- In these terms and conditions of sale (“these Terms”), unless the context requires otherwise, the following words shall have the following meanings:“Client” means the company, firm, body or person who agrees to acquire the Services from the Company “The Company” means BIE Magnum Ltd having its trading office at Unit 2, Oak Lane, Fishponds Trading Estate, Bristol, BS5 7UY “Contract” shall mean the agreement between the Company and the Client for the provision of the Services incorporating these Terms; “Force Majeure Event” means any event beyond the reasonable control of a party including, without limitation, strikes, lock-outs, labour disputes, acts 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; “Order” means a purchase order in respect of Services issued by the Client to the Company; “Services” means work and/or services or any of them to be performed by the Company for the Client in accordance with the Contract;
APPLICABILITY OF THESE TERMS OF SALE
- Subject to any variation agreed in writing by the Company, the Contract shall be on these conditions to the exclusion of all other terms and conditions.
- If the Client requires any reasonable alteration, addition or omission to the Services (hereinafter referred to as a “Variation”) the Company shall identify the impact of the Variation on the Services and the professional fee in writing within a reasonable period of receipt of the Client’s written request. The Contract shall remain unchanged unless and until the parties agree any Variation in writing.
MISTAKES IN INFORMATION
- If additional costs or delay are directly occasioned by any discrepancies, errors or omissions in the information and decisions supplied to the Company by the Client, the Client shall pay any such additional costs to the Company and shall allow an extension of time for completion of the Services.
- The Company shall exercise all reasonable skill, care and diligence in the performance of the Services and agreed Variations.
ASSIGNMENT AND SUBCONTRACTING
- The Company may subcontract or assign any part of the Services without the written consent of the Client unless otherwise stated in writing by the Client.
CHARGES AND TERMS OF PAYMENT
- Where a credit account has been agreed by the company, payment will be made within 30 days of submission of an application for payment/invoice unless otherwise agreed in writing by the Company.
- If the payment of any sum due under this Contract is delayed, the Company shall be entitled to charge interest of 4% above the base rate for the time being in force and to suspend performance of the Services provided that no such suspension may take place unless the Company shall have given written notice requiring payment on an overdue sum within 7 days and the Client shall have failed to comply with the notice.
- If any part of an application for payment/invoice is disputed or queried by the Client, the payment of the remainder of the application for payment/invoice shall not be delayed.
- All payments will include VAT at the prevailing rate.
- Where the price for the Services is varied and confirmed in writing by the Company the price as varied shall be binding on both parties and shall not give either party any option of cancellation.The Company’s quoted prices do not include any VAT which will be chargeable at the appropriate rate in addition to the quoted prices. Clients should arrange to submit their claims in respect of allowable repayments of Value Added Tax direct to H.M. Revenue and Customs. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract and which has induced him to enter into the Contract and these Terms shall constitute the entire understanding between the Client and the Company.
TERMS OF PAYMENT
- All payments shall be made by the Client without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
- Where contract work is to be performed over a period in excess of one month the value of work carried out shall be ascertained by the Company at the end of each month and (unless the Contract expressly provides) a sum equal to such value (or any percentage thereof specified in the Contract) shall be detailed on an application for payment and such application for payment shall be paid in accordance with the foregoing provisions of this clause.
- Without prejudice to any other rights the Company may have, failure by the Client to pay any account in accordance with the foregoing terms or other terms specified in the Contract shall entitle the Company, without notice, to suspend work both on the same Order and on any other order from the Client.If the Client is in default and has not paid the Company’s account (including any instalment) on the due date then without prejudice to its rights the Company shall be entitled to treat that failure to pay as a repudiation of the Contract entitling the Company to recover damages for such breach and the Company reserves the right to charge daily compounded interest on all or any outstanding sums at the base rate of The Bank of England in force at that time plus one per cent up to and including the date on which final settlement is actually made. Any discounts offered of any kind are conditional upon the prompt payment of the Company account in accordance with the Contract and such discounts are automatically withdrawn in the event of payment becoming overdue. The Company reserves the right, where genuine doubts arise as to a Client’s financial position or in the case of failure to pay for any services or any instalment as aforesaid, without notice, to suspend delivery or performance of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided. The whole of the price shall not be treated as paid until any cheque, bill of exchange or other instrument of payment given by the Client has been met on presentation and in cleared funds or otherwise honoured in accordance with its terms. All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision
EXTENSION OF TIME AND ADDITIONAL COST
- If the Company is delayed or impeded in the performance of its obligations by any act or omission of the Client, its servants or agents, the Company shall be entitled to be paid any additional costs thereby incurred with an allowance for profit where specified in Schedule 2 and, where appropriate, be allowed an extension of any time specified in Schedule 2 in which to complete any outstanding Consultancy Services.
- If the Company is delayed in the performance of the Consultancy Services by circumstances beyond its reasonable control, the Company shall give immediate written notice of that fact to the Client and shall be entitled to an extension of any time specified in Schedule 2 for the completion of the Consultancy Services. If the Consultancy Services are so delayed by more than 45 days after the date of the notice, or such other period as the parties may agree, either party may terminate the Contract by giving written notice to the other party. In the event of such termination, the Company shall be entitled to that part of the charges applicable to the Services provided prior to the receipt of the written notice of termination, including costs that are reasonably incurred in expectation of the Services continuing and any additional costs reasonably incurred in terminating the services.
- If either party is in breach of its obligations under the Contract and fails to remedy the breach within 14 days (or such longer reasonable period as may be specified) of receiving a written notice to remedy the breach, then the Contract can be terminated forthwith by the party not in default without prejudice to the accrued rights of the parties.
- If either party shall become insolvent or bankrupt, or have a receiving order or administration order made against it or compound with its creditors or, being a corporation, commence to be wound up (not being a members’ voluntary winding up for the purpose of reconstruction or amalgamation) or carry on its business under an administrator or administrative receiver for the benefit of its creditors or any of them, the other party shall be at liberty either
- to terminate the Contract forthwith by notice in writing to the other or to the administrative receiver or administrator or liquidator or to any person in whom the Contract may become vested, or
- to give such administrative receiver, administrator, liquidator or other person the option of carrying out the Contract subject to their providing of a guarantee for the due and faithful performance of the Contract up to an amount to be agreed.
- The Client may not terminate this Contract without the consent of the Company, which if given shall be deemed to be on the express condition that the Client shall indemnify the Company against all loss, damage, claims or action arising out of such termination unless otherwise agreed in writing.
ORDERS AND CONCLUSION OF CONTRACT
- Each Order or acceptance of a quotation for Goods by the Client from the Company shall be deemed to be an offer by the Client to buy Goods subject to these Terms. The Client shall ensure that the terms of its Order and any applicable specification are complete and accurate.
- Any quotation is given on the basis that no Contract shall come into existence until the Contract is concluded by the emailing or posting of the Company’s written acceptance to the Client to an address indicated in the Client’s Order or otherwise.The Company will not be bound by any prices, specifications, delivery dates or other particulars unless they are expressly confirmed in writing in the Company’s acceptance. All Orders, acceptances, additions, amendments and supplementary agreements will be ineffective unless confirmed in writing by the Company.
- For services provided by the Company, the Company shall free of charge (subject to clause 14.5) either repair or, at its option, replace defective goods provided that the defects shall be found to have arisen from the Company’s faulty design, workmanship or materials, and the defective goods shall be returned to the Company at the Client’s expense if so requested by the Company.
- Any repaired or replaced goods shall be redelivered by the Company free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions.
- If the Company undertakes an order to the Client’s patent or specification no responsibility will be accepted in respect of any infringement of patent rights, trademarks or registered designs. The Client will indemnify the Company against any claim whatsoever for damages, costs or any other loses in respect of any proceedings or otherwise resulting from the Company’s compliance with the Clients instruction express or implied. Cancellation or modification of any order for special goods cannot be accepted once manufacture has commenced.
- Notwithstanding anything else in these Conditions, the Company will not be liable to the Client by way of indemnity or by reason of any breach of contract or of statutory duty or by reason of any tort (including negligence) or otherwise for any loss of revenue, loss of business, loss of contracts, loss of anticipated savings, loss of profits or for any special, indirect or consequential loss howsoever arising.
- The total liability of the Company to the Client arising under or in connection with a contract, whether arising by way of indemnity or by reason of any tort (including negligence) or otherwise shall not exceed the price of the services specified in the contract in respect of which the liability arises.
- Nothing in these Conditions shall limit or exclude the Company’s liability for death or personal injury resulting from its negligence or any other liability to the extent that it cannot be excluded or limited by law.
- Any quotation is given on the basis that no Contract shall come into existence until the Contract is concluded by the emailing or posting of the Company’s written acceptance to the Client to an address indicated in the Client’s Order or otherwise.
INTELLECTUAL PROPERTY RIGHTS
- Unless otherwise agreed in writing, all intellectual property rights arising out of this Contract shall vest in the Company. The Client shall have a worldwide, non-exclusive, non-transferable, royalty-free licence to use, and have used, that intellectual property for any purpose.
- The invalidity, illegality or unenforceability of any term or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
JURISDICTION; APPLICABLE LAW; SEVERABILITY
- These Terms or any Contract shall be governed by, and shall be construed in accordance with, UK laws.
- Each party irrevocably agrees for the benefit of the Company that the courts of The UK shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with these Terms or any Contract (respectively, “Proceedings” and “Disputes”) and, for such purposes, irrevocably submits to the jurisdiction of the courts of The UK in determining matters hereunder.
- Each party irrevocably waives any objection which it might at any time have to the courts of The UK being nominated as the forum to hear and determine any Proceedings and to settle any Disputes and agrees not to claim that the courts of The UK are not a convenient or appropriate forum.
- The submission to the jurisdiction of the courts of The UK shall not (and shall not be construed so as to) limit the right of the Company to take Proceedings against the Client in any other court of competent jurisdiction, nor shall the taking of Proceedings by the Company in any one or more jurisdictions preclude the Company taking Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.
- In the event that any provision of these Terms is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or by mutual agreement of the parties, it may be severed from these Terms and the remaining provisions of these Terms shall remain in full force and effect.
VARIATION AND WAIVER
- The Company shall not be bound by any variation, waiver of or addition to these conditions except as agreed by both parties in writing and signed on their behalf by their duly authorised representatives.
- The failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
- Variation to the terms of payment of this Contract can only be made by agreement between the parties prior to the placing of an Order.