TERMS AND CONDITIONS OF SALE
“Buyer” means the person who accepts the seller’s written quotation for the sale of the Goods or whose Written order for the Goods is accepted by the Seller;
“Equipment” means the machinery and equipment to be supplied in accordance with these Conditions;
“Goods” means either the Equipment or the Studs (including any instalment of the Equipment or any part for them) which the Seller is to supply in accordance with these Conditions;
“Seller” means Taylor Studwelding Systems Limited or any of its subsidiaries;
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller;
“Contract” means the contract for the purchase and sale of the Goods;
“Studs” means the studs to be supplied in accordance with these Conditions;
“Writing” and any similar expression, includes telex cable facsimile transmission and comparable means of communication, but not electronic mail.
- ACCEPTANCE OF ORDER.
(a) No binding contract shall be deemed to have been effected by the acceptance on the part of the Buyer or a quotation or offer made by the Seller, until such contract shall have been confirmed in writing by the Seller’s order acknowledgement when the Seller’s terms and conditions printed thereon will apply. In the event of an order been placed by the Buyer with the Seller, the Buyer shall be deemed to accept the Seller’s conditions of sale unless notice in writing to the contrary is received by the Seller within two days from the date of the Seller’s order acknowledgement. Unless expressly accepted in writing any qualifications of these Conditions in any document of the Buyer shall be deemed to be inapplicable.
(b) The Sellers’ employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Conditions affects the liability of either party for fraudulent misrepresentation.
- BASIS OF QUOTATION. All quotations are made on the following basis:
(a) The right is reserved by the Seller to correct stenographic or clerical errors.
(b) Goods made to the Buyer’s written instruction and/or official drawings containing stenographical or clerical errors and not amended by the Buyer in writing and acknowledged by the Seller in writing must be the complete responsibility of the Buyer.
(c) Where an order is received for a quantity different from that quoted for or where delivery is required in instalments smaller than those specified in the quotation, or where product specifications given on the order are different from those stated in the quotation prices may be subject to amendment.
(d) Quotations only indicate the current price and may be subject to alteration at any time before completion of an order resulting from that quotation.
(e) Quotations shall only be available for acceptance for a maximum of 30 days from the date thereof, but may be withdrawn by the Seller within such period without notice.
(f) All prices shown exclude Value Added Tax.
(g) The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
(a) Unless the contract provides expressly otherwise the price payable by the Buyer for each delivery shall be the Seller’s ruling price at date of despatch and unless otherwise stated on the quotation and/or order acknowledgement all consignments are charged ex-works and subject to carriage charges. All orders specifying or consignments dispatched by premium transportation at the request of the Buyer will be charged at cost.
(b) The Seller reserves the right by giving Written notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the costs of labour materials or other costs of manufacture) any change in delivery dates quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
(c) The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
- BLANKET ORDER. An open or blanket order (i.e. a document setting out all details of an order except quantities and delivery requirements, which information is to be supplied by schedules from the Buyer) shall not be considered as authority to proceed with the preparation for manufacture or the manufacture of any components. Only the delivery schedule will provide the requested authority to proceed and schedules will be accepted under the Seller’s terms and conditions. The Seller reserves the right to advise delivery according to the Seller’s manufacturing lead times applicable upon receipt of the Buyer’s schedule.
- SCHEDULE ORDER.
(a) The schedule (i.e. an order calling for a specific quantity spread over a defined period) shall constitute authority for manufacture of the total order and shall define the Buyers ultimate liability.
(b) Scheduling shall permit completion of delivery of an order within twelve months from the date when the order was received, except by mutual agreement between the Buyer and the Seller on a longer or shorter period.
(c) Minimum quantity for call off at any one time shall be stated on quotation and/or order acknowledgement.
(d) Minimum notice for change in delivery requirements four weeks.
(e) The Buyer shall at all times be liable for current scheduled total stocks, work in progress, special material and manufacturing tools.
(a) Undefined specifications. If manufacturing tolerances, materials or type of finish, are not clearly defined in any specification or drawing supplied by the Buyer, the Seller reserves the right to manufacture to the Seller’s commercially accepted tolerance or finish or from the Seller’s commercially accepted material for the product concerned.
(b) Defined specifications. Where detailed specifications are to be supplied by the Buyer, it must be in reasonable time to enable the Seller to complete deliveries in the period mutually agreed.
(c) Change of specification. The Buyer is liable for any costs involved in manufacturing tools and/or products and any losses incurred by the Seller as a result of amendments requested by the Buyer for the specification originally agreed.
(d) Indemnity. The Buyer shall indemnify the Seller from against all actions, costs and proceedings which arise due to the manufacture of goods to the drawings and specifications provided by the Buyer where such drawings and specifications shall be at fault, or where it is alleged that they involve an infringement of a patent, registered design, copyright or other exclusive rights.
(e) The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U requirements or where the Goods are to be supplied to the Seller’s specification which do not materially affect their quality or performance.
- QUANTITY TOLERANCE. The Seller shall have the right to supply 10% more or less than the exact quantity ordered. A pro rata charge at the quoted price will be made to cover any such variation in addition where the Seller supplies goods calculated by weight any shortfalls or excess up to 2% shall be permissible without financial adjustment.
- DELIVERY AND FORWARDING ARRANGEMENTS.
(a) All dispatches to be consigned at the Buyer’s risk and the Seller shall not be liable for any consequential loss caused by damage or delay in transit from the Seller’s factory however arising.
(b) Any delivery date or period where stated in the contract or schedule order or elsewhere is a business estimate only and the Seller shall not be liable for any loss or damage whatsoever caused by failure to make deliveries on such a date or within such a period.
(c) The Seller shall be under no obligation to the Buyer to supply proof of delivery for any goods sent by first class post.
(d) Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
(e) If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
(i) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or;
(ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the contract or charge the Buyer for any shortfall below the price under the Contract.
- LOSS OR DAMAGE IN TRANSIT.
(a) No responsibility can be accepted for damaged materials or short delivery where the carriers have been given a clean receipt.
(b) Any damage or short delivery must be notified to the Seller in writing within seven days. In the case of short delivery of any item the notice to the Seller must specify the number of packages of that item received and their total gross weight and details of any damage to packages.
- CLAIM FOR NON-DELIVERY.
(a) Any claim for non-delivery of goods must be made in writing within seven days from the date of the advice note or other notification of dispatch.
(b) If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
- DEFECTIVE GOODS.
(a) Studs will be made to the Buyer’s specification subject to any variation agreed in writing. Studs found within twelve months of delivery date to be defective or not in accordance with specification (due to suppliers manufacturing fault) will be replaced free of charge at the place of original delivery within a reasonable period or at the sole and absolute discretion of the Seller the invoice value of the goods will be refunded, but only if:
(i) The Seller is given written notification of the findings of the defect or suspicion or defect or deviation from specification; and
(ii) The suspected Goods are returned to the Seller.
(b) Equipment which is subject to a warranty (as detailed in the sales literature of the Seller relating to the Equipment) which is found within twelve months of the delivery date to be defective will at the Sellers discretion be either:
(i) repaired and returned to the Buyers original place of delivery; or
(ii) replaced at the Buyers original place of delivery; or
(iii) have the purchase price in relation to such Equipment refunded;
Provided always that the Buyer shall have returned such Equipment to the Seller along with a report detailing the alleged defect.
(c) The repair or replacement of the Goods or the refund of the invoice shall constitute the limit of the Seller’s responsibility and liability in respect thereof.
(d) This understanding does not apply to and no responsibility is accepted for, Goods which have suffered or been subject to undue wear and tear, accident, misuse, improper application, modification, neglect, overloading or otherwise have not been used in accordance with the technical specification sheet supplied with the Goods, in which case in no circumstances shall the Seller be liable for loss or damage of any kind directly caused by or arising from goods supplied.
(e) No guarantee warranty condition or representation on the part of the Seller is given or implied by these conditions nor is any guarantee warranty conditions description or representation to be taken to have been given or implied from anything said in the negotiations between the parties or their representatives prior to an agreement.
- MODIFICATIONS AND RECTIFICATION. The Seller will accept no responsibility for the cost of modifying or rectifying any goods unless such notification rectification and the cost thereof have been agreed in writing with the Seller beforehand.
- IN THE EVENT OF SUSPENSION OF DELIVERY BY SELLER.
(a) Deliveries may be wholly or partially suspended by the Seller and the time of such suspension added to the original contract in the event of a stoppage, delay or interruption of work in the establishment of the Seller during the delivery period as a result of strike, lock outs, trade disputes, breakdown or any cause whatsoever beyond the control of the Seller.
(b) If the Buyer makes any default in payment or becomes subject to the bankruptcy laws or executes any assignments for the benefit of creditors or enters into voluntary or compulsory liquidation (except for the purpose of amalgamation or reconstruction) or becomes subject to receivership the Seller may at its option cancel any undelivered or uncompleted portion of any order and stop any of the goods in transit and shall nonetheless be entitled to claim against the Buyer for any loss or damage sustained by the non-completion of the contract.
- DEFERMENT OR SUSPENSION OF DELIVERIES BY THE BUYER. In the case of the Buyer requesting postponement of delivery of a part of, or the whole of the goods for a period not exceeding three months from the delivery date originally required the contract shall not be invalidated but:
(a) If manufacture of the goods has not commenced the price shall be subject to variation and the revised price shall be notified to the Buyer by the Seller following receipt of the revised delivery dates required.
(b) If manufacture of the goods has been commenced then the goods will be invoiced and paid for as if the delivery date had not been postponed and deferment of delivery will not be extended longer than three months after the delivery date originally required and goods will be dispatched and storage charges will be invoiced at the termination of that period. Any request for postponement of delivery for a period exceeding three months shall be regarded as a cancellation of the order.
- RETURNED GOODS. Goods returned by the Buyer to the Seller without justifiable reason may be subject to a rehandling charge at the sole discretion of the Seller.
(a) Prior to commencement of manufacture, the Buyer will be liable for payment in full immediately on cancellation for any materials specifically acquired and for any preliminary costs (e.g. tooling) incurred. Any tooling will remain the property of the Seller.
(b) After commencement of manufacture, the Buyer will be liable for payment immediately on cancellation of the full value of the goods less any made by cessation of manufacture and the value of any scrap realised.
- TERMS OF PAYMENT.
(a) Normal credit terms will be granted by the Seller on receipt of adequate references or other evidence, otherwise goods will be dispatched against payment of pro forma invoices.
(b) Payment where normal credit terms have been agreed by the Seller shall be received at the Seller’s specified place of payment thirty days from the date of invoices.
(c) Payment shall not be deemed to have been made or received until cash has been handed to the Seller or any cheque or draft paid to the Seller shall have been cleared and the Seller’s bank account credited with the amount in which the cheque or draft is drawn.
(d) The Seller reserves the right to charge interest on all overdue accounts both before and after judgement at the rate of four per cent above the Base Rate of Lloyds Bank PLC prevailing from time to time.
- PATTERN/DRAWING/TOOLS, ETC. Unless otherwise agreed in writing, all patterns, drawings, tools, etc produced by the Seller shall remain the property of the Seller and no claim for these by the Buyer will be entertained. The Buyer shall not utilise, reproduce or communicate knowledge of such items to any third party without the express written consent of the Seller and the Buyer shall return the same to the Seller at any time at the request of the Seller.
- SUB-CONTRACTING. The Seller reserves the right to sub-contract the fulfilment of any order or contract or any part thereof.
- HEALTH AND SAFETY. In accordance with Section 6 of the Health and Safety at Work Act 1974, the Seller ensures that as far as it is reasonably practicable the Seller’s products are safe and without risk to health and safety when properly used. All products can constitute a health hazard if used incorrectly or without regard to the Seller’s relevant health and safety recommendations. It is a condition of supply that the Buyer acquaints itself with any appropriate health and safety information provided by the supplier and undertakes to take whatever steps indicated to use the goods supplied in an agreed manner.
- OWNERSHIP OF GOODS.
(a) Risk of damage to or loss of the Goods shall pass to the Buyer:
(i) in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection or;
(ii) in the case of Goods to be delivered otherwise than at the Seller’s premises at the time of despatch from the Seller’s premises.
(b) Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
(c) Until the property has so passed the Buyer shall hold the goods as bailee and will at its own expense keep the goods safe and insured against customary commercial risks and shall keep them separately stored in a readily identifiable state.
(d) Until the property in the goods has so passed the Buyer shall return the goods to the Seller on demand and the Seller shall without prejudice to any other rights be entitled to go upon the property of the Buyer and repossess and remove the goods.
(e) The Buyer shall be at liberty to sell the goods in the ordinary course of business. The proceeds of any such sale and the benefit of any contract of sale shall be the property of and held in trust for the Seller absolutely.
(a) Except in respect of death or personal injury caused by the Seller’s negligence or liability for defective products under the Consumer Protection Act 1987 the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for loss of profit or any indirect special or consequential loss or damage costs expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the buyer and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions.
(b) The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control:
(i) Act of God explosion flood tempest fire or accident;
(ii) war or threat of war sabotage insurrection civil disturbance terrorism or requisition;
(iii) acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
(iv) import or export regulations or embargoes;
(v) strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
(vi) difficulties in obtaining raw materials labour fuel parts or machinery;
(vii) power or communication system failure or breakdown in machinery;
(viii) malicious activities of third parties.
23 EXPORT TERMS
(a) Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the meaning of the Incoterms and these Conditions the latter shall prevail.
(b) Where the Goods are supplied for export form the United Kingdom the provisions of this clause 23 shall (subject to any special terms agreed in writing between the Buyer and Seller) apply notwithstanding any other provisions of these Conditions.
(c) The Buyer shall be responsible for complying with any legislation or regulations governing the importation of Goods into the country of destination and for the payment of any duties on them.
(d) Unless otherwise agreed in writing between the Buyer and the Seller the Goods shall be ex works Dewsbury, England and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
(e) The Buyer shall be responsible for arranging the testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damages during transit.
(f) Payments of all amounts due to the Seller shall be made either by:
- i) Irrevocable Letter of Credit paid on sight of documents and opened by the Buyer in favour of the Seller
- ii) Telegraphic Transfer prior to despatch
iii) On credit terms as agreed between the Buyer and the Seller.
- LEGAL CONSTRUCTION.
These conditions and any contract between Seller and Buyer shall be constructed and operate in all respects as a contract made in England and in conformity with English Law.
TERMS OF PURCHASE
1.1 In these Terms:
“Buyer” means Taylor Studwelding Systems Limited or any of its subsidiaries;
“Contract” means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services;
“Delivery Address” means the address stated on the Order;
“Goods” means the goods (including any instalment of the goods or any part of them) described in the Order;
“Order” means the Buyer’s purchase order to which these Terms are annexed;
“Price” means the price of the Goods and/or the charge for the Services;
“Seller” means the person so described in the Order;
“Services” means the services (if any) described in the Order;
“Specification” includes any plans, drawings, data or other information relating to the Goods or Services;
“Terms” means the standard terms of purchase set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller;
“Writing”, and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.2 Any reference in these Terms to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
- BASIS OF PURCHASE
2.1 The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Terms.
2.2 These Terms shall apply to the Contract to the exclusion of any other terms on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.
2.3 The Order will lapse unless unconditionally accepted by the Seller in Writing within seven days of its date.
2.4 No variation to the Order or these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
3.1 The quantity, quality and description of the Goods and the Services shall, subject as provided in these Terms, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in Writing by the Buyer.
3.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer, and the Seller assigns with full title guarantee to the Buyer all such copyright, design rights and other intellectual property for no further consideration, subject only to the payment of the Price. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.
3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.
3.4 The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.
3.5 If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Seller within seven days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.
3.6 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
- PRICE OF THE GOODS AND SERVICES
4.1 The Price of the Goods and the Services shall be as stated in the Order and, unless otherwise so stated, shall be:
4.1.1 exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
4.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.
4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in Writing.
4.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms of sale.
- TERMS OF PAYMENT
5.1 The Seller may invoice the Buyer on or at any time after delivery of the Goods or performance of the Services, as the case may be, and each invoice shall quote the number of the Order.
5.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods and the Services within 30 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods or Services in question by the Buyer.
5.3 The Buyer may set off against the Price any sums owed to the Buyer by the Seller.
6.1 The Goods shall be delivered to, and the Services shall be performed at, the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.
6.2 Where the date of delivery of the Goods or of performance of the Services is to be specified after the placing of the Order, the Seller shall give the Buyer reasonable notice of the specified date.
6.3 The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.
6.4 A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently.
6.5 If the Goods are to be delivered, or the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable.
6.6 The Buyer may reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
6.7 The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.
6.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.
6.9 If the Goods are not delivered or the Services are not performed on the due date then, without limiting any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damage for delay 5 per cent of the Price for every week’s delay, up to a maximum of 50 per cent.
- RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery to the Buyer in accordance with the Contract.
7.2 The property in the Goods shall pass to the Buyer on delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.
- WARRANTIES AND LIABILITY
8.1 The Seller warrants to the Buyer that the Goods:
8.1.1 will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Seller in Writing at the time the Order is placed;
8.1.2 will be free from defects in design, material and workmanship;
8.1.3 will correspond with any relevant Specification or sample; and
8.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.
8.2 The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances.
8.3 Without limiting any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled:
8.3.1 to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within seven days; or
8.3.2 at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid.
8.4 The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:
8.4.1 breach of any warranty given by the Seller in relation to the Goods or the Services;
8.4.2 any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
8.4.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
8.4.4 any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering and installing the goods; and
8.4.5 any act or omission of any of the Seller’s personnel in connection with the performance of the Services.
8.5 Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure is beyond that party’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:
8.5.1 Act of God, explosion, flood, tempest, fire or accident;
8.5.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.5.4 import or export regulations or embargoes;
8.5.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees or either the Seller or the Buyer or of a third party);
8.5.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.5.7 power failure or breakdown in machinery.
9.1 The Buyer may cancel the Order in respect of all or part only of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods or Services in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation.
9.2 The Buyer may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
9.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) 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 purpose of amalgamation or reconstruction); or
9.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
9.2.3 the Seller ceases, or threatens to cease, to carry on business; or
9.2.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or
9.2.5 the Seller is in breach of any of the Terms of this Contract.
10.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
10.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the party giving the notice.
10.3 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of these Terms is held by any court or other 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.
10.5 The Contract shall be governed by the law of England, and the Seller agrees to submit to the non-exclusive jurisdiction of the English courts.
Taylor Studwelding Systems Ltd understands that your privacy is important to you and that you care about how your personal data is used and shared online. We respect and value the privacy of everyone who visits this website, www.taylor-studwelding.com (“Our Site”) and will only collect and use personal data in ways that are described here, and in a manner that is consistent with Our obligations and your rights under the law.
- Definitions and Interpretation
In this Policy, the following terms shall have the following meanings:
|“Account”||means an account required to access and/or use certain areas and features of Our Site;|
|“Cookie”||means a small text file placed on your computer or device by Our Site when you visit certain parts of Our Site and/or when you use certain features of Our Site. Details of the Cookies used by Our Site are set out in section 13, below;|
|“Cookie Law”||means the relevant parts of the Privacy and Electronic Communications (EC Directive) Regulations 2003;|
|“personal data”||means any and all data that relates to an identifiable person who can be directly or indirectly identified from that data. In this case, it means personal data that you give to Us via Our Site. This definition shall, where applicable, incorporate the definitions provided in the EU Regulation 2016/679 – the General Data Protection Regulation (“GDPR”);|
|“We/Us/Our”||means Taylor Studwelding Systems Ltd under company number Insert Company Number, whose registered address is Commercial Road, Dewsbury, West Yorkshire WF13 2BD.|
- Information About Us
- Our Site is owned and operated by Taylor Studwelding Systems Ltd, a limited company registered in England under company number 1839530 , whose registered address is Commercial Road, Dewsbury, West Yorkshire, WF13 2BD.
- Our Data Protection Officer is Heather Cooke, Director and can be contacted by email at firstname.lastname@example.org, 01924 487705 or at Taylor Studwelding Systems Ltd, Commercial Road, Dewsbury, West Yorkshire, WF13 2BD.
- What Does This Policy Cover?
- Your Rights
- As a data subject, you have the following rights under the GDPR, which this Policy and Our use of personal data have been designed to uphold:
- The right to be informed about Our collection and use of personal data;
- The right of access to the personal data We hold about you (see section 12);
- The right to rectification if any personal data We hold about you is inaccurate or incomplete (please contact Us using the details in section 14);
- The right to be forgotten – i.e. the right to ask Us to delete any personal data We hold about you (We only hold your personal data for a limited time, as explained in section 6 but if you would like Us to delete it sooner, please contact Us using the details in section 14);
- The right to restrict (i.e. prevent) the processing of your personal data;
- The right to data portability (obtaining a copy of your personal data to re-use with another service or organisation);
- The right to object to Us using your personal data for particular purposes; and
- Rights with respect to automated decision making and profiling.
- If you have any cause for complaint about Our use of your personal data, please contact Us using the details provided in section 14 and We will do Our best to solve the problem for you. If We are unable to help, you also have the right to lodge a complaint with the UK’s supervisory authority, the Information Commissioner’s Office.
- For further information about your rights, please contact the Information Commissioner’s Office or your local Citizens Advice Bureau.
- What Data Do We Collect?
- business/company name
- job title;
- contact information such as email addresses and telephone numbers;
- demographic information such as post code
- IP address;
- web browser type and version;
- operating system;
5.9 a list of URLs starting with a referring site, your activity on Our Site, and the site you exit to;
- How Do We Use Your Data?
- All personal data is processed and stored securely, for no longer than is necessary in light of the reason(s) for which it was first collected. We will comply with Our obligations and safeguard your rights under the GDPR at all times. For more details on security see section 7, below.
- Our use of your personal data will always have a lawful basis, either because it is necessary for Our performance of a contract with you, because you have consented to Our use of your personal data (e.g. by subscribing to emails), or because it is in Our legitimate interests. Specifically, We may use your data for the following purposes:
- Providing and managing your Account;
- Providing and managing your access to Our Site;
- Personalising and tailoring your experience on Our Site;
- Supplying Our services to you (please note that We require your personal data in order to enter into a contract with you);
- Personalising and tailoring Our services for you;
- Replying to emails from you;
- Supplying you with emails that you have opted into (you may unsubscribe or opt-out at any time by contact us);
- Market research;
- Analysing your use of Our Site and gathering feedback to enable Us to continually improve Our Site and your user experience;
- With your permission and/or where permitted by law, We may also use your data for marketing purposes which may include contacting you by email, telephone, text message or post with information, news and offers on Our services. We will not, however, send you any unsolicited marketing or spam and will take all reasonable steps to ensure that We fully protect your rights and comply with Our obligations under the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
- Third parties whose content appears on Our Site may use third party Cookies, as detailed below in section 13. Please refer to section 13 for more information on controlling Cookies. Please note that We do not control the activities of such third parties, nor the data they collect and use and advise you to check the privacy policies of any such third parties.
- You have the right to withdraw your consent to Us using your personal data at any time, and to request that We delete it.
- We do not keep your personal data for any longer than is necessary in light of the reason(s) for which it was first collected.
- How and Where Do We Store Your Data?
- We only keep your personal data for as long as We need to in order to use it as described above in section 6, and/or for as long as We have your permission to keep it.
- Whilst the majority of your data will be stored within the UK and the European Economic Area (“the EEA”) (The EEA consists of all EU member states, plus Norway, Iceland, and Liechtenstein), some or all of your data may be stored outside of the European Economic Area (“the EEA”) (The EEA consists of all EU member states, plus Norway, Iceland, and Liechtenstein). You are deemed to accept and agree to this by using Our Site and submitting information to Us. If We do store data outside the EEA, We will take all reasonable steps to ensure that your data is treated as safely and securely as it would be within the UK and under the GDPR guidelines.
- Data security is very important to Us, and to protect your data We have taken suitable measures to safeguard and secure data collected through Our Site.
- Do We Share Your Data?
- We will not share any of your data with any third parties for any purposes.
- What Happens If Our Business Changes Hands?
- How Can You Control Your Data?
- In addition to your rights under the GDPR, set out in section 4, when you submit personal data via Our Site, you may be given options to restrict Our use of your data. In particular, We aim to give you strong controls on Our use of your data for direct marketing purposes (including the ability to opt-out of receiving emails from Us which you may do by unsubscribing using the links provided in Our emails and at the point of providing your details.)
- You may also wish to sign up to one or more of the preference services operating in the UK: The Telephone Preference Service (“the TPS”), the Corporate Telephone Preference Service (“the CTPS”), and the Mailing Preference Service (“the MPS”). These may help to prevent you receiving unsolicited marketing. Please note, however, that these services will not prevent you from receiving marketing communications that you have consented to receiving.
- Your Right to Withhold Information
- You may access certain areas of Our Site without providing any data at all. However, to use all features and functions available on Our Site you may be required to submit or allow for the collection of certain data.
- How Can You Access Your Data?
You have the right to ask for a copy of any of your personal data held by Us (where such data is held). Under the GDPR, no fee is payable and We will provide any and all information in response to your request free of charge. Please contact Us for more details at email@example.com, or using the contact details below in section 14.
- By using Our Site you may also receive certain third party Cookies on your computer or device. Third party Cookies are those placed by websites, services, and/or parties other than Us. For more details, please refer to section 6, above, and to section 13.6 below. These Cookies are not integral to the functioning of Our Site and your use and experience of Our Site will not be impaired by refusing consent to them.
- All Cookies used by and on Our Site are used in accordance with current Cookie Law.
- Before Cookies are placed on your computer or device, you will be shown an on-screen banner requesting your consent to set those Cookies. By giving your consent to the placing of Cookies you are enabling Us to provide the best possible experience and service to you. You may, if you wish, deny consent to the placing of Cookies; however certain features of Our Site may not function fully or as intended.
- Certain features of Our Site may depend on Cookies to function. Cookie Law deems these Cookies to be “strictly necessary”. These Cookies are shown below in section 13.6. Your consent will not be sought to place these Cookies, but it is still important that you are aware of them. You may still block these Cookies by changing your internet browser’s settings as detailed below in section 13.10, but please be aware that Our Site may not work properly if you do so. We have taken great care to ensure that your privacy is not at risk by allowing them.
- The following “strictly necessary” Cookies may be placed on your computer or device:
|Name of Cookie||Purpose||Strictly Necessary|
|Session||To enable Us to deliver a better and more personalised service.||Yes|
and the following third party Cookies may be placed on your computer or device:
|Name of Cookie||Provider||Purpose|
|.youtube||Youtube||To enable Us to deliver a better and more personalised service.|
|Google Analytics||Google||To enable Us to deliver a better and more personalised service.|
|Google Docs||Google||To enable Us to deliver a better and more personalised service.|
|Google Maps||Google||To enable Us to deliver a better and more personalised service.|
- Our Site uses analytics services provided by Google. Website analytics refers to a set of tools used to collect and analyse anonymous usage information, enabling Us to better understand how Our Site is used. This, in turn, enables Us to improve Our Site and the services offered through it. You do not have to allow Us to use these Cookies, however whilst Our use of them does not pose any risk to your privacy or your safe use of Our Site, it does enable Us to continually improve Our Site, making it a better and more useful experience for you.
- The analytics service(s) used by Our Site use(s) Cookies to gather the required information.
- In addition to the controls that We provide, you can choose to enable or disable Cookies in your internet browser. Most internet browsers also enable you to choose whether you wish to disable all cookies or only third party Cookies. By default, most internet browsers accept Cookies but this can be changed. For further details, please consult the help menu in your internet browser or the documentation that came with your device.
- You can choose to delete Cookies on your computer or device at any time, however you may lose any information that enables you to access Our Site more quickly and efficiently including, but not limited to, login and personalisation settings.
- It is recommended that you keep your internet browser and operating system up-to-date and that you consult the help and guidance provided by the developer of your internet browser and manufacturer of your computer or device if you are unsure about adjusting your privacy settings.
- The following definitions and rules of interpretation apply in this Agreement.
|“Business Day”||a day other than a Sunday or public holiday in England when banks in London are open for business.|
|“Commencement Date”||the date that the Equipment is despatched by the Supplier.|
|“Delivery”||the transfer of physical possession of the Equipment to the Lessee.|
|the equipment being hired and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.|
the customer who is hiring the Equipment.
Taylor Studwelding Systems Limited of Commercial Road, Dewsbury, West Yorkshire, WF13 2BD.
|“Payment Schedule”|| the agreed sums payable under this Agreement.|
|“Rental Payments”||the payments made by or on behalf of Lessee for hire of the Equipment.|
|“Rental Period”||the period of hire (which may be decreased or extended by the Lessor at its discretion) or until the Equipment is returned to the Lessor.|
|“Total Loss”||due to the Lessee’s default the Equipment is, in the Lessor’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.|
|“VAT”||value added tax chargeable under the Value Added Tax Act 1994.|
- Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
- A reference to writing or written includes fax and e-mail.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
- References to clauses and any schedules are to the clauses, and schedules of this Agreement.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Equipment hire
- The Lessor shall hire the Equipment to the Lessee subject to the terms and conditions of this Agreement.
- Rental Period
The Rental Period starts on the Commencement Date and shall continue for that period unless this Agreement is terminated earlier in accordance with its terms.
- Rental Payments
- The Lessee shall pay the Rental Payments to the Lessor in accordance with the Payment Schedule. The Rental Payments will be made by cheque, telegraphic transfer or credit card.
- The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.
- All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- If the Lessee fails to make any payment due to the Lessor under this Agreement by the due date for payment, then, without limiting the Lessor’s remedies under clause 10, the Lessee shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Lessee shall pay the interest together with the overdue amount.
- Delivery of the Equipment shall be made by the Lessor. The Lessor shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 of this Agreement.
- The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Lessor, the Lessee’s duly authorised representative shall sign a receipt confirming such acceptance.
- To facilitate Delivery, the Lessee shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
- Title, risk and insurance
- The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this Agreement).
- The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:
- insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Lessor may from time to time nominate in writing;
- insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
- insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.
- All insurance policies procured by the Lessee shall be endorsed to provide the Lessor with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Lessor’s request name the Lessor on the policies as a loss payee in relation to any claim relating to the Equipment. The Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies.
- The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee’s possession or use of the Equipment.
- If the Lessee fails to effect or maintain any of the insurances required under this Agreement, the Lessor shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee.
- The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.
- Lessee’s responsibilities
- The Lessee shall during the term of this Agreement:
- ensure that the Equipment is kept and operated in a suitable environment used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Lessor;
- take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being used, cleaned or maintained by a person at work;
- maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
- make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Lessor unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Lessor immediately upon installation;
- keep the Lessor fully informed of all material matters relating to the Equipment;
- at all times keep the Equipment in the possession or control of the Lessee and keep the Lessor informed of its location;
- permit the Lessor or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
- maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Lessor, together with such additional information as the Lessor may reasonably require;
- not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
- not without the prior written consent of the Lessor, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Lessor against all losses, costs or expenses incurred as a result of such affixation or removal;
- not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor may enter such land or building and recover the Equipment both during the term of this Agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment;
- not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
- not use the Equipment for any unlawful purpose;
- ensure that at all times the Equipment remains identifiable as being the Lessor’s property;
- deliver up the Equipment at the end of the Rental Period or on earlier termination of this Agreement at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment. If the Lessee is required to return the Equipment, it must be returned to the Lessor securely fastened for carriage and in a manner appropriate for the Equipment; and
- not do or permit to be done anything which could invalidate the insurances referred to in clause 6.
- The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with the terms of this Agreement.
- The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor. The Lessor shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within 20 Business Days from Delivery, provided that:
- the Lessee notifies the Lessor of any defect in writing within ten (10) Business Days of the defect occurring or of becoming aware of the defect;
- the Lessor is permitted to make a full examination of the alleged defect;
- the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor’s authorised personnel;
- the defect did not arise out of any information, design or any other assistance supplied or furnished by the Lessee or on its behalf; and
- the defect is directly attributable to defective material, workmanship or design.
- Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Lessor, the Lessee shall be entitled only to such warranty or other benefit as the Lessor has received from the manufacturer.
- Without prejudice to clause 2, the Lessor’s maximum aggregate liability for breach of this Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the Rental Payments.
- Nothing in this Agreement shall exclude or in any way limit:
- either party’s liability for death or personal injury caused by its own negligence; or
- either party’s liability for fraud or fraudulent misrepresentation.
- This Agreement sets forth the full extent of the Lessor’s obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in this Agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this Agreement, whether by statute, common law or otherwise, is expressly excluded.
- Without prejudice to clause 2, the Lessor shall not be liable under this Agreement to the Lessee for any:
- loss of profit;
- loss of revenue;
- loss of business; or
- indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
- Without affecting any other right or remedy available to it, the Lessor may terminate this Agreement with immediate effect by giving written notice to the Lessee if:
- the Lessee fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 5 Business Days after being notified to make such payment;
- the Lessee commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 Business Days after being notified to do so;
- the Lessee repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- the Lessee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Lessee 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;
- 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 Lessee (being a company);
- 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 Lessee (being a company);
- the holder of a qualifying floating charge over the assets of the Lessee (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Lessee or a receiver is appointed over the assets of the Lessee;
- a creditor or encumbrancer of the Lessee 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 the Lessee’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1(d) to clause 10.1(j) (inclusive); or
- the Lessee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- For the purposes of clause 1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Lessor would otherwise derive from:
- a substantial portion of this Agreement; or
- any of the obligations set out in clause 7,
over the term of this Agreement.
- This Agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
- Consequences of termination
- Upon termination of this Agreement, however caused:
- the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee’s expense, retake possession of the Equipment and for this purpose may enter any premises at which the Equipment is located; and
- without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
- all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4;
- any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
- Upon termination of this Agreement pursuant to clause 1, any other repudiation of this Agreement by the Lessee which is accepted by the Lessor or pursuant to clause 10.3, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
- The sums payable pursuant to clause 2 shall be agreed compensation for the Lessor’s loss and shall be payable in addition to the sums payable pursuant to clause 11.1(b).
- Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or 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 agreement which existed at or before the date of termination or expiry.
- Force majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this Agreement by giving 5 days’ written notice to the affected party.
- Confidential information
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
- Assignment and other dealings
The Lessee 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 this Agreement without the written permission from the Lessor.
- Entire agreement
- This Agreement 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.
- Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- Nothing in this clause shall limit or exclude any liability for fraud.
The Lessor may increase or decrease the Rental Period by confirmation to the Lessee. Apart from that, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- No partnership or agency
- Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Further assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
- This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- Third party rights
No one other than a party to this Agreement, or its permitted assignees, shall have any right to enforce any of its terms.
- Any notice or other communication given to a party under or in connection with this 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.
- Any notice or 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 Business Day after posting or at the time recorded by the delivery service;
- if sent by fax, at 9.00 am on the next Business 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 arbitration or other method of dispute resolution.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of this Agreement 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 this Agreement.
- If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Governing law
This Agreement 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 the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).