1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:
1.2 Clause headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, and a corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 Any obligation in the Contract on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.8 A reference to the Contract is a reference to the Contract as varied or novated (in each case, other than in breach of the provisions of the Contract) at any time.
1.9 References to clauses are to the clauses of the Contract.
1.10 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.
2 Basis of contract
2.1 These terms shall apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether referenced in the Order, correspondence or otherwise), or which are implied by trade, custom, practice or course of dealing.
2.2 In the event of a conflict between the parts of the Contract the following order of precedence shall apply:
2.3 The Order constitutes an offer by the Customer to purchase the Structures and/or Services in accordance with these terms and conditions. The Customer shall ensure that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Supplier issues the Supplier’s Acceptance, at which point the Contract shall come into existence (the “Contract Date”). Quotations shall not constitute an offer. Quotations shall only be valid for a period of thirty (30) Business Days from their date of issue unless otherwise specifically stated thereon.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Structures or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the supply of the Structures and/or Services.
2.5 Any typographical, clerical or other accidental errors or omissions in the Contract shall be subject to correction without any liability on the part of the Supplier.
3 The Project Plan
The parties acknowledge that they may agree the supply of the Structures and the Services on the basis of a Project Plan. Where the parties have not agreed a Project Plan, the Structures and the Services shall be supplied on the basis of the other documents referred to in clause 2.2 (where they exist), in so far as they form part of and subject always to the terms of the Contract.
4 Supplier's obligations
4.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Structures to the Customer, in accordance in all material respects with the Contract.
4.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence in respect thereof.
4.3 The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
5 Customer's obligations
5.1 The Customer shall:
5.2 The Customer warrants and undertakes to ensure:
6.1 The Supplier shall procure that each Structure is Delivered to the Customer at the Delivery Location.
6.2 In the event that in the course of Delivery of a Structure, the Structure is required to be transported across a border or be cleared for transit by any customs authority or facility or similar, the Customer shall, if required by the Supplier, act as the importer of record in relation to such Structure.
6.3 Delivery of a Structure shall be complete upon its arrival at the Delivery Location.
6.4 If the Customer fails to accept delivery of a Structure, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under the Contract:
6.5 Nothing in clause 6.4 shall act to negate the rights of the Supplier to recover any loss, cost, expense, damages or compensation from the Customer for the Customer’s breach of the Contract.
6.6 All Customer Deliverables shall be delivered by the Customer to the Supplier in such manner and to such location as the Supplier so directs.
7 Title and risk
7.1 Risk in Structures Delivered to the Customer shall pass to the Customer on Delivery.
7.2 Title to Structures Delivered to the Customer shall pass to the Customer on receipt by the Supplier in full and cleared funds of the whole of the Charges and of any other sums due by the Customer to the Supplier under any other contract between the Supplier and the Customer.
7.3 Following Delivery, and until title to a Structure has passed to the Customer, the Customer shall:
8 Acceptance and rejection
8.1 The Customer shall accept the Structures in accordance with the Acceptance Schedule (if any). In the event of a conflict between the Acceptance Schedule and the remainder of this clause 8, the Acceptance Schedule (if any) shall take precedence. In all other events the remainder of this clause 8 shall apply.
8.2 The Customer shall inspect all Structures within five (5) Business Days of Delivery, and inform the Supplier without delay of any defects evident therein. If the Customer does not so notify the Supplier of any defects the Customer shall be deemed to have accepted the Structures and shall not be entitled to reject any Structure due to any defect which should have been apparent on such inspection, and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that defect.
8.3 In the case of a latent defect in any Structure which is not reasonably ascertainable during the period referred to in clause 8.1, the Customer shall notify the Supplier without delay following the latent defect becoming apparent, and in any case within five (5) Business Days thereof. In the event that the Customer does not so notify the Supplier, the Customer shall not be entitled to reject any Structure due to such latent defect and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that latent defect.
8.4 In the event that the Customer notifies the Supplier of a defect in accordance with clause 8.1 or 8.3, subject always to the terms of clause 13, the Supplier shall at its option either replace, repair, or refund the part of the Charges paid by the Customer to the Supplier in respect of, such Structure, in full satisfaction of any and all liability of the Supplier to the Customer in respect of such defect.
8.5 The Customer’s Project Manager(s) shall have the right, exercisable during Normal Working Hours on any Business Day and subject always to the prior written agreement of the Supplier (such agreement not to be unreasonably withheld), to inspect any Structures in the process of creation. In the event that the Customer exercises this right, the Supplier shall be entitled to appoint a representative to accompany the Customer’s Project Manager. In exercising this right, whilst at the location where the inspection takes place, the Customer’s Project Manager shall comply with all applicable rules, regulations and policies, along with all directions given by or on behalf of the Supplier.
9 Project Management
The Customer’s Project Manager(s) and the Supplier’s Project Manager shall meet on such regular occasions (if any) as are specified in the Project Plan to discuss matters relating to the Project.
10 Change control
10.1 If following the Contract Date either party wishes to amend or alter the Contract, including the nature of the Structures, the Services, the Specification, the Project Plan or the Charges (a “Change”), it shall submit details of the Change to the other in writing. Changes shall be dealt with in accordance with this clause 10.
10.2 Following the submission of a Change, the Supplier shall, within a reasonable time, provide details to the Customer of:
10.3 If the Change is required by the Customer, for example by way of the Customer requiring through a Customer Project Manager that the performance by the Supplier of its obligations hereunder is suspended or paused, the Change shall be deemed binding between the parties on expiry of a period of twenty four (24) hours following submission of the Change Response, unless the Change Response specifies a longer period.
10.4 If the Supplier requests a Change, the Customer shall not unreasonably withhold or delay consent to it.
10.5 Except as specified above, if the Customer wishes the Supplier to proceed with a Change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges, the Project Plan and any relevant part of the Contract to take account of the change.
11 Charges and payment
11.1 The Supplier shall invoice the Customer for the Charges on the date(s) specified in the Quotation. Where the Quotation does not specify date(s) for the invoicing of the Charges, the Charges shall be invoiced on the following dates:
11.2 Where the Services are Installation Services, unless agreed otherwise between the Supplier and the Customer and stated in the Project Plan, the Charges shall be determined according (a) the cost to the Supplier of any Third Party Items acquired, and (b) the time spent by the Supplier installing the Customer Items and/or the Third Party Items according to the Supplier’s standard hourly rates in force from time to time. Where the Installation Services include the acquisition of Third Party Items, the Supplier shall also be entitled to levy an additional fifteen percent (15%) administration charge upon the cost of the Third Party Items. The Supplier shall be entitled to invoice the Customer for any such Charges as and when such Charges accrue.
11.3 The Charges are expressed exclusive of all VAT and Duties, for which the Customer shall be additionally liable, and which the Supplier shall add to its invoices at the appropriate rate.
11.4 The Customer shall pay each invoice submitted to it by the Supplier in full upon receipt, unless specified otherwise within the Contract.
11.5 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay any invoice by its due date the Supplier may:
11.6 Time of payment of the Charges shall be of the essence of the Contract.
11.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract despite any other provision, without prejudice to any right to claim for interest under the law, or any such right under the Contract.
11.8 If the Supplier so directs the Customer shall procure that payment of the Charges shall be secured by a bank guarantee or an irrevocable letter of credit satisfactory to the Supplier established by the Customer in favour of the Supplier and confirmed by a United Kingdom bank acceptable to the Supplier and valid for such period as the Supplier specifies, and which shall entitle the Supplier to payment on the presentation to such United Kingdom bank on presentation of the documents stipulated in relation thereto.
11.9 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
11.10 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
11.11 All Customer Deliverables shall be supplied by the Customer to the Supplier at the sole cost of the Customer.
12 Quality standards
12.1 The Supplier shall use reasonable but commercially prudent endeavours to ensure all Services supplied to the Customer by the Supplier pursuant to the Contract shall be supplied with all skill and care and in accordance with standard industry practice, however the Supplier neither gives any warranty or guarantee or makes any representation as to the quality, standard or manner of supply of the Services.
12.2 The Supplier shall use reasonable but commercially prudent endeavours to ensure the Structures supplied to the Customer pursuant to the Contract shall:
12.3 The Customer acknowledges that the Supplier has manufactured the Structures on the basis of the Customer Information, including the information as regards the intended use of the Structures and the required performance characteristics of the Structures (including their ability to withstand specified levels of stress, pressure or load, for example through their use in adverse weather conditions, in inclement seas or in the region of other structures or energy sources). The Customer acknowledges that in no event shall the Supplier be liable in any manner for any failure of the Structures to be fit for any purpose or for use within any conditions or subject to any stress, pressure or loads not referred to in the Contract.
12.4 The Customer acknowledges that the ability of the Structures to meet the standards set down in the Contract is contingent upon the Structures being properly maintained by the Customer. Accordingly, the Supplier shall not be liable for any failure of the Structures to meet the standards set down in the Contract where such failure has arisen as a result (directly or indirectly) of a failure of the Customer to properly maintain the Structures.
12.5 The Supplier shall not be liable for any failure of the Structures to meet the standards set down in the Contract where such failure has arisen due to normal wear and tear, normal degradation of the materials utilised within the Structures, for example galvanic corrosion or degradation, or fatigue induced failure.
12.6 The Customer warrants that the Customer Deliverables shall be fit for the purpose for which they are intended to be used, within the Project and in respect of the provision of the Services. The Customer shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability incurred by the Supplier and arising out of or relating directly or indirectly to any breach of the warranty granted under this clause 12.4.
13 Third party items
If any part of a Structure is to be acquired by the Supplier for the Customer from a third party (a “Third Party Item”), the Customer acknowledges that unless the Supplier has agreed in the Contract to provide Services in the form of the specification and selection of that Third Party Item as fit for a particular purpose, the Supplier grants no warranty or guarantee in respect of such Third Party Item, the Customer shall not be entitled to reject such Third Party Item pursuant to the Contract (or any Structure supplied pursuant to the Contract on the basis of any defect, failure in or lack of fitness of purpose of that Structure due to that Third Party Item), and that the Supplier shall not be liable for any loss, cost, expense or damage arising (directly or indirectly) as a result of that Third Party Item. The Supplier shall, however, use reasonable endeavours to procure that any warranty or guarantee granted by the manufacturer of such Third Party Item is enforceable by the Customer.
14 Consents, permissions and applicable laws
14.1 The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the supply of the Structures and the Services to the Customer in the manner envisaged in the Contract.
14.2 The Customer shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to acquire, use or enjoy the benefit of the Services and Structures supplied to it.
14.3 The Customer shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to its acquisition, use or enjoyment of the benefit of the Services and Structures supplied to it.
15 Limitation of liability
15.1 This clause limits the financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:
15.2 Nothing in the Contract shall limit or exclude the liability of either party for:
15.3 Without prejudice to clause 15.2, and except as specified otherwise hereunder, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with the Contract.
15.4 The Supplier shall not be liable to the Customer for any loss, cost, expense or damage arising (directly or indirectly) due to the act or omission of any person not under the management of the Supplier.
15.5 Subject always to clauses 15.2, 15.3 and 15.4 the liability of the Supplier to the Customer under and in respect of the performance or non-performance of its obligations under the Contract shall be limited to the Charges paid to the Supplier by the Customer.
The Supplier shall ensure the Structures against loss or damage whilst at risk of the Supplier. Otherwise the Supplier shall maintain such insurances as are prudent and customary for a manufacturer of structures similar to the Structures to maintain.
17 Assignment and subcontracting
The Customer may not assign, transfer, subcontract or deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Supplier. The Supplier may in its sole discretion assign, transfer, sub-contract or otherwise deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Customer.
18 Intellectual Property Rights
18.1 All Intellectual Property Rights resulting from the provision of the Structures and the Services shall be the absolute property of the Supplier. Whilst the Supplier shall not knowingly infringe the Intellectual Property Rights of any third party in its supply of the Structures and the Services, it does not warrant that the Structures and the Services shall not infringe the Intellectual Property Rights of any third party. The Supplier hereby grants (subject always to any applicable third party rights) to the Customer the right to use the Structures for the purposes envisaged in the Project Plan free of charge and on a non-exclusive, worldwide basis. If the Supplier terminates the Contract pursuant to clause 20.2, this licence will automatically terminate.
18.2 The Customer warrants that the Supplier is entitled to make use of any Customer Deliverables for the purposes of providing the Services and the Structures to the Customer, and shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability arising out of or relating directly or indirectly to any claim or allegation that the use by the Supplier of the Customer Deliverables for the purposes of providing the Services and the Structures to the Customer infringes or is likely to infringe the Intellectual Property Rights of any person.
19.1 Save as expressly provided hereunder, each party undertakes that it shall not at any time during the Term and thereafter disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party including information relating to a party’s operations, processes, plans, electronic drawing or other files, know-how, trade secrets, market opportunities and customers (“Confidential Information”), except as permitted by clause 19.3.
19.2 Each party may disclose the other party’s Confidential Information:
19.3 The Supplier may disclose Confidential Information of the Customer to members of its Group provided that the Supplier takes all reasonable steps to ensure that such persons comply with the confidentiality obligations contained in this clause 19 as though they were a party to the Contract and the Supplier remains responsible for such persons’ compliance with the confidentiality obligations set out in this clause.
19.4 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party or to be implied from the Contract.
20 Term and termination
20.1 The Contract shall commence on the Contract Date and shall, subject to the provisions of clause 20.2, remain in effect until completion of the Project.
20.2 If the Customer becomes subject to any of the events listed in clause 20.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may:
20.3 For the purposes of clause 20.2, the relevant events are:
20.4 The Customer shall notify the Supplier immediately if it becomes subject to any of the events listed in clause 20.3.
20.5 Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
20.6 On termination of the Contract, save as expressly provided otherwise hereunder:
20.7 On termination of the Contract any provision of the Contract which is intended either expressly or by implication to enter into or continue in force shall (as appropriate) enter into or remain in force.
21 Force majeure
21.1 Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under the Contract so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
21.2 A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:
Save as otherwise provided in the Contract, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of the Contract, and all documents ancillary to it.
23.1 If any provision of the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
24 Further assurance
Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to the Contract and the transactions contemplated by it.
25 Variation and waiver
25.1 Any variation of the Contract shall be in writing and signed by or on behalf of the parties by a person expressly authorised to execute the same.
25.2 Any waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
25.3 No failure to exercise or delay in exercising any right or remedy provided under the Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
25.4 No single or partial exercise of any right or remedy under the Contract shall prevent or restrict the further exercise of that or any other right or remedy.
26.1 A notice served under the Contract:
26.2 The addresses for service of notices are those addresses specified at the beginning of the Contract.
26.3 A notice or any other communication given in connection with the Contract is deemed to have been received if delivered personally, at the time of delivery, or if sent by commercial courier, five (5) Business Days following despatch into the care of the courier.
26.4 For the purposes of this clause if deemed receipt under this clause is not within Normal Working Hours on any Business Day, the notice shall be deemed to have been received on commencement of Normal Working Hours on the next Business Day.
27 Rights of third parties
No term of the Contract shall be enforceable by a person who is not a party to the Contract.
28 Governing law and jurisdiction
28.1 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 Scots law.
28.2 The parties irrevocably agree that the courts of Scotland shall, subject to the foregoing, have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing the Supplier shall be entitled to at its option seek recourse for any breach of the Contract by the Customer or enforcement of any judgement given against the Customer in any jurisdiction in which the Customer has assets or to which the Customer is subject.