Potamii Limited
TERMS AND CONDITIONS OF SALE
The Customer's attention is particularly drawn to the provisions of Clause 12.
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Acceptance: Potamii Limited’s written acceptance of the [Customer’s] Order issued pursuant to Clause 2.2.
Potamii: Potamii Limited - registered in England and Wales with Company Number 06907247.
Potamii materials: Has the meaning set out in Clause 8.1.7.
Business Day: A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: Has the meaning set out in Clause 2.2.
Conditions: These terms and conditions as amended from time to time in accordance with Clause 15.7.
Contract: The Contract Documents and these Terms and Conditions, together with the contract between Potamii Ltd. and the Customer for the supply of Goods and Services in accordance with these Conditions.
Contract Documents: The Order, Acceptance, the Goods Specification and the Services Specification (if any).
Customer: The person or firm that purchases the Goods and Services from Potamii Ltd.
Delivery Location: Has the meaning set out in Clause 4.1.
Force Majeure Event: Has the meaning given to it in Clause 14.1.
Goods: The goods (or any part of them) set out in the Order.
Goods Specification: Any specification for the Goods, including any relevant plans or drawings, that is/are agreed in writing by the Customer and Potamii.
Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Manuals: The manuals containing guidance regarding the deployment of the Goods provided to the Customer.
Order: The Customer's order for the supply of Goods and Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of Potamii's quotation, or overleaf, as the case may be.
Services: The training services regarding the use of the Goods supplied by Potamii to the Customer as set out in the Service Specification below.
Service Specification: The description or specification for the Services provided in writing by Potamii to the Customer.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality);
1.2.2 A reference to a party includes its successors or permitted assigns;
1.2.3 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 A reference to writing or written does not include faxes or e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Potamii issues written acceptance of the Order (Acceptance), at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Potamii which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Potamii and any descriptions of the Goods including performance data, dimensions, weight, load-bearing capacity and other technical information, or illustrations or descriptions of the Services, contained in Potamii's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms:
2.5.1 That the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing; and
2.5.2 Referred to or contained in any Contract Documents provided or prepared by the Customer.
2.6 Any quotation given by Potamii shall not constitute an offer and is only valid for a period of 60 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. Goods
3.1 The Goods are described in the Goods Specification.
3.2 Potamii reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
3.3 The Customer is responsible for the design of the Goods and Potamii shall not be responsible for the Goods Specification or for verifying the adequacy of any design contained in the Goods Specification.
4. Delivery of Goods
4.1 Potamii shall deliver, or procure delivery of, the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Potamii notifies the Customer that the Goods are ready.
4.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Potamii shall not be liable for any delay in delivery of the Goods that is caused by:
4.3.1 Any change or variation in relation to the Goods;
4.3.2 Compliance with any instruction of the Customer that is not occasioned by the default of Potamii;
4.3.3 Any impediment, prevention or default, whether by act or omission, by the Customer, or any person employed, engaged or authorised by the Customer, excluding Potamii;
4.3.4 A Force Majeure Event;
4.3.5 The Customer's failure to provide Potamii or any party delivering the goods on Potamii’s behalf with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If Potamii fails to deliver, or procure delivery of, the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Potamii shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide Potamii or any party delivering the goods on Potamii’s behalf with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods or any other event set out in Clause 4.3 above.
4.5 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of Potamii notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Potamii's failure to comply with its obligations under the Contract in respect of the Goods:
4.5.1 Delivery of the Goods shall be deemed to have been completed at 09:00 hours on the fifth Business Day following the day on which Potamii notified the Customer that the Goods were ready; and
4.5.2 Potamii shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 20 Business Days after Potamii notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Potamii may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5. Quality of Goods
5.1 Potamii warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
5.1.1 Conform in all material respects with their description in the Goods Specification;
5.1.2 Be free from material defects in design, material and workmanship; and
5.1.3 Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to Clause 5.3, if:
5.2.1 The Customer gives notice in writing during the warranty period, and within a reasonable time of discovery, that some or all of the Goods do not comply with the warranty set out in Clause 5.1;
5.2.2 Potamii is given a reasonable opportunity of examining such Goods; and
5.2.3 The Customer (if asked to do so by Potamii) returns such Goods to Potamii's place of business, Potamii shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Potamii shall not be liable for the Goods' failure to comply with the warranty in Clause 5.1 if:
5.3.1 The Customer makes any further use of such Goods after giving a notice in accordance with Clause 5.2;
5.3.2 The defect arises because the Customer failed to follow Potamii's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods;
5.3.3 The defect arises as a result of Potamii following any drawing, design, specification or Goods Specification supplied by the Customer;
5.3.4 The Customer alters or repairs such Goods without the written consent of Potamii;
5.3.5 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.3.6 The Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this Clause 5, Potamii shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in Clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Potamii under Clause 5.2.
6. Title and Risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Potamii receives payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 Notify Potamii immediately if it becomes subject to any of the events listed in Clause 13.1.1 to Clause 13.1.11; and
6.3.2 Give Potamii such information relating to the Goods as Potamii may require from time to time.
6.4 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Clause 13.1.1 to Clause 13.1.11, then without limiting any other right or remedy, Potamii may at any time require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product.
7. Supply of Services
7.1 Potamii shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 Potamii shall use reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Potamii shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Potamii shall notify the Customer in any such event.
7.4 Potamii warrants to the Customer that the Services will be provided using reasonable care and skill.
8. Customer's Obligations
8.1 The Customer shall:
8.1.1 Ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
8.1.2 Cooperate with Potamii in all matters relating to the Services;
8.1.3 Provide Potamii, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Potamii to provide the Services;
8.1.4 Provide Potamii with such information and materials as Potamii may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
8.1.5 Prepare the Customer's premises for the supply of the Services;
8.1.6 Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
8.1.7 Keep and maintain all materials, equipment, documents, Manuals and other property of Potamii (Potamii Materials) at the Customer's premises in safe custody at its own risk, maintain Potamii Materials in good condition until returned to Potamii, and not dispose of or use Potamii Materials other than in accordance with Potamii's written instructions or authorisation.
8.2 If Potamii's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 Potamii shall without limiting its other rights or remedies have the right to suspend the performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Potamii's performance of any of its obligations;
8.2.2 Potamii shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Potamii's failure or delay to perform any of its obligations as set out in this Clause 8.2; and
8.2.3 The Customer shall reimburse Potamii on written demand for any costs or losses sustained or incurred by Potamii arising directly or indirectly from the Customer Default.
9. Charges and Payment
The price for Goods and Services shall be the price set out in the Order or, if no price is quoted, the price set out in Potamii's published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, and transport of the Goods. The Customer shall pay Potamii the price in the instalments in Potamii’s quotation and this Clause 9.
9.1 In respect of Goods and Services, Potamii may, at its option, charge the Customer a deposit upon placing an Order.
9.2 Potamii shall submit an invoice to the Customer for each instalment. The invoice shall specify the sum Potamii considers will become due on the payment due date in respect of the instalment, and the basis on which that sum is calculated.
9.3 The payment due date shall be the date of each invoice and the final date for payment shall be 30 days after the date payment becomes due. Time for payment shall be of the essence of the Contract.
9.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value-added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Potamii to the Customer, the Customer shall, on receipt of a valid VAT invoice from Potamii, pay to Potamii such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.5 If the Customer fails to make any payment due to Potamii under the Contract by the final date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above HSBC Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Potamii may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Potamii to the Customer.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Potamii.
10.2 The Customer acknowledges that in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on Potamii obtaining a written licence from the relevant licensor on such terms as will entitle Potamii to license such rights to the Customer.
10.3 All Potamii Materials are the exclusive property of Potamii.
11. Confidentiality
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Clause 11 shall survive termination of the Contract.
12. Limitation of Liability [THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE]
12.1 Nothing in these Conditions shall limit or exclude Potamii's liability for:
12.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 Fraud or fraudulent misrepresentation;
12.1.3 Breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
12.1.4 Breach of the terms implied by Section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
12.1.5 Defective products under the Consumer Protection Act 1987.
12.2 Subject to Clause 12.1:
12.2.1 Potamii shall under no circumstances whatever be liable to the Customer, whether in contract, tort (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
12.2.2 Potamii's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to two times the price of the Goods.
12.3 The terms implied by Sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by Sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This Clause 12 shall survive termination of the Contract.
13. Termination
13.1 Without limiting its other rights or remedies, Potamii may terminate the Contract with immediate effect by giving written notice to the Customer if:
13.1.1 The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of Section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.1.2 A resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
13.1.3 The Customer is the subject of a bankruptcy petition or order;
13.1.4 A creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.1.5 An order is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
13.1.6 The holder of a qualifying charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
13.1.7 A person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
13.1.8 Any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 13.1.1 to Clause 13.1.7 (inclusive);
13.1.9 The Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
13.1.10 The Customer’s financial position deteriorates to such an extent that in Potamii's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
13.1.11 The Customer dies or, by reason of illness or incapacity, is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, Potamii may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Potamii may suspend the supply of Goods and Services under the Contract or any other contract between the Customer and Potamii if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 13.1.1 to Clause 13.1.11, or Potamii reasonably believes that the Customer is about to become subject to any of them.
13.4 On termination of the Contract for any reason:
13.4.1 The Customer shall immediately pay to Potamii all of Potamii's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has yet been submitted, Potamii shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.4.2 The Customer shall return all Potamii Materials which have not been fully paid for. If the Customer fails to do so, then Potamii may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
13.4.3 The accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
13.4.4 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14. Force Majeure
14.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Potamii including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Potamii or any other party), failure of a utility service or transport network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 Potamii shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.3 If the Force Majeure Event prevents Potamii from providing any of the Services and/or Goods for more than 8 weeks, Potamii shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
15. General
15.1 Assignment and other dealings:
15.1.1 Potamii may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
15.1.2 The Customer shall not, without the prior written consent of Potamii, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2 Notices:
15.2.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service or by commercial courier.
15.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 15.2.1; if sent by pre-paid first-class post or other next working day delivery service, at 09:00 .00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
15.2.3 The provisions of this Clause shall not apply to the service of any proceedings or other documents in any legal action.
15.3 Severance:
15.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.4 Waiver: A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
15.6 Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Variation: Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Potamii.
15.8 Governing law: This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the Laws of England and Wales.
15.9 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
16. Order Cancellation & Returns Policy
16.1.1 Stock items: We will accept stock items returned by the purchaser to our Manufacturing & Distribution Centre (GU34 5EN) within 14 days of purchase provided the items have not been unrolled, are not damaged or are otherwise rendered in used condition. Once the dams are received back into stock we will refund the purchase price of the dams excluding delivery less a 15% restock charge. Return to our Distribution Centre is the responsibility of the purchaser.
16.1.2 Bespoke items: Except with prior the written agreement by Potamii Limited, dams made to order will not be accepted into stock.
17. Warranty
17.1.1 Waterdams manufactured by Potamii Limited are guaranteed to be free from manufacturing defect and material defect for a period of one year from the date of purchase.
17.1.2 Should a defect be found Potamii Limited will, at its discretion, repair or replace the item.
17.1.3 Minor pinhole leaks in the liner are specifically excluded.