1.1 In this Contract the following words and phrases shall have the following meaning unless the context indicates otherwise:
“Company” means Yarl Hydracentre Limited, Company Registration Number 02180796, of Sowerby Woods Industrial Estate, Park Road, Barrow in Furness, Cumbria, LA14 4RF;
“Customer” means the party for whom the Services are performed;
“Contract” means the contract between the Company and the Customer for the provision of the Services incorporating these terms and conditions, the Order Form and the Customer’s acceptance thereof;
“Delivery” means the leaving of the materials at the address provided by the Customer;
“Estimate” means the Company estimate (if any) of value for performing the Services which shall be taken to include these terms and conditions.
“Offer” means the Company’s offer to provide the Services on the terms as set out in the Contract;
“Order Form” means the order form as signed by the Customer stating the Services to be provided and incorporating the Price and the Estimate (if any);
“Price” means the price in pounds sterling payable by the Customer to the Company in respect of the provision of the Services;
“Services” means Services to be performed or goods to be supplied in accordance with the Customers requirements as set out on the Order Form;
1.2 Headings contained in this Contract are for reference purposes only and should not be incorporated into this Contract and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
1.3 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter/singular gender throughout this Contract shall include all genders and the plural and the successor in title to the parties.
1.4 In this Contract references to clauses and sub-divisions thereof, unless a contrary intention appears, are to Clauses to this Contract and Sub-divisions thereof.
2.1 If an Estimate is given, then unless previously withdrawn, the Estimate is open for acceptance for the period stated in the Estimate or for a period of 28 days, whichever is the lesser, and such acceptance shall be effected by the Customer sending a completed Order Form to the Company.
2.2 Notwithstanding the provisions of Clause 2.1 above, any instruction or agreement for the Company to commence the Services shall be deemed to be an unconditional acceptance of the Company’s Offer.
2.3 Acceptance of the Offer must be accompanied by sufficient and adequate information or instructions to enable the Company to proceed to deliver the Services without delay.
2.4 If no Estimate is given, the Customer shall be deemed to have entered into a Contract and to have unconditionally agreed to the Price and the terms of the Contract at the point that the Company receives the Order Form from the Customer.
3. CONTENT OF CONTRACT
3.1 The Company reserves the right to make any changes in the specification of the Services which are required to conform with any applicable safety or other statutory requirements or which do not materially reduce the quality or performance of the Services or which reflect changes in the specification of the manufacturer of any goods or product which form part of the Services.
3.2 The Company reserves the right to decline to fulfil any order made by a Customer for Services.
3.3 The Company’s Estimate (if any) is provided as an indication of the scope of work and associated cost in performing and/or providing the Services. The Company shall charge the Customer for the Services on the basis as outlined in accordance with the schedule of rates specified in the Order Form together with any associated material costs.
3.4 Where relevant and subject to agreement between the parties, the Company shall supply the Customer with test results and relevant documentation after completion of the Services.
3.5 No employee of the Company has authority to make any warranty, statement or promise concerning the Services, including any representation as to the life or wear of any goods supplied as part of the Services, except in writing signed by a duly authorised officer.
4. PROVISION OF SERVICES
4.1 The Company will endeavour to perform or provide the Services within the time frame stipulated by the parties or if no time is specified then within a reasonable time. Time for performance of the Services shall not be of the essence unless previously agreed by the Company in writing.
4.2 In the event of the Company being unable to work on the material due to major faults or defects of the Customers existing equipment/premises the Company may at its option refuse to perform the Services and the Customer shall immediately refund all expenses incurred / irrevocably undertaken by the Company under the terms of this Contract up to that date.
4.3 The Company shall not be liable for any delays in performing the Services arising from any cause beyond the Company’s reasonable control or any inaccurate instructions or lack of instructions from the Customer.
5. PRICES AND CONDITIONS OF SALE
5.1 The Price shall be either the current price as set out in the Company’s price list at the date the order is received by the Company or the price given on the Order Form by the Company.
5.2 The Company reserves the right to increase the Price to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company and/or any change in dates or specifications for the Services which is requested by the Customer or failure of the Customer to give the Company adequate information or instructions.
5.3 The Company reserves the right at the Company’s discretion to require a deposit or payment in advance as stated on the Order Form.
5.4 All sums payable under this Contract unless otherwise stated are exclusive of VAT and other duties or taxes.
5.5 The Company will charge the Customer for any materials used in the performance of the Services. Any charges for transportation and packing shall be to the Customer’s account.
5.6 Where would otherwise be applicable, the Company shall be under no obligation to give the Customer the notice specified in Section 32(3) of the Sale of Goods Act 1893.
6.1 The Company reserves the right to incorporate into the Services new features which improve performance or quality and incorporation of such new features shall not be regarded as a breach of contract on the part of the Company.
6.2 In the case of Services provided by way of sale of goods, the Company shall not be deemed to be in breach of contract by reason of supplying up to 10% under the number of units ordered by the Customer.
6.3 Any charges made by the Company in respect of special tooling will be notified to the Customer and will only be passed to the customer insofar as they relate to costs of parts. Any special tooling equipment remains the property of the Company.
7.1 All payments shall be made in sterling by way of cash, bank transfer, cheque or credit card as agreed by the Company.
7.2 Subject to any different terms agreed between the Company and the Customer the Company shall be entitled to invoice the Customer and the Customer shall pay for the Price within 28 days of the date of the invoice under which the Services are provided. The time for payment shall be of the essence.
7.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to
7.3.1 terminate this Contract or suspend any further deliveries to the Customer; and
7.3.2 charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 2% per calendar month on a compound basis until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest).
7.4 The Customer shall pay the Price without any deduction whether by set off, counterclaim or otherwise. The Company shall have the right of set off.
The Customer may cancel this Contract at any time with the prior permission of the Company but in any event shall then be liable to pay to the Company all monies paid by the Company in relation to the purchase of any materials in connection with this Contract.
9.1 Either party may, at any time, by notice in writing terminate this Contract forthwith if the other party is in default and if:
9.1.1 the default is material and is capable of remedy and the other party shall have failed to remedy such default within 7 days of receiving written notice from the other party specifying the default and requiring its remedy;
9.1.2 the default is material and is not capable of remedy;
9.1.3 if the other party ceases to carry on its business;
9.1.4 if a receiver, administrative receiver, administrator or similar officer is appointed over all or any part of the assets or undertaking of the other party and is not discharged within 15 days of such appointment;
9.1.5 if the other party makes an assignment for the benefit of, or a composition with, its creditors, or another arrangement of similar import; or
9.1.6 if the other party shall go into liquidation otherwise than for the purposes of a bona fide amalgamation or reconstruction.
9.2 Any rights to terminate this Contract shall be without prejudice to the rights of the other party.
10. TERMINATION CONSEQUENCES
In the event of this Contract being determined whether by effluxion of time, notice, breach or otherwise:
10.1 The Customer shall immediately pay to the Company:
10.1.1 all arrears of payments and any other sums due under the terms of this Contract, and
10.1.2 all monies irrevocably paid by the Company in connection with this Contract.
10.2 On the termination of this Contract (however arising), the Company shall deliver up to the Client all documents, papers, data and reports which were furnished by the Client to the Company, or which were prepared by or on behalf of the Company for the Client in the course of providing the Services under this Contract.
10.3 Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this Contract and the determination of this Contract shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this Contract notwithstanding that the other may have exercised one or more of the rights and remedies against it.
10.4 Any right or remedy to which either party is or may become entitled under this Contract or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Contract or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
11.1 Risk of damage to or loss of any materials used in the provision of the Services shall pass to the Customer upon Delivery of such materials to the Customer.
11.2 Title in any such materials shall not pass to the Customer until the Company has received in cash or cleared funds in full the Price and all other amounts due to the Company by the Customer.
11.3 Prior to the passing of title in any such materials to the Customer from the Company the Company shall be entitled at any time to require the Customer to deliver up such materials so far as the Customer is able to and if the Customer fails to do so forthwith to enter upon or into any premises or vehicles of the Customer or any third party where any such materials are located in order to recover anysuch materials.
11.4 Notwithstanding that title to any such materials shall not have passed to the Customer an action for the Price can be maintained by the Company at any time after the due date for payment.
12.1 The Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Contract, for any loss or damage, including any indirect or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees, or agents or otherwise) which arise out of or in connection with the supply of the Services, from any stoppage, breakdown or failure of any such materials supplied by the Company in the provision of the Services howsoever occasioned, except as expressly provided in this Contract.
12.2 The Company shall have no liability for any damage to the Customer’s property unless occasioned by the Company’s negligence.
12.3 The Company shall have no liability to the Customer in respect of damaged or defective materials used by the Company in the provision of the Company where damage has been sustained in transit after Delivery of such materials to the Customer or its agents.
12.4 The Company does not exclude or restrict liability for death or personal injury resulting from fraudulent misrepresentation or its own negligence.
12.5 Subject to Clause 12.4 the Company’s liability for any breach of the terms of this Contract or otherwise will be limited to the lesser of the value of the applicable Services provided to the Customer under this Contract or the value of the Company’s liability insurance for any one or more related incidents within a twelve month period.
12.6 The Customer will indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with any claim paid or agreed to be paid by the Company as a consequence of the Consumer Protection Act 1987
12.7 The Company will not be liable for any breach of its obligations under this Contract where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control.
12.8 The Customer shall indemnify the Company against any liabilities for any claim (including, but not limited to, liability for damages, costs and interest howsoever arising) arising from any action of the Company undertaken in order to comply with the Customer’s requirements in performing or providing the Services.
13. INTELLECTUAL PROPERTY
13.1 The Company shall retain any and all intellectual property rights, including copyright, in all documents, papers, data and reports which are prepared by or on behalf of the Company for the Customer in the course of providing the Services under this Contract.
13.2 The parties agree not to cause or permit anything which may damage or endanger the intellectual property rights of the other party or that party’s title to it or assist or allow others to do so.
Except in so far as such matters are properly in, or come into, the public domain, the parties agree to keep secret and confidential all matters contained in or arising from this Contract and not to disclose any such confidential information to any person unless otherwise expressly provided by this Contract, or unless they are ordered to do so by a court of competent jurisdiction.
15. FORCE MAJEURE
If the performance of this Contract or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected (upon giving prompt notice to the other party) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use all reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance under this Contract with the utmost despatch whenever such causes are removed or diminished. Nothing in this clause shall prevent that Company from being entitled to payment in respect of Services where they relate to goods available for Delivery but for the Customer’s refusal to take Delivery for whatever reason.
16. DATA PROTECTION
16.1 The Company will use the personal data provided by the Customer under this Contract to respond to the Customers queries, for administration purposes and to send to the Customer details by e-mail, telephone, fax or conventional post of new products and services offered by the Company that the Company may think will be of interest to the Customer.
16.2 The Company will not contact the Customer in the manner stated in Clause 16.1 should the Customer confirm in writing that they do not wish to be contacted for marketing purposes.
17.1. This Contract is personal to the Customer and may not be assigned to any third party without the written consent of the Company.
17.2 The Company reserves the right to assign this Contract and to sub-contract all or any of its obligations.
17.3 No person other than the Company, any person to whom the Company assigns this Contract and the Customer shall acquire any enforceable rights under or in connection with this Contract.
17.4 No variation or amendment of this Contract or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.
17.5 Any demand or notice given under this Contract shall be in writing and may be served:
17.5.2 by registered or recorded delivery mail,
17.5.3 by facsimile transmission (confirmed by post), or
17.5.4 by any other means which any party specifies by notice to the others.
17.6 Each party’s address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the others. A notice shall be deemed to have been served:
17.6.1 if it was served in person, at the time of service,
17.6.2 if it was served by post, 24 hours after it was posted, and
17.6.3 if it was served by facsimile transmission, at the time of transmission.
17.7 If any provision of this Contract or part thereof is rendered void by any legislation to which it is subject or the final decision of any court having jurisdiction this Contract shall be rendered void to that extent and no further; and the remainder of this Contract shall constitute the agreement of the parties
17.8 Each party acknowledges that this Contract contains the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
17.9 The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
17.10 The law applicable to this Contract shall be English law and the parties consent to the exclusive jurisdiction of the English courts in all matters affecting this Contract.
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