TERMS FOR THE SUPPLY OF EQUIPMENT AND SERVICES
Your attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
The following definitions and rules of interpretation apply in the Agreement.
2. Agreement: the Agreement between you and us for the supply of Equipment and any Services in accordance with these Terms and the Estimate.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Delivery: our delivery of the Equipment to you at the Delivery Location in accordance with clause 5.1 or your collection of the Equipment from us at the Delivery Location in accordance with clause 5.3, as the case may be.
Delivery Location: has the meaning given in the Estimate or such other location we may agree.
Equipment: the Equipment (or any part of it) listed in the Estimate.
Estimate: our Estimate for the supply of Equipment and any Services to you.
Force Majeure Event: has the meaning given to it in clause 15.
Price: the price of the Equipment and Services set out in the Estimate.
Purchase Order: your purchase order submitted to us indicating that you would like to proceed with the Estimate.
Services: any services to be supplied by us to you as set out in the Estimate.
Terms: these terms and conditions as amended from time to time in accordance with clause 16.8.
Us, we and our: Wardle Marine Services Limited registered in England and Wales with company number 06215528 whose registered office is at Unit 2 Shelleys Lane, East Worldham, Alton, Hampshire GU34 3AQ.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
You and your: the person or firm who purchases the Equipment and any Services from us, whose details are set out in the Estimate.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns. 2
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) 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.
(e) A reference to writing or written includes delivery receipted or acknowledged emails.
3. BASIS OF AGREEMENT
3.1 Your Purchase Order constitutes an offer by you to buy Equipment and Services from us in accordance with the Agreement.
3.2 Your Purchase Order shall only be deemed to be accepted by us when we issue written acceptance of it to you at which point and on which date the Agreement shall come into existence.
3.3 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Equipment or illustrations or descriptions of the Services contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Agreement or have any contractual force.
3.4 These Terms apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.5 Estimates given by us shall not constitute an offer to you that is capable of acceptance, and they are only valid for a period of 30 Business Days from their date of issue.
3.6 All of these Terms shall apply to the supply of both Equipment and any Services except where application to one or the other is specified.
4. CHANGE CONTROL
4.1 If you wish to make alterations to the Equipment or the scope of Services to be supplied by us, please submit details of the requested change to us in writing.
4.2 We reserve the right, once we have arrived at the Delivery Location, to recommend changes to the supply and installation of the Equipment to you based on conditions at site whether above or below the waterline. If we feel this is necessary, then we shall do so in accordance with clause 4.3.
4.3 We shall, within a reasonable time, provide a written estimate to you of:
(a) the likely time required to implement the changes;
(b) any necessary variations to the Price arising from the changes; and 3
(c) any other impact of the changes on the Agreement.
4.4 If you wish to proceed with the change, we shall have no obligation to do so unless and until the parties have agreed the necessary variations to the Agreement to take account of the change and the Agreement has been varied in accordance with clause 16.8.
4.5 If you do not wish to follow our recommended changes in accordance with clause 4.2, we reserve the right to terminate the Agreement in accordance with clause 13.2.
4.6 Notwithstanding clause 4.4, we may, from time to time and by giving reasonable 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 Price for the Services.
5. DELIVERY OF EQUIPMENT
5.1 Where we have agreed to accept responsibility for Delivery, we shall ensure that each Delivery is accompanied by a delivery note which shows the date of the Agreement, all relevant reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Equipment is being delivered by instalments, the items of Equipment still to be delivered.
5.2 Where we have agreed to accept responsibility for Delivery, we shall deliver the Equipment to the Delivery Location at any time after we notify you that it is ready. Please ensure that a duly authorised representative is present when we Delivery the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that you have examined the Equipment and have 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 us, your duly authorised representative shall sign a receipt confirming such acceptance.
5.3 Where you have agreed to accept responsibility for the Delivery, you or your authorised representative shall collect the Equipment from the Delivery Location within three Business Days of us notifying you that it is ready. Acceptance of Delivery by you or your representative shall constitute conclusive evidence that you have examined the Equipment and have 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 us, your duly authorised representative shall sign a receipt confirming such acceptance.
5.4 Delivery shall be completed on the completion of unloading or loading of the Equipment at the Delivery Location, as the case may be.
5.5 Any dates quoted for Delivery by us are approximate only, and the time of our Delivery is not of the essence. We shall not be liable for any delay in Delivery that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. 4
5.6 If we fail to deliver the Equipment, to the extent you have already paid for it, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price paid. We shall have no liability for any failure to Deliver to the extent that such failure is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any relevant instruction related to the supply of the Equipment.
5.7 If you fail to Deliver the Equipment within three Business Days of us notifying you that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under the Agreement in respect of the Equipment:
(a) Delivery of the Equipment shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which we notified you that the Equipment was ready; and
(b) we shall store the Equipment until Delivery takes place, and charge you for all related costs and expenses (including insurance).
5.8 If 10 Business Days after we notify you that the Equipment is ready for Delivery, you have not taken Delivery of it, we may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to you for any excess over the Price paid to us or charge you for any shortfall below the Price paid.
5.9 We may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Agreement. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
5.10 To facilitate Delivery and installation, you shall at your sole expense provide all requisite materials, facilities, access and suitable working Terms to enable Delivery and installation to be carried out safely and expeditiously including the materials, facilities, access and working conditions specified in the Estimate.
6. QUALITY OF EQUIPMENT
6.1 Subject to receipt of payment in full from you, we shall pass on any warranty or guarantee in relation to the Equipment given by its manufacturer, details of which are available from us on request.
6.2 Subject to clause 6.3, we shall, at our option, repair or replace any defective Equipment, or refund the price of any defective Equipment in full if:
(a) you give notice to us in writing within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in clause 6.1;
(b) we are given a reasonable opportunity of examining such Equipment; and
(c) you (if we ask you to) return such Equipment to our place of business at your cost. 5
6.3 We shall not be liable for the Equipment’s failure to comply with the warranty in clause 6.1 if:
(a) you make any further use of such Equipment after giving a notice in accordance with clause 6.2;
(b) you have used the Equipment for a purpose other than as set out in the Estimate;
(c) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or any replacement of it or (if there are none) good trade practice;
(d) the defect arises as a result of us following any drawing or design supplied by you;
(e) you alter or repair the Equipment without our written consent;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working Terms;
(g) the defect arises through an act of force majeure or from adverse weather conditions.
6.4 Except as provided in this clause 6, we shall have no liability to you in respect failure of the Equipment to comply with the warranty set out in clause 6.1.
6.5 The terms of these Terms shall apply to any properly reinstalled, repaired or replacement Equipment supplied by us.
7. TITLE AND RISK
7.1 The risk in the Equipment shall pass to you on completion of Delivery.
7.2 Title to the Equipment shall not pass to you until we receive payment in full (in cash or cleared funds) for the Equipment and any other Equipment that we have supplied to you in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums.
7.3 Until title to the Equipment has passed to you, you shall:
(a) store the Equipment separately from all other Equipment held by you so that it remains readily identifiable as our property;
(b) not remove, deface or obscure any identifying mark on or relating to the Equipment;
(c) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on our behalf from the date of delivery;
(d) notify us immediately if you become subject to any of the events listed in clause 13.1(b) to clause 13.1(d); and
(e) give us any information relating to the Equipment which we may require. 6
7.4 Subject to clause 7.5, you may resell or use the Equipment in the ordinary course of your business (but not otherwise) before we receive payment for the Equipment. However, if you resell the Equipment before that time:
(a) you do so as principal and not as our agent; and
(b) title to the Equipment shall pass from us to you immediately before you resell it.
7.5 If before title to the Equipment passes to you, you become subject to any of the events listed in clause 13.1(b) to clause 13.1(d) then, without limiting any other right or remedy we may have:
(a) Your right to resell Equipment or use it in the ordinary course of your business ceases immediately; and
(b) we may at any time:
(i) require you to deliver up all Equipment in your possession which has not been resold, or irrevocably incorporated into another product; and
(ii) if you fail to do so promptly, enter any premises of yours or of any third party where the Equipment is stored in order to recover it.
8. SUPPLY OF SERVICES
8.1 We shall use all reasonable endeavours to meet any performance dates for the Services specified in our acceptance under clause 3.2, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.2 We warrant to you that the Services will be provided using reasonable care and skill.
9. YOUR OBLIGATIONS
9.1 You shall:
(a) ensure that any information you provide to us is complete and accurate including all information relating to your intended use of the Equipment;
(b) prepare your premises for the delivery of the Equipment and supply of the Services;
(c) co-operate with us in all matters relating to the Services;
(d) provide us, our employees, agents, consultants and subcontractors, with access to your premises and other facilities as reasonably required by us to deliver the Equipment and provide the Services;
(e) provide us with such information and materials as us may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; 7
(g) comply with all applicable laws, including health and safety laws; and
(h) comply with all instructions given by us to you in respect of the installation of the Equipment which are available on our website where you have elected not to engage us to install the Equipment for you.
9.2 If our performance of any of our obligations under the Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Your Default):
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of any of our obligations in each case to the extent Your Default prevents or delays our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 9.2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
10. PRICES AND PAYMENT
10.1 The price for Equipment and Services shall be the price set out in the Estimate unless modified in accordance with clause 4.
10.2 In respect of Equipment, we shall invoice you on or at any time after completion of Delivery. In respect of Services, we shall invoice you on completion of the Services.
10.3 You shall, unless otherwise agreed with us, pay each invoice submitted by us:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by us, and
time for payment shall be of the essence of the Agreement.
10.4 If you have paid a deposit to use to secure a site survey prior to receipt of our Estimate, we shall deduct fifty per cent of any deposit paid from our final invoice to you.
10.5 All amounts payable by you under the Agreement are exclusive of amounts in respect of VAT chargeable from time to time. Where any taxable supply for VAT purposes is made under the Agreement by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
10.6 If you fail to make a payment due to us under the Agreement by the due date, then, without limiting our remedies under clause 13 (Termination), we shall be entitled to charge you 8
interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
10.7 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law).
11.1 Unless you ask us not to, you agree that we can use photos of the Equipment once installed which you authorise us to post on social media sites.
12. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 Nothing in these Terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractor;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:
(a) loss of profits;
(b) loss of revenue;
(c) loss of sales or business;
(d) loss of contracts or agreements;
(e) loss of anticipated savings;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
12.3 Subject to clause 12.1, our total liability to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Agreement, shall be limited to the total charges paid under the Agreement. 9
12.4 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 and the terms implied by sections 3 to 5 of the Supply of Equipment and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
12.5 This clause 12 shall survive termination of the Agreement.
13.1 Without affecting any other right or remedy available to us, we may terminate the Agreement with immediate effect by giving written notice to you if:
(a) You commit a material breach of your obligations under the Agreement and (if such breach is remediable) fail to remedy that breach within 20 days after receipt of notice in writing to do so;
(b) You take any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) You suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of your business; or
(d) Your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
13.2 Without affecting any other right or remedy available to us, we may terminate the Agreement with immediate effect by giving written notice to you if you:
(a) fail to pay any amount due under the Agreement on the due date for payment; or
(b) undergo a change of control as defined in section 1124 of the Corporation Tax Act 2010; or
(c) fail to take our professional advice regarding the structural adequacy and safety of the installation with respect to the purpose for which you wish to use it identified in the Estimate or in the process of installing the Equipment.
13.3 Without affecting any other right or remedy available to us, we may suspend the supply of Services or all further deliveries of Equipment under the Agreement or any other Agreement between you and us if you fail to pay any amount due under the Agreement on the due date for payment, you becomes subject to any of the events listed in clause 13.1(b) to 13.1(d), or we reasonably believe that you are about to become subject to any of them.
14. CONSEQUENCES OF TERMINATION
14.1 On termination of the Agreement: 10
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(b) you shall return all of our Equipment which has not been fully paid for. If you fail to do so, then we may enter your premises and take possession of it. Until it has been returned, you shall be solely responsible for its safe keeping and will not use it or any part of it for any purpose not connected with this Agreement.
14.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
14.3 Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
15. FORCE MAJEURE
Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.1 Assignment and other dealings
(a) We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Agreement.
(b) You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and obligations under the Agreement without our prior written consent.
(a) Any notice or other communication given to a party under or in connection with the Agreement 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 email to the address specified in the Estimate.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9.00 am on the next Business Day after transmission. 11
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.3 Severance. If any provision or part-provision of the 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 the Agreement.
16.4 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 Entire agreement
(a) The 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.
(b) Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Agreement.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
16.7 Third parties rights. The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
16.8 Variation. Except as set out in these Terms, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
16.9 Governing law. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. 12
16.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.