1. DEFINED TERMS

“Buyer”  means you;

“the Company”  means Agricar Limited, a company incorporated under the Companies Acts (Company No: SC100191) and having our registered office at Milton, Padanaram, By Forfar, Angus, DD8 1PF and includes its trading divisions of Ness Electrical and Ness Plant;

“Contract”  means the contract formed by the Company’s quotation, the Buyer’s order and the Company’s acceptance of such order, and as governed by these Terms and Conditions;

“Due Date” means the date falling 7 days from the date of an invoice;

“Goods”  means any goods, parts or other thing supplied by the Company to the Buyer, whether or not it has been combined with any other part item or thing;

“Manufacturer”  means the Company’s chosen manufacturing partners which it contracts with from time to time;

“Online Order”  means an order made on our website for small parts etc;

“Parts” means mechanical parts and spares and otherwise, sold by us on our website;

“Services” means mechanical, engineering, repair and support services provided by the Company whether in conjunction with the supply of the Goods or otherwise;

“Specified Rate”  means eight (8) per cent above the base lending rate of the Royal Bank of Scotland, from time to time, accrued on an annual basis; and

“Quotation”  means a written quotation by the Company to you for the provision of Goods or Services, as the case may be.

2. QUOTATIONS

2.1 The Company’s Quotations are given without commitment and no contract between the Company and the Buyer shall arise unless and until the Company has accepted in writing the Buyer’s order placed on the Company’s Quotation.

2.2 Once the Buyer’s order is accepted, the contract shall be formed and these Terms and Conditions shall govern the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate.

3. PRICES

3.1 Prices contained in a price list, catalogue or similar matter shall be based upon manufacturer’s costs and are for guidance only of.

3.2 Occasionally, an error may occur and Goods may be either incorrectly priced or described in which case the Company will not be obliged to supply the Goods at the incorrect price or in accordance with the incorrect description or at all. The Company reserves the right to correct any errors from time to time. The Company will (at its discretion) either cancel the Buyer’s order and refund the price the Buyer has paid or use reasonable endeavours to contact the Buyer and ask whether it wishes to continue with the order at the correct price or correct description. If the Company is unable to contact the Buyer or the Buyer does not wish to continue with the order at the correct price or correct description, the Company will cancel the order and refund any money that the Buyer has paid.

3.3 Prices contained in a Quotation shall be based upon manufacturer’s costs at the time and are, subject to the terms of this clause 3,valid only at the date of the Quotation, and a period of 7 days thereafter. Where an order is not placed by the Buyer within that period, the Company will refresh the prices and re-issue a Quotation.

3.4 In the unlikely event that the Manufacturers’ prices which are chargeable to the Company, are materially increased after acceptance of the Buyer’s order by the Company, but before delivery, the Company shall give notice of such increase to the Buyer and the Buyer shall pay such increase in addition to the price quoted in the Quotation.

3.5 Unless otherwise stated, the prices quoted do not include VAT which will be chargeable at the date of despatch and/or performance of services as the case may be and will be invoiced accordingly.

3.6 The Buyer shall bear the cost of any delivery charges imposed on the Company by the Manufacturers.

4. CANCELLATION

Cancellation by the Buyer of any order shall only take place with the Company’s written agreement, and may be subject to a minimum cancellation charge of ten per cent (10%) of the contract price, of which the Company will be the sole judge.

5. DESPATCH AND DELIVERY

5.1 Any date quoted for delivery of Goods or completion of Services represent the Company’s best estimate of which delivery or completion of Services should be possible but shall not bind the Company. Time of delivery or completion of Services shall not be of the essence of the Contract and the Purchaser shall have no right to seek to cancel the Contract or seek to terminate the Contract as a result of late delivery or failure to complete Services by the date so quoted. The Company reserves the right to deliver the Goods before the quoted delivery date subject to giving prior notice of its intention to do so.

5.2 Delivery shall be deemed to occur and the risk of loss or damage of any kind in the Goods shall pass to the Buyer on whichever of the following events occur earlier:-

(a) collection by or on behalf of the Buyer or by a carrier for despatch to the Buyer (whether or not such carrier be the Company’s agent or servant);

(b) seven (7) days from the date of notice given by the Company that the Goods are ready for collection or despatch,

If the Buyer fails to collect the Goods, the Company will store the Goods until actual delivery takes place and charge the Buyer for all related costs and expenses (including insurance).

5.3 The Company warrants that on delivery, the Goods shall:

5.3.1 conform in all material respects with their description;

5.3.2 be free from material defects in design, material or workmanship;

5.3.3 be satisfactory quality (within the meaning of the Sale of Goods Act 179; and

5.3.4 be fit for any purpose held out by the Buyer.

5.4 The Buyer shall carefully examine the Goods within forty eight (48) hours of receipt of the same and shall by written notice to be received by the Company within seven (7)days of receipt of the Goods notify the Company of any defects reasonably discoverable on careful examination. In the absence of receipt of such notice the Company shall be discharged from all liability in respect of such defects.

6. PAYMENT

6.1 The Company reserves the right to require payment for the Goods in full prior to delivery or for the Services prior to them being delivered.

6.2 Otherwise, the Buyer shall make payment for the Goods or Services provided shall be due on the Due Date and in this respect time shall be of the essence of the Contract.

6.3 Where the Buyer fails to make payment on the Due Date, the Company shall be entitled to:

(a) charge interest on overdue accounts at the Specified Rate on a daily basis from the Due Date until payment is received;

(b) withhold any further deliveries or Services to the Buyer;

(c) treat the Contract as terminated; and

(d) take further steps as necessary to protect their interests, with the Buyer meeting all costs.

6.4 For the avoidance of doubt, “payment” means in the case of a cheque that it has been met on first presentation and in the case of other negotiable instruments that the amount thereof has been credited to the Company’s account.

6.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than tax).

7. RISK AND TITLEIN GOODS

7.1. Until full payment has been made of the price of the Goods and of any other sums whatsoever which are or may become owing from the Buyer to the Company, whether accrued due or not under this contract and including debts and liabilities arising before or after the date of the contract:-

(a) title of the Goods shall not pass to the Buyer and the Buyer shall keep the Goods as custodian for the Company (returning the same to the Company upon request);

(b) the Buyer shall be at the liberty to sell the Goods in the ordinary course of the business in the name of the Buyer and as principal and not as agent for the Company notwithstanding the fact that title to the Goods has not then passed to the Buyer but the benefit of any such contract or sale and the proceeds of any such sale shall belong to the Company absolutely;

(c) the Buyer shall keep and safely store the Goods separately and in such manner that they can readily be identified as the property of the Company and maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price.

(d) in the event of the determination or repudiation of the contract (however occurring) the Company is hereby irrevocably authorised to enter on to the premises of the Buyer and repossess the Goods and any other Goods in the Buyer’s possession in the property in which is vested in the Company; and

(e) the Buyer will keep the Goods free from and will indemnify the Company against any charge, lien or other encumbrance thereon.

7.2 Risk passes on completion of delivery in terms of clause 5.2.

8. LIMITATION OF LIABILITY

8.1. Nothing in this Contract shall limit or exclude the Company’s liability for: 

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d) defective products under the Consumer Protection Act 1987

8.2. Subject to clause 8.1:

(a) the Company shall under no circumstances whatsoever be liable to the Buyer, whether 

(b) in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and 

(c) the Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

8.3. Any other liability under this contract in respect of the seller shall be limited to £1,000.00 any one contract. 

8.4. Save as provided in this clause and except where the Goods are sold and/or Services are provided to a person dealing as a consumer (within the meaning of the Consumer Rights Act 2015) all warranties, conditions or other terms implied by statute or common law are hereby expressly excluded save to the extent they may not be lawfully excluded. When the Goods are sold and/or Services provided to a consumer within the meaning of the Unfair Contract Terms Act 1977 their statutory rights are not affected by the provisions of this clause.

8.5 The following types of losses are wholly excluded:

(a)        Loss of profits:

(b)       Loss of sales or business;

(c)        Loss of agreements or contracts;

(d)       Loss of anticipated savings;

(e)       Loss of use or corruption of software, data or information;

(f)        Loss of or damage to goodwill; and

(g)       Indirect or consequential losses.

9. INSOLVENCY

9.1. In the event that the Buyer:

(a) makes a voluntary arrangement with creditors or has a Receiver, Administrator or Liquidator appointed or takes any steps for the purpose of having such a person appointed;

(b) is sequestrated or signs a Trust Deed or enters into a composite arrangement with creditors; or

(c) ceases to carry on business;

then the Company, without prejudice to any other rights, shall be entitled in its option to suspend further deliveries, treat the Contract as repudiated or re-possess the Goods.

9.2. In the event that any of the events referred to in Clause 9.1 above occur and the Purchaser has failed to make payment for Services in terms of Clause 6 hereof, the Company shall be entitled to make a claim in any insolvency of the Buyer and sell any Goods held by the Company whether in relation to provision of Goods or Services.

10. PARTS BOUGHT ON WEBSITE

Specific additional terms relating only to the purchase of Parts by the Buyer on the Company’s website are set out in our Online Purchase Terms at Appendix 1.

11. FORCE MAJEURE

The Company shall not be liable to the Buyer or be deemed to be in breach of Contract by reason of any failure to perform the Contract if such failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the foregoing generality the following shall be deemed to be beyond the Company’s reasonable control:- Acts of God, trade disputes, strikes, lock outs, difficulties in obtaining raw materials or labour, war, civil disturbance, flood, tempest, fire or accident

12. ACKNOWLEDGMENT

The Buyer acknowledges that in entering into the Contract, it has not relied upon any representation made by or on behalf of the Company and that the relationship between the Purchaser and the Seller shall be wholly governed by the Contract.

13. ASSIGNATION

The Buyer shall not assign any of its rights and obligations arising out of the Contract without the consent of the Company.  The Company shall be entitled to sub-contract performance of its obligation but shall remain liable to the Buyer in accordance with the terms of the Contract

14. GOVERNING LAW

The terms of this Contract will be governed by Scots law and the parties agree to submit to the jurisdiction of the Courts in Scotland. 

15. SCOTTISH COURTS

Each party irrevocably agrees that the Scottish courts shall have non-exclusive jurisdiction to settle any claim or dispute arising out of or in connection with the Contract or its subject matter or formation.

 
Appendix 1 – Online Purchase Terms

1. PARTS BOUGHT ON WEBSITE

The following terms shall only apply to Online Orders for Parts made by the Buyer on the Company’s website, from time to time. In this Paragraph references to “you” are to the Buyer and references to “we or us” are to the Company.

1.1 The Company must receive payment for the whole of the price of the Parts ordered and purchase, and any applicable charges for delivery, before your order can be processed unless we have agreed otherwise in advance in writing.

1.2 For website orders, payment can be made by most major credit or debit cards, by completing the relevant details on the checkout page.

1.3  By using a credit/debit card to pay for your order or purchase, you confirm that the card being used is yours or that you are authorised to use it. 

1.4 All credit/debit card holders are subject to validation checks and authorisation by the card issuer. We are not responsible for the card issuer or bank charging the holder of the card as a result of our processing of your credit/debit card payment in accordance with your order or purchase.

1.5 We recommend that you do not communicate your payment card details and password to anyone, including us, by email. We cannot be responsible for any losses you may incur in transmitting information to us by internet link or by email. Any such loss shall be entirely your responsibility.

1.6 All Parts are subject to availability. While we endeavour to hold sufficient stock to meet all orders and purchases, if we have insufficient stock to supply or deliver the Parts ordered and paid for by you, we will attempt to contact you using the details you have provided to us to ask you how you wish to proceed. We may, at our discretion, process any part of the order which is available. Where Parts are out of stock, we will refund you the price paid for such Parts as soon as possible and in any case within 14 days or, in the case of an account customer, we may, in our absolute discretion, as soon as possible raise a credit to offset the amount invoiced to you.

1.7 You may cancel your online order and return the items purchased to us by giving us notice of cancellation within 30 days of the date of delivery to you or your collection from a trade counter (as applicable). In relation to Parts delivered to you, you may need to take delivery of the Parts before you can cancel your order if the Parts are placed into our delivery process before we receive your notice of cancellation. Where your order comprises multiple delivery shipments, the 30 day cancellation period for the Parts in your order runs from the date of the delivery of the last shipment to you.

1.8 You will lose your right to cancel after the expiry of the 30 day period referred to in Paragraph 1.7 this does not affect your rights if there is any problem with the Parts.

1.9 To exercise your right to cancel, you may inform us of your decision to cancel by post, phone or email. If you are cancelling because of any problem with the Parts, please notify us of the problem at the time of cancellation.

1.10 On cancellation for whatever reason, where you have received the Parts you must return the Parts to us (together with the original packaging) without undue delay and in any event within 14 days after the day of the cancellation at your cost (subject to Paragraph 1.17), unless we agree that you may dispose of them, in which case please comply with the manufacturer’s instructions before disposing of hazardous Parts. You must return Parts with all components and also any promotional items received (including free gifts) or discounted additional products. You can return certain Parts by post from your local Post Office and larger Parts by our carrier pick up service. We may charge a fee for the carrier pick up service; the amount of the fee will depend on the Parts returned, but the maximum fee is £20.

1.11 Following cancellation, subject to Paragraph 1.13, the cost to return any Parts to us is to be borne by you.

1.12 We will refund you using the same means of payment as you used to pay for your order or purchase. 

1.13 We reserve the right to make a deduction from the amount of the refund for loss in value of the Parts returned where the Parts show signs of unreasonable use; for these purposes, unreasonable use includes handling the Parts beyond what is necessary to establish the nature, characteristics and functioning of the Parts. We may withhold any refund until we have received the Parts or you have supplied proof of return for the Parts

1.14 Your right of cancellation does not apply to Parts that are cut or mixed to your requirements, made to measure, made to order, made to your specifications or clearly personalised.

1.15 Where the Parts are being returned because they are faulty or incorrect, we will meet the cost of return delivery, but we ask that you allow us to nominate the carrier. Your right to return goods in these circumstances is not limited to the 30 day period in Paragraph 1.7. 

1.16 Without prejudice to your right to cancel orders generally under this Paragraph 1, if you have notified us of a problem with the Parts within 30 days of delivery or collection, you have a right to reject the Parts and receive a full refund, or alternatively we are happy to provide a replacement.

1.17 If a Part develops a fault after 30 days following delivery or collection, we may offer a repair or replacement of the item, or offer a price reduction or refund. If the Part is to be repaired, and the manufacturer has provided a helpline, repair service or warranty, we may ask you to make contact with the manufacturer direct or we can do this on your behalf. If there is no such service or warranty with the product, in most instances we will either offer a repair or where this is not possible, we will replace the item with the same or an equivalent model.

1.18 The provisions of this Paragraph 1 do not affect your legal rights if you are a consumer.