1. INTERPRETATION

In these conditions of sale:

“AdvRef” means Advanced Refrigeration Ltd., a company incorporated in Scotland with company number SC339321 and whose registered office is at Truffle Cottage Mill Of Allathan, Udny, Ellon, AB41 7PR; 

“Business Day” means a day, other than a Saturday or Sunday, when banks in Scotland are open for business;  

“Conditions” means these terms and conditions as amended from time to time;

“Contract” means the contract between AdvRef and the Customer for the supply of Goods or Services or Goods and Services in accordance with these Conditions;

“Customer” means the person or firm who purchases the Goods or Services or Goods and Services from AdvRef;.

“Force Majeure Event” means an event, circumstance or cause beyond a party’s reasonable control; 

“Goods” means the goods (or any part of them) set out in the Order; 

“Goods Specification” means any specification for the Goods that is agreed by the Customer and AdvRef; 

“Order” means the Customer’s verbal or written (as the case may be) order for the supply of Goods or Services or Goods and Services; 

“Services” means the services supplied by AdvRef to the Customer as set out in the Service Specification; 

“Service Specification” means the description or specification for the Services provided by AdvRef to the Customer; 

2. BASIS OF CONTRACT

2.1 These Conditions shall apply to all Orders. 

2.2 Any quotation given by AdvRef shall not constitute an offer and is only valid for the period stated in the quotation. 

3. GOODS

General

3.1 The Goods are described in the Goods Specification. 

3.2 AdvRef reserves the right to amend the Goods Specification if required by any applicable law or regulatory requirement, and AdvRef shall notify the Customer in any such event. 

Delivery

3.3 AdvRef shall deliver the Goods to the location agreed between the parties (Delivery Location). 

3.4 Delivery is completed on the completion of unloading of the Goods at the Delivery Location. 

3.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. AdvRef shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide AdvRef with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 

Quality

3.6 If:

a) the Customer gives notice in writing to AdvRef within a reasonable time of discovery that some or all of the Goods are defective;

b) AdvRef is given a reasonable opportunity of examining such Goods; and 

c) the Customer (if asked to do so by AdvRef) returns such Goods to AdvRef’s place of business at AdvRef’s cost, AdvRef shall at its option, and to the extent that it agrees that such Goods are defective, repair or replace the defective Goods, or refund the price of the defective Goods in full.

3.7 AdvRef shall not be liable for defective Goods’ if: 

a) the Customer makes any further use of such Goods after giving notice in accordance with clause 3.6; 

b) the defect arises because the Customer failed to follow AdvRef’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; 

c) the Customer alters or repairs such Goods without the written consent of AdvRef; 

d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or 

3.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract. 

3.9 These Conditions shall apply to any repaired or replacement Goods supplied by AdvRef.

Title and Risk

3.10 The risk in the Goods shall pass to the Customer on completion of delivery. 

3.11 Title to the Goods shall not pass to the Customer until AdvRef receives payment in full (in cash or cleared funds) for the Goods. 

3.12 Until title to the Goods has passed to the Customer, the Customer shall maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery. 

4. SERVICES

4.1 AdvRef shall supply the Services to the Customer in accordance with the Service Specification in all material respects. 

4.2 AdvRef shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. 

4.3 AdvRef reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and AdvRef shall notify the Customer in any such event. 

4.4 AdvRef reserves the right to use agents, consultants and sub-contractors in executing the Services.

5. CUSTOMER OBLIGATIONS 

5.1 The Customer shall: 

a) ensure that the instructions given in the Order are complete and accurate; 

b) co-operate with AdvRef in all matters relating to the Services; 

c) provide AdvRef, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by AdvRef to provide the Services; 

d) provide AdvRef with such information and materials as AdvRef may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; 

5.2 If AdvRef’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

a) without limiting or affecting any other right or remedy available to it, AdvRef may suspend performance of the Services until the Customer remedies the Customer Default, and rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays AdvRef’s performance of any of its obligations; 

b) AdvRef shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from AdvRef’s failure or delay to perform any of its obligations as set out in this clause 5.2; and 

c) the Customer shall reimburse AdvRef on written demand for any costs or losses sustained or incurred by AdvRef arising directly or indirectly from the Customer Default. 

6. PRICE

6.1 The price and/or rates for the Goods and/or Services shall be set out in the Order, or, if no price is quoted, the price set out in AdvRef’s price list in force as at the date of delivery, and, unless otherwise stated, shall be fixed for the period of such Order.

6.2 Any alterations to the Goods and/or Services or to the agreed programme shall constitute a variation.

6.3 All such variations shall be advised by AdvRef to the Customer in writing and shall be valued by AdvRef on the following basis:

a) Omissions – At the value included in AdvRef’s quotation.

b) Additions – On the basis of the additional cost incurred by AdvRef. 

6.4 n the event that the Services or any part thereof are carried out after the period stated in the Order, and such delay is outwith the reasonable control of AdvRef, AdvRef shall be entitled (at AdvRef’s sole discretion) to increase the rates and/or prices in line with the Retail Prices Index in the period beginning from the date of the Order to the date the Services or any part thereof are carried out. 

6.5 In respect of the Goods, AdvRef shall invoice the Customer on or at any time after completion of delivery. In respect of Services, AdvRef shall invoice the Customer on completion of the Services.

6.6 The Customer shall pay each invoice submitted by AdvRef: 

a) within 30 days of the date of the invoice; and 

b) in full and in cleared funds to a bank account nominated in writing by AdvRef, and time for payment shall be of the essence of the Contract. 

6.7 Unless stated elsewhere in the company quotation, prices are based upon Goods being delivered and Services being executed on Business Days during the period between 0800 hours and 1630 hours. 

6.8 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 AdvRef to the Customer, the Customer shall, on receipt of a valid VAT invoice from AdvRef, pay to AdvRef such additional amounts in respect of VAT as are chargeable on the supply of the Goods or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services.

6.9 The company’s quotation has been compiled from the information identified in the quotation and specifically without knowledge of any conditions of contract under which the customer is /may be engaged.

6.10 If the Customer fails to make a payment due to AdvRef under the Contract by the due date, then, without limiting AdvRef’s remedies under clause 8 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.10 will accrue each day at [4]% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

6.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. LIMITATION OF LIABILITY 

7.1 The limits and exclusions in this clause 7 reflect the insurance cover AdvRef has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.

7.2 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence). 

7.3 Nothing in this Contract limits any liability for: 

a) death or personal injury caused by negligence;

b) fraud or fraudulent misrepresentation; 

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

d) defective products under the Consumer Protection Act 1987; or 

e) any liability that legally cannot be limited. 

7.4 Subject to clause 7.3, AdvRef’s total liability to the Customer shall not exceed the price of the Goods and/or Services provided under the Contract. 

7.5 Subject to clause 7.3, the following types of loss are wholly excluded: 

a) loss of profits (including loss of anticipated savings); 

b) loss of sales or business; 

c) loss of agreements or contracts; 

d) loss of or damage to goodwill; 

e) indirect or consequential loss. 

7.6 This clause 7 shall survive termination of the Contract. 

8. TERMINATION

8.1 Without limiting its other rights or remedies, AdvRef may terminate the Contract with immediate effect by giving written notice to the Customer if: 

a) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; 

b) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or 

c) there is a change of control of the Customer.

8.2 Without limiting its other rights or remedies, AdvRef may suspend supply of the Goods under the Contract or any other contract between the Customer and AdvRef if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(b), or AdvRef reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment. 

8.3 Without limiting its other rights or remedies, AdvRef may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason the Customer shall immediately pay to AdvRef all of AdvRef unpaid invoices and interest and, in respect of the Goods and Services supplied but for which no invoice has been submitted, AdvRef shall submit an invoice, which the Customer shall pay immediately on receipt. 

8.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, 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. 

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

9. GENERAL

9.1 Force Majeure 

Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for [12 weeks], the party not affected may terminate the Contract by giving not less than [14 days’] written notice to the affected party. 

9.2 Assignation and other dealings

a) AdvRef may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, provided that it gives prior written notice of such dealing to the Customer. 

b) The Customer shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of 

c) its rights and obligations under the Contract without the prior written consent of AdvRef. 

9.3 Entire Agreement 

a) The Contract constitutes the entire agreement between the parties. 

b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for any innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract. 

9.4 Variation 

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

9.5 Waiver 

a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 

b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy. 

9.6 Severance 

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 9.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. 

9.7 Notices 

a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be (i) delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office or its principal place of business (in any other case), or (ii) sent by email to the following addresses: 

AdvRef: jodi@advref.scot

b) Any notice shall be deemed to have been received (i) if delivered by hand, at the time the notice is left at the proper address, (ii) if sent by next working day delivery service, at 9.00am on the second Business Day after posting, or (iii) if sent by email, at the time of transmission, or, if this time falls outside ordinary business hours in the place of receipt, when ordinary business hours resume. 

c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 

9.8 Third Party Rights 

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.

10. GOVERNING LAW AND JURISDICTION

10.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.

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

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