Terms & Conditions

1. Definitions

(a) The term ‘Business Day’ shall mean a day other than a Saturday, Sunday or public holiday in Scotland when banks in Glasgow are open for business.

(b) The term ‘Conditions’ shall mean the terms and conditions set out in this document, as amended from time to time in accordance with clause 21.

(c) The term ‘Contract’ shall mean the contract between the Supplier and the Purchaser for the sale and purchase of the Goods in accordance with these Conditions.

(d) The term ‘Deliverables’ shall mean the deliverables set out in the Purchase Order produced by the Supplier for the Purchaser.

(e) The term ‘Delivery Date’ shall mean the date for delivery of Goods as set out in the Purchase Order.

(f) The term ‘Delivery Location’ shall mean the address for delivery of Goods as set out in the Purchase Order.

(g) The term ‘Goods’ shall mean the goods (or any part of them), whether raw materials, processed materials, fabricated products or human resources, set out in the Purchase Order.

(h) The term ‘Purchase Order’ shall mean the Purchaser’s order for the Goods and/or Services, as set out in the Purchaser’s purchase order form.

(i) The term ‘Purchaser’ shall mean Booth Welsh Automation Ltd trading under the name appearing on the Purchase Order.

(j) The term ‘Services’ shall mean the services, including the Deliverables, supplied by the Supplier to the Purchaser as set out in the Purchase Order.

(k) The term ‘Specification’ shall mean any specification for the Goods, including any related plans and drawings, agreed in writing by the Purchaser and the Supplier.

(l) The term ‘Supplier’ shall mean the person, firm or company to whom the Purchase Order is addressed and from whom the Purchaser purchases the Goods.

 

2. Basis of contract

(a) 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 law, trade custom, practice or course of dealing.

(b) The Purchase Order constitutes an offer by the Purchaser to purchase the Goods in accordance with these Conditions.

(c) The Purchase Order shall be deemed to be accepted on the earlier of:

(i) the Supplier issuing a written acceptance of the Purchase Order; and

(ii) the Supplier doing any act consisted with fulfilling the Purchase Order,

at which point the Contract shall come into existence.

 

3. Delivery

(a) The Supplier shall ensure that:

(i) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and

(ii) each delivery of the Goods is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number (if any), the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

(b) The Supplier shall deliver the Goods:

(i) on the Delivery Date;

(ii) at the Delivery Location; and

(iii) during the Purchaser’s normal business hours, or as instructed by the Purchaser.

(c) The Supplier shall keep the Purchaser informed of any progress or delays.

(d) Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.

(e) The Supplier shall not deliver the Goods in instalments without the Purchaser’s prior written consent.  Where it is agreed that the Goods are to be 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 the Purchaser to the remedies set out in clause 4.

 

4. Purchaser remedies

If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 9, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Purchaser may exercise any one or more of the following rights and remedies:

(i)         to terminate the Contract;

(ii)        to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;

(iii)        to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;

(iv)       to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

(v)        to recover from the Supplier any costs incurred by the Purchaser in obtaining substitute goods from a third party; and

(vi)       to claim damages for any other costs, losses or expenses incurred by the Purchaser which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.

These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier. The Purchaser’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

 

5. Supply of Services

(a) The Supplier shall supply the Services to the Purchaser in accordance with the Purchase Order in all material respects.

(b) The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Purchase Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

(c) The Supplier reserves the right to amend the Purchase Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Purchaser in any such event.

(d) The Supplier warrants to the Purchaser that the Services will be provided using reasonable care and skill.

(e) The Purchaser reserves the right to have the Supplier’s staff removed from assignments if it is considered that the said Supplier’s staff do not perform suitably, and the Purchaser shall notify the Supplier in any such event.

 

6. Purchaser’s obligations

(a) The Purchaser shall:

1. ensure that the terms of the Purchaser Order are complete and accurate;
2. co-operate with the Supplier in all matters relating to the Services;

• provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Purchaser’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

1. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
2. prepare the Purchaser’s premises for the supply of the Services;
3. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

• comply with all applicable laws, including health and safety laws; and
• keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Purchaser’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.

(b) If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Purchaser or failure by the Purchaser to perform any relevant obligation (Purchaser Default):

1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Purchaser remedies the Purchaser Default, and to rely on the Purchaser Default to relieve it from the performance of any of its obligations in each case to the extent the Purchaser Default prevents or delays the Supplier’s performance of any of its obligations;
2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Purchaser arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause (b); and

• the Purchaser shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Purchaser Default.

 

7. Passing of Title and Risk to Purchaser

Title and risk in the Goods shall remain with Supplier until completion of delivery.

 

8. Terms of Payment

(a) The price for the Goods shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.

(b) The price of the Goods:

(i) excludes amounts in respect of value added tax (VAT), which the Purchaser shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(ii) includes the costs of packaging, insurance and carriage of the Goods.

(c) No extra charges shall be effective unless agreed in writing with the Purchaser.

(d) The Supplier may invoice the Purchaser for the price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery.  The Supplier shall ensure that the invoice includes the date of the Purchase Order, the invoice number, the Supplier’s VAT registration number and any supporting documents that the Purchaser may reasonably require.

(e) Unless otherwise agreed and following receipt of a correctly rendered invoice, payment shall be at the close of the second month following the month during which the Goods are delivered.

(f) The Purchaser, without limiting any of its other rights or remedies, reserves the right to set off any sums in respect of which Supplier may be in default to the Purchaser.

(g) The charges for Services shall be calculated on a time and materials basis:

1. the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in its current price list at the date of the Contract;
2. the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from [8.00 am to 5.00 pm] worked on Business Days;

• the Supplier shall be entitled to charge an overtime rate of [PERCENTAGE]% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause ii above; and

1. the Supplier shall be entitled to charge the Purchaser for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

 

9. Fitness, Quality Assurance, Control and Procedures

(a) The Supplier shall ensure that the Goods shall:

(i) correspond with their description and any applicable Specification;

(ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Purchaser expressly or by implication, and in this respect the Purchaser relies on the Supplier’s skill and judgement;

(iii) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and

(iv)       comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

(b) 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.

(c) The Purchaser may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract. If following such inspection or testing the Purchaser considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings in this clause, the Purchaser shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. The Purchaser may conduct further inspections and tests after the Supplier has carried out its remedial actions.

(d) The Supplier shall be subject to any Quality Assurance Conditions specified in the Purchase Order. The Supplier shall establish such quality procedures including testing and inspection, and such documentation and certification as may be necessary to comply with the order. The Purchaser’s representative and the representative of any other organisation, on the authority of the Purchaser, shall be allowed to visit the Supplier’s premises and those of its sub-contractors, and shall be afforded all necessary facilities at any reasonable time to check the progress or quality of work on the supplies. If any such inspection or test is made on the premises of the Supplier, the Supplier shall furnish without additional charge all reasonable facilities and assistance for a safe and convenient inspection or test. Any such inspection shall not relieve the Supplier of its obligations here under nor imply acceptance of it by the Purchaser.

 

10. Secrecy

Any know-how, specification or other confidential information of a commercial or technical nature disclosed to the Supplier in or as a result of the Purchase Order shall remain the Purchaser’s property. The Supplier undertakes that it shall keep any confidential information secret at all times and it will not use or disclose any confidential information to any person without the Purchaser’s prior written consent. The Supplier shall not, without the Purchaser’s prior written consent, publish or permit to be published any information whatsoever relative to the Contract including the name of the Purchaser, the Goods or the place of delivery.  The Supplier may disclose the Purchaser’s confidential information (i) to its employees, officers, representative or advisers who need to know such information for the purposes of exercising the Supplier’s rights or carrying out its obligations under the Contract, provided that the Supplier ensures that its employees, officers, representatives or advisers to whom it discloses the Purchaser’s confidential information comply with this clause 10; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.  Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

 

11. Force Majeure

Either party shall be discharged from the strict performance of its obligations under the Contract undertaken in connection with the Purchase Order if such performance is prevented, prohibited or delayed by any circumstance beyond the reasonable control of that party. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. Notwithstanding the foregoing, the Purchaser may, by giving 10 days’ notice in writing to the Supplier, cancel any Purchase Orders which cannot be made within a reasonable time due to the delay or non-performance.

 

12. Compliance with Statutes and Regulations

In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and other legal requirements including those relevant to health, safety and welfare pertaining to the stated country for use of the Goods.

The Purchaser may immediately terminate the Contract for breach of this clause 12.

 

13. Hazards

The Supplier shall inform and keep the Purchaser informed of all hazards and regulations (statutory or otherwise) which the Supplier knows or believes to be associated with the use, handling, storage, labelling and transport of the Goods and the Supplier will ensure that relevant consignments are properly marked with the appropriate internationally recognised danger symbols and that prominent hazards warnings appear in English on all packages and documents.

 

14. Working On Site

The Supplier and its personnel and those of any sub-contractor which it may employ shall, when working on the Purchaser’s site, abide by the rules detailed in the relevant Purchaser’s booklet(s) on site and safety rules, copies of which should be obtained from the Purchaser’s representative prior to the Supplier’s personnel or those by any sub-contractor it may employ, gaining access to the Purchaser’s site.

 

15. Indemnity

The Supplier shall keep the Purchaser 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 or incurred by the Purchaser as a result of or in connection with:

(i) any claim made against the Purchaser 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, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

(ii) any claim made against the Purchaser 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

(iii) any claim made against the Purchaser by a third party arising out of or in connection with the supply of the Goods, 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.

This clause 15 shall survive termination of the Contract.

 

16. Insurance

During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Purchaser’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.

 

17. Termination

(a) The Purchaser may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Purchaser 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.

(b) Without limiting its other rights or remedies, the Purchaser may terminate the Contract with immediate effect by giving written notice to the Supplier if:

(i) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing to do so;

(ii) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(iii) the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with its creditors, having a receiver appointed to any of its assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(iv) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(v) the Supplier’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

(c) Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

(d) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

 

18. Assignation

(a) The Supplier may at any time assign, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

(b) The Purchaser may not assign, transfer, charge, delegate, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

 

19. Subcontracting

The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Purchaser. If the Purchaser consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

 

20. Entire Agreement

The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

21. 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 in writing and signed by the Purchaser.

 

22. Waiver

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.

 

23. Severance

If any provision or part-provision of the Contract 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 these Conditions.  If any provision of the Contract is deemed deleted under this clause 23 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.

 

24. Notices

Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.  A notice given under the Contract is not valid if sent by email.

 

25. Third party rights

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of the Contract.

 

26. Governing Law

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.

 

27. Jurisdiction

Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.