Terms & Conditions
Weldatube mechanicaL and electrical services
limited CONDITIONS OF SALE FOR GOODS AND SERVICES (INCLUDING PLANNED
MAINTENANCE SERVICES) january 2023.
1. GENERAL
1.1. These
Conditions shall be incorporated into all contracts between Weldatube
Mechanical and Electrical Services Limited (WMES) and the customer (Customer)
for the supply to the Customer of Goods and/or Services. The Customer’s
attention is particularly drawn to clause 14 (Limitation of Liability).
1.2. The
following definitions and rules of interpretation apply:
1.2.1. WMES
Warranty Period: a period of 12 months from the date of delivery of the
Goods in which a warranty supplied by WMES in respect of the Goods and/or
Services shall apply.
1.2.2. Application:
has the meaning given to it in clause 11.3.
1.2.3. Business
Day: a day other than a Saturday, Sunday or public
holiday in England.
1.2.4. Conditions:
the terms and conditions set out in this document as amended from time to time
in accordance with clause 20.4.
1.2.5 Contract:
the contract between WMES and the Customer for the supply of Goods and/or
Services which incorporates these Conditions and the Order.
1.2.6 Control:
has the meaning given in section 1124 of the Corporation Tax Act 2020, and the
expression change of Control shall be construed accordingly.
1.2.7 Delivery
Location: has the meaning given to it in clause 4.1.
1.2.8 Force
Majeure Event: has the meaning given to it in clause 19.1.
1.2.9 Goods
and/or Services: respectively, products and materials supplied and/or
services and works, including the Maintenance Services (as defined at clause
9.6), carried out by WMES under the Contract as set out in WMES’s quotation.
1.2.10 Insolvency
Event: has the meaning given in clause 17.3.2.
1.2.11 Order:
the Customer’s order for the supply of the Goods
and/or Services as set out in the Customer’s purchase order form, the
Customer’s written acceptance of WMES’s quotation or as otherwise agreed
between the parties, as the case may be.
1.2.12 Price:
the price payable by the Customer for the supply of the Goods and/or Services
in accordance with clause 11.
2. FORMATION OF CONTRACT
2.1. The
Order constitutes an offer by the Customer to purchase Goods and/or Services in
accordance with these Conditions. The Customer is responsible for ensuring that
the terms of the Order are complete and accurate.
2.2. The
Order shall only be deemed accepted when WMES has received satisfactory credit
references in respect of the Customer and issues a written acceptance of the
Order, at which point the Contract shall come into existence
("Commencement Date").
2.3. 2.3
Any samples, drawings, descriptive matter or
advertising issued by WMES and any descriptions of the Goods or illustrations
or descriptions of the Services contained in the WMES’s catalogues, brochures
or other advertising materials are issued or published for the sole purpose of
giving an approximate idea of the Services and/or Goods described in them. They
shall not form part of the Contract nor have any contractual force.
2.4 These
Conditions 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.
2.5 Any
quotation given by WMES shall not constitute an offer. A quotation shall only
be valid for a period of 30 Business Days from its date of issue.
3. GOODS
3.1. The
Goods are as described in WMES’s quotation. WMES reserves the right to modify
the Goods to be supplied including if required by any applicable statutory or
regulatory requirement. WMES shall notify the Customer in any such event.
3.2. Particulars of dimensions, capacities, performance ratings,
specifications, drawings and other data included in manufacturers’ catalogues,
price lists or other documents supplied by WMES constitute only an approximate
guide and shall not be of any contractual effect.
4. DELIVERY OF GOODS
4.1. WMES
will deliver or arrange delivery of the Goods to the Customer or to the
Customer’s agent to the location set out in the Order or such other location as
the parties may agree ("Delivery Location"). Delivery of the Goods
shall be completed on the completion of unloading of the Goods at the Delivery
Location.
4.2. WMES
shall use reasonable endeavours to deliver or arrange delivery of the Goods on
the dates specified by the Customer or within a reasonable time thereof
provided always that the time for delivery shall not be of the essence of the
Contract. WMES shall not be liable for any loss or damage whatsoever arising
directly or indirectly from any failure to effect delivery within such periods.
4.3. The
Customer shall accept deliveries of Goods by instalments, which shall be
invoiced and paid for separately. Each instalment shall constitute a separate
Contract. Any delay in delivery or defect in an instalment shall not entitle
the Customer to cancel any other instalment.
4.4. If WMES
fails to deliver the Goods, its liability shall be limited to the costs and
expenses incurred by the Customer in obtaining replacement goods of similar
description and quality in the cheapest market available, less the price of the
Goods. WMES shall have no liability for any failure to deliver the Goods to the
extent that such failure is caused by a Force Majeure Event or the Customer’s
failure to provide WMES with adequate delivery instructions for the Goods or
any relevant instruction related to the supply of the Goods.
5. QUALITY OF GOODS
5.1. WMES
warrants that on delivery and if applicable in accordance with the WMES
Warranty period the Goods shall:
5.1.1. conform
in all material respects with their description;
5.1.2. be free from material defects in design, material
and workmanship;
5.1.3. be of satisfactory quality (within the meaning of the Sale
of Goods Act 1979).
5.2. Subject
to clause 5.3, WMES shall, at its option, repair or replace any defective
Goods, or refund the price of the defective Goods in full if:
5.2.1. the
Customer gives notice in writing in accordance with the terms of the WMES
Warranty where applicable or otherwise within 28 days of discovery that some or
all of the Goods do not comply with the warranty set
out in clause 5.1;
5.2.2. WMES is given a reasonable opportunity of examining such
Goods; and
5.2.3. the Customer (if asked to do so by WMES )
returns such Goods to WMES at WMES’s cost.
5.3. WMES
shall not be liable for the Goods’ failure to comply with the warranty in
clause 5.1 if:
5.3.1. the
Customer makes any further use of such Goods after giving a notice in
accordance with clause 5.2;
5.3.2. the defect arises because the Customer failed to follow WMES’s
oral or written instructions as to the storage, installation, commissioning,
use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3. the defect arises as a result of WMES
following any drawing, design or specification supplied by the Customer;
5.3.4. the Customer alters or repairs such Goods without the
written consent of WMES;
5.3.5. the defect arises as a result of
fair wear and tear, wilful damage, negligence, or abnormal working conditions;
or
5.3.6. the Goods differ from their description as
a result of changes made to ensure they comply with applicable statutory
or regulatory standards.
5.4. Except as
provided in this clause, WMES shall have no liability to the Customer in
respect of the Goods’ failure to comply with the warranty set out in clause
5.1.
5.5. These
Conditions shall apply to any repaired or replacement Goods supplied by WMES.
6. TITLE AND RISK
6.1. Risk
in the Goods shall pass to the Customer on completion of delivery of such Goods
at the Delivery Location.
6.2. Title to the Goods shall pass to the Customer at the earlier
of:
6.2.1. WMES
receiving payment in full (in cash or cleared funds) for the Goods supplied
under the Contract; and
6.2.2. the Customer reselling the Goods, in which case title to the
Goods shall pass to the Customer at the time specified in clause 6.4.
6.3. Until
title to the Goods has passed to the Customer, the Customer shall:
6.3.1. hold
the Goods in a fiduciary capacity as bailee of WMES;
6.3.2 store
the Goods for which it has not paid separately from all other goods held by the
Customer so that they are clearly identifiable as the property of WMES;
6.3.3 acknowledge
and agree that if the Customer incorporates or allows the incorporation of the
Goods into other goods or products in any way, legal and beneficial title to
those other goods, both during the process of incorporation and thereafter
shall vest forthwith in WMES, and the Customer shall hold them in a fiduciary
capacity as bailee for WMES. If WMES so requires the Customer shall observe the
conditions regarding storage in clause 6.3.2 above as if such other goods were
the Goods originally supplied. The parties agree that incorporation of the
Goods into other goods or products in any way is not intended to extinguish WMES’s
title to the Goods as provided for under these Conditions;
6.3.4 not remove, deface or obscure any
identifying mark or packaging on or relating to the Goods;
6.3.5 obtain
an endorsement of WMES’s interest in the Goods on its insurance policy, subject
to the insurer being willing to make the endorsement, and on request allow WMES
to inspect the insurance policy;
6.3.6 notify
WMES immediately if it becomes subject to an Insolvency Event;
6.3.7 give WMES
such information relating to the Goods as WMES may require from time to time;
and
6.3.8 permit
or procure permission for WMES, its agents and authorised representatives to
enter the premises of the Customer or of any third party where the Goods are stored
in order to inspect whether the Customer is in
compliance with this clause 6.3 and/or recover the Goods.
6.4 Subject
to clause 6.5, the Customer may resell or use the Goods in the ordinary course
of its business (but not otherwise) before WMES receives payment for the Goods.
However, if the Customer resells the Goods before that time:
6.4.1 it
does so as principal and not as WMES’s agent; and
6.4.2 title to the Goods shall pass from WMES to the Customer
immediately before the time at which resale by the Customer occurs.
6.5 If
before title to the Goods passes to the Customer the Customer, on receipt of
notice from WMES or on the happening of any of the events set out under clause
17.3 below, then without limiting any other right or remedy WMES may have, WMES
may at any time:
6.5.1 require
the Customer to deliver up all Goods in its possession which have not been
resold, or irrevocably incorporated into another product; and
6.5.2 if the Customer fails to do promptly, have the right without
notice during normal business hours to enter upon the land or buildings of the
Customer or any subsequent purchaser of the Customer or third party where the
Goods are stored in order to take possession of the Goods.
7. CLAIMS IN TRANSIT
7.1. WMES
will not accept any responsibility whatsoever for loss, damage, discrepancy or shortfall to the Goods in transit if carried
by a carrier nominated or requested by the Customer or by a carrier who is the
servant or agent of the Customer. Claims shall be made immediately by the
Customer to the carrier.
7.2. Save
as provided above, WMES will repair, or at its option, replace free of charge,
any part of the Goods lost or damaged in transit provided that WMES and the
carrier are given notice of such loss or damage within the time required by the
carrier’s conditions of carriage or, where deliveries are made by WMES’s own
transport, within three days of the receipt of the Goods or on the day upon
which the Goods should have arrived had they not been lost and provided that
any damaged Goods or part thereof are returned carriage paid by the Customer to
WMES.
8. ACCEPTANCE PROCEDURE
8.1. Goods
shall be deemed to have been accepted by the Customer on delivery unless the
Customer shall notify WMES in writing of non-acceptance of the Goods within
three days of delivery.
8.2. Completion
of and acceptance of the Services by the Customer (which the Customer shall not
be entitled unreasonably to refuse) shall be evidenced either by (i) the signature of a certificate of hand-over by an
authorised representative of WMES and by the Customer or its representative; or
(ii) WMES otherwise notifying the Customer on completion of the Services. In
respect of clause 8.2(ii), the Customer has three (3) days from the date of
such WMES notification in which to reject completion of the Services in writing
("Rejection Period"). Completion of the Services shall be deemed to
be accepted by WMES automatically on expiry of the Rejection Period if the
Customer does not reject completion of the Services in writing during the
Rejection Period.
9. SERVICES
9.1. The
Services shall be as identified in the quotation. WMES reserves the right to
amend any specification for the Services if necessary
including to comply with any applicable law or regulatory requirement. WMES
shall notify the Customer in any such event.
9.2. WMES
warrants to the Customer that the Services will be provided using reasonable
skill and care. WMES shall use all reasonable endeavours to meet any
performance dates for the Services agreed with the Customer, but any such dates
shall be estimates only and time shall not be of the essence for the performance
of the Services.
9.3. WMES
shall not be liable for any delay in performing the Services that is caused by
a Force Majeure Event or the Customer’s failure to provide WMES with adequate
delivery instructions or any other instructions that are relevant to the
performance of the Services.
9.4. In
order that WMES can carry out the Services the Customer shall provide access to
the relevant premises or site and ensure at all times
that the working environment is acceptable to the health and safety of WMES’s
employees, agents and subcontractors. The Customer shall indemnify WMES against
all costs, claims, liabilities and expenses incurred
by WMES arising from or in connection with any personal injury to or death of
any of its employees, agents or subcontractors which is occasioned directly or
indirectly by any act or omission (whether negligent or not) on the part of the
Customer, its agents or employees.
9.5. WMES
shall have the right to refuse to perform its obligations under the Contract
where to do otherwise would bring WMES’s employees, agents
or sub-contractors into contact with any hazardous substances not
previously informed of to WMES or where any hazardous
substance was not reasonably apparent from any inspection that WMES has made
ahead of WMES issuing its quotation for the Goods and/or Services.
9.6. In the
event of WMES being called to undertake emergency Services due to; the improper
operation of an installation, the failure to accept and/or implement
recommendations relating to the operation and performance of an installation,
the effect on an installation of natural events such as flooding, lightning,
the result of events such as war, invasion, terrorism, strikes, civil
commotion, due to the result of any matter beyond the control of WMES or as
otherwise requested by the Customer, WMES shall charge the Customer at the WMES
charge out rate for such a Service current at the date of the call out.
9.7 Maintenance
Services. Where the Contract is for WMES to undertake Services relating to the
maintenance of an installation ("Maintenance Services"), the
following additional provisions shall apply:
9.7.1 unless
agreed in writing otherwise, or in the case of emergency call outs, Maintenance
Services will be performed during the hours of 8.00 and 17.00, Monday to Friday;
9.7.2 the
stopping and starting of an installation shall not be included as part of the
Maintenance Services, or the opening and closing of valves, dampers or
regulators installed to protect equipment against damage, or the defrosting of
evaporators or for obtaining the proper operation of the installation;
9.7.3 WMES
will make recommendations in regard to such matters as
repairs, refrigerants and supplies for the proper and efficient operation and
performance of an installation. If the Customer fails to accept and/or
implement such recommendations then WMES will not be
responsible for any failures in performance or inefficiencies in operation;
9.7.4 WMES
shall not be liable for the day to day operation of the installation or for the
cost of removing or reinstating of any part of any structure in which the
installation is contained or to which it is attached or otherwise held and
which is necessary to incur in order to undertake the Services, and to the
extent that it is necessary for WMES itself to incur such cost in order to
fulfil its obligations under the Contract, the Customer shall be liable for WMES’s
reasonable costs in addition to the payment of sums otherwise due from the
Customer for the provision of the Maintenance Services;
9.7.5 the
price agreed in the Contract for the Maintenance Services will be based on the
types and rates of cost to WMES of undertaking such Services. WMES reserves the
right to be paid a reasonable variation in the Contract price where the costs
to WMES of undertaking the Maintenance Services increase ahead of completion of
the Contract. Any such variation shall be payable in addition to the Contract
price and shall be due following notification by WMES to the Customer of the
details that apply; and
9.7.6 notwithstanding
any other provision in the Contract, in the case of Maintenance Services the
Contract shall remain in effect for one year from the date of the Contract and
shall continue from year to year thereafter unless terminated by the giving of
30 days’ notice in writing by one party to the other of the intention to
terminate and which notice period must expire ahead of each yearly anniversary.
In the event of termination, the provisions of clause 18 shall apply.
10. CUSTOMER’S OBLIGATIONS
10.1. The
Customer shall:
10.1.1. ensure that
the terms of the Order are complete and accurate;
10.1.2. co-operate with WMES in all matters relating to the Goods
and/or Services;
10.1.3. provide WMES, its employees, agents, consultants
and subcontractors, with access to the Customer’s premises, office
accommodation and other facilities as reasonably required by WMES to supply the
Goods and/or Services;
10.1.4. prepare the Customer’s premises for the supply of the
Services if required by WMES;;
10.1.5. provide WMES with such information and materials as WMES
may reasonably require in order to supply the Goods and/or Services, and ensure
that such information is complete and accurate in all material respects;
10.2. If WMES’s
performance of any of its obligations under the Contract is prevented or
delayed by any act or omission by the Customer or failure by the Customer to
perform any relevant obligation (Customer Default):
10.2.1. without
limiting or affecting any other right or remedy available to it, WMES shall
have the right to suspend performance of the Services 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 in each case to the extent
the Customer Default prevents or delays WMES’s performance of any of its obligations;
10.2.2. WMES shall not be liable for any costs or losses sustained
or incurred by the Customer arising directly or indirectly from WMES’s failure
or delay to perform any of its obligations as set out in this clause 11.2; and
10.2.3. the Customer shall reimburse WMES on written demand for any
costs or losses sustained or incurred by WMES arising directly or indirectly
from the Customer Default.
11. PAYMENT
11.1. The
Price for the Goods and/or Services shall be the price as agreed in the Order.
The Price is exclusive of:
11.1.1 amounts
in respect of value added tax ("VAT") and all other applicable taxes
and duties, which the Customer shall pay to WMES at the prevailing rate; and
11.1.2 the costs and charges of packaging, insurance
and transport of the Goods, which the Customer shall pay to WMES.
11.2 WMES
may require payments to be made by instalments on the basis
of a percentage of the total Price or as otherwise agreed in writing
with the Customer.
11.3 Payments
shall become due to WMES on the date of receipt by the Customer of WMES’s
application for payment ("Application"). Each Application shall set
out the amount that WMES considers to be due and the basis upon which that
amount has been calculated.
11.4 No
later than 5 days after each amount becomes due, the Customer shall notify WMES
of the sum that the Customer considers to have been
due at the payment due date in respect of the amount of the relevant
Application and the basis upon which that amount has been calculated.
11.5 The
final date for payment by the Customer shall be 30 days after the relevant
amount becomes due.
11.6 Unless
the Customer has served a notice under clause 11.7, it shall pay WMES the sum
referred to in the Customer’s notice under clause 11.4 (or if the Customer has
not served such a notice, then the sum referred to in WMES’s Application and in
either case, payment shall be made without deductions) (together referred to as
"the Notified Sum") on or before the final date for payment of the
relevant amount.
11.7 Not
less than 7 days before the final date for payment, the Customer may give WMES
notice that it intends to pay less than the Notified Sum and any such notice
shall specify the sum that the Customer considers to be due on the date the
notice is served and the basis upon which that sum is calculated. The Customer
must pay at least the sum so notified and without deduction.
11.8 WMES
reserves the right to charge interest and compensation under the Late Payment
of Commercial Debts (Interest) Act 1998 and it is agreed that the rights
provided under the said Act shall apply after any judgement or binding
determination as well as before.
11.9 If
for any reason any payment of an amount due is not made by the final date for
payment, WMES shall be entitled to:
11.9.1 be
paid on an indemnity basis for any costs it incurs in recovering money due
under the Contract (and the costs of recovering such costs) including its
administrative costs and any costs incurred with lawyers or debt collection
agencies and/or;
11.9.2 notwithstanding any previously agreed credit periods, be
paid on all Applications already delivered to the Customer whether or not the
final date for payment in each case has been reached and/or;
11.9.3 be paid a reasonable proportion in respect of Goods
delivered or of Services undertaken but not yet due for payment as if such
amounts were already due.
11.10 In
the event of the Customer being in default of payment of any amount due to WMES
under the Contract then on giving the Customer 7 days’ notice in writing
specifying the grounds for so doing, WMES may suspend performance of any or all of its obligations under the Contract. WMES shall resume
its obligations under the Contract within a reasonable time after receipt of
any outstanding payment. Any suspension arising under this clause shall entitle
WMES to payment of its reasonable costs and expenses incurred as a result and
the period of suspension shall be disregarded in computing any agreed date for
completion of WMES’s obligations and WMES shall not otherwise be liable to the
Customer in regard to such suspension.
11.11 WMES
reserves the right to, by giving notice to the Customer at any time before
delivery, increase the price to reflect any increase in the cost of the Goods
and/or Services that is due to:
11.11.1 any
factor beyond WMES’s control (including foreign exchange fluctuations,
increases in taxes and duties and increases in labour, materials and other manufacturing
costs) ;
11.11.2 any request by WMES to change the delivery date(s),
quantities or types of Goods and/or Services ordered; or
11.11.3 any delay caused by any instructions of the Customer or
failure of the Customer to give WMES adequate or accurate information or
instructions.
11.12 The
Customer shall pay all amounts due under the Contract in full without any
set-off, counterclaim, deduction or withholding (except for any deduction or
withholding required by law). WMES may at any time, without limiting any other
rights or remedies, set off any amount owing to it by the Customer against any
amount payable by WMES to the Customer.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. All
intellectual property rights in or arising out of or in connection with the
Contract (other than intellectual property rights in any materials provided by
the Customer) shall be owned by WMES.
12.2. Subject
to payment of all sums due to WMES under the Contract, WMES grants to the
Customer, or shall procure the direct grant to the Customer of, a fully
paid-up, worldwide, non-exclusive, royalty-free licence during the term of the
Contract to copy and modify the materials (excluding materials provided by the
Customer) for the purpose of receiving and using the Goods and Services in its
business.
12.3. The
Customer shall not sub-license, assign or otherwise transfer the rights granted
by clause 13.2.
12.4. The
Customer grants WMES a fully paid-up, non-exclusive, royalty-free
non-transferable licence to copy and modify any materials provided by the
Customer to WMES for the purpose of performing its obligations under the
Contract.
13. DATA PROTECTION AND DATA PROCESSING
13.1 For
the purposes of this Clause 13, the following definitions shall apply:
"Business
Contact Data" means the business contact information of personnel engaged by
either party to the Contract, specifically the name, business telephone number,
business email address, business postal address and/or the job role or title of
such personnel;
"Data
Controller" has the meaning given to "controller" in the Data
Protection Act 2018;
"Data
Protection Laws" the Data Protection Act 2018, GDPR, the Privacy and Electronic
Communications (EC Directive) Regulations 2003 and any relevant law implemented
as a result of GDPR (each as amended, updated, superseded or re-enacted from
time to time);
"Data
Subject" has the meaning given in the Data Protection Act 2018 or (as
applicable) the GDPR;
"GDPR" means
the General Data Protection Regulation (EU) 2016/679 on the protection of
natural persons with regard to the processing of personal data and on the free
movement of such data;
"Information
Requirements" means the information mandated to be supplied to Data Subjects in
accordance with GDPR Article 13 and/or 14 (as applicable), at a time, in a
format, and containing the content required under Data Protection Laws and the
relevant Information Commissioner guidance issued by the Article 29 Working
Party/EDPB and/or the UK Supervisory Authority;
"Personal
Data" has the meaning given in the Data Protection Act 2018 or (as
applicable) the GDPR;
"processing" has
the meaning given in the Data Protection Act 2018 or (as applicable) the GDPR
and "process" and "processed" have corresponding meanings;
"sub-processor" means
a third party who processes Personal Data on a party’s behalf.
Roles of
the parties
13.2 The
parties acknowledge and agree that for the purposes of the Contract:
13.2.1 each
party is a Data Controller for the Personal Data it processes in connection
with the Contract;
13.2.2 each
party is responsible for its own compliance with Data Protection Laws with
regards to its processing of Personal Data; and
13.2.3 the
only Personal Data intended to be transferred between the parties under the
Contract is Business Contact Data.
Obligations
13.3 If a
party (the "Disclosing Party") discloses Business Contact Data to the
other party (the "Recipient Party"), the Disclosing Party shall:
13.3.1 ensure
that the transmission is lawful; and
13.3.2 ensure that the appropriate Information Requirements have
met in respect of the applicable Data Subjects.
13.4 The
Recipient Party shall only process the Disclosing Party’s Business Contact Data
in compliance with Data Protection Laws and only to the extent necessary to
achieve the purposes of effecting the Contract and performing its obligations
under the Contract or for compliance with a legal obligation.
13.5 The
Customer shall not disclose WMES’s Business Contact Data to third parties for
the use of or purposes of third party marketing
without the applicable Data Subject’s express consent.
13.6 The
parties shall only transfer Business Contact Data outside of the European
Economic Area with an appropriate safeguarding mechanism in place under GDPR
Chapter V (international transfers).
13.7 In
the event that clause 13.2.3 becomes or will become inaccurate or incomplete
before the expiry or termination of the Contract the parties agree to negotiate
in good faith as soon as reasonably practicable contractual terms which will:
13.7.1 reflect
the Personal Data being transmitted between the parties; and
13.7.2 ensure that the transmission and processing of such Personal
Data complies with all applicable requirements under Data Protection Laws.
14. LIMITATION OF LIABILITY: THE CUSTOMER’S
ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1. Nothing
in these Conditions shall limit or exclude WMES’s liability for:
14.1.1. death
or personal injury caused by its negligence, or the negligence of its
employees, agents or subcontractors;
14.1.2. fraud or fraudulent misrepresentation;
14.1.3. breach of the terms implied by section 2 of the Supply of
Goods and Services Act 1982 (title and quiet possession);
14.1.4. breach of the terms implied by section 12 of the Sale of
Goods Act 1979 (title and quiet possession); or
14.1.5. defective products under the Consumer Protection Act
1987.
14.2. Subject
to clause 14.1, WMES shall not be liable to the Customer, whether in contract,
tort (including negligence), for breach of statutory duty, or otherwise,
arising under or in connection with the Contract for:
14.2.1. loss
of profits;
14.2.2. loss
of sales or business;
14.2.3. loss
of agreements or contracts;
14.2.4. loss
of anticipated savings;
14.2.5. loss
of use or corruption of software, data or information;
14.2.6. loss
of or damage to goodwill; and
14.2.7. any
indirect or consequential loss.
14.3. Subject
to clause 14.1, WMES’s total liability to the Customer, whether in contract,
tort (including negligence), breach of statutory duty or otherwise, arising
under or in connection with the Contract, shall be limited to the price to be
paid under the Contract.
14.4. The
terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms
implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to
the fullest extent permitted by law, excluded from the Contract.
14.5. This
clause shall survive termination of the Contract.
15. COLLATERAL WARRANTIES
15.1 WMES is under no obligation to provide a collateral warranty to
any third party.
15.2 In
circumstances where WMES agrees to provide a collateral warranty, it will do so
only where the following conditions are met:
15.2.1 the
collateral warranty must be set out in writing;
15.2.2 prior to execution of the collateral warranty, the Customer
must pay an additional sum equivalent to 1% of the Price for each collateral
warranty; and
15.2.3 in any event, the collateral warranty must include clauses
providing that WMES: (1) owes no greater duty to the beneficiary that it owes
to the Customer under the Contract; (2) may rely upon any limitation or
defence arising from the Contract; and (3) shall have no liability after
the expiry of six (6) years from the performance of WMES’s obligations
under the Contract; and a net contribution clause.
16. SUSPENSION
If the
Customer fails to comply with any of the terms of the Contract whether a
condition or warranty is expressed or implied or if any of the events set out
in clause 17.2 occurs or if WMES reasonably believes that they might occur and
notifies the Customer accordingly, then, without limiting any other right or
remedy, WMES may suspend all further obligations under the Contract or under
any other contract between the Customer and WMES without incurring any
liability to the Customer, and all outstanding sums shall become immediately
due and WMES may apply the rights under clause 18. In such an event WMES will
be discharged from further performance of the Contract (subject to the end of
any period of suspension as applicable following the rectification of the terms
of the Contract to WMES’s reasonable satisfaction) and the Customer shall
forthwith upon demand pay to WMES all costs and expenses and overheads incurred
in connection with the Contract together with any loss or profit and all sums
due to WMES hereunder.
17. TERMINATION
17.1. Without
affecting any other right or remedy available to it, either party may terminate
the Contract by giving the other party not less than one months’ written
notice.
17.2. If
the Customer terminates the Contract under clause 17.1, it shall pay WMES fair
and reasonable compensation for any work in progress on the Services at the
time of termination, including compensation for loss of anticipated profits and
consequential loss.
17.3.1. If the
other party commits a material breach of its obligations under the Contract and
(if such breach is remediable) fails to remedy that breach within 28 days after
receipt of notice in writing to do so;
17.3.2. If the
other party is declared or becomes insolvent, applies for or has a moratorium
declared in respect of any of its indebtedness, takes any step or action in
connection with its entering administration, provisional liquidation or any
composition or arrangement with its creditors (other than in relation to a
solvent restructuring), being wound up (whether voluntarily or by order of the
court, unless for the purpose of a solvent restructuring), having a receiver
appointed to any of its assets or ceasing to carry on business (an "Insolvency
Event");
17.3.3 the
other party suspends, or threatens to suspend, or ceases or threatens to cease
to carry on all or a substantial part of its business; or
17.3.4 the
other party’s financial position deteriorates to such an extent that in the
terminating party’s opinion the other party’s capability to adequately fulfil
its obligations under the Contract has been placed in jeopardy.
17.4 Without
affecting any other right or remedy available to it, WMES may terminate the
Contract with immediate effect by giving written notice to the Customer if:
17.4.1 the
Customer fails to pay any amount due under the Contract on the due date for
payment and fails to pay all outstanding amounts within 14 Business Days after
being given written notice to do so; or
17.4.2 there is a change of Control of the Customer.
18. CONSEQUENCES OF TERMINATION
18.1. On
termination of the Contract:
18.1.1. the
Customer shall immediately pay to WMES all of WMES’s
outstanding unpaid applications for payment and interest and, in respect of
Services and Goods supplied but for which no application has been submitted, WMES
shall submit an application, which shall be payable by the Customer immediately
on receipt;
18.1.2. the Customer shall return all Goods which have not been
fully paid for. If the Customer fails to do so, then WMES may enter the
Customer’s premises and take possession of them. Until they have been returned,
the Customer shall be solely responsible for their safe keeping and will not
use them for any purpose not connected with this Contract.
18.2. Termination
or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued
up to the date of termination or expiry, including the right to claim damages
in respect of any breach of the Contract which existed at or before the date of
termination or expiry.
18.3. Any
provision of the Contract that expressly or by implication is intended to have effect
after termination or expiry shall continue in full force and effect.
19. FORCE MAJEURE AND COVID-19
19.1 Neither
party shall be liable for any failure or delay in performing its obligations
under the Contract to the extent that such failure or delay is caused by a
Force Majeure Event. A "Force Majeure Event" means any event which
hinders, delays or prevents performance of a party’s obligations and which is
either beyond that party’s reasonable control, which by its nature could not have
been foreseen, or, if it could have been foreseen, was unavoidable, including
strikes, lock-outs or other industrial disputes (whether involving its own
workforce or a third party’s), failure or interruption of energy sources, other
utility service or transport network, acts of God, war, threat of or
preparation for war, armed conflict, terrorism, riot, civil commotion,
interference by civil or military authorities, sanctions, embargo, export or
import restriction, quota or prohibition, breaking off of diplomatic relations,
national or international calamity, malicious damage, breakdown of plant or
machinery, nuclear, chemical or biological contamination, sonic boom,
explosion, collapse of building structures, fire, flood, drought, storm,
earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar
events, natural disasters or extreme adverse weather conditions, or default of
suppliers or subcontractors or any law or any action taken by a government or
public authority.
19.2 WMES
shall have no liability to the Customer in the event that
a Covid-19 event delays or prevents WMES from supplying the Goods and/or
Services and WMES may remove any affected Goods and/or Services from the scope
of the Contract as a result of the Covid-19 event.
19.3 A
"Covid-19 event" shall be limited to the following:
19.3.1 closure of WMES’s premises;
19.3.2 staff shortage due to any quarantining or self-isolation;
19.3.3 shortage of any electricity or other utility; and/or
19.3.4 embargo and/or any other trade restrictions.
provided that in each case the event occurs due to any mandatory measures
introduced by a government and/or local or regulatory authority intended to
prevent or delay the spread of Covid-19.
20. GENERAL
20.1. Assignment
and other dealings. WMES may at any time assign, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The
Customer shall not assign, transfer, mortgage, charge, subcontract, declare a
trust over or deal in any other manner with any of its rights and obligations
under the Contract without the prior written consent of WMES.
20.2. Notices.
Any notice or other communication given to a party under or in connection with
the Contract shall be in writing and shall be delivered by hand or by pre-paid
first-class post or other next working day delivery service at its registered
office (if a company) or its principal place of business (in any other case);
or sent by fax to its main fax number or sent by email to the address specified
in the Contract or otherwise specified by either party to the other.
20.3. Any
notice or other communication shall be deemed to have been received: if
delivered by hand, on signature of a delivery receipt or at the time the notice
is left at the proper address; if sent by pre-paid first-class post or other
next working day delivery service, at 9.00 am on the second working day after
posting or at the time recorded by the delivery service; or, if sent by fax or
email, at 9.00 am on the next working day after transmission. This clause does
not apply to the service of any proceedings or other documents in any legal
action or, where applicable, any other method of dispute resolution.
20.4. Variation.
Except as set out in these Conditions, no variation of the Contract, including
the introduction of any additional terms and conditions, shall be effective
unless it is agreed in writing and signed by WMES. The Customer shall not vary
the Contract, the Goods or the Services except as
directed in writing by WMES or with WMES’s prior written consent.
20.5. Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the
minimum extent necessary to make it valid, legal and enforceable. If such
modification is not possible, the relevant provision or part-provision shall be
deemed deleted. Any modification to or deletion of a provision or
part-provision under this clause shall not affect the validity and
enforceability of the rest of the Contract.
20.6. Waiver.
A waiver of any right or remedy under the Contract or by law is only effective
if given in writing and shall not be deemed a waiver of any subsequent breach
or default. A failure or delay by a party to exercise any right or remedy
provided under the Contract or by law shall not constitute a waiver of that or
any other right or remedy, nor shall it prevent or restrict any further
exercise of that or any other right or remedy. No single or partial exercise of
any right or remedy provided under the Contract or by law shall prevent or
restrict the further exercise of that or any other right or remedy.
20.7. No
partnership or agency. Nothing in the Contract is intended to, or shall be
deemed to, establish any partnership or joint venture between the parties,
constitute either party the agent of the other, or authorise either party to
make or enter into any commitments for or on behalf of
the other party.
20.8. Entire
agreement. The Contract constitutes the entire agreement between the parties
and supersedes and extinguishes all previous agreements, promises, assurances,
warranties, representations and understandings between
them, whether written or oral, relating to its subject matter.
20.9. Each party
acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently or negligently)
that is not set out in the Contract. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation or negligent
misrepresentation based on any statement in the Contract.
20.10. Third parties rights. The Contract does not give rise to any
rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of the Contract.
20.11. Governing
law. The Contract and any dispute or claim (including non-contractual disputes
or claims) arising out of or in connection with it or its subject matter or
formation shall be governed by and construed in accordance with the law of
England and Wales.
20.12. Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall
have exclusive jurisdiction to settle any dispute or claim (including
non-contractual disputes or claims) arising out of or in connection with the
Contract or its subject matter or formation.
20.13 Disputes.
Subject to either party’s right to adjudicate at any time, the parties shall
use their reasonable endeavours to resolve any dispute or difference between
them through negotiation or mediation.
20.14 Adjudication.
Notwithstanding any other provision of the Contract either party may refer a
dispute arising under the Contract to adjudication at any time under Part I of
the Scheme for Construction Contracts (England and Wales) Regulations, which
Part shall take effect as if it was incorporated into this clause. The
adjudicator shall be appointed by: The Royal Institute of Chartered Surveyors.