TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Agreement”) govern the sale of the Goods (defined below) by Triple Pillar Ltd trading as Njordair Fast Tent (the “Supplier“) to the Customer (defined below). The Supplier specializes in manufacturing re-usable air beam supported tents that inflate within minutes, with no framework or work at height, providing a controlled environment for works undertaken in the construction and marine industries.
The Customer is urged to read this Agreement carefully to ensure that the Customer fully understands the Supplier’s terms and conditions before purchasing any Goods from the Supplier. By placing an Order (defined below) for the Goods from the Supplier, the Customer is deemed to have accepted to be bound by the terms and conditions of this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Under this Agreement, the following definitions shall apply:
|“Agreement”||means this Terms and Conditions of Sale, as amended from time to time by the Supplier, in their sole discretion.|
|“Business Day”||means a day, other than a Saturday, Sunday or a public holiday when banks in London are open for business.|
|“Commencement Date”||means the date on which the Supplier shall have provided the Customer with the written acceptance of their Order.|
|“Contract”||means the written contract between the Supplier and the Customer for the supply of Goods, consisting of an Order, this Agreement, and any other applicable documentation.|
|“Customer”||means the individual, distributor and/or company that purchases the Goods from the Supplier.|
|“Customer Default”||means when the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any of their relevant obligations under this Agreement.|
|“Delivery Date”||means the date on which the Supplier and/or the Supplier’s nominated carrier delivers the Goods to the Customer.|
|“Delivery Location”||means the location at which the Goods shall be delivered to the Customer by the Supplier and as set out in an Order or as such other location as the Parties may agree.|
|“Fair Wear and Tear”||shall include the deterioration, physical defects, or damage to any structure, fittings fabrics and finishes, artwork, padding, material, netting or other equipment forming part of the Goods provided that it is due to normal usage in accordance with the Supplier’s instructions or recommendations. Fair Wear and Tear shall exclude any deterioration, physical defects, or damages caused by the following:|
vandalism, misuse, dragging, abuse, neglect;
incorrect operation, failure to follow instructions and manuals;
fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion;
ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
transportation, incorrect erection, assembly, installation or dismantling by third parties or the Supplier’s approved agent;
failure to routinely inspect, maintain, clean and adjust where required;
fault in or failure of electrical power or air conditioning or humidity or other equipment;
exposure to chemicals, additives, abrasives and other contaminants which may have a deleterious effect on the Goods and/or any finish applied to the Goods;
damp or mildew; use of the Goods for another purpose other than its intended use;
unauthorised alteration or modification of the Goods;
and connection or addition of other equipment to the Goods without the prior written approval of the Supplier.
|“Force Majeure Event”||shall have the meaning attributed to it under clause 19.1(a) of this Agreement.|
|“Goods”||means the re-usable air beam supported tent(s), with no framework or work at height, providing a controlled environment for works undertaken in the construction and marine industries, and as set out in an Order.|
|“Goods Specification”||means the detailed description of the Goods as set out in an Order.|
|“Incoterms”||also referred to as ‘Trade Terms’ are key elements of international contracts of sale, which provides parties with guidance and information on achieving export and import clearance, the shipment of Goods, and the division of costs and risks between parties.|
|“Intellectual Property Rights”||means all patents, rights to inventions, utility models, Goods, services, copyright and related rights, trade marks, 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 designs, rights in computer software, database right, 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 of such rights, and all similar or equivalent rights or forms of protection in any part of the world.|
|“Order”||means the Customer’s order for the supply of the Goods.|
|“Party and/or Parties”||means the Customer and the Supplier, collectively.|
|“Supplier”||means Triple Pillar Ltd, a company registered in England and Wales with company registration number: 8946643, trading as Njordair Fast Tent, (www.fasttentglobal.com).|
|“Warranty Period”||means a period of twelve (12) months against manufacturing defects from the date of delivery of the Goods to the Customer, or as specified by the Supplier in an Order.|
|“UK”||means the United Kingdom.|
1.2. The following rules shall apply in this Agreement:
(i) reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(ii) a reference to a party includes its successors or permitted assigns;
(iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(iv) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(v) a reference to writing or written includes faxes; and
(vi) the headings in this Agreement are for convenience only and shall not affect its construction or interpretation.
2.1 All quotations provided by the Supplier whether orally or in writing are non-binding until the Supplier has provided written confirmation of the acceptance of an Order. The Customer acknowledges that an Order may be withdrawn or varied, at any time, at the sole discretion of the Supplier.
2.2 The description and quantity of the Goods to be sold to the Customer by the Supplier shall be set out in a quotation. The Supplier gives no warranty or implied warranty regarding the availability of the Goods. All stated dimensions, weight of the Goods, details and colours shown on the Supplier’s website, company catalogue or brochure, are approximations and subject to variation or amendment without notice to the Customer.
2.3 The shipping costs, applicable duties and taxes for the Goods shall be quoted on a quotation and/or Order form by the Supplier, and shall be based upon the information acquired by the Supplier from the Customer.
2.4 Any quotation provided by the Supplier to the Customer shall not constitute an Order, and will therefore only be valid for the period specified in the quotation.
3.1 An Order shall constitute the Goods Specification, price, Delivery Location, and any other applicable information related to the Goods that are to be purchased by the Customer from the Supplier.
3.2. An Order shall be deemed to be acknowledged, confirmed and/or accepted by the Supplier on the acceptance of the Order by the Supplier in writing, including the Supplier’s acknowledgement or confirmation or acceptance of an Order by email.
3.3. The Customer shall place an Order with the Supplier using the following process:
- The Customer shall contact the Supplier so as to discuss the Customer’s requirements and ideas. The Customer shall be given the choice of either selecting one of the Supplier’s standard designs that is ready to go (subject to the Customer’s preferred colour and branding), or selecting Supplier’s custom designs.
- The Customer shall choose the Customer’s preferred colour and provide the Supplier with a high-resolution copy of the Customer’s logo as a vector image, to be placed on the Goods. The Supplier’s design team will prepare drawings and visuals for the Customer’s approval. A quotation for the Goods, including the applicable shipping costs shall also be provided by the Supplier to the Customer.
- Upon acceptance of the Supplier’s quotation by the Customer, the Supplier shall issue an Order. To secure the Order, the Customer shall be required to make a fifty percent (50%) deposit of the total amount of the quoted price of the Goods. Once the Supplier has received a fifty percent (50%) deposit, the Supplier shall convert the approved designs for the Goods into a production plan. To perform the latter, the applicable material is cut using state of the art precision cutters and the manufacturing of the Goods begins.
- Once the manufacturing of the Goods is completed, the Supplier will inflate, test and check the Goods, as well as provide the Customer with images of the completed Goods.
- The balance of the payment owed by the Customer to the Supplier for the Order, shall be due and payable by the Customer, without deduction or discount, prior to the Goods being dispatched to the Delivery Location. The approximate lead-time for the delivery of the Goods from the acceptance of the Order by the Supplier, to the date the Goods are dispatched to the Customer, is estimated to be between four (4) to six (6) weeks.
3.4 The Supplier reserves the right to extend the delivery time and/or decline to accept an Order.
3.5 An Order that has been placed by a Customer, and which has been accepted by the Supplier, can be cancelled by the Customer in writing to the Suppler. However, the Customer acknowledges and agrees that by canceling an accepted Order, the Customer forfeits the fifty percent (50%) deposit made to the Supplier for the Goods.
4.1 For Customers who are in destinations outside of Europe, the Supplier will utilise the services of a freight-forwarding partner, to facilitate the shipment of the Goods to the Customer via sea freight or airfreight.
4.2 The Customer acknowledges and accepts that should the Supplier be required to ship the Goods outside of Europe, additional import duties and taxes are applicable, the cost of which is for the Customer.
4.3 When the Supplier issues a quotation to the Customer for the Goods, the applicable shipping costs and Incoterms will also be quoted. Generally, the Supplier shall ship the Customer’s ordered Goods under the Incoterm Delivered At Place (“DAP”) category. Under DAP, the Supplier shall make the necessary arrangements and payments for the shipping of the Goods. However, the Customer is solely responsible for the payment of any applicable import duties and taxes, when the Goods reach the Delivery Location.
4.4 The Supplier will generate all the necessary paperwork, which includes but is not limited to a commercial invoice in Pounds Sterling (the invoice will contain the correct commodity codes (HS Codes) so as to enable the Customer to confirm any local duty and tax rates), a packing list, bill of lading for the Goods sent via sea-freight or airway bills for air freighted Goods. In some circumstances and where applicable, the Supplier shall provide the Customer with a Certificate of Origin from the Chamber of Commerce in the UK.
4.5 Should the Customer not have an import agent at the Delivery Location, the Supplier can provide this service by arranging with one of the Supplier’s logistics partners for an import agent to assist the Customer.
5. EXPORTING THE GOODS
5.1 When exporting Goods, each Order shall incorporate Incoterms 2010 and shall be subject to any necessary export permissions to be obtained respectively by the Supplier and the Customer.
5.2 All Goods that are exported by the Supplier are carried out in accordance with UK export laws. As other destinations may have specific export rules and requirements, the Supplier recommends that the Customer rertains the services of an import agent to asist the Customer in complying with the Delivery Locations importation rules as regards the ordered Goods.
5.3 The Customer acknowledges and accepts that the Supplier will not be responsible for the payment of any and all of the Customers local taxes and VAT, that may become due and payable for the imported Goods. The Customer shall remain solely liable for any and all such payments as pertains to the imported Goods.
6. WARRANTY OF THE GOODS
6.1 The Supplier represents and warrants to the Customer that (a) from the date of delivery of the Goods; and (b) for the duration of the applicable Warranty Period, the Goods shall:
(i) conform in all material respects with the Goods Specification specified in an Order including any variations;
(ii) conform in all respects with the requirements of any statutes, orders, regulations or bye-laws from time to time in force;
(iii) be free from material defects in design, material and workmanship; and
(iv) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 The Customer shall be solely responsible for ensuring that the Goods are fit, sufficient and suitable for the Customer’s particular purpose. Should the Customer make the Supplier aware of any purpose, the Customer is deemed to not rely upon the skill or judgement of the Supplier unless the Supplier expressly waives this condition in writing.
6.3 The Supplier’s liability to the Customer in respect of any defect in the Goods as a result of a defective design, defective workmanship, the use of defective materials, or any direct or indirect loss, injury or damage will be limited to the following options at the Supplier’s sole discretion:
- Repair or procure the repair of the Defective Goods at the Supplier’s premises; or
- Replace the defective Goods; or
- Refund the price paid for the defective Goods in full to the Customer.
Except as mentioned under this Agreement, the Supplier will not be liable for consequential loss, economic loss or any other damages howsoever arising.
6.4 The Supplier will not be liable for any defects in the Goods, including but not limited to its failure to comply with the warranties stipulated under clause 6.1:
- Unless the defective Goods are returned to the Supplier, at the Customer’s cost, within the Warranty Period.
- Unless the Customer has notified the Supplier in writing of each claimed defect within fourteen (14) days after such defect has first become apparent to the Customer.
- Unless the Supplier accepts the return of the Goods and the Supplier has examined the Goods that are claimed to be defective by the Customer.
- Should a third party who has not been approved by the Supplier, have been permitted by the Customer, to effect any replacement of parts, maintenance, adjustment or repair of the Goods.
- Unless the Goods supplied are used, installed and maintained in accordance with the Supplier’s oral and/or written instructions, and in accordance with any manuals, drawings, operating instructions, maintenance records, certificates, other documentation or any other instructions or recommendations of the Supplier or the manufacturer of any equipment forming part of the Goods, as supplied by the Supplier to the Customer.
- If the Customer neglects and/or fails to maintain the Goods in any other manner.
- Should the defect arise as a result of any drawing, design or specification supplied by the Customer to the Supplier, which has been relied upon by the Supplier for the provision of the Goods.
- Should the defect arise as a result of Fair Wear and Tear, willful damage, negligence, or abnormal working conditions.
- Should the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
- If the suitability of the Goods for any particular purpose or use are known or communicated to the Supplier.
- For variations in the colour, quantity or dimensions of the Goods.
- For any statements, representations, recommendations or advice furnished to the Customer or his agent by the Supplier, its employees, dealers or agents before an Order is accepted and/or confirmed by the Supplier. The Customer acknowledges and accepts that the Customer will not be deemed to rely or have relied upon any statements, representations, recommendations or advice at any time whether made orally or in writing.
6.5 Upon receipt of the defective Goods the Supplier shall retain the Goods for inspection and shall within a reasonable timeframe examine the defective Goods. After the Supplier has examined the defective Goods, the following conditions shall apply:
- If the Supplier is satisfied that the Goods are under the Warranty Period, the Supplier shall notify the Customer of the action which the Supplier proposes to take in respect of the defective Goods. This shall be at no extra cost to the Customer, and the cost shall include the payment for carriage via road or sea freight only.
- If the Warranty Period does not apply, in whole or in part, the Supplier shall notify the Customer and shall provide the Customer with a quotation for the cost of any repair work that is required to the defective Goods for which the Company shall not be held liable. The Customer will be solely responsible for all associated inspections, storage and carriage costs (both ways). The Supplier reserves the right not to carry out any repairs that are not covered by warranty before payment has been received in full from the Customer. The Supplier reserves a right of lien over the repaired Goods until full payment is received.
6.6 The Supplier guarantees that the fans, blowers and transformers that are supplied to the Customer are only from original reputable manufacturers. Should any such item prove defective under the terms of the manufacturer’s guarantee the Supplier shall use reasonable endeavours to obtain the benefit of the manufacturer’s guarantee for the Customer.
6.7 All Goods returned to the Supplier for repairs under the Warranty Period and/or guarantee including work undertaken at the Customer’s request and cost, will be returned to the Customer in a clean and dry condition, properly rolled, folded and packed. Should the Supplier, in their sole discretion judge that the Goods are not in a fit condition as to cleanliness; the Customer shall bear all the related costs of putting such Goods in a fit condition for inspection and/or work to be carried out.
6.8 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 6.8 shall survive the termination of this Agreement.
6.9 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
7.1 The Supplier shall ensure that:
- The Supplier shall deliver the Goods to the Delivery Location set out in the Order or such other location as the Parties may agree at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
- Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in the delivery of the Goods that is caused by any Customer specifications (affecting such matters including but not limited to ordering and lead times) or a Force Majeure Event (defined below) or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.2 The Goods will be considered delivered to the Customer when the Goods are placed at the disposal of the Customer, any agent, carrier or representative of the Customer at the Supplier’s premises or other delivery point as agreed between the Supplier and the Customer.
7.3 The Goods will be considered as delivered to the Customer in accordance with the terms of Incoterms 2010.
7.4 Should the Customer, despite being provided with notice to collect the Goods, fail to take delivery of or arrange collection of the Goods when made available by the Supplier, the Supplier will be entitled to store or arrange storage of the Goods at the Customer’s cost and without prejudice to any other rights the Supplier may have. The Supplier will not be liable for any loss or damage howsoever arising to the Goods stored on behalf of the Customer.
7.5 The Company will not be liable for any penalty, loss, injury, damage or expenses arising from any delay or failure in delivery or performance from any cause nor will any such delay or failure entitle the Customer to refuse to accept any delivery of the Goods or performance of this Agreement. The Supplier shall have no liability for any failure to deliver the Goods to the extent that a Force Majeure Event (defined below) causes such failure, the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
7.6 No claim for non-delivery of the Goods, or damage to the goods, total or partial loss of the Goods, or that the Goods are not of the correct quantity or do not comply with their description or specification will be valid unless the Customer notifies the Supplier and the carrier in writing within three (3) days of the date of delivery or within any period stipulated by the carrier whichever period expires sooner. The Customer is to examine the Goods prior to providing the carrier a delivery note for the Goods. However, should the Customer fail, neglect, refuse or decline to examine the Goods, the Customer shall mark the delivery note ‘unexamined’.
7.7 The Customer shall be deemed to have accepted the Goods on or before the seventh (7th) day after the Goods have been delivered at the Delivery Location, should the Customer not have communicated their rejection of the Goods prior to this date. The Customer shall not be entitled to reject the Goods in whole or in part after such date. If the Customer alleges that any defect was not reasonably apparent on inspection, the Customer must notify the Supplier in writing within fourteen (14) days from when the defect was reasonably apparent or came to the attention of the Customer.
7.8 Any claim made by the Customer must be in writing and must contain the full details of the claim including a full description of the alleged defect(s). The Customer must afford the Supplier with the reasonable opportunity to inspect and investigate any claims made by the Customer. Should the Supplier request, the Customer must promptly return for examination any Goods, which are the subject of any claim, including any packing, and pay for the carriage of the Goods to the Supplier or its agent at such address as the Supplier may stipulate.
7.9 The Supplier will not be liable for any defect unless a claim is made in a manner, which conforms to this Agreement and the Warranty Period.
8. TITLE AND RISK
8.1 Should the responsibility of arranging the delivery of the Goods to the Customer be for the Supplier, the risk in the Goods shall pass to the Customer on completion of the delivery of the Goods to the Customer’s Delivery Location and/or agent. However, should the delivery of the Goods to the Customer be ex-works, and the Customer shall be arranging the delivery of the Goods and therefore collecting the Goods from the Supplier’s warehouse, the risk in the Goods shall pass to the Customer on collection of the Goods at the Supplier’s warehouse.
8.2 Title to the Goods shall not pass to the Customer until the Supplier has received full payment either in cash or cleared funds deposited in the Supplier’s business bank account for:
(i) the ordered Goods; and
(ii) any other Goods that the Supplier has supplied to the Customer in respect of which payment has become due and payable.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(i) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(iii) maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(iv) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(iii) to clause 15.1(xiii);
(v) give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
(vi) not resell the Supplier’s Goods unless prior written notice has been obtained form the Supplier. Should consent be granted by the Supplier and the Customer resells the Goods, the Customer shall procure that it is a condition of such resale that the rights of the Supplier are expressly reserved to enter the premises of the Customer or the Customer’s customer for the purpose of recovering the Goods in accordance with clause 8.4.
8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(i) to clause 15.1(xiii), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are situated in order to recover them.
8.5 The Supplier’s rights under this clause 8 are in addition to and do not limit any of the Supplier’s other rights or remedies under applicable law.
8.6 Risk and title to the Goods shall pass to the Customer in accordance with the terms of Incoterms 2010. Therefore, Unless otherwise agreed in writing, risk in the Goods shall pass to the Customer when the Goods are placed at the disposal of the Customer at the Supplier’s premises or at the Delivery Location and thereafter the Customer will effect all reasonable insurances for the value of the Goods.
9. THE SUPPLIER’S DOCUMENTATION
9.1 The Supplier reserves the right to amend or withdraw without notice to the Customer any catalogue, leaflet, brochure, price list, drawing, illustration, photograph, video, model, sample, particulars, specification, description or representation or web page applicable to the Goods.
9.2 Any manuals, drawings, operating instructions, maintenance records, certificates or other documentation provided by the Supplier to the Customer are deemed to be for information purposes only and the Supplier will not be liable for any omission or error therein. Such documentation is deemed to be part of the Goods for the purposes of the passing of risk and property. However, all and any intellectual property in any information and/or documentation supplied by the Supplier to the Customer, or the granting of any express or implied license to reproduce the information and/or documentation is excluded.
10. THE CUSTOMER’S RESPONSIBILITIES
10.1 The Customer is wholly responsible at all times for the use of the Goods by themselves, the Customer’s employees, agents and/or third parties and for:
- the compliance with all legislation or regulations applicable to the use of the Goods;
- the compliance with any applicable code of practice or guidance;
- the proper and safe transportation, storage, maintenance, handling, siting, assembly, disassembly, inspection, operation and use of the Goods; and
- making all the necessary risk assessments, obtaining and providing any necessary information, complying with daily inspections of the Goods, and for the appropriate training of all attendants, operators, hirers and users of the Goods on the applicable health and safety guidelines and/or requirements.
10.2 Under this Agreement, the Customer shall:
- ensure that the terms of the Order (including the Goods Specification and any other applicable document) are complete and accurate;
- co-operate with the Supplier in all matters relating to the Goods;
- provide the Supplier with such information as the Supplier may reasonably require to supply the Goods, and ensure that such information is accurate in all material respects;
- obtain and maintain all necessary licenses, permissions and consents which may be required for the Goods; and
- from the Commencement Date until twelve (12) months after the Delivery Date, not solicit or offer employment to any of the Supplier’s staff up to the Supplier’s employees termination of employment and for three (3) months thereafter. In the event of a breach of this clause, the Customer shall pay the Supplier the equivalent of one (1) year’s salary of the solicited employee, which is agreed by both Parties as a genuine pre-estimation of the Supplier’s loss in such circumstances.
10.3 Should the Customer Default on any of their obligations under this clause and this Agreement:
(i) the Supplier shall without limiting its other rights or remedies have the right to suspend the delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent that the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(ii) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause; and
(iii) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10.4 The Customer agrees to keep the Supplier fully indemnified against all claims, actions, damages (including punitive or exemplary damages), loss and expenses whatsoever and howsoever arising out of any fault or negligence by the Customer or its employees, agents or users of the Goods including any failure to comply fully with clause 10.1 unless but only to the extent that the same is directly caused by the negligence of the Supplier, its employees and/or agents.
11.1 The price for the Goods shall be set out in an Order and the currency of payment shall be the UK Pound Sterling. The Supplier reserves the right to amend its pricing without prior notice to the Customer. The prices that are quoted on a quotation and/or Order may exclude carriage or freight charges, insurance premiums, import duties, taxes, landing charges, warehousing etc. unless otherwise stated by the Supplier.
11.2 Should additional Goods (including additional manpower) be required by the Customer beyond those set out in the applicable Order (including but not limited to repair work), the Supplier shall be entitled to make additional charges which shall be quoted to the Customer before the commencement of any work.
11.3 The Customer shall pay each invoice submitted by the Supplier:
(i) within twenty-eight (28) days of the date of the invoice unless agreed otherwise by the Supplier in writing; and
(ii) in full and cleared funds to a bank account nominated in writing by the Supplier.
11.4 For Goods that are custom made, the Customer shall make payment of a fifty percent (50%) deposit with an approved Order. The Customer shall pay the remaining balance of fifty percent (50%) to the Supplier, without discount or deduction, prior to dispatching the Goods for delivery to the Customer. For the Supplier’s standard stocked Goods, the Customer shall make payment of a fifty percent (50%) deposit with an approved Order. The Customer shall pay the remaining balance of fifty percent (50%) to the Supplier, without discount or deduction, prior to dispatching the Goods for delivery to the Customer unless agreed otherwise by the Parties and shall be subject to all necessary credit checks by the Supplier in their sole discretion.
11.5 No delay in using the Goods and no alleged defect will entitle the Customer to withhold or delay payment in full to the Supplier.
11.6 The Customer shall specify in the Order any references or codes to be indicated in invoices submitted by the Supplier.
11.7 All amounts payable by the Customer under this Agreement and any signed Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under this Agreement and any Order by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
11.8 In addition, the Supplier shall invoice any applicable non-UK tax; duty and/or other impost on payments to the Customer and the Customer shall be responsible for making such payments timeously to the Supplier.
11.9 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under this Agreement and/or applicable Order, by the due date for payment (“Due Date”), the Supplier shall have the right to charge interest on the overdue amount at the rate of eight percent (8%) per annum above the then current Bank of England base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounded monthly.
11.10 The Customer shall pay all amounts due under this Agreement and applicable Order in full without any deduction or withholding except as required by law. The Customer shall not be entitled to assert any credit, set off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.11 The Supplier shall not accept deferred payment terms as an acceptable method of payment, including but not limited to letters of credit, drafts or bills of exchange.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Goods shall be owned exclusively by the Supplier.
12.2 Except to the extent that the Goods are supplied in accordance with designs provided by the Customer, it shall be a condition of an Order that none of the Goods will infringe any patent, trade mark, design right (whether registered or not), copyright or any other right in the nature of intellectual property of any third party and the Supplier shall indemnify and keep indemnified the Customer against all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which the Customer may suffer or incur as a result of or in connection with any breach of this clause.
12.3 All Intellectual Property Rights in any of the foregoing:
(i) furnished to or made available to the Supplier by the Customer pursuant to an Order are hereby assigned to and shall remain vested solely in the Customer;
(ii) the Supplier shall not (except to the extent necessary for the implementation of an Order) without prior written consent of the Customer, use or disclose any such intellectual property or any information which the Supplier may obtain from the Customer pursuant to this Agreement; and
(iii) the Supplier shall not refer to the Customer in any advertisement without the Customer’s prior written agreement.
12.4 All drawings, designs, sketches, visuals, computer software, catalogues, leaflets, brochures, manuals, price lists, illustrations, photographs, videos, models, samples, particulars, specifications, instructions, descriptions or representations applicable to the Goods prepared by or for the Supplier and the intellectual property and associated rights including moral rights relating thereto remain the property of the Supplier. Where the Customer provides his own artwork, logo and/or design (with or without registered trade marks or other intellectual property) to be applied to the Goods by the Supplier, the Supplier shall have a limited non-assignable royalty-free license to reproduce the same on the Goods. When the Goods are made or adapted by the Supplier in accordance with the Customer’s specification or requirements the Customer undertakes to indemnify the Supplier against all costs, expenses, claims, loss and damages incurred by the Supplier in respect of the infringement of the Goods or of any intellectual property rights belonging to or claimed by any third party.
13.1 A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.
13.2 The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
13.3 The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive the termination of this Agreement.
14. LIMITATION OF LIABILITY
14.1 In no event shall the Supplier be liable or obligated to the Customer in any manner for any special, non-compensatory, consequential, indirect, incidental, statutory or punitive damages of any kind, including, without limitation, lost profits and lost revenue, regardless of the form of action, whether agreement, tort, negligence, strict product liability or otherwise, even if informed of or aware of the possibility of any such damages in advance. In no event shall the Supplier’s aggregate liability under this Agreement exceed the aggregate amount of payments made by the Customer to the Supplier for the Goods. The limitations set forth above shall be deemed to apply to the maximum extent permitted by applicable law and notwithstanding the failure of the essential purpose of any limited remedies.
14.2 This clause 14 shall survive the termination of this Agreement.
15.1 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
- the Customer fails to pay any amount due under this Agreement on the Due Date for payment;
- the Customer commits a material breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after receipt of notice of the breach;
- the Customer 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) 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;
- the Customer 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;
- 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 Customer (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;
- the Customer (being an individual) is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Customer 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 fourteen (14) days;
- 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 Customer (being a company);
- a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
- 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;
- 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 15.1(iii) to clause 15.1(x) (inclusive);
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
- the Customer (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.
15.2 Without limiting its other rights or remedies, the Supplier shall have the right to suspend all deliveries of the Goods under this Agreement or any other Contract between the Customer and the Supplier if:
(i) the Customer fails to make pay any amount due under this Agreement on the Due Date for payment; or
(ii) the Customer becomes subject to any of the events listed in clause 15.1(i) to clause 15.1(xiii), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16. CONSEQUENCES OF TERMINATION
16.1 On the termination of this Agreement for any reason:
(i) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest;
(ii) the Customer shall return all of the Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Goods. Until the Goods have been returned, the Customer shall be solely responsible for their safekeeping and will not use the Goods for any purpose not connected with this Agreement;
(iii) 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 this Agreement which existed at or before the date of termination or expiry; and
(iv) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17.1 The Customer agrees to indemnify and hold the Supplier its subsidiaries, affiliates, and respective officers, agents, partners and employees, harmless from any loss, liability, demand, claim or legal proceedings brought or threatened, including expense suffered or incurred arising out of the Customer’s use of the Goods, or any violation of this Agreement.
18.1 The risk of loss, theft, damage or destruction of the Goods shall pass to the Customer on delivery of the Goods and as set out under this Agreement. The Goods shall remain at the sole risk of the Customer during the purchase period and any further term during which the Goods are in the possession, custody or control of the Customer until such time as the Goods are redelivered to the Supplier or full payment is made for the purchase of the Goods.
18.2 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Goods arising out of or in connection with the Customer’s possession or use of the Goods. The Supplier recommends that the Customer obtains and maintains applicable insurance policies for the use of the Goods.
18.3 The Supplier maintains the following insurance policies in the amount of ten million Pounds Sterling:
- Employers liability insurance;
- Product liability insurance;
- Public liability insurance; and
- Professional indemnity insurance
19. GENERAL PROVISIONS
19.1 Force majeure:
(i) For the purposes of this Agreement, a Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Party or any other Party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, service providers or subcontractors.
(ii) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
(iii) If the Force Majeure Event prevents the Supplier from providing any of the Goods for more than four (4) weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Customer.
19.2 Assignment and Subcontracting:
(i) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party.
(ii) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
(i) In addition to any right of lien to which the Supplier may by law be entitled, the Supplier shall in the event of the Customer’s insolvency be entitled to a general lien on all items in the Supplier’s possession (notwithstanding that such items or any of them may have paid for) for any unpaid Customer invoices under this Agreement or any other Contract.
(i) Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered to the other Party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(ii) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(iii) This clause 19.4 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Agreement shall not be validly served if sent by e-mail.
19.5 Waiver and Cumulative Remedies:
(i) A waiver of any right under this Agreement 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 this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(ii) Unless specifically provided otherwise, rights arising under this Agreement are cumulative and to not exclude rights provided by law.
(i) If a court or any other competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
(ii) If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19.7 No Partnership:
(a) Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the Parties, nor constitute any Party the agent of another Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way.
19.8 Third parties:
(i) A person who is not a party to this Agreement shall not have any rights under or in connection with it.
(i) Except as set out in this Agreement, any variation, including the introduction of any additional contracts, terms and agreement, to this Agreement shall only be binding when agreed in writing and signed by the Supplier.
19.10 Further Assurances
(i) The Customer shall execute all documents and take all further actions requested by the Supplier to protect the Supplier’s interests under this Agreement. If an individual is signing on behalf of the Customer that individual represents that he or she has authority to bind the Customer.
19.11 Governing law and Jurisdiction:
- 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, English law.
- The Parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
19.12 Entire Agreement:
(i) This Agreement and any Contract shall constitute the entire agreement between the Parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier, which is not set out in this Agreement and/or Contract.
(ii) This Agreement supersedes any other agreement previously issued and may not be varied except by written agreement of a director of the Supplier and apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.