Terms &
Conditions of PURCHASE.
1.1
Definitions. In these
Conditions, the following definitions apply:
Business Day: a day
(other than a Saturday, Sunday or a public
holiday) when banks in London are open for
business.
Client: J C Watson
Mechanical Limited registered in England and
Wales with company number 09828997 and whose
registered office is at Coopers House, 65A
Wingletye Lane, Hornchurch, Essex RM11 3AT.
Client Materials:
has the meaning set out in clause 5.3(i).
Commencement Date:
has the meaning set out in clause 2.2.
Conditions: these
terms and conditions as amended from time to
time in accordance with clause 14.8.
Contract: the
contract between the Client and the Supplier for
the supply of Goods and/or Services in
accordance with these Conditions.
Deliverables: all
documents, products and materials developed by
the Supplier or its agents, contractors and
employees as part of or in relation to the
Services in any form or media, including without
limitation drawings, maps, plans, diagrams,
designs, pictures, computer programs, data,
specifications and reports (including drafts).
Goods: the goods
(or any part of them) set out in the Order.
Goods
Specification: any specification for the Goods,
including any related plans and drawings, that
is agreed in writing by the Client and the
Supplier.
Intellectual
Property Rights: all patents, rights to
inventions, utility models, 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, 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: the Client's
order for the supply of Goods and/or Services,
as set out in the Client's purchase order form,
or the Client’s written acceptance of the
Supplier’s quotations, or overleaf, as the case
may be.
Services: the
services, including without limitation any
Deliverables, to be provided by the Supplier
under the Contract as set out in the Service
Specification.
Service
Specification: the description or specification
for Services agreed in writing by the Client and
the Supplier.
Supplier: the
person or firm from whom the Client purchases
the Goods and/or Services.
1.2
Construction. In these
Conditions, the following rules apply:
(a)
a person includes a
natural person, corporate or unincorporated body
(whether or not having separate legal
personality);
(b)
a references to a party
includes its personal representatives,
successors or permitted assigns;
(c)
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;
(d)
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; and
(e)
a reference to writing or
written includes faxes.
2.1
The Order constitutes an
offer by the Client to purchase Goods and/or
Services from the Supplier in accordance with
these Conditions.
2.2
The Order shall be deemed
to be accepted on the earlier of:
(a)
the Supplier issuing
written acceptance of the Order; or
(b)
any act by the Supplier
consistent with fulfilling the Order,
at which point and
on which date the Contract shall come into
existence (“Commencement Date”).
2.3
These Conditions apply to
the Contract to the exclusion of any other terms
that the Supplier seeks to impose or
incorporate, or which are implied by trade,
custom, practice or course of dealing.
2.4
All of these Conditions
shall apply to the supply of both Goods and
Services except where the application to one or
the other is specified.
3.1
The Supplier shall ensure
that the Goods shall:
(a)
correspond with their
description and any applicable Goods
Specification;
(b)
be of satisfactory
quality (within the meaning of the Sale of Goods
Act 1979) and fit for any purpose held out by
the Supplier or made known to the Supplier by
the Client, expressly or by implication and in
this respect the Client relies on the Supplier's
skill and judgment;
(c)
where applicable, be free
from defects in design, materials and
workmanship and remain so for 12 months after
delivery; and
(d)
comply with all
applicable statutory and regulatory requirements
relating to the manufacture, labelling,
packaging, storage, handling and delivery of the
Goods.
3.2
The Supplier shall ensure
that at all times it has and maintains all the
licences, permissions, authorisations, consents
and permits that it needs to carry out its
obligations under the Contract in respect of the
Goods.
3.3
The Client shall have the
right to inspect and test the Goods at any time
before delivery.
3.4
If following such
inspection or testing the Client considers that
the Goods do not conform or are unlikely to
comply with the Supplier's undertakings at
clause
3.1, the Client
shall inform the Supplier and the Supplier shall
immediately take such remedial action as is
necessary to ensure compliance.
3.5
Notwithstanding any such
inspection or testing, the Supplier shall remain
fully responsible for the Goods and any such
inspection or testing shall not reduce or
otherwise affect the Supplier's obligations
under the Contract and the Client shall have
the right to conduct further inspections and
tests after the Supplier has carried out its
remedial actions.
4.1
The Supplier shall ensure
that:
(a)
the Goods are properly
packed and secured in such manner as to enable
them to reach their destination in good
condition;
(b)
each delivery of the
Goods is accompanied by a delivery note which
shows the date of the Order, the Order number
(if any), the type and quantity of the Goods
(including the code number of the Goods (where
applicable)), special storage instructions (if
any) and if the Goods are being delivered by
instalments, the outstanding balance of Goods
remaining to be delivered; and
(c)
if the Supplier requires
the Client to return any packaging material for
the Goods to the Supplier, that fact is clearly
stated on the delivery note. Any such packaging
material shall only be returned to the Supplier
at the cost of the Supplier.
4.2
The Supplier shall
deliver the Goods:
(a)
on the date specified in
the Order or, if no such date is specified, then
within 2 days of the date of the Order;
(b)
to the Client's premises
at Unit 30, Thurrock Commercial Centre, Juliette
Way, Ockendon , Essex RM15 4YG or such other
location as is set out in the Order or as
instructed by the Client before delivery
(“Delivery Location”);
(c)
during the Client's
normal hours of business on a Business Day, or
as instructed by the Client.
4.3
Delivery of the Goods
shall be completed on the completion of
unloading of the Goods at the Delivery Location.
4.4
If the Supplier:
(a)
delivers less than 100
per cent of the quantity of Goods ordered, the
Client may reject the Goods; or
(b)
delivers more than 100
per cent of the quantity of Goods ordered, the
Client may at its sole discretion reject the
Goods or the excess Goods,
and any rejected
Goods shall be returnable at the Supplier's risk
and expense. If the Supplier delivers more or
less than the quantity of Goods ordered and the
Client accepts the delivery, a pro rata
adjustment shall be made to the invoice for the
Goods.
4.5
The Supplier shall not
deliver the Goods in instalments without the
Client's prior written consent. Where it is
agreed that the Goods are delivered by
instalments, they may be invoiced and paid for
separately. However, failure by the Supplier to
deliver any one instalment on time or at all or
any defect in an instalment shall entitle the
Client to the remedies set out in clause
6.1.
4.6
Title and risk in the
Goods shall pass to the Client on completion of
delivery.
5.1
The Supplier shall from
the date set out in the Order and for the
duration of this Contract provide the Services
to the Client in accordance with the terms of
the Contract.
5.2
The Supplier shall meet
any performance dates for the Services specified
in the Order or notified to the Supplier by the
Client.
5.3
In providing the
Services, the Supplier shall:
(a)
co-operate with the
Client in all matters relating to the Services,
and comply with all instructions of the Client;
(b)
perform the Services with
the best care, skill and diligence in accordance
with best practice in the Supplier's industry,
profession or trade;
(c)
use personnel who are
suitably skilled and experienced to perform
tasks assigned to them and in sufficient number
to ensure that the Supplier's obligations are
fulfilled in accordance with this Contract;
(d)
ensure that the Services
and Deliverables will conform with all
descriptions and specifications set out in the
Service Specification and that the Deliverables
shall be fit for any purpose expressly or
impliedly made known to the Supplier by the
Client;
(e)
provide all equipment,
tools and vehicles and such other items as are
required to provide the Services;
(f)
use the best quality
goods, materials, standards and techniques and
ensure that the Deliverables and all goods and
materials supplied and used in the Services or
transferred to the Client, will be free from
defects in workmanship, installation and design;
(g)
obtain and at all times
maintain all necessary licences and consents,
and comply with all applicable laws and
regulations;
(h)
observe all health and
safety rules and regulations and any other
security requirements that apply at any of the
Client's premises;
(j)
not do or omit to do
anything which may cause the Client to lose any
licence, authority, consent or permission upon
which it relies for the purposes of conducting
its business and the Supplier acknowledges that
the Client may rely or act on the Services.
(a)
to terminate the Contract
with immediate effect by giving written notice
to the Supplier;
(b)
to refuse to accept any
subsequent performance of the Services and/or
delivery of the Goods which the Supplier
attempts to make;
(c)
to recover from the
Supplier any costs incurred by the Client in
obtaining substitute goods and/or services from
a third party;
(d)
where the Client has paid
in advance for Services that have not been
provided by the Supplier and/or Goods which have
not been delivered by the Supplier, to have such
sums refunded by the Supplier; and
(e)
to claim damages for any
additional costs, loss or expenses incurred by
the Client which are in any way attributable to
the Supplier's failure to meet such dates.
6.2
If the Goods are not
delivered by the applicable date, the Client
may, at its option, claim or deduct 10 per cent
of the price of the Goods for each week's delay
in delivery by way of liquidated damages, up to
a maximum of 50 per cent of the total price of
the Goods. If the Client exercises its rights
under this clause 6.2 it shall not
be entitled to any of the remedies set out in
clause
6.1 in respect of
the Goods' late delivery.
6.3
If the Supplier has
delivered Goods that do not comply with the
undertakings set out in clause 3.1, then,
without limiting its other rights or remedies,
the Client shall have one or more of the
following rights, whether or not it has accepted
the Goods:
(a)
to reject the Goods (in
whole or in part) whether or not title has
passed and to return them to the Supplier at the
Supplier's own risk and expense;
(b)
to terminate the Contract
with immediate effect by giving written notice
to the Supplier;
(c)
to require the Supplier
to repair or replace the rejected Goods, or to
provide a full refund of the price of the
rejected Goods (if paid);
(d)
to refuse to accept any
subsequent delivery of the Goods which the
Supplier attempts to make;
(e)
to recover from the
Supplier any expenditure incurred by the Client
in obtaining substitute goods from a third
party; and
(f)
to claim damages for any
additional costs, loss or expenses incurred by
the Client arising from the Supplier's failure
to supply Goods in accordance with clause
3.1.
6.4
These Conditions shall
extend to any substituted or remedial services
and/or repaired or replacement goods supplied by
the Supplier.
6.5
The Client's rights under
this Contract are in addition to its rights and
remedies implied by statute and common law.
The Client shall:
(a)
provide the Supplier with
reasonable access at reasonable times to the
Client's premises for the purpose of providing
the Services; and
(b)
provide such information
as the Supplier may reasonably request for the
provision of the Services and the Client
considers reasonably necessary for the purpose
of providing the Services.
8.1
The price for the Goods:
(a)
shall be the price set
out in the Order, or if no price is quoted, the
price set out in the Supplier's published price
list in force at the Commencement Date; and
(b)
shall be inclusive of the
costs of packaging, insurance and carriage of
the Goods, unless otherwise agreed in writing by
the Client. No extra charges shall be effective
unless agreed in writing and signed by the
Client.
8.2
The charges for the
Services shall be set out in the Order and
shall be the full and exclusive remuneration of
the Supplier in respect of the performance of
the Services. Unless otherwise agreed in writing
by the Client, the charges shall include every
cost and expense of the Supplier directly or
indirectly incurred in connection with the
performance of the Services.
8.3
In respect of Goods, the
Supplier shall invoice the Client on or at any
time after completion of delivery. In respect of
Services, the Supplier shall invoice the Client
on completion of the Services. Each invoice
shall include such supporting information
required by the Client to verify the accuracy of
the invoice, including but not limited to the
relevant purchase order number.
8.4
In consideration of the
supply of Goods and/or Services by the Supplier,
the Client shall pay the invoiced amounts within
60 days following the month end of the date of a
correctly rendered invoice to a bank account
nominated in writing by the Supplier.
8.5
All amounts payable by
the Client under the Contract are exclusive of
amounts in respect of valued added tax
chargeable from time to time (“VAT”). Where any
taxable supply for VAT purposes is made under
the Contract by the Supplier to the Client, the
Client 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 and/or
Services at the same time as payment is due for
the supply of the Goods and/or Services.
8.6
If the Client fails to
pay any amount properly due and payable by it
under the Contract, the Supplier shall have the
right to charge interest on the overdue amount
at the rate of 1 per cent per annum above the
base rate for the time being of National
Westminster Bank Plc accruing on a daily
basis from the due date up to the date of actual
payment, whether before or after judgment. This
clause shall not apply to payments that the
Client disputes in good faith.
8.7
The Supplier shall
maintain complete and accurate records of the
time spent and materials used by the Supplier in
providing the Services and the Supplier shall
allow the Client to inspect such records at all
reasonable times on request.
8.8
The Client may, without
limiting its other rights or remedies, set off
any amount owing to it by the Supplier against
any amount payable by the Client to the Supplier
under the Contract.
9.
Intellectual
Property Rights
9.1
In respect of the Goods
and any goods that are transferred to the Client
as part of the Services under this Contract,
including without limitation the Deliverables or
any part of them, the Supplier warrants that it
has full clear and unencumbered title to all
such items and that at the date of delivery of
such items to the Client, it will have full and
unrestricted rights to sell and transfer all
such items to the Client.
9.3
The Supplier shall obtain
waivers of all moral rights in the products,
including for the avoidance of doubt the
Deliverables, of the Services to which any
individual is now or may be at any future time
entitled under Chapter IV of Part I of the
Copyright Designs and Patents Act 1988 or any
similar provisions of law in any jurisdiction.
9.4
The Supplier shall,
promptly at the Client's request, do (or procure
to be done) all such further acts and things and
the execution of all such other documents as the
Client may from time to time require for the
purpose of securing for the Client the full
benefit of the Contract, including all right,
title and interest in and to the Intellectual
Property Rights assigned to the Client in
accordance with clause 9.2.
9.5
All Client Materials are
the exclusive property of the Client.
10.1
The Supplier shall keep
the Client indemnified in full against all
costs, expenses, damages and losses (whether
direct or indirect), including any interest,
fines, legal and other professional fees and
expenses awarded against or incurred or paid by
the Client as a result of or in connection with:
(a)
any claim made against
the Client by a third party for death, personal
injury or damage to property arising out of, or
in connection with, defects in Goods, to the
extent that the defect in the Goods is
attributable to the acts or omissions of the
Supplier, its employees, agents or
subcontractors;
(b)
any claim made against
the Client by a third party arising out of, or
in connection with, the supply of the Goods or
Services, to the extent that such claim arises
out of the breach, negligent performance or
failure or delay in performance of the Contract
by the Supplier, its employees, agents or
subcontractors; and
(c)
any claim made against
the Client for actual or alleged infringement of
a third party's Intellectual Property Rights
arising out of, or in connection with, the
manufacture, supply or use of the Goods, or
receipt, use or supply of the Services.
10.2
For the duration of the
Contract and for a period of 5 years thereafter,
the Supplier shall maintain in force, with a
reputable insurance company, professional
indemnity insurance, product liability insurance
and public liability insurance to cover the
liabilities that may arise under or in
connection with the Contract and shall, on the
Client's request, produce both the insurance
certificate giving details of cover and the
receipt for the current year's premium in
respect of each insurance.
10.3
This clause 10 shall survive
termination of the Contract.
11.1
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. 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 the Contract and shall ensure that such
employees, agents or subcontractors are subject
to obligations of confidentiality corresponding
to those which bind the Receiving Party.
11.2
Notwithstanding the
above, all work undertaken under the contract
shall be deemed to be confidential and no
information in writing, photographs or website
or social media shall be posted or placed
without the express written permission of JCWM.
No assumptions that permission is granted or
acceptable shall be assumed until received in
writing from JCWM.
This clause
11 shall survive
termination of the Contract.
12.1
Without limiting its
other rights or remedies, the Client may
terminate the Contract with immediate effect by
giving written notice to the Supplier if:
(a)
the Supplier commits a
material or persistent breach of the Contract
and (if such a breach is remediable) fails to
remedy that breach within 10 days of receipt of
notice in writing of the breach;
(c)
the Supplier 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;
(d)
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 Supplier (being a company)
other than for the sole purpose of a scheme for
a solvent amalgamation of the Supplier with one
or more other companies or the solvent
reconstruction of the Supplier;
(e)
the Supplier (being an
individual) is the subject of a bankruptcy
petition order;
(f)
a creditor or
encumbrancer of the Supplier attaches or takes
possession of, or a distress, execution,
sequestration or other such process is levied or
enforced on or sued against, the whole or any
part of its assets and such attachment or
process is not discharged within 14 days;
(g)
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 Supplier
(being a company);
(h)
a floating charge holder
over the assets of the Supplier (being a
company) has become entitled to appoint or has
appointed an administrative receiver;
(j)
any event occurs, or
proceeding is taken, with respect to the
Supplier in any jurisdiction to which it is
subject that has an effect equivalent or similar
to any of the events mentioned in clause
12.1(b) to clause
12.1(i) (inclusive);
(k)
the Supplier suspends or
threatens to suspend, or ceases or threatens to
cease to carry on, all or a substantial part of
its business; or
(l)
the Supplier (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.
12.2
Without limiting its
other rights or remedies, the Client may
terminate the Contract:
(a)
in respect of the supply
of Services, by giving the Supplier 1 weeks’
written notice; and
(b)
in respect of the supply
of Goods, with immediate effect by giving
written notice to the Supplier, in which case
the Client shall pay the Supplier fair and
reasonable compensation for any work in progress
on any other Goods at the date of termination
but such compensation shall not include loss of
anticipated profits or any consequential loss.
12.3
In any of the
circumstances in these Conditions in which the
Client may terminate the Contract, where both
Goods and Services are supplied, the Client may
instead terminate part of the Contract in
respect of the Goods, or in respect of the
Services and the Contract shall continue in
respect of the remaining supply.
13.
Consequences of
Termination
On termination of
the Contract or any part of it for any reason:
(a)
where the Services are
terminated, the Supplier shall immediately
deliver to the Client all Deliverables, whether
or not then complete and return all Client
Materials. If the Supplier fails to do so, then
the Client may without limiting its other rights
or remedies enter the Supplier's premises and
take possession of them. Until they have been
returned or delivered, the Supplier shall be
solely responsible for their safe keeping and
will not use them for any purpose not connected
with this Contract;
(b)
the accrued rights and
remedies of the parties as at termination shall
not be affected, including the right to claim
damages in respect of any breach of the Contract
which existed at or before the date of
termination; and
(c)
clauses which expressly
or by implication have effect after termination
shall continue in full force and effect.
14.1
Force majeure: Neither
party shall be liable to the other as a result
of any delay or failure to perform its
obligations under the Contract if and to the
extent such delay or failure is caused by an
event or circumstance which is beyond the
reasonable control of that party which by its
nature could not have been foreseen by such a
party or if it could have been foreseen was
unavoidable. If such event or circumstances
prevent the Supplier from supplying the Goods
and/or Services for more than 4 weeks, the
Client shall have the right, without limiting
its other rights or remedies, to terminate this
Contract with immediate effect by giving written
notice to the Supplier.
14.2
Assignment and
subcontracting:
(a)
The Supplier shall not
assign, transfer, charge, subcontract or deal in
any other manner with all or any of its rights
or obligations under the Contract without the
prior written consent of the Client.
(b)
The Client may at any
time assign, transfer, charge, subcontract, or
deal in any other manner with all or any of its
rights under the Contract and may subcontract or
delegate in any manner any or all of its
obligations under the Contract to any third
party or agent.
(a)
Any notice or other
communication required to be given to a party
under or in connection with this Contract 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.
(b)
Any notice or
communication shall be deemed to have been duly
received if delivered personally, when left at
the address referred to above or, 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.
(c)
This clause 14.3 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 Contract shall not be validly
served if sent by e-mail.
14.4
Waiver and cumulative
remedies:
(a)
A waiver of any right
under the Contract is only effective if it is in
writing and shall not be deemed to be a waiver
of any subsequent breach or default. No failure
or delay by a party in exercising any right or
remedy under the Contract or by law shall
constitute a waiver of that or any other right
or remedy, nor 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.
(b)
Unless specifically
provided otherwise, rights arising under the
Contract are cumulative and do not exclude
rights provided by law.
14.5
Severance:
(a)
If a court or any other
competent authority finds that any provision (or
part of any provision) of the Contract 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
the Contract shall not be affected.
(b)
If any invalid,
unenforceable or illegal provision of the
Contract 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.
14.6
No partnership: Nothing
in the Contract 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.
14.7
Third parties: A person
who is not a party to the Contract shall not
have any rights under or in connection with it.
Governing law and
jurisdiction: The Contract 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 and the parties irrevocably submit
to the exclusive jurisdiction of the courts of
England
