PAUL A WATLER (MACHINERY MOVEMENTS)
TERMS AND CONDITIONS OF BUSINESS
In this document the following words shall have the following meanings:
1.1 “Additional Services” means any work required which did not form part of the Order Confirmation and which results in an adjustment to the price of providingthe Services;
1.2 “Agreement” means these Terms and Conditions together with the terms of any applicable Specification Document;
1.3 “Consignment” means the materials and/or equipment as detailed in the Order Confirmation which are required to be Transported by the Contractor;
1.4 “Contractor” means Paul Watler Limited, trading as “Paul A Watler (Machinery Movements)”, whose registered address is at 4 High Street, Hinxworth, Baldock, Herts, SG7 5HQ;
1.5 “Customer” means the organisation or person who purchases goods and Services from the Contractor;
1.6 “Delivery Location” means the delivery address and/or location detailed on the Order Confirmation;
1.7 “Order Confirmation” means the Contractor’s confirmation of order document, describing the goods and Services to be provided by the Contractor;
1.8 “Premises” means both the originating location and also the Delivery Location of the Consignment, which for the purposes of this Agreement are deemed to be under the direct ownership or control of the Customer;
1.9 “Services” means the services as described within the Order Confirmation;
1.10 “Transportation”, “Transported” relates to the delivery of the Consignment from one address or location in the United Kingdom to any one address or location in the United Kingdom. For the avoidance of doubt, the destination may simply be a different location at the same address. Transportation shall include for loading and unloading, and where and insofar as expressly stated in the Order Confirmation, may include for works involving dismantling and / or re-assembling of the Consignment.
2.1 These Terms and Conditions shall apply to all contracts between the Contractor and the Customer for the Transportation of a Consignment by the Contractor and shall supersede any other terms and conditions proposed by the Customer including any terms and conditions stated on any of the Customer’s documentation or purchase orders.
2.2 Before the commencement of the Services the Contractor shall submit to the Customer an Order Confirmation which shall specify the Services to be supplied and the price payable. The Customer shall notify the Contractor immediately if the Customer does not agree with the contents of the Order Confirmation.
2.3 The Contractor shall use all reasonable endeavours to complete the Services within estimated time frames.
3 PRICE AND PAYMENT
3.1 The price for the supply of the Services is as set out in the Order Confirmation. The Contractor shall invoice the Customer upon delivery of the Services or as specifically defined in the Order Confirmation.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice. The Contractor shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order prior to payment, the Customer shall be responsible for issuing such purchase order before the goods and Services are supplied.
3.3 In the event that payment is more than 50 days overdue, the Contractor reserves the right to recover the sum owed (“The Debt”) by way of selling the Consignment, or part thereof, to a third party, on behalf of the Customer. If the amount received by this sale exceeds the Debt, then the Contractor shall make a payment to the Customer of an amount equal to the difference between the amount received and the value of the Debt. The Customer hereby confirms its consent for the Contractor to carry out this action in lieu of payment of the Debt where the payment is more than 50 days overdue.
4.1 The date of delivery specified by the Contractor is an estimate only unless expressly stated in the Order Confirmation. Time for delivery shall not be of the essence of the contract unless expressly stated in the Order Confirmation and the Contractor shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods or Services.
4.2 The Contractor’s responsibility for the Services shall commence when the Contractor takes physical control of the Consignment at the point of collection.
4.3 The Contractor’s responsibility for the Consignment shall end when the Contractor, its agents or sub-contractors relinquish physical control of the Consignment at the proper place of delivery or the Consignment is presented at the proper place of delivery within normal business hours. All risk in the Consignment shall pass to the Customer upon delivery.
4.4 The Contractor shall not be liable for:
- 4.4.1 loss or damage of any part of a Consignment unless a claim specifying the general nature thereof is submitted by the Customer to the Contractor in writing within seven days from the Contractor’s responsibility for the Consignment having ended;
- 4.4.2 damage of any description unless the damaged items are made available to the Contractor’s representative for inspection for a reasonable period following notification of the claim;
5.1 Where the Services include for storage of the Consignment, and the storage takes place at the Premises, the Customer retains responsibility for the security and safe-keeping of the Consignment at all times.
5.2 Where the Services include for storage of the Consignment, and the storage takes place at the Contractor’s premises:
- 5.2.1 the Contractor retains responsibility for the security and safe-keeping of the Consignment at all times;
- 5.2.2 where loss or damage of the Consignment occurs during the period of time that the Consignment is storage at the Contractor’s premises, the Contractor shall be liable for the direct loss or damage in accordance with Clause 12.
6 CUSTOMER`S OBLIGATIONS
6.1 To enable the Contractor to perform its obligations under this Agreement the Customer shall:
- 6.1.1 co-operate with the Contractor;
- 6.1.2 provide the Contractor with any information reasonably required by the Contractor, which shall in all instances include all information which is of relevance to any lifting and transportation works, such as inter alia: information relating to any unidentified services below ground level, information relating to the weight of the Consignment and parts thereof;
- 6.1.3 provide and fix any lifting or transporting equipment that has been specially designed for use with the Consignment;
- 6.1.4 return any tools or equipment, that have been hired from the Contractor, in good working order and by the date agreed for off-hire;
- 6.1.5 obtain all necessary permissions and consents which may be required before the commencement of the Services; and
- 6.1.6 comply with such other requirements as may be set out in the Order Confirmation or otherwise agreed between the parties.
6.2 The Customer shall be liable to compensate the Contractor for any expenses incurred by the Contractor as a result of the Customer’s failure to comply with Clause 6.1.
6.3 Without prejudice to any other rights to which the Contractor may be entitled, in the event that the Customer unlawfully terminates or cancels the Services agreed to in the Order Confirmation, the Customer shall be required to pay to the Contractor as agreed damages and not as a penalty the full amount of any third party costs to which the Contractor has committed and in respect of cancellations on less than five working days’ written notice the full amount of the Services contracted for as set out in the Order Confirmation, and the Customer agrees this is a genuine pre-estimate of the Contractor’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 6.1 shall be deemed to be a cancellation of the Services and subject to the payment of the damages set out in this clause.
6.4 In the event that the Customer or any third party, not being a sub-contractor of the Contractor, shall omit or commit anything which prevents or delays the Contractor from undertaking or complying with any of its obligations under this Agreement, then the Contractor shall notify the Customer as soon as possible and:
- 6.4.1 the Contractor shall have no liability in respect of any delay to the completion of any project;
- 6.4.2 if applicable, the timetable for the project will be modified accordingly;
- 6.4.3 the Contractor shall notify the Customer at the same time if it intends to make any claim for additional costs.
7 LIQUIDS AND HARMFUL SUBSTANCES
7.1 The Customer is responsible for ensuring that any liquids or harmful substances contained within the Consignment are identified and notified to the Contractor prior to the commencement of the Services.
7.2 The Customer is responsible for ensuring that where possible, all liquids and substances identified under Clause 7.1 are removed prior to the commencement of the Services and therefore shall not form part of the Consignment.
7.3 Where it is not possible to remove a liquid or a substance from the Consignment pursuant to Clause 7.2, the Customer shall ensure that a competent person prepares a Risk Assessment and Safe System of Work to ensure the safe handling, storage, and transportation of the liquid or substance, which shall be in full accordance with the COSHH Regulations 2002.
7.4 Where the Customer has arranged for a Risk Assessment and Safe System of Work pursuant to Clause 7.3, and this has an impact on the Contractor’s method of working, such a change shall be dealt with in accordance with Clause 8.
7.5 The Contractor is under no obligation to carry out the Services if it believes that the Customer has not fulfilled its obligations under this Clause 7. Such failure by the Customer to fulfil its obligations shall be considered a material breach of contract as described within Clause 13.1.
8 ALTERATIONS TO THE ORDER CONFIRMATION
8.1 The parties may at any time mutually agree upon and execute new Order Confirmations. Any alterations in the scope of the Services to be provided under this Agreement shall be set out in a new Order Confirmation, which shall reflect the changed Services and price and any other terms agreed between the parties.
8.2 The Customer may at any time request alterations to the Order Confirmation by notice in writing to the Contractor. On receipt of the request for alterations the Contractor shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Contractor gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Contractor by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Contractor gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Order Confirmation shall be amended to reflect such alterations and thereafter the Contractor shall perform this Agreement upon the basis of such amended terms.
Any Consigment or individual items within a Consignment which the Customer considers valuable should be notified as such to the Contractor in writing. If any increased fees relating to this or these items in respect of insurance costs are due then these will be payable by the Customer.
10 DETENTION OF CONTRACTOR’S PROPERTY
The Customer shall, except in the case of negligence by the Contractor, pay to the Contractor any cost or expense occasioned to it by the improper or excessive
detention by the Customer of any vehicle, trailer, container, covering or other material or equipment belonging to or under the custody or control of the Contractor without prejudice to any rights of the Contractor against any third party in respect of such detention;
The Customer shall indemnify the Contractor against all claims, costs and expenses which the Contractor may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Contractor alleging that any Services provided by the Contractor in accordance with the Order Confirmation infringes a patent, copyright or trade secret or other similar right of a third party.
12 LIMITATION OF LIABILITY
12.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Contractor to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the sum for which the Contractor holds valid insurance against such liability.
12.2 In no event shall the Contractor be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Contractor had been made aware of the possibility of the Customer incurring such a loss.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
13.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
13.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
13.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
14 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Contractor, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Contractor by the execution of appropriate instruments or the making of agreements with third parties.
15 FORCE MAJEURE
The Contractor shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or Services, and the Contractor shall be entitled to a reasonable extension of its obligations after notifying the Customer of the nature and extent of such events.
16 INDEPENDENT CONTRACTORS
The Contractor and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Contractor may, in addition to its own employees, engage sub-contractors to provide all or part of the Services being provided to the Customer and such engagement shall not relieve the Contractor of its obligations under this Agreement.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Contractor.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
21 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
22 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
23 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
Proposal Of Works Form