Raybat Terms and Conditions

1. Interpretation
1.1 In these Conditions the following definitions apply:
“Authorised Representative” the person named overleaf.
“Commencement Date” the date when the supply of the Goods and Services is anticipated to commence.
“Conditions” these conditions of Sale.
“Contract” this Contract for the supply of the Goods and Services of which these Terms and Conditions of Sale and the provisions shown overleaf form part.
“Contract Price” the price stated overleaf for the supply of the Goods and Services
“Delivery” the moment when the Delivery Vehicle comes to a final stop at the Delivery Address or nearest point most practicable
“Delivery Address” the address specified overleaf.
“Delivery Vehicle” the vehicle or vehicles delivering the Goods and Services
“Force Majeure” an event beyond the control of a party to the Contract and shall include (without limitation): act of god, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of RAYBAT or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery
“Installation” when the Goods are placed in their operational position or become operational, whichever is the later.
“Raybat” Raybat Limited who is registered in England and Wales under number 05955397 whose registered office is at Badger Farm, Willowpit Lane, Hilton, Derbyshire, DE65 5FN.
“Customer” the person, partnership, firm or corporation identified as the Customer overleaf.
“Services” the construction of the Goods and Services together with marking out on site the position of the Goods and Services and any site road leading from the public highway to the Goods and Services.
“Writing”includes facsimile and electronic transmissions and comparable means of communications.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2.Basis of the Sale
2.1 RAYBAT shall provide and the Customer shall receive the Goods and Services in accordance with the terms of this Contract. The terms of this Contract shall govern the supply of the Goods and Services to the exclusion of any other terms and conditions and the terms of this Contract form the entire Contract between RAYBAT and the Customer.

2.2 No variation of the terms of this Contract shall be valid unless the entire terms of the variation are in writing and signed both by the Customer and the Authorised Representative of RAYBAT.

2.3 In entering into this Contract the Customer acknowledges that they do not rely nor have they relied on any representation or representations, whether oral or in writing, whether made by the employees or agents of RAYBAT or otherwise or whensoever made.

2.4 All drawings, illustrations, descriptions, information and specification in RAYBAT’s catalogues, price lists, website and other advertising material, proofs, patterns and trials are intended to give no more than a general idea of the Goods and Services and such information is not intended to be and shall not be relied upon as giving a precise description of any Goods and Services or in anyway a representation as to any matter and no part of it shall form part of this Contract.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by RAYBAT shall be subject to correction without any liability on the part of RAYBAT. Any measurements referred to are approximate only and may fluctuate by up to 5% from the stated figure.

2.6 RAYBAT shall not be liable for any loss sustained by the Customer reliant upon advice or recommendation given by RAYBAT or its employees to the Customer or its employees or agents as to the use or maintenance of the Goods and Services unless such advice or recommendation is confirmed in writing signed by the Authorised Representative. If the Customer follows or acts upon any advice or recommendation not so confirmed, they do so entirely at their own risk.

2.7 RAYBAT shall not be liable for any loss sustained by the Customer reliant upon advice or recommendation given by any person other than it’s own employees and confirmed as provided above.

3.Orders and specifications
3.1The Customer shall be responsible to RAYBAT for ensuring the accuracy of the specifications for the Goods and Services to be supplied as shown overleaf. In signing this Contract the Customer confirms that the specification overleaf is correct.

3.2 The Customer shall be responsible for providing to RAYBAT any necessary information relating to the supply of the Goods and Services within a sufficient time prior to the Commencement Date to enable RAYBAT to perform the Contract

3.3 If any Goods to be supplied are to be specifically modified or any process is to be applied to it by RAYBAT in accordance with a specification or request submitted by the Customer:
3.3.1 the Customer shall indemnify RAYBAT against all loss, damages, costs and expenses awarded against or incurred by RAYBAT in connection with or paid or agreed to be paid by RAYBAT in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from RAYBAT’s use of the Customer’s specification or compliance with their request; and
3.3.2 subject to the existing rights of third parties the property in any such design including copyrights and any rights to register patents trade marks registered design or other interests in the same shall vest in RAYBAT absolutely. These provisions of this sub condition are in addition to any rights which RAYBAT may have under statute, at common law or otherwise.
3.4 RAYBAT reserves the right to make any changes in the specification of the Goods and Services which are required to conform with any applicable statutory or regulatory requirements.

4. Price of the Goods and Services
4.1 The price of the Goods and Services is the Contract Price.

4.2 RAYBAT reserves the right, by giving notice to the Customer at any time before the Commencement Date, to increase the price of the Goods and Services, to reflect any increase in the cost to RAYBAT which is due to any factor whether or not beyond the control of RAYBAT (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give RAYBAT adequate information or instructions.

5.Terms of Payment
5.1 RAYBAT shall be entitled to deliver an invoice to the Customer at any time not less than 2 months prior to the Commencement Date. The invoice delivered shall be for the full amount of the Contract Price, which shall be payable as stated in the contract.

5.2 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to RAYBAT, it shall be entitled to:
5.2.1 cancel the contract or suspend any further deliveries to the Customer,
5.2.2 appropriate any payment made by the Customer to such part of the Goods and Services (or part of the Goods and Services supplied under any other contract between the Customer and RAYBAT) as RAYBAT may think fit (notwithstanding any purported appropriation by the Customer); and
5.2.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of five per cent per annum above National Westminster Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. Commencement Date
6.1 RAYBAT shall not be liable for any delay should it fail to begin performance of this Contract on the Commencement Date. Time shall not be of the essence to this Contract.

6.2 If RAYBAT fails to deliver the Goods and Services at all for any reason other than any cause beyond RAYBAT’s reasonable control or the Customer’s fault RAYBAT’s liability to the Customer, shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of a similar Goods and Services over the Contract Price.

6.3 It is the Customer’s responsibility
6.3.1 to ensure that there is adequate access to the Site to enable Raybat’s vehicles to enter for the purposes of performing this Contract.
6.3.2 to ensure that condition, state and layout of and access to the Delivery Address and Delivery Site is adequate to enable the Delivery Vehicle to move about the Delivery Address and Delivery Site for the purposes of delivery. In particular the Customer is advised that delivery may be by articulated lorry and the Customer should ensure that the width of the access is sufficient and the nature of the terrain to which delivery is to be made is not such so as to prevent entry by an articulated lorry and that there are no overhead cables or other obstructions likely to prevent delivery being effected. In the event of the access being inadequate for the entry of a Delivery Vehicle to the Delivery Address or the Delivery Site, or in the event of the condition, state or layout of the Delivery Address or Delivery Site being inadequate to enable the Delivery Vehicle to move about the Delivery Address and Delivery Site for the purposes of delivery RAYBAT’s responsibility is limited to making delivery to the nearest point practicable to the Delivery Address or Delivery Site.
6.3.4 to ensure that there is at the Delivery Site a base laid to the specification of RAYBAT (which will include provision for the supply of a potable water supply, sewage disposal, electricity, gas and telephone) and once laid, approved by RAYBAT upon which the Goods and Services can be constructed
6.3.5 to permit RAYBAT and it’s employees, agents and authorized representative to enter upon the Delivery Address and Delivery Site for the purpose of Delivery, construction and installation of the Goods and Services and to ensure that the condition, state and layout of Delivery Address and Delivery Site is adequate to enable them to construct and install the Goods and Services.

6.4 If the Customer fails or refuses for whatever reason, whether by agreement with RAYBAT or otherwise, to take delivery of the Goods and Services or fails to comply with this clause 6 whether in it’s entirety or part (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of RAYBAT’s fault), then, without prejudice to any other right or remedy available to it, RAYBAT may:
6.4.1store the Goods and Services until Actual Delivery and charge the Customer for the reasonable costs (including insurance) of storage;or
6.4.2 deliver the Goods and Services to the nearest point practicable to the Delivery Address or Delivery Site.
6.4.3 in it’s absolute discretion, sell the Goods and Services or any part of it, at the best price readily obtainable and (after deducting all reasonable storage, selling and transport expenses) utilise the proceeds of sale in full or part satisfaction of the Contract Price.

7.Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer
7.1.2 if the Customer fails for whatever reason to take delivery of the Goods and Services at the time when RAYBAT has tendered delivery of the Goods and Services or attempted to deliver the same, or
7.1.3 if the Customer fails to provide adequate means of access for delivery of the Goods and Services in accordance with clause 6 at the time when RAYBAT has tendered delivery of the Goods and Services or attempted to deliver the same.

7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until RAYBAT has received in cash or cleared funds payment in full of the Contract Price.

7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as RAYBAT’s fiduciary agent and bailee, and shall keep the Goods separate from their property and that of third parties and properly stored, protected, insured and identified as RAYBAT’s property.

7.4 The Customer hereby agrees to keep RAYBAT indemnified against any loss, howsoever caused, that may occur to the Goods whilst in the possession of the Customer where the property in the Goods still rests in RAYBAT. The Customer also agrees to maintain adequate insurance cover to fulfill his obligations under this indemnity.

7.5 Until such time as the property in the Goods passes to the Customer RAYBAT shall be entitled at any time to require the Customer to deliver up the Goods to RAYBAT and, if the Customer fails to do so forthwith, the Customer shall permit RAYBAT to enter the Site to repossess the Goods or to enter the property of any third party where the Goods are stored to repossess the Goods.

7.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness the Goods which remain the property of RAYBAT, but if the Customer does so all monies owing by the Customer to RAYBAT shall (without prejudice to any other right or remedy of RAYBAT) forthwith become due and payable.

8.Termination by the Customer
8.1 The Customer may terminate this Contract by giving to RAYBAT written Notice of their wish to do so which must be received by RAYBAT no later than 14 days from the date upon which the Customer receives a copy of this Contract signed by RAYBAT.
8.2 In the event of termination by the Customer in accordance with this provision the Customer shall indemnify RAYBAT in full against all and any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by RAYBAT as a result of termination.

9.Insolvency of the Customer
9.1This clause applies if:
9.1.1 the Customer makes any voluntary arrangement with their creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or
9.1.2 an encumbrancer takes possession, or a receiver is appointment of any of the property or assets of the Customer, or
9.1.3 the Customer ceases, or threatens to cease, to carry on business, or
9.1.4 RAYBAT reasonably apprehends that any of the evens mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

9.2 If this clause applies then, without prejudice to any other right or remedy available to RAYBAT, RAYBAT shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and the entire Contract Price shall become immediately due and payable.

10. Limitation of Liability
10.1 Subject as expressly provided in these Conditions, and except where the Goods and Services are provided to a person dealing 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 law.

10.2 In particular, (without prejudice to the generality of this condition 11) RAYBAT shall not be liable for any such claim, loss or damage resulting from:
10.2.1 any circumstances arising due to Force Majeure;
10.2.2 any instructions given by or any act or omission of the Customer or its servants or agents;
10.2.3 any inherent or latent defect which RAYBAT could not reasonably have discovered or rectified;
10.2.4 any material breach by the Customer of any of RAYBAT’s conditions hereof required to be observed or performed by the Customer;

10.3 The Customer shall give to RAYBAT every reasonable opportunity to replace, repair or rectify any defect in the Goods and Services claimed.

10.4 RAYBAT shall under no circumstances be liable for loss of profits, or for consequential loss of any kind whatsoever.

10.5 Nothing herein contained is intended to affect nor will it affect any of the rights of the Customer under the Unfair Contract Terms Act 1977.

10.6 Any claim by the Customer which is based on any defect in the quality of the Goods or Services or its failure to correspond with specification shall be notified to RAYBAT within 7 days of Installation or where the defect or failure was not apparent upon Installation, immediately upon discovery of the defect or failure. If delivery is not refused, and the Customer does not so notify RAYBAT, the Customer shall not be entitled to reject the Goods and Services and RAYBAT shall have no liability for such defect or failure, and the Customer shall be liable to pay the Contract Price.

10.7 Without prejudice to the other provisions of this condition 11, where any valid claim in respect of the Goods and Services (or, for the avoidance of doubt, any part of the Goods and Services) which is based on any defect in the quality or condition of the Goods and Services (or, for the avoidance of doubt, any part of the Goods and Services) or its failure to meet specification is notified to RAYBAT in accordance with these Conditions, RAYBAT shall be entitled to replace the Goods and Services free of charge or, at RAYBAT’s sole discretion, refund to the Customer the Contract Price of the Goods and Services (or a proportionate part of the Contract Price), but RAYBAT shall have no further liability to the Customer.

10.8 Without prejudice to the other provisions of this condition 11, except in respect of human death or personal injury caused by RAYBAT’s negligence, RAYBAT shall not be liable to the Customer by reason of any representation (unless fraudulent), 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 the negligence of RAYBAT, its employees or agents or otherwise) which arise out of or in connection with the supply of Goods and Services, and and the entire liability of RAYBAT under or in connection with this Contract shall not exceed Contract Price.

10.9RAYBAT shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or failure to perform, any of RAYBAT’s obligations in relation to the Goods and Services, if the delay or failure was due Force Majeure.

11.Supply of Services by RAYBAT
11.1 The Services shall be supplied and rendered by appropriately experienced, qualified and trained personnel with all reasonable skill, care and diligence, who will conduct themselves at all times in a proper manner.

11.2 RAYBAT shall discharge its obligations pursuant to this Contract with all reasonable skill, care and diligence.

11.3 The Services shall be performed in compliance with all applicable laws, enactments, orders, regulations, and other similar instruments (including but not limited to all applicable health and safety legislation);

11.5 RAYBAT shall use personnel who possess the degree of skill and experience which is appropriate to the tasks which they are allotted and who shall perform those tasks in a workmanlike and professional manner;

12. General
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

12.2 No waiver by RAYBAT of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.

12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.

12.4 The Contract shall be governed by the laws of England, and the Customer agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

12.5 Any dispute or difference arising out of the Contract which cannot be settled amicably by the parties involved shall be finally settled by reference to an independent arbitrator to be selected and appointed by the directors of RAYBAT should it be deemed necessary at any time.

12.6 RAYBAT shall be entitled to set off any sums of money which the Customer is liable to pay under this Contract against its obligations to the Customer pursuant to any other agreement between RAYBAT and the Customer.

12.7 In accordance with section 1(2)(a) Contract (Rights of Third Parties) Act 1999, the parties intend that no term of this contract may be enforced by a third party.