Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Conditions: these Terms of Business (as may be varied from time to time).
Deliverables: the deliverables set out in the Order.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings that are agreed in writing between you and us.
Intellectual Property Rights: all patents, rights to inventions, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill, passing off, unfair competition rights, rights in designs 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.
Order: your order for the supply of Goods and/or Services, as set out in your purchase order form, or your acceptance of our quotation as the case may be.
Our Materials: has the meaning set out in clause 8.1.7.
Services: the services, including the Deliverables, supplied by us to you as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by us to you.
we/us: Northern Pump Suppliers Limited (company number 02086225) whose registered office is at Bowling Back Lane,
Bradford, West Yorkshire BD4 8SR.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by you to purchase Goods and/or Services in accordance with these Conditions.
2.2 Your Order will only be deemed to have been accepted by us when we issue you with a written acceptance of your Order, or when we start to perform the related Services or deliver the Goods, whichever happens first. At this point a formal contract between you and us on the terms of the Order will be formed (a Contract).
2.3 The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us, which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Goods 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 Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract 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.
2.6 Any quotation given by us shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 We reserve the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 We shall deliver the Goods to the location set out in the Order or such other location as we may agree with you
(Delivery Location) at any time after we notify you that the Goods are ready.
4.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event (as defined in 15.1)
or your failure to provide us with adequate delivery or other instructions relevant to the supply of the Goods.
4.4 If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure
Event or your failure to provide us with adequate delivery or other instructions relevant to the supply of the Goods.
4.5 If you fail to accept or take delivery of the Goods within 5 Business Days of us notifying you that the Goods are 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 Contract in respect of the Goods:
4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the 6th Business Day following the day on which the we notified you that the Goods were ready; and
4.5.2 we shall store the Goods until delivery takes place, and charge you for all related costs and expenses (including insurance).
4.6 If you have not accepted or taken delivery of the Goods after 5 Business Days from us notifying you that were ready for delivery, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
4.7 You shall not be entitled to reject the Goods if we deliver up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from you that the wrong quantity of Goods was delivered.
4.8 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
4.9 Unless we tell you otherwise, all packaging cases, skids, drums and other packaging materials must be returned to us at your expense and in good condition within 20 Business Days from your receipt. We may charge you for any packaging not returned to us within 20 Business Days.
5. QUALITY OF GOODS
5.1 We warrant that on delivery the Goods shall conform in all material respects with the Goods Specification, be free from material defects in design, material and workmanship and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, if you give us notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1 and we are given a reasonable opportunity of examining such Goods and you (if asked to do so by us) return such Goods to our place of business at your cost, then we shall, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 We shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
5.3.1 you make any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 you use the Goods for a purpose other than the purpose notified to us in the Goods Specification or in writing;
5.3.4 you use the Goods in a manner other than the manner notified to us in the Goods Specification or in writing;
5.3.5 you alter or repair such Goods without our written consent;
5.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.3.7 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, we shall have no liability to you in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by us under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to you on completion of delivery.
6.2 Title to the Goods shall not pass to you until we have received payment in full (in cash or cleared funds) for both the Goods and any other goods that we have supplied to you in respect of which payment has become due.
6.3 Until title to the Goods has passed to you, you shall:
6.3.1 hold the Goods on a fiduciary basis as our bailee;
6.3.2 store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on our behalf from the date of delivery;
6.3.5 notify us immediately if you become subject to any kind of insolvency proceedings whatsoever; and
6.3.6 give us such information relating to the Goods as we may require from time to time,
but you may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to you, you become subject to any kind of insolvency proceedings whatsoever, or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Goods and, if you fail to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 We shall provide the Services to you in accordance with the Service Specification in all material respects.
7.2 We shall use all reasonable endeavours to meet any performance dates for the Services specified, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.
7.4 We warrant to you that the Services will be provided using reasonable care and skill.
8. YOUR OBLIGATIONS
8.1 You shall:
8.1.1 ensure that the terms of the Order and (if submitted by you) the Goods Specification are complete and accurate;
8.1.2 co-operate with us in all matters relating to the Services;
8.1.3 provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us to provide the Services;
8.1.4 provide us with such information and materials as we may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
8.1.5 prepare your premises for the supply of the Services;
8.1.6 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; and
8.1.7 keep and maintain all materials, equipment, documents and other property of ours (Our Materials) at your premises in safe custody at your own risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our written instructions or authorisation.
8.2 If our performance of any of our obligations in respect of the Services is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Your Default):
8.2.1 we shall without limiting our other rights or remedies 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 to the extent Your Default prevents or delays our performance of any of our obligations;
8.2.2 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 8.2; and
8.2.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default.
9. CHARGES AND PAYMENT
9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price agreed between us. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by you when you pay for the Goods.
9.2 We reserve the right to increase the price of the Goods, by giving notice to you at any time before delivery, to reflect any increase in the cost of the Goods to us that is due to any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs) or any request by you to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification or any delay caused by any of your instructions in respect of the Goods or your failure to us adequate or accurate information or instructions in respect of the Goods.
9.3 In respect of Goods, where you have not paid for the Goods in advance, we shall invoice you on or at any time after completion of delivery. In respect of Services, where you have not paid for the Services in advance we shall invoice you on or at any time after completion of supply of the Services.
9.4 You shall pay each invoice submitted by us within 30 days of the date of the invoice and 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 Contract.
9.5 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract 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 Goods at the same time as payment is due for the supply of the Services or Goods.
9.6 Without limiting any of our other rights or remedies, if you fail to make any payment due to us under the Contract by the due date for payment (Due Date), we shall have the right to charge interest on the overdue amount at the rate of 4% per cent per annum above the then current Natwest Bank plc's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
9.7 You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by us.
10.2 You acknowledge that, in respect of any third party Intellectual Property Rights in the Services, you use of any such Intellectual Property Rights is conditional on us obtaining a written licence from the relevant licensor on such terms as will entitle us to license such rights to you.
10.3 All Our Materials are our exclusive property.
A party (Receiving 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 the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY
12.1 Nothing in this Contract shall limit or exclude our liability for death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors or fraud or fraudulent misrepresentation or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or section 12 of the Sale of Goods Act 1979 or 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), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract and our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the aggregate amount paid by you to us under the Contract.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13.1 Without limiting any of our other rights or remedies we may terminate the Contract with immediate effect by giving you written notice if the following happens:
13.1.1 you breach any of these Conditions; or
13.1.2 you are or become involved in any kind of insolvency proceedings whatsoever; or
13.1.3 you put the Contract on hold for a period of time exceeding six months; or
13.1.4 you fail to pay any amount due under this Contract or any other contract between us on the due date for payment.
13.2 Without limiting our other rights or remedies, we may terminate the Contract by giving you 5 Business Days’ written notice;
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
14.1.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
14.1.2 you shall return to us all of Our Materials and any Deliverables which have not been fully paid for. If you fail to do so, then we may enter the your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
14.1.3 the accrued rights and remedies of each of us as at termination shall not be affected; and
14.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 We will not be in breach of any of our obligations to you under the Contract or liable for any delay or anything else if it is your fault, or if is results from something outside of our control including (but not limited to) industrial action, failure of a utility service or transport network, act of God, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, failure of IT systems, terrorism, fire, flood, storm or default of suppliers or subcontractors (a “Force Majeure Event”).
15.2 If a Force Majeure Event prevents us from providing any of the Services for more than 4 weeks, we may terminate the Contract immediately by giving written notice to you.
15.3 We may subcontract or delegate our obligations to you under the Contract to any third party and we may transfer our rights under the Contract. However, any subcontract or transfer will not relieve us of being responsible for our obligations under the Contract. Our subcontractor will also be entitled to subcontract its obligations on the same basis.
15.4 Unless we agree in writing you cannot transfer, assign or sub-licence your rights under the Contract to someone else.
15.5 We agree that any notice under this Contract must be made in writing. We will assume it has been received 2 Business Days after the date it was posted. We will also assume that any notice given by fax shall be deemed to have been received at the beginning of the next working Day, so long as a confirmation of sending receipt is received. Notices sent to you will be addressed to your contact at the address that you give us when you place your Order. Notices to us must be addressed to Managing Director, Northern Pump Supplies Limited, Bowling Back Lane, Bradford, West Yorkshire
15.6 A waiver of any right under the Contract is only effective if it is in writing and it shall not be deemed to be a waiver of any subsequent breach or default.
15.7 If at any time we have a claim against you and we do not pursue that claim quickly, that does not mean the claim cannot be pursued when we are ready.
15.8 Any rights which arise under the Contract are cumulative and do not exclude any rights which are provided by law.
15.9 If a court says that part of a Contract is not enforceable in law that does not mean the rest of the Contract is not.
15.10 The Contract does not create any partnership or joint venture of any kind between us, and you have no right to
contract in our name or make any promises on our behalf.
15.11 A person or company who is not a party to the Contract shall not have any rights under or in connection with it.
15.12 The Contract cannot be varied without our written consent.
15.13 If things go wrong and there is a dispute, English law will apply and the English Courts will have non-exclusive jurisdiction over the dispute.