TRANS-SPORT.TV LIMITED (company number 09302379) whose registered office is at The Warehouse, Cottam Road, Treswell, Retford, Nottinghamshire, DN22 0EP (‘The Supplier’)
You (‘The Client’)
In consideration of the Price, the Client wishes to purchase the Services from the Supplier. This Contract is made subject to the Terms and Conditions attached. For the purposes of the Terms and Conditions the phrases set out below have the meaning set out beside them.
Best Practice has the meaning given in Clause 13.1
Client Equipment means the client’s equipment dealt with by the Supplier in Specification
Client Information the information provided by the Client to the Supplier that the Supplier uses as the basis for the Specification
Contract the contract between the Supplier and the Client for the supply of the Services
Payment Terms as per the Specification
Price the price for the services outlined in the Specification
Quotation the Supplier’s quotation number to the Client
Services the Services including the Deliverables supplied by the Supplier to the Client as set out in the Specification
Site the site address as set out in the Specification
Specification the description of the services including the Deliverables provided in writing by the Supplier to the Client in accordance with clause 1
Start Date the start date outlined in the Specification
Supplier’s Materials has the meaning set out in clause 7.1
Survey the survey of the Site conducted by the Supplier in accordance with clause 1.2
NOW IT IS AGREED as follows:
1.1 The Supplier has in response to and in accordance with the Client Information agreed to provide the Services to the Client subject to the provisions of this Contract.
1.2 Prior to the commencement of the Services, the Supplier shall (in compliance with the Client Information) submit to the Client a specification for the Services to be provided. The specification shall specify:
1.2.1 the Services to be undertaken;
1.2.2 the time estimates for the provision of the Services;
1.2.3 the sums payable for the Services (‘the Specification’). The Specification shall be principally based on the Client Information but it may also be based on a Survey. The Specification shall be prepared by the date agreed by the Parties. The Specification will not seek to amend or qualify the Client information without first obtaining the Client’s written consent to such amendments or qualifications.
1.3 On receipt of the Specification the Client will issue a formal signed order to the Supplier to signify the Client’s acceptance of the Services and the Price and Payment Terms. The Client and the Supplier agree that no Services will be provided until the Supplier has received the signed formal order from the Client or written indication of acceptance.
1.4 The Client Information may be varied or added to from time to time in writing and signed by both parties. The changes shall be clearly identified in writing by the Client. The Supplier reserves the right to vary the Specification including the Price and/or Payment Terms in the event that the Client Information is altered by the Client in accordance with this clause 1.4.
1.5 The Supplier reserves the right to alter the Specification to comply with all applicable laws and regulatory requirements or which do not materially affect the nature or quality of the Services.
1.6 If there is any conflict or discrepancy between this Contract and the Specification or the Quotation then this Contract shall prevail.
2. Performance of the Services
2.1 The Services shall be supplied to the Site and they shall be provided in accordance with this Contract. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Specification.
2.2 Time shall not be of the essence for performance of the Services. The Supplier shall not be responsible for any additional costs or losses suffered by the Client as a result of any delay in the provision of the Services caused as a result of the failure of the Client to comply with their obligations under this Contract.
3.1 All payments shall be made in accordance with the Payment Terms
3.2 All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client.
3.3 The Supplier may by giving written notice to the Client at any time before completion of the Services, increase the Price to reflect any increase in the cost of the Services that is due to:
3.3.1 Any factor beyond the Supplier’s control;
3.3.2 Any request by the Client to change the delivery date, nature or quantity of the Services or Deliverables, or the Specification
3.3.3 Any delay or additional costs caused by any instructions of the Client or failure of the Client to give the Supplier adequate or accurate Client Information
3.4 The Supplier reserves the right to invoice the Client before the Services are performed where set out in the Payment Terms.
3.5 The Client agrees to pay each invoice submitted by the Supplier within 30 days from the date of the invoice in full and cleared funds and to make all payments in the Payment Terms. Time for payment shall be of the essence.
3.6 Without prejudice to any other right or remedy of the Supplier, if the Client fails to make any payment due to the Supplier by the due date in accordance with any Payment Terms, the Supplier reserves the right to charge interest on all overdue amounts at the rate of 4% per annum above the current Barclays plc base rate accruing on a daily basis from the due date until the date of actual payment of the full amount due.
4. The Deliverables
4.1 On receipt of the signed order from the Client or written indication of the acceptance of the same, the Supplier shall order the Deliverables.
4.2 The Deliverables are made to order in accordance with drawings which are agreed and signed off by the Client and as such the Supplier shall not be liable for any losses incurred by the Client due to delayed delivery of the Deliverables.
4.3 The Supplier shall deliver the Deliverables to the Site.
The risk in the Deliverables shall pass to the Client on delivery to the Site.
6. Client Equipment
6.1 The Client shall be fully responsible for maintaining up to date insurance for all Client Equipment under this Contract.
6.2 Where the Specification includes the storage of Client Equipment by the Supplier, the Supplier shall:
6.2.1 store such Client Equipment separately from other goods and equipment held by the Supplier so that it remains readily identifiable as the Client’s property
6.2.2 maintain the Client Equipment in satisfactory condition for the period of storage outlined in the Specification or for such other time as agreed by the Client and Supplier.
7.1 All Supplier Materials are the exclusive property of the Supplier
7.2 All Client Equipment shall be the property of the Client subject to the terms of clause 16.1.3
7.3 The property in the Deliverables shall pass to the Client when the Services are paid for in full.
7.4 Until title to the Deliverables has passed to the Client, the Client shall:
7.4.1 Hold the Deliverables on a fiduciary basis as the Supplier’s bailee;
7.4.2 Store the Deliverables separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;
7.4.3 Not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
7.4.4 Maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
7.4.5 Notify the Supplier immediately if it becomes the subject to any of the events listed in clause 15.1; and
7.4.6 Give the Supplier such information relating to the Deliverables as the Supplier may require from time to time;
7.5 If before title to the Deliverables passes to the Client, the client becomes subject to any of the events listed in clause 15.1, or the Supplier reasonably believes that any such event is likely to happen, the Supplier reserves the right, provided the Deliverables have not been re-sold or irrevocably incorporated into another product, without limiting any other right or remedy to require the Client to immediately deliver up the Deliverables, and if the Client fails to do so promptly, the Supplier may enter the premises of the Client or any third party where the Deliverables are stored in order to recover them.
8. Intellectual Property Rights
All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Supplier.
9.1 A party (“Receiving Party”) shall at all times 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 or services which the Receiving Party may obtain.
9.2 Each party may disclose the other party’s confidential information:
9.2.1 To its employees, officers, representatives or advisers for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
9.2.2 as may be required by law.
9.3 No party shall use any other party’s confidential information for any other purpose than to perform its obligations under the Contract.
9.4 This clause 9 shall survive the termination of the Contract.
10 Assignment and sub-contracting
The Supplier shall not assign, transfer, charge or otherwise deal with this Contract or any obligation under this Contract without the prior written consent of the Client. Without prejudice to the generality of the foregoing, the Supplier shall not sub-contract the Services or any right, liability or obligation without the prior written consent of the Client except to the extent specifically permitted under this Contract.
11 The Client’s obligations
11.1 The Client acknowledges and agrees that for the Supplier to be able to provide the Services the Client shall:
11.1.1 ensure that the Supplier is granted sufficient access to the Site at all times required during normal working hours to allow the Supplier to safely carry out the Services. The Supplier shall not be held responsible for any delays or financial losses caused as a result of the Client’s failure to supply access to the Site
11.1.2 co-operate with the Supplier as the Supplier reasonably requires;
11.1.3 provide to the Supplier such information and documentation as the Supplier reasonably requires;
11.1.4 subject to any provisions, limitations or requirements in the Contract make available to the Supplier the facilities, resources, working space and staff as specified in the Specification and/or as the Supplier reasonably requires from time-to-time; and
11.1.5 instruct the Client’s staff and agents to co-operate with and assist the Supplier.
11.1.6 obtain all necessary and required licences, consents and permits to allow the Supplier to perform the Services. The Supplier shall not be liable for any delays caused as a result of the Client’s failure to comply with this obligation
The Services shall be carried out at the Site or such other place as the Parties shall agree.
The Supplier warrants, represents and undertakes that:
13.1 it will carry out the Services with all due skill and diligence and in a good and workmanlike manner, and in accordance with the best practice within the industry of the Supplier (‘Best Practice’);
13.2 Subject always to clause 14.4, the Deliverables will be in accordance with the Specification;
13.3 The Supplier’s employees and agents will have the necessary skills, professional qualifications and experience to perform the Services in accordance with the Specification and Best Practice. The Supplier shall be responsible for all costs, fees, expenses and charges for training necessary or required for the Supplier’s employees and agents to perform the Services;
13.4 The Services and Specification shall not infringe any third-party intellectual property rights;
13.5 It has full capacity and authority to enter into this Contract;
13.6 It shall provide such collateral warranties and such level of professional indemnity insurance as the Supplier may reasonably require.
13.7 The Supplier will be responsible for the work of any sub-contractor that it chooses to use in accordance with these terms and conditions.
14.1 Nothing in this Contract shall limit or exclude the Supplier’s liability for death or personal injury caused by negligence or the negligence of its employees, agents or subcontractors, or for fraud or fraudulent misrepresentation.
14.2 If any part of the Services is performed negligently or in breach of the provisions of this Contract then, at the request of the Client, the Supplier will re-perform the relevant part of the Services until such time as the Client is released from its obligations under the Contract.
14.3 Subject to clause 14.1:
14.3.1 the Supplier shall be under no circumstances whatsoever be liable to the Client for any loss of profit, goodwill or any indirect or consequential loss arising under or in connection with the Contract.
14.3.2 The Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract shall under no circumstances exceed £50,000 in the case of damage to the property of the Client as a result of the negligence of the Supplier, its agents, employees or sub- contractors, or in all other cases the Supplier’s total liability shall not exceed the value of the Price under the Contract.
14.4 The Supplier shall not be liable for any defect in the Deliverables (including breach of the warranty given at clause 13.2) or Services resulting from:
14.4.1 The Client’s failure to follow the Suppliers instructions (oral or written) as to the storage, installation, use or maintenance of the Deliverables;
14.4.2 The Supplier following any Client Information;
14.4.3 The Client or a third party altering or repairing the Deliverables without the written consent of the Supplier;
14.4.4 Fair wear and tear, wilful damage, negligence or abnormal working conditions;
14.4.5 Changes made to the Deliverables to ensure compliance with statutory and regulatory standards resulting in them differing from the Specification
14.5 Each of the Parties acknowledges that, in entering into this Contract, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Contract, and any conditions, warranties or other terms implied by statute or common law are excluded from this Contract to the fullest extent permitted by law
15.1 Without prejudice to Clause 18.1 and any other remedies or rights, either Party may terminate this Contract at any time by written notice to the other Party (‘Other Party’) and the notice takes effect as specified in the notice:
15.1.1 If the Other Party is in material breach of its obligations under this Contract, and where a breach is capable of remedy, the breach is not remedied within a reasonable time (decided upon by the Client acting reasonably and by reference to the nature of the breach) by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied within the time specified; or
15.1.2 If the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
15.2 The Supplier may terminate this Contract without notice if the Client fails to pay any amount due under this contract on the due date for payment.
15.3 The Supplier may terminate the Contract at any time without limiting their other rights and remedies by giving the Client two (2) months written notice.
16 Consequences of Termination
16.1 On termination of the Contract for any reason:
16.1.1 The Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest, and in respect of the Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately upon receipt;
16.1.2 The Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for to the Supplier. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them.
16.1.3 The Supplier shall have the right to retain the Client Equipment in its possession pending settlement by the Client of all amounts due under this Contract. In the event of non-payment by the Supplier in accordance with the Payment Terms of all outstanding invoices, the Supplier shall have the right to seize the Client Equipment to the value of the sums outstanding and legal ownership of the Client Equipment shall pass to the Supplier who shall be entitled to exercise all legal rights associated with legal ownership such as resale.
16.2 On termination of the Contract by the Supplier due to the Client’s breach of Contract or due to any of the events listed in clause 15.1:
16.2.1 the Supplier shall be entitled to retain any deposit paid by the Client under this Contract;
16.2.2 The Supplier shall be entitled to submit an invoice for any Deliverables which have been made or ordered to satisfy the Contract, which shall be payable by the Client immediately upon receipt.
16.3 The accrued rights, remedies, obligations and liabilities of the parties as at the expiry or termination of this Contract shall not be affected, including the right to claim damages in respect of any breach of Contract which existed at or before the date of termination or expiry.
Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by pre-paid first-class post, recorded delivery or by commercial courier to its registered office. Any notice or other communication shall be deemed to have been received if delivered personally when left at the address above, or if sent by pre-paid first class or recorded delivery at 9am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
17.2 Force majeure
Neither party shall have any liability under or be deemed to be in breach of this Contract for any delays or failures in the performance of this Contract which result from circumstances beyond the reasonable control of that party. The party affected by such circumstances shall promptly notify the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either party may terminate this Contract by written notice to the other Party.
This Contract may only be amended in writing signed by duly authorised representatives of the parties.
17.4 Entire Contract
This Contract contains the whole Contract between the parties in respect of the Specification and supersedes and replaces any prior written or oral contracts, representations or understandings between them. The parties confirm that they have not entered into this Contract on the basis of any representation that is not expressly incorporated into this Contract. Nothing in this Contract excludes liability for fraud.
No failure or delay by the Supplier in exercising any right under this Contract shall operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights and remedies provided by law.
If any term or provision of this Contract is held invalid illegal or unenforceable for any reason by any court such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Contract had been agreed with the illegal invalid or unenforceable provisions eliminated.
In this Contract unless the context otherwise requires:
17.7.1 Words importing any gender include every gender;
17.7.2 Words importing the singular number include the plural number and vice versa;
17.7.3 Words importing persons include firms, companies and corporations and vice versa;
17.7.4 References to numbered clauses and schedules are references to the relevant clause in or schedule to this Contract;
17.7.5 Reference in any schedule to this Contract to numbered paragraphs relate to the numbered paragraphs of that schedule;
17.7.6 Any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
17.7.7 The headings to the clauses, schedules and paragraphs of this Contract are not to affect the interpretation;
17.7.8 Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
17.7.9 Where the word ‘including’ is used in this Contract, it shall be understood as meaning ‘including without limitation’.
18.1 If any dispute or difference arises in respect of this Contract, the Supplier and the Client shall attempt in good faith to resolve such dispute or difference promptly through negotiations between their respective senior executives having authority to settle the same.
18.2 The Client or Supplier may at any time refer a dispute or difference to arbitration.
18.3 Subject to the above the parties agree that all differences or disputes of whatever nature arising under this Contract shall be referred to the Technology and Construction Court (‘the Court’).
18.4 If and insofar as this Contract leaves any matter or thing to the decision or opinion of any person (including any account, requirement or notice) the same shall not prevent the Court, in determining the rights and liabilities of the parties, from making any finding necessary to establish that such decision or opinion was correctly made or expressed on the facts found by the Court or to establish what or what other decision or opinion should have been made or expressed and giving effect thereto as if no decision or opinion had been made or expressed.
19 Proper Law of Contract
This contract is subject to the law of England and Wales.