As at June 2017
1.1 In these Conditions the following words have the following meanings:
“Buyer” means the customer specified in the Order Confirmation at Annex 1;
“Company” means Tree Tents International Limited, a company incorporated in England with registered number 10166570 whose registered office is at c/o Brian Cook Associates, Marine House, 151 Western Road, Haywards Heath, West Sussex, RH 16 3LH, UNITED KINGDOM;
“Company Materials” means any documents or other materials, and any data or
other information in any form whatsoever provided by the Company;
“Conditions” means the standard terms and conditions of sale as set out in this document;
“Confirmed Order Email” means an email sent by a director of the Company to the Buyer which includes the information set out in the Order Confirmation scheduled hereto at Annex 1;
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods;
“Delivery Date” means the date when the Goods are to be delivered to the Buyer as specified as such in the Confirmed Order Email;
“Delivery Point” means the address specified in the Confirmed Order Email where delivery of the Goods is to take place under Condition 4;
“Goods” means any goods documents or service agreed in the Contract to be supplied to the Buyer by the Company;
“Installation Date” means the date specified as such in the Confirmed Order Email being a date which occurs after the Goods have been delivered to the Buyer;
“Order Form” means the written confirmation of the Buyer’s order of Goods from the Company;
“Owner’s Guide” means the guide relating to the installation, use and maintenance of the Goods, applicable as at the Delivery Date.
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.
2 APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract will be between the Company and the Buyer on these Conditions to the exclusion of all other terms and conditions.
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 of Goods and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a suitably authorised representative of the Company.
2.4 Any quote provided to the Buyer by the Company shall be valid for a period of 60 days from the date of issue.
2.5 If, subject to condition
2.4, the Buyer wishes to accept the quote, it shall send the Company a completed and signed Order Form. When the Company sends the Buyer a Confirmed Order Email this constitutes the acceptance of the Buyer’s offer to purchase Goods subject to these Conditions.
2.6 No order placed by the Buyer shall be deemed to be accepted by the Company unless and until the Company sends the Buyer a Confirmed Order Email.
2.7 The Buyer is responsible for a) checking and ensuring that the Order Form is an accurate record of the Goods which the Buyer is ordering; and b) ensuring that all other information given to the Company during the sales and delivery process is complete and accurate. Where information given by the customer is incomplete, misleading or incorrect (e.g. as to the place of delivery) the Buyer will be liable for any costs and expenses involved in resolving the matter.
3.1 The description of the Goods shall be as set out in the Confirmed Order Email.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s websites or brochures are issued or published for the sole purpose of giving an approximate indication of the Goods described in them and will not form part of the Contract.
4 DELIVERY AND INSTALLATION
4.1 From the time when the Buyer, its agent or sub-contractor has signed a form to acknowledge receipt of the Goods on delivery by the Company, its agents or sub-contractors, the Buyer shall be legally liable for any claims, losses or damage which may occur to or relate (whether directly or indirectly) to the Goods.
4.2 Any dates specified in the Confirmed Order Email by the Company for delivery of the Goods (which shall be at the Buyers sole expense) 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 loss (including loss of profit), 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), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 45 days.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, permits, licences or authorisations (if applicable), then:
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 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); and
4.4.3 the Goods will be deemed to have been delivered and the Buyer will be obliged to pay the Company the price of the Goods less any deposit which has been paid by the Buyer.
4.5 If 15 business days after the first attempted delivery of the Goods by the Company the Buyer has not accepted delivery of the Goods, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
4.6 The Buyer may be requested by the Company or its agents or sub-contractors to provide at its reasonable expense adequate and appropriate equipment and manual labour for unloading the Goods at the Delivery Point.
4.7 In respect of all Goods, including but limited to those that are to be suspended from trees located on the Buyer’s property, the Buyer accepts that it shall be solely responsible for selecting the location for the installation of the structures. Consequently, the Buyer shall be solely responsible for any losses and liabilities howsoever arising if the location is unsuitable for any reason, including but not limited to in the case of structures to be suspended from trees, the health or safety of the trees and their susceptibility to being affected by strong winds.
4.8 To assist the Buyer in reaching its decisions as to whether and/or how and/or where to locate the Goods, the Company may (at its absolute discretion) procure the following services on behalf of and at the sole expense of the Buyer in such sums to be specified in the Confirmed Order Email:
4.8.1 A feasibility survey conducted by a suitably qualified and experienced tree surgeon. This will evaluate whether the trees provisionally selected by the Buyer to hold the suspended structure(s) are in a good state of health and sufficiently mature to carry the weight of the structure. If the feasibility survey concludes that the trees are in a good state of health and sufficiently mature, the tree surgeon may at this time proceed to prepare the said trees for the subsequent installation of the suspended structure(s), for example by inserting bolts; and/or
4.8.2 Installation of the suspended structure(s) on the Installation Date, which work shall be overseen by a suitably qualified tree surgeon. Any other Goods ordered by the Buyer other than suspended structures will, where possible, be installed on or shortly after the Installation Day, unless otherwise agreed with the Buyer; and/or
4.8.3 If confirmed by the Buyer, an annual maintenance survey of the structures, it being noted that this may be a requirement of the Buyer’s insurers.
4.9 The Company shall check that the tree surgeon and installers referred to above have appropriate professional indemnity insurance cover as at the time of installation. It shall be the Buyer’s responsibility thereafter to check that the tree surgeons and installers maintain such cover for a period of three years after they have been contracted to provide their services to the Buyer.
4.10 For the avoidance of doubt, if for whatever reason the Company does not procure a tree surgeon or an installer pursuant to condition 4.8 or if the Buyer chooses to appoint its own tree surgeons or installers (rather than asking the Company to procure them on its behalf), the Company shall have no liability for any costs, expenses, losses, liabilities, claims and the like arising whether directly or indirectly from any such appointment.
4.11 It is the Buyer’s responsibility to ensure that planning consent (or any equivalent permission, approval, consent or the like in countries other than the UK) is not required for the installation of the Goods at the location selected by the Buyer.
5.1 Ownership of the Goods shall pass to the Buyer when the Company, its agents or sub-contractors deliver the Goods to the Buyer, on condition that prior to the delivery the Company has received in full (in cash or cleared funds) all sums due to the Company in respect of:
5.1.1 the Goods; and
5.1.2 all other sums which are or which become due to the Company pursuant to these terms and conditions, including but not limited to the cost of loading, delivering, unloading and installing the Goods to the Buyer.
5.2 The Company shall be entitled to recover payment for the Goods if ownership of any of the Goods has not passed from the Company.
5.3 The Buyer grants the Company, its agents and employees an irrevocable licence at any time prior to the transfer of ownership from the Company to the Buyer 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.
6.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Confirmed Order Email, unless such price is incorrectly stated due to a printing error.
6.2 The price for the Goods shall be inclusive of value added tax.
6.3 The price for the Goods shall be exclusive of all costs or charges in relation to loading, unloading, carriage, insurance, customs duty, clearance charges and such like all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
7 PAYMENT and RETURNS
7.1 The Company acknowledges receipt of the deposit of 50% of the full price (the Deposit) for the Goods.
7.2 The remaining 50% final balance must be paid on or before completion of the installation. No payment shall be deemed to have been received until the Company has received cleared funds.
7.3 The Buyer will be contacted prior to the anticipated Date of Delivery to confirm delivery arrangements and to be notified that the final balance pursuant to Condition 7.2 is due.
7.4 The preferred method of payment is by bank transfer into the Company’s bank account. Payment by cheque is also accepted.
7.5 Time for payment shall be of the essence.
7.6 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.7 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.
7.8 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 5% above the base lending rate from time to time of HSBC Bank, accruing on a daily basis until payment is made, whether before or after any judgment.
7.9 Buyers seeking delivery of the Goods within the United Kingdom have a statutory right to cancel the order in exchange for a refund of 50% of the final balance only. This statutory right of cancellation starts on the Date of Delivery and expires fourteen days later. The Buyer must return the Goods to the Company at its own cost, unused and in the original condition within 14 days of the Buyer notifying the Company of its intention to return the Goods.
7.10 In relation to orders from countries other than the UK:
7.10.1 The cost of shipment and any sales or import duties or taxes shall be paid by the Buyer; and
7.10.2 The Company is entitled to have the price of its Goods expressed in pound sterling, Euros or any other relevant currency and to opt for the currency value as at the date on which the Company sends the Buyer a Confirmed Order Email, or the date of delivery of the Goods or the date upon which the Buyer pays a deposit.
8 WARRANTY AS TO QUALITY
8.1 Subject to the other provisions of these Conditions and compliance with the guidance, instructions, advice and recommendations set out or referred to in the Owner’s Guide, the Company warrants that the Goods will be reasonably fit for the purpose specified in the Company’s promotional materials current as at the date of the Confirmed Order Email, for the following periods:
a) for non-fabric components of the Goods, a warranty period of 2 years from the date you receive delivery of the Goods; and
b) for fabric components of the Goods, a warranty period of 12 months from the date you receive delivery of the Goods.
8.2 The warranty excludes any loss, cost, expense, liability, harm, damage or the like resulting from normal “wear and tear” and / or from any breach of the guidance, instructions, advice and recommendations set out or referred to in the Owner’s Guide.
8.3 The Company shall not be liable for a breach of the warranty in Condition 8.1 unless the Buyer gives the Company a reasonable opportunity of examining such Goods at the Buyer’s or the Company’s premises (at the Company’s election); or unless the Buyer:
8.3.1 gives written notice of the defect to the Company within 7 days of the time when the Buyer discovers or ought reasonably to have discovered the defect; and
8.3.2 provides a description of the defect along with diagrams, photographs and videos as necessary to fully explain the defect; and
8.3.3 provides additional information as may be requested by the Company to understand the defect.
8.4 The Company shall not be liable for a breach of the warranty in Condition 8.1 if:
8.4.1 the Buyer makes any further use of such Goods after giving such notice; or
8.4.2 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
8.4.3 the Buyer alters or repairs such Goods without the written consent of the Company; or
8.4.4 the Buyer has failed to comply with the provisions of the Owner’s Guide; or
8.4.5 the defect and / or any losses incurred by the Buyer arise in whole or in part because of the location selected by the Buyer for the installation of the Goods.
8.5 Subject to Conditions 8.2, 8.3 and 8.4, if any of the Goods do not conform with the warranty in Condition 8.1 the Company may, at its election, choose to repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided always that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
8.6 If the Company complies with Condition 8.5 it shall have no further liability for a breach of the warranty in Condition 8.1 in respect of such Goods.
8.7 All Goods are handmade to order and may vary in design or construction and the Buyer accepts that the design and construction of the Goods may be subject to change.
9 LIMITATION OF LIABILITY
9.1 The following provisions of this Condition 9 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation.
9.4 Subject to Conditions 9.2 and 9.3:
9.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to the value of the relevant Good at the time it was sold to the Buyer; and
9.4.2 the Company shall not be liable to the Buyer for any indirect or
consequential loss or expenditure, loss, injury (other than personal injury arising out of the Company’s negligence and which pursuant to the Unfair Contract Terms Act 1977 cannot be excluded or limited) damage (whether for economic loss, loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9.4.3 the Company shall not be liable for any (including without limitation economic indirect and consequential loss) damage or injury arising out of any use or dealing with the Goods howsoever such expenditure loss damage or injury shall arise and whether from any defect in the Goods or otherwise.
10 INTELLECTUAL PROPERTY
10.1 The property and any copyright or other intellectual property rights in the Goods and any Company Materials shall belong to the Company.
11 CONFIDENTIAL INFORMATION
11.1 “Confidential Information” means all confidential information in any form, including but not limited to electronic files and any printed copies of the same, disclosed by the Company to the Buyer, including but not limited to any information relating to products, designs, trade secrets, processes or know-how for as long as such information remains confidential.
11.2 Confidential Information shall not include any information that: (a) is or becomes publicly known other than by breach of contract; (b) was in the Buyer’s lawful possession prior to the disclosure by the Company; (c) is independently received from a third party having the full right to disclose; or (d) is required to be disclosed by law.
11.3 The Buyer undertakes not to use any Confidential Information for any purpose whatsoever except to help with business planning and for ongoing business support for their business using the Goods. All information will be held in strict confidence and securely, and must not be passed on to any other person or organisation, except employees and representatives of the Buyer who need to know for the performance of their role and who are bound by confidentiality obligations.
11.4 The Buyer agrees not to copy, reproduce, duplicate, modify or create derivative works of the Confidential Information or any part of it in any form or medium (unless expressly permitted by the Company) or use any of the Confidential Information to compete, directly or indirectly, with the business activities of the Company and/or its suppliers.
11.5 The Buyer acknowledges that the copyright and title to the Confidential Information and any trademarks or service marks relating to it remain with the Company, and the Buyer shall not pass off, nor attempt to pass off, as the Company.
11.6 If the Company believes that the Buyer has breached any of the obligations of this Condition 11 then the Company may require the Buyer to return the Confidential Information in its entirety and the Buyer will not be permitted to keep any copies or records of the Confidential Information.
11.7 The Buyer understands that the Company does not make any express or implied warranty or representation concerning the Confidential Information, or the accuracy or completeness of the Confidential Information, or any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program.
11.8 The Buyer accepts all Confidential Information must be treated in accordance with Condition 11 indefinitely.
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.
13 FORCE MAJEURE
13.1 The Company reserves the right to defer the Date of Delivery or to cancel the Contract or reduce the number 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 its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers (including shipping or transportation companies) 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 90 days, the Buyer shall be entitled to give immediate notice in writing to the Company to terminate the Contract.
13.2 The Company shall not be liable for any losses, liabilities, costs, expenses and the like howsoever arising from or relating to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give immediate notice in writing to the Company to terminate the Contract.
14 TERMINATION BY THE COMPANY
14.1 The Company shall (without prejudice to any of its other rights hereunder) be entitled to terminate any contract forthwith by written notice to the Buyer if the Buyer:
14.1.1. becomes insolvent, appoints a receiver or passes a resolution for winding up (other than for purposes of bona fide amalgamation or bona fide reconstruction); or
14.1.2. fails to pay any amounts falling due to the Company within 7 days of the payment due date; or
14.1.3. Commit a material breach of any item of the contract or any other contract with the Company.
15.1 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.
15.2 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.
15.3 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.
15.4 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.
15.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
16.1 All notices between the parties about the Contract must be in writing and delivered by hand or sent by pre-paid first class post to the registered office address of the party in question or such other address as shall be notified by the Company or the Buyer to the other from time to time.
16.2 Notices shall be deemed to have been received:
16.2.1 if sent by pre-paid first-class post, 5 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
16.2.2 if delivered by hand, on the day of delivery.