1.1 These terms apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. You waive any right you may otherwise have to rely on any term endorsed upon, delivered with or contained in any of your documents that is inconsistent with these terms. No addition, alteration or substitution of these terms will bind us or form part of this order unless they are expressly accepted in writing by a person authorised to sign on our behalf.
1.2 This order shall be deemed to be accepted on the earlier of: you issuing a written acceptance of this order; and you doing any act consistent with fulfilling this order. Any order acknowledgement stating terms other than these will not be valid unless agreed as per condition 1.1.
1.3 If the goods or services which are the subject of this order are to be used in carrying out or otherwise in connection with another contract specified overleaf, this order shall also be subject to such other contract insofar as the terms of such other contract are applicable and do not conflict with these terms.
1.4 Nothing in these terms shall prejudice any condition or warranty expressed or implied by law, or any legal remedy to which we may be entitled, in relation to the goods or services which are the subject of this order.
2.1 In regard to performance of this order by you, time is of the essence. The goods and/or services performed shall be delivered on the date and at the place and in accordance with the instructions specified in the order, during normal business hours unless previously arranged otherwise.
2.2 If instead of a date for delivery, a period for delivery is specified, the period for delivery shall commence on the date on which you receive our written order.
2.3 If, as a result of any failure by you to deliver the goods or perform the services in accordance with the order and these terms, we incur additional cost and expense (howsoever arising) we will be entitled to recover from you or set off and deduct from any sums owing to you under this or any other order at that time, at our option, subject always to the provisions of condition 11.2, the amount of any such additional cost and expense.
2.4 You will indemnify us against any damage or loss sustained in delivery of the goods.
2.5 You will bear all delivery and packaging charges. You shall comply with all import and customs laws, regulations and administrative determinations of the importing country and all security criteria of the importing country’s government security program.
2.6 If for any reason, delivery of the goods cannot be effected on/after the agreed delivery date, you will store the goods, safeguard them and take all reasonable steps to prevent their deterioration until delivery. The parties shall each use their reasonable endeavours to re-arrange the delivery. In cases where condition 11.1 does not apply, if you store the goods for more than 60 days following the first attempted delivery and, due to a fault of ours, you have not been able to re-deliver the goods to us, we will pay your reasonable costs associated with the storage of the affected goods in accordance with condition 6. We will not be obliged to pay you any costs arising from failure to meet the agreed delivery date in the event said failure was a consequence of your own actions.
2.7 Where you are required to attend our premises or any third party’s site in order to fulfil an order, you shall ensure that you comply with any reasonable requirements, policies or procedures while at such premises or site as are made known to you from time to time (including but not limited to such requirements in respect of security and health and safety).
3.1 The goods must conform in all respects with the drawings, specifications and other requirements or descriptions stated or referred to in the order and, in the case of services you shall carry out and complete the services (including any design and installation/construction) with all reasonable care and skill and in a proper and workmanlike manner in compliance with the order and any drawings, specifications and other requirements or descriptions stated in this order. You shall be responsible for any designs in respect of the services which have already been carried out. All goods/services must be performed, produced and supplied in compliance with all applicable laws, using the highest quality materials (unless specified otherwise), workmanship and (where you are responsible for this) design, and shall be equal or better in all respects to relevant samples, previous supplies, or patterns (if any) provided by or accepted by us.
3.2 All of the goods/services must pass any reasonable testing carried out by our inspector/supervisor. We shall be entitled to reject all goods or services provided which do not conform completely in every respect with the terms of this order. Furthermore, if any defects or failure conform in accordance with these terms does not or would not become apparent (despite the carrying out of any examination and/or such tests) until after use we may reject the same within a reasonable time of such defect becoming apparent to us. It is agreed that in the case of goods we may exercise this right of rejection notwithstanding any provision contained in ss.11 and 35 of the Sale of Goods Act 1979, but subject to s.30(2A) of that Act.
3.3 You will ensure that we are able to benefit from the terms of any warranty available to you in respect of materials forming part of the goods and/or provided as by you as part of the services. You hereby grant to us and our customers and acknowledge and agree that we and our customers are entitled to all warranties that arise by implication or operation of law, and you shall extend to us all warranties you receive from your suppliers, service providers and subcontractors. All warranties survive any inspection, acceptance, payment, or resale by us.
3.4 Any goods or services rejected under condition 3.2 must at our request be replaced, by you at your expense; alternatively we may elect (at our option) to cancel this order as provided in condition 11.2 in respect of the goods or services in question and of the whole of the undelivered balance (if any) of the goods or services covered by this order. All rejected goods will be returned to you at your expense.
3.5 Our signature, given on any delivery note (if applicable), or other documentation (if applicable), presented for signature in connection with delivery of the goods or services, is evidence only of the number of packages received. In particular, it is not evidence that the correct quantity or number of goods or services has been delivered or that the goods or services delivered are in good condition or of the correct quality.
3.6 You shall not substitute anything described in the order without our prior written consent, such consent shall not be unreasonably delayed or withheld. No such consent will relieve you of any other obligations you have in connection with this order.
3.7 You will ensure that in all respects (except by way of design or specification where we have supplied the same) the goods and/or services comply with all relevant requirements of any statute, statutory rule or order, or other instrument having the force of law.
4.1 Title in the goods will pass to us on the earlier of: you receiving payment for the goods; and delivery of the goods to us (or the relevant third party to whom we have agreed the goods will be delivered).
4.2 Risk in the goods shall remain with you until you have completed delivery and we have accepted the goods in accordance with condition 3.2.
4.3 If the goods are delivered to and received by us or the agreed third party, such passing of title and risk shall be without prejudice to any right of rejection arising under these conditions.
5.1 You will ensure that all illustrations, drawings, specifications, tolerances, particulars of weights and measurements and instruction manuals (the “Documentation“) are provided with the goods or services at the time of delivery in order that the Documentation may be used by us (if applicable) in the training of site operatives and any other relevant personnel in the installation/erection, use, maintenance and safety procedures of the goods/services.
5.2 You warrant, represent and undertake that the Documentation is accurate and contains all the relevant information necessary for us to provide reasonable training services in connection with the goods/services to our customers.
5.3 You will indemnify us against all loss, actions, claims, demands, expenses and liabilities whatsoever (if any) caused directly or indirectly by any defects, inaccuracies, omissions or errors whatsoever in relation to the Documentation.
6.1 For goods or services supplied only, payment will be made within sixty days of the goods/services being accepted by us. If we fail to make a payment due to you under the order by the due date then you shall be entitled but not obliged to charge interest on a daily basis on such due amounts at an annual rate equal to 2% over the then current base lending rate of Lloyds Bank plc.
6.2 For goods or services supplied by you in instalments or which are incorporated, installed or erected by us in other goods or property we shall make interim progress payments to you as agreed in accordance with the order.
6.3 Where we have a dispute or claim against you we may withhold payments to the value of the dispute or claim.
6.4 Prices quoted must include any surcharges of any type.
7.1 For the purposes of these terms, “Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extension of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
7.2 We will retain all right, title or interest to the Intellectual Property Rights in any specifications and other documentation created by or on behalf of us for the goods and services (“Specifications“) and will be the owner of all Intellectual Property Rights modifications and enhancements made by or for us or by or for you to such Specifications.
7.3 You agree that all materials in whatever form and all modifications or enhancements to the goods or services prepared or produced by you under the order (“Work Product”) are commissioned by us and that all right, title or interest in or to the Intellectual Property Rights in such Work Products shall belong to us.
7.4 You hereby assign to us, by way of present assignment of present and future rights, with full title guarantee the whole legal and beneficial interest in any and all Intellectual Property Rights in the Specifications and the Work Product and shall execute (or procure the execution of) all documents and do (or procure the doing) of all things necessary to ensure that such rights vest in us.
7.5 You warrant that the sale, receipt, use and onward supply of the goods/services as contemplated by these terms shall not infringe the rights, including any Intellectual Property Rights of any third party.
7.6 You shall keep us indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by us as a result of or in connection with any claim brought against us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the sale, receipt, use and onward supply of the goods/services.
7.7 You shall be under no liability under condition 7.6 in respect of any infringement as aforesaid occasioned by use of a design or specification supplied to you by us.
8.1 This Order doe not confer or purport to confer any right to enforce any of its terms on any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
9.1 You shall indemnify us against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (if any) which we may incur in respect of personal injury to or the death of any person or in respect of any loss or destruction of or damage to property (other than as a result of any default or neglect of us or of any person for whom we are responsible) which shall have occurred in connection with any work executed by you against this order or shall be alleged to be attributable to some defect in the goods or the services.
9.2 You will indemnify us against any and all losses, costs, expenses and liabilities caused to us whether directly, or as a result of the action, claim or demand of any third party, by reason of any breach by you of these terms or of any terms or obligations on your part implied by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 or by any other statute or statutory provision relevant to the order or to goods or work covered thereby. This indemnity shall not be prejudiced or waived by any exercise of our rights under condition 3.4.
9.3 Whenever any sum of money is recoverable from or payable by you to us as a result of the operation of any of these terms or any breach by you of the same, such sum may be deducted by us from any sum then due or which at any time thereafter may become due to you under this order and any other trade or transaction placed or entered into by us with you.
10.1 You may not assign, subcontract or otherwise transfer this order or part thereof to any other person without our written consent.
10.2 You may not, without our written consent, subcontract this order or part thereof, other than for materials, minor details, or for any part of the goods or services to the subcontractors specified overleaf.
11.1 If either you or we are delayed or prevented from performing our obligations under this order, by circumstances beyond the reasonable control of the affected party (including without limitation any form of government intervention, break down of plant but excluding any strikes, lock-outs or industrial disputes) such performance shall be suspended until the relevant circumstances no longer persist. If an order cannot be completed within a reasonable time after the due date as specified in this order as a result of such event, this order may be cancelled by either party. We will pay to you such sums as may be fair and reasonable in all the circumstances of the case in respect of work performed by you under this order prior to cancellation, and in respect of which we have received the benefits. This condition can only have effect if it is called into operation by the party wishing to rely on it giving written notice to the other to that effect.
11.2 Subject to condition 11.1, we reserve the right to cancel the whole or any part of this order or any consignment on account thereof, if the same is not completed in all respects in accordance with the instructions and specifications stated in the order and with the foregoing conditions, in particular (but without prejudice to the generality of the foregoing) conditions 2.1, 3.1 and 3.6 compliance with which by you is of the essence. We may cancel the order if you materially breach any of these terms or if you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors, being wound up, having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction. In the event of our cancelling this order as to all or any of the goods covered thereby we shall be entitled to purchase from a third party a like quantity of goods of similar description and quality, or a reasonable alternative thereto, bearing in mind our need to take delivery of the goods by the date specified overleaf, and in that event you shall be liable to reimburse to us on demand all expenditure incurred by us in connection with our said cancellation, including any increase in the price over that stated overleaf. In the event of our cancelling this order for services we shall be entitled to hire an alternative sub-contractor to complete the services under this order, and in that event you shall be liable to reimburse to us all costs and/or we shall be entitled to deduct or set off said costs from any sums owing to you, arising from the hire of an alternative sub-contractor and completion of the services.
12.1 You will keep secret and will not disclose to any third party (except sub-contractors accepting a like obligation of secrecy, and then only to the extent necessary for the performance of the sub-contract) all information given by us in connection with this order, or which becomes known to you through your performance of work under this order. You will not mention our name in connection with this order or disclose the existence of this order and any publicity material or other similar communication to third parties without our prior consent in writing.
13.1 In performing its obligations you shall: (a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015; and (b) include in your contracts with sub-contractors and suppliers anti-slavery and human trafficking provisions that are at least as onerous as this clause 13.1.
14.1 You shall, and shall procure that any person associated with you performing services in connection with this order shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption in England, including but not limited to the Bribery Act 2010.
15.1 These terms shall be governed by the laws of England and 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 these terms or their subject matter or formation.
Registration Number 07621889
Registered Office at Centenary House, Peninsula Park, Rydon Lane. Exeter EX2 7XE
FO1 – Degould T&Cs Rev02 – 07.12.2018
Owner – GWS