1. DEFINITIONS & INTEPRETATION
1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below:
1.2 “Client” means the client detailed in the Quotation;;
1.3 “Contract” means the contract between the Supplier and the Client relating to the supply of Goods and/or Services, incorporating the Quotation and these terms and conditions;;
1.4 “Intellectual Property Rights” means all copyright, database right, patents, registered and unregistered design rights, registered and unregistered trade marks, rights in domain names and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same;;
1.5 “Goods” means the goods detailed in the Quotation;;
1.6 “Payment Terms” means the payment terms detailed in the Quotation;; “Quotation” means the document confirming the particulars of the Contract;; “Services” means the services detailed in the Quotation;;
1.7 “Supplier” means the party detailed in the Quotation.
1.8 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.9 Words in the singular include the plural and in the plural include the singular. A reference to one gender includes a reference to the other gender.
1.10 Condition headings do not affect the interpretation of these terms and conditions.
2. ENTIRE AGREEMENT AND SCOPE
2.1 Subject to any variation under condition 2.3 the Contract shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, communication, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Any variation to these terms and conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Supplier.
2.4 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 The terms and conditions set out in this Part A shall always apply to the Contract.
2.6 If (with reference to the Quotation) the Contract encompasses the supply of Goods, the additional terms and conditions set out in Part B shall also apply.
2.7 If there is any conflict between the provisions of this Part A and Part B, the provisions of this Part A
3.1 In consideration of the Client paying the Charges, the Supplier shall perform the Contract materially in accordance with the Quotation using reasonable skill and care.
3.2 Performance of the Contract shall be within a reasonable time. Any dates or times specified by the Supplier for performance of the Contract are intended to be an estimate only. Time for performance shall not be made of the essence by notice.
3.3 The Supplier and Client shall each appoint a project manager who has the authority and ability to deal with all aspects of the Contract.
3.4 The Client shall provide all information, documentation and materials reasonably requested by the Supplier to enable the Supplier to perform the Contract
4.1 If the Quotation does not state a currency, the Charges shall be deemed to be in UK £s (pounds sterling) and unless expressly stated otherwise, shall exclude VAT(where applicable) at the applicable current rate and delivery charges, which shall be payable in addition.
4.2 The Charges shall be subject to variation without notice where there is any increase in third party labour and material costs coming into effect between the issuance of the Quotation and completion of the Contract.
5. PAYMENT TERMS
5.1 The Supplier shall issue an invoice for payment of the Charges, in accordance with the Payment Terms.
5.2 The Client shall pay every invoice in accordance with the Payment Terms. Time for payment of every invoice shall be of the essence.
5.3 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Client.
5.4 If the Client fails to pay the Supplier pursuant to this condition 5, the Client shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
5.5 The Supplier reserves the right to claim interest pursuant to the Late Payment of Commercial Debts (Interest)Act1998.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in any materials submitted by the Client to the Supplier shall remain vested in the Client (or its relevant licensors).
6.2 All Intellectual Property Rights in any materials created or used by the Supplier will remain vested in the Supplier (or its relevant licensors) and to the extent that any rights in such materials vest in the Client by operation of law, the Client hereby assigns such rights back to the Supplier.
6.3 Both the Supplier and the Client acknowledge and agree that they shall not acquire or claim any title to any of the other’s Intellectual Property Rights and will not, at any time, do, or omit to do, anything which is likely to prejudice the other’s ownership of such Intellectual Property Rights.
7. DISPUTE RESOLUTION
7.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non payment of the Charges), the parties shall in accordance with this condition 7, attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
7.2 If the parties are unable to resolve such dispute or difference within fifteen (15) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.
7.3 If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the Centre for Dispute Resolution (“CEDR”) in writing to appoint an independent expert.
7.4 If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:
7.5 acts as an expert and not an arbitrator;;
7.6 affords the parties the opportunity within reasonable time limits to make representations to him;; informs each party of the representations of the other;;
7.7 affords each party the opportunity within reasonable time limits to make submissions to him on the representations of the other;; and
7.8 notifies the parties of his decision, with reasons as quickly as practicable.
7.9 The fees and expenses of the expert including the cost of his nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.
7.10 The expert determination is to be conclusive and binding on the parties except where there is fraud or a manifest error or on a matter of law.
8. UNFORSEEABLE DELAYS
8.1 The Supplier reserves the right to defer the performance of the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
9. EARLY TERMINATION
9.1 The Contract may be terminated by the Supplier with immediate if the Client:
9.2 is in material breach of the terms and conditions of the Contract and the breach is not capable of remedy;; or
9.3 is in material breach of the terms and conditions of the Contract and the breach is capable of remedy and that other party shall have failed to remedy that breach within thirty (30) days of notice, specifying the breach and requiring its remedy;; or
9.4 The Contract may be terminated by the Supplier with immediate effect if:
9.5 the Client (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;; or
9.6 the Client (being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding- up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors
9.7 the Client ceases to trade;; or
9.8 the Client encumbers or in any way charges any of the Goods.
9.9 Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
9.10 All payments payable to the Supplier under the Contract shall become due immediately upon its termination.
10. LIMITATION OF LIABILITY
10.1 The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
10.1.1 any breach of the Contract;;
10.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 Nothing in these conditions excludes or limits the liability of the Supplier:
10.2.1 for death or personal injury caused by the Supplier’s negligence;;
10.2.2 under section 2(3), Consumer Protection Act 1987;;
10.2.3 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability;;
10.2.4 for fraud or fraudulent misrepresentation.
10.3 Subject to conditions 10.2 and10.3:
10.3.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Charges actually paid under the Contract;;
10.3.2 the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses.
10.4 Except as otherwise provided for in the Contract, all other warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Services Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.1 The Supplier may assign the Contract or any part of it to any third party. The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
11.2 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
11.3 If any provision of the Contract 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 the Contract and the remainder of such provision shall continue in full force and effect.
11.4 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
11.5 Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
11.6 The Supplier and Client do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
12.1 Unless otherwise agreed in writing, delivery of the Goods shall be made to the address specified in the Quotation.
12.2 Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
12.3 If delivery is made at the premises of the Supplier (ex works), the Client shall take delivery of the Goods within two (2) days of the Supplier giving it notice that the Goods are ready for delivery.
12.4 If for any reason the Client fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Client has not provided appropriate instructions, documents, licences or authorisations:
12.4.1 risk in the Goods shall pass to the Client (including for loss or damage caused by the Supplier’s negligence);
12.4.2 the Goods shall be deemed to have been delivered;; and
12.4.3 the Supplier may store the Goods until delivery, whereupon the Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
12.5 If the Supplier is requested to re-deliver the Goods following a failed delivery in accordance with condition 12.4, the Supplier reserves the right to make an additional charge for such re- delivery.
12.6 the Supplier may deliver the Goods by separate instalments. Each separate instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Client to repudiate or cancel any other Contract or instalment.
12.7 The Client shall be required to notify the Supplier of any delivery shortages within forty eight (48) hours of delivery. If the Client fails to notify the Supplier of any such shortages within this time scale, the Client shall be deemed to have accepted delivery of all the Goods.
13. EXPORT OF GOODS
13.1 If the Goods are to be delivered for export from the United Kingdom. The Client shall comply with all applicable legislation and regulations and payment of any duties, import taxes or other costs of import.
13.2 If the Supplier notifies the Client that export of the Goods into a country is prohibited under the Supplier export licence, the Client shall not supply or offer the Goods for supply into or within that country.
13.3 The Client shall obtain all licences, authorisations and approvals required for export of Goods from the United Kingdom. Any additional expenses or charges incurred by the Supplier resulting from such failure shall be paid by the Client.
14.1 The Goods are at the risk of the Supplier, until delivery, whereupon risk shall transfer in full to the Client.
15. RETENTION OF TITLE
15.1 Full legal and beneficial title and ownership of the Goods shall pass to the Client once the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
15.2 the Contract;; and 15.1.2 all other sums which are or which become due to the Supplier from the Client under any other contract or account.
15.2.1 Until title and ownership of the Goods has passed to the Client, the Client shall: hold the Goods on a fiduciary basis as the Supplier’s bailee;
15.2.2 store the Goods (at no cost to the Supplier) separately from all other goods of the Client or any third party in such a way that they remain readily identifiable as the property of the Supplier;;
15.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;; and maintain the Goods in satisfactory condition and keep them insured on the Supplier’s behalf for
15.2.4 their full price against all risks to the reasonable satisfaction of the Supplier. On request the Client shall produce the policy of insurance to the Supplier.
15.3 The Client’s right to possession of the Goods shall terminate on termination of the Contract pursuant to condition 9, unless ownership of the Goods has already passed in accordance with condition 15.1.
15.4 The Supplier shall be entitled to recover payment for the Goods notwithstanding that legal and beneficial ownership and title of any of the Goods has not passed from the Supplier.
15.5 The Client grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Client’s right to possession has terminated in accordance with condition 15.3, to recover them.
16.1 The Supplier warrants that the Goods shall on delivery and for a period of twelve (12) months from the date of delivery be of satisfactory and reasonably fit for their intended purpose within the meaning of the Sale of Goods Act 1979.
16.2 the Supplier shall not be liable for a breach of any of the warranty in condition 16.1 unless:
16.2.1 the Client gives the Supplier written notice of the breach within seven (7) days of the date of: (i) delivery of the Goods if the breach was obvious;; or (ii) the date which it ought reasonably to have discovered the breach, if was not obvious;; and
16.2.2 the Supplier is given a reasonable opportunity after receiving such notice to examine the Goods, in which case the Client (if asked to do so by the Supplier) shall return such Goods to the Supplier’s place of business (at the Supplier’s cost) for the examination to take place there.
16.3 the Supplier shall not be liable for a breach of any of the warranty in condition 16.1 if:
16.3.1 the Client makes any further use of the Goods after giving such notice in accordance with condition 16.2;; or
16.3.2 the defect arises because the Client failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;; or
16.3.3 the Client alters or repairs the Goods without the written consent of the Supplier.
16.4 Subject to conditions 16.2 and 16.3, if any of the Goods do not conform with the warranty in condition 16.1, the Supplier shall at its option repair or replace such Goods (or the defective part) or refund the charges for such Goods at the pro rata Contract rate provided that, if the Supplier so requests, the Client shall, at the Supplier’s expense, return the defective Goods to the Supplier.
16.5 If the Supplier complies with condition 16.4 it shall have no further liability for a breach of any of the warranty under condition 16.1.
16.6 Any Goods replaced shall belong to the Supplier and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the twelve (12) month period.
17.1 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 14 days after receipt of notice in writing to do so;
(b) the other party 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;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) a creditor or encumbrancer of the other party 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;
(f) an application is made to court, or 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 other party (being a company);
(g) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(h) (inclusive);
(j) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(k) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
17.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under this Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(k), or the Supplier reasonably believes that the Client is about to become subject to any of them.
17.4 On termination of the Contract for any reason:
(a) the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all of the Supplier materials and any deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client 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.
18. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
18.1 Nothing in these Conditions shall limit or exclude the Supplier’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.
18.2 Subject to clause 10.1:
(a) the Supplier shall under no circumstances whatever be liable to the Client, 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) the Supplier’s total liability to the Client 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 to the Supplier by the Client.
18.3 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.
18.4 This clause 10 shall survive termination of the Contract.