1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions
Business Day – a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours – the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date – has the meaning given in clause 2.2.
Conditions – these terms and conditions as amended from time to time in accordance with clause 17.9.
Contract – the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Control – has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.
Customer – Grayton Limited registered in England and Wales with company number 10436396.
Customer Materials – all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Deliverables – the deliverables set out in the Order produced by the Customer for the Supplier.
Delivery Location – has the meaning given in clause 4.2.
Force Majeure Event – has the meaning given to it in clause 16.
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 is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights – patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.
Order – the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s order, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Services – the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification – the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier – the person or firm from whom the Customer purchases the Goods and/or Services.
Warranty Period – has the meaning given in clause 5.1.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing a written acceptance of the Order; and
2.2.2 the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any quotation given by the Supplier shall not constitute an offer, and is only valid for the period provided with the quotation and if no period is stated it shall be of 30 Business Days from its date of issue.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.6 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Goods
3.1 The Goods are described in the Goods Specification.
3.2 The Supplier shall indemnify the Customer 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 professional costs and expenses) suffered or incurred by the Customer arising out of or in connection:
3.2.1 with any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Customer Materials);
3.2.2 any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
3.2.3 any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.
This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.5 The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
3.6 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.2, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.7 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.3 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) during the Customer’s normal business hours, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer may reject the Goods or if the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods
4.5 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in clause 5.
4.6 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 4.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following rights and remedies:
4.6.1 to terminate the Contract;
4.6.2 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
4.6.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
4.6.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
4.6.5 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
4.6.6 to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
4.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
4.8 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
5. Quality of Goods
5.1 The Supplier warrants that on delivery, and for a period of 24 months from the date of delivery (Warranty Period), the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Goods Specification;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement; and
5.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
5.2 In the event that the Supplier has not complied with clause 5.1 the Customer may:
5.2.1 give notice in writing to the Supplier during the Warranty Period 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;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at the Customer’s option, repair or replace the defective Goods, or refund the price of the defective Goods, excluding any non-refundable deposits.
5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and Risk
6.1 The title and risk in the Goods shall pass to the Customer on completion of delivery.
7. Supply of Services
7.1 The Supplier shall for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
7.2 The Supplier shall meet any performance dates for the Services specified in the Order and time is of the essence in relation to any of those performance dates.
7.3 In providing the Services, the Supplier shall:
7.3.1 co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
7.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
17.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
17.3.4 ensure that the Services will conform with all descriptions, standards and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
17.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
17.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
17.3.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
17.3.8 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services;
17.3.9 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
17.3.10 hold all Customer Materials in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation; and
17.3.11 not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the
17.4 Supplier acknowledges that the Customer may rely or act on the Services.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. Customer’s Obligations
8.1 The Customer shall:
8.1.1 co-operate with the Supplier in all matters relating to the Services;
8.1.2 provide the Supplier, its employees, agents, consultants and subcontractors, with access at reasonable times to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services and/or the Goods, and ensure that such information is complete and accurate in all material respects;
8.1.4 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;
8.1.5 comply with all applicable laws, including health and safety laws; and
8.1.6 comply with any additional obligations as set out in the Service Specification and the Goods Specification.
9. Charges and Payment
9.1 The price for Goods shall be:
9.1.1 the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order; and
9.1.2 inclusive of all costs and charges of packaging, insurance, transport and delivery of the Goods, which shall be invoiced to the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer. The charges for Services shall be:
9.1.3 the charges set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services; and
9.1.4 unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
9.2 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer as set out in the Order.
9.3 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
9.4 The Customer shall pay each invoice submitted by the Supplier:
9.4.1 within 60 days from the last day of the month in which the invoice was issued or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
9.5 Subject to clause 9.6, all amounts payable by the Customer 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 the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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 Where the reverse charge in accordance with the Construction Industry Scheme applies the Customer shall be liable to account for VAT to HMRC. The Supplier will note on an invoice to make it clear if the reverse charge applies.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Customer’s remedies, the Customer shall pay interest on the overdue sum from 10 Business Days after the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 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%.
9.8 The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services and/or Goods (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier until the Customer has made full payment of any charges and invoices which the Supplier has raised.
10.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract only for the purpose of providing the Services to the Customer.
11. Data Protection
The Supplier shall process personal data in accordance with all applicable data protection and privacy legislation in force from time to time in the UK including, without limitation, the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; and any successor legislation to the aforementioned act and regulations; and any other applicable national implementing laws, as amended, from time to time in the UK to the extent that it relates to processing of personal data and privacy including, if applicable, legal binding guidance and codes of practice issued by the Information Commissioner’s Office.
12. Confidentiality
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belong, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. Insurance
During the term of the Contract and for a period of five years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance (where applicable), product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
14. Termination
14.1 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:
14.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
14.1.2 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;
14.1.3 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
14.1.4 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.
14.2 Without affecting any other right or remedy available to it, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
14.2.1 the Supplier commits a breach of clauses 5, 7 or 11; or
14.2.2 there is a change of Control of the Supplier; or
14.2.3 for convenience by giving the Supplier 30 Business Days written notice.
15. Consequences of Termination
15.1 On termination of the Contract the Supplier shall immediately deliver and return to the Customer any Deliverables or Goods which have been paid for whether or not then complete and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16. Force Majeure
16.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation, acts of God, fire, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, nuclear, chemical or biological contamination; any law or any action taken by a government or public authority; any labour or trade dispute, strikes, industrial action; non-performance or delays by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service.
16.2 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from 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 2 months, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.
17. General
17.1 Assignment and other dealings
17.1.1 The Customer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
17.1.2 The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without notifying the Customer in advance.
17.2 Confidentiality
17.2.1 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 17.2.2.
17.2.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 17.2.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.2.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
17.3 Notices
17.3.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) 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
(b) sent by email to the address specified in the Contract.
17.3.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
17.3.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.4 Severance
17.4.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.5 Waiver
17.5.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.5.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.6 No partnership or agency
Nothing in the Contract 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.
17.7 Entire agreement
17.7.1 The Contract constitutes the entire agreement between the parties.
17.7.2 Each party acknowledges that in entering into the Contract it does not rely on 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 or negligent misstatement based on any statement in the Contract.
17.8 Third party rights
17.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.9 Variation
17.9.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.10 Governing law
17.10.1 The 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 the law of England and Wales.
17.11 Disputes
17.11.1 If any dispute arises in connection with this Contract, the Customer and the Supplier agree to enter into mediation in good faith to settle such dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procure. Unless otherwise agreed between the Customer and the Supplier within 14 days of notice of the dispute, the mediator will be nominated by CEDR.
17.12 Jurisdiction
17.12.1 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 Contract or its subject matter or formation.
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