Red One Limited Terms and Contract Conditions for the Provision of Training
Update: 9th June 2016
1.1. The following definitions apply in these terms and contract conditions:
|Company Equipment||Any equipment, including laptops, computers, projectors, screens, cabling, tools, systems, facilities, PPE and operational and other training equipment provided by the Company or its subcontractors for use directly or indirectly in the supply of the training.|
|Company||Means Red One Limited whose registered address is: Westpoint, Clyst St Mary, Exeter, EX5 1DJ.|
|Conditions||Means the conditions set out in the Contract.|
|Contract||The agreement between the Company and the Customer for the supply of the Training. The Customers purchase order and the Authorities acceptance of it or the Customers’ acceptance of a proposal / quotation / estimate for training by the Company under 3.2.|
|Contract Documentation||a) Means The Conditions (clauses of the Contract)b) The Training proposal/quotation/estimate|
c) The Training information document and joining instructions
|Course Director||Course organiser responsible for managing organisational and candidate issues of the Training.|
|Customer||The person, firm or company who purchases training from the Company.|
|Customers Equipment||Any equipment, systems, PPE or operational and training equipment or facilities used directly or indirectly in the supply of training provided by the Customer including laptops, computers, projectors, screens, cabling including tools provided by the Customer and used directly or indirectly in the provision of the Training.|
|Default Notice||Means a notice issued by the Company in relation to a breach of the Contract.|
|Intellectual Property Rights||All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions for such rights, and all similar or equivalent rights or forms of protection in any part of the world.|
|Lead Officer||Means the Lead Officer of the Company|
|Party||Means either the Company or the Customer and ‘Parties’ shall be construed accordingly.|
|PPE||Means Personal Protective Equipment.|
|Proposal||The Proposal for the Training executed by or on behalf of the Company and the Customer.|
|Training||Means the Training to be provided by the Company under this Contract as set out in the proposal / quotation / estimate.|
|Training Academy||Means the Training Academy of the Company.|
|Training Materials||All documents, information, visual and audio materials, presentations, demonstrations, course notes, handouts, reports, products, materials in any form provided by the Company or its agents, subcontractors, consultants and employees in relation to the Training.|
|Trainer||Means the representative of the Company with responsibility for delivery of the Training.|
|VAT||Value added tax chargeable under English law for the time being and any similar additional tax.|
2. Interpretation of Contract
2.1. Except as otherwise expressly provided, all elements of the Contract Documentation are to be taken as mutually explanatory of one another.
2.2. Any ambiguities or discrepancies between the parties shall be referred in the first instance to the Lead Officer who will provide clarification.
2.3. In the Conditions of Contract:
2.3.1. the masculine includes the feminine and the neuter and vice versa; the singular includes the plural and vice versa;
2.3.2. headings are included for ease of reference only and shall not affect the interpretation or construction of the Contract;
2.3.3. references to Clauses are unless otherwise provided, references to Clauses and Appendices within the Contract Conditions;
2.3.4. “Act of Parliament” or any Order, Regulation, Statute, Statutory Instrument, Code of Practice, Byelaw, Directive or the like, whether detailed expressly or incorporated by general reference, shall be deemed to include a reference to any amendment, re-enactment or replacement of it;
2.3.5. A reference to writing or written includes faxes and emails.
3. Application of Conditions
3.1. These Conditions shall apply to and be incorporated into the Contract for the provision of Training entered into by the Company with the Customer. By instructing the Company to proceed or accepting the Authorities proposal/quotation/estimate, the Customer agrees to these terms and conditions to the exclusion of all other terms, conditions, warranties or representations. These terms and conditions prevail over any terms and conditions contained or referred to in the Customers purchase order, confirmation of order, acceptance of quotation, acceptance of estimate or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
3.2. The Customer’s purchase order, or the Customer’s acceptance of a quotation or estimate for Training, constitutes an offer by the Customer to purchase the Training specified in it on these Conditions. No offer placed by the Customer shall be accepted other than by written acknowledgement issued and executed by the Company or (if earlier) by providing the Training, when a contract for supply and purchase of the Training on these Conditions will be established. The Customers standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
3.3. Proposals quotations and estimates are provided on the basis that no contract shall come into existence except in accordance with condition 3.1 and 3.2 above. Any quotation or estimate is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn or made a contract variation.
3.4. The invalidity or unenforceability of any term, or any right arising pursuant to the Contract shall not in any way affect any remaining terms or rights of either Party.
4. Role of the Officers
4.1. The Company shall appoint a nominated Lead Officer. Only the Lead Officer shall have the rights and powers conferred by the Company to act on its behalf and may direct or vary any part of the Contract Conditions
4.2. The Company shall appoint nominated Course Directors to manage organisational and candidate issues related to the Training.
5. Forbearance and Waiver
5.1. No forbearance, indulgence or relaxation on the part of the Company, Training Academy, the Lead Officer, or any Trainer, shown or granted to the Customer in respect of its obligations under this Contract, shall in any way affect, restrict or diminish the rights and powers of the Company under the Contract, or operate as, or be deemed, a waiver of any breach of the Contract.
5.2. Any failure or delay of the Company to enforce or to exercise, at any time for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party’s right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege whatsoever.
6. Charges and Payment
6.1. The total price for the Training shall be paid to the Company by the Customer without deduction or set-off, including, for the avoidance of doubt, any state payable sales taxes, with-holding taxes or other charges. The Company shall, unless agreed otherwise, invoice the Customer in advance of the Training for the charges that are payable, together with expenses, the costs of Training Materials and VAT, where appropriate.
6.2. Any fixed price and daily rate quoted excludes (unless stated otherwise) the cost of accommodation, subsistence, travelling, Training Materials and any other ancillary expenses reasonably incurred by individuals or by third parties whom the Company engages in connection with the Training. Such expenses and materials arising from any third party training shall be invoiced by the Company including VAT, which the Company shall add to its invoices to the Customer at the appropriate rate.
6.3. The Customer shall pay each invoice submitted to it by the Company immediately upon receipt of the invoice and in advance of the delivery of any Training (unless stated otherwise) in full in cleared funds either, to the Company direct, or by BACS to a bank account nominated by the Company.
6.4. If the Customer fails to pay any invoice or payment of any invoice is not received in accordance with these Conditions then the Company may:
a) charge interest on such sum from the due date for payment at either the annual rate of 4% above the Bank of England base rate from time to time in force, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement or interest under the Late Payment of Commercial Debts (interest) Act 1998 whichever is the greater; and
b) Refuse admission of the Customers personnel to the Training
c) Suspend all Training until payment has been made in full
6.5. All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision to the contrary. This Condition is without prejudice to any right to claim interest under the law, or any such other right under the Contract.
6.6. All fees quoted are correct at the time of publication but the Company reserves the right to alter fees at any time with reasonable notice.
6.7. Time for payment of the invoiced sum for the Training shall be of the essence.
6.8. The Company and or persons/companies acting on its behalf or as its agents reserve the right to charge and recover all costs incurred in connection with the pursuance and/or recovery of any outstanding sums.
6.9. All amounts stated are exclusive of VAT and any other applicable taxes which will be charged in addition at the rate in force at the time the Customer is required to make payment.
6.10. Persons/companies or subcontractors acting on behalf of the Company or as its agents will, for the purposes of this Contract, be deemed to have opted out of The Employment Agencies Act 1973 and The Conduct of Employment Agencies and Employment Businesses Regulations 2003 and The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007.
7.1. The price of the Training shall be paid in pounds sterling.
8. Commencement and Duration
8.1. Subject to these Conditions the Company shall use all reasonable endeavours to provide the Training in accordance and in all material respects with the Training proposal, quotation or estimate issued to the Customer. Any times for the provision of Training shall not be of the essence of the Contract.
8.2. In the event that the Company cancels the Contract in advance of the Training, the Company shall provide the Customer, where practicable with prior reasonable notice in writing and shall offer to rebook the Customer on to an alternative Training course date, if available. If this Training course date is not acceptable to the Customer, the Company shall provide the Customer with a full refund of any Training fees paid. Any refund shall be limited to the invoice amount paid by the Customer. The Company shall not be liable for any costs, charges, or losses sustained or incurred by the Customer arising directly or indirectly from such cancellation.
9. Customer’s Obligations
9.1. The Customer shall co-operate with the Company in a timely manner in all matters relating to the provision of the Training and in particular provide such forms, information and documentation which is accurate in all material respects as the Company may reasonably request or require.
9.2. Where Training is to be on the Customer’s premises the Customer shall:
a) Provide the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises and other such facilities as may reasonably be required by the Company.
b) Provide to the Company in a timely manner, such in-put material and other information as the Company may reasonably require and ensure that it is accurate in all material respects;
c) Be responsible, at its own cost, for preparing and maintaining the relevant Customer’s premises for the supply of the Training;
d) Inform the Company of all health and safety requirements that apply at the Customer’s premises;
e) Ensure that all Customer Equipment and PPE is in good working order and suitable for the purposes for which it is used in relation to the Training and conforms to all relevant United Kingdom statutory standards regulations or requirements.
9.3. Where Training may involve physical exertion in conditions of exposure then Customers must ensure that all candidates are physically fit and able to carry out the tasks expected of them. It is the responsibility of the Customer to ensure that those attending the Training have no specified contraindications or any medical conditions which would make the Training a danger to health
9.4. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, whether by individuals, agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such delay.
9.5. The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company including without limitation any direct, indirect or consequential losses, arising from any loss of profit, loss or damage to property, injury to or death of any person arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
9.6. In the event that the Customer cancels the Contract in advance of the Training, the Customer shall unless agreed otherwise between the Parties, pay to the Company a sum representing the Company’s anticipated losses as follows:
a) Cancellation within 4 weeks (1 calendar month) of the agreed start date (course commencement date) for delivery of Training, the full cost of the Training
b) Cancellation within 4-8 weeks (1 to 2 calendar months) of the agreed start (course commencement date) date for delivery of Training, 50% of the full costs of the Training;
c) Cancellation more than 8 weeks (2 calendar months) of the agreed start date (course commencement date) for delivery of Training, 25% of the full costs of the Training;
For the avoidance of doubt, the Customer agrees that this condition 9.6 represents a genuine pre-estimate of loss on the part of the Company.
10. Limitation of Liability
10.1. This Condition sets out the entire financial liability of the Company (including any liability for the acts of its employees, agents, consultants or sub-contractors) to the Customer in respect of any
a) breach of the Contract;
b) use made by the Customer of the Training or the Training Materials or any part of them; and
c) representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
10.2. All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from the Contract.
10.3. In no event shall the Company be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Company had been made aware of the possibility of the Customer incurring such a loss.
10.4. Nothing in these Conditions limits or excludes the liability of the Company for death or personal injury resulting from negligence or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company or that of its employees, agents or sub-contractors.
10.5. Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid for the Training by the Customer to which the claim relates.
11. Variation to Contract
11.1. The Company reserves the right to vary the Conditions or the terms of performance of the Training from time to time without notice in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Training. Where practicable the Company will give the Customer prior notification of any change in writing.
12. Force Majeure
12.1. The Company shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying out its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) industrial relations difficulties, strikes, lock-outs (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, fuel shortage, compliance with any law or government order, rule or regulation or direction, breakdown of equipment, fire, flood, storm or default by suppliers or subcontracts.
13. Temporary Suspension of Service
13.1. During any period of exceptional emergency the Company through the nominated Lead Officer shall have the right to suspend the normal service provision of this Contract, the suspension shall be deemed to be an event of Force Majeure.
14. Intellectual Property Rights, Copyright and Confidentiality
14.1. All Intellectual Property Rights with regards to documents, presentations audio and visual , demonstrations, materials, lesson plans, handouts, course notes and books, products, marketing materials and any other Training Materials in whatever form shall be owned by the Company and the Company licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as necessary to enable the Customer to make reasonable use of the documents and materials in relation to the provision of the Training. Upon expiry of the Contract this license shall automatically terminate.
14.2. All Intellectual Property Rights produced from or arising as a result of the performance of this Contract shall, so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by if necessary the execution of appropriate instruments or the making of agreements with third parties.
14.3. The Customer acknowledges that where the Company does not own any Training Materials that the Customers use of rights in those Training Materials will be conditional on the Company obtaining at reasonable cost to the Company a written licence from the relevant third party licensor or licensors on such terms as will entitle the Company to license such rights to the Customer.
14.4. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives, business customers, suppliers or associated companies, personal data which are of a confidential nature and have been disclosed to the Customer by the Company, its employees, agents, consultants or sub-contractors and any other confidential information concerning the Authorities business or its products and services which the Customer may obtain during the course of Training.
14.5. The Customer may disclose such confidential information to its employees, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out the Customers obligations under the Contract; and as may be required by law, or through court order or any governmental or regulatory Company.
14.6. The Customer shall ensure that its employees, officers, representatives, advisers, agents or sub-contractors’ to whom it discloses such confidential information are made aware of and agreed to comply with this Condition.
14.7. All Training Materials, presentations, handouts and course literature is the copyright of the Company and may not be reproduced by the Customer without prior permission of the Company.
14.8. Only with the prior written permission of the Company shall the Customer be permitted to use the name of the Company for promotional purposes.
14.9. Only with the prior written permission of the Company shall photography within the Training Academy and on Training courses be permitted.
14.10. The provisions contained in this Condition shall survive the expiry or termination of this Contract howsoever caused and shall continue thereafter in full force and effect.
15. Data Protection Act 1998 (the DPA) and Freedom of Information Act 2000 (the FOIA)
15.1. Both Parties will duly observe all their obligations under the DPA, which arise in connection with the Contract.
15.2. The Customer acknowledges and agrees that details of the Customers name, address and payment record may be submitted to a credit reference agency and personal data will be processed by and on behalf of the Company in connection with the Training.
15.3. In particular, and without limitation, the Customer shall ensure staff and agents do not publish, disclose or divulge any Company Personal Data as defined in the DPA to any third parties unless directed in writing to do so by the Company.
15.4. The provisions of this clause shall survive the expiry or termination of this Contract howsoever caused and shall continue hereafter in full force and effect.
16. Equal Opportunities and Fairness at Work
16.1. The Company has a duty to comply with the Equality Act 2010. The Authorities ‘Fairness at Work’ policy and ‘Customer Charter’ are to encourage a positive attitude towards fairness of treatment and opportunity. Where the Customer, its agents or staff are required to work on the Company’s premises or alongside the Company’s employees or any other employees on any other premises, the Customer shall at all times comply with the Company’s Codes of Practice relating to Fairness at Work.
16.2. The Company does not accept bullying and harassment in any form.
16.3. The Customer shall notify the Company, in writing, as soon as it becomes aware of any incident or investigation of or proceeding which may be brought against the Company.
17. Assistance in Legal Proceedings
17.1. Where the Customer or any of its staff or the Company or any of its staff become aware of any incident, maladministration, accident or other matter which may give rise to an enquiry, claim or legal proceedings in respect of the provision or failure to provide the Training, it shall notify the Course Director immediately in writing. Such notification shall include all relevant information to enable the Course Director to investigate the matter fully.
17.2. Such information provided or assistance rendered pursuant to the above obligation, in whatever form, shall be at no cost to the Company.
17.3. Any liability which the Company incurs as a result of wilful or negligent failure by the Customer shall be recoverable from the Customer.
18.1. The Company shall maintain and shall ensure that its sub-contractors maintain the following insurances:
18.1.1. Public Liability insurance with a minimum limit of £5 million, in respect of any one act or occurrence or series of acts or occurrences arising from one cause;
18.1.2. Employers’ liability insurance to comply with statutory requirements with a minimum limit of £10 million;
18.1.3. Professional indemnity insurance with a minimum limit of £5 million, in respect of any one act or occurrence or series of acts or occurrences in any one year; such insurance shall have a minimum duration of a 7 years period from the date of completion of the Training.
19.1. Without prejudice to any other rights or remedies which the Parties may have either Party may terminate the Contract on giving notice to the other if:
a) The Customer fails to pay any amount due under the Contract on the due date for payment or
b) The other Party is in breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach by the other Party or
c) The other Party repeatedly breaches any of the conditions of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
d) The Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a Company) becomes subject to an administration order or goes into liquidation or passes a resolution for winding up (other than for purposes of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect; or
e) The Customer threatens or ceases to carry on the whole or part of its business.
f) The other Party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
19.2. On termination of the Contract for any reason, the Customer shall immediately pay the Company all outstanding invoices and interest and the Company shall invoice for any Training supplied where no invoice has been submitted which shall become payable immediately on receipt.
20. Dispute Resolution
20.1. Any dispute concerning either Party’s material non-conformance with its obligations under the Contract shall be referred to the first management level (Course Director) for discussion and resolution at or by a meeting to take place within five (5) working days of the written request by the requesting party.
20.2. If the dispute is not resolved at this level at the meeting, the dispute shall be referred to the second management level (Lead Officer), who must meet within five (5) working days of the referral to attempt to resolve the dispute.
20.3. If the unresolved dispute is having a material adverse effect on either Party then the Parties shall use their respective reasonable endeavours to reach a timely resolution of the dispute.
20.4. If any of the above officers/representatives are unable to attend a meeting, a substitute shall attend and such substitute will have at least the same seniority and be authorised to settle the unresolved dispute.
20.5. If the dispute remains unresolved after the above process has been followed, the dispute shall then be referred to mediation under the auspices of the CEDR (Centre for Dispute Resolution). Neither Party shall seek to refer the dispute to an Expert or to the Courts unless the mediation process fails to resolve the dispute.
21. Non-solicitation of Employees
21.1. The Customer covenants with the Company that it shall not within a period of twelve months from the termination of any Contract with the Company directly or indirectly entice away from the Company and any subsidiary, associated or affiliated body any person who has during the previous 12 months been employed by the Company and any subsidiary, associated or affiliated body to provide the Training except with the consent in writing of the Company.
21.2. Should the Customer be in breach of Clause 22.1 it shall pay to the Company a fee equivalent to 13 weeks remuneration of the employee concerned.
22. Right to set off
22.1. The Company reserves its right to set-off against its indebtedness to the Customer any debt owed to it by the Customer and any liability, damage, loss, costs, charges and expenses which it has incurred in consequence of any breach by the Customer of this Contract or any other contract with the Company.
23. The Contracts (Rights of Third Parties) Act 1999
23.1. No person who is not a Party to the Contract (including without limitations any employee, officer, agent, representative or sub-contractor or either the Company or the contractor) shall have any right to enforce any term of the Contract, which expressly or by implication, confers a benefit on him without the prior agreement in writing of both Parties. This Clause does not affect any right or remedy of any person, which exists or is available otherwise than pursuant to that Act.
24. Notice and Timescales
24.1. Any notice to be given by either Party to the other may be served by email, fax, personal service or by post to the address of the other Party or such other address as such Party may from time to time have communicated to the other in writing and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if sent by letter shall be deemed to have been delivered in the ordinary course of the post within two working days or to have been served at the time at which the letter was delivered personally.
25.1. The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Contract without the prior written consent of the Company.
25.2. The Company shall be entitled to; assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to any Public Company, any other body established by the Crown under statute, or any private sector body which will substantially perform any of the functions that had previously been performed by the Company provided that any such assignment, novation or other disposal shall not increase the burden of the Customer’s obligations under this Contract.
26. Entire Agreement
26.1. The Contract constitutes the entire agreement between the Parties in respect of the matters dealt with therein. The Contract supersedes all prior negotiations between the Parties and all representations and undertakings made by one Party to the other whether written or oral.
27. Governing Law and Jurisdiction
27.1. The Contract and any claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.
Red One Limited Terms and Conditions for the Sale of Goods and Services
1.0 Standard Terms and Conditions
In this document the following words shall have the following meanings:
1.1.1 “Terms & Conditions” shall mean the clauses, terms and conditions as provided herein;
1.1.2 “Contract” shall mean any contract between the Supplier and the Customer incorporating these Terms and Conditions together with the terms of any applicable Quotation, for the sale and supply of Goods or Services, notified by the Supplier to the Customer in writing;
1.1.3 “Customer” shall mean the organisation or person who purchases goods and services from the Supplier;
1.1.4 “Delivery Point” shall mean the place where delivery of the Goods or Services is to take place under Section 5;
1.1.5 “Goods” shall means any goods agreed in the Contract to be supplied to the Customer by the Supplier (including any part or component of them);
1.1.6 “Intellectual Property Rights” shall mean all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.1.7 “Services” shall mean any chargeable service in the Contract to be supplied to the Customer by the Supplier;
1.1.8 “Quotation” shall mean any statement of work, tender, quotation, price list or other similar document describing the goods and services to be provided by the Supplier;
1.1.9 “Supplier” shall mean Red One Limited, Service Headquarters, The Knowle, Clyst St George, Exeter, Devon, EX3 0NW;
2.0 Conditions Applying
2.1 Unless otherwise agreed in writing, these Terms and Conditions will govern all contracts for the sale and supply of Goods and Services from the Supplier. Any qualification or modification of these Terms and Conditions and any other conditions which the Customer may seek to impose will not apply unless expressly accepted by the Supplier in writing.
2.2 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Supplier may be entitled in relation to the Goods and Services, by virtue of any statute, law or regulation.
2.3 Nothing in these Terms and Conditions shall affect the Customer’s statutory rights as a Consumer.
3.1 The Suppliers Quotation does not constitute an offer. An order from the Customer based upon the Suppliers Quotation shall constitute the offer. An acknowledgement of that order sent by the Supplier by normal post or email shall constitute the acceptance of that offer. The order shall not be capable of being cancelled from the moment the acknowledgement is posted or sent via email.
4.1 The only representations in connection with the Suppliers Goods or Services for which the Supplier shall accept liability are those specifically included or referred to in the Suppliers price list or Quotation. No advertising material, leaflets or brochures or any other statement, written or oral, or correspondence shall form part of the Contract unless otherwise specifically agreed between the Supplier and the Customer in writing to be a term of the Contract. It is agreed that on entering into the Contract the Customer is not relying on any other representations.
5.1 Delivery Point is ex the Suppliers works unless otherwise stated.
5.2 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods or services, howsoever caused.
5.3 If through lack of instructions from the Customer the Supplier is unable to deliver the Goods or Services to the Customer within 7 days after the date that the Supplier sends the Customer notification that the Goods or Services are deliverable, the Supplier may, where applicable arrange for their storage and at its option, insurance, either at the Suppliers own works or elsewhere and the Customer will pay to the Supplier the reasonable charges and costs for so doing.
6.0 Passing of Risk
6.1 Notwithstanding the provisions of Clauses 5 hereof all risks of accidental loss or damage to all Goods passes to the Customer either on delivery or if stored by the Supplier under the provisions of Clause 5.3 at the commencement of storage of the Goods by the Supplier.
7.0 Loss or Damage Pre-Delivery or In Transit
7.1 Any loss or damage or shortage of Goods must be notified to the Supplier as soon as possible and in any event within 7 days of delivery and in the case of damage the damaged goods and their packaging must be preserved otherwise the Supplier shall be entitled to disclaim liability that the Supplier might otherwise have incurred. The Customer must notify the Supplier of any non-delivery within 14 days of the date of the Suppliers advice of despatch.
8.0 Price and Payment
8.1 The price quoted in the Suppliers Quotation is open for acceptance for 30 days. If an order is not received and accepted by the Supplier within the period stated, the Supplier may review its prices.
8.2 All prices quoted are exclusive of any Value Added Tax at the appropriate rate payable in respect to the supply of Goods and Services and any applicable charges as outlined in the Quotation and this will be additionally payable by the Customer.
8.3 Payment of the invoiced amounts shall be in the manner specified in the Quotation and shall be due and payable within 30 calendar days of date of invoice unless otherwise agreed in writing. Invoices will be raised for Goods on delivery and for Services on completion, unless otherwise agreed. Where deposit terms are agreed, payment of the deposit must be made with the placing of the order.
8.4 If the Customer does not pay the whole of the invoice by the required date the Supplier shall be entitled to charge interest on any overdue amount from the date when payment becomes due from day to day until the date of payment at a rate of 4% per annum above the base rate of the Bank of England for the first 15 days after the 30th date of invoice (days 30-45), increasing to 6% annum above the base rate of the Bank of England after 45 days.
8.5 In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to receive payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
8.6 So long as any payment is outstanding whether under this Contract or any other contract between the Supplier and the Customer, the Supplier shall have a lien on of the Customers Goods in the Suppliers possession and the Supplier shall be entitled to retain such Goods or any of them and/or suspend work on any Contract until payment is made.
8.7 So long as any payment is outstanding, the Supplier shall not be obliged to make good any deficiency under the terms of its warranties.
8.8 Cancellation of the Customers purchase order can only be accepted after prior negotiation and agreement. If the Supplier agrees to accept cancellation, part cancellation or return of the Goods, a minimum charge of 20% will be made.
8.9 The Supplier cannot accept liability for any importation taxes, sales taxes, with-holding taxes or any other charges that may be levied at delivery destinations outside of the UK.
9.0 Retention of Title
9.1 Notwithstanding the delivery of and the passing of risk in the Goods to the Customer, title in the Goods shall not pass to the Customer until:
(a) the Customer shall have paid the Supplier in full therefore pursuant to Condition 8.3 and
(b) no other sums are then outstanding from the Customer to the Supplier on any account whatever whether or not such sums have become due for payment.
9.2 Until such time as title in the Goods passes to the Customer, the Customer shall hold such Goods as the Suppliers fiduciary agent and bailee, and shall keep such Goods properly stored, protected and insured.
9.3 Until such time as title in the Goods passes to the Customer, the Supplier shall be entitled at any time to require the Customer to deliver up such Goods to the Seller and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where such Goods are stored and mark, identify and repossess such Goods.
9.4 In the event that the Supplier exercises any of its rights under Condition 9.3, any right of the Customer to sell, dispose of, deal or in any way use Goods in which title has not passed to the Customer shall cease forthwith. This Condition 9.4 is without prejudice to any other rights and remedies available to the Supplier.
9.5 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods, which remain the property of the Supplier.
10.1 The Supplier warrants that as from the date of delivery the goods and all their component parts, where applicable, are free from any defects in design, workmanship, construction or materials.
10.2 The Supplier warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
10.3 Except as expressly stated in these Terms and Conditions, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Supplier.
11.1 The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under these Terms and Conditions, including any claims brought against the Supplier alleging that any Goods and/or Services provided by the Supplier in accordance with the Quotation infringes any patent, copyright or trade secret or other similar right of a third party.
12.0 Limitation of Liability
12.1 Except in respect of death or personal injury due to negligence, for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of these Terms and Conditions, whether or not arising out of negligence, shall be limited to the price paid by the Customer for the Goods and Services to which the claim relates.
12.2 In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.
12.3 Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Contract forthwith by notice in writing to the other if:
13.1 the other party commits a material breach of this Contract and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
13.2 the other party commits a material breach of this Contract which cannot be remedied under any circumstances;
13.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
13.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
14.0 Intellectual Property Rights
14.1 All Intellectual Property Rights produced from or arising as a result of the performance of this Contract shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
15.0 Force Majeure
15.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
16.0 Independent Contractors
16.1 The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Quotation.
17.1 The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Contract without the prior written consent of the Supplier.
18.1 If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Contract had been agreed with the invalid illegal or unenforceable provision eliminated.
19.1 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Contract.
20.1 Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
21.0 Entire Agreement
21.1 This Contract contain the entire agreement between the parties relating to the supply of Goods and Services and supersede any previous agreements, arrangements, contracts, undertakings or proposals, oral or written. Unless expressly provided elsewhere in these Terms and Conditions, these Terms & Conditions may be varied only by a document signed by both parties.
22.0 No Third Parties
22.1 Nothing in this Contract is intended to, nor shall it confer any rights on a third party.
23.0 Governing Law and Jurisdiction
23.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English court.