PWSE Terms and Conditions of Business
The Customer’s attention is particularly drawn to the provisions of clause 8.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these as amended from time to time in accordance with clause 10.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Force Majeure Event: any circumstance not within a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order, as set out in the Customer’s order form
Services: the services, supplied by the Supplier to the Customer as set out in the customer’s order.
Supplier: PWSE Ltd registered in England and Wales at 15 Claverham Road, Yatton, BS49 4LA with company number 07977603. .
1.2 Construction. In these Conditions, the following rules apply :
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written or oral acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.6 The Supplier reserves the right to request part-payment or payment in full in advance.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. QUALITY OF GOODS
3.1 The Supplier warrants that on delivery, the Goods shall:
(a) be free from material defects in design, material and workmanship; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
3.2 Subject to clause 3.3, if:
(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 3.1;
(b) the Supplier is given a reasonable opportunity of examining the Goods; and
(c) 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 its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
3.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 3.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 3.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
3.4 Except as provided in this clause 3.4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 3.1.
3.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 3.2.
4. TITLE AND RISK
4.1 The risk in the Goods shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
4.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2 then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5. SUPPLY OF SERVICES
5.1 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
5.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
5.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office 2 accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services; and
(f) treat the Supplier and its agents politely at all times without the use of aggression or verbal abuse.
6.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
7. CHARGES AND PAYMENT
7.1 The price for Goods shall be 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 delivery. The Supplier is able to accept payment by BACS or cheque.
7.2 The charges for Services shall be on a time and materials basis. The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
7.3 The Supplier reserves the right to:
(a) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
7.4 The Supplier shall invoice the Customer on or at any time after completion of delivery of the Goods and/or on or at any time after provision of the Services.
7.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
7.6 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.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier may claim interest at the statutory rate under The Late Payment of Commercial Debts (Interest) Act 1998 and a collection fee under The Late Payment of Commercial Debts Regulations 2002. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after
judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Supplier reserves the right to refuse to undertake work for the Customer where invoices are in arrears.
7.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the cost of the services and materials provided under this agreement.
8.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9. TERMINATION AND SUSPENSION
9.1 If the Customer becomes subject to any of the events listed in clause 10.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2 The relevant events are: default, insolvency, bankruptcy of the Customer, if debts from the Customer to the Supplier shall become overdue or if the Customer shall make default in or commit a breach of the Contract or of any other of their obligations or if any distress or execution shall be levied upon the Customer’s property or assets or if the Customer shall make or offer to make arrangements or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against it or if the Customer is a limited company and any resolution or petition to wind it up (other than for the purpose of amalgamation) is passed or presented or if a receiver of the company’s undertakings, property or assets or any part thereof shall be appointed
9.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the outstanding unpaid invoices and interest of the Supplier and return all of the Goods have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination. 3
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.1 Assignment and other dealings.
(a) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision
or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
10.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
10.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
10.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes).