Contract Terms & Conditions of Business
1. General – In this Contract:
The ‘Company’ refers to PGCO Ltd (trading as The Playground Company Ltd).
The ‘Customer’ refers to any person or organisation ordering Goods from the Company.
The ‘Goods’ refers to any goods or services ordered by the Customer from the Company or sold or supplied by the Company to the Customer under the terms of this contract.
‘This Contract’ refers to a contract between the Customer and the Company incorporating these Conditions. This contract shall be deemed to apply to any goods or services ordered by the Customer from PGCO Ltd.
This Contract governs the sale of Goods by the Company to the exclusion of all other representations, statements, understandings, negotiations, proposals or agreements.
Where the Customer submits its own order form these terms shall prevail if they conflict with the terms in that form, even if that form includes a condition similar to this one.
No employee of the Company or its agents has authority to make any warranty, statement or promise concerning the Goods except in writing signed by a Director of the Company.
The Customer’s order shall be subject to acceptance by the Company.
Orders are accepted and estimates of delivery given conditionally on the Company being able to secure the necessary labour or material and without responsibility for delays or non-fulfilment arising through risk and uncertainties of manufacture, strikes, accidents, force majeure or otherwise howsoever caused.
All drawings, descriptions and specifications, particulars of weights and dimensions are approximate only and not binding and illustrations contained in brochures, price lists, sales literature and other advertisement material are for the purpose of general description only and none of these shall form part of this Contract.
PGCO:Explore utilises Kubity™” software to power its service.
Where the Company is asked to manufacture or supply Goods to the Customers own specification, the Company will not be held responsible for any non-compliance to the relative standards for those Goods and is not responsible for the actual suitability of those Goods for the purpose being used.
3. Quotations, Orders and Cancellations
All quotations are valid for a period of 30 days from the date specified on the quotation (errors and omissions excepted). The Company will be deemed to have accepted the Customer’s order when a written acknowledgement has been issued. An order for standard products may be cancelled up to eight (8) days from the date of order without cost.
Cancellations advised later than eight (8) days may incur a cancellation charge at the Company’s discretion. An order for products designed or modified by the Company to the Customer’s specifications may be cancelled only by paying 70% of the product price. Delivery time may be delayed once (by not more than one month), however, no later than one (1) week before the confirmed time of delivery.
The price shall be the amount quoted on the Company’s Order Acknowledgement. All prices, unless otherwise stated, are for delivery ‘ex-works’ and are subject to the addition of VAT or any other tax or duty which is or may be levied or charged in the U.K or in the country of destination. Any such taxes, duties or charges shall be paid by the Customer.
The prices quoted are subject to any increase in the cost of labour, materials or transportation between the date of quotation and despatch of Goods and may not include installation costs. If the Customer requires any alteration to the order, the price will be varied accordingly.
Delivery shall be ‘ex-works’ unless the Company agrees otherwise. If the price quoted by the Company includes delivery by the Company, the Customer shall be responsible for giving the Company clear and accurate instructions as to the place of delivery. The Customer warrants that suitable access to the delivery address will be provided. The Company will use its best endeavours to deliver at the time stated, but delivery dates and times shall be regarded as estimates only.
The Company does not guarantee that the Goods will be delivered by such date or accept liability for failure to meet the date. Time of delivery shall not be of the essence of the Contract. The Company shall not be liable to the Customer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Customer undertakes not to reject the Goods but to accept the Goods delivered as part performance of the contract.
If the Customer fails to take delivery of the Goods on the agreed delivery date, a redelivery charge may be levied on the Customer to compensate the Company for any re-delivery costs charged by the Carrier. Where Goods are not delivered by the Company’s own employees or subcontractors the Customer shall inspect the goods prior to accepting them from the delivery company. Any outwardly visible damage to the Goods or packaging shall be noted “Damaged in Transit” on the delivery company’s receipt documentation. Acceptance of any claim for Goods damaged in transit will be conditional on such notification being given to the carrier at the time of delivery.
The Customer shall not refuse delivery of damaged goods without obtaining the Company’s express permission to do so. The Customer shall be deemed to have accepted the Goods not later than 48 hours after the delivery to the Customer or at the point of delivery if a signature has been obtained. The Customer shall carry out a thorough inspection of the Goods within 48 hours (2 working days) of delivery and shall give written notification to the Company within 5 working days of delivery of the Goods of any defects which a reasonable examination would have revealed.
Where the Customer has accepted, or is deemed to have accepted, the Goods the Customer shall not be entitled to reject Goods which are not in accordance with the Contract. Any breakage, damage or shortage must be advised to the Company within 48 hours (working days) of receipt of Goods.
6. Property of Goods
The quantity and description of the Goods shall be as set out in the Company’s Order Acknowledgement. Title to the Goods delivered by the Company shall not pass to the Customer until payment is made in full. In case of default in payment the Company shall be granted access rights in order to repossess the Goods. At all times before payment in full:
- the Goods shall stand in the Customer’s books in the name of the Company; and
- the Customer shall take appropriate steps to notify third parties of the Company’s interest in the Goods; and
- in the event of threatened seizure of the Goods or of appointment of a receiver or liquidator, or any other event entitling the Company to terminate this Contract under paragraph 3, the Customer shall immediately notify the Company and the Company shall be entitled to enter the Customer’s premises and repossess the Goods.
If the Customer delivers goods to a third party before payment has been made in full to the Company, the Customer shall hold all sums received for such goods as trustee for the Company and shall remit them to the Company on receipt. Risk shall pass on delivery of the Goods to the Customers address.
Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for them (including interest and costs) has been paid in full.
Until title passes the Customer shall hold the Goods as bailee for the Seller and shall store or mark them so that they can at all times be identified as the property of the Company.
The Company may, at any time before title passes and without any liability to the Customer, repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Customer’s right to use, sell or otherwise deal in them; and for the purpose (or determining what if any Goods are held by the Customer and inspecting them) enter any premises of or occupied by the Customer. The Company may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Customer.
Unless the Company and the Customer have agreed in writing that the price shall include the cost of the assembly and/or installation of the Goods, the Customer shall be solely responsible for the proper assembly and/or installation of the Goods, in accordance with the Company’s instructions.
Where it has been agreed in writing that the Company is responsible for the assembly and/or installation of goods the Customer shall provide suitable and reasonable access to the site and allow work to be carried out continuously during normal working hours. If in the event delays occur, due to the Customer’s instructions or lack thereof, the Company shall be entitled to charge a reasonable amount for any extra cost incurred.
The Company or its representative shall notify the Customer upon completion of installation, who upon immediate inspection shall certify the works are completed to their satisfaction. Any delay in obtaining this agreement may be subject to an additional charge. The Customer shall be deemed to have accepted that the installation is complete if, within 48 hours of notification of completion, the Customer does not inform the Company to the contrary.
7.1. Variations during Installation
7.1.1 Any variations during or prior to installations must be communicated to the Company prior to any variation works commencing.
7.1.2 Where the Company have to install equipment into the ground / carry out ground works below 300mm, the Customer is expected to supply site plans of underground services for gas, water, sewage, electric pipes and cables. If the customer is unable to provide this information the Company will not be held responsible for any unforeseen damage occurring to any underground services.
7.1.3 Where the Company are required to install equipment into the ground / carry out ground works, the Company have the right to apply an additional charge to the Customer if the dig/ ground works is deemed more difficult than anticipated
7.1.4 Any variation from the original Order must be confirmed in writing to the Company who will then confirm the Customer of any price variation.
7.1.5 Any Variation in Order or Price must be confirmed and signed as accepted by the Customer before any variation work can commence.
7.1.6 These procedures have been included in order to protect the Customer form any unauthorised changes to agreed installations which may result in health and safety implications.
7.1.7 Failure to adhere to this procedure will result in penalty charges being levied
at day work rates.
8. Settlement Terms
All payments shall be made to the Company’s address stated on the invoice and shall be due 30 days from date of invoice unless otherwise stated.
Where the Company undertakes to supply and install the Goods, unless prior arrangements have been made with the Company, the Company may request staged payments.
The Company reserves the right to enforce the Late Payment of Commercial Debts (Interest) Act 1998 and its subsequent amendments, and retains the right to levy additional charges at its discretion if terms are exceeded. Where special discount terms are quoted, the terms must be strictly adhered to.
The Company has the right to refuse a credit account for any customer it sees as a potential risk. The Customer shall pay all accounts in full and not exercise any rights of set-off or counter claim against invoices submitted to or by the Company.
9. Limitations of Liability
Accept where expressly contained in this Contract, all warranties, conditions, undertakings and representations, expressed or implied, statutory or otherwise, are excluded and the Company has no obligation, duty or liability in Contract, tort (including negligence or breach of statutory duty) or otherwise. In any event the Company’s liability arising for any reason in connection with this Contract shall be limited to the original invoice value of the Goods.
In no circumstances will the Company be liable in Contract, tort (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings, or for any indirect or consequential loss or damage whatever.
The Company does not exclude or restrict liability for death or personal injury resulting from its own negligence.
Each provision of this Condition is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is held unreasonable in any circumstances and shall remain in force not withstanding termination of this Contract.
The Company shall have the right forthwith to terminate this Contract and to claim for any resulting losses or expenses if:
– The Customer commits a breach of this Contract and fails to remedy the breach within a reasonable time of a written notice to do so; or
– The Customer commits any act of bankruptcy or compounds with its creditors; or a petition or receiving order in bankruptcy is presented or made against the Customer; or
– A petition for an administration order is presented (otherwise than for reconstruction or amalgamation) or a receiver or administrative receiver or any similar event occurs under the laws of the state where the Customer was incorporated.
11. Force Majeure
The Company shall not be liable in respect of any breach of this Contract due to any cause beyond its reasonable control including ‘Act of God’, inclement weather, flood, lightning or fire, industrial actions or lockouts; the act or omission of Government, highways authorities, or other competent authority; military operations or riot; the act of omission of any party for whom the Company is not responsible.
12. Permissions and Consents
The Customer warrants that any necessary consents have been applied for and granted. The customer accepts liability for the cost of any hire, delivery or materials and labour incurred where any installation is caused to be abandoned or delayed due to lack of planning or other consents.
The Customer shall indemnify the Company against all damages, penalties, cost and expenses arising out of any claim by any third party for any infringement or alleged infringement of any third party’s industrial or intellectual property rights in any work carried out in accordance with the Customer’s specifications.
Copyright in all drawings or tracings prepared by the Company are the Company’s property and copyright and must be regarded as confidential. Such drawings or tracings must not be published or disclosed under any circumstances without the Company’s permission in writing.
14. Legal Interpretation
This Contract is governed by English Law. Any dispute arising out of, or in connection with, this Contract shall be determined by the Courts of England.
15. Product Guarantees & Playground Inspections by Third Party
All play products and safety surfacing offered by The Company are designed and installed to BS EN 1176 AND 1177. The Company will rectify any defects within the advertised guarantee period of the product free of charge should the play equipment or surfacing fail to meet these standards.
Due to the increasing number of unregistered play inspectors The Company will only recognise product failures that are highlighted from inspection reports completed by RPII (Register of Play Inspectors International, www.playinspectors.com) registered inspectors. RPII inspectors have to have undergone training and examination or have been able to demonstrate the required experience and skills in order for them to be included on the register.
Both ROSPA (www.rospa.com) and The Play Inspection Company (www.pi2inspection.co.uk) have registered inspectors with RPII and are able to provide further information regarding play safety and play inspection.