CONDITIONS OF SUPPLY
1.1 The following definitions and rules of interpretation apply in these Conditions:-
Additional Services: Those additional services supplied whether at the request of the Client or any other cause attributable to the Client;
Client: The person named in the Specification for whom we have agreed to provide the Services;
Commencement Date: The date(s) for the commencement of the Services as set out in the Specification;
Conditions: The standard terms and conditions set out in this document and (unless the context requires otherwise) includes any special terms agreed in writing between the Client and us;
Contract: A contract for the supply of any Services entered into in accordance with and subject to these Conditions and incorporating the Specification;
Courier: A commercial courier instructed at the request of the Client to either delivery or to collect Products and/or Equipment;
Equipment: Any equipment supplied on hire to the Client as part of the Services;
Input Material: Any data or other information provided by the Client in whatsoever format;
Output Material: Any material produced by us in whatsoever format for the Client;
Products: Any items either sold to or otherwise owned by the Client and managed by us or our Representatives as part of the Services;
Representatives: Our employees, agents or sub-contractors;
Services: Those Services to be provided by us or our Representatives under a Contract as set out in the Specification;
Site: The site set out in the Specification for delivery/collection of the Equipment and/or Products;
Specification: The specification agreed between us and the Client annexed to a Contract as the same may be amended by agreement between us and the Client;
Standard Charges: Our standard charges for each of the Services as set out in the Specification; and
Us/We/Our: Henson Franklyn Limited (Registered in England & Wales under company number 07534266) whose registered office is at The Firs Stables, Sand Lane, Torksey, Lincoln, LN1 2ED.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Supply of the Services
2.1 Subject to any special terms agreed between us and the Client as set out in the Specification or otherwise specified in the Contract, the Contract will be subject to these Conditions to the exclusion of all other terms and conditions including any terms and conditions contained in the Client’s purchase order or similar document.
2.2 Any quotation issued by us will be deemed to be an offer to supply the Services upon these Conditions, and the Contract is formed when written acceptance of our quotation is received by us or an order is placed pursuant to our quotation. Any quotation issued by us shall only be valid for 30 days.
2.3 Subject to these Conditions we shall as from the Commencement Date provide the Services to the Client in such order and on such terms as set out in the Specification and we will use our reasonable endeavours to provide the Services at such times as are set out in the Specification. However, time shall not be of the essence for the provision of the Services and we shall not be liable to the Client for any 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 and other professional costs and expenses) suffered or incurred by the Client as a result of any delay in providing the Services if it is due to an event beyond our reasonable control, such events which shall include loss of, or damage to, any Equipment or Products as a result of fire, theft and malicious damage.
2.4 The Client shall supply us with all necessary information relating to the Services, within such time and in such manner as we may reasonably require (including where a Courier is instructed at the Client’s request to deliver the Equipment and/or Products to the Site, the correct delivery information along with any appropriate delivery instructions to enable delivery in a timely fashion in accordance with the Contract). The Client shall ensure the accuracy of all Input Material and shall be responsible for, and undertakes to indemnify us against, any loss arising from its inaccuracy. We may reject any Input Material which in our reasonable opinion we believe to be unsuitable.
2.5 The Client shall retain duplicate copies of all Input Material. Risk in the Input Material shall remain with the Client and we shall have no liability for any loss or damage, however caused to the Input Material.
2.6 We may at any time make any changes to the Specification or the Services which are necessary to comply with any applicable safety or other legal requirements.
3.1 The Client shall pay the relevant Standard Charges for the provision of the Services. We shall be entitled to vary the Standard Charges from time to time by giving not less than 2 months’ written notice to the Client.
3.2 We reserve the right to invoice prior to the Commencement Date an amount up to and including the full price for provision of the Services. If payment is so required by us prior to the Commencement Date, the Client shall make payment in full without any set-off or other deduction by the date stated by us, failing which we shall not be obliged to provide the Services and/or Products and the provisions of clause 3.7 shall apply. The time of payment by the Client shall be of the essence of the Contract.
3.3 Where full payment or balance of payment is due after the Commencement Date, the Client shall pay the price of the Services and/or Products as set out in the relevant invoice within 30 days from the date of the invoice. The time of payment by the Client shall be of the essence of the Contract.
3.4 Where the Client requests any change to the Specification, we will be entitled to charge the Client for any additional costs incurred by us as a result of such change, including for any Additional Services which we agree to provide, which will be charged at the applicable Standard Charges then current.
3.5 The Standard Charges are quoted as exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
3.6 Without prejudice to any other remedy which we may have, we shall be entitled to:-
3.6.1 charge interest on a daily basis on any overdue amount at the rate of 4% above the base rate from time to time of National Westminster Bank plc from the due date until the overdue amount is paid in full, both before and after judgement; and/or
3.6.2 suspend the provision of all or any of the Services in the event that any sum due hereunder is not paid on its due date until the overdue amount is paid in full.
3.7 We reserve the right to cancel the Contract without limitation under Condition 4.5, in which event the Client will be liable to pay to us reasonable compensation for work-in-progress at the time of cancellation. In the event that the Client cancels the Contract or the provision of one or more of the Services thereunder for whatever reason, including for the avoidance of doubt where delay or failure results from events, circumstances or causes beyond either party’s reasonable control, we shall be entitled to charge the Client for those Services we are no longer required to provide by reference to how long before the date(s) upon which those Services were to be provided as set out in the Specification (“the specified date(s)”) we received written notice of cancellation, as set out below.
When Notice of Cancellation is received; Percentage of Charges Chargeable for Cancelled Services
One month or more prior to the specified date(s): 25%
Between one month and 14 days before the specified date(s): 50%
Less than 14 days prior to the specified date(s): 100%
If Equipment or Products have been deployed to the Site (irrespective of date of Notice of Cancellation): up to 100%
3.8 In the event that one or more of the Services is rescheduled from the specified date(s) at the request of the Client or by reason of a change to the Specification requested by the Client or otherwise as a result of an exercise of our rights under these Conditions or which is not attributable to any fault of ours, we shall be entitled to charge as an Additional Service for any additional costs incurred by us arising out of the rescheduling of the Services including any non-recoverable costs incurred prior to receipt of a request to reschedule.
3.9 Where the Services include the sale and supply of any Products:-
3.9.1 Risk in the Products shall pass to the Client on delivery to the Site;
3.9.2 Title in the Products shall not pass until such time as the Client has paid all sums due and owing to us under any account whatsoever. Until we are paid in full for the Products, the Client shall: (i) keep the Products separate from all other products in its possession; (ii) clearly identify the Products as belonging to us; and (iii) deal with the Products in the ordinary course of business only, which excludes dealings with Products after the Client has entered into an insolvency situation. In the event of the termination of the Contract or the Client’s insolvency prior to the passing of title the Client shall immediately return all Products to us and in default the Client hereby grants to us a licence to enter upon the premises of the Client and any third party where the Products are stored to recover the Products.
3.10 We reserve the right to charge reasonable storage charges for Products stored by us, including charges for insurance if arrangement is made in accordance with Condition 5.1.8 for us to insure the Products. If storage charges remain unpaid in excess of 30 days from the date of our invoice for storage then, if 30 days following notice having been given by us to the Client of our intention to dispose of or sell such Products the Client has not settled the invoice in full, we reserve the right to dispose of or sell such Products as we see fit and shall not be obliged to account to the Client in any way in respect of the disposal or sale of such Products. If any Products have been stored by us for any period in excess of 12 months, we reserve the right to dispose of or sell such Products as we see fit and shall not be obliged to account to the Client in any way in respect of the disposal or sale of such Products.
4. Rights in Input Material and Output Material
4.1 All intellectual property rights in any:
4.1.1 Input Material shall belong to the Client; and
4.1.2 Output Material shall belong to us.
4.2 We may reproduce any Output Material in our own publicity material.
4.3 Any information provided by either party to the other which is so designated shall be kept confidential by the other, save where such information was public knowledge at the time or subsequently became public knowledge through no fault of the other party.
4.4 The Client warrants that any Input Material and its use by us for the purpose of providing the Services will not infringe the copyright or other rights of any third party, or is obscene, libellous or otherwise unlawful or unethical and the Client shall indemnify us against any loss, damages, costs, expenses or other claims arising from any such infringement or other breach of the foregoing warranty.
4.5 We shall be entitled to suspend or cancel the provision of all or any of the Services in the event of an alleged breach of the warranty contained in Condition 4.4, and in the event that we cancel the provision of one or more of the Services under this Condition 4.5 the provisions of Condition 3.7 will apply.
5. Client’s Obligations
5.1 The Client shall:-
5.1.1 maintain and keep any Equipment and/or Products in good condition, fair wear and tear excepted, as from the time upon which we have completed the installation of the Equipment and/or Products. We shall be deemed to have completed the installation of the Equipment and/or Products when having installed it, it is handed over to the manager of the Site or if no manager is present, as at the time of installation;
5.1.2 inform us of any repairs which are from time to time required to the Equipment and/or Products;
5.1.3 ensure that all persons who use the Equipment and/or Products are properly instructed in its safe and correct use and that they are in possession of any instructions issued;
5.1.4 ensure that the Equipment and/or Products are used correctly;
5.1.5 ensure that safe, suitable and freely accessible facilities are available to us to enable us (or a Courier) to remove the Equipment and/or Products upon completion of our provision of the Services;
5.1.6 ensure that, where a Courier is instructed at the Client’s request to remove the Equipment and/or Products from the Site upon completion of our provision of the Services, that the Equipment and/or Products are readily identifiable to enable the Courier to remove them in a timely fashion on the Courier’s first visit to the Site;
5.1.7 ensure that the Equipment and/or Products are suitable for their intended purpose;
5.1.8 ensure, where any Equipment and/or Products are in our possession including in storage, that (save as otherwise agreed in writing) they are insured at the Client’s cost against all appropriate risks including, without limitation, fire, theft, and malicious damage. The Client acknowledges that:-
126.96.36.199 save as otherwise agreed in writing, we shall have no responsibility whether to the Client, third parties or otherwise arising in respect of such risks or the Client’s failure to insure any such Products and the Client hereby indemnifies us in respect of any loss, costs, expenses and claims which we may suffer or incur arising therefrom; and
188.8.131.52 where the Client becomes responsible for the Equipment and/or Products under this Agreement (pursuant to Condition 5.1.1, 3.9.1 or otherwise), it is the Client’s responsibility to ensure that appropriate insurance is in place to insure against all appropriate risks including, without limitation, fire, theft, and malicious damage.
5.1.9 where any Equipment and/or Products are to be delivered (either by us or a Courier), ensure that there are safe, suitable and freely accessible facilities available to unload the Equipment and/or Products and deliver them to the designated place on the Site.
5.2 The Client 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 and other professional costs and expenses) suffered or incurred by us in connection with any breach by the Client of its obligations under this Agreement.
6. Warranties and Liability
6.1 We warrant to the Client that:-
6.1.1 Services shall be provided using reasonable care and skill and as far as reasonably possible, in accordance with the Specification;
6.1.2 any Products supplied as part of the Services will conform to the Specification; and
6.1.3 so far as we are reasonably aware as at the date of the Contract any Output Material (save to the extent that this incorporates Input Material, for which we shall have no liability) will not infringe the intellectual property right of any third party.
AND THE CLIENT’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 6.2 TO 6.8 (INCLUSIVE).
6.2 We shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from:-
6.2.1 any inaccuracy in, or the late arrival of, or otherwise attributable to the Input Material;
6.2.2 any misuse of the Equipment or Products;
6.2.3 any failure of the Equipment or Products to fulfil a particular purpose; and
6.2.4 any failure to notify us within 3 days of delivery of any shortfall or other defect in the Products.
6.3 Except as provided in Conditions 2.3, 6.5 and 6.7 and save for those warranties expressly set out in these Conditions, we hereby exclude (to the fullest extent permissible in law) all conditions, warranties and stipulations, whether express or implied, statutory, customary or otherwise, which, but for such exclusion, would or might subsist in favour of the Client.
6.4 Except as provided in Conditions 6.5 and 6.7, we shall not be liable to the Client (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) howsoever caused arising out of or in connection with:
6.4.1 our supply, or failure or delay in supply, of the Services or the Products (including any such supply by any of our Representatives); or
6.4.2 any breach by us of any of the express or implied terms of the Contract; or
6.4.3 any use made by the Client of any of the Products and/or the Equipment or of any item incorporating them; or
6.4.4 any statement made or not made, or advice given or not given, by us or on our behalf,
or otherwise under the Contract.
6.5 In the event of any breach by us of our express obligations in Condition 2.3 or the express warranties given by us in Condition 6.1, the Client’s remedy will be limited to damages for breach of contract, provided that in no circumstances will we be liable for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, or any indirect or consequential loss, and further provided that our entire liability under or in connection with the Contract shall not exceed the amount of our charges to the Client thereunder for the provision of the Services giving rise to such liability.
6.6 Nothing within the Contract including these Conditions shall confer or purport to confer on any third party any benefit or any right to enforce any rights under the terms of this Contract or otherwise, save that each of our Representatives may rely on and enforce the exclusions and restrictions on liability in Conditions 2.3 and this Condition 6.
6.7 We do not exclude our liability (if any) to the Client:
6.7.1 for breach of our obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
6.7.2 for personal injury or death resulting from our negligence;
6.7.3 under section 2(3) Consumer Protection Act 1987;
6.7.4 for any matter which it would be illegal for us to exclude (or to attempt to exclude) our liability; or
6.7.5 for fraud.
6.8 The Client acknowledges that the foregoing provisions of this Condition 6 are reasonable and reflected in the price payable for the Services which would be higher without those provisions, and the Client accepts such risk and/or will insure accordingly.
7. Duration and Termination
7.1 The Contract shall commence upon the Commencement Date and shall (subject to the provisions of these Conditions and the Contract) continue for the period set out in the Specification.
7.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of the Contract and (if capable of remedy) fails to remedy the breach within 7 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
7.3 Upon termination the Client shall forthwith return to us all Output Material in its possession and subject to the provisions of Condition 3.9.1 we shall return to the Client all Input Material, Products and other items belonging to the Client in our possession and control.
8.1 Neither party shall during the term of any Contract and for a period of twelve months thereafter solicit the other party’s staff who have been employed or engaged in the provision of the Services. Solicit means the soliciting of such person with a view to engaging such person as an employee, director, subcontractor or independent contractor.
8.2 In the event that either party is in breach of Condition 8.1 above, then the party in breach shall pay to the other by way of liquidated damages an amount equal to twenty per cent of the gross annual salary (as at the time of the breach) of the person so employed or engaged. This provision shall be without prejudice to either party’s ability to seek injunctive relief.
8.3 The parties hereby acknowledge and agree that the formula specified in Condition 8.2 above is a reasonable estimation of the loss which would be incurred by the loss of the person so involved or engaged.
9. Fuel Charges
We reserve the right to review the transportation costs, fuel charges etc. of any quotation should the cost of fuel rise above an acceptable amount on which the original quotation was based upon.
10.1 The Client shall not be entitled to assign any of its rights and/or obligations under the terms of the Contract without our prior written consent.
10.2 The Contract (together with the Specification) constitutes the entire agreement between the parties in relation to the provision of Services and the Contract supersedes any previous agreement or understanding and may not be varied except in writing between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by us or on our behalf which is not set out in the Contract. Nothing in this Condition 10.2 will exclude any liability one party would otherwise have to the other party in respect of any statements made fraudulently.
10.3 Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.4 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
10.6 If the Client is a limited company, all of its directors shall indemnify jointly and severally 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 and other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with any breach of the Contract by the Client.
10.7 The Client acknowledges and by submitting written acceptance of a quotation consents to the processing and disclosure by us of personal data relating to the Client relevant to any credit which may from time to time be afforded by us to credit reference agencies, banks and credit insurers and that such organisations may process the data provided.
10.8 These Conditions are not intended to nor do they confer any rights or benefits on any third party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
10.9 Any dispute arising under or in connection with these Conditions or the provision of the Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Law Society of England & Wales in accordance with the Rules of The Chartered Institute of Arbitrators.
10.10 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English courts.