LOG IN OR REGISTER €0,00 CONTACT PRODUCTS SERVICES RESOURCES WHY DIAQUIP Home » Terms & Conditions Terms and Conditions TERMS & CONDITIONS OF SALE Revision 1.4 The Customer’s attention is particularly drawn to the provisions of clause 12. For audit purposes both previous versions and copies showing the changes intended are maintained in our Terms & Conditions Archives with operative dates and version numbers showing. Please feel free to request a copy of our previous revision(s) by e-mailing info@diaquip.co.uk” if needed for a particular contract. 1 Interpretation 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 terms and conditions as amended from time to time in accordance with clause 15.7. “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. “Deliverables” the deliverables set out in the Order. “Delivery Location” has the meaning set out in clause 4.2. “Force Majeure Event” has the meaning given to it in clause 14.1. “Goods” the goods (or any part of them) set out in the Order. “Goods Specification” any specification for the Goods that is agreed in writing by the Customer and the Supplier. “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 purchase order form, 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 below. “Service Specification” the description or specification for the Services provided in writing by the Supplier to the Customer. “Supplier” SR & HM Shaw Limited, J&M Shaw Limited and the Diaquip Trust trading as Diaquip of Unit 1, Whitefield Road Industrial Estate, Whitefield Road, Bredbury, Stockport, SK6 2QR. “Supplier Materials” has the meaning set out in clause 8.1.5. 1.2 “Construction”. In these Conditions, the following rules apply: 1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); 1.2.2 a reference to a party includes its successors or permitted assigns; 1.2.3 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; 1.2.4 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 1.2.5 a reference to writing or written includes 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 acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”). The Supplier shall not be under any obligation to accept an Order. 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 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained on the Supplier’s website, or its catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force. 2.5 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. 2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue. 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. 2.8 Any request to terminate an accepted Order before the delivery of Goods or the performance of Services shall be at the discretion of the Supplier. Further, the return of unwanted Goods by the Customer shall be at the discretion of the Suppler. The Buyer shall, on demand, indemnify the Supplier against all costs, expenses and other liabilities incurred by the Supplier arising out or that are in connection with the cancellation or return of the Goods contemplated by this clause 2.8 3 Goods 3.1 The Goods are described in the Supplier’s catalogue as modified by any applicable Goods Specification. 3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements. 3.3 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.3 shall survive termination of the Contract. 4 Delivery of Goods 4.1 The Supplier shall ensure that 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. 4.2 Delivery of the Goods shall be affected by the delivery of them by the Supplier or the collection of them by the Customer, as follows: 4.2.1 where delivered by the Supplier, 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”) at any time after the Supplier notifies the Customer that the Goods are ready; or otherwise 4.2.2 the Customer shall collect the Goods from the Supplier’s premises at such other location stated in the Order or as may be advised by the Supplier before delivery (“Delivery Location”) within three Business Days of the Supplier notifying the Customer that the Goods are ready. 4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location the completion of loading of the Goods at the Delivery Location as the circumstances of deliver dictate. 4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. 4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods. 4.6 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods: 4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the 5th Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and 4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance). 4.7 If 5 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. 4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. 5 Quality of Goods 5.1 The Supplier warrants that on delivery, and for a period of 12 months or as other wise stated in the Order from the date of delivery (“warranty period”), the Goods shall in all material respects: 5.1.1 conform with their description; 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). 5.2 Subject to clause 5.3, if: 5.2.1 the Customer gives notice in writing 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 5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost (except where the Goods are determined by the Supply (acting reasonably) to not be defective), the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. 5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if: 5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2; 5.3.2 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; 5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer; 5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier; 5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; 5.3.6 the Goods differ from their description in any Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards 5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1. 5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2. 6 Title and risk 6.1 The risk in the Goods shall pass to the Customer on completion of delivery. 6.2 Title to the Goods shall not pass to the Customer until: 6.2.1 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; and 6.3 Until title to the Goods has passed to the Customer, the Customer shall: 6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; 6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 6.3.3 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; 6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.13; and 6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time. 6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time: 6.4.1 it does so as principal and not as the Supplier’s agent; and 6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs. 6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.13, then, without limiting any other right or remedy the Supplier may have: 6.5.1 the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and 6.5.2 the Supplier may at any time: 6.5.2.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and 6.5.2.2 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. 7 Supply of Services 7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects. 7.2 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.. 7.3 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. 7.4 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 ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate; 8.1.2 co-operate with the Supplier in all matters relating to the Services; 8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services; 8.1.4 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; 8.1.5 keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and 8.2 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”): 8.2.1 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; 8.2.2 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 8.2; and 8.2.3 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. 9 Charges and payment 9.1 The price for Goods and/or Services 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 or performance. 9.2 Except where otherwise stated in the Order, the price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods. 9.3 The Supplier reserves the right to: 9.3.1 increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery or performance, to reflect any increase in the cost of the Goods or the Services to the Supplier that is due to: 9.3.1.1 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); 9.3.1.2 any request by the Customer to change the delivery date(s), quantities or types of Goods, the Goods Specification or the Services Specification 9.3.1.3 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. 9.4 In respect of Goods the Supplier shall invoice the Customer either (as set out in the Order): 9.4.1 at any time after the Order is accepted, such invoice to be paid before Delivery or 9.4.2 at any time after completion of Delivery. The timescale for payment shall be set out in the Supplier’s quotation. 9.5 In respect of Services, the Supplier shall invoice the Customer on the completion of the performance of such Services. 9.6 The Customer shall pay each invoice submitted by the Supplier (excepting those issued and settled in accordance with clause 9.4.1): 9.6.1 on the last day of the calendar month following the month that the Supplier’s invoice is raised; and 9.6.2 in full and in cleared funds to a bank account nominated in writing by the Supplier (any variation to the bank details provided by the Supplier should be confirmed by the Customer as being valid before any payment is made to them), and time for payment shall be of the essence of the Contract. 9.7 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. 9.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. 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. 9.9 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. 10 Intellectual property rights 10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier. 10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer. 10.3 All Supplier Materials are the exclusive property of the Supplier. 11 Confidentiality A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract. 12 Limitation of liability 12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for: 12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; 12.1.2 fraud or fraudulent misrepresentation; 12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); 12.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or 12.1.5 defective products under the Consumer Protection Act 1987. 12.2 Subject to clause 12.1: 12.2.1 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 12.2.2 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 £2,000,000. 12.3 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. 12.4 This clause 12 shall survive termination of the Contract. 13 Termination 13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if: 13.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so; 13.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; 13.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; 13.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party; 13.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order; 13.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; 13.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company); 13.1.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver; 13.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; 13.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.2 to clause 13.1.9 (inclusive); 13.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; 13.1.12 the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or 13.1.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation. 13.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment. 13.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.13, or the Supplier reasonably believes that the Customer is about to become subject to any of them. 13.4 On termination of the Contract for any reason: 13.4.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; 13.4.2 the Customer shall return all of the Supplier Materials and any Deliverables which 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; 13.4.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and 13.4.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect. 14 Force majeure 14.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. 14.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. 14.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer. 15 General 15.1 Assignment and other dealings. 15.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. 15.1.2 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. 15.2 Notices. 15.2.1 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, or e-mail. 15.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2.1; 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 or e-mail, one Business Day after transmission. 15.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action 15.3 Severance. 15.3.1 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. 15.3.2 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. 15.4 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. 15.5 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. 15.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms. 15.7 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. 15.8 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. 15.9 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 or claims). TERMS AND CONDITIONS FOR THE HIRE OF EQUIPMENT Revision 1.4 1 Interpretation 1.1 The following definitions and rules of interpretation apply in this the Contract. “Advance Payments” those Rental Payments made in advance of their due date, as set out in the Order. “Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. “Commencement Date” the date that the Customer takes Delivery of the Equipment. “Conditions” the terms and conditions set out in this document. “Contract” the contract between the Supplier and the Customer for the hire of the Equipment in accordance with these Conditions. “Customer” the person or firm who hires the Equipment from the Supplier. “Delivery” the transfer of physical possession of the Equipment to the Customer at the Site, or as otherwise provided for in clause 6.. “Deposit” the deposit amount set out in the Order. “Hire Contract Form” the document entered into between the Supplier and the Customer documenting the terms of hire, typically including (without limitation) the Equipment, Rental Period and Rental Payments. “Equipment” the items of equipment set out in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it. “Order” the Customer’s order for the Equipment, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or Hire Contract Form, as the case may be. “Site” the Customer’s premises set out in the Order, whether permanent or temporarily established on premises under the control of a third party. “Rental Payments” the payments made by or on behalf of Customer for hire of the Equipment. “Rental Period” the period of hire as set out in Order. “Supplier” SR & HM Shaw Limited, J & M Shaw Ltd, JL & H Shaw Limited and the Diaquip Trust t/a Diaquip of Unit 1, Whitefield Road Industrial Estate, Whitefield Road, Bredbury Stockport, SK6 2QR. “Total Loss” the Equipment is, in the Supplier’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated. “VAT” value added tax chargeable under the Value Added Tax Act 1994. 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this the Contract. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns. 1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.4 Unless the context otherwise requires, words in the singular shall include the plural and vice versa. 1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. 1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. 1.7 A reference to writing or written includes fax and e-mail. 1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done. 1.9 References to clauses and schedules are to the clauses and schedules of the Contract and references to paragraphs are to paragraphs of the relevant schedule. 2 Basis of contract 2.1 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. 2.2 The Order constitutes an offer by the Customer to hire the Equipment in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. 2.3 The Order shall only be deemed to be accepted when either the Supplier issues a written acceptance of it, at which point the Contract shall come into existence. 2.4 A quotation for the hire of the Equipment given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue. 3 Equipment hire 3.1 The Supplier shall hire the Equipment to the Customer. 3.2 The Supplier shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Customer’s quiet possession of the Equipment. 4 Rental Period 4.1 The Rental Period starts on the Commencement Date and shall continue for the Rental Period unless the Contract is terminated earlier in accordance with these Conditions. 4.2 Unless otherwise stated in the Order the Rental Period shall continue for a minimum period of 7 days. 4.3 Where the Customer is a consumer, acting as an individual (as defined in the Consumer Credit Act 1974), the Contract shall automatically terminate on the 81st day following the Commencement Date. 5 Rental Payments, Delivery Charges, and Deposit 5.1 The Customer shall pay the Rental Payments, the Delivery Charges, and any Advance Payments, to the Supplier in accordance with the Order. Unless otherwise stated in the Order, the Rental Payments shall be paid in Pounds Sterling and be made by BACS payment to the account details provided by the Supplier from time to time (any variation to the bank details provided by the Supplier should be confirmed by the Customer as being valid before any payment is made to them). 5.2 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law. 5.3 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 5.4 If the Customer fails to make a payment due to the Supplier by the due date, then, without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. 5.5 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% for any period when that base rate is below 0%. 5.6 The Deposit is a deposit against default by the Customer of payment of any Rental Payments or any loss of or damage caused to the Equipment. Where a deposit is required the Customer shall, on or before the Commencement Date, pay the Deposit to the Supplier. 5.7 If the Customer fails without due cause to make any Rental Payments, or causes any loss or damage to the Equipment (in whole or in part), the Supplier shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to the Supplier any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or any balance of it) shall be refundable within five (5) Business Days of the end of the Rental Period. 6 Delivery 6.1 Delivery shall, unless otherwise agreed in the Order, be made by collection of the Equipment by the Customer. Where Delivery effected by the Supplier by way of the transportation of the Equipment to the Site (or other location agreed in writing), Delivery Charges will apply, which shall be paid in accordance with clause 5. The Supplier shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. 6.2 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Supplier, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance. 6.3 The Customer shall (as appropriate) at its sole expense provide all facilities and access to the Site to enable Delivery to be carried out safely and expeditiously. 7 Title, risk and insurance 7.1 The Equipment shall at all times remain the property of the Supplier. 7.2 The Supplier shall maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted). 7.3 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer (“Risk Period”) until such time as the Equipment is redelivered to the Supplier. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances: 7.3.1 insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Supplier may from time to time nominate in writing; 7.3.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Supplier may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and 7.3.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Supplier may from time to time consider reasonably necessary and advise to the Customer. 7.4 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment. 7.5 If the Customer fails to effect or maintain any of the insurances required under the Contract, the Supplier shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer. 7.6 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Supplier and proof of premium payment to the Supplier to confirm the insurance arrangements. 8 Customer’s responsibilities 8.1 The Customer shall during the term of the Contract: 8.1.1 ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions; 8.1.2 take such steps (including compliance with all safety and usage instructions provided by the Supplier) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work; 8.1.3 subject to clause 7.2, at its own expense make good any damage to the Equipment; 8.1.4 make no alteration to the Equipment; 8.1.5 be responsible on an indemnity basis for those costs and expenses incurred by the Supplier arising out of or in connection with any examination or inspection of the Equipment required of the Supplier and which arises out of a legislative (or other authority) requirement or best practice, except where otherwise agreed by the Supplier in the Order or otherwise in writing. 8.1.6 keep the Supplier fully informed of all material matters relating to the Equipment; 8.1.7 at all times keep the Equipment in the possession or control of the Customer and keep the Supplier informed of its location; 8.1.8 permit the Supplier or its duly authorised representative to inspect and carry out any maintenance or repair of the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located; the Customers shall grant, or procure the grant of reasonable access and facilities to enable the Supplier to inspect, maintain or repair the Equipment; 8.1.9 not, without the prior written consent of the Supplier, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it; 8.1.10 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Supplier in the Equipment 8.1.11 take all necessary steps to ensure that the Supplier may enter such land or building and recover the Equipment both during the term of the Contract and for a reasonable period thereafter; 8.1.12 not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Supplier and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Supplier on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; 8.1.13 not use the Equipment for any unlawful purpose; 8.1.14 deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as the Supplier requires, or if necessary allow the Supplier or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and 8.1.15 only act in the course of business and not as a consumer. 8.2 INDEMNITY – The Customer undertakes to indemnify and hold harmless the Supplier on demand against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of the Contract. 9 Warranty 9.1 The Supplier warrants that the Equipment shall on the Commencement Date substantially conform to its specification (as made available by the Supplier), be of satisfactory quality and fit for any purpose held out by the Supplier. 9.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Supplier, the Customer shall be entitled only to such warranty or other benefit as the Supplier has received from the manufacturer. 10 Liability 10.1 Without prejudice to clause 10.2, the Supplier’s maximum aggregate liability for breach of the Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed: 10.1.1 In respect to damage to property £1,000,000, and 10.1.2 for all other liabilities £500,000. 10.2 Nothing in the Contract shall exclude or in any way limit: 10.2.1 either party’s liability for death or personal injury caused by its own negligence; or 10.2.2 either party’s liability for fraud or fraudulent misrepresentation 10.2.3 the liability of the Customer to replace the Equipment where a Total Loss occurs which is not the result of an act or omission of the Supplier. 10.3 The Contract sets forth the full extent of the Supplier’s obligations and liabilities in respect of the Equipment and its hiring to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Supplier except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded. 10.4 Without prejudice to clause 10.2, neither party shall be liable under the Contract for any: 10.4.1 loss of profit; 10.4.2 loss of revenue 10.4.3 loss of business; or 10.4.4 indirect or consequential loss or damage, in each case, however caused, even if foreseeable. 11 Termination 11.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if: 11.1.1 the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 5 Business Days after being notified in writing to make such payment; 11.1.2 the Customer commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so; 11.1.3 the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; 11.1.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; 11.1.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; 11.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; 11.1.7 the Customer (being an individual) is the subject of a bankruptcy petition, application or order; 11.1.8 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days; 11.1.9 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business 11.2 For the purposes of clause 11.1.2, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Supplier would otherwise derive from: 11.2.1 a substantial portion of the Contract; or 11.2.2 any of the obligations set out in clause 8, over the term of the Contract. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding. 11.3 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment and replacement equipment is not immediately available. 12 Consequences of termination 12.1 Upon termination of the Contract, however caused: 12.1.1 the Supplier’s consent to the Customer’s possession of the Equipment shall terminate and the Supplier may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and 12.1.2 without prejudice to any other rights or remedies of the Customer, the Customer shall pay to the Supplier on demand: 12.1.2.1 all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5.4; 12.1.2.2 any costs and expenses incurred by the Supplier in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs) 12.1.2.3 all costs (including, without limitation, the price paid for replacement equipment) and expenses incurred by the Supplier in replacing the Equipment where a Total Loss occurs which is not the result of an act of omission of the Supplier. 12.2 Upon termination of this agreement pursuant to clause 11.1, any other repudiation of the Contract by the Customer which is accepted by the Supplier or pursuant to clause 11.3, without prejudice to any other rights or remedies of the Supplier, the Customer shall pay to the Supplier on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period, less a discount of 33% for accelerated payment 12.3 The sums payable pursuant to clause 12.2 shall be agreed compensation for the Supplier’s loss and shall be payable in addition to the sums payable pursuant to clause 12.1.2. Such sums may be partly or wholly recovered from any Deposit. 12.4 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry. 13 Force majeure Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 days, the party not affected may terminate the Contract by giving 2 Business Days’ written notice to the affected party. 14 Assignment and other dealings The Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract. 15 Entire agreement 15.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 15.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. 16 Variation No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 17 No partnership or agency 17.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. 18 Third party rights 18.1 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. 18.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person. 19 Notices 19.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be: 19.1.1 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 19.1.2 by e mail to: 19.1.2.1 for the Supplier: Sales@Diaquip.co.uk 19.1.2.2 for the Customer: as stated on the Hire Contract Form or as otherwise provided by the Customer in writing 19.2 Any notice or communication shall be deemed to have been received: 19.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 19.2.2 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.. 19.3 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. 20 Waiver No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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. 21 Severance 21.1 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. 22 Governing law The Contract 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. 23 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 the Contract or its subject matter or formation (including non-contractual disputes or claims). TERMS & CONDITIONS OF PURCHASE 1Interpretation 1.1Definitions. 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 terms and conditions as amended from time to time in accordance with clause 15.7. “Contract” the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions. “Customer” SR & HM Shaw Ltd, JL & H Shaw Ltd, J & M Shaw Ltd, and The Diaquip Trust trading as Diaquip of Unit 1, Whitefield Road, Bredbury, Stockport, SK6 2QR, UK. “Customer Materials” has the meaning set out in clause 5.3.10. “Deliverables” all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts). “Goods” the goods (or any part of them) set out in the Order. “Goods Specification” any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier. “Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 purchase order form, or in the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be. “Services” the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification. “Service Specification” the description or specification for Services agreed in writing by the Customer and the Supplier. “Supplier” the person or firm from whom the Customer purchases the Goods and/or Services. 1.2Construction. In these Conditions, the following rules apply: 1.2.1a person includes a natural person, firm, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its successors or permitted assigns; 1.2.2a 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; 1.2.3any 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 1.2.4a reference to writing or written includes e-mails. 2Basis of contract 2.1The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions. 2.2The Order shall be deemed to be accepted on the earlier of: 2.2.1the Supplier issuing written acceptance of the Order; or 2.2.2any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (“Commencement Date“). 2.3These 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 trade, custom, practice or course of dealing. 2.4All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified. 3Supply of Goods 3.1The Supplier shall ensure that the Goods shall: 3.1.1correspond with their description and any applicable Goods Specification; 3.1.2be 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 judgment; 3.1.3where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery (unless otherwise agreed in writing by the Customer); and 3.1.4comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods. 3.2The 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 in respect of the Goods. 3.3The Customer shall have the right to inspect and test the Goods at any time before delivery. 3.4If 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 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. 3.5Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions. 4Delivery of Goods 4.1The Supplier shall ensure that: 4.1.1the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; 4.1.2each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and 4.1.3if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier. 4.2The Supplier shall deliver the Goods: 4.2.1on the date specified in the Order or, if no such date is specified, then within 7 days of the date of the Order; 4.2.2to the Customer’s premises set out at clause 1.1 or such other location as is set out in the Order or as instructed by the Customer before delivery (“Delivery Location“); 4.2.3during the Customer’s normal business hours for the receipt of deliveries which are 0730 – 1700 on a Business Day, or as otherwise instructed by the Customer. 4.3Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location. 4.4If the Supplier: 4.4.1delivers less than 95 per cent of the quantity of Goods ordered, the Customer may reject the Goods; or 4.4.2delivers more than 105 per cent of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods. 4.5The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are 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 6.1. 4.6Title and risk in the Goods shall pass to the Customer on completion of delivery. 4.7Where the Goods are certified as being CE Mark compliant, or compliant with any other rule, code, law, regulation, directive or other authority affecting the manufacture, sale, labelling or packaging of the Goods (Regulatory Authorities), or where the Services include the determination of such compliance, the Supplier warrants that: 4.7.1the Goods are compliant in all respects with all and any of the Regulatory Authorities; and 4.7.2that it has the expertise to determine such compliance. 4.8INDEMNITY – the Supplier undertakes to indemnity the Customer from for and against all costs claims demands, damages, expenses, fines, penalties and any other liability that the Customer incurs as a result of any breach of clause 4.7 by the Supplier. 5Supply of Services 5.1The Supplier shall from the date set out in the Order (or where no date is stated, the Commencement Date) and for the duration of this Contract provide the Services to the Customer in accordance with the terms of the Contract. 5.2The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Customer. 5.3In providing the Services, the Supplier shall: 5.3.1co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer; 5.3.2perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade; 5.3.3use 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 this Contract; 5.3.4ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer; 5.3.5provide all equipment, tools and vehicles and such other items as are required to provide the Services; 5.3.6use 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; 5.3.7obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations; 5.3.8observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises. 5.3.9where the Services involve the alteration to the property or equipment of the Customer obtain the specific written consent of the Customer before performing such Services; 5.3.10hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (“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 5.3.11not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services. 6Customer remedies 6.1If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights: 6.1.1to terminate the Contract with immediate effect by giving written notice to the Supplier; 6.1.2to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make; 6.1.3to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party; 6.1.4where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and 6.1.5to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates. 6.2If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods: 6.2.1to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense; 6.2.2to terminate the Contract with immediate effect by giving written notice to the Supplier; 6.2.3to 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); 6.2.4to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make; 6.2.5to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and 6.2.6to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1. 6.3These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier. 6.4The Customer’s rights under this Contract are in addition to its rights and remedies implied by statute and common law. 7Customer’s obligations 7.1The Customer shall: 7.1.1provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services; and 7.1.2provide such information as the Supplier may reasonably request for the provision of the Services and the Customer considers reasonably necessary for the purpose of providing the Services 8Charges and payment 8.1The price for the Goods: 8.1.1shall 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 in force at the Commencement Date; and 8.1.2shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer. 8.2The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. 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. 8.3In respect of Goods, the Supplier shall invoice the Customer on or at any time within five Business Days after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information that is required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. 8.4In consideration of the supply of Goods and/or Services by the Supplier, unless otherwise agreed in writing, the Customer shall pay the invoiced amounts before the end of the calendar month following the month of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier. The Supplier should notify the Customer promptly in writing in the event that payment is not received into its bank account in accordance with the timescale notified in the Customer’s payment remittance advice. 8.5All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued 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 Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services. 8.6If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above NatWest Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith. 8.7The 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. 8.8The Customer may at any time, without limiting any of its other rights or remedies, 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. 9Intellectual property rights 9.1In respect of the Goods and any goods that are transferred to the Customer as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer. 9.2The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables. 9.3The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction. 9.4The Supplier shall, promptly at the Customer’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with clause 9.2. 9.5All Customer Materials are the exclusive property of the Customer. 10Indemnity 10.1The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to 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 reasonable professional costs and expenses) suffered incurred by the Customer as a result of or in connection with: 10.1.1any 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, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; 10.1.2any 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 Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and 10.1.3any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors. 10.2This clause 10 shall survive termination of the Contract. 11Confidentiality 11.1A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. 11.2This clause 11 shall survive termination of the Contract. 12Termination 12.1Without limiting its other rights or remedies, the Customer may terminate the Contract: 12.1.1Unless otherwise stated in the Order in respect of the supply of Services, by giving the Supplier one calendar month’s written notice, unless otherwise agreed in writing by the Customer; and 12.1.2in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss. 12.2In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply. 12.3Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if: 12.3.1the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing to do so; 12.3.2the Supplier repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; 12.3.3the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; 12.3.4the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; 12.3.5a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier; 12.3.6the Supplier (being an individual) is the subject of a bankruptcy petition or order; 12.3.7a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; 12.3.8an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company); 12.3.9the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver; 12.3.10a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier; 12.3.11any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3.3 to clause 12.3.10 (inclusive); 12.3.12the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business; or 12.3.13the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation. 12.4Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. 12.5Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect. 13Consequences of termination On termination of the Contract for any reason, the Supplier shall immediately deliver to the Customer all Deliverables 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. 14Force majeure 14.1Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control (“Force Majeure Event“). 14.2The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations. 14.3If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than five Business Days, the Customer may terminate the Contract immediately by giving written notice to the Supplier. 15General 15.1Assignment and other dealings 15.1.1The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. 15.1.2The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer. 15.2Notices 15.2.1Any notice or other communication given to a party under or in connection with the 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 pre-paid first class post or other next working day delivery service, commercial courier or e-mail. 15.2.2A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2.1; 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 e-mail, one Business Day after transmission. 15.2.3The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. 15.3Severance 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. 15.4Waiver A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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. 15.5No partnership or agency Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way. 15.6Third parties A person who is not a party to the Contract shall not have any rights to enforce its terms. 15.7Variation 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 Customer. 15.8Governing law The Contract, 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. 15.9Jurisdiction 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 agreement or its subject matter or formation (including non-contractual disputes or claims). 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