1.1
The definitions
and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Contract: the Customer's purchase order and the Supplier's
acceptance of it, or the Customer's acceptance of a quotation for Services by
the Supplier under condition 2.2.
Customer: the person, firm or company who purchases Services
from the Supplier.
Customer's
Equipment: any equipment, systems, cabling or
facilities provided by the Customer and used directly or indirectly in the
supply of the Services.
Customer's
Manager: the Customer's manager for the Services,
appointed in accordance with condition 5.1.
Document: includes, 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.
In-put
Material: all Documents, information and
materials provided by the Customer relating to the Services.
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.
Pre-existing
Materials: all Documents, information and
materials provided by the Supplier relating to the Services which existed prior
to the commencement of the Contract including computer programs, data, reports
and specification.
Services: the services to be provided by the Supplier under the
Contract as set out in the purchase order, together with any other services
which the Supplier provides or agrees to provide to the Customer.
Supplier: Health & Safety Training Limited (Company
Registration Number 04692462) registered office, Unit 1 Lawson Street, Dock
Road Industrial Estate, North Shields, Tyne & Wear, NE29 6TF.
Supplier's
Equipment: any equipment, including tools,
systems, cabling or facilities, provided by the Supplier or its subcontractors
and used directly or indirectly in the supply of the Services which are not the
subject of a separate agreement between the parties under which title passes to
the Customer.
Supplier's
Manager: the Supplier's manager for the
Services appointed under condition 4.3.
VAT: value added tax chargeable under English law for the
time being and any similar additional tax.
1.2
Condition,
schedule and paragraph headings shall not affect the interpretation of these
conditions.
1.3
A person
includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality).
1.4
Words in the
singular shall include the plural and vice versa.
1.5
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 re-enactment and
includes any subordinate legislation for the time being in force made under it.
1.6
A reference to writing
or written includes faxes but not e-mail.
1.7
Where the words include(s),
including or in particular are used in these terms and conditions,
they are deemed to have the words without limitation following them and
where the context permits, the words other and otherwise are
illustrative and shall not limit the sense of the words preceding them.
1.8
Any obligation in
the Contract on a person not to do something includes an obligation not to
agree, allow, permit or acquiesce in that thing being done.
1.9
References to
conditions and schedules are to the conditions and schedules of the Contract.
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 Customer's
purchase order, confirmation of order, acceptance of a quotation or
specification, or implied by law, trade custom, practice or course of dealing.
(a)
by a written
acknowledgement issued and executed by the Supplier; or
(b)
(if earlier) by
the Supplier starting to provide the Services,
when a contract for the supply and
purchase of those Services on these Conditions will be established. The
Customer'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 Supplier 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 Supplier has not previously withdrawn
it.
3.1
The Services
supplied under the Contract shall be provided by the Supplier to the Customer on
the date set out in the Customer’s purchase order following acceptance by the
Supplier of the Customer's offer in accordance with condition 2.2.
3.2
The Services
supplied under the Contract shall continue to be supplied in accordance with
the Customer’s offer unless the Contract is terminated in accordance with
condition 12.
4.1
The Supplier shall
use reasonable endeavours to provide the Services, in accordance in all
material respects with the purchase order.
4.2
The Supplier
shall use reasonable endeavours to meet any performance dates specified in the
purchase order, but any such dates shall be estimates only and time shall not
be of the essence of the Contract.
4.4
The Supplier
shall use all reasonable endeavours to observe all health and safety rules and
regulations and any other reasonable security requirements that apply at any of
the Customer's premises and that have been communicated to it under condition 5.1(e),
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.
(a) co-operate with the Supplier in all matters relating to
the Services and appoint the Customer's Manager in relation to the Services,
who shall have the authority contractually to bind the Customer on matters
relating to the Services;
(b) provide, for the Supplier, its
agents, sub-contractors and employees, in a timely manner and at no charge,
access to the Customer's premises, office accommodation, data and other
facilities as requested by the Supplier including but not exclusively a
practical manoeuvring area away from normal operations (preferably undercover)
measuring approximately 12m by 6m, a larger area will be required in respect of
larger lift trucks, access to the Customer’s industrial racking system and
vehicle loading facilities and a suitable room with adequate tables and chairs;
(c) provide, in a timely manner, such
In-put Material and other information as the Supplier may request and ensure
that it is accurate in all material respects, including but not exclusively the
Customer’s authorisation to operate, a copy of the current ‘Report of Thorough
Examination (LOLER 98) for the lifting chains and lift truck’, lift truck
manufacturer’s safe operating handbook and a supply of empty pallets;
(f) ensure that all Customer's Equipment
is in good working order and suitable for the purposes for which it is used in
relation to the Services and conforms to all relevant UK standards or requirements;
(g) obtain and maintain all necessary
licences and consents and comply with all relevant legislation in relation to
the Services, the installation of the Supplier's Equipment, the use of In-put
Material and the use of the Customer's Equipment in relation to the Supplier's
Equipment in all cases before the date on which the Services are to start;
(h) ensure the Customer’s employee’s
uninterrupted attendance for the duration of the supply of Services.
5.2
If the Supplier's
performance of its obligations under the Contract is prevented or delayed by
any act or omission of the Customer, its agents, sub-contractors or employees,
the Supplier shall not be liable for any costs, charges or losses sustained or
incurred by the Customer arising directly or indirectly from such prevention or
delay.
5.3
The Customer
shall be liable to pay to the Supplier, on demand, all reasonable costs,
charges or losses sustained or incurred by the Supplier (including any direct,
indirect or consequential losses, loss of profit and loss of reputation, loss
or damage to property and those arising from injury to or death of any person
and loss of opportunity to deploy resources elsewhere) arising directly or
indirectly from the Customer's fraud, negligence, failure to perform or delay
in the performance of any of its obligations under the Contract, subject to the
Supplier confirming such costs, charges and losses to the Customer in writing.
5.5
Any consent given
by the Supplier in accordance with condition 5.4 shall be subject to the
Customer paying to the Supplier a sum equivalent to 20% of the then current
annual remuneration of the Supplier's employee or sub-contractor or, if higher,
20% of the annual remuneration to be paid by the Customer to that employee or
sub-contractor.
6.1
If either party
requests a change to the scope or execution of the Services, the Supplier
shall, within a reasonable time, provide a written estimate to the Customer of:
(a)
the likely time
required to implement the change;
(b)
any variations to
the Supplier's charges arising from the change;
(c)
any other impact
of the change on the terms of the Contract.
6.2
The Supplier 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. If the Supplier requests a change to the scope of the Services for
any other reason, the Customer shall not unreasonably withhold or delay consent
to it.
6.3
If the Customer
wishes the Supplier to proceed with the change, the Supplier has no obligation
to do so unless and until the parties have agreed in writing on the necessary
variations to its charges and any other relevant terms of the Contract to take
account of the change.
6.4
The Supplier may
charge for its time spent in assessing a request for change from the Customer
on a time and materials basis in accordance with condition 7.
7.1
Condition 7.2
shall apply if the Supplier provides the Services on a time and materials
basis. Condition 7.3 shall apply if the Supplier provides the Services for a
fixed price. The remainder of this condition 7 shall apply in either case.
(a)
the charges
payable for the Services shall be calculated in accordance with the Supplier's
standard daily fee rates, as amended from time to time by the Supplier giving
not less than three months written notice to the Customer;
(c)
the Supplier
shall be entitled to charge an overtime rate of 50 of the normal daily fee rate
on a pro-rata basis for each part day or for any time worked by individuals
whom it engages on the Services outside the hours referred to in condition 7.2(b);
(d)
all charges
quoted to the Customer shall be exclusive of VAT which the Supplier shall add
to its invoices at the appropriate rate;
(e)
the Supplier
shall ensure that every individual whom it engages on the Services completes
time sheets recording time spent, and the Supplier shall use such time sheets
to calculate the charges covered by each monthly invoice referred to in
condition 7.2(f); and
(a)
the cost of
hotel, subsistence, travelling and any other ancillary expenses reasonably
incurred by the individuals whom the Supplier engages in connection with the
Services, the cost of any materials and the cost of services reasonably and
properly provided by third parties and required by the Supplier for the supply
of the Services. Such expenses, materials and third party services shall be
invoiced by the Supplier at cost; and
(b)
VAT, which the
Supplier shall add to its invoices at the appropriate rate.
7.4
The Customer
shall pay each invoice submitted to it by the Supplier, in full and in cleared
funds, within 30 days of receipt.
7.5
Without prejudice
to any other right or remedy that it may have, if the Customer fails to pay the
Supplier on the due date, the Supplier may:
(a)
charge interest
on such sum from the due date for payment at the annual rate of 4% above the
base lending rate from time to time of Barclays Bank PLC, accruing on a daily
basis and being compounded quarterly until payment is made, whether before or
after any judgment and the Supplier may claim interest and compensation under
the Late Payment of Commercial Debts (Interest) Act 1998; and
(b)
suspend all
Services until payment has been made in full.
7.6
Time for payment
shall be of the essence of the Contract.
7.8
The Supplier may,
without prejudice to any other rights it may have, set off any liability of the
Customer to the Supplier against any liability of the Supplier to the Customer.
7.9
Without prejudice
to any other right or remedy that it may have, if the Customer gives Notice in
accordance with clause 20 of cancellation of any order for the supply of
Services, all sums payable under the Contract will become due immediately if
such Notice is given less then 24 hours prior to the date agreed for the
provision of Services and if such Notice is given less than 3 working days
prior to the date agreed for the provision of Services 50% of all sums payable
under the contract will become immediately payable, such sums to be calculated
in accordance with clause 7.2.
8.1
As between the
Customer and the Supplier, all Intellectual Property Rights and all other
rights in the Deliverables and the Pre-existing Materials shall be owned by the
Supplier. Subject to condition 8.2, the Supplier licenses all such rights to
the Customer free of charge and on a non-exclusive, worldwide basis to such
extent as is necessary to enable the Customer to make reasonable use of the Deliverables
and the Services. If the Contract is terminated, this licence will
automatically terminate.
9.1
The Customer
shall keep in strict confidence all technical or commercial know-how,
specifications, inventions, processes or initiatives which are of a
confidential nature and have been disclosed to the Customer by the Supplier,
its employees, agents or sub-contractors and any other confidential information
concerning the Supplier's business or its products which the Customer may
obtain. The Customer shall restrict disclosure of such confidential material to
such of its employees, agents or sub-contractors as need to know the same for
the purpose of discharging the Customer's obligations to the Supplier, and
shall ensure that such employees, agents or sub-contractors are subject to
obligations of confidentiality corresponding to those which bind the Customer.
9.2
All materials,
equipment and tools, drawings, specifications and data supplied by the Supplier
to the Customer (including Pre-existing Materials and the Supplier's Equipment)
shall, at all times, be and remain as between the Supplier and the Customer the
exclusive property of the Supplier, but shall be held by the Customer in safe
custody at its own risk and maintained and kept in good condition by the
Customer until returned to the Supplier, and shall not be disposed of or used
other than in accordance with the Supplier's written instructions or authorisation.
9.3
This condition 9
shall survive termination of the Contract, however arising.
10.1
This condition 10
sets out the entire financial liability of the Supplier (including any
liability for the acts or omissions of its employees, agents and
sub-contractors) to the Customer in respect of:
(a)
any breach of the
Contract;
(b)
any use made by
the Customer of the Services, the Deliverables 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.
(a)
for death or
personal injury resulting from negligence; or
(b)
for any damage or
liability incurred by the Customer as a result of fraud or fraudulent
misrepresentation by the Supplier; or
10.4
Subject to
condition 10.2 and condition 10.3:
(a)
the Supplier
shall not be liable, whether in tort (including for negligence or breach of
statutory duty), contract, misrepresentation or otherwise for:
(i)
any special,
indirect, consequential or pure economic loss, costs, damages, charges or
expenses.
(b)
the Supplier's
total liability in contract, tort (including negligence or breach of statutory
duty), misrepresentation, restitution or otherwise arising in connection with
the performance or contemplated performance of the Contract shall be limited to
the price paid for the Services.
The Customer acknowledges and agrees
that details of the Customer'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 Supplier in connection with the Services.
12.1
Subject to
condition 12.3, the Contract shall terminate automatically on completion of the
supply of Services.
(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)
an order is made
or a resolution is passed for the winding up of the other party, or
circumstances arise which entitle a court of competent jurisdiction to make a
winding-up order of the other party; or
(c)
an order is made
for the appointment of an administrator to manage the affairs, business and
property of the other party, or documents are filed with a court of competent
jurisdiction for the appointment of an administrator of the other party, or
notice of intention to appoint an administrator is given by the other party or
its directors or by a qualifying floating charge holder (as defined in
paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d)
a receiver is
appointed of any of the other party's assets or undertaking, or circumstances
arise which entitle a court of competent jurisdiction or a creditor to appoint
a receiver or manager of the other party, or if any other person takes
possession of or sells the other party's assets; or
(e)
the other party
makes any arrangement or composition with its creditors, or makes an
application to a court of competent jurisdiction for the protection of its
creditors in any way; or
(f)
the other party
ceases, or threatens to cease, to trade; or
(g)
there is a change
of control of the other party (as defined in section 574 of the Capital
Allowances Act 2001); or
(h)
the other party
takes or suffers any similar or analogous action in any jurisdiction in
consequence of debt.
(a)
the Customer
shall immediately pay to the Supplier all of the Supplier's outstanding unpaid
invoices and interest and, in respect of Services supplied but for which no
invoice has been submitted, the Supplier may submit an invoice, which shall be
payable immediately on receipt;
(b)
the Customer
shall return all of the Supplier's Equipment and Pre-existing Materials. If the
Customer fails to do so, then the Supplier may enter the Customer's premises
and take possession of them. Until they have been returned or repossessed, the
Customer shall be solely responsible for their safe keeping; and
(c)
the accrued
rights of the parties as at termination and the continuation of any provision
expressly stated to survive or implicitly surviving termination, shall not be
affected.
The Supplier shall have no liability
to the Customer under the Contract if it is prevented from or delayed in
performing its obligations under the Contract or from carrying on its business
by acts, events, omissions or accidents beyond its reasonable control,
including strikes, lock-outs or other industrial disputes (whether involving
the workforce of the Supplier or any other party), failure of a utility service
or transport network, act of God, war, riot, civil commotion, malicious damage,
compliance with any law or governmental order, rule, regulation or direction,
accident, breakdown of plant or machinery, fire, flood, storm or default of
suppliers or sub-contractors.
Subject to condition 6, 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.
15.1
A waiver of any
right under the Contract is only effective if it is in writing and it applies
only to the party to whom the waiver is addressed and the circumstances for
which it is given.
15.2
Unless
specifically provided otherwise, rights arising under the Contract are
cumulative and do not exclude rights provided by law.
16.3
The parties
agree, in the circumstances referred to in condition 16.1, to attempt to
substitute for any invalid, unenforceable or illegal provision a valid,
enforceable and legal provision which achieves to the greatest extent possible
the same effect as would have been achieved by the invalid or unenforceable
provision.
Each of the parties acknowledges and
agrees that, in entering into the Contract it does not rely on any undertaking,
promise, assurance, statement, representation, warranty or understanding
(whether in writing or not) of any person (whether party to these terms and
conditions or not) relating to the subject matter of the Contract, other than
as expressly set out in the Contract.
Nothing in the Contract is intended
to, or shall operate to, create a partnership between the parties, or to
authorise either party to act as agent for the other, and neither party shall
have authority to act in the name or on behalf of or otherwise to bind the other
in any way (including the making of any representation or warranty, the
assumption of any obligation or liability and the exercise of any right or
power).
the Contract is made for the benefit
of the parties to it and (where applicable) their successors and permitted
assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under the Contract shall
be in writing, sent for the attention of the person, and to the address or fax
number, given in the Contract (or such other address, fax number or person as
the relevant party may notify to the other party) and shall be delivered
personally, sent by fax or sent by pre-paid, first-class post or recorded
delivery. A notice is deemed to have been received, if delivered personally, at
the time of delivery, in the case of fax, at the time of transmission, in the
case of pre-paid first class post or recorded delivery, 48 hours from the date
of posting and, if deemed receipt under this condition 20 is not within
business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a
business day), at 9.00 am on the first business day following delivery. To
prove service, it is sufficient to prove that the notice was transmitted by
fax, to the fax number of the party or, in the case of post, that the envelope
containing the notice was properly addressed and posted.
21.1
the Contract and
any dispute or claim arising out of or in connection with it or its subject
matter, 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.