Conditions of Sale
TERMS AND CONDITIONS FOR THE SALE AND SUPPLY OF GOODS AND SERVICES
BUSINESS TO BUSINESS
Definitions and interpretation
1.1 In these Conditions the following definitions apply:
means a day other than a Saturday, Sunday or bank or public holiday;
means the Supplier’s terms and conditions of sale set out in this document;
means this agreement between the Supplier and the Customer for the sale and purchase of the incorporating these and the , and including all its schedules, attachments, annexures and statements of work;
means the named in the which has agreed to purchase the from the Supplier and whose details are set out in the ;
means the or or both as the case may be;
means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the;
means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the;
means the goods and other physical material set out in the and to be supplied by the Supplier to the Customer in accordance with the ;
Intellectual Property Rights
means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in , rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
means the address or addresses for delivery of the and performance of the as set out in the;
means the Customer’s order for the in substantially the same form as set out;
has the meaning given in clause 3.1;
means the services set out in the and to be supplied by the Supplier to the Customer in accordance with the ;
means the description or provided for the set out or referred to in the;
means Welvent Limited of Company number;
means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the; and
has the meaning given in clause 9.1.
1.2 In these Conditions, unless the context otherwise requires:
1.121 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
2. Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to the Contract including these Conditions.If the Supplier is unable to accept an Order, it shall notify the Customer in writing as soon as reasonably practicable.
2.5 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.5.1 the Supplier’s written acceptance of the Order; or
2.5.2 the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.6 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
2.7 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as advised by the Supplier from time to time before the date the Order is placed (the Price).
3.2 The Price is exclusive of VAT.
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
4.1 The Supplier shall invoice the Customer for the Deliverables, partially or in full, at any time following acceptance of an Order.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within fourteen days of the date of each invoice; and
4.2.2 to the bank account nominated by the Supplier.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at five % a year above the base rate of Barclays Bank PLC from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
6. Delivery and performance
6.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date specified in the Order.
6.2 It is agreed that the where carriage and/or insurance is arranged by the Supplier the Supplier shall be acting solely for the Customer and the provisions of section 32(2) and 32(3) Sale of Goods Act 1979 shall not apply.
6.3 The Goods shall be deemed delivered on arrival at the Location by the Supplier or its nominated carrier (as the case may be).
6.4 The Services shall be performed by the Supplier at the Location on the date specified in the Order.
6.5 The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location.
6.6 The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
6.7 The Supplier may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.8 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:
6.8.1 the date of the Order;
6.8.2 the relevant Customer and Supplier details;
6.8.3 if Goods, the product numbers and type and quantity of Goods in the consignment;
6.8.4 if Services, the category, type and quantity of Services performed;
6.8.5 any special instructions, handling and other requests.
6.9 Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only.
6.10 The Supplier shall not be liable for any delay in or failure of performance caused by:
6.10.1 the Customer’s failure to make the Location available;
6.10.2 the Customer’s failure to prepare the Location as required for the Deliverables ( a hard surface and accessible is required to accept the delivery);
6.10.3 the Customer’s failure to provide the Supplier with adequate instructions for performance or delivery.
6.10.4 Force Majeure.
6.11 The Supplier shall accept no liability for any damage caused to a customer’s property by the weight or vibration of any vehicle delivering the Goods.
6.12 If the Supplier erects or assembles the Goods onto existing concrete floors or prepared foundations any cost or delays incurred by the Supplier due to incorrect preparation by others shall be paid by the Customer.
6.13 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all reasonable storage and insurance charges and expenses incurred by the Supplier in doing so.
Risk in the Goods shall pass to the Customer on delivery.
8.1Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
8.2 Until title to the Goods has passed to the Customer, the Customer shall:
8.2.1 hold the Goods as bailee for the Supplier;
8.2.2 store the Goods separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
8.2.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;
8.6.6 not remove or alter any mark on or packaging of the Goods; and
8.2.7 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
8.3 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 15.1.1 to 15.1.3 or 15.2.1 to 15.2.11, the Supplier may:
8.3.1 require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and
8.3.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
9.1 The Supplier warrants that, for a period of twelve months from delivery (the Warranty Period) or at the time of performance, the Deliverables shall:
9.1.1 conform in all material respects to any sample, their description and to the Specification;
9.1.2 be free from material defects in design, material and workmanship;
9.1.3 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13.
9.2 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9, provided that the Customer:
9.2.1 serves a written notice on Supplier not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
9.2.2 such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and
9.2.3 gives the Supplier a reasonable opportunity to examine the claim of the defective Deliverables.
9.3 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
9.4 The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:
9.4.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
9.4.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
9.4.3 where the Customer modifies any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
9.4.4 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1.
9.5 Except as set out in this clause 9:
9.5.1 the Supplier gives no warranty and makes no representations in relation to the Deliverables; and
9.5.2 shall have no liability for their failure to comply with the warranty in clause 9.1; and
9.5.3 all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
10. Indemnity and insurance
10.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
10.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
11. Limitation of liability
11.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clauses 11.5 and 11.6, the Supplier’s total liability shall not exceed the Price or the price of any defective element of the Contract (whichever shall be the lower).
11.3 Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for consequential, indirect or special losses.
11.4 Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
11.4.1 loss of profit;
11.4.2 loss of revenue;
11.4.3 loss or corruption of data;
11.4.4 loss or corruption of software or systems;
11.4.5 loss or damage to equipment;
11.4.6 loss of use;
11.4.7 loss of production;
11.4.8 loss of contract;
11.4.9 loss of commercial opportunity;
11.4.10 loss of savings, discount or rebate (whether actual or anticipated);
11.4.11 harm to reputation or loss of goodwill; and/or
11.4.12 wasted expenditure.
11.5 The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by the Customer under the Contract.
11.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
11.6.1 death or personal injury caused by negligence;
11.6.2 fraud or fraudulent misrepresentation;
11.6.3 any other losses which cannot be excluded or limited by Applicable Law.
12. Intellectual property
Ownership of and copyright in all drawings ,designs, models and sketches shall remain with the Supplier. The Customer shall not be entitled to copy or reproduce any drawing model sketch or design without the Supplier’s prior written consent.
13. Processing of personal data
13.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with all Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
13.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
13.3 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Customer.
14. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 21 days, the Supplier may terminate the Contract by written notice to the Customer.
15.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
15.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
15.1.2 the Customer commits a material breach of the Contract which is not remedied within fourteen days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within fourteen days after the Supplier has given notification that the payment is overdue.
15.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
15.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
15.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
15.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
15.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
15.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.2.8 has a resolution passed for its winding up;
15.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.2.10 has a freezing order made against it;
15.2.11 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
15.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
16.1 Any notice or other communication given by a party under these Conditions shall:
16.1.1 be in writing and in English;
16.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
16.1.3 be sent to the relevant party at the address set out in the Contract
16.2 Notices may be given, and are deemed received:
16.2.1 by hand: on receipt of a signature at the time of delivery;
16.2.2 by post: at 9.00 am on the second Business Day after posting;
16.2.3 by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; and
16.2.4 by email : on receipt of a delivery receipt email from the correct address.
16.3 This clause does not apply to notices given in legal proceedings or arbitration.
17. Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
19. Entire agreement
19.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
19.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
19.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, which it may withhold or delay at its absolute discretion.
21. Set off
The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
24. Conflicts within contract
If there is a conflict between the terms contained in these Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of these Conditions shall prevail to the extent of the conflict.
25. Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
26. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.