CargoTek

A wholly owned subsidiary of ISO Spaces South West Ltd.

The Hawkins Laboratory

Old Cathedral School

Cathedral Close

Truro

Cornwall

TR1 2FQ

 

info@isospaces.co.uk

Tel: 01872 276774

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Copyright 2017 CargoTek Ltd.

Terms & Conditions

Terms and Conditions for the supply of Containers by CargoTek Limited

 

1. Interpretation

In these Conditions the following definitions apply:

Business Day  a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

Conditions  means the terms and conditions set out in this document;

Confidential Information means all information (of whatever nature and however recorded or preserved) which:

(a)  was disclosed or received before or after the date of this Contract as a result of the discussions leading up to this Contract, entering into this Contract or the performance of this Contract;

(b)  is designated as “confidential information” by a Disclosing Party at the time of the disclosure;

(c) would be regarded as being confidential by a reasonable business person; or

(d) is clearly confidential from its nature and/or the circumstances in which it was imparted;

Container(s)  means the shipping container(s) set out in an Order (or any part of them), further details of which (if any) are contained in the Specification;

Contract  means the legally-binding agreement between us and you for the sale and purchase of the Container(s) in accordance with these Conditions and which incorporates, the Order Form and the Specification;

Customer Materials  means all materials and or artwork in whatever form, provided by you to us for use in the decoration of the Container(s);

Customer/ you/ your  the customer, details of whom are set out in the Order Form;

Delivery Location  means the address for delivery of the Container(s) as set out in the Order or such other address as may be agreed between you and us in writing from time to time;

Drawings  means all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, CAD materials, calculations, data, databases, schedules, programmes, and any other materials provided in connection with the Container(s) and all updates, amendments, additions and revisions to them and any works, designs, or inventions incorporated or referred to in them for any purpose relating to the Container(s) or any of them;

Force Majeure Event  means an event or sequence of events, beyond a party's reasonable control, which by its/their nature could not have been foreseen or if it/they could have been foreseen, was/were unavoidable and which prevents or delays a party in performing its obligations under the Contract;

IPRs  means all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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;

Order  means your order for the Container(s), as set out in the Order Form;

Order Form  means the order form supplied to you by us and signed by you;

Price  means the price set out in the Order Form;

Specification  means the specification for the Containers set out at Appendix A , in each as may be amended with the written agreement of the parties including to accommodate planning requirements;

VAT  means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Container(s); and

we, us or our  means CargoTek Limited, a company incorporated in England and Wales with company number 9738944 and whose registered office is at 15 Marshall Avenue, Worthing, West Sussex BN14 0ES.

2. Application of these Conditions

 

2.1  Any quotation provided by us to you, prior to the provision of an Order Form:

2.1.1  is for information purposes only. It is not a binding offer by us to supply Container(s) on the terms of the quotation and these Conditions; and

2.1.2   will be valid for 14 days only from the date of issue.

 

2.2   When you place an Order to purchase Container(s) from us by sending to us a signed Order Form you make an offer to purchase those Container(s) in accordance with these Conditions and no other conditions (whether express or implied by trade, custom or course of dealing) shall apply.  You are responsible for ensuring that the terms of the Order Form and any applicable Specification are complete and accurate.

2.3   Until a Contract is formed in respect of an Order we reserve the right at all times to reject any Order, in whole or in part, at our sole discretion.

2.4   A Contract will be formed in respect of an Order, upon the earlier to occur of:

2.4.1  written notification of acceptance by us of your Order which will usually be evidenced by us countersigning and dating the Order Form; or

2.4.2  the commencement of the fulfillment of the Order by us.

2.5  We will not accept any variation to these Conditions, an Order Form or a quotation unless the variation is expressly agreed by us in writing.

2.6  The Contract constitutes the entire agreement between you and us.  We each acknowledge that we have not relied on any statement, promise, representation, assurance or warranty made or given by or on our behalf which is not set out in the Contract.

3. Commencement and duration

3.1  This Contract shall begin on the date the Order Form is first signed by both of us, and shall continue in force unless and until terminated in accordance with any term of this Contract.

 

4. Terms of sale

 

4.1  Subject to the terms of this Contract, we agree to sell and you agree to purchaser the Container(s) for the Price.

 

4.2  We shall supply the Container(s) in accordance with the applicable Order, including the Specification.

 

4.3  We confirm that the Specification set out in Appendix A is the same specification as was submitted with the planning application filed in connection with the development at the Site.

 

4.4  We warrant that the Container(s) (supplied under QU 009) together with the additional works (Stairways and Walkways supplied under QU 011) shall together comprise all necessary components to build the structures of the scheme at the Site.  You hereby acknowledge that we have no responsibility for the provision of any utilities required for the operation of the Container(s) (including but not limited to water, sewerage and electricity).

5. Price

 

5.1  The Price for the Container(s) will be as set out in the Order

5.2  The Price:

5.2.1  includes packaging, insurance and delivery to the Delivery Location as stated in the Order; and

5.2.2  is exclusive of amounts in respect of value added tax (“VAT”).

6. Payment

6.1  We shall invoice you for the Container(s) in accordance with the terms set out in the Order Form.  You must pay all invoices in full, without deduction within 10 Business Days of the invoice date by bank transfer to the bank account specified on the invoice.

6.2  Provided that we have issued the invoice in accordance with this Contract, we will not commence work, continue work or ship the finished Container(s) to you as appropriate for any stage until payment of the respective invoice payable in respect of the relevant stage of work has been received in full and we have the right to suspend work on the Container(s) or postpone delivery pending any such payment.

6.3  VAT will be charged by us and paid by you (on receipt of a valid VAT invoice from us) at the then applicable rate.

6.4  If you fail to make any payment due to us under the Contract by the due date for payment, then we shall be entitled to charge interest on the overdue amount at the rate of 4% per annum above the Royal Bank of Scotland Plc's base rate from time to time.  Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

7. Delivery

 

7.1  We shall deliver the Container(s) to the Delivery Location at any time or times after the Container(s) or any of them, are ready for delivery and shall give you at least 5 Business Days’ notice prior to making a delivery.  Delivery of the Container(s) shall be completed on the Container(s) arrival and unloading at the Delivery Location.

7.2  Any estimated dates quoted for delivery are approximate only, and the time of delivery is not of the essence We will not be liable for any delay in or failure of delivery caused by your failure to provide adequate delivery instructions or access to the Delivery Location or by a Force Majeure Event.

7.3  If we accept an Order for delivery to a Delivery Location outside of the UK, you may be subject to import duties or other taxes in addition to VAT. These import duties or other taxes are outside our control and must be borne by you.

7.4  We may provide you with a form of acceptance to sign but in any event you are deemed to have accepted the Container(s) at the point that: (i) you commence using the Container(s) or (ii) if sooner, upon the expiry of 3 Business Days from delivery if you have not given any notification of any defects within that time.

7.5  If the Customer becomes aware, prior to delivery, that any of the Container(s) do not comply with this Contract, the Order Form or the Specifications you may give us written notice and reject the non-compliant Container(s), in which case we shall promptly repair or replace the non-compliant Container(s) at our own risk and expense so that they comply with the Contract, the Order Form and the Specifications.

7.6  Where you or your addressee at the Delivery Location fails to take delivery of the Container(s) within [5] Business Days of us having notified you that the Container(s) (or any of them) are ready, then unless your failure to take delivery has been caused by a Force Majeure Event or by our failure to comply with our obligations under the Contract, the Container(s) shall be deemed to have been delivered to you at midday of the [third] Business Day following the day on which we notified you that the Container(s) were ready and we shall be entitled to charge you for our reasonable additional costs of storage, insurance, redelivery and any other costs necessarily incurred by us.

7.7  If you have not taken delivery of the Container(s) within [20] Business Days of the day on which we notified you that the Container(s) were ready, then we may resell or otherwise dispose of the Container(s).  In the event that we resell the Container(s) or any of them in accordance with this condition, we shall account to you for any amounts already paid by you to us in respect of the Container(s) subject to the deduction and set off of our reasonable storage, insurance and selling costs.

7.8  Where you have ordered multiple Containers, we may deliver the Containers to you by installments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an installment shall not entitle you to cancel any other installment.

7.9  Unless we agree otherwise in writing from time to time you are not required to return any packaging materials to us.

 

8 Title and risk

8.1  Risk in the Container(s) will pass to you on delivery in accordance with this Contract and the Order Form. We will not be liable for any loss or destruction of the Container(s) occurring after they are delivered to you unless caused by our acts or omissions.[A1] 

 [A1]We are happy – important that delivery location is ex works on this contract

8.2  Title and ownership in the Container(s) will pass to you once we have received payment in full for the Container(s).

8.3  Until title and ownership in the Container(s) has passed to you and if delivery is made prior to receipt of payment in full then, you will:

8.3.1  hold the Container(s) as bailee for us;

8.3.2  ensure that the Container(s) are clearly identifiable as belonging to us;

8.3.3  take all reasonable care of the Container(s) and keep them in reasonable condition;

8.3.4  insure the Container(s): (i) with a reputable insurer; (ii) from the date of delivery; (iii) against all risks; and (iv) for an                        amount at least equal to the Price;

8.3.5  not remove or alter any mark on or packaging of the Container(s);

8.3.6  provide us with such information concerning the Container(s) as we may reasonably request from time to time; and

8.3.7  inform us as soon as possible if you become subject to any form of bankruptcy, insolvency or similar proceedings.

8.4  If, at any time before title to the Container(s) has passed to you, you inform us or we reasonably believe, that you are or are likely to become subject to any bankruptcy, insolvency or similar proceedings, we may:

8.4.1  require you at your expense to return the Container(s) to us; and

8.4.2  if you fail to do so promptly, enter any premises where the Container(s) are stored and repossess them.

9. Warranty

 

9.1  We shall enter into a warranty in the form set out at Appendix B on or promptly after the date of this Contract, and we warrant           that upon delivery and for a period of 12 months after delivery (“Warranty Period”), the Container(s) will:

9.1.1  conform in all material respects with the Specification;

9.1.2  be free from material defects in design, material and workmanship;

9.1.3  be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

9.1.4  be fit for the purpose held out by us.

9.2  Subject always to condition 9.3 below, if;

9.2.1  during the Warranty Period and within a reasonable period of discovery, you inform us in writing that some or all of the              Container(s) do not comply with condition 9.1; and

9.2.2  you give us or our agents a reasonable opportunity to examine the defective Container(s); and

9.2.3  we (acting reasonably) agree that the Container(s) do not comply with condition 9.1,

we shall (at our sole and absolute discretion) either repair or replace the defective Container(s) or refund the price of defective Container(s).

9.3  We will not be liable for any failure of the Container(s) to comply with condition 9.1 where;

9.3.1  the defect arises from wear in the normal course of use of the Container(s) or as a result of willful damage, your                            negligence or abnormal working conditions;

9.3.2  the defect is caused by your failure to comply with our instructions and/or good practice guidelines as to storage,                          installation, commissioning, use or maintenance of the Container(s);

9.3.3  you move the Container from the original Delivery Location or it is situated on any site that is not compliant with our                    advice and instructions including without limitation any site that is not precisely level;

9.3.4  you repair or alter any Container(s) without our prior written agreement; or

9.3.5  where you use any of the Container(s) after notifying us that it does not comply with condition 9.1.

9.4  Where we have the benefit of a warranty from a third party supplier in respect of any component  used in the Container(s), we shall use our reasonable endeavors to ensure that the benefit of any such warranty is passed on to you following delivery of the Container(s).

9.5  Except as provided in this condition 9 and the warranty set out at Appendix B, we shall have no liability to you in respect of the Container(s)' failure to comply with the warranty set out in condition 9.1.

9.6  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.

9.7  These Conditions will apply to any Container(s) repaired or replaced under condition 9.2 or the warranty set out at Appendix B.

10. Liability

10.1  Nothing in these Conditions or the Contract shall limit or exclude

10.1.1 either party; liability:

(a) for death or personal injury caused by our negligence; or

(b) for fraud or fraudulent misrepresentation;

10.1.2  our liability:

(a)  under or in connection with the warranty given by us in respect of the Containers as set out in Appendix B;

(b)  for breach of the terms implied by s12 of the Sale of Goods Act 1979 and by s2 of the Supply of Goods and Services            Act 1982; or

(c) for defective products under the Consumer Protection Act 1987.

10.2  All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law,                         excluded by these Conditions.

10.3  Subject to condition 8.1, we will not in any circumstances, be liable to you (whether in contract, tort (including negligence),          breach of statutory duty, or otherwise) for:

10.3.1  loss of use;

10.3.2  any form of indirect, consequential or special loss, or

10.3.3  any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether                    any such loss is direct or indirect,

and, in each case, however arising.

10.4  Other than as set out above, each party’s total liability to the other (however arising) in respect of or in connection with the Container(s), and/or otherwise in connection with the Contract, shall in no circumstances exceed the price of Containers that is/are the subject of any claim.

10.5  We shall put into effect and maintain the following insurance policies (the “Insurance Policies”) in connection with this Contract, with limits per claim to be available at all times of no less than:

10.5.1  [professional indemnity insurance: £[0.5] million;]

10.5.2  [public liability insurance: £[5] million;]

10.5.3  employers’ liability insurance with policy limits of not less than the statutory requirements.  If the Supplier’s Personnel                are not employees of the Supplier, the Supplier shall ensure that the employer of such Personnel holds such insurance;

10.6  We shall:

10.6.1  on your request from time to time, provide you with written evidence of our compliance with our obligations under this              clause, including by providing copies of the policy certificates; and

10.6.2  promptly notify you of any change in cover, cancellation or non-renewal of any of the Insurance Policies.

11. Termination

 

11.1 If either party becomes subject to any of the events listed in condition 9.2, the other party may terminate the Contract with immediate effect by giving written notice to you.

11.2  For the purposes of condition 9.1, the relevant events are:

11.2.1  a party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admit                inability to pay its debts, or (being a company or limited liability partnership) its deemed unable to pay its debts within                the meaning of section 123 of the Insolvency Act 1986;

11.2.2  a party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or                      make a proposal for or enters into any compromise or arrangement with its creditors;

11.2.3  (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection                  with a party’s winding up, other than for the sole purpose of a scheme for a solvent amalgamation with one or more                    other companies or a party’s solvent reconstruction;

11.2.4  (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a              notice of intention to appoint an administrator is given or if an administrator is appointed over a party;  

11.2.5  (being a company) the holder of a qualifying floating charge over a party’s assets has become entitled to appoint or has               appointed an administrative receiver;

11.2.6  a person becomes entitled to appoint a receiver over a party’s assets or a receiver is appointed over a party’s assets;

11.2.7  a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such                          process is levied or enforced on or sued against, the whole or any part of a party’s assets and such attachment or                        process is not discharged within 14 days;

11.2.8  any event occurs, or proceeding is taken, with respect to a party in any jurisdiction to which it is subject that has an                      effect equivalent or similar to any of the events mentioned in condition 9.2.1  to 9.2.6 (inclusive);

11.2.9  a party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

11.3  If you fail to pay to us any amount or amounts due under the Contract within [10] Business Days of having been notified by us of the failure, we may terminate this Contract with immediate effect by giving written notice.

11.4  Without limiting its other rights or remedies, we may suspend provision of the Container(s) under the Contract or any other contract between us and you if you become subject to any of the events listed in condition 11.2, or if we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due to us under this Contract on the due date for payment within 5 Business Days of having been notified by us of the failure.

11.5  In the event of termination of this Contract:

11.5.1  the Recipient party shall return to the Disclosing Party any Confidential Information received under this Agreement;

11.5.2  you will be liable for a pro rata amount of the outstanding payments for work completed by us and delivered in                            accordance with the terms of this Contract, which will become immediately due and payable by you upon us sending                  an invoice to you;

11.5.3  you will not be entitled to any automatic refund of monies paid to us, and

11.5.4  we will use our reasonable endeavours to sell the Container(s) to third parties, without obligation to carry out further                  works and in the event that we are able to do so then we will, at our discretion, make you a payment (which may be a                  partial or full repayment of the amount paid by you to us) out of the sale proceeds after deduction of any additional                    works, storage, transport, insurance, administrative and sales costs incurred by us. 

11.6  Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.

11.7  Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.

12  IPRs and Advertising

13 Confidentiality

14  General

14.1  Time

Unless specifically stated otherwise, time is not of the essence in respect of any date or period specified in these Conditions.

14.2   Notices

Notices under this Agreement will be in writing (and not by fax or by email) and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:

14.2.1  by first-class post: two Business Days after posting;

14.2.2  by hand: on delivery;

14.3   Waiver

No delay, act or omission by either you or us in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

14.4   No Set Off

 You may not set off or deduct any amounts from the Price.

14.5   Severance

If any condition or part condition of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant condition or part-condition shall be deemed deleted. Any modification to or deletion of a condition or part-condition under this condition shall not affect the validity and enforceability of the rest of the Contract.

14.6   Rights of Third Parties

This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

14.7   Assignment

Neither of us shall assign, novate, dispose of, sub-licence, sub-contract or otherwise transfer this Contract nor any or all of their rights and obligations hereunder to any third party without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).

14.8   Entire Agreement

The Contract constitutes the entire agreement between you and us in relation to its subject matter and it supersedes any previous agreement relating to the subject matter of this Contract, whether written or oral. No other terms apply.

14.9   Succession

This Contract will bind and benefit each of your or our successors and personal representatives.

14.10  Counterparts

 This Contract may be executed in any number of counterparts, each of which, when executed, shall be an original, and all the  counterparts shall together constitute one and the same instrument.

14.11  Governing Law & Jurisdiction

14.11.1 This Contract, any non-contractual obligations and any dispute or claim arising out of or in connection with it will be                      governed by and construed in accordance with the law of England and Wales.

14.11.2 Disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.

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