Industrial Water Equipment Limited “The Company” Terms and Conditions for the Supply of Goods and Services
The following words and expressions shall have the following meanings unless the context otherwise requires:
“Additional Charges” means any sums payable by the Customer to the Company in addition to the Fee, including but not limited to: transportation and travel costs, customs duties, courier and messenger costs, cost of additional work or financial penalties incurred by the Company in the provision of the Specified Services and in accordance with Clause 3.2, 3.3, 5.1, 6.2, 6.4, 6.6, 11.1.4, 11.1.5 and 11.4;
“Commencement Date” means the date the Contract is accepted in accordance with Clause 2.4;
“Company” means Industrial Water Equipment Limited, 124 North Parade, Matlock Bath, Derbyshire DE43NS (principal place of business);
“Company Representative” means the person identified as such in the Proposal or such other person as notified to the Customer from time to time;
“Contract” means the contract for the provision of the Specified Service;
“Customer” means the person, firm or company named on the Proposal to whom the Company has agreed to provide the Specified Service in accordance with these Terms;
“Delivery Date” means the estimated date of delivery indicated in the Order Acknowledgement by the Company to the Customer;
“Fee” means the amount due from the Customer to the Company for the provision of the Specified Services as stated in the Proposal and referred to at Clause 6;
"Force Majeure" means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented;
“Input Materials” means any templates documents, materi-als, literature, data or other information supplied by the Customer to the Company pursuant to the Contract and detailed in the Proposal;
“Order Acknowledgement” means the written confirmation from the Company to the Customer of the Contract;
“Output Material” means any goods, documents, materials, literature, or other products or any design supplied by the Company for the Specified Service;
“Proposal” means any proposal, estimate or quotation submitted to the Customer by the Company prior to the Contract being made;
“Restricted Information” means any information which is disclosed to each party by the other party pursuant to or in connection with the Contract (whether orally or in writing, and which is expressly stated to be confidential or marked as such);
“Specified Service” means the service to be provided by the Company to the Customer detailed in the Proposal including the Output Material;
“Terms” means these terms and conditions;
“Working Days” means any day Monday to Friday excluding statutory and public holidays.
2. Supply of the Specified Service
2.1The Company shall provide the Specified Service, to the Customer subject to these Terms which shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
2.2The Customer shall, if appropriate, at its own expense supply the Input Materials to the Company within 7 days of the Commencement Date unless otherwise stated in the Proposal to enable the Company to provide the Specified Service in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material supplied by it.
2.3 The Proposal from the Company shall not constitute an offer of the Specified Service. The Contract shall be made when the Company issues an Order Acknowledgement in accordance with Clause 2.4 below and not before unless otherwise agreed by the parties in writing.
2.4 The Company will issue an Order Acknowledgement within 5 Working Days of receipt of the letter accepting the Proposal from the Customer. The Customer shall be under a duty to bring any discrepancies to the notice of the Company within the aforementioned letter, and if the Customer fails to do so the Customer shall be bound by the details set out in the Proposal.
2.5 The Proposal from the Company shall be valid for a period of 30 Working Days unless otherwise stated in the Proposal.
2.6 A Contract, once accepted cannot be cancelled except by mutual agreement and then, in that event only in accordance with Clause 11.2.
2.7 The Company may, at any time without notifying the Customer make any changes to the Specified Service which does not materially affect the nature or quality of the Specified Service.
2.8 The Company’s employees or agents are not authorised to make any representations concerning the Specified Service unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed. Nothing in these Terms excludes the Company’s liability for fraudulent misrepresentation.
3. Change Control
3.1 If the Customer wishes to amend or vary the scope of the Specified Service after the Contract has been formed it must notify the Company in writing of its requested amendments and variations (“the Change Request”).
3.2 Within 7 Working Days of receipt of the Change Request the Company will forward to the Customer in writing the details of the impact (if any) on the Fee, any Additional Charges, the Specified Service, Delivery Date and any other effect which the Company considers the amendments or variations in the Change Request will have (“the Change Specification”).
3.3 Any agreement on the proposed amendments or variations set out in a Change Request or Change Specification shall be recorded in an agreed contract amendment and signed by both parties (“the Change Confirmation”) whereupon the Specified Service, Delivery Date, Fee and any Additional Charges shall be deemed to be amended or varied to the extent set out in the Change Confirmation.
3.4 If the parties are unable to agree a Change Confirmation within 10 Working Days of the Change Request the Customer may within 2 Working Days thereafter terminate the Contract by notice in writing to the Company, in this event Clause 11.4 shall apply.
4.1 If the Customer requires delivery of the Specified Service, the Company shall reasonably endeavour to deliver the Specified Services to the Customer at such address notified by the Customer to the Company on the date indicated by the Company or the date agreed by the parties, but the time of delivery shall not be of the essence and if despite those endeavours, the Company is unable for any reason to fulfil any delivery of the Specified Services on the Delivery Date, the Company shall not be deemed to be in breach of Contract nor have any liability to the Customer.
4.2 The Company reserves the right to deliver the Specified Services to the Customer in instalments and has the option of revising a Delivery Date if circumstances beyond the control of the Company prevent the Company keeping to the original Delivery Date. Each delivery shall constitute a separate contract and failure or defect in any one delivery shall not invalidate the Contract as to the remaining deliveries.
4.3 In the event of a failure to accept any delivery by the Customer, otherwise than by reason of the Company’s fault or in accordance with Clause 13.7, that delivery shall immediately become due for invoice and the Company shall be entitled to store the Output Materials until actual delivery and charge the Customer for the reasonable costs of storage (including insurance). The Output Material being held at the Customer’s risk.
4.4 The Company shall not be liable for any non-delivery of Output Materials (even if caused by the Company’s negligence) unless written notice is given to the Company within 7 days of the date when the Output Materials would in the ordinary course of events have been received.
4.5 Any liability of the Company for non-delivery of the Output Materials shall be limited to replacing the Output Materials within a reasonable time.
5. Risk and Title
5.1 Output Materials supplied under these Terms shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Customer shall have paid to the Company the Fee and any relevant Additional Charges or interest for the Specified Service.
5.2 Risk of damage to or loss of the Output Material shall pass to the Customer at the time of delivery (whether delivery takes place at the Customer’s premises or by way of collection by the Customer from the Company’s premises) or at the time the Output Material passes into the custody of a person on the Customer’s behalf whichever is the sooner and the Customer shall thereafter be insured accordingly. Alternatively if the Customer wrongfully fails to take delivery the risk of damage to or loss of the Output Material shall pass to the Customer when the Company has tendered delivery of the Output Material.
5.3 The title and risk of damage to or loss of the Input Material shall not pass to the Company but remain with the Customer at all times, and the Company shall have no liability therefore, except where such damage or loss is caused by the negligence of the Company.
5.4 The Customer’s rights to the possession of any Output Material supplied in accordance with a Specified Service under these Terms shall cease if they, not being a Company, commit an act of bankruptcy or, it being a company, does anything or fails to do anything which would entitle a receiver or administrator to take possession of any assets or which would entitle any person to present a petition for winding up or passes a resolution for it’s winding up.
5.5 The Customer agrees that the Company may, for the purpose of recovery of it’s Output Material supplied in accordance with a Specified Service enter upon any premises where they are stored, or where they are reasonably thought to be stored, and may repossess the same.
6. Fee and Payment Terms
6.1 The Customer shall pay the Fee for the Specified Services as stated in the Proposal, so that in any event that any Input Material or other instructions supplied by the Customer are; incomplete, incorrect, inaccurate, illegible, out of sequence, in the wrong form, or are provided to the Company too late to enable it to meet a deadline, and result in additional work being undertaken over and above that which would otherwise be required, or financial penalties being incurred by the Company, the Company reserves the right to include an Additional Charge in the invoice to compensate it for such additional work and financial penalties.
6.2 Should any Additional Charges arise at any time during the Contract the Company shall notify the Customer in writing as soon as practicable.
6.3 The Fee shall be exclusive of delivery cost save where the Proposal states to the contrary.
6.4 The Fee and any Additional Charges, quotations or estimates given by the Company shall be exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time.
6.5 Invoices will be issued by the Company on the date the risk of loss or damage passes to the Customer in accordance with Clause 5.2 above.
6.6 Unless otherwise stated the Customer shall pay the Fee and any Additional Charges for the Specified Services without any set-off or other deduction within 30 Working Days from the invoice date (“the Due Date”).
6.7 Where the Customer requests in writing a specimen design in accordance with a Proposal this shall be invoiced separately in accordance with Clauses 6.1, 6.3, 6.4 and 6.5 above.
6.8 If the Customer shall fail to make payment on the Due Date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
6.8.1 charge the Customer interest on the amount unpaid, at the rate of [4%] per annum above the base rate of the Natwest Bank Plc current from time to time. This interest is payable for the period from and including the Due Date until but excluding the date payment is received in full or of any judgment;
6.8.2 withhold delivery of any Output Material; and
6.8.3 suspend the performance of the Specified Service
until payment in full is received.
6.9 For the avoidance of doubt, all payments made and due by the Customer under this Contract shall be made in full without any set-off or counterclaim whatsoever.
7.1 Any designs required in the provision of the Specified Services are subject to approval by the Customer. The Company shall not be liable for any errors after approval has been provided by the Customer in writing.
7.2 Where the Customer is not satisfied the proof is correct, the Company will carry out any amendments and then resubmit a further proof for approval by the Customer. This process will be repeated until the Customer is satisfied that the proof is correct and has confirmed approval of the proof in writing.
7.3 Non approval shall not be deemed as a reason for payments of the Company’s invoices to be withheld. If the parties are unable to agree designs to be used in the Specified Service, either party may terminate the Contract by notice in writing to the other.
8. Intellectual Property Rights
8.1 The Company shall have no proprietary or other interest in any intellectual property rights in any Input Material.
8.2 In the provision of the Specified Service the Customer shall grant to the Company, where appropriate a non-exclusive licence to use all copyrights or other intellectual property rights subsisting in any Input Material.
8.3 The Customer warrants that any Input Material and its use by the Company for the purpose of providing the Specified Service will not infringe the copyright or other intellectual, statutory or common law rights of any third party, and the Customer shall indemnify the Company against any loss, damages, costs, expenses (including legal expenses on a full indemnity basis) or other claims arising from such infringement.
8.4 All copyrights or other intellectual property rights, subsisting in anything constituting Output Material or part thereof shall belong to the Company and shall remain so owned throughout the duration of the Contract and thereafter. Upon receipt of a payment of the Fee and any Additional Charges in full and in cleared funds the Company shall forthwith grant to the Customer a non-exclusive licence to use all copyrights or other intellectual property rights subsisting in anything constituting the Output Material or part thereof.
9. Inspection of Output Materials
9.1 The Customer shall inspect the Output Materials immediately upon delivery.
9.2 If it is apparent on delivery that the Output Materials are defective or damaged the Customer shall notify the Company by telephone within 3 days of receipt and confirm in writing detailing the serial number, details of the defect and delivery date. Clause 10.4 shall then apply.
9.3 The Customer shall not be entitled to reject the Output Material where the alleged defect or breach of Contract is so slight that it would be unreasonable for the Customer to reject the Output Material.
9.4 Upon request from the Company, the Customer shall return the Output Materials which are defective if notification is given in accordance with Clause 9.2 above.
9.5 All returned Output Materials must be in the same condition as they were on delivery to the Customer and complete with all accessories, manuals and all original packaging.
9.6 The reasonable cost of packaging and carriage of returned Output Material incurred by the Customer will be reimbursed by the Company if the Output Materials are found to be defective.
10. Warranties and Liability
10.1 Subject to the Terms set out below and subject to the proviso that the Company shall be under no liability arising from the Customer’s failure to follow the Company’s or the manufacturer’s instructions (whether oral or in writing), inappropriate storage, improper use, inadequate maintenance or misuse of the Output Materials, the Company warrants that:
10.1.1 the Output Materials will correspond with the Company’s specification for them on delivery; and
10.1.2 subject to the Customer complying with its obligations and warranties in these Terms, the Specified Service will be performed by the Company with reasonable care and skill; and
10.1.3 those Output Materials manufactured by the Company shall be free from defects in material and workmanship for a period of 12 months from delivery; and
10.1.4 where practicable, the Company agrees to assign to the Customer the benefit of any manufacturer’s warranties granted in relation to the Output Materials not manufactured by the Company.
10.2 The Company shall not be liable for a breach of any of the warranties in clause 10.1 unless:
10.2.1 the Customer gives written notice of the defect to the Company, within 3 days of the time when the Customer discovers or ought to have discovered the defect; and
10.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Output Materials and the Customer (if asked to do so by the Company) returns such Output Materials to the Company's place of business at the Customer’s cost for the examination to take place there.
10.3 The Company shall not be liable for a breach of warranties in Clause 10.1 if:
10.3.1 the Customer makes any further use of such Output Materials after giving such notice; or
10.3.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use of maintenance of the Output Materials or (if there are none) good trade practice; or
10.3.3 the Customer alters or repairs such Output Materials without the written consent of the Company.
10.4 Subject to clause 10.2 and 10.3, if any of the Output Materials do not conform with any of the warranties in clause 10.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contracts rate provided that, if the Company so requests, the Customer shall, at the Customer’s expense, return the Output Materials or the part of such Output Materials which is defective to the Company.
10.5 If the Company complies with clause 10.4 it shall have no further liability for a breach of any of the warranties in clause 10.1 in respect of such Output Materials. For the avoidance of doubt, nothing in this sub-condition shall limit the Company’s liability for death or personal injury.
10.6 Subject to Clause 10.5 above, the Company’s liability in connection with the supply of the Specified Services shall be as follows:
10.6.1 in respect of death and personal injury, the Company’s liability shall be unlimited;
10.6.2 in respect of physical damage to or loss of the Customer’s tangible property to the extent that it results from the wilful default or negligence of the Company, it’s employees, agents or contractors, the Company’s liability shall be limited to an amount of £1 million in respect of each incident or series of connected incidents;
10.6.3 in respect of all other direct loss (whether in contract, tort or otherwise the Company’s liability shall not exceed £ 1 million; and
10.6.4 in respect of any loss goodwill or for any type of consequential, special or indirect loss or damage, the Company’s liability shall be nil.
10.7 The Company shall have no liability to the Customer for any loss or damage caused to any Input Materials except where such loss or damage is caused by the negligence of the Company, in which case the provisions of Clause 10.6.3 apply.
10.8 Subject as expressly provided in these Terms, all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.9 Any claim by the Customer under this Clause 10 in respect of any Specified Services shall not entitle the Customer to withhold or delay payment in respect of any other Specified Services in respect of which no such claim has been made whether or not those Specified Services form part of the same consignment.
11.1 Without prejudice to any other right or remedy available to the Company, the Company shall be entitled to terminate the Contract if:
11.1.1 the Customer makes any voluntary arrangement with it’s creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession of or a receiver is appointed over any of the property or assets of the Customer; or
11.1.3 the Customer ceases, or threatens to cease, to carry on business; or
11.1.4 the Customer has not paid the Fee (or part thereof) or any Additional Charges in accordance with Clause 6 and such amount remains outstanding after 30 Working Days; or
11.1.5 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;
and if the Specified Services have been delivered but not paid for, the Fee including any Additional Charges shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.2 Either party may terminate or suspend the Contract at any time by giving 10 Working Days notice in writing of their intention to terminate in accordance with Clause 13.2 below.
11.3 Where the Contract is terminated under Clause 11.1, the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
11.4 For the avoidance of doubt, in the event of termination of this Contract at any time the Customer is still liable to pay the Fee and any Additional Charges of the Contract reasonably and properly incurred up to and including the date of the termination.
11.5 On termination the Customer shall be entitled to the return of the Input Material only.
12.1 Except as provided elsewhere in these Terms each party shall at all times throughout the duration of the Contract and after its termination:
12.1.1 use its best endeavours to keep all Restricted Information confidential and accordingly not to disclose any Restricted Information to any other person; and
12.1.2 not use any Restricted Information for any purpose other than the performance of the obligations under the Contract.
12.2 Any Restricted Information may be disclosed by the parties to:
12.2.1 any governmental or other authority or regulatory body; or
12.2.2 any employees of either party or any of the aforementioned persons,
to such extent only as is necessary for the purposes contemplated by the Contract, or as is required by law and subject in each case to each party using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
12.3 Any Restricted Information may be used by the parties for any purpose, or disclosed by the parties to any other person, to the extent only that:
12.3.1 it is at the date hereof, or hereafter becomes, public knowledge through no fault of the parties (provided that in doing so the disclosing party shall not disclose any Restricted Information which is not public knowledge); or
12.3.2 it can be shown by the disclosing party, to the reasonable satisfaction of the other party, to have been known to disclosing party prior to its being disclosed to it by the other party.
13.1 These Terms together with the Proposal constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
13.2 Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and any such notice shall be deemed served on the next working day following posting where the recipient’s address is in Great Britain, or on the seventh working day following posting where the recipient’s address is outside of Great Britain. Any notice sent by facsimile or delivered personally shall be deemed served on successful transmission of the facsimile or at the time of personal delivery, provided the same occurs on a working day. Any notice sent by electronic mail shall be deemed served 24 hours after being sent to the correct electronic mail address of the addressee provided the same occurs on a working day.
13.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
13.5 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a term of these Terms but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.6 No variation to these Terms shall be binding unless agreed in writing between the Customer and the Company.
13.7 If either party is prevented or delayed in the performance of any of its obligations under these Terms by Force Majeure, that party shall forthwith serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure, and shall subject to service of such notice have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for that party, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.
13.8 English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.