1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (“Conditions”).
Additions: as defined in condition 6.13
Business Day: means any day other than a Saturday, Sunday or public holiday in England.
Client: the person, firm or company who purchases Services from the Company.
Company: PEI-Delta Limited (company registration number 03249002) whose registered office is at Furness Drive, Poulton Industrial Estate, Poulton – Le – Fylde, Lancashire FY6 8JS.
Contract: the Client’s acceptance of the Tender Documentation or (if applicable) Quotation, for Services by the Company under condition 2.2.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form, and a reference to “Documents” shall be construed accordingly.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Preliminary Costs: means any costs to be incurred by the Company prior to the Services being provided, including but not limited to materials and/or goods which are to be used in performing the Services.
Price: means the price for Services being either the price stated in the Company’s Quotation, or if no such price is quoted, the price stated in the Tender Documentation.
Quotation: the Company’s written offer to the Client setting out the Services which the Company is prepared to undertake, and scope of the Service (as applicable) together with (if applicable) the Price, any other terms as specified by the Company.
Services: the services to be provided by the Company under the Contract as set out in Tender Documentation, or (if applicable) Quotation, together with any other services which the Company in writing agrees to provide to the Client.
Tender Documentation: the Company’s written reply to the Client’s request for a tender for the provision of Services by the Company.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these Conditions shall not affect their interpretation.
1.3 A reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or reenactment and includes any subordinate legislation for the time being in force made under it.
1.5 Words in the singular include the plural and in the plural include the singular, and a reference to one gender includes a reference to the other gender.
1.6 Reference to the Contract and/or Tender Documentation and/or Quotation include such document as amended or varied in accordance with these Conditions.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Client, or implied by law, trade custom, practice or course of dealing.
2.2 The Client’s acceptance of a Tender Documentation or (if applicable) the acceptance of a Quotation, constitutes an offer by the Client to purchase the Services specified in the Tender Documentation, or (if applicable) the Quotation on these Conditions. No offer placed by the Client shall be accepted by the Company other than:
(a)by a written acknowledgement issued and executed by the Company; or
(b) (if earlier) by the Company starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other
Document shall not govern the Contract.
2.3 Quotations are given by the Company on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn it.
2.4 In the event that there is any inconsistency between the provisions of a Quotation and these Conditions, then the provisions of the Quotation shall apply and shall prevail.
2.5 In the event that there is any inconsistency between the Tender Documentation and these Conditions, then the provisions of these Conditions shall apply and shall prevail.
2.6 The Client shall be responsible for providing the Company with any necessary information (within a reasonable time) to enable the Company to perform its obligations under the Contract. It is agreed that the Company shall, subject to the provisions of condition 8, not be liable for the consequences of any inaccurate or incomplete information provided by the Client. If the Client provides insufficient and/or incorrect information which inhibits or delays the Company in performing the Contract, then the Company reserves the right to increase the Price to cover any increase in costs which takes place due to the Client not providing sufficient and/or correct information to the Company.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by the Company to the Client from the date specified in the Tender Documentation or, (if applicable) the Quotation. In the event that no date is specified, the provision of the Services shall commence within a reasonable time.
4. COMPANY’S OBLIGATIONS
4.1 The Company shall use its reasonable endeavours (without litigation) to provide the Service in accordance in all material respects with the Contract.
4.2 The Company shall use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Company shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Client’s premises and that have been communicated to it under condition 5.1(d), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5. CLIENT’S OBLIGATIONS
5.1 The Client shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) provide the Company, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Client’s premises, office accommodation, data and other facilities as reasonably required by the Company to perform its obligations under the Contract;
(c) provide to the Company, in a timely manner, such Documents and other information as the Company may reasonably require, and ensure that it is accurate in all material respects, in order to perform its obligations under the Contract; and
(d) inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the premises where the Services are to be provided;
5.2 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising
directly or indirectly from such prevention or delay.
6. CHARGES AND PAYMENT
6.1 Unless otherwise agreed by the Company in writing, the price for the Services shall be the Price.
6.2 The Price for the Services (and if applicable any goods and/or materials) shall be exclusive of any VAT, and for the avoidance of doubt the Client shall pay the VAT in addition to the Price when it is due to pay for the Services
6.3 Unless the Company specifies in writing to the contrary, the Company shall invoice the Client every 14 days for the duration of the Contract.
6.4 It is agreed that the Company shall have the right to invoice the Client for Preliminary Cost prior to any of the Services being provided.
6.5 Where the Company requires payment on account, or an advanced payment, (whether or not for Preliminary Costs) the Company shall, notwithstanding any other provision of these Condition, not be required to commence or to continue to provide the Services until such requested payment on account or advanced payment has been received by the Company in cleared funds.
6.6 The Client shall pay each invoice submitted to it by the Company, in full and in cleared funds, within 30 days of receipt, to the bank account nominated in writing by the Company.
6.7 The Client shall make all payments due under the Contract in full by the due date without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Client
6.8 If the Client fails to pay the Company any sum due pursuant to the Contract by the due date then the Company shall have the right, (without prejudice to any other rights of the Company) but is not obliged, to:-
(a) charge interest at either:
(i) a rate of 4% above the Company’s bank’s base rate from time to time on any payment not received by the due date until such sum is received irrespective of any other action taken in order to obtain satisfactory settlement of sums due; or
(ii) at the rate determined under the Late Payment of Commercial Debts (Interest) Act 1998 on any payment not received by the due date until such sum is received irrespective of any other action taken in order to obtain satisfactory settlement of sums due; and/or
(b) Suspend the performance of the Services until payment has been made in
6.9 Time for payment shall be of the essence of the Contract.
6.10 No payment shall be deemed to have been received until the Company has received cleared funds.
6.11 All sums payable to the Company under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.11 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.12 If the Client request a delay or deferment in the performance of the Services, and the Company, in its sole discretion, consents to delay or differ the performance of the Services, it is agreed that the Company shall be entitled to invoice the Client for any part of the Services which have been
performed at that time, and/or any goods and/or materials purchased by the Company, (including Preliminary Costs) together with the value of the Company’s work in progress on the Contract (including any reasonable profit margin attributable thereto), on payment terms of 30 days from the
date of invoice, notwithstanding that the Contract may not have been completed. Where the Client notifies the Company that the Services are to be recommenced, and that such Services are to be provided within previously agreed time periods, the Client agrees to be solely responsible for, and pay for, any increased fees and or costs of the Company in performing the Services including, but not limited to, increased man hours spent on the Contract, additional goods being provided or required, and/or the costs in hiring any additional equipment.
6.13 In the event that there is a dispute as to the costs or price of any additional goods and/or materials not specified in the original Tender Documentation and/or Quotation (“the Additions”), then it is agreed that the Client shall be required to pay the Price, less the value of the Additions in dispute. In the event that the dispute in relation to the Additions is resolved (however arising) and the Client agrees or is required to pay for the Additions, or any part thereof, payment shall be made to the Company within 2 Business Days of the agreement or determination (howsoever arising).
6.14 The provisions of condition 6.13 shall only apply to Additions and not to any goods and/or materials detailed or required to perform the Services in the original Tender Documentation and/or Quotation.
7. CONFIDENTIALITY AND THE COMPANY’S PROPERTY
7.1 Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to that party by the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning that party’s business or its products which the other party may obtain.
7.2 Either party may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out their obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
7.3 The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 7.
8. LIMITATION OF LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
8.1 This condition 8 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client of the Services, or any part of them; and (c)any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions limits or excludes the liability of the Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or
fraudulent misrepresentation by the Company; or
(c) for any liability incurred by the Client as a result of any breach by the Company of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
8.4 Subject to condition 8.2 and condition 8.3
(a) the Company shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9. DATA PROTECTION
The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Company in connection with the Services.
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other, immediately on giving notice to the other if:
(a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) the other party repeatedly breaches any of the terms of the Contract 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 the Contract; or
(c) the other party 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party 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; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
(f) 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 other party; or
(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.1(c) to condition 10.1(h) (inclusive); or
(j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
10.2 The parties acknowledge and agree that any breach of condition 6.5 and/or condition 6.6 shall constitute a material breach for the purposes of this condition 10.
10.3 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Client immediately on giving notice to the Client if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
10.4 On termination of the Contract for any reason:
(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable on receipt; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected; and
(c) the Client shall return to the Company any of the Company’s Documents (including but not limited to drawings, plans or specifications) which are in the Client’s possession or control.
10.5 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: condition 2.6, condition 5.2, condition 6, condition 7, condition 8, condition 10, condition 13, condition 17, condition 20; and condition 21
11. INTELLECTUAL PROPERTY
11.1 The Client warrants and undertakes to the Company that the Client has the legal right to use the information, and/or Documents (including any Intellectual Property Rights) provided or supplied by the Client to the Company, and agrees to indemnify the Company and keep the Company
indemnified against any claims, costs, awards, damages, interest, penalties, expenses, and losses (which includes but is not limited to both direct and indirect loss suffered by the Company including loss of profit) arising our of whether directly or indirectly the Client’s breach of any Intellectual Property Rights in any information and/or Documents provided or supplied to the Company.
11.2 It is agreed that all Intellectual Property Rights created or arising in any Document (including but not limited to any drawings, plans or specifications) created by or on behalf of the Company shall remain and vest solely in the Company, and the Client undertakes to the Company not to use
any such Document without the Company’s prior written consent. To the extent that any Intellectual Property Rights in any of the Company’s Documents vests in the Client, the Client undertakes to procure the assignment and or transfer of such Intellectual Property Rights to the Company.
12. FORCE MAJEURE
12.1 The Company reserves the right to defer the date of performance or to suspend the provisions of the Services (or any part thereof) or to cancel the Contract without liability to the Client if the Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 30 days, the Client shall be entitled to give notice in writing to the Company to immediately terminate the Contract.
13.1 The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
13.2 Unless the Client specifies in writing to the contrary, the Company shall be permitted to select the goods and/or materials used by the Company in the performance of the Services from time to time.
13.3 If the Client requests a change to the Services and/or any materials and/or goods provided by the Company, the Company shall, within a reasonable time, provide a written estimate to the Client of:
(a)the likely time required to implement the change;
(b) any variations to the Company’s charges, included but not limited to the Price, arising from the change; and
(c)any other impact of the change on the terms of the Contract.
13.4 The Company may charge for its time spent is assessing a request for a change of the Services (including any part thereof) and/or any materials or goods provided by the Client.
13.5 Subject to the provisions of this condition 13, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.1 If any provision of the Contract (or part of any provision), including but not limited to any provision of these Conditions, is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, (or if applicable, these Conditions) and the validity and enforceability of the other provisions of the Contract and these Conditions shall not be affected.
15.2 If a provision of the Contract (or part of any provision) including but not limited to any provision of these Conditions, is found illegal, invalid or unenforceable, then the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the
greatest extent possible, achieves the parties’ original commercial intention.
16. ENTIRE AGREEMENT
16.1 The Contact constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
16.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
16.3 Nothing in this condition shall limit or exclude any liability for fraud.
17.1 The Company shall have the right to sub-contract any or all of the Contract to such other person as the Company, reasonably considers able to perform the Contract or any part thereof as may be the case.
17.2 The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
18. NO PARTNERSHIP OR AGENCY
18.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
19. RIGHTS OF THIRD PARTIES
19.1 A person who is not a party to the Contract shall not have any rights under or in connection with it and the Contract (Rights of Third Parties) Act 1999 shall not apply.
20.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party’s address as follows:-
(a) (in case of communications to the Company) to its premises at Furness Drive, Poulton Industrial estate, Poulton – Le – Fylde, Lancashire, FY6 8JS or such changed address as shall be notified to the Client by the Company; or
(b) (in the case of the communications to the Client) to the registered office of the addressee (if it is a company) or to any address of the Client set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Client.
20.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address detailed above, or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract and these Conditions, and any dispute or claim arising out of or in connection with them or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims) and/or these Conditions.