T E R M S & C O N D I T I O N S
The customer's attention is drawn in particular to the provisions of clause.
1.1 Definitions. In these Conditions, the following definitions apply:
"JPP" JP Polymer Sheetings Limited (registered in England and Wales with company number 02461800).
"Business Day" a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
"Conditions" the terms and conditions set out in this document as amended from time to time in accordance with clause .
"Contract" the contract between JPP and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions.
"Customer" the person or firm who purchases the Goods and Services from JPP.
"Force Majeure Event" has the meaning given in clause .
"Goods" the goods (or any part of them) set out in the Order.
"Order" the Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of JPP's quotation, or overleaf, as the case may be.
"Services" the installation services supplied by JPP to the Customer as set out in the Order.
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 reference 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 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when JPP issues a written acceptance of the Order or, if earlier, begins to process the Order at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of JPP which is not set out in the Contract.
2.5 Any samples, drawings, colours, descriptive matter, or advertising produced by JPP and any descriptions or illustrations contained in JPP's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or have any contractual force. This is not a sale by sample.
2.6 A quotation for the Goods given by JPP shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7 Any typographical, clerical or other error or omission in any sale literature, quotation, acceptance or offer, invoice or other document or information issued by JPP shall be subject to correction without liability on the part of JPP.
2.8 No Order which has been accepted by JPP may be cancelled by the Customer except with the agreement in writing of JPP or on the terms that the Customer shall indemnify JPP in full against all loss (including, without prejudice to the generality of the foregoing) loss of profit, costs (including the cost of all labour and materials used), damages, charges, re-stocking costs and expenses incurred by JPP as a result of the cancellation.
2.9 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.10 For the avoidance of doubt, acceptance of delivery of the Goods or provision of the Services shall be deemed to be acceptance by the Customer of these Conditions.
3.1 The Goods are described in JPP's catalogue as modified by any applicable specification.
3.2 JPP reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Delivery of the Goods
4.1 JPP shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and JPP reference numbers, and the type and quantity of the Goods (including the code number of the Goods, where applicable).
4.2 JPP shall deliver the Goods to the location set out in the Order or such other location as the parties may agree ("Delivery Location") at any time after JPP notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. JPP shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide JPP with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If JPP 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. JPP shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide JPP with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of JPP notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or JPP's failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which JPP notified the Customer that the Goods were ready; and
4.6.2 JPP shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which JPP notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, JPP may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Customer shall not be entitled to reject the Goods if JPP delivers the Goods with different widths, lengths or depths to that ordered or advertised so long as the Goods comply with the manufacturer's tolerance thresholds for those Goods.
4.9 JPP may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 JPP may deliver the Goods to the Customer in advance of the provision of the Services.
5. Quality of the Goods
5.1 JPP is not the manufacturer of the Goods and shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to JPP.
5.2 Subject to clause , if:
5.2.1 the Customer gives notice in writing to JPP within a reasonable time of discovery that some or all of the Goods do not comply with their description;
5.2.2 JPP is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by JPP) returns such Goods to JPP's place of business at JPP's cost.
JPP shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full or issue a credit note for the Goods.
5.3 JPP shall not be liable for Goods' failure to comply with the warranty set out in clause in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause ;
5.3.2 the defect arises because the Customer failed to follow JPP's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of JPP following any drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of JPP;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.3.7 the defect arises as a result of faulty, defective or poor installation of the Goods by a third party; or
5.3.8 the defect arises as a result of incomplete, inaccurate or defective information or instructions provided by the Customer; or
5.3.9 the Customer has not paid for the Goods.
5.4 Except as provided in this clause , JPP shall have no liability to the Customer in respect of the Goods' failure to comply with its description.
5.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by JPP.
6. Supply of Services
6.1 JPP shall supply the Services to the Customer in accordance with the Order in all material respects.
6.2 JPP shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
6.3 JPP shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and JPP shall notify the Customer in any such event.
6.4 JPP warrants to the Customer that the Services will be provided using reasonable care and skill.
7. Customer's obligations
7.1 The Customer shall:
7.1.1 ensure that the terms of the Order are complete and accurate;
7.1.2 co-operate with JPP in all matters relating to the Services;
7.1.3 provide JPP, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by JPP;
7.1.4 provide JPP with such information and materials as JPP may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
7.1.5 prepare the Customer's premises for the supply of the Services;
7.1.6 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
7.1.7 keep and maintain all materials, equipment, documents and other property of JPP ("JPP Materials") at the Customer's premises in safe custody at its own risk, maintain JPP Materials in good condition until returned to JPP, and not dispose of or use JPP Materials other than in accordance with JPP's written instructions or authorisation;
7.1.8 not make any alteration to the premises, including the use of any of the same between the date of the quotation and the date of delivery of the Goods or provision of the Services.
7.1.9 provide JPP with the use of the Customer's power and lighting supply, free of charge;
7.1.10 provide JPP with all health and safety information and procedures from time to time in force at the Customer's premises.
7.2 If JPP's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
7.2.1 JPP shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays JPP's performance of any of its obligations;
7.2.2 JPP shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from JPP's failure or delay to perform any of its obligations as set out in this clause ; and
7.2.3 the Customer shall reimburse JPP on written demand for any costs or losses sustained or incurred by JPP arising directly or indirectly from the Customer Default.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until JPP has received payment in full (in cash or cleared funds) for:
8.2.1 the Goods; and
8.2.2 any other goods or services that JPP has supplied to the Customer.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods on a fiduciary basis as JPP's bailee;
8.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as JPP's property;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.5 notify JPP immediately if it becomes subject to any of the events listed in clause ; and
8.3.6 give JPP such information relating to the Goods as JPP may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause , or JPP reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy JPP may have, JPP may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Price and payment
9.1 The price of the Goods and/or Services shall be the price set out in the Order, or, if no price is quoted, the price set out in JPP's price list in force as at the date of delivery.
9.2 JPP may, by giving notice to the Customer at any time before delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
9.2.1 any factor beyond JPP's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification of the Goods and/or Services;
9.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give JPP adequate or accurate information or instructions; or
9.2.4 increase the charges for the Services when the Customer has provided incorrect information or which the quotation is based.
9.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer unless JPP agrees otherwise in writing.
9.4 The price of the Goods is exclusive of amounts in respect of value added tax ("VAT"). The Customer shall, on receipt of a valid VAT invoice from JPP, pay to JPP such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
9.5 In respect of Goods and/or Services, JPP may invoice the Customer for the Goods on or at any time after the completion of delivery of the Goods or Services (as the case may be).
9.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by JPP. Time of payment is of the essence.
9.7 If the Customer fails to make any payment due to JPP under the Contract by the due date for payment ("due date"), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England's base lending rate from time to time. 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 Customer shall pay the interest together with the overdue amount.
9.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against JPP in order to justify withholding payment of any such amount in whole or in part. JPP may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by JPP to the Customer.
10. Customer's insolvency or incapacity
10.1 If the Customer becomes subject to any of the events listed in clause , or JPP reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to JPP, JPP may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and JPP without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
10.2 For the purposes of clause , the relevant events are:
10.2.1 the Customer 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) 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;
10.2.2 the Customer 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 the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
10.2.3 (being a company) 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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
10.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
10.2.5 a creditor or encumbrancer of the Customer 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;
10.2.6 (being a company) 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 Customer;
10.2.7 (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
10.2.8 a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
10.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause to clause (inclusive);
10.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
10.2.11 the Customer's financial position deteriorates to such an extent that in JPP's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
10.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10.4 Without limiting its or other rights or remedies, JPP shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and JPP if:-
10.4.1 the Customer fails to pay any amount due under the contract on the due date for payment; or
10.4.2 the Customer becomes subject to any of the events listed in clause , or JPP reasonably believes that the Customer is about to subject any of them
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude JPP's liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
11.1.4 defective products under the Consumer Protection Act 1987; or
11.1.5 any matter in respect of which it would be unlawful for JPP to exclude or restrict liability.
11.2 Subject to clause :
11.2.1 JPP shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from JPP's deliberate personal repudiatory breach of the Contract; and
11.2.2 JPP's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by JPP's deliberate personal repudiatory breach shall not exceed 100% of the price of the Goods.
12. Force majeure
12.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.1 Assignment and subcontracting
13.1.1 JPP may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of JPP.
13.2.1 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, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause ; if sent by pre-paid first class post or recorded delivery, 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.
13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by JPP.
13.7 Governing law and jurisdiction
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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.