In this document, the following words shall have the following meanings:
1.1 “Buyer” means the organisation or person who buys Goods from the Seller;
1.2 “Goods” means the articles and/or services to be supplied to the Buyer by the Seller;
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “List Price” means the list of prices of the Goods maintained by the Seller as amended from time to time;
1.5 “Seller” means Cyclepods Ltd.
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing.
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
2.3 Our goods are carefully inspected and, where practicable, submitted to our standard tests at our works before despatch. If special tests or tests in the presence of you or your representative are required, these, unless otherwise agreed, must be made at our Works and will be charged for in addition to the Contract price, and in the event of any delay on your part in attending such tests after seven days notice that we are ready, the tests will proceed in your absence, and shall be deemed to have been made in your presence.
2.4 The Cyclepods product range is designed to suit a 90% percentile of men and women aged six to sixty-five.
2.5 The Cyclepods product range is designed to suit a 90% percentile of all bicycles commonly available in the UK.
2.6 By accepting a contract with Cyclepods, the Buyer agrees to their contact information being held by the Seller for future reference and for email marketing purposes, unless otherwise instructed by the Buyer. All information will be held in accordance with the Data Protection Act. All email marketing will abide by Spam Regulations and the Buyer will be able to opt out at any time.
2.7 All drawings, technical details, illustrations, quotes, designs, marketing and product descriptions provided by the Seller are the sole property of Cyclepods Ltd and under no circumstances are to be passed to third parties or competitors. If Cyclepods become aware of unauthorised sharing of their intellectual property, they reserve the right to take legal action.
3 PRICE AND PAYMENT
3.1 The price shall be that in the Seller’s current List Price, or such other price as the parties may agree in writing. The price is exclusive of VAT or any other applicable costs. Carriage shall be paid for by the Buyer.
3.2 Payment of the price and VAT and any other applicable costs shall be due within 30 days of the date of receipt of the invoice supplied by the Seller, unless otherwise stated by the seller.
3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 2.5% per annum above the base rate of the Bank of England.
3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
3.4.1 Require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 Refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
3.4.3 Terminate the contract.
3.5 We reserve the right, by giving notice to you at any time before delivery, to increase the price of the goods to reflect any increase in the cost to us which is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alternation 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 which is requested by you, or any delay caused by your instructions or your failure to give us adequate information or instructions.
3.6 Unless otherwise agreed in writing our prices do not include delivery charges. Where we agree to deliver the goods other than at our premises you shall pay our charges for transport packaging and insurance.
4.1 Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
4.2 All technical details, descriptive and forwarding specifications, illustrations, drawings and particulars of weights and dimensions issued by us are typical and approximate only and are intended to present a general idea only of the goods to which they refer, and none of them will form part of the Contract.
5.1 Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller.
6.2 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If delivery is delayed due to the Buyer not fulfilling necessary arrangements, the Seller reserves the right to reschedule delivery at a date and time specified by the Seller. The Buyer will be liable for any extra costs or charges incurred in rescheduling.
6.3 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be the essence of the contract.
6.4 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such times as delivery may be affected and the Buyer shall be liable for any expense associated with such storage.
6.5 The Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the Seller of the damage within 24 hours of delivery.
7.1 Risk in the Goods shall pass to the Buyer at the moment the Goods are dispatched from the Seller’s premises. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
8.1 Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
9.1 Where the Goods have been manufactured by the Seller and are found to be defective, under the Cyclepods standard 12 month warranty the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 12 months from the date of delivery (unless otherwise stated in a product specific warranty document), subject to the following conditions:
9.1.1 The Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
9.1.2 The defect being due to the faulty design, materials or workmanship of the Seller.
9.2 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
9.3 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
9.4 The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
9.5 The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
10.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
10.1.1 The correspondence of the Goods with any description;
10.1.2 The quality of the Goods; or
10.1.3 The fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:
10.2.1 The correspondence of the Goods with any description;
10.2.2 The quality of the Goods; or
10.2.3 The fitness of the Goods for any purpose whatsoever.
10.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to the Seller or not) are hereby excluded from the contract.
11 LIMITATION OF LIABILITY
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the contract price.
11.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE
13.1 The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
14 RELATIONSHIP OF PARTIES
14.1 Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
15 ASSIGNMENT AND SUB-CONTRACTING
15.1 The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
16.1 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce al Terms and Conditions of this Agreement.
17.1 If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18 EXPORT CONDITIONS
18.1 Where the goods are supplied for export from the United Kingdom, the provisions of this Clause 11 shall apply in addition to and, in case of conflict, to the exclusion of the other Clauses hereof.
18.2 The Seller reserves the right not to supply certain customers or countries and to require full details of intended use and final destination of the goods.
18.3 The Buyer shall be responsible for complying with any legislation or regulations governing the export of goods from the United Kingdom and importation of goods into the country of destination and for the payment of any duties taxes or other expenses in connection therewith.
18.4 The Seller shall be under no obligation to give Notice under Section 32 (3) of the Sale of Goods Act 1979.
18.5 Unless otherwise agreed, payment is due on delivery. Goods shall be deemed to have been delivered when the invoice has been presented in the United Kingdom accompanied by appropriate documents of title.
18.6 The Seller reserves the right to charge VAT at the ruling rate until you provide proof of export of the goods from the United Kingdom.
18.7 The Buyer shall be responsible for arranging for testing and inspection of the goods at our premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
19.1 Unless agreed otherwise by buyer and seller in writing, when an installation is required, the ground on which the products are to be erected on must meet the following requirements:
1) Clean and clear of debris
2) Suitable for ground anchoring to a depth of 150mm (i.e. concrete)
3) In clear working distance of any mains services
4) Suitable for drilling, clear distance of any underground mains services
5) Adequate space for Installers to work around
6) Flat and Level
7) The correct size to accommodate the product/products
8) Easily accessible (i.e. on ground level with vehicle access)
9) Within 20 Metres of vehicle access to allow ease of delivery
19.2 If the installation work can not be carried out due to the above requirements not being met or any other reason the Seller feels could be of detriment to the Product or the installation, the Seller may withdraw the installation team from site. If this occurs the Buyer must pay the full costs for the installation and any further costs that are incurred. If the Buyer requires installation after this situation occurs, then the ‘new’ installation will then be subject to the above points also.
19.3 In no circumstances will the Seller be responsible for providing, preparing or constructing the base, ground or foundations on which the products are to be installed/fixed upon, unless other wise agreed in writing by the Seller.
19.4 If the Buyer insists the Seller installs the Cyclepods Products on what the Seller deems to be unfit/not suitable ground, then all liability of the product and public is automatically transferred to the Buyer. The Seller will not take any responsibility for any damage caused by the product or to the product or public if the product is installed under the above circumstances.
20 GOVERNING LAW AND JURISDICTION
20.1 This Agreement shall be governed by and construed in accordance with the law of the United Kingdom and the parties hereby submit to the exclusive jurisdiction of the British courts.
21 DIVISIBILITY WORDING
(A) The Company reserves the right to make deliveries/and or services by instalments and to render a separate invoice in respect of each such instalment.
(B) If the Company exercises its right to make deliveries/and or services in accordance with sub-paragraph (a) above, then where delivery is to be made by instalments, each delivery shall be deemed for such purpose to be the subject of a separate contract and any failure whatsoever by the seller in respect of any one delivery shall not entitle the buyer to repudiate the contract or any instalments remaining to be delivered thereunder.