1 – GENERAL
- 1.1 In these Terms the following expressions shall have the following meanings:
- ‘Agreement’ means the Specification and these Terms;
- ‘Business Day’ means a day which is not Saturday, Sunday or a bank holiday in England;
- ‘Company’ means Newground CIC (Company Number 02584952) whose registered office is at: Bob Watts Building, Nova Scotia Wharf, Bolton Road, Blackburn, Lancashire, BB2 3GE;
- ‘Customer’ means the person, firm or company with whom the contract is made by the Company, whether directly or indirectly through an agent who is acting for, instructed by or whose actions are ratified by such person, firm or company;
- ‘Goods’ means the articles or things or any of them described in the Specification;
- ‘Specification’ means the information supplied in the form annexed to this Agreement, a document only forms part of the Specification if it is annexed to this Agreement;
- ‘Specification Date’ means the date stated on the Specification;
- ‘Services’ means the provision of services as described in the Specification.
- 1.2 Unless the context otherwise requires reference to any clause sub-clause or schedule is to a clause, sub-clause or schedule (as the case may be) of or to this Agreement.
- 1.3 Headings contained in this Agreement are for reference purposes only and shall not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the clauses and sub-clauses to which they relate.
- 1.4 Reference to any Act, statutory instrument or other instrument shall include references to such instrument as amended, re-enacted or consolidated from time to time and also to any subordinate instrument made under it.
- 1.5 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this Agreement shall include all genders and the plural and the successors in title to the parties.
- 1.6 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression or followed by the terms “or otherwise”, “or any other”, “or any similar”, “or any analogous” or any cognate expression shall be construed as illustrative and shall not limit the sense of the words following or preceding such terms.
2 – SUPPLY OF GOODS AND SERVICES
- 2.1 These Terms shall be deemed to be incorporated in all contracts with the Company to sell Goods and/or to supply Services and in the case of any inconsistency with any order, letter or form of contract sent by the Customer to the Company or any other communication between the Customer and the Company whatever may be their respective dates the provisions of the Agreement shall prevail unless expressly varied in writing and signed by a director on behalf of the Company.
- 2.2 The Customer shall in addition to those annexed to the Specification, at its own expense supply the Company with all necessary documents, drawings or other materials, and all necessary data or other information relating to the Goods or the supply of Services which the Company acting reasonably determines it requires. Such documents, drawings or other materials will be provided by the Customer within sufficient time to enable the Company to provide the Goods and/or to supply the Services in accordance with the Agreement.
3 – ORDERS
- 3.1 By signing the Specification, the Customer offers to enter into the Agreement (including for the avoidance of doubt these Terms and the Specification).
- 3.2 Notwithstanding that the Company may have provided a Specification to the Customer or that a Specification has been produced by the Company and signed and dated by the Customer, no order shall be binding on the Company unless and until it has been accepted in writing and dated by the Company within 7 Business Days. For the avoidance of doubt, if the Company has not accepted the offer in writing within 14 Business Days, the offer is not accepted by the Company.
4 – CUSTOMER OBLIGATIONS
- 4.1 In entering into this Agreement the Customer undertakes to:
- 4.1.1 co-operate with the Company as the Company reasonably requires;
- 4.1.2 provide any information that the Company reasonably requires;
- 4.1.3 make available to the Company such facilities as the Company reasonably requires; and
- 4.1.4 ensure that the Customer’s staff and agents co-operate with and assist the Company.
- 4.2 The Customer shall provide access to such premises as the Company, its employees, sub contractors and agents require to deliver the Goods and/or perform the Services.
- 4.3 Before the Company commences any of the Services, the Customer shall inform the Company of any dangers or hazards, whether hidden or not which the Company is likely to encounter during the performance of the Services.
- 4.4 The Customer agrees that it shall do nothing which might bring the Company into disrepute in anyway, or is prejudicial to the Company’s interests.
- 4.5 The Customer acknowledges and agrees that where any Goods supplied by the Company are ordered from third parties with which the Company has only a contractual relationship then except as stated in the Specification time shall not be of the essence for:
- 4.5.1 the ordering of Goods by the Company; or
- 4.5.2 the delivery of Goods, including any dates for delivery provided by third parties or the Company.
- 4.6 The Company shall use reasonable endeavours to complete the Services by the Completion Date or the dates specified in the Specification provided that the parties acknowledge that time shall not be of the essence for:
- 4.6.1 dates or times when Services are due to be performed;
- 4.7.1 the length of time that any Service will take to perform as stated in this Agreement; or
- 4.8.1 any date or time by which any of the Services will be completed as stated in this Agreement.
5 – PRICES
- 5.1 The Price of the Goods and/or the Services shall be the quoted price stated in the Specification (“the Provisional Price”) plus VAT. The Provisional Price shall be valid for a period of 30 days from the Specification Date, after which time the Specification is no longer valid.
- 5.2 The Provisional Price is subject to adjustment to take account of:
- 5.2.1 any variation in the Company’s costs including but not limited to variations in wages, the costs of materials, exchange rate fluctuations, alterations of duties and other costs since the date of the Specification including but not limited to amendments to the Specification under clause 9;
- 5.2.2 any fees or charges incurred for specialist professional advice (with the prior written authority of the Customer); and
- 5.2.3 any suspension of work as a result of the Customer’s instructions or lack of instructions.
The Company accordingly reserves the right to adjust the invoice price (“the Final Price”) by the amount of any increase in such costs after the Provisional Price is quoted. The invoice so adjusted shall be payable as if the price set out therein were the original contract price.
- 5.3 The Company reserves the right to increase its fees at any time on giving not less than 4 weeks prior written notice to the Customer.
6 – VAT
- 6.1 All sums payable under the Agreement unless otherwise stated are exclusive of VAT and other duties or taxes.
7 – TERMS OF PAYMENT
- 7.1 Subject to the provisions of the Specification, unless otherwise stated by the Company in writing:
- 7.1.1 all payments due under the Agreement shall be non refundable and made in full (without any set off or other deduction) within 30 days of the date of the Company’s invoice;
- 7.1.2 payment shall be made in:
- 220.127.116.11 cash; or
- 18.104.22.168 cleared cheque in pound sterling; or
- 22.214.171.124 electronic fund transfer; or
- 126.96.36.199 any other method agreed in writing by the Company.
8 – LATE PAYMENT
- 8.1 If the Customer fails to pay any money due to the Company on time, the Company may immediately cease to deliver any further Goods and/ or Services to the Customer and thereafter impose whatever credit limit it in its absolute discretion considers appropriate in the circumstances.
- 8.2 Without prejudice to any other rights it may have, the Company is entitled to charge interest on the overdue sum at the higher of 4% above the base rate from time to time of NatWest Bank or the rate of interest from time to time prescribed under the Late Payment of Commercial Debts (Interest) Act 1998.
9 – AMENDMENTS TO THE SPECIFICATION
- 9.1 Upon receipt of a request from the Customer to amend the Specification the Company will within 14 Business Days produce a revised specification “the Revised Specification” for the Customer in default of which the existing Agreement shall apply without amendment.
- 9.2 Upon receipt of a request to amend the Specification from the Customer the Company reserves the right to suspend work until a Revised Specification has been accepted (or declined) by the Customer, all estimated completion and/ or delivery dates (where applicable) may be altered as a result.
- 9.3 To accept the Revised Specification the Customer shall sign and return the Revised Specification to the Company and the Revised Specification shall be the Specification provided that the Company shall be entitled to invoice the Customer for the Goods supplied and/or the Services already commenced or completed under the original Specification. For the avoidance of doubt, if the Customer does not sign and return the Revised Specification within 7 Business Days of the date of the Revised Specification, the Agreement shall continue un-amended in accordance with the original Specification.
10 – WARRANTIES, LIABILITY AND INDEMNITY
- 10.1 The Company warrants that it shall carry out the Services with reasonable care and skill.
- 10.2 The Parties acknowledge and agree that where the provision of the Services is subject to weather conditions that this may affect the Company’s ability to meet any deadline set out in the Specification and any such deadlines may be extended.
- 10.3 The Company shall not be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
- 10.4 Except in the case of death or personal injury caused by the Company’s negligence, the Company’s liability under or in connection with this Agreement, whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed twice the Final Price.
- 10.5 The Company shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions or drawings supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non arrival, or any other fault of the Customer.
- 10.6 The Customer shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company, its employees and third parties, by reason of or arising out of any information supplied to the Customer by the Company, its employees or subcontractors, or supplied to the Company by the Customer within or without the scope of this Agreement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
11 – RISK AND PROPERTY
- 11.1 The risk in the Goods supplied by the Company shall pass to the Customer on the date the Goods are delivered to the Customer.
- 11.2 The property in the Goods supplied by the Company shall not pass to the Customer until the Company has received the payment of all sums owing concerning the Goods in full (and any other sums that are due or owing to the Company), whether or not delivery has made. For the purposes of this clause 11, ‘received’ means cleared funds in a bank account of the Company.
- 11.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property, but the Customer may resell or use the Goods in the ordinary course of its business.
- 11.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Company may at any time require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
- 11.5 The Customer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all moneys owing by the Customer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due and payable.
12 – USE OF SUB-CONTRACTORS
- 12.1 The Company is permitted to use other persons to provide or supply some or all of the Services and/or Goods.
- 12.2 The Company shall be responsible for the work of a sub-contractor to the same standard as stated in this Agreement and the Specification as agreed by the Parties.
13 – INTELLECTUAL PROPERTY
- 13.1 The copyright, design right and all other intellectual property rights in any materials, goods and other documents or items prepared or produced for the Customer by or on behalf of the Company in connection with this Agreement shall belong to the Company absolutely and any such materials, documents or items shall be or remain the sole property of the Company.
- 13.2 The Customer shall be entitled to use as a licensee any such materials, documents or other items as are referred to in paragraph 13.1 in connection with the provision of Services but shall not be entitled to copy any such items or use them for any commercial purpose unless agreed otherwise in writing between the parties.
14 – TERMINATION
- 14.1 Either Party may terminate this Agreement by giving at least 14 Business Days notice in writing at any time to the other.
- 14.2 Pursuant to clause 14.1, where the Customer terminates this Agreement or any part of it the Company shall be entitled to raise an invoice (payable by the Customer in accordance with clause 7.1) for a reasonable proportion of the Final Price. The Company shall be entitled to charge the Final Price where it is reasonable for it to do so. For the avoidance of doubt, if the Company has at the date of the notice to terminate raised interim invoices in respect of any Services and/or Goods provided to the Customer, such invoices shall remain payable notwithstanding termination of the Agreement.
- 14.3 Without prejudice to clause 14.1 and its rights and obligations under this Agreement, the Company shall be entitled to terminate this Agreement forthwith by notice in writing to the Customer on the occurrence of any of the following:
- 14.3.1 If the Customer goes into compulsory liquidation or ceases to carry on business, has a receiver, administrator or administrative receiver appointed over all or any part of its assets or undertaking, or enters into any composition or arrangement, with its creditors or makes any application for a moratorium under the terms of section 1A and Schedule A1 to the Insolvency Act 1986 as amended by the Insolvency Act 2000 or takes any similar action or suffers any other similar event or undergoes any process analogous to the foregoing in any jurisdiction throughout the world;
- 14.3.2 If the Customer is declared bankrupt or a petition is presented for his bankruptcy or (where the Customer is a partnership) any partner is declared bankrupt or a petition is presented for his bankruptcy;
- 14.3.3 If any distress is levied or threatened against any of the assets of the Customer;
- 14.3.4 If the Customer being a natural person dies or becomes mentally incapable;
- 14.3.5 If the Customer breaches any term of this Agreement and fails to remedy the breach within 7 Business Days of a written notice being served by the Company;
- 14.3.6 If the Customer breaches a term of this Agreement which is incapable of remedy;
- 14.3.7 If the Customer fails to make any payment required by the Agreement in cleared funds within 7 Business days of the due date;
- 14.3.8 If the Customer makes changes to the order for Goods and/or Services which makes it impractical for the Company to perform.
- 14.4 In any circumstances in which the Company could terminate, it may at the discretion of the Company suspend the Services without prejudice to its right to terminate.
15 – TERMINATION CONSEQUENCES
- 15.1 In the event of this Agreement being determined whether by effluxion of time, Notice, breach or otherwise the Customer shall immediately pay to the Company all arrears of payments and any other sums due under the terms of the Agreement.
16 – VARIATIONS
- 16.1 No variations in the work or Goods and/or Services to be supplied shall be made except by agreement in writing between the Company and the Customer.
- 16.2 Unless verbal or telephone orders or any other variation to the Specification is confirmed in writing by the Customer, the Company shall not be responsible for errors or subsequent misunderstandings.
- 16.3 The Company reserves the right to amend any design or incorporate any modifications or improvements in the work which maybe found necessary.
17 – FORCE MAJEURE
- 17.1 If the Company’s performance of this Agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the Company it shall be excused from performance to the extent of the prevention, restriction or interference, but the Company shall use its reasonable endeavors to avoid or remove the causes of non-performance and shall continue performance under this Agreement whenever such causes are removed or diminished providing it shall be capable of doing so within one month of the date the relevant circumstances beyond its control arose. If the period of one month should expire, the Company may treat this as terminated.
18 – NOT ASSIGNABLE
- 18.1 The Company reserves the right to assign the Contract (and to sub-contract all or any of its obligations).
- 18.2 This agreement is personal to the Customer who may not without the Company’s prior written consent assign any of the rights conferred by it.
19 – THIRD PARTY RIGHTS
- 19.1 No person other than the Company, any person to whom the Company assigns the Contract and the Customer shall acquire any enforceable rights under or in connection with this agreement.
20 – ENTIRE AGREEMENT
- 20.1 The Agreement sets out the entire agreement between the parties in connection with its subject matter and neither party has entered into the Agreement in reliance on any warranty, representation of statement made by the other which is not set out in the Agreement.
21 – WAIVER
- 21.1 The failure of the Company at any time or times to require performance of any provision hereof shall not affect the Company’s right to enforce such provision at a later time. No waiver by the Company of any conditions or the breach of any term covenant representation or warranty contained in this Agreement in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or be deemed to be or construed as a waiver of the breach of any other term covenant representation or warranty in this Agreement.
22 – SEVERANCE
- 22.1 In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without the illegality, in default of which at the discretion of the Company it may be severed from this Agreement in which event the remaining provisions of the Agreement shall remain in full force and effect.
23 – NOTICES
- 23.1 Any demand, notice, request or other document produced in relation to these Terms provided shall be in writing and may be served:
- 23.1.1 personally to the address specified in this Agreement or such other address as may be notified;
- 23.1.2 by registered or recorded delivery mail;
- 23.1.3 by e-mail.
- 23.2 Each party’s address for the service of Notice shall be its address specified in this Agreement or such other address as it specifies by notice to the others.
- 23.3 A Notice shall be deemed to have been served:
- 23.3.1 if it was served in person, at the time of service,
- 23.3.2 if it was served by post, 24 hours after it was posted,
- 23.3.3 if it was e-mailed, if sent during normal business hours then at the time of being sent and if outside normal business hours then on the next Business Day.
24 – LAW AND JURISDICTION
- 24.1 The law applicable to this agreement shall be the law of England;
- 24.2 The parties consent to the exclusive jurisdiction of the English courts in all matters affecting this agreement.