Terms & Conditions of Sale & Installation
1.1. In these Conditions:
“Customer” means the person who accepts a quotation of Zapp Outdoor for the sale of the Goods and/or supply of Services or whose order for the Goods and/or Services is accepted by Zapp Outdoor.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and Zapp Outdoor.
“Contract” means the contract for the purchase and sale of the Goods.
“Goods” means the goods (including any installation of the goods or any parts or accessories for them) which Zapp Outdoor is to supply in accordance with these Conditions.
“Zapp Outdoor” means A&E Leisure Limited (registered in England and Wales under Company No. 04223269)
“Services” mean the design, specifying, project management, installation or other services, as specified by Zapp Outdoor in writing, which Zapp Outdoor is to supply in accordance with these Conditions. Services include commissioning Goods and training given at that time. Additional training will be subject to extra charge by Zapp Outdoor.
“Specification” means the specification for the Goods and Services as stated or acknowledged by Zapp Outdoor in writing.
“Writing” includes facsimile and comparable means of communication.
1.2 In these Conditions, the headings are for convenience only and shall not affect their interpretation and the singular includes the plural and vice versa.
- Basis of the sale/supply
2.1 Zapp Outdoor shall sell and the Customer shall purchase the Goods and Services in accordance with any quotation of Zapp Outdoor which is accepted by the Customer (whether in writing or by placing an order for, accepting or paying for any Goods or Services or by other conduct), or any order of the Customer which is accepted by Zapp Outdoor (whether in writing or by appropriating Goods to the Contract or by other conduct), subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and Zapp Outdoor.
2.3 Zapp Outdoor’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Zapp Outdoor in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by Zapp Outdoor or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods and any representation that the Goods are suitable for a particular purpose, which is not confirmed in writing by Zapp Outdoor is followed or acted upon entirely at the Customer’s own risk, and accordingly, Zapp Outdoor shall not be liable for any such advice, recommendation or representation which is not so confirmed.
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 Zapp Outdoor shall be subject to correction without any liability on the part of A&E Leisure.
2.6 While Zapp Outdoor will take all reasonable care to comply with legal requirements in its drawings, the Customer is responsible for obtaining any necessary local authority, fire authority or other consents or permissions. Specifically, it shall be the Customer’s responsibility for obtaining any necessary planning permissions or building regulations approvals for the Goods and Services in good time prior to the due dates for delivery and performance.
2.7 Where relevant the Customer is responsible for arranging and having executed all building and joinery works necessary for the Contract in good time prior to due delivery and performance dates. Zapp Outdoor’s price does not include for any such works, making good, the provision of any plant, scaffolding, trestles, skips, building materials etc, unless otherwise agreed in writing by Zapp Outdoor. The Customer is responsible for ensuring clear access to the site for delivery of the Goods and performance of the Services. Any time wasted by Zapp Outdoor on site or spent on site providing additional services due to the Customer’s breach of this clause will be chargeable by Zapp Outdoor.
2.8 Where relevant the Customer shall ensure that all services are provided unless otherwise agreed in writing. The Customer shall be responsible for providing correct, live, isolated services and for ensuring that the site has sufficient incoming services for gas and/or electrical requirements for the Goods and all other equipment on site. All services must be live and connected at the due date for supply of the Services and installation of the Goods, to facilitate testing and commissioning. If Zapp Outdoor is required to return at a later date for such purpose, Zapp Outdoor may charge the Customer.
2.9 In these Conditions, wherever there is a reference to Zapp Outdoor charging the Customer, such charging shall be in accordance with Zapp Outdoor’s scale of charges applicable at that time.
- Orders specifications and descriptions
3.1 Unless otherwise agreed in writing in advance, no order submitted by the Customer shall be deemed to be accepted by Zapp Outdoor unless and until confirmed in writing by Zapp Outdoor’s authorised representative.
3.2 The Customer shall be responsible to Zapp Outdoor for ensuring the accuracy of the terms of any order, the Specification and for giving A&E any necessary information relating to the Goods within a sufficient time to enable Zapp Outdoor to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and Services shall be those recorded by Zapp Outdoor (whether in the Specification or elsewhere).
3.4 Zapp Outdoor reserves the right, on giving reasonable prior notice to the Customer, to make any changes in the Specification of the Goods and Services which are required to conform with any applicable statutory or regulatory requirements.
3.5 No order which has been accepted by Zapp Outdoor may be cancelled by the Customer except with the agreement in writing of Zapp Outdoor and on terms that the Customer shall indemnify Zapp Outdoor in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges (including cancellation charges of suppliers) and expenses incurred by Zapp Outdoor as a result of cancellation, including any cancellation costs of any related sub-contract.
- Price of the Goods
4.1 The price of the Goods and Services shall be Zapp Outdoor’s quoted price or, where no price has been quoted (or a quoted price is no longer valid having been given 30 days or more previously), Zapp Outdoor’s price for the relevant Goods and Services current at the date for performance of the Services or delivery of the Goods, as appropriate.
4.2 Zapp Outdoor reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to Zapp Outdoor which is due to any factor beyond the reasonable control of Zapp Outdoor (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties or customs charges, increase in the costs of labour, materials or other costs of production, including quality control), any change in delivery dates for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Zapp Outdoor adequate information or instructions. Zapp Outdoor shall be entitled to increase the price in the event that Zapp Outdoor or its employee or agent made an error or omission when quoting a price for the Goods or Services.
4.3 The price is exclusive of any applicable VAT, which the Customer shall be additionally liable to pay to Zapp Outdoor.
- Terms of payment
5.1 Zapp Outdoor shall be entitled to invoice the Customer for the price of the Goods and Services on or at any time after delivery of the Goods, being the point of unloading at the Customer’s site (or the due date for delivery, if delivery cannot be effected for any reason).
5.2 Unless otherwise specified by Zapp Outdoor at the time of order acceptance or in a special condition or where the Customer is an Account Holder within its credit limit, the Customer shall pay the price of the Goods and Services (without any deduction or set off), within 7 days of Zapp Outdoor’s invoice being issued and Zapp Outdoor shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. A Customer having an authorised credit account with Zapp Outdoor (an “Account Holder”) shall be entitled to a credit period of 30 days for payment from the date of invoice, provided such Customer remains within its credit limit. If it does not do so, normal payment terms will apply until the Customer is re-authorised by Zapp Outdoor.
5.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Zapp Outdoor, the full price of all Goods delivered to and Services performed for the Customer under any contract with A&E but not paid for shall become immediately due and payable (notwithstanding any previously agreed credit terms) and Zapp Outdoor shall be entitled to do all or any of the following:
5.3.1 by notice, terminate the Contract and recover from the Customer the contract price of the Goods and Services and all losses, expenses and costs suffered or incurred by Zapp Outdoor;
5.3.2 suspend or withhold any further performance of Services or deliveries of Goods to the Customer without liability to the Customer;
5.3.3 appropriate any payment made by the Customer to such of the Goods or Services (or the goods or services supplied under any other contract between the Customer and Zapp Outdoor) as Zapp Outdoor may think fit (notwithstanding any purported appropriation by the Customer); and 5.3.4 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of five per cent per annum above Royal Bank of Scotland 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).
6.1 Any dates quoted for performance of the Services and delivery of the Goods are approximate only and Zapp Outdoor shall not be liable for any delay in performance of the Services or delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by Zapp Outdoor in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.2 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Zapp Outdoor to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.3 If the Customer fails to take delivery of the Goods or fails to give Zapp Outdoor adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s control or by reason of Zapp Outdoor’s fault) then, without prejudice to any other right or remedy available to Zapp Outdoor, Zapp Outdoor may:
6.3.1 recover the expense of the carrier’s standing time at the point of delivery;
6.3.2 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage: or
6.3.3 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
6.4 Unless within 7 days of installation of the Goods Zapp Outdoor is notified to the contrary, all Goods and Services supplied shall be deemed to have been received complete and in good condition and accepted by the Customer as being in accordance with the Specification and this Contract. Notice of any damage, non-compliance with Specification, shortage or non-arrival must be given by the Customer to Zapp Outdoor within such 7 day period.
- Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer on delivery and the Customer is advised to insure accordingly.
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 Zapp Outdoor has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Zapp Outdoor to the Customer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Zapp Outdoor’s fiduciary agent and bailee, and shall keep the Goods in good condition and appropriate environmental and other conditions to maintain the quality of the Goods, separate from those of the Customer and third parties and properly stored, protected and insured and identified as Zapp Outdoor’s property.
7.4 Until such time as the property in the Goods passes to the Customer, Zapp Outdoor shall be entitled at any time to require the Customer to deliver up the Goods to Zapp Outdoor and, if the Customer fails to do so immediately, Zapp Outdoor is hereby granted an irrevocable licence to enter on or in any premises or vehicles of the Customer or any third party where the Goods are loaded, stored or being processed and repossess the Goods. (The Customer shall procure such rights for Zapp Outdoor from any such third party).
7.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Zapp Outdoor, but if the Customer does so all sums owed by the Customer to Zapp Outdoor shall (without prejudice to any other right or remedy of Zapp Outdoor) immediately become due and payable.
7.6 The copyright and all other intellectual property rights in any software, design, drawing, specification, work, invention or improvement made or created or used by Zapp Outdoor in the course of or for the purposes of providing the Services and/or installing the Goods shall remain the sole property of Zapp Outdoor. If Zapp Outdoor provides drawings to the Customer (which it may do subject to payment of its then applicable charges), the copyright in such drawings shall remain with Zapp Outdoor, but provided the Customer enters a Contract with Zapp Outdoor and pays for all Goods and Services supplied in full, the Customer shall have a non-exclusive licence to use them solely for the purposes specified by Zapp Outdoor. All such drawings and copies must be returned to Zapp Outdoor on request.
7.7 Zapp Outdoor accepts no responsibility for any Customer equipment or tools on site or for the security of the site. This provision applies from the date of delivery of the first Goods, during the installation period and prior to hand over to the Customer. The risk of and cost of remedying all loss and damage caused in these circumstances shall be the responsibility of the Customer.
8.1 Product is guaranteed to be free from defects in workmanship and parts for a period of 24 months from the date of purchase. Defects that occur within this warranty period, under normal use and care will be repaired or replaced at our discretion, solely at our option with no charge for parts or labour.
8.2 Zapp Outdoor reserves the right to replace the Product or relevant part with the same or equivalent Product or part, rather than repair it. Where a replacement is provided the Product or part replaced becomes the property of Zapp Outdoor. Zapp Outdoor may replace parts with refurbished parts. Replacement of the Product or a part does not extend or restart the Warranty period.
8.3 The benefits conferred by this warranty are in addition to all rights and remedies in respect of the product that the consumer has under the Trade Practices Act and similar state and territory laws.
8.4 This warranty is limited to defects in workmanship or parts. All defective products or parts will be repaired or replaced.
8.5 This warranty does not cover any consumable item.
8.6 This warranty does not cover any defect caused by an accident, misuse, abuse, use in inappropriate conditions, lack of reasonable care, unauthorised modification, loss of parts, tampering or attempted repair by a person not authorised.
8.7 The warranty will not apply if damage, malfunction or failure results from alterations, accident, misuse, abuse, vandalism, fire, liquid spillage, power surges and dips, thunderstorm activity, acts of God, voltage supply problems, tampering or unauthorised repairs by any persons.
8.8 This warranty does not cover normal wear and tear of the Product or parts.
8.9 Zapp Outdoor excludes all other warranties, conditions, terms, representations and undertakings, whether express or implied.
9.1 Zapp Outdoor will not be liable for any loss or damage arising from loss of use, loss of profits or revenue, or for any resulting indirect or consequential loss or damage.
9.2 Zapp Outdoor’s aggregate liability in respect of all claims under the Warranty shall not exceed the original purchase price of the Product or, at Zapp Outdoor’s option, the cost of replacing the Product.
9.3 Except in respect of death or personal injury caused by Zapp Outdoor’s negligence (in respect of which Zapp Outdoor’s liability shall be unlimited), Zapp Outdoor shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit, economic loss or any indirect, special or consequential loss or damage (whether for loss of profit, goodwill, reputation, contracts or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Zapp Outdoor, its employees or agents or otherwise howsoever and whether or not reasonably foreseeable) which arise out of or in connection with the production or supply of the Goods or their use or resale by the Customer or the provision of or reliance upon the Services or any other services provided by Zapp Outdoor.
9.4 Zapp Outdoor 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 any failure to perform, any of Zapp Outdoor’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond Zapp Outdoor’s reasonable control (“force majeure”). At any time while a force majeure exists, Zapp Outdoor may, on giving notice to the Customer, cancel the Contract in so far as it remains to be performed, without liability to the Customer, without prejudice to Zapp Outdoor’s right to payment for all Goods delivered and Services performed prior to such cancellation.
9.5 The Customer hereby indemnifies Zapp Outdoor in relation to any claim, including but not limited to any intellectual property infringement claim, or liability, including but not limited to any liability for damages, interest, legal or other costs and expenses, (whether of Zapp Outdoor or any third party), arising from the use by Zapp Outdoor of any specification, design, drawing or diagram provided by or on behalf of the Customer.
- Insolvency of Customer
10.1 This clause applies if the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession of, or a receiver (or administrator) is appointed over any of the property or assets of the Customer; or anything analogous to any of the foregoing occurs in relation to the Customer in any jurisdiction; or the Customer ceases, or threatens to cease, to carry on business; or Zapp Outdoor reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to Zapp Outdoor, Zapp Outdoor shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Services have been performed or the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.1 Any notice 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. Hand delivered and facsimile notices shall take effect on receipt (provided that facsimile notices are served on a day if received during business hours in the country of receipt on that day, or at 9.00 am on the next business day, if not). Postal notices shall be deemed served two working days after posting if the sender and recipient are in the same country and seven days after posting, if not).
11.2 No waiver by Zapp Outdoor 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.
11.3 If any provision of these Conditions is held by any court or 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.
11.4 The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Contract promptly through negotiations between the respective senior executives of the parties who have authority to settle the same. If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre for Dispute Resolution, London. If the matter has not been resolved by an ADR procedure within 30 days of the initiation of such procedure, (or such other period as may be agreed) or if either party will not or ceases to participate in an ADR procedure, the dispute shall be referred to the English Courts.
11.5 The Contract shall be governed by the laws of England and the Customer agrees to submit to the exclusive jurisdiction of the English Courts.