Terms and Conditions of Sale
1.1 In these conditions the following words have the following meanings:
1.1.1 the Buyer: the person(s), firm or company who purchases the Goods from the Company;
1.1.2 the Company: GPS Collars Ltd or GPS Collars AS;
1.1.3 Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
1.1.4 Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
1.1.5 IPR: all copyright, patent rights, trade marks, design rights, rights in or relating to databases, semiconductor topography rights or any other intellectual property rights (registered or unregistered, vested or contingent) throughout the world and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing.
1.1.6 Permitted Purpose: tracking of wildlife, semi-domesticated and domesticated animals for environmental, zoological, ecological and conservation research purposes.
1.2 In these conditions 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.
1.3 In these conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these conditions headings will not affect the construction of these conditions.
1.5 In these conditions reference to any Scottish legal term for any action, judicial procedure, court, concept or principle shall, where appropriate, include any equivalent or the closest approximation to such term in any other relevant jurisdiction.
- APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by Dr Ian Hulbert of the Company. Nothing in this condition will exclude or limit the company's liability for fraudulent misrepresentation.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written or email acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and subject to the Buyer indemnifying the Company in full against all loss, damages, charges, and expenses incurred by the Company.
2.7 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.8 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Subject to condition 7.1, any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The description of the Goods shall be as set out in the Company’s quotation.
4.1 Unless otherwise agreed by the Company, the Company shall deliver the Goods to the Buyer’s place of business.
4.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, increased costs of working, loss of anticipated savings, loss of profit, loss of business, loss of contracts, loss of revenue, loss of data or depletion of goodwill or reputation and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence).
4.4 If for any reason the Buyer will not accept delivery of any of the Goods, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.4.2 the Goods will be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company’s trustee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.4.3 the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.7 If the Buyer fails to take delivery of the Goods the Company shall be entitled to sell the Goods at the best price readily obtainable and deduct all reasonable storage, selling and other expenses, and account to the Buyer for any excess over the price under the Contract or charge the Buyer for any shortfall.
7.1 The price for the Goods shall be the Company’s quoted price for the Goods. This price may be in Euros, Pounds Sterling or US Dollars as the Company shall determine at its sole discretion. All quoted prices are valid for 30 days only from the date of quotation, after which they may be altered by the Company. The Company reserves the right, by giving notice to the Buyer at any time before delivery, to amend a quotation in the event of currency fluctuations of 2.5% or more. Where no price has been quoted by the Company or been otherwise agreed, the price listed in the Company’s published price list current at the date of despatch shall apply.
7.2 The price for the Goods quoted and any other costs or charges in relation to packaging, carriage and insurance of the Goods shall be exclusive of any value added tax (“VAT”) and any other taxes or duties.
8.1 The Buyer shall pay to the Company the price for the Goods and any other costs and charges in terms of the Contract (including without limitation shipping and insurance costs) together with any VAT and other applicable taxes or duties as follows: For orders less than £10,000, payment has to be made in full. For orders low £10,000 or more: (i) 50% of the price of the Goods plus VAT and all other applicable costs and charges shall be paid with the order and the order will not be accepted until this has been done, and (ii) 50% of the price of the Goods plus VAT and all other applicable costs and charges shall be due on the earlier of (a) 14 days from receipt by the Buyer of the Goods or (b) last working day of the month following the month in which the Goods are delivered or deemed to be delivered.
8.2 Time for payment shall be of the essence.
8.3 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.4 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Royal Bank of Scotland plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Scotland) Regulations 2002.
9.1 Where the Company is not the manufacturer of the Goods or a component part of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company in respect of the Goods or relevant component part.
9.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods will be free from defects in materials and workmanship.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:
9.3.1 the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
9.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of the warranty in condition 9.2 if:
9.4.1 the Buyer makes any further use of such Goods after giving such notice; or
9.4.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.4.3 the Buyer alters or repairs such Goods without the written consent of the Company; or
9.4.4 the total price for the Goods has not been paid by the due date of payment.
9.5 Subject to conditions 9.3 and 9.4, if any of the Goods do not conform with the warranty in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.
9.7 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
- LIMITATION OF LIABILITY
10.1 Subject to condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its directors, employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions; and
10.1.2 any representation, statement or delictious act or omission including negligence arising under or in connection with the Contract.
10.2 All other warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation or for any other liability which by law cannot be limited or excluded.
10.4 Subject to conditions 10.2 and 10.3:
10.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to a sum equal to 125% of the total price for the Goods; and
10.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for increased costs of working, loss of anticipated savings, loss of profit, loss of business, loss of contracts, loss of revenue, loss of data or depletion of goodwill or reputation or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- INTELLECTUAL PROPERTY RIGHTS
11.1 The Company hereby grants to the Buyer a non-transferable (unless permitted in accordance with condition 12.1 below) and non-exclusive right to use the IPR in, and to, the Goods only for the Permitted Purpose, but without authority to sub-licence the IPR.
11.2 The Buyer shall not reverse engineer, decompile, disassemble or otherwise reduce any part of the software contained within the Goods to human-readable form nor permit any third party to do so, except to the extent expressly permitted by applicable law. The interface information necessary to achieve interoperability of such software with independently created computer programs will be provided to the Buyers on request on payment of the Company’s reasonable costs and expenses.
11.3 The Buyer shall not delete or obscure any trade mark or copyright notice of the Company contained on or within the Goods (or part thereof) nor pass off nor attempt to pass off the Goods as having been manufactured by the Buyer. Other than as expressly permitted by the Company in writing, neither the Buyer nor any of its directors or employees may during or after the expiry or termination of this Contract use or adopt any domain name, trade mark, trade name or commercial designation that includes or is similar to or may be reasonably mistaken for the whole or any part of any domain name, trade mark, trade name or commercial designation used by the Company.
12.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12.2 The Company may assign the Contract or any part of it to any person, firm or company.
- FORCE MAJEURE
13.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 120 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by any person that is not a party to it.
14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the law of Scotland and the parties submit to the non-exclusive jurisdiction of the Scottish courts.
15.1 Unless otherwise expressly stated in these conditions, all communications between the parties about this Contract must be in writing or in email form and delivered by hand or sent by pre-paid first class post or sent by airmail (if overseas) or sent by facsimile transmission or sent by email:
15.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
15.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
15.2 Communications shall be deemed to have been received:
15.2.2 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.3 if sent by airmail, 6 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.4 if delivered by hand, on the day of delivery;
- if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day;
- if sent by email, 2 hours after the sender’s recorded time of sending the email where no delivery failure notice is received by the sender.
15.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.
15.4 The Buyer shall only be entitled to terminate or rescind the Contract if notice to this effect is in writing (and not by email).
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