods within 7 days after notification that they are ready for despatch, risk in relation to such Goods shall pass to you at the expiry of the 7 day period. Once the risk has passed to you, such risk shall in no circumstances whatsoever be passed back to us.
9.2 Whilst risk in the Goods shall pass on delivery, legal and beneficial ownership of the Goods shall remain with us until such time as we have received payment in full in respect of all sums owing from you to us and until such time you shall keep the Goods separate from your property and that of any third party and clearly identified as being the property of Sovereign Design Play Systems Limited.
9.3 Payment for all Goods supplied to you shall become due if:
(a) You fail to pay for the Goods on the due date (or fail to pay any instalment, in which case the whole outstanding balance shall immediately become due); or
(b) If you have been declared bankrupt, go into voluntary liquidation or commit any act of bankruptcy or insolvency;
Where upon you shall immediately notify us thereof and, in such circumstances, the power of sale granted to you shall automatically determine, you shall not part with possession of any of the Goods which have been delivered to you by us, and we shall have the right to withhold delivery of any undelivered Goods and to stop any Goods in transit.
9.4 If payment for any Goods is overdue whether in whole or in part, we reserve the right to enter upon your premises and take possession of the Goods and/or re-sell the Goods or such of them as we deem necessary in order to recover the amount of overdue payment together with any costs incurred by us thereby. For these purposes, you expressly and irrevocably authorise us to enter and take all necessary and reasonable steps upon your premises.
9.5 At all times following delivery of the Goods and prior to payment in accordance herewith, you are and shall remain our fiduciary bailee in respect of the Goods and you shall have the power to re-sell or otherwise deal with the Goods in the ordinary course of business in your name on condition that:
(a) Such re-sale or other dealings shall give rise to no obligations whatsoever, whether contractual or otherwise, on us;
(b) The proceeds of re-sale or other dealings shall be held by you in a clearly identifiable account separate from your own and from those of third parties, and our beneficial interest shall attach to the proceeds of re-sale, and we shall have the right to trace the proceeds of the sale;
(c) The separate account into which all such proceeds of re-sale are to be placed shall not be permitted to become overdrawn; and
(d) You shall incorporate into any dealings with a sub-buyer, a term to the effect that legal ownership of such Goods shall not pass onto the sub-buyer until payment has been received in full by us.
9.6 If any of the Goods are incorporated or used in any other products before full payment in respect of all sums owing from you to us, whether under a contract or otherwise, title in such products shall be and shall remain with us until such full payment has been made or such products have been sold and all of the above provisions of this clause 9 shall extend to such products.
10. Product Safety
10.1 You undertake to comply with the General Product Safety Regulations 1994 to the extent that they apply to the Goods.
10.2 You undertake to indemnify us in respect of any and all claims arising from the Goods being unsafe as a result of your activities.
10.3 You agree to monitor the safety of the Goods, to pass on any information on the risks of the Goods and to co-operate in any action we may decide to take to avoid those risks.
10.4 You acknowledge receipt of our important health and safety notification relating to the installation of the Goods and associated floor markings.
11. Warranties and Liability
11.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to you as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by the applicable law.
11.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976, as amended) your statutory rights are not affected by these Conditions.
11.3 We will provide the Goods in accordance with BSEN 1176/1177. We do not warrant or represent that the Goods will comply with any other standard or quality mark.
11.3 Any claim by you which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to us within seven days of the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure but not more than one year after delivery. If delivery is not refused, and you do not notify us accordingly, you shall not be entitled to reject the Goods and we shall have no liability for such defect or failure, and you shall be bound to pay the agreed price as if the Goods had been delivered in accordance with the contract.
11.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quantity or condition of the Goods or their failure to meet specification is notified to us in accordance with these Conditions, we shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at our discretion, refund to you the price of the Goods (or a proportionate part of the price), but we shall have no further liability to you.
11.5 Except in respect of death or personal injury caused by our negligence, we shall not be liable to you by reason of any representation (unless fraudulent), or compliance with any instruction or consent given by you or on your behalf by an authorised representative, or any implied warranty, condition or other term, or any duty at common law or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by our negligence or our employees, agents or otherwise) which arise out of or in connection with the supply of the Goods or their use by you, and our entire liability under or in connection with the contract shall not exceed 110% of the price of the Goods, except as expressly provided in these Conditions.
11.6 We shall use reasonable endeavours to pass on to you the benefit of any guarantees or warranties given by any manufacturers of the Goods.
12. Return of the Goods
12.1 We shall only accept the return of any Goods of faulty manufacture within seven days of the date of delivery or within a reasonable time after discovery of the defect (but not more than one year after delivery) and such Goods shall be returned with written notification which must state the nature of the fault of each item and the invoice number in relation to the purchase of each item.
12.2 All transportation charges relating to the return of Goods will be borne by you unless otherwise agreed in writing, and the risk in the Goods shall remain with you until the Goods are received by us and any Goods so returned are despatched by you at your own risk.
12.3 You shall not be entitled to reject part only of the Goods delivered in accordance with these Conditions.
12.4 Any claims against us for Goods not credited or replaced will only be considered where you can provide proof of delivery to us.
12.5 We will at our discretion replace whenever possible Goods found to be of faulty manufacture after examination provided that the Goods have been returned in accordance with these Conditions. We will return goods after examination if they are found to have no fault or defect.
13. Descriptive Matter
13.1 All leaflets, specifications, drawings and particulars of prices, weights, dimensions, colours and performance issued by us are approximate only and are not intended to form the basis of any contract between you and us.
13.2 Any chairs/stools shown on the design are for visual representation only.
13.3 You acknowledge that all tray units exclude trays.
14. Intellectual Property Rights
14.1 We hereby grant to you a non-exclusive and non-transferable licence to use such of our intellectual property rights as may be reasonably necessary for you to comply with your obligations under the contract. Such licence shall terminate automatically upon your completion of the final act required of you to comply with such obligations.
14.2 If any claims is made or any action brought against you in respect of any infringement of an intellectual property right by the use or sale of Goods supplied by us, you must immediately give us written notice with full particulars of such claim or action.
15.1 If Goods are credited it will be at the invoice price stated on the return application sheet and agreed by us.
15.2 In the event of your receivership or insolvency, credits will only be made against your pre-existing indebtedness. If you make any voluntary arrangement, become insolvent or commit any other act of bankruptcy, we reserve the right to cancel the contract or suspend any further deliveries under the contract without any liability to you, and if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
16.1 No order confirmation once accepted to us in writing may be cancelled without our written consent.
16.2 If an order is cancelled within 48 hours of order confirmation, and our written consent is given for a cancelled order, the company is entitled to charge you a fee of 20% of the order value, to a maximum of £1,000.
16.3 If an order is cancelled after 48 hours from order confirmation, and our written consent is given for a cancelled order, the company is entitled to charge you a fee of 50% of the full order value.
17. Force Majeure
17.1 We will not be liable to you or deemed to be in breach of contract by reason of delay or failure to perform any of the Company’s obligations if the delay or failure due to acts caused beyond our reasonable control.
18.1 No waiver by us of any breach of the contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
18.2 If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the remainder shall not be affected.
18.3 These Conditions and the contract shall be governed by English law and any dispute shall be submitted to the exclusive jurisdiction of the English courts.
18.4 These Conditions do not purport to confer a benefit on any third party.
18.5 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other’s principal place of business.
19. Confidentiality and Freedom of Information
19.1 You shall take all proper steps to keep confidential all information relating to us or our business that is obtained by you as a result of this contract, and will not divulge the same to any third party, except to the extent that such information becomes public through no fault of yours. This obligation shall continue in force indefinitely, notwithstanding termination of our business relationship.
19.2 We will provide such assistance and support as you may require for the purpose of enabling you to comply with the Freedom of Information Act 2000 and associated regulations (“FOIA”). We acknowledge that you may be obliged under the FOIA to disclose information to third parties subject to certain exemptions. We acknowledge that the decision to disclose information under the FOIA is at your discretion, provided that you agree to consult with us prior to any disclosure relating (directly or indirectly) to us, and you will not disclose any information relating (directly or indirectly) to us where we reasonably notify you that:
(a) such information, if disclosed by you, would constitute a breach of clause 20.1, in accordance with section 41 of the FOIA; or
(b) such information constitutes a trade secret or such information, if disclosed by you, would (or would be likely to) prejudice our commercial interests in accordance with section 43 of the FOIA.
20. E & OE
20.1 Errors and omission excepted.