PARAGON DESIGN JOINERY LIMITED’S TERMS OF BUSINESS
1. INTERPRETATION
1.1. In these Conditions the following definitions apply:
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date has the meaning given in Clause 2.2.
Conditions means these terms and conditions as amended from time to time in accordance with Clause 15.
Contract means the contract between us and you for the supply of Goods and/ or execution of Work in accordance with these Conditions.
Contract Price means the amount payable for the Goods and/or Works under the Contract.
Contractor Design Work has the meaning given in Clause 3.1.
Data Protection Legislation all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including: (i) any data protection legislation from time to time in force in the United Kingdom including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Force Majeure Event means any event, circumstance or cause beyond a party’s reasonable control including: (i) strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party); (ii) failure of a utility service or transport network; (iii) act of God, flood, drought, earthquake or other natural disaster; (iv) epidemic or pandemic; (v) terrorist attack, war, riot, civil commotion, malicious damage; (vi) compliance with any law or any action taken by a government or public authority including governmental order, rule, regulation or direction; (vii) imposition of sanctions, embargo; (viii) collapse of building, fire, explosion or accident; (ix) breakdown of plant or machinery; (x) default of suppliers or subcontractors; and (xi) interruption or failure of utility service.
Goods means the goods, materials or components (or any part of them) as set out in the quotation or Order Acknowledgement (if the quotation is amended after its issue).
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Rates means our standard rates in effect from time to time as set out in our quotation or otherwise available from us on request.
Order means your written confirmation of our quotation.
Order Acknowledgement has the meaning given in Clause 2.2.
Practical Completion means the date on which in our opinion our Work under the Contract is completed save for minor defects, and minor items to complete or improve, neither of which physically affect the use of the Goods nor Work to a material extent.
Site means the building or part of a building to which Goods are to be supplied and/or at which Work is to be executed under the Contract.
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
we, us, and our refers to Paragon Design Joinery Limited (CRN 8401583) whose registered office is at 12 Arkwright Road, Reading, Berkshire, RG2 0LU;
Work includes all work done under the Contract by us for you, whether on or off the site and including any Contractor Design Work, unless the context otherwise allows, as more particularly detailed in the quotation or Order Acknowledgement (if the quotation is amended after its issue).
you and your refer to the person, firm or company for whom we are supplying Goods and/or executing Work.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3. A reference to a party includes its personal representatives, successors and permitted assigns.
1.4. 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.
1.5. 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.
1.6. A reference to writing or written includes email but not fax.
2. FORMATION OF CONTRACT
2.1. The Order constitutes an offer by you to purchase Goods and/or Work in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when we issue written acceptance of the Order (Order Acknowledgement) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any quotation given by us shall not constitute an offer and is only valid for a period of 14 days from its date of issue unless we exercise our absolute discretion to amend or withdraw the quotation before the expiry of that period.
2.4. Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Goods or illustrations or descriptions of the Work contained in our catalogues, brochures, websites or advertising material are issued or published for the sole purpose of giving an approximate idea of the Work and/or Goods described in them. They shall not form part of the Contract or have any contractual force. These documents shall remain our property and shall not be duplicated or used in any way without our written permission.
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. You waive any right you might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents created or produced by you that is inconsistent with these Conditions.
2.7. You must check our Order Acknowledgement and notify us of any error or discrepancy within 24 hours of its issue. After the expiry of that period, the details will be deemed agreed.
2.8. We reserve the right to make reasonable amendments to descriptions or specifications of Goods and/or Work.
2.9. All of these Conditions shall apply to the supply of both Goods and Work except where application to one or the other is specified.
2.10. Your Order must be in accordance with our quotation. You agree to leave to our decision any detail not specified in our quotation. If between the quotation and your Order we discuss further changes to the original quotation, these will only be accepted by us if contained within the Order Acknowledgement.
3. DESIGN SERVICES
3.1. To the extent that our quotation or Order Acknowledgement (if the quotation is amended after its issue) contains any design work or services to be performed by us (Contractor Design Work):
3.1.1. we shall carry out the Contractor Design Work using the reasonable skill and care normally used by professionals designing similar Contractor Design Work;
3.1.2. if we base any drawings, costings or designs on the information you supply, we will not be liable for any resultant errors, omissions, loss or damage if the information supplied is inaccurate or incomplete in any respect; and
3.1.3. we shall not be responsible for any portion of any design or specifications prepared by you or on your behalf or for any wider design or specifications relating to the Site.
3.2. To the extent that the Goods are to be manufactured and/or Works carried out in accordance with a specification of any information supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us: (i) in relation to the supply or use of the Goods and/or Works; and (ii) for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with our use of your specification of other information. This Clause 3.2 shall survive termination or expiry of the Contract.
4. GOODS AND DELIVERY
4.1. The Goods are as described in our quotation or Order Acknowledgement (if amended after the issue of the quotation).
4.2. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Site.
4.3. On delivery of Goods which we will not install, you must sign our, or the carrier’s, delivery document after inspecting the Goods.
4.4. Any alleged damage to or missing delivered Goods must be notified to us within 24 hours of delivery.
4.5. If you fail to accept delivery of the Goods within three 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 our failure to comply with our obligations under the Contract in respect of Goods:
4.5.1. delivery of the Goods 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 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. We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery, cancellation of delivery or defect in an instalment shall not entitle you to cancel any other instalment or order.
4.7. 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 any of the following circumstances:
4.7.1. a failure by you to meet payment obligations;
4.7.2. your failure to provide us with adequate access to Site or with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods;
4.7.3. you fail to accept Goods within thirty (30) Business Days after the day on which we notified you that the Goods were ready for delivery;
4.7.4. the Site is not, in our sole and absolute opinion, able to receive the Goods; and
4.7.5. a Force Majeure Event,
and in such circumstances we reserve the right to terminate the Contract in whole or in part without any obligation to pay compensation to you and to issue an invoice for the full price of the Goods.
4.8. You must allow us access to the Goods if we need to inspect, test, repair, service or repossess them, and for this purpose, you must allow us at reasonable times and after giving reasonable notice to enter any premises where we reasonably believe the Goods are.
5. QUALITY OF GOODS
5.1. We warrant to you that the Goods will be:
(a) free from material defects in materials and workmanship
(b) conform in all material respects with their description any applicable specification, for a period of 12 months from the earlier of: (i) the date of delivery of the Goods; or (ii) Practical Completion (if applicable) (the warranty period).
5.2. Timber products are a natural product subject to variation in colour and grain from sample to sample. We cannot guarantee that Goods will match any sample provided and are not liable for differences in colour and grain.
5.3. Subject to Clause 5.4 and your compliance with the terms of this Clause 5.3, we shall, at our option, repair or replace any defective Goods in respect of the said repair or replacement in full provided that:
5.3.1. you notify us during the warranty period and within 14 days of discovery that some or all of the Goods do not comply with the warranty set out in Clause 5.1;
5.3.2. we are given a reasonable opportunity of examining such Goods; and
5.3.3. you (if asked to do so by us) remove Goods from any installation on Site and place at a location which we can access to return such Goods to our place of business at our cost.
5.4. We shall not be liable for the Goods’ failure to comply with the warranty in Clause 5.1 if:
5.4.1. you make further use of such Goods after giving a notice in accordance with Clause 5.3;
5.4.2. the defects arise through accident, fair wear and tear, wilful damage, misuse or neglect;
5.4.3. the defect is due to natural variation in accordance with Clause 5.2;
5.4.4. the defect arises because you fail to follow our written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.4.5. the defect arises as a result of us following any drawing, design or specification supplied by you;
5.4.6. the Goods differ from their description or any applicable specification as a result of: (i) changes in accordance with Clauses 5.2 or 5.9; or (ii) changes made to ensure they comply with applicable statutory or regulatory requirements;
5.4.7. the damage or defect to the Goods arises from dampness, excessive temperature (hot or cold), settlement, shrinkage, leaching, corrosion or other chemical action, or to any other factor over which we have no control; and
5.4.8. you or any third party, without our prior written consent, has repaired or modified the Goods or installation of the Goods.
5.5. The colour of materials supplied may vary over time due to exposure to light. Any subsequent orders or replacement goods may therefore not match previously supplied Goods or samples.
5.6. All warranties, conditions or terms not explicitly given in this Contract relating to fitness the supply of goods and/or provision of work, whether express or implied by statute or common law or otherwise, are excluded to the fullest extent permitted by law.
5.7. Except as provided in this Clause 5, we shall have no liability to you in respect of the Good’s failure to comply with the warranty set out in Clause 5.1.
5.8. All implied terms and conditions as to the quality or performance of the Goods are, to the fullest extent permitted by law, excluded from the Contract including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979. No condition, guarantee or warranty as to the fitness of any Goods or the installation of such Goods for any purpose is given.
5.9. All measurements in our quotation or Order Acknowledgement (if amended after the issue of the quotation) and any accompanying schedules or drawings are approximate, and you should not use them for any purpose. Colours, material fabrics, glazing and other treatments and appearances will be the nearest commercially available to that selected or offered. We reserve the right to change the materials used either to take advantage of technical developments, improvements or modifications which we consider desirable or to take account of the availability of Goods or to enable compliance with relevant health and safety or statutory requirements.
5.10. The terms of these Conditions shall apply to any repaired or replacement Goods supplied by us.
6. EXECUTION OF WORK
6.1. We shall supply the Work to you in accordance with the quotation or Order Acknowledgement (if amended after the issue of the quotation) in all material respects.
6.2. We reserve the right to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Work, and we shall notify you in any such event.
6.3. We shall use reasonable endeavours to meet any performance dates for the Works specified in quotation or Order Acknowledgement (if amended after the issue of the quotation), but any such dates shall be estimates only and time shall not be of the essence for the execution of the Works.
6.4. We warrant to you that the Work will be provided using reasonable care and skill.
6.5. We accept no liability for actions or omissions by personnel supplied to us by you even if that individual is acting in accordance with our instructions.
6.6. Any Work provided which is not included in the quotation or Order Acknowledgement (if amended after the issue of the quotation) shall be charged at our Normal Rates and will be invoiced separately.
6.7. Following the completion of the Work (in whole or in part), a representative of yours shall be briefed on the Work conducted and will be asked to sign an acceptance form confirming that the Goods have been installed to expectations (Acceptance). In the event that your representative fails to respond to the acceptance form within three (3) Business Days of the date of receipt, the Works shall be deemed to have met Acceptance. Upon Acceptance, any further work in regard to the relevant Goods shall not be included in the Work and will be quoted for separately.
6.8. All implied terms and conditions as to the quality or execution of the Works are, to the fullest extent permitted by law, excluded from the Contract.
7. PASSING OF RISK AND TITLE
7.1. The risk in Goods shall pass to you as soon as delivery is completed in accordance with Clause 4.
7.2. Title to the Goods shall not pass to you until we receive payment in full for the Goods and any other monies owed to us in respect of which the payment has become due.
7.3. Until title to the Goods has passed to you, you shall:
7.3.1. store the Goods separately (to the extent they have not been incorporated with other fixtures or fittings) from all other goods held by you so that they remain readily identifiable as our property;
7.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3. 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;
7.3.4. not alienate, encumber or pledge the goods in any way;
7.3.5. notify us immediately if you become subject to any events listed in Clause 12.1.2. to 12.1.4.; and
7.3.6. give us such information relating to the Goods as we may require from time to time.
7.4. You hereby grant us, our agents and employees an irrevocable licence to enter any premises where the Goods are stored in order to repossess them or to inspect them at any time prior to title passing in accordance with Clause 7.2.
8. OUR OBLIGATIONS
8.1. Unless we notify you otherwise, we are responsible for procuring all necessary goods, including where appropriate delivery, unloading and installation at the Site, and for supplying all labour, fixings, tools, ladders, trestles and anything else specified in our quotation or Order Acknowledgement (if amended after the issue of the quotation).
8.2. We will leave the Site in a reasonably clean condition on completion of the Work.
8.3. We are not responsible for the disposal of waste, off-cuts and wrapping materials unless otherwise agreed in writing.
9. YOUR RESPONSIBILITIES AND OBLIGATIONS
.1. Unless we agree otherwise in writing, you are responsible for obtaining any required consents for carrying out the Work including: planning permission, landlord’s approval, building control, listed building consent, conservation area approval, fire certification and for serving any notices and paying any fees for any such consents.
9.2. Any access or associated equipment (including plant or scaffolding) required for working at height or for safe working, will be provided by you unless specifically agreed in writing and set out within the quotation or Order Acknowledgement (if the quotation is amended after its issue). In the event that such equipment is deemed to be required by us, at our absolute and sole discretion, and has not been provided by you or is not included within the Order, quotation or Order Acknowledgement, you hereby agree to reimburse us for the cost of arranging, hiring and erecting the required equipment.
9.3. You are responsible to ensure before any Work commences that any recent cement or plasterwork at the Site is thoroughly dried out and that the Site is externally weatherproof.
9.4. You shall:
9.4.1. give us, our employees, agents, consultants and sub-contractors, unimpeded access to the Site at all times during normal working hours on any Business Day to deliver the Goods, carry out the Work and perform matters incidental to the performance of the Contract in a logical continuous sequence without interruption;
9.4.2. cooperate with us in all matters relating to the Work;
9.4.3. provide at your expense toilet and washing facilities, effective heating, ventilation, lighting and power and where appropriate use of the lift at all times during the period of the work on the Site;
9.4.4. comply with all applicable laws, including health and safety laws;
9.4.5. regularly sign documentation completed by our personnel;
9.4.6. provide us with such information and materials as we may reasonably require in order to supply the Work, and ensure that such information is complete and accurate in all material respects;
9.4.7. keep all materials, equipment, documents and other property of ours (Our Materials) at your premises in safe custody at its 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.
9.5. You must make adequate secure on-site storage available for Goods awaiting fixing and for our, or third party, plant, equipment and tools, and shall be liable for any loss or damage unless due to any act or default on our part.
9.6. You are responsible for ensuring that the Goods are suitable and fit for your purpose.
9.7. You are responsible for ensuring that the Goods are properly used at all times and that anybody that uses the Goods is properly instructed in how to use them correctly and safely, and that they read any instructions supplied
9.8. You are responsible for compliance with all appropriate regulations and codes.
9.9. You warrant that the site is free of asbestos except as disclosed in writing to us prior to Contract.
10. PRICES
10.1 The price for the Goods and/or Works shall be set out in our quotation or Order Acknowledgement (if the quotation is amended after its issue) and shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, and any related travel expenses for the Works, which shall be invoiced to the Customer.
10.2. Quoted prices are exclusive of value-added tax (VAT) chargeable from time to time, at the prevailing rate. Where any taxable supply for VAT purposes is made under the Contract by us to you, we will add the VAT to our invoice and 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 Goods and/or Works.
10.3. Unless we agree specifically otherwise in writing the quoted price does not include the amount of any government or local authority fees for consents, or any provision for the cost of services such as heating, lighting, power and water and you will reimburse us for any expenditure we reasonably incur on such items.
10.4. We may amend the quotation or Order Acknowledgement (if the quotation is amended after its issue) by the amount of any specific increase in costs between the dates of quotation and delivery or performance of the Works, including any increase to reflect any factor beyond our control including increases in taxes and duties, increases in labour, materials and other manufacturing costs.
10.5. We reserve the right to amend any quotation, Order Acknowledgement or invoice which contains an accidental typing, arithmetical or similar error or omission, at whatever stage it is discovered, and you agree to pay us the corrected amount.
10.6. If, at your request or with your approval, we agree to carry out work outside our normal working hours, you agree to pay the additional cost of such overtime working in addition to our Normal Rates.
10.7. If the Work involves dismantling or re-fitting of any existing fixtures or fittings, we will take due care but you agree to pay the cost of obtaining replacements of any parts relating to such fixtures or fittings that in our reasonable opinion are not re-usable.
10.8. We will not allow for access equipment within our price unless specifically specified within our quotation or Order Acknowledgement (if the quotation is amended after its issue).
10.9. We reserve the right to amend the price if measured dimensions differ from those allowed in the Contract, whether specified or scaled from drawings.
10.10. Unless specifically stated otherwise in our quotation or Order Acknowledgement (if the quotation is amended after its issue), the price does not account for any alterations to existing building services, nor for cutting or shelving to avoid obstructions such as radiators, pipes, joists, and you will pay extra at our Normal Rates for any such work which is necessary in order to carry out the Work.
10.11. Quotations are given on the basis that the building is soundly constructed and capable of being altered in the manner proposed in the quotation or Order Acknowledgement (if the quotation is amended after its issue)and without any other work of any kind whatsoever being necessary. If any further work is required in addition to the Works, then this will be charged for at our Normal Rates and added to the price quoted for the Works and invoiced accordingly by us.
10.12. If the Goods specified in the order are not available or not available within a time period sufficient to allow us to comply with any estimated delivery times, and you agree that alternative goods may be substituted, then the price will be adjusted by the difference in cost.
11. PAYMENT TERMS
11.1. Unless alternative payment phasing has been agreed in writing in our Order Acknowledgement, our default payment terms will apply, which are:
11.1.1. the milestone events for the due dates and the amounts payable shall be as follows:
For Goods supply only (with no install or related Work) on a cumulative basis:
(a) 15% valued on submission of concept drawings
(b) 30% valued on design approval
(c) 90% valued on completion of manufacture
(d) 100% valued on delivery to site.
Work (including supply and install) on a cumulative basis:
(a) 10% valued on submission of concept drawings
(b) 20% valued on design approval
(c) 70% valued on completion of manufacture (delivery to site only if feasible)
(d) 100% valued on practical completion of installation.
11.1.2. We shall issue an invoice and payment notice (if applicable) to you for the amounts at the relevant milestones dates as set out above. The due date for all invoices shall be the date of the relevant milestone set out above and the final date for payment of each invoice shall be 30 days from the date of the relevant invoice. In the event that any Contract is deemed to be a construction contract for the purposes of the Housing Grants, Construction and Regeneration Act 1996, if you intend to pay less than the amounts notified as due, you shall not later than seven days before the final date for payment give notice to us of that intention.
11.2. We shall be entitled to suspend on written notice the carrying out of any preparatory work, design work, manufacture, delivery of Goods or the execution of the Works in the event that you fail to make any payment due to us in accordance with these Conditions.
11.3. In relation to any Works, at, or immediately before, Practical Completion, you and we shall examine the Works and prepare a list of snagging items requiring finishing, improving or re-working. This list will be signed by you and us as a conclusive record of patent defects outstanding as at Practical Completion. The snagging items will be undertaken within a reasonable period of Practical Completion as set by us.. Any defects in Goods supplied as part of the Works discovered after the preparation of the snagging list shall be dealt with in accordance with Clause 5.
11.4. For the avoidance of doubt, the time for payment is of the essence of the Contract.
11.5. Credit accounts are available for regular customers at our discretion and subject to satisfactory credit checks and references. Any credit account is subject to ongoing review and closure if our terms are not adhered to or if your credit position changes. If we have agreed to let you have credit, you must pay every invoice no later than the due date stated on the relevant invoice. By being provided with credit, you agree to provide us with and allow us to provide to relevant third parties, relevant financial information about you in order for us to secure credit insurance.
11.6. If any payment due to us under the Contract is not made in accordance with the payment terms of the Contract, we reserve the right to charge interest on overdue amounts at the rate currently specified under the Late Payment of Commercial Debts (Interest) Act 1998. Charging interest will not affect any other rights we may have, including that we may (without incurring any liability whatsoever) delay carrying out any further work or supplying any further Goods until all due payments are received; and/or that we may without notice treat the Contract as repudiated by you and recover from you our resulting losses (including loss of profit) and expenses.
11.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. SUSPENSION AND TERMINATION
12.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.1.1. the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
12.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, 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 its 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;
12.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.4. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2. Without affecting any other right or remedy available to it, we may terminate the Contract with immediate effect by giving written notice to you if:
12.2.1. you fail to pay any amount due under the Contract by the due date for payment;
12.2.2. any right for us to terminate arises under Clause 4.7;
12.2.3. the right for us to terminate for a Force Majeure Event arises under Clause 19.1.; or
12.2.4. you are subject to a change of Control.
12.3. Without affecting any other right or remedy available to us, we may suspend all deliveries of Goods or execution of Work under the Contract or any other contract between you and us if you fail to pay any amount due under the Contract by the due date for payment, you become subject to any of the events listed in Clause 12.1.2. to Clause 12.1.4., or we reasonably believe that you are about to become subject to any of them.
12.4. On termination of the Contract:
12.4.1. you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Work and Goods supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt; and
12.4.2. you shall return all Goods which have not been fully paid for. If you fail to do so, then we may enter your Site or other 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 the Contract.
12.5. Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
12.6. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
13. CUSTOMER DEFAULT
13.1. If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you or any of your representatives, agents, contractors or suppliers to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Work until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays our performance of any of its 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 under the Contract; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
14. INDEMNITY AND LIMITATION OF LIABILITY
14.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
14.1.1. death or personal injury caused by negligence;
14.1.2. fraud or fraudulent misrepresentation; and
14.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.2. Subject to Clause 14.1, our total liability to you in respect of any and all claims arising out of or in connection with any breach of these Conditions or the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution, statutory or otherwise shall be limited to the price paid or payable by you under the Contract to which the claim relates.
14.3. Subject to Clause 14.1, the following types of loss are wholly excluded: (i) loss of sales or business; (ii) loss of opportunity; (iii) loss of profits or income; (iv) loss of agreements or contracts; (v) loss of anticipated savings or wasted expenditure; (vi) loss of use or corruption of software, data or information; (vii) loss of or damage to goodwill or reputation; or (viii) indirect, special or consequential loss or damage (including where such a loss was reasonably foreseeable or we had been made aware of the possibility of you incurring such a loss).
14.4. Subject to Clause 14.1, we shall not be liable for any loss or damage arising during the supply of Goods or execution of the Work which is caused by omissions, acts or failures to act by you, your representatives, agents, subcontractors or suppliers or any third parties.
14.5. In addition to and without prejudice to the generality of these Conditions, you will indemnify us against all loss including consequential loss, costs, claims, expenses and demands or other liability whatsoever resulting directly or indirectly at any time from the negligence or any wrongful act or omission on the part of you, your employees, subcontractors or agents.
14.6. This Clause 14 shall survive termination or expiry of the Contract.
15. VARIATIONS TO CONTRACT
15.1. You must confirm in writing any desired variation to the Order or the specification of the Goods or Work. We reserve the right to refuse to incorporate such variation until we have received written confirmation of your acceptance of the variation.
15.2. You will pay any extra costs at our Normal Rates for altered or additional Work or Goods. For example, but not limited to, when you ask for quantities, specification or delivery dates to be varied. For variations whilst work is in progress, these additional charges include any loss or expense due to any interruption to the regular progress of the work, and (if extra project duration is involved) pro-rata additional management and preliminary costs.
15.3. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by authorised representatives of each party. For the purposes of this clause, in writing shall not include by email, but the parties may evidence their signature by electronic means.
16. INTELLECTUAL PROPERTY
16.1. All Intellectual Property Rights in or arising out of or in connection with the Work or Goods (other than Intellectual Property Rights in any materials provided by you) shall be owned by us. Any specification, layout, design, drawing or other particulars prepared by us remain our property and must be returned to us on request.
16.2. You grant us a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Work or Goods to you.
16.3. We shall not be liable for claims by a third party in relation to an infringement of intelligence of property rights or other such rights, in so far as such infringement arises from the use of documents provided to us by you.
17. CONFIDENTIALITY
17.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 17.2.
17.2. Each party may disclose the other party’s confidential information:
17.2.1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 17; and
17.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
18. REQUEST TO CANCEL
18.1. The breach of any warranty gives you no right to cancel the Contract.
18.2. You may make a request to cancel the Contract which must be in writing. Any acceptance by us of your request to cancel is at our sole discretion and shall not be deemed to accepted by us unless confirmed in writing to you. You agree that if you cancel the Contract, you will indemnify us against any losses (including loss of overhead and profit) and any additional cost arising.
19. FORCE MAJEURE
19.1. We shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of our obligations if such delay or failure results from events, circumstances or causes beyond our reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 60 days, we may terminate the Contract by giving 30 days’ written notice to you.
20. DATA PROTECTION
20.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 20 is in addition to and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
20.2. The parties shall have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data (as defined in the Data Protection Legislation) and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures, to:
20.2.1. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
20.2.2. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of you has been obtained and the following conditions are fulfilled and we have provided appropriate safeguards in relation to the transfer; and
20.2.3. notify the other without undue delay on becoming aware of a Personal Data breach; and
20.2.4. at the written direction of the other delete or return Personal Data and copies thereof unless required by any applicable law to store the Personal Data.
21. GENERAL
21.1. Assignment
21.1.1. 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 Contract.
21.1.2. You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract without our prior written consent.
21.2. Notices
Any notice given by a party under or in connection with the Contract shall be in writing and may be delivered by hand or pre-paid first class post or other next working day delivery service or email and should be addressed to the registered office (if a company) or its principal place of business (in any other case)or the nominated email address of the other party and shall be deemed to have been received when if delivered by hand, 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 if sent by email at the time of transmission. This Clause does not apply to the service of any proceedings or other documents in any legal action.
21.3. Severance
If any provision or part-provision of the Contract 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 Contract.
21.4. Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21.5. Entire Agreement
21.5.1. The Contract 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.
21.5.2. Each party acknowledges that in entering into the Contract 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 Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
21.6. Governing Law, Jurisdiction and Dispute Resolution
21.6.1. This Contract 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 English law.
21.6.2 Subject to Clause 21.6.3 the parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
21.6.3. In the event that any Contract is deemed to be a construction contract for the purposes of the Housing Grants, Construction and Regeneration Act 1996 , any dispute shall be subject to the adjudication procedure under the Scheme of Construction Contracts 1998 and the parties agree to accept the award of an adjudicator appointed by the Royal Institution of Chartered Surveyors as binding.
21.7. Third-Party Rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract unless expressly stated otherwise.
