CLEARWATER HYGIENE LTD
STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS
1.1 In this document the following words shall have the following meanings:
means these Terms and Conditions for Supply of Goods together with the terms of any applicable Order Documents;
means the organisation or person who purchases Goods from the Supplier;
“Force Majeure Event”
means any circumstance not within a party's reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; (f) collapse of buildings, fire, explosion or accident; and (g) any labour or trade dispute, strikes, industrial action;
means ClearWater Hygiene hand sanitiser and/or dispensers, as reflected in the order confirmation;
means an order confirmation, quotation, pro-forma invoice, invoice or other similar document describing the Goods to be provided by the Supplier; and
means ClearWater Hygiene Ltd.
2.1 This Agreement shall apply to all contracts for the supply of Goods ordered by a Customer from the Supplier on a one-off basis.
2.2 Before the dispatch of Goods, the Supplier shall submit to the Customer an Order Document which shall specify the Goods to be supplied, location, estimated time frames and the price payable. The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the Order Document.
2.3 All Order Documents shall be subject to the terms of this Agreement.
2.4 We may contact you to say that we do not accept your order. This is typically for the following reasons:
2.4.1 the goods are unavailable;
2.4.2 we cannot authorise your payment;
2.4.3 you are not allowed to buy the Goods from us;
2.4.4 we are not allowed to sell the Goods to you; or
2.4.5 there has been a mistake on the pricing or description of the Goods.
3. PRICE AND PAYMENT
3.1 The price for the supply of Goods are as set out in the Order Document. The Supplier shall invoice the Customer upon despatch of the Goods.
3.2 Invoiced amounts shall be due and payable by the Customer within the payment timescales stated in the invoice. Time of payment is of the essence. Where sums due under this Agreement are not paid in full by the due date, the Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 4% per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the Goods are supplied.
3.3 All prices are quoted exclusive of UK Vat, where applicable.
3.4 Any prices quoted in any sales literature may be subject to change without notice.
3.5 The Company reserves the right to repossess any Goods should the Customer become insolvent or fail to pay for them under the terms of the Agreement.
4. SPECIFICATION OF THE GOODS
All Goods shall be required only to conform to the specification in the Order Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales of marketing literature of the Supplier and no representation written of oral, correspondence or statement shall form part of the Agreement.
5.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the location specified in the Order Document.
5.2 The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the Contract. The Supplier shall use its reasonable endeavours only to meet delivery dates but such dates are indicative only.
5.3 The Supplier shall not be liable for any loss, costs, damages, charges or expenses cause directly or indirectly by any delay in the delivery of Goods.
5.4 All risk in the Goods shall pass to the Customer upon delivery. The Goods shall be deemed delivered on unloading of the Goods at the specified location in the Order Document by the Supplier, or its nominated carrier.
5.5 The Supplier may deliver the Goods in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.6 The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
5.7 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery and the Customer shall pay all reasonable storage and insurance charges incurred by the Supplier in doing so.
5.8 If five (5) Business Days following the agreed date of delivery or collection of the Goods, the Customer has not taken delivery or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in 5.8.1 and 5.8.2. The Supplier shall:
5.8.1 deduct all reasonable storage charges and costs of resale; and
5.8.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.
5.9 This contract is divisible. Each delivery made by the Customer shall be deemed to be a separate contract and shall be invoiced separately. Any invoice for a delivery shall be payable in full without deduction or set-off in accordance with the terms of payment stated in the relevant invoice and Clause 3, without reference to and notwithstanding any defect of default in delivery of any other installment.
Title in the Goods shall not pass to the Customer until the Supplier has been paid in full and cleared funds for the Goods.
7. CUSTOMER’S OBLIGATIONS
7.1 To enable the Supplier to perform its obligations under this Agreement the Customer shall:
7.1.1 co-operate with the Supplier;
7.1.2 provide the Supplier with any information reasonably required by the Supplier;
7.1.3 obtain all necessary permissions and consents which may be required before the commencement of the instigating an order of the Goods; and
7.1.4 comply with such other requirements as may be set out in the Order Document, or otherwise agreed between the parties.
7.2 The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 7.1
7.3 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the Goods agreed to in the Order Document, the Customer shall be required to pay to the Supplier as agreed damages, and not as a penalty, the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on less than five (5) working days’ written notice the full amount of the Goods contracted for as set out in the Agreement. The Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the Goods and subject to the payment of the damages set out in this Clause.
7.4 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
7.4.1 the Supplier shall have no liability in respect of any delay to the completion of any order;
7.4.2 if applicable, the timetable for the order will be modified accordingly; and
7.4.3 the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
8. ALTERATIONS TO THE ORDER DOCUMENT
8.1 The parties may at any time before dispatch mutually agree to alter an existing Order Document. Any alterations in the scope of Goods to be provided under this Agreement shall be set out in the new Order Document, which shall reflect the changed Goods and price and any other terms agreed between the parties.
9.1 The Supplier warrants that as from the date of delivery for a period of 24 months from delivery, the Goods will meet all applicable industry standards and be fit for the purpose they are manufactured for (“Warranty Period”).
9.2 The Supplier warrants that the Goods offered under this Agreement shall be provided using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the Goods to be provided by the Supplier. This exclusion does not exclude liability for fraud or fraudulent misrepresentation.
9.4 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, repair, replace, or refund the Price of any of the Goods that do not comply with clause 9.1, provided that the Customer serves written notice on Supplier within two (2) Working Days of discovering the defect during the Warranty Period.
10.1 Each party undertakes that it shall not at any time during the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2
10.2 Each party may disclose the other party’s confidential information:
10.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
11. LIMITATION OF LIABILITY
11.1 The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11.3 Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:
11.3.1 death or personal injury caused by negligence;
11.3.2 fraud or fraudulent misrepresentation; and
11.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.4 Subject to clause 11.3, the Supplier’s total liability to the Customer shall not exceed the price paid or payable by the Customer set out in the relevant Order Document.
11.5 This clause 11.5 sets out specific heads of excluded loss:
11.5.1 Subject to clause 11.3, the types of loss listed in clause 11.5.2 are wholly excluded by the parties.
11.5.2 The following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill; and
(f) indirect or consequential loss.
11.6 Nothing in this clause 11 shall limit the Customers payment obligations under this Agreement.
12.1 Without affecting any other right or remedy available to it, either party to the Agreement may terminate it with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
12.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
12.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonable necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
14. FORCE MAJEURE
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from a Force Majeure Event.
15. INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Order Document.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
If any provision or part-provision of the Agreement 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 17 shall not affect the validity and enforceability of the rest of the Agreement.
18.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2 A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Any notice to be given by either party to the other may be served by e-mail, fax, personal service or by post to the address of the other party given in the Order Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by e-mail shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
20. ENTIRE AGREEMENT
20.1 The Agreement 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.
20.2 Each party acknowledges that in entering into the Agreement 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
21. NO THIRD PARTIES
Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Agreement (Third Party Rights)(Scotland) Act 2017 to enforce any term of the Agreement.
22. GOVERNING LAW AND JURISDICTION
The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of Scotland. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.