Interpretation
1.1. Definitions.
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday)
Charges: the charges payable by the Customer for the supply of the Services in accordance with these Conditions.
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 12.9.
Contract: the contract between Jointline and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Jointline
Delivery: the provision of Services to the Customer at the Site
Force Majeure Event: means any circumstance beyond the reasonable control of Jointline including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d)nuclear, chemical or biological contamination or sonic boom; (e) collapse of buildings, fire, explosion or accident; (f) any labour or trade dispute, strikes, industrial action or lockouts; (g) non-performance by suppliers or subcontractors; (h) accident, breakdown of plant, equipment or machinery; (h) interruption or failure of utility service; and (i) any weather conditions making it unsafe or unsuitable to perform the Services.
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
Jointline: Jointline Limited registered in England and Wales with company number 1878959
Jointline Sales Quote: the quotation provided by Jointline, based on the Customer's requirements
Order: the Customer's purchase order form, or the Customer's written acceptance of a Jointline Sales Quote, or overleaf
Services: the services, supplied by Jointline as set out in the Specification.
Site: the location where Jointline provides the Services as set out in the Order
Specification: the description or specification of the Services provided in writing by Jointline to the Customer
1.2.Construction.
In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) 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;
(d) any phrase introduced by the terms including, include, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted on the earlier of: (i) when Jointline issues written acceptance of the Order; or (ii) an act by Jointline, which in Jointline’s opinion, is consistent with fulfilling the Order, at which point, and on which date the Contract shall come into existence (“Commencement Date”).
2.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, advice, promise or representation made or given by or on behalf of Jointline which is not set out in the Contract.
2.4. Any samples, drawings, descriptive matter or advertising issued by Jointline, and any descriptions or illustrations contained in Jointline's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5. 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.
2.6. The Jointline Sales Quote shall not constitute an offer, and unless stated otherwise the Jointline Sales Quote is only valid for a period of 30 days from its date of issue.
2.7. Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance or offer invoice or other documents or information issued by Jointline shall be subject to correction without liability on the part of Jointline.
3. SUPPLY OF SERVICES
3.1. Jointline shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2. Jointline 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.
3.3. Jointline 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 Jointline shall notify the Customer in any such event.
3.4. Jointline warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER'S OBLIGATIONS
4.1. The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with Jointline in all matters relating to the Services;
(c) provide access and procure any permission or consents required for Jointline, its employees, agents, consultants and subcontractors, to access the Site, Customer's premises, office accommodation and other facilities as reasonably required by Jointline;
(d) provide Jointline with such information and materials as Jointline may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Site for the supply of the Services;
(f) obtain and maintain all necessary licence, permissions and consents which may be required before the date on which the Services are to start;
(g) keep and maintain all materials, equipment, plant, machinery, documents and other property of Jointline (“Jointline Equipment”) at the Customer's premises in safe custody at its own risk, maintain Jointline Equipment in good condition until returned to Jointline, and not dispose of or use Jointline Equipment other than in accordance with Jointline's written instructions or authorisation;
(h) not make or permit any alteration to the Site, including the use of the same, between the date of the quotation and the date of performance of the Services;
(i) provide Jointline with all health and safety information and procedures from time to time in force at the Site;
(j) make no alternation to the Jointline Equipment and shall not remove any existing component(s) from the Jointline Equipment whilst on the Customer’s premises;
(k) keep Jointline fully informed of all material matters relating to the Jointline Equipment;
(l) keep the Jointline Equipment at all times at the Site and shall not move or attempt to move any part of the Jointline Equipment to any other location without Jointline's prior written consent;
(m) permit Jointline or its duly authorised representative to inspect the Jointline Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Jointline Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(n) not, without the prior written consent of Jointline, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Jointline Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(o) not without the prior written consent of Jointline, attach the Jointline Equipment to any land or buildings so as to cause the Jointline Equipment to become a permanent or immovable fixture on such land or building;
(p) not do or permit to be done an act or thing which will or may jeopardise the right, title and/or interest of Jointline in the Jointline Equipment and where the Jointline Equipment have become affixed to any land or building, the Customer must take all necessary steps to ensure that Jointline may enter such land or building and recover the Jointline Equipment both during the term of the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Jointline of any rights such person may have or acquire in the Jointline Equipment and a right for Jointline to enter onto such land or building to remove the Jointline Equipment;
(q) not suffer or permit the Jointline Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the
Jointline Equipment are so confiscated, seized or taken, the Customer shall notify Jointline and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Jointline Equipment and shall indemnify Jointline on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(r) ensure that at all times the Jointline Equipment remain identifiable as being Jointline property and wherever possible shall ensure that a visible sign to that effect is attached to the Jointline Equipment.
4.2. The Customer shall not, for a period of 12 months from the Commencement Date (except with the prior written consent of Jointline) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of Jointline, any employee, worker or independent contractor of Jointline who is employed or engaged in any services which are relevant to the Contract.
4.3. The Customer shall not be in breach of clause 4.2 as a result of running a national advertising campaign open to all and not specifically targeted at any of the staff of Jointline.
4.4. If the Customer commits any breach of clause 4.2, the Customer shall, without prejudice to any other rights or remedies of Jointline, on demand, pay to Jointline a sum equal to one year's basic salary or the annual fee that was payable by Jointline to that employee, worker or independent contractor plus the recruitment costs incurred by Jointline in replacing such person.
4.5. If Jointline'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”):
(a) Jointline 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 Jointline's performance of any of its obligations;
(b) Jointline shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Jointline's failure or delay to perform any of its obligations as set out in this clause 4.5; and
(c) the Customer shall reimburse Jointline on written demand for any costs or losses sustained or incurred by Jointline arising directly or indirectly from the Customer Default.
5. CANCELLATION
5.1. No Order which has been accepted by Jointline may be cancelled by the Customer except with the agreement in writing of Jointline and on the terms that the Customer shall indemnify Jointline 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, expenses incurred by Jointline as a result of cancellation.
5.2. Without prejudice to the above, the Customer shall be entitled to amend the date for the provision of the Services (but not cancel the Order) without liability to Jointline on the following terms:
(a) if a Force Majeure Event has occurred; and
(b) the Customer informs Jointline in writing of the request to amend the performance date by no later than 1.00 pm on the last Business Day preceding the due date for performance. Failure to provide notification of a change to the performance date will result in a minimum visit or abortive cost charge as per the Jointline Sales Quote.
5.3. Jointline reserves the right to cancel works should weather conditions not be conducive to the works scheduled. Wherever possible Jointline will seek to reschedule works, weather permitting. Jointline shall not b liable for any costs or losses sustainer or incurred by the Customer in the event of any delay / cancellation due to weather conditions.
6. CHARGES AND PAYMENT
6.1. The Charges for the Services shall be on a time and materials basis and shall be set out in the Jointline Sales Quote and Order.
6.2. The Charges shall be calculated in accordance with Jointline's standard daily fee rates.
6.3. The minimum charge shall be based upon the Jointline Sales Quote.
6.4. Unless agreed otherwise in the Order or by the parties in writing Jointline shall invoice the Customer at the end of each calendar month for the Services performed that month.
6.5. The Customer shall pay each invoice submitted by Jointline:
(a) within 30 days of the invoice date; and
(b) in full and in cleared funds to a bank account nominated in writing by Jointline, and time for payment shall be of the essence of the Contract.
6.6. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax
chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Jointline to the Customer, the Customer shall, pay to Jointline such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7. Without limiting any other right or remedy of Jointline, if the Customer fails to make any payment due to Jointline under the Contract by the due date for payment (“Due Date”), Jointline shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Bank of England's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether
before or after judgment, and compounding quarterly.
6.8. 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 Jointline or any member of its Group in order to justify withholding payment of any such amount in whole or in part. Jointline may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Jointline to the Customer.
7. CONFIDENTIALITY
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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICUARLY DRAWN TO THIS CLAUSE
8.1. Nothing in these Conditions shall limit or exclude Jointline's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2. Subject to clause 8.1:
(a) Jointline shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contract, loss of anticipated savings or any indirect or consequential loss arising under or in connection with the Contract and;
(b) Jointline’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, shall in no circumstances exceed the price paid for the Services.
8.3. 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.
8.4. This clause 8 shall survive termination of the Contract.
9. TERMINATION
9.1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) the other party 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;
(c) the other party 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 that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party 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;
(g) 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 other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(a) to clause 9.1(i) (inclusive);
(k) if the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its
business; or
(l) the other party (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.
9.2. Without limiting its other rights or remedies, Jointline may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3. Subject to clause 5 and without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 3 months’ written notice.
9.4. Without limiting its other rights or remedies, Jointline shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Jointline if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(i) (inclusive), or Jointline reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
10.1. the Customer shall immediately pay to Jointline all of Jointline's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Jointline shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.2. the Customer shall allow Jointline to retrieve and collect all Jointline Equipment which remains on the Customer's premises.
10.3. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. ALTERNATIVE DISPUTE RESOLUTION
11.1. If any dispute arises in connection with the Contract, which exceeds the value of £5,000, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Chartered Institute of Arbitrators.
Unless otherwise agreed between the parties within 14 working days of notice of the dispute, the mediator will be nominated by the Chartered Institute of Arbitrators. To initiate the mediation a party must give notice in writing (‘ADR Notice’) to the other party(ies) to the dispute, referring the dispute to mediation.
11.2. If there is any point on the logistical arrangements of the mediation, other than the nomination of the mediator, upon which the parties cannot agree within 14 working days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, the appointed mediator will be requested to decide that point for the parties having consulted with them.
11.3. Unless otherwise agreed, the mediation will start not later than 28 working days after the date of the ADR Notice. No party may commence any court proceedings/arbitration in relation to any dispute arising out of the Contract, unless:
(a) it falls below the upper limit under clause 11.1;
(b) either party has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay;
(c) notice must be sent to the other party(ies) in compliance with CPR Part 7 and the timescales adhered to under CPR Part 7.7(2).
12. GENERAL
12.1. Force Majeure
(a) Jointline shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(b) If the Force Majeure Event prevents Jointline from providing any of the Services for more than 24 weeks, Jointline shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
12.2. Operational Restrictions
(a) In accordance with British and European Standards for compliance of materials and workmanship, the ground
temperature will need to meet and be conducive with the manufactures and relevant trade associations and industry bodies recommendations for application. Failure to comply may result in defective material application.
(b) In the event of unsuitable or inclement weather conditions, JL will inform the Customer of the risks to the delivery of the Services. The Customer may instruct Jointline to proceed with the Services, then the Customer will by their instruction, accept all and full liability for any defective; remedial and rectification works. Any additional costs of the Services due to the instruction will be charged by Jointline to the Customer based on the Jointline Sales Quote.
12.3. Assignment and Subcontracting JL may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. The Customer shall not, without the prior written
consent of Jointline, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or
obligations under the contract
12.4. Waiver
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude right s provided by law.
12.5. Severance
(a) If a court or any other 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) 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.
12.6. No Partnership
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in anyway.
12.7. Third Parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8. Variation
Except as set out in these Conditions, any variation on, including the introduction of any additional terms and
conditions, to the Contract, shall only be binding when agreed in writing and signed by JL.
12.9. Governing Law and Jurisdiction
This 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.