Waterfield Electronics Ltd
TERMS & CONDITIONS
1 Introduction and Definitions
1.1 The following expressions shall have the following meanings attached to them:
1.1.1 ‘The Company’ means Waterfield Electronics Ltd.
1.1.2 ‘The Client’ means the party entering into a contract for the provision of goods and/or services and/or information, by the Company
1.1.3 ‘The Services’ means collectively the provision by the Company of such technical information, advice and assistance, technical data and drawings including computer programs, as the Company may be required to invent and/or discover and supply to the Client pursuant to the Proposal together with such goods, tools and other products the Company may be required to develop and produce for the Client pursuant to the Proposal.
1.1.4 ‘The Proposal’ means the Services to be carried out by the Company in accordance with the Client’s enquiry which for the purposes of clarification may be annexed hereto and marked ‘The Proposal’ or ‘Client Order’ which may from time to time be amended by the written agreement of the parties.
1.1.5 ‘Prototypes’ means the first or original model from which any thing is copied of any goods to be developed by the Company as part of the Services pursuant to the Proposal.
1.1.6 These terms and conditions of contract together with those in the Proposal shall form the entire agreement between the Company and the Client. These terms and conditions shall supersede and prevail over terms and conditions sought to be imposed by the Client and shall only be amended by the written agreement of a director of the Company.
Upon written acceptance of this Contract by the Company the Client hereby engages the Company to provide the Services in accordance with the Proposal.
3.1 In consideration of the Company undertaking the Services the Client agrees to pay the fees, costs and all other expenses at the rates and in the manner set out in the Proposal. VAT is not included and will be charged at the standard rate.
3.2 Payment will be due within 28 days of the date appearing on the Company’s invoice. Where the Proposal provides for payment to be made by way of monthly invoices the Company shall supply the same to the Client during the last week of each calendar month or, in the case of Bank Holidays or non working days, the nearest following working day. Where the Proposal provides for payment to be made upon completion of the Services (such event of completion to be set out in the Proposal), the Company shall supply its invoice within 14 days of the date of such completion.
3.3 In the event of late payment for whatever reason the Company shall have the right:
3.3.1 to suspend any further performance of the Work or delivery of the Goods for such period as the Company feels is appropriate.
3.3.2 to charge interest on all outstanding monies due from the client to the Company whether before or after judgement at the rate of 3% above the base rate of HSBC Bank from the date of the invoice to the date of payment.
3.4 Unless stated otherwise in the Proposal travel and subsistence costs incurred by the Company or its authorised representatives during the performance of the Services shall be for the account of the Client.
3.5 Should the performance of the Services be suspended for a period of 30 days or more at the request of the Client or delayed through any default of the Client to provide such information as the Company may require under Paragraph 7.1 below, then the Company shall be entitled to payment for the Services already carried out and for any materials specifically purchased in connection with the Proposal whether or not the Contract provides for payment to be made by monthly payments or upon the Completion of the Services or otherwise.
4.1 The Company will use its best endeavours to comply with any date or dates for completion of the Services or for the delivery of any goods or any information required to be delivered as part of the Proposal and such date or dates shall constitute only statements of expectation and shall not be binding. Failure to complete the Services or to deliver such goods by such date or dates shall not constitute a breach of contract and the Company shall not be liable for any loss or damage, direct or indirect, caused by any delay and in no case shall delay be a ground for rejecting the Services or the goods so delivered or otherwise rescinding the contract.
4.2 Should expedited performance of the Services or delivery of any goods or information required to be delivered as part of the Proposal be agreed in writing between the parties and give rise to additional costs to the Company an extra charge may be made to the Client.
5 Risk and Property
5.1 Any goods required to be delivered to the Client as part of the Proposal shall be at the sole risk of the Client from the time they leave the Company’s premises which shall for the purposes of this Contract be deemed to be the time of delivery.
5.2 Where the Company agrees to deliver such goods otherwise than at its premises the Client shall be liable to pay the Company’s charges for transport, packaging and insurance.
5.3 Notwithstanding delivery and the passing of risk in any goods or of any other provision of these Conditions, the property in and the goods supplied by the Company pursuant to a Proposal shall not pass to the Client until the Company has received in cash or cleared funds payment in full of the price of the goods and for all other Services agreed to be performed and/or supplied by the Company for which payment is then due.
5.4 Until such time as the property in goods supplied by the Company pursuant to a Proposal passes to the Client, the Client shall hold such goods as the Company’s fiduciary agent and bailee, and shall keep the goods separate from those of the Client and third parties and properly stored, protected and insured and identified as the Company’s property.
5.5 Until that time the Client shall be entitled to resell or use such goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Client and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
5.6 Until such time as the property in goods supplied by the Company pursuant to the Proposal passes to the Client (and provided such goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Client to deliver up such goods to the Company and, if the Client fails to do so forthwith, to enter upon the premises of the Client or any third party where such goods are stored and repossess them.
6 Warranties and Liability
6.1 The Company does not warrant or make any representation to the Client that any Services performed or supplied in accordance with the Proposal will not infringe the rights of others.
6.2 The Company excludes all warranties, express or implied, with respect to any Services performed or any goods or information supplied pursuant to the Proposal. The Company specifically excludes any warranty of merchantability or fitness for purpose of any Prototypes and any other goods to be supplied by the Company and the ability of the Client to use any Prototype or any goods or any information supplied by the Company pursuant to a Proposal or the quality or fitness for purpose of any product manufactured in accordance with any information supplied pursuant to a Proposal. Prototypes which are produced by the Company are produced for evaluation by the Client only and the Prototype shall not be used by the Client as manufacturing products or for end use by the Client.
6.3 The Company shall be under no liability to the Client for any infringement or alleged infringement of any patents, registered designs, copyright and any other intellectual property rights owned or controlled by a third party arising out of the manufacture, sale and use of any Prototype or any goods or information supplied pursuant to the Proposal.
6.4 The Company shall indemnify the Client for the bodily injury or death of any persons if such bodily injury or death is caused by its negligence or of any person for whose acts it is responsible.
6.5 The Company shall be responsible for damage to property if such damage is caused directly by its negligence or of any person for whose acts it is responsible save that its liability under this Condition for damage to the Client’s property shall be limited to the direct costs of replacement or repair of the damaged property or the sum of £50.00 per incident or series of incidents arising out of one or more events whichever is the lesser amount.
6.6 It is hereby expressly agreed by the Client and the Company that the Company shall in no circumstances be liable whether in tort contract or otherwise for any financial or consequential loss however arising whether direct or indirect (including without prejudice to the generality of the foregoing any loss of profits or business or contract) and the Client shall indemnify and save the Company harmless against any such loss.
7 Clients Obligations
7.1 The Client agrees to give the Company such information advice and assistance relating to the subject matter of the Proposal as the Company may reasonably require.
7.2 The Client shall be responsible to the Company for ensuring the accuracy of any information submitted by the Client, and for giving the Company such necessary information within a sufficient time to enable the Company to perform the Proposal in accordance with its terms.
7.3 If any Services are to be performed or any goods or information to be supplied by the Company pursuant in accordance with any information or specification submitted by the Client, the Client shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Client’s information or specification.
7.4 The Client shall indemnify and keep indemnified the Company its servants or agents against all claims, actions, losses, damages, costs and expenses which may be brought against or incurred or suffered by the Company its servants or agents in connection with the carrying out of Services pursuant to the Proposal which arises as a result of or due to the negligence of the Client its servants or agents.
7.5 The Client shall not contest the validity or enforcement of any patents or other intellectual property rights owned or controlled by the Company and which may relate to the subject matter of the Proposal or of any goods or any information, assistance, advice and drawings supplied by the Company pursuant thereto.
7.6 Any property supplied to the Company by or on behalf of the Client shall be held and worked upon by the Company at the Client’s risk. The Company shall not be liable for any loss or damage to any such property except to the extent such loss or damage was caused by the negligence of the Company or its employees, servants or agents.
7.7 The Client shall at all times maintain such third party and product liability insurance cover for any goods or Prototypes to be supplied pursuant to the Proposal as may from time to time be in its reasonable opinion adequate.
8 Computer Software
If as part of the proposal the Company is required to develop for the client a computer software program, and any manuals and other computer documentation for use with such computer program the Company shall enter into a Licence Agreement with the Client for the use of such computer program and computer documentation and in the event that the terms and conditions of such licence shall conflict with these conditions, the terms of such licence, to the extent of the conflict, shall prevail.
9 Intellectual Property Rights
9.1 Copyright in all original drawings, designs, proposals, reports and other written matter whether made pursuant to the Proposal or otherwise shall remain vested in the Company at all times.
9.2 Ownership of all patentable inventions and improvements thereto which arise from work carried out by the Company pursuant to the Proposal shall vest jointly in the Company and the Client and the share of benefits accruing from the exploitation of such improvements shall be the subject of negotiation between the Company and the Client upon completion of the Services.
9.3 Unless otherwise stated in the Proposal the Company shall grant to the Client free of charge to the extent that it is free to do so without liability to payment to third parties and to the extent that is necessary for the commercial application of any goods or of any information supplied pursuant to the Proposal in respect of the field of use specified in the Proposal but for no other purpose, a non exclusive licence for the use of such goods, information, designs, know how supplied by it. Such licence shall take effect upon payment by the Client in full of all sums due to the Company under this Agreement. Prior to such payment, the Company does not authorise the Client to deal in, apply or use any such goods, information, designs and know’how.
10.1 All drawings and technical information supplied by the Client to the Company and all information supplied by the Company to the Client shall be deemed to have been furnished in confidence for the purposes authorised by the Proposal and no other. The recipient party shall take all reasonable precautions to prevent communication of any such information to any of its employees or to any third party except as may be necessary in order to carry out the purposes of the Proposal. If disclosure to an employee or a third party is necessary for such purposes then such employee or third party shall be required to observe the same confidentiality obligations as the recipient party.
10.2 Neither the Company nor the Client shall use the name of the other in any publicity material nor publish anything relating to work being undertaken pursuant to the Proposal without the prior written permission of the other (such permission not to be unreasonably withheld).
11 Force Majeure
The Company shall not be liable to the Client for any direct or consequential loss or damage suffered by the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Work to be performed or the Goods to be supplied, if failure was due to any cause beyond the Company’s reasonable control including without prejudice to the foregoing Act of God, explosion, flood, tempest, fire or accident; wars or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the company or client or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; and power failure or breakdown in machinery.
The Conditions together with the Proposal shall be governed by and construed in accordance with the Laws of England.
Any dispute arising under this Contract, the Proposal or the Services required to be performed or supplied thereunder shall be referred to arbitration by a single arbitrator appointed by agreement of the parties hereto.
14.1 All communications to the Company shall be addressed to Waterfield Electronics Ltd at the address of the Company set out in the Proposal.
14.2 All communications to the Client shall be sent to the address appearing in the Proposal unless some other address has been notified in writing to the Company.
The headings to these Conditions are for guidance only and shall not affect the construction of the Contract. The singular shall include the plural and vice versa.
16 Re-cycling policy
The company complies with the European waste directive (WEEE) and the lead free directive (RoHS) and further aims to use as much re’cycled materials components and modules as possible in prototypes or finished goods or in part finished goods.
Tel: 0044 (0) 161 839 7009
Fax: 0044 (0) 161 833 2190
Waterfield Electronics Ltd terms and conditions always apply and override all other conditions at all times, under all circumstances even if agreed otherwise in writing. E.& O.E. All our electronic e-mail or other electronic transmisions are intended for the named addressee only. Its contents are private and confidential and should not be read, copied or disclosed to or by any other person.
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Company Reg No 03391665, VAT GB 693415320.
For the avoidance of doubt all deliveries of goods, materials or documents of any form must be delivered to Waterfield Electronics Ltd,10 Stocks Street, Manchester, M8 8QG