1.1 Definitions. In these conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. Creative Play: Creative Play (UK) Limited whose trading address is at PO Box 707, Mold, Flintshire, CH7 1FG Creative Play Materials: materials, equipment, documents and other property of Creative Play Customer: the person or firm who purchases the Goods and/or Services from Creative Play. Goods: the goods (or any part of them) set out in the Order.
Services: the services supplied by Creative Play to the Customer including but not limited to any design and/or installation services.
2. BASIS OF CONTRACT
2.1 An order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these conditions.
2.2 The order shall only be deemed to be accepted when Creative Play issues written acceptance of the Order at which point and on which date the Contract shall come into existence (the “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 Creative Play which is not set out in the contract.
2.4 Any samples, drawings, 3D designs, descriptive matter or advertising issued by Creative Play including illustrations or descriptions contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods 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 that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Creative Play shall not constitute an offer, and is only valid for a period of 90 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.
2.8 If the Customer makes any amendments to the agreed specification after the contract has been formed, Creative Play shall consider the proposed change and make any amendment to the price that is necessary.
3.1 The Goods to be supplied are set out in the order confirmation. Goods supplied will, where applicable, conform to BSEN1176/77 (as in force from time to time).Conformity to no other standards or warranties is to be implied.
3.2 If Goods are to be manufactured in accordance with a specification/design supplied by the Customer, the Customer shall indemnify Creative Play against all liabilities suffered or incurred by Creative Play in connection with any claim made against Creative Play for infringement of a third party’s rights.
3.3 Creative Play has the right to amend/vary/change the Goods and/or Services without the Customer having the right to terminate the contract so long as the change does not materially and prejudicially affect (i) the nature of the Goods and/or Services, or (ii) the price by more than 10%.
4. DELIVERY OF GOODS
4.1 Creative Play shall deliver the Goods to the location set out in the order or such other location as the parties may agree at any time after Creative Play notifies the Customer that the Goods are ready.
4.2 Any dates quoted for delivery of the Goods and/or the commencement and completion of the Services are approximate only, and the time of delivery is not of the essence. In any event, Creative Play shall not be liable for any failure to deliver that is caused by a Force Majeure Event or the Customer’s failure to provide Creative Play with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.3 If the Customer fails to accept or take delivery of the Goods within 10 Business Days of Creative Play notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Creative Play’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 10th Business Day following the day on which Creative Play notified the Customer that the Goods were ready; and (b) Creative Play shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.4 If 20 Business Days after Creative Play notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Creative Play may resell or otherwise dispose of part or all of the Goods and the contract shall be deemed to be terminated as a result of the Customer’s breach of contract.
5. QUALITY OF GOODS
5.1 Creative Play warrants that on delivery the Goods shall: (a) conform in all material respects with their description; (b) be free from material defects in design, material and workmanship;
5.2 Subject to clause 5.3, if: (a) the Customer gives notice in writing 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; (b) Creative Play is given a reasonable opportunity of examining such Goods; and (c) the Customer (if asked to do so by Creative Play) returns such Goods to Creative Play, Creative Play shall, at its option, repair or replace the defective Goods.
5.3 Creative Play shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if: (a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2; (b) the defect arises because the Customer failed to follow the Creative Play’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (c) the defect arises as a result of Creative Play following any drawing, design or Goods Specification supplied by the Customer; (d) the Customer alters or repairs such Goods without the written consent of Creative Play; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; (f) the Goods differ 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, Creative Play 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 Customer should be aware that Rubber Mulch Safety Surfacing is a recycled material which is coloured using a coating pigment. As such no guarantee is given as to the colourfastness of the product. In some cases, this may result in colour transfer. Colours may vary between batches and no consistency of colour is guaranteed or warranted.
5.6 The Customer should be aware that under certain environmental conditions, Wetpour surfacing may be affected by UV light during the laying process. This can affect the colour of the resin used to bind the Wetpour granule and is especially prevalent when laying green and blue Wetpour surfacing, although other colours may be affected. This colour change affects only the resin used and not the rubber granule and as such the surface will return to its expected colour once this microscopic layer of resin has worn through, this may take up to 3 months dependant on use. On large areas the surface may appear patchy due to variations in UV light during the laying process, this is a temporary imperfection caused by UV light and cannot be avoided. The surface will return to its expected colour with use.
5.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Creative Play under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on practical completion.
6.2 Title to the Goods shall not pass to the Customer until Creative Play receives payment in full (in cleared funds) for all Goods and Services that it has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Creative Play’s behalf from the date of delivery; (b) notify Creative Play immediately if it is the subject of any insolvency related event; and (c) give Creative Play such information relating to the Goods as Creative Play may require from time to time.
6.4 If before title to the Goods passes to the Customer (i) the Customer becomes subject to an insolvency event, and/or (ii) Creative Play terminates the contract, without limiting any other right or remedy Creative Play may require the Customer to return the Goods to Creative Play (at the Customer’s cost) and if the Customer fails to return the Goods within 5 Business Days of Creative Play demanding their return, Creative Play may enter the Customer’s premises/property and recover the Goods.
7. SUPPLY OF SERVICES
7.1 Creative Play shall use all reasonable endeavours to meet any performance dates for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance and/or completion of the Services. Creative Play shall endeavour to give the Customer two weeks notice of when the installation is to begin.
7.2 Creative Play shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and/or which do not materially affect the nature or quality of the Services.
7.3 Creative Play will carry out a pre-installation inspection of the site. If that inspection identifies previously unknown issues then Creative Play shall have the right to vary the price and the Services and/or Goods to take account of any such changes,
7.4 If the Customer has any special requirements in relation to the condition of the site when it is handed back to the Customer following completion, these requirements shall be notified to Creative Play during the pre-installation inspection. In the absence of Creative Play being informed about any such requirements and agreeing to them, Creative Play shall only be required to return the site to the Customer in a tidy condition with no betterment (save for the betterment as a result of project itself).
7.5 Creative Play warrants to the Customer that the Services will be provided using reasonable care and skill.
7.6 Unless drawings and plans of any underground services or pipes are provided to Creative Play before the Services commence– including but not limited to electric, gas, drains, water and telephone – Creative Play shall not be liable for damage caused or subsequent damage, repair or disruption to any underground services or pipes.
7.7 Floor markings are often dealt with by a separate team and as such the timing of when the markings are applied may be later than the completion date of the rest of the services.
7.8 The Goods shall not be used by the Customer or anyone under the Customer’s control until practical completion has taken place. Additionally, rubber surfacing requires a curing period and the surface should not be used by the Customer until that curing process has taken place (which usually takes approximately 48 hours).
7.9 Although Creative Play shall take reasonable steps to avoid causing damage to floor, surfaces and access routes, it shall not be liable for such damage (unless caused by Creative Play’s negligence or wilful default) when the Customer have given permission to access such floor, surface or access routes.
7.10 If Creative Play notifies the Customer that the Services have been practically or substantially completed and asks the Customer to complete a sign-off sheet or engage in a handover process and the Customer fails or refuses to engage in that process for a period of 14 calendar days after having been asked to do so, the project shall be deemed to be completed.
7.11 If installation Services are being supplied at a time when persons under the control of the Customer may gain access to the location/area where the Services are being provided, the Customer shall be solely and exclusively responsible for ensuring that those persons are kept a safe distance away from where the Services are being carried out and/or Goods stored or being used.
Creative Play will cordon off the installation area using temporary orange fencing. If you require different or more substantial fencing, you must advise us before the agreed delivery date. There will be an additional cost in respect of obtaining that fencing.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall: (a) ensure that the terms of the Order and any details in a specification or other information given in relation to the Goods and/or Services are complete and accurate; (b) ensure that the design/specification meets the Customer’s requirements; (c) co-operate with Creative Play in all matters relating to the Services; (d) provide Creative Play its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by Creative Play to provide the Services including details of any site requirements and/or limitations which may affect the provision of the Services; (e) provide Creative Play with such information and materials as Creative Play may reasonably require to supply the Goods and Services, and ensure that such information is accurate in all material respects; (f) prepare the Customer’s premises for the supply of the Services including following any reasonable instructions that Creative Play issue in respect of such preparation; (g) provide Creative Play with access to the premises when required, including out of normal operating hours if requested; (h) 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 (including but not limited to planning permissions and/or Building Regulations consents); (i) keep and maintain all Creative Play Materials at the Customer’s premises in safe custody; (j) ensure that an authorised representative is present at the time of installation or any preparatory work being carried out in order to ensure access to the premises and provide confirmation as to design and layout;
(k) provide Creative Play with access to the premises outside of the Customer’s normal hours of operation if Creative Play requires such access; (l) engage with Creative Play to complete the handover and/or sign-off process; (m) be entirely responsible for the safe use of the Goods after Creative Play have installed them; (n) provide Creative Play’s staff with suitable facilities and utilities to enable the Services to be provided. In particular, if the Customer is not able to give access to toilet facilities then Creative Play shall hire portable facilities and the Customer will bear the cost of that; (o) follow all of Creative Play’s reasonable instructions in relation to and the Goods and/or Services.
8.2 If Creative Play’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): (a) Creative Play shall without limiting its other rights or remedies have the right to suspend 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 Creative Play’s performance of any of its obligations; (b) Creative Play shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default; and (c) the Customer shall reimburse Creative Play on written demand for any costs or losses sustained or incurred by Creative Play arising directly or indirectly from the Customer Default; (d) Creative Play shall have option to increase the price to take account of the Customer’s failure to comply with its obligations.
9. CHARGES AND PAYMENT
9.1 Creative Play may, at its sole discretion, ask for the payment of a deposit upon conformation of the order. If Creative Play makes such a request, it shall be under no obligation to take any further steps with regards the project until such time as the deposit has been paid in cleared funds.
9.2 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 Creative Play’s published price list as at the date of the Order.
9.3 If Creative Play is required to perform any Services or supply any Goods over and above those which form part of the original order, Creative Play reserves the right to charge for those additional Goods and/or Services in accordance with the standard rates in force at the time.
9.4 Creative Play may: (a) increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Creative Play that is due to: (i) any factor beyond the control of Creative Play(including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any request by the Customer to change the delivery date(s) and dates for installation, quantities or types of Goods ordered, or the Goods specification; or (iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Creative Play adequate or accurate information or instructions in respect of the Goods.
9.5 The Customer shall pay the price for the Goods and/or Services immediately upon the practical completion of the installation of the Goods. Creative Play shall, at its reasonable discretion, determine what constitutes practical completion. Completion by Creative Play and the Customer of the project sign-off sheet shall be conclusive proof that practical completion has taken place, if it has not taken place earlier.
9.6 If the Customer identifies snagging, defects or post-completion issues, the Customer shall be entitled to retain a maximum of 10% of the Price pending those matters be resolved. Once practical completion has taken place, the Customer shall not have any entitlement to retain more than 10% of the price. That 10% shall be paid immediately upon the completion of the matters which gave rise to the withholding.
9.7 Time for payment shall be of the essence.
9.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT.
9.9 If the Customer fails to make any payment due to Creative Play under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per calendar month until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.10 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. Creative Play may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Creative Play to the Customer.
9.11 Where a special discount, payment or other terms have been agreed, these shall be strictly subject to the Customer’s compliance with these conditions, and such special terms shall cease and revert to these normal standard terms upon your non-compliance.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All intellectual property rights in or arising out of or in connection with the Goods and/or Services shall be owned by Creative Play.
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.
12. LIMITATION OF LIABILITY
12.1Nothing in these Conditions shall limit or exclude Creative Play’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or (e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1: (a) Creative Play 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 (b) Creative Play’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 the price paid by the Customer for the Goods and/or Services.
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. Creative Play gives no warranty as to the suitability of the Goods and/or design for the Customer’s particular requirement or objective.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 Business Days after receipt of notice in writing to do so; (b) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; (c) the other party’s financial position deteriorates to such an extent that in Creative Play’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
13.2 Without limiting its other rights or remedies, Creative Play may terminate the Contract with immediate effect if (i) the Customer fails to pay any amount due under this Contract on the due date for payment, and/ or (ii) any insolvency related event occurs, or proceeding is taken, in connection with the Customer that has an effect equivalent or similar to an insolvency event.
13.3 Without limiting its other rights or remedies, Creative Play may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Creative Play if the Customer fails to pay any amount due under this Contract on the due date for payment, or Creative Play reasonably believes that the Customer is about to become subject to any of them.
13.4 On termination of the Contract for any reason: (a) the Customer shall immediately pay to Creative Play all of the its outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has yet been submitted, Creative Play shall submit an invoice, which shall be payable by the Customer immediately; (b) the Customer shall return all of Creative Play Materials. If the Customer fails to do so, then Creative Play may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; (c) 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 (d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.1 This agreement is personal to the Customer cannot be assigned without Creative Play’s prior written consent. Creative Play may assign, subcontract, novate, transfer or deal in any other manner with all or any of its rights or obligations under this agreement.
14.2 Each right or remedy of Creative Play under this agreement is without prejudice to any other right or remedy of Creative Play whether under this agreement or not.
14.3 Creative Play shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from a Force Majeure Event. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Creative Play including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Creative Play or any other party), failure of a utility service or transport network, 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.
14.4 This agreement and the accompanying purchase order constitute the whole agreement between Creative Play and the Customer and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
14.5 The Customer acknowledges that, in entering into this agreement it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this agreement or not) other than as expressly set out in this agreement.
14.6 Nothing in this agreement is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties
14.7 If any provision of this agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of this agreement and the remainder of such provision shall continue in full force and effect.
14.8 Failure or delay by Creative Play in enforcing or partially enforcing any provision of this agreement shall not be construed as a waiver of any of its rights under this agreement.
14.9 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.10 The parties to this agreement do not intend that any term of this agreement shall be enforceable by virtue of this agreement (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.11 The formation, existence, construction, performance, validity and all aspects of this agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.