2.1 | These Conditions shall form the basis of the Contract between the Buyer and the Seller in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Seller’s standard conditions of sale or any other conditions which the Seller may purport to apply under any quotation or confirmation of Order or any other document.
2.2 | All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Seller pursuant to these Conditions.
2.3 | Delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Seller’s acceptance of these Conditions.
2.4 | These Conditions may not be varied except by the written agreement of the Buyer.
2.5 | These Conditions represent the whole of the agreement between the Buyer and the Seller. They supersede any other conditions previously issued.
The Price shall be the price quoted on the Order.
4.1 | Payment of the Price and VAT shall be due within 30 days of the date of the Seller submitting a correctly rendered tax invoice to the Buyer provided delivery has occurred and the Goods or Services have not been rejected under the Contract.
4.2 | Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 1% per annum above the Bank of England bank rate from time to time in force. Such interest shall accrue after as well as before any judgment.
4.3 | The Buyer shall have the rights of set-off or counter-claim against invoices submitted by the Seller and against any monies owed by the Seller under any Order or agreement with the Buyer.
5.1 | The Goods are described in the Order.
5.2 | The Buyer has the right at any time to make any inspections, tests or enquiries they may reasonably require of the Goods. Any inspections, tests, approvals or acceptances given by or on behalf of Buyer do not relieve the Seller of any obligations or liabilities set forth in the Contract.
5.3 | The Buyer may by written notice to the Seller reject any of the Goods which fails to meet the requirements of the Contract. Notice is given within a reasonable time after the Goods have been completed but before payment. If the Buyer rejects any of the Goods for being defective or not complying with the Order, the Seller shall at its cost repair or replace the Goods (as the Buyer elects) as quickly as possible so as to comply in all respects with the Contract. The carriage costs or returning the Goods to the Seller will be at the Seller’s cost.
5.4 | Traceability of Items Provided by the Supply Chain. The Seller is responsible for obtaining all items (equipment, components, systems, bill of materials etc.) that are required for the Goods from a reliable and sustainable source. The Seller is required to ensure the traceability of all such items and to clearly demonstrate that no counterfeit, fraudulent or suspect items are introduced into plant and equipment operated or supplied through the Contract, either by the Seller or its supply chain. The Seller is required to provide all documentation that supports the traceability of such items in the lifetime quality records that are provided with the handover pack. The Seller will promptly inform the Buyer of all and any attempts by the Seller’s supply chain to provide such counterfeit, fraudulent and suspect items in the delivery of the Contract.
6.1 | The Seller warrants that for a period of 12 months commencing on the earlier of either the date of delivery of the Goods, or the commencement of the Services (Warranty Period), the Goods and/or Services shall:
6.1.1 | conform with their description;
6.1.2. | conform with the specifications set out in the Order;
6.1.3 | be of satisfactory quality with the meaning of the Sale of Goods Act 1979;
6.1.4 | be fit for any purpose held out by the Seller or stated in the Order;
6.1.5 | be carried out in accordance with the Supply of Goods and Services Act 1982; and
6.1.6. | be delivered in accordance with Good Industry Practice.
6.2. | If the Buyer, within the Warranty Period, gives written notice to the Seller of any defect in any of the Goods or Services arising during the Warranty Period under proper and normal use, the Seller, without prejudice to any other rights or remedies which the Buyer may have, shall immediately take such action as is necessary to remedy the defects (whether by repair, replacement or re-performance as the Buyer may elect) at the Seller’s expense.
7.1 | Delivery of the Goods, carriage insurance and duty paid to the place stated in the Order shall be made to the Buyer’s address or to another address specified by the Buyer. Goods or Services shall be delivered to the Buyer during normal business hours.
The Buyer shall make all arrangements necessary to take delivery of the Goods on the day notified by the Seller for delivery.
7.2 | The Seller undertakes to despatch the Goods on an agreed delivery date. Time of delivery shall be of the essence for the Contract.
7.3 | The Seller shall be liable to the Buyer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Goods. If short delivery does take place, the Buyer may not reject the Goods but shall accept the Goods delivered as part performance of the Contract, and a pro-rata adjustment to the Price shall be made.
7.4 | If the Buyer fails to take delivery of the Goods on the agreed delivery date or, if no specific delivery date has been agreed, when the Goods are ready for despatch, the Seller shall be entitled to store and insure the Goods and to charge the Buyer the reasonable costs of so doing.
7.5 | If the Buyer has specified a place of delivery, other than the Buyer’s main place of business, the Buyer will provide details of any specific requirements for the delivery of the Goods to such places.
7.6. | If Goods are delivered to the Buyer in excess of the quantities specified in the Order, Buyer shall not be bound to pay for the excess and any excess will be, and will remain at, the Seller’s risk and will be returnable at the Seller’s expense.
7.7. | The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the Buyer’s Order number, date of order, number of packages, and in the case of part delivery, the outstanding balance remaining to be delivered.
7.8. | If the Goods are sourced from a country outside the United Kingdom, then the Goods are supplied by the Seller to the Buyer using the IncoTerm 2020 DDP where the Supplier at their own expense and risk, taking care of all formalities and paying all import duties in addition to all costs. All of the costs associated with this requirement shall be included in the price that is quoted by the Seller and invoiced to the Buyer.
8.1 | The Buyer shall have the right to inspect and test the Goods delivered within a reasonable time after delivery and give notice in writing to the Seller after discovering that some or all of the Goods do not comply with the Warranty above, the Buyer must return the Goods to the Seller at the Seller’s cost and the Buyer, at its option, shall require the Seller to either repair or replace any Goods that are defective, or refund the price of such defective Goods.
8.2 | Without prejudice to the Buyers’ rights, if the Goods do not conform or, in the Buyer’s reasonable opinion, are unlikely to conform with the Order or with any specifications, requirements or descriptions supplied or advised by the Buyer to the Seller, the Buyer may inform the Seller and the Seller, at the Seller’s expense, shall immediately take such action as is necessary to ensure conformity to the reasonable satisfaction of the buyer.
8.3. | Any omission by the Buyer to undertake such inspection or testing or any failure by the Buyer to make a complaint at the time of such inspection or acceptance and any approval given by the Buyer during or after inspections or acceptance shall not constitute a waiver by the Buyer of any of the Buyer’s rights or remedies in respect of the Goods or Services. Any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.
9.1 | The Goods shall remain at the risk of the Seller until delivery to the Buyer pursuant to clause 7 is complete. Subject to the Goods not having been rejected pursuant to clause 8, title to the Goods shall pass to the Purchaser at that time.
9.2. | Title to the Goods and Services shall pass to the Buyer when delivery is complete in accordance with clause 7.
10.1 | The Seller shall provide the Services to the Buyer.
10.2 | The Seller shall meet any performance dates for the Services specified in the Order. Time shall be of the essence for the Contract.
10.3 | The Seller shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Seller shall obtain written approval from the Buyer before any such changes are made.
11.1 | The Seller shall keep the Buyer indemnified in full against all liability, actions, suits, claims, demands, losses, charges, costs and expenses (including legal and other professional fees and expenses) incurred by the Buyer as a result of or in connection with:
11.1.1. | Any breach of any Condition of this Contract;
11.1.2. | Any loss, destruction of or damage to property caused by, relating to or arising from the Goods;
11.1.3. | Any infringement or alleged infringement of any Intellectual Property Rights caused by the use of the of the Goods or Services;
11.1.4. | any defect in the Goods or Services or any act or omission of the Seller or any of the Seller’s sub-contractors occurring either in the course of delivery, performance or installation of the Goods or otherwise in the course of performing the Contract;
11.1.5. | all actions, suits, claims, demands, losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with damage to property or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Goods and/or Services or the negligent or wilful act or omission of the Seller.
12.1 | The Goods or Services shall not infringe any Intellectual Property Rights of any third party.
12.2 | All Intellectual Property Rights in any input materials, specifications, instructions, plans, drawings, models, designs or other material furnished to or made available to the Seller by the Buyer shall, subject to the rights of third parties, remain solely vested in the Buyer and the Seller shall not (except to the extent necessary for the provision of the Goods or Services), without the prior written consent of the Buyer use or disclose any such input materials, specifications, plans, drawings, models or designs or any information which the Seller may obtain and the Seller shall not refer to the Buyer in the Contract in any advertisement without the Buyer’s prior written consent.
12.3 | All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Buyer.
12.4 | The Supplier hereby assigns to the Purchaser all Intellectual Property Rights generated in the course of the provision of the Services pursuant to the Contract.
13.1 | Nothing in these Conditions shall limit or exclude the Seller’s liability for:
13.1.1 | death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2 | fraud or fraudulent misrepresentation;
13.1.3 | breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4 | breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
13.1.5 | defective products under the Consumer Protection Act 1987.
13.2.1 | The Seller and Buyer shall under no circumstances whatever be liable to each other, 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
13.2.2 | the Seller’s total liability to the Buyer 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 be the greater of either the Price of the Order to which the claim relates or £1 million.
13.2.3 | the Buyer’s total liability to the Seller 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 of the Order to which the claim relates.
13.3 | This clause 13 shall survive termination of the Contract.
14.1 | Without limiting its other rights or remedies, the Buyer may terminate the Contract at any time by giving the Seller 1 (one) month’s written notice whereupon all work in the Contract shall be discontinued and the Buyer shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any indirect or consequential loss.
14.2 | 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:
14.2.1 | the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so;
14.2.2 | 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;
14.2.3 | 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 other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.4 | 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;
14.2.5 | The other party (being an individual) is the subject of a bankruptcy petition or order;
14.2.6 | 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;
14.2.7 | 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);
14.2.8 | 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;
14.2.9 | 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;
14.2.10 | 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 14.2.2 to clause 14.2.9 (inclusive);
14.2.11 | The other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
14.2.12 | the other party’s financial position deteriorates to such an extent that in the Buyer’s opinion the Seller’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
14.2.13 | The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14.3.1 | the Seller shall immediately cease providing the Goods and/or Services at a point agreed with the Buyer. The Seller shall terminate all contracts with suppliers and subcontractors. The Seller shall arrange for the delivery of Goods to the Buyer’s premises. The Seller shall provide hard and electronic copies of documents relating to the Goods and/or Services;
14.3.2 | the Seller shall not be entitled to make claims for direct and indirect losses such as but not limited to; loss of overhead, loss of profit, loss of opportunity;
14.3.3 | subject to the right of set-off, the Buyer shall pay to the Seller all of the Seller’s undisputed unpaid invoices and, in respect of Services supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer;
14.3.4 | 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
14.3.6 | Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 | For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Seller including but not limited to failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, interference by civil of military authorities, national or international calamity, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, earthquake, epidemic or similar events.
15.2 | Each party shall not be liable to the other party as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.3 | If the Force Majeure Event prevents the Seller from providing any of the Goods and/or Services for more than 4 (four) weeks, the Buyer shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Seller.
16.1.1 | Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, or e-mail.
16.1.2 | The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
16.2 | Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.3 | No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.4 | Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.5 | Transfer and sub-contracting. The Seller does not give, bargain, sell, assign, sub-let or otherwise dispose of the Contract or any part thereof without the previous consent in writing of the Buyer. No sub-contracting by the Seller in any way relieves the Seller of any of his responsibilities under the Contract.
16.6 | Confidentiality. Save for information which is in the public domain (otherwise than by a breach of this Condition), the Seller shall keep secret and not disclose any technical or commercial know-how, business processes, specifications, inventions, plans, or initiatives which are of a confidential nature concerning the Buyer’s business or its products or services which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of the Seller’s employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Buyer and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Supplier. This Condition shall apply during the continuance of the Contract and after its termination howsoever arising. The Seller shall not disclose information obtained in connection with the Goods and/or Services except when necessary to carry out its duties under the Contract. The Seller may publicise any matter about the Goods and/or Services or arising out of the Contract only with the Buyer’s written agreement.
16.7 | General Data Protection Regulations. The Buyer and the Seller shall each comply with all applicable data protection legislation, including but not limited to the General Data Protection Regulations Act 2018 and the Data Protection Act 2018 any subsequent amendments thereto. The Seller agrees to the Buyer holding and processing personal data (including sensitive personal data) relating to the Seller’s personnel for personnel, administrative and management reasons.
16.8 | Insurance. The Seller shall effect and maintain with a reputable insurance company a policy or policies of insurance covering all the matters which are the subject of indemnity under these Conditions and at the request of the Buyer provides evidence of the policy or policies.
16.9 | This Contract contains the entire agreement and understanding of the parties relating to the subject matter of this Contract and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.
16.10 | Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Buyer.
16.11 | Dispute Resolution: If any dispute arises out of or in connection with this Contract (‘Dispute’) the parties undertake that they will seek to have the Dispute resolved amicably by use of an alternative dispute resolution procedure acceptable to both Parties. Either Party shall be entitled to initiate the process by written notice to the other.
16.12 | Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
16.13 | Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims) PROVIDED THAT each party shall have the right to enforce a judgment of the English Courts in a jurisdiction in which the other party is incorporated or in which any assets of the other Party may be situated AND FURTHER PROVIDED THAT each party shall have the right to take proceedings before the courts of any competent authority of any country for injunctive or interim remedies in relation to any breach of this Agreement including any infringement of a party’s Intellectual Property.