EVERYBODY SPORT & RECREATION LIMITED (ESAR)
STANDARD TERMS AND CONDITIONS OF CONTRACT FOR THE SUPPLY OF GOODS AND OR SERVICES TO ESAR
PLEASE NOTE – THESE TERMS AND CONDITIONS SHALL APPLY TO INFORMAL OR AD HOC ORDERS FOR GOODS AND SERVICES PLACED BY ESAR VIA A PURCHASE ORDER OUTSIDE OF A FORMAL TENDERING PROCESS. ANY ALTERNATIVE TERMS AND CONDITIONS WHICH ARE ISSUED AS PART OF A PROCUREMENT PROCESS OR A REQUEST FOR QUOTE SHALL HAVE PRIORTY OVER THESE TERMS.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
Contract: the contract between ESAR and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
ESAR: Everybody Sport & Recreation Limited
ESAR Materials: has the meaning set out in clause 5.3.9
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by ESAR and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: ESAR’s order for the supply of Goods and/or Services, as set out in ESAR’s purchase order form.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by ESAR and the Supplier.
Supplier: the person or firm from whom ESAR purchases the Goods and/or Services.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a references to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 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; and
1.2.5 a reference to writing or written includes faxes and emails.
2 Basis of contract
2.1 The Order constitutes an offer by ESAR to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3 Supply of Goods
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description and any applicable Goods Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by ESAR, expressly or by implication, and in this respect ESAR relies on the Supplier’s skill and judgment;
3.1.3 where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 ESAR shall have the right to inspect and test the Goods at any time before delivery.
3.4 If following such inspection or testing ESAR considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, ESAR shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and ESAR shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4 Delivery of Goods
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.3 if the Supplier requires ESAR to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the date specified in the Order or, if no such date is specified, then within seven days of the date of the Order;
4.2.2 to ESAR’s premises at Brooklnads, Holmes Chapel Community Centre, Station Road, Holmes Chapel CW4 8AA or such other location as is set out in the Order or as instructed by ESAR before delivery (Delivery Location);
4.2.3 during ESAR’s normal hours of business on a Business Day, or as instructed by ESAR.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 If the Supplier:
4.4.1 delivers less than 95 per cent of the quantity of Goods ordered, ESAR may reject the Goods; or
4.4.2 delivers more than 105 per cent of the quantity of Goods ordered, ESAR may at its sole discretion reject the Goods or the excess Goods,
and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and ESAR accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without ESAR’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle ESAR to the remedies set out in clause 6.1.
4.6 Title and risk in the Goods shall pass to ESAR on completion of delivery.
5 Supply of Services
5.1 The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to ESAR in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by ESAR.
5.3 In providing the Services, the Supplier shall:
5.3.1 co-operate with ESAR in all matters relating to the Services, and comply with all instructions of ESAR;
5.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
5.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract, and shall where the Supplier is a Regulated Activity Provider under the Safeguarding Vulnerable Groups Act 2006, ensure that valid disclosure checks are undertaken through the Disclosure and Barring Service for those personnel engaged by the Supplier for the provision of Services who shall in performing the Services come into contact with children or vulnerable adults;
5.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by ESAR;
5.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
5.3.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to ESAR, will be free from defects in workmanship, installation and design;
5.3.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
5.3.8 observe all health and safety rules and regulations and any other security requirements that apply at any of ESAR’s premises;
5.3.9 hold all materials, equipment and tools, drawings, specifications and data supplied by ESAR to the Supplier (ESAR Materials) in safe custody at its own risk, maintain ESAR Materials in good condition until returned to ESAR, and not dispose or use ESAR Materials other than in accordance with ESAR’s written instructions or authorisation; and
5.3.10 not do or omit to do anything which may cause ESAR to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that ESAR may rely or act on the Services.
6 ESAR remedies
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, ESAR shall, without limiting its other rights or remedies, have one or more of the following rights:
6.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
6.1.3 to recover from the Supplier any costs incurred by ESAR in obtaining substitute goods and/or services from a third party;
6.1.4 where ESAR has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
6.1.5 to claim damages for any additional costs, loss or expenses incurred by ESAR which are in any way attributable to the Supplier’s failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, ESAR shall have one or more of the following rights, whether or not it has accepted the Goods:
6.2.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
6.2.2 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5 to recover from the Supplier any expenditure incurred by ESAR in obtaining substitute goods from a third party; and
6.2.6 to claim damages for any additional costs, loss or expenses incurred by ESAR arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.4 ESAR’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7 ESAR’s obligations
7.1 ESAR shall:
7.1.1 provide the Supplier with reasonable access at reasonable times to ESAR’s premises for the purpose of providing the Services;
7.1.2 provide such information as the Supplier may reasonably request for the provision of the Services and ESAR considers reasonably necessary for the purpose of providing the Services.
8 Charges and payment
8.1 The price for the Goods:
8.1.1 shall be the price set out in the Order; and
8.1.2 shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by ESAR. No extra charges shall be effective unless agreed in writing and signed by ESAR.
8.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by ESAR, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 In respect of Goods, the Supplier shall invoice ESAR on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice ESAR on completion of the Services. Each invoice shall include such supporting information required by ESAR to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
8.4 In consideration of the supply of Goods and/or Services by the Supplier, ESAR shall pay the invoiced amounts within 30 days of the date of a correctly rendered valid and undisputed invoice to a bank account nominated in writing by the Supplier.
8.5 All amounts payable by ESAR under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to ESAR, ESAR shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.6 If a party fails to make any undisputed payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the base lending rate of the Bank of England from time to time. ESAR and the Supplier agree that this clause provides each of them with a substantial remedy in respect of any late payment of sums due for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith.
8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow ESAR to inspect such records at all reasonable times on request.
8.8 ESAR may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to ESAR against any liability of ESAR to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
9 Intellectual property rights
9.1 In respect of the Goods and any goods that are transferred to ESAR as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to ESAR, it will have full and unrestricted rights to sell and transfer all such items to ESAR.
9.2 The Supplier assigns to ESAR, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
9.3 The Supplier shall, promptly at ESAR’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as ESAR may from time to time require for the purpose of securing for ESAR the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to ESAR in accordance with clause 9.2.
9.4 All ESAR Materials are the exclusive property of ESAR.
10.1 The Supplier shall keep ESAR indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered incurred by ESAR as a result of or in connection with:
10.1.1 any claim made against ESAR for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
10.1.2 any claim made against ESAR by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
10.1.3 any claim made against ESAR by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
10.2 This clause 10 shall survive termination of the Contract.
During the term of the Contract and for a period of six years thereafter, the Supplier shall maintain in force, with a reputable insurance company: product liability insurance (£5 million); public liability insurance (£5 million); employers liability insurance (£10 million); and professional indemnity insurance (£1 million), as necessary to cover the risks and or liabilities that may arise under or in connection with the Contract, and shall, on ESAR’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2 ESAR is subject to the Freedom of Information Act 2000 (the FOIA) and the Environmental Information Regulations 2004 and as such may be required to disclose information forming part of the agreement to anyone who makes a legitimate request. ESAR has absolute discretion to determine how to respond to a request, including the application of any potential exemptions.
12.3 The Supplier shall assist and cooperate with ESAR (at the Supplier’s expense) to enable ESAR to comply with any information disclosure requirements, and in so doing will observe any timescales notified to it by ESAR.
12.4 Where the Supplier has access to information about people, it shall ensure that in making the Supply the provisions of the Data Protections Act 1998 are observed (and also any of ESAR’s data protection requirements notified to the Supplier)
12.5 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, ESAR may terminate the Contract:
13.1.1 in respect of the supply of Services, by giving the Supplier 14 days’ written notice; and
13.1.2 in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. ESAR shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
13.3 Without limiting its other rights or remedies, ESAR may terminate the Contract with immediate effect by giving written notice to the Supplier if:
13.3.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of receipt of notice in writing to do so;
13.3.2 the Supplier repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
13.3.3 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.3.4 the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier];
13.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
13.3.6 the Supplier (being an individual) is the subject of a bankruptcy petition or order;
13.3.7 a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.3.8 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
13.3.9 the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.3.10 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
13.3.11 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.3.3 to clause 13.3.10 (inclusive);
13.3.12 the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
13.3.13 the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion ESAR’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
13.3.14 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
13.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
14 Consequences of termination
On termination of the Contract for any reason, the Supplier shall immediately deliver to ESAR all Deliverables whether or not then complete, and return all ESAR Materials. If the Supplier fails to do so, then ESAR may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15 Force majeure
15.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control.
15.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
15.3 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than seven Business Days, ESAR may terminate the Contract immediately by giving written notice to the Supplier.
16.1 Assignment and other dealings.
16.1.1 ESAR may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.1.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of ESAR.
16.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
16.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
16.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.3 Severance. If any provision or part-provision of the Contract 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 shall not affect the validity and enforceability of the rest of the Contract.
16.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed by both parties in writing and signed on their behalf by their respective duly authorised representative.
16.8 Governing law. 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 the law of England and Wales.
16.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
16.10 Disputes. If any difference shall arise between ESAR and the Supplier as to the interpretation or operation of these Conditions as to the rights, duties, obligations or liabilities of either party hereto which cannot be resolved amicably between the parties within a reasonable time then ESAR shall refer the dispute to senior members of staff. During this time neither party will resort to litigation. If the dispute is not resolved in that way within two months then either party may exercise any remedy it may have.
16.11 Publicity. The Supplier shall not without the written permission of ESAR advertise or disclose to any third party that it is providing Goods and or Services to ESAR.
16.12 Prevention of Bribery. ESAR may terminate the Contract and recover all of its loss if the Supplier, its employees or anyone acting on the Supplier’s behalf do any of the following:
16.12.1 directly or indirectly offer, give, agree to give anyone, or accept from anyone any inducement or reward in respect of this or any other ESAR contract; or
16.12.2 commit any offence under the Prevention of Bribery Act 2010; or
16.12.3 commit or attempt to commit any fraud in connection with this or any other ESAR contract whether alone or in conjunction with member or employees of ESAR.
16.13 Transparency. The parties acknowledge that save for any information which is exempt from disclosure in accordance with the provisions of the FOIA then the Contract is not confidential information, ESAR shall be responsible for determining in its absolute discretion whether any part of the Contract is exempt from disclosure in accordance with the Act. Notwithstanding any other term of the Contract the Supplier hereby gives its consent for ESAR to publish the Contract in its entirety to the general public in whatever form ESAR decides.
TERMS & CONDITIONS OF SALE – EVERYBODY SPORT & RECREATION.
In these conditions: – “The Seller” means Everybody Sport & Recreation
“The Buyer” means the person, firm, or company purchasing the goods;
“The Goods” means the goods which shall be subject of the contract between seller & buyer; “Delivery” means the time of delivery to the buyer.
“Agreement” means the agreement for the sale and purchase of the goods comprising these terms and conditions and the letter from the Seller
to the Buyer incorporating these terms and conditions by reference.
These conditions (and the terms and conditions in the letter from the Seller to the Buyer incorporating these terms and conditions by reference) alone shall govern the Agreement and no other terms which may appear on any document issued by the buyer shall bind the Seller unless expressly agreed in writing by the Seller. No agent of the Seller has the authority to add or vary any of these terms or conditions without the express authorisation in writing of Everybody Sport and Recreation, and no agent has any authority to make or give representation or warranty in relation to any goods
Prices are subject to change up to confirmation of order. Prices do not include VAT or delivery charges. Quotations are valid for period stated on quotation only.
The seller shall make every effort to maintain specified dates of delivery but the seller shall not in any circumstances be liable for failure to deliver by a specified
delivery date, nor for any damage or loss arising directly or indirectly out of a delay in delivery or as a result of non-delivery where there is a delay in dispatch, delivery or completion from any cause whatsoever beyond the seller’s reasonable control or as a result of industrial action.
Where the seller delivers less than the quantity ordered the buyer shall not reject the goods on delivery on the grounds of shortfall alone, but shall pay the contract price and shall report any shortfall to the seller at the time of delivery.
The seller may at its option deliver goods ordered in such instalments as they think fit.
Where the buyer refuses or fails to take delivery of the goods then the seller may at its option cancel the order or alternatively the seller may at its option stand by the Agreement and shall be entitled at its option to suspend deliveries until the buyer agrees in writing to take delivery and the buyer shall in addition to the purchase price pay to the seller all additional expenses incurred by the seller as a result of the delay including storage and until all deliveries are resumed and the goods, the subject of the Agreement, shall be stored at the cost and the risk of the buyer.
Terms of payment are net cash within the terms printed on the front of the invoice to the place of payment as stated on the invoice.
If the buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall be entitled to charge the buyer compound interest (both before and after any judgment) on the amount unpaid at the rate of 4% per annum above Barclays Bank PLC base rate from time to time to be calculated from the due date for payment until payment in full is made (a part of a month being treated as a full month for the
purposes of calculating interest).
In the event of any cheque issued by the buyer in payment of the price being returned by the buyers bank unpaid the seller shall without prejudice to any other right or remedy available to it, be entitled to charge the buyer an administration charge of £20 for each occasion upon which the seller shall present the cheque before payment is made. The seller shall be entitled to invoice the buyer for such administration charge at any time after the event and such charge shall be payable to the buyer within seven days of the date of invoice.
If the buyer shall commit any breach of these conditions or if any distress or execution or other legal process shall be levied upon any of the assets of the buyer shall, in the opinion of the seller, be unable to pay for the goods or suspend payment of its debts or makes any arrangement with its creditors or being a company has a receiver appointed or passes any resolution to be wound-up (other than voluntarily for purposes of re-construction or being a person shall commit any act of bankruptcy petition presented against them, then and in any such event the seller shall without prejudice to any other rights and remedies it might have, be at liberty to forthwith by notice in writing to the buyer: –
Cancel all orders and contracts or any part thereof remaining unfulfilled between the seller & the buyer for the delivery of goods.
Make due and payable to the seller all sums which otherwise would not yet have become due and payable from the buyer
Have access either for its agents or itself to the premises of the buyer for the protection, removal or realisation of any goods at any time in which the property shall have passed from the seller to the buyer under the conditions of sale.
WARRANTIES & CONDITIONS:
The seller warrants to the buyer that at the time of delivery the goods will be of the nature, substance, quality & quantity specified in the contract and comply in all material respects with the requirements of the product specification and all statutory regulations and provisions applicable to such goods
The above warranty is given by the seller subject to the express notification to the buyer of the need for certain goods to be stored in such conditions whereby their integrity is maintained, and the seller shall be under no liability under the above warranty (or any other warranty, condition, or guarantee) in the event of
the buyer failing to store such goods in the appropriate manner.
Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where goods are sold under a consumer transaction as defined by the Consumer Transaction (Restrictions on Statements) Order 1976 the statutory rights of the buyer are not affected by these conditions.
COMPLAINTS & RETURNS:
The buyer shall be under an obligation to examine and inspect the goods upon delivery for correct number, style and type, defects to and/or loss or damage to
The buyer shall report to the seller any apparent discrepancy, defects and/or loss or damage to any goods delivered against the purchase order and/or delivery note at the time of delivery. In the event of noncompliance with this requirement the seller shall not be liable in any circumstances under contract, tort or otherwise in respect of any miss pick, defect and/or consequential loss arising therefrom.
No claim may be made to the buyer in respect of any defect and/or loss or damage to any goods supplied unless the buyer has held the goods in respect of which the defect, loss/or damage is alleged ready and available for inspection by the seller and for disposal confirmation or instruction from the seller for a period of twenty-eight days from the date of delivery at an address to be notified by the buyer to the seller within five days of delivery. The seller’s liability in respect of any defective goods or any loss (including consequential loss) injury or damage attributable thereto and however caused is limited at the seller’s option either to the contract price of the goods or to making good by replacement with equivalent goods.
If an allowance has been made in lieu of defectives no further claim for defectives shall be allowed.
The goods supplied are at the buyer’s risk from the time of delivery to the buyer.
Title to all goods supplied by the seller to the buyer remains in the ownership of the seller until payment in full has been made and the buyer acknowledges that
until such payment has been made it is in possession of goods solely as Bailee for the seller and as such the buyer shall endeavor to keep the goods separate and identifiable from all other goods of the buyer at the buyer’s premises or whosesoever stored to the buyers order.
If the buyer sells the goods belonging to the seller any proceeds of sale are to be held by the buyer upon trust for the seller to be identifiable at all times as monies of the seller and shall not be mingled with monies of the buyer or paid in to an overdrawn bank account of the buyer. The buyer shall if requested by the seller assign to the seller all rights against any person to whom such goods have been supplied but in respect of which payment has not been made to the buyer.
Time shall not be the essence of the Agreement.
The Agreement sets out the entire agreement and understanding between parties, and supersedes all proposals and prior written or oral agreements, arrangements and understandings between the parties, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on any representation, warranty, undertaking, collateral contract or other assurance of the other party that is not set out in the Agreement. So far as permitted by law, each party acknowledges and agrees that only the rights and remedies available to it in respect of any such representation, warranty, undertaking, collateral contract or other assurance shall be for the breach of the Agreement and waives all other rights and remedies (including those in tort or arising under statute) which, but for the provision might otherwise be available to it, but nothing in the Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.