TERMS AND CONDITIONS
FOR GOODS AND SERVICES
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DEFINITIONS
“Affiliate” means in relation to the Supplier, a HBH Laser & Company Limited affiliate.
"Agreement" means these terms and conditions together with the accompanying Sales Proposal to the exclusion of any terms and conditions which the Customer may seek to impose.
“Charges” means the charges for the Services and/or Goods set out in the Sales Proposal.
“Customer” means the party contracted to provide the Goods and/or Services as set out in the Sales Proposal.
"Clause" means a clause in these terms and conditions.
“Delivery Address” means the address at which the Goods are to be delivered or Services are to be performed as stated on the Supplier’s Proposal.
“Good Industry Practice” means in relation to any undertaking and any circumstances, the exercise of any skill and care which would be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances.
“HBH Laser & Company Limited Affiliates” means the Supplier or any other person which is from time to time is a Subsidiary of the Supplier in the United Kingdom.
“IPR” means any means all intellectual and industrial property of any kind whatsoever including source code, patents, rights in know-how, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with: (i) all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions; (ii) all rights to sue for infringement and for damages in relation to any infringement action owned, licenced or assigned to the Customer.
“Personal Data” means the data which relates to a living individual who can be identified from that data or from that data and other information and which is provided to Supplier by the Customer..
“Sales Proposal” means the Supplier’s proposal for Goods and/or Services.
“Subsidiary” has the meaning given to that term in s1159 of the Companies Act 2006.
“Supplier” means HBH Laser & Company Limited under registered number of 01410320 with its registered address at Unit 4, Telford Way, Telford Way Industrial Estate, Kettering, Northants, NN16 8UN and any member in the Supplier Group.
“Supplier Group” means all the HBH Laser & Company Limited Affiliates.
“Warranty Period” means as set out in clause 15.
“Works” means any installation of the Goods supplied by the Supplier to the Customer.
2. THE GOODS AND/OR SERVICES AND LOCATION
2.1 The Supplier shall provide the Goods and/or Services on the date(s) as set out in the Sales Proposal. Any terms and/or conditions stipulated by the Customer when submitting a quotation, its own proposal, or accepting or acknowledging the Sales Proposal, whether provided prior to, or after the receipt by the Supplier of the Customer’s purchase order, and whether purporting to exclude any or all of the terms and conditions of the these Terms and Conditions shall have no legal or equitable effect as against the Supplier and the terms and conditions of this Agreement shall prevail.
3. CHARGES AND PAYMENT
3.1 The Charges for the Goods and/or Services as set out in the Sales Proposal shall become due for payment, and the Supplier shall submit an invoice for them, upon Delivery of the Goods to the Customer or upon completion of the Services (as the case may be) in accordance with clause 5. The final date for payment is 30 days from the date of the Supplier’s invoice or such other date as agreed in writing by a Director of the Supplier.
3.2 The Customer shall not be entitled, to set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether such liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement or other Agreements.
3.4 The Charges are subject to VAT at the applicable rate.
3.5 If there are any increases in the costs of raw materials or if the Consumer Prices Index exceeds 3% over any consecutive three-month period, the Supplier shall have the right to adjust the Charges to reflect that increase (“Product Price Adjustment”). The Supplier shall give the Customer not less than one month's prior notice in writing of the proposed changes (“Product Price Adjustment Notice”).
3.6 If the Customer fails to pay a sum payable to the Supplier in accordance with Clause 3.1 (together with any applicable VAT), by the final date for payment and the failure continues for 7 days after the Supplier has given notice to the Customer of its intention to suspend the performance of its obligations under this Agreement in full or in part and the grounds for such suspension, the Supplier without prejudice to its other rights and remedies under this Agreement, may suspend performance of any or all of its obligations under this Agreement until payment is made in full. Where the Supplier has exercised its rights under this clause 3.6, the Supplier shall be entitled to its reasonable costs incurred by it in exercising its rights under this clause 3.6.
3.7 In addition to the rights under clause 3.6, the Customer shall also be liable to pay interest on the unpaid sum at the rate of 8% per annum over the Bank of England base rate until payment is made but 4% for a year when the base rate is below 0%.
3.8 If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Customer shall provide all evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of the Customer giving notice to the Supplier, the dispute shall be resolved in accordance with clause 20. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 3.1.
3.9 All payments payable to the Supplier under this Agreement shall become due immediately on its termination or expiry. This clause 3.9 is without prejudice to any right to claim for interest under the law or under this Agreement.
3.10 The Customer shall on demand reimburse the Supplier in respect of any additional reasonable costs and expenses incurred by the Supplier caused by the Customer’s instructions, failure toprovide instructions and the Supplier shall provide reasonable supporting evidence in respect of any such entitlement for reimbursement.
4. TITLE AND RISK
4.1. Risk to the Goods shall pass to the Customer upon delivery at the Delivery Address.
4.2 Title will pass to the Customer when the Supplier receives payment in full (in cash or cleared funds) for the Goods and all other sums that are or that become due to the Supplier from the Customer for sales of Goods or on any account, in which case title to these Goods shall pass at the time of payment of all such sum.
4.3 Until title to Goods has passed to the Customer, the Customer shall:
(a)store those Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property using the relevant invoice numbers; (b) not remove, deface or obscure any identifying mark or packaging on or relating to those Goods; (c) maintain those Supplier in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Supplier.
4.4 In the event of Termination under clause 17, the Customer shall on notice, allow the Supplier to enter the Customer’s premises (if different to the Delivery Address) to recover all Goods belonging to the Supplier stored and identified in accordance with 4.3(a).
4.5 The Customer shall not be entitled to sell or dispose of any of the Goods prior to full payment being made to the Supplier.
5. TIME FOR PERFORMANCE
5.1 The Parties acknowledge that any dates quoted for delivery of the Goods and/or Services are approximate only and that time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods and/or Services that is caused by an event, circumstance or cause within the scope of supply.
5.2 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 under clause 19 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.
5.3 The Customer shall be responsible for obtaining and maintaining throughout the duration of this Agreement, all licenses, consents, building approvals (including but not limited to planning permissions) and any third-party consents.
5.4 The Customer shall ensure that the Supplier has unfettered access to the Delivery Address and storage space within the Delivery Address on the date agreed between the parties until installation has been completed and make available to Supplier the facilities, resources, working space and staff as specified in the Sales Proposal and/or as the Supplier may reasonably require from time to time.
5.5 The Customer shall at all times provide information reasonably required by the Supplier.
6. SPECIFICATION
6.1 Any specifications, formulations, data, literature and statements as to content, suitability, performance or otherwise, issued and descriptions and samples provided by the Supplier are done so in good faith but are intended to be approximate only and not intended to be deemed as a representation.
6.2 Except where the Supplier agrees otherwise in writing, the selection and choice of Goods supplied by the Supplier and the assessment of the suitability of the Goods supplied by the Supplier and fitness for the intended purpose is the responsibility of the Customer. The Customer must satisfy itself that the materials and components within the Goods are suitable for incorporation into the intended product or application.
6.3 Materials shall be new and will meet all applicable British standards, the requirements of the relevant statutory authorities, including without limitation all statutory obligations in relation to occupational health and safety.
6.4 The Goods are supplied on condition that the Customer shall at all times, comply with (and shall draw to the attention of any relevant third parties all instructions or recommendations contained in any of the Supplier’s data sheets and all reasonable and prudent precautions in relation to installation, use, maintenance of the Goods.
6.5 Except where there Supplier specifically otherwise agree in writing, the Supplier offers no (and shall have no liability under any) warranty or condition (express or implied) in respect of goods, materials or services of our suppliers or sub-contractors and any condition warranty statement or undertaking as to the quality of goods, their fitness or suitability for any purpose is excluded.
6.6 Notwithstanding any other provision nothing in this agreement shall impose a design obligation on the Supplier. The Customer shall be responsible for the accuracy of the documents prepared by it or on its behalf. Neither the Supplier’s approval or any such documents nor any failure to discern any defect in or omission from any such document shall render the Supplier liable for any defects in the design of the Goods.
7. INSTALLATION
7.1 In so far as Installation applies to this Agreement, the Supplier shall complete the Works safely, using Good Industry Practice and to a good and workmanlike manner that meets professional standards.
8. LIABILITY, EXCLUSION AND LIMITATION
8.1 The Charges are determined on the basis of the limits of liability set out in these terms and conditions.
8.2 In no event shall the Supplier be liable for (whether direct or indirect) any loss of contracts, profits, anticipated savings, revenue, goodwill, business, loss or corruption of data or software programs, financing expenses, interruption in the use or availability of data, stoppage to other work or consequential losses, nor for any other indirect or consequential losses.
8.3 The maximum sum for which the Supplier may be liable to the Customer under the Sales Proposal, in tort, in equity or otherwise at law, is limited to 15% of the Charges.
8.4 Each provision of this clause 8 shall survive independently and shall apply before and after any termination of this Agreement.
8.5 Nothing in this Agreement shall operate to limit or exclude any liability of the Supplier which may not be excluded and or limited by law.
9. SERVICES
9.1 To the extent that any Services are performed by the Supplier, the Services will be carried out with reasonable skill and care and in accordance with good engineering practice and comply with all applicable British standards and/or other British codes of practice, the requirements of any relevant statutory authorities and all applicable laws, including without limitation all statutory obligations in relation to occupational health and safety.
10. INSURANCE
10.1 The Supplier shall carry Product Liability insurance in the sum of £5,000,000 [FIVE MILLION POUNDS] in the aggregate and shall provide evidence of this cover upon reasonable request.
11. ADVERTISING
11.1 Unless agreed in writing by the Supplier, the Customer shall not refer to this Agreement or its subject matter for any advertising or marketing purposes unless agreed in writing by the Supplier.
12. CONFIDENTIALITY
12.1 The parties shall treat as and keep confidential all information whether of a technical, commercial or any other nature relating to the other party and shall not, during the period of this Agreement, or at any time after its termination, divulge any such information to any person not authorised by the divulging party to receive it and shall not utilise any secret or confidential knowledge or information acquired in connection with this Agreement to the detriment or prejudice of the other party or use the same for any purposes save for the purposes of this Agreement.
13. DATA PROTECTION
13.1 The Customer shall ensure that it has in place all necessary consents in connection with Personal Data to allow the Supplier at all times to perform Services without infringing any third party rights. The Supplier shall not be liable to perform the Services to the extent it is unable to due to a breach of this clause 13.
13.2 The Parties agree that it will only use the Personal Data for the purpose of carrying out its obligations hereunder and that it will ensure that all reasonable and appropriate security measures are in place to protect the Personal Data and that it will destroy (to the extent possible) or deliver up the Personal Data (at its option) upon written request from the Customer, and further, that it has in all respects complied with its obligations under the Data Protection Act 1998 and any amendments to or re-enactments thereof.
14. INTELLECTUAL PROPERTY
14.1 The Supplier as the proprietor of the ‘HB Humphries & Company Limited’ and ‘HBH Laser & Company Limited’ trademarks (“Marks”) and the owner of all copyright and goodwill in the Marks, grants the Customer a limited, non-transferable, revocable permission to use the Mark solely until expiry or termination of this Agreement or until this permission is revoked by the Supplier, whichever happens first for the purposes and in the manner described in the Sales Proposal; and subject to all the limitations and restrictions made known to the Customer.
14.2 The Customer’s right to use the Marks is limited to the form and manner of use described in clause 14.1. No other use of the Marks is permitted under this Agreement without the written consent of the Supplier.
14.3 The Customer shall not place or depict the Marks in any manner or in any materials that would tend to denigrate, disparage, tarnish, dilute, misrepresent or otherwise adversely affect or take advantage of the Mark or its reputation, us or any of the Supplier’s Products or services.
14.4Any revocation of consent will apply to all future use of the Marks but will not require the Customer to delete or remove the Mark from any tangible materials, as long as the placement and representation of the Mark comply with the terms of this clause 12.
14.5 The Customer grants to the Supplier a non-exclusive irrevocable licence to use any of the Supplier’s IPR as necessary for the purpose of fulfilling its obligation under this Agreement for the term.
14.6 In the event there is a IPR claim (or any threatened IPR claim) made against the Supplier. The Customer shall indemnify the Supplier against all losses, damages, costs or expenses (including professional fees and fines) incurred as a result.
15. WARRANTY PERIOD
15.1 The Warranty Period in relation to the Goods shall expire two (2) months after the date of delivery of the Goods to the Delivery Address (or installation whichever the latest).
15.2 The Supplier warrants (subject to the limitations set out in clauses 6.2 and 8.2) that if the Goods supplied by the Supplier do not comply with a client’s written specification(s) to the Supplier at the time that order is placed (any verbal instruction must be confirmed in writing) and such specifications are accepted in full by the Supplier and as the Customer’s sole and exclusive remedy, the Supplier shall, at its option, correct, repair, remedy, re-perform or offer a refund for any Goods that do not comply with clause 6, provided that the Customer (a) serves a written notice on Supplier not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection. The Supplier shall not be liable to the Customer unless the Customer notifies the Supplier within 5 business days of such failure or within a reasonable period of time from delivery or performance in the case of latent defects;(b) such notice specifies that some or all of the Goods do not comply with clause 5 and identifying in sufficient detail the nature and extent of the defects; and (c) gives the Supplier a reasonable opportunity to examine the claim of the defective Goods. The provisions of these Conditions shall apply to any Goods that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Goods.
15.3 The process under clause 15.2 must be followed before any warranty claim may arise against the Supplier.
16. HEALTH AND SAFETY
16.1 The parties shall comply with all applicable health and safety legislation and codes of practice.
17. TERMINATION
17.1 If the Customer:
17.1.1 fails to remedy a material breach of this Agreement within 30 days of written notice identifying the breach and/or;
17.1.2 becomes insolvent (as defined by s.113 of the Housing Grants Construction and Regeneration Act 1996) or is deemed under Section 123 of the Insolvency Act 1986 to be unable to pay its debts or is dissolved (as applicable); and/or
17.1.3 threatens to cease to carry on business
the Supplier may terminate the Agreement with immediate effect (to the extent legally possible) and the Customer shall be liable for all costs (including all committed costs) incurred or suffered by the Supplier up to and including the date of termination.
18. RIGHTS ON TERMINATION
18.1 Termination or expiry of this Agreement 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 agreement which existed at or before the date of termination or expiry.
19. FORCE MAJEURE
19.1 Neither party shall be responsible for any failure or delay in performance of its obligations under this Agreement (other than the obligation to make payments of money) due to any force majeure event including, Act of God, refusal of licence (other than as a result of any act or omission of the Customer) or other Government act, fire explosion, embargo, terrorism, civil disturbance, accident, epidemics (including covid-19), lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, or any other cause beyond its reasonable control.
20. DISPUTE RESOLUTION
20.1 The Parties shall use reasonable endeavours to negotiate in good faith and settle any dispute or difference that may arise out of or in connection with this Agreement before resorting to any formal legal proceedings of any nature.
20.2The Parties shall give serious consideration to mediating any dispute or difference.
21. NON-SOLICITATION
21.1 The parties shall not during the term of this Agreement and for 12 months thereafter, entice or solicit for employment with it or any other entity any employee of the other who has been engaged to provide performance under this Agreement.
22. ENTIRE AGREEMENT
22.1 This Agreement sets out the entire agreement between the parties in relation to the subject matter hereof and supersedes all previous arrangements, agreements and representations whether written, oral or implied between the Customer and Supplier relating to the Goods and/or Services.
23. AMENDMENTS
23.1 Any amendments to this Agreement shall be agreed in writing.
24. EFFECTIVENESS
24.1 This Agreement shall be effective upon issue by the Customer.
25. THIRD PARTIES
25.1 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties Act 1999 by a person other than the Customer and the Supplier.
26. SEVERANCE
26.1 if any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
26.2 If any provision or part-provision of this Agreement is deemed deleted under 26.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
26. LAW
26.1 This Agreement shall be construed in accordance with English law and the English courts shall have sole jurisdiction.