Terms and Conditions of Supply

In these Conditions the following expressions shall have the meanings set opposite them:November 2022

1 Definitions and interpretation

1.1 The following definitions and rules of interpretation apply in these Conditions:

“Contract” means the contract between Whittan and the Customer for the supply of Goods and/or Services (incorporating the Quotation and the Order), in accordance with:

(a) these Conditions; and

(b) (if the Customer is a Distributor) Schedule 1;

“Customer” means the person or firm who purchases the Goods and/or Services from Whittan;

“Delivery Information” means:

(a) the Delivery Location;

(b) any delivery date(s) for the Goods; and

(c) any performance date(s) for the Services (if applicable);

“Force Majeure Event” means war, armed conflict, acts of terrorism, riots, fire, flood, storm, earthquake, extreme weather, pandemic, disaster, or such other similar events;

“Goods” means the goods (or any part of them) set out in the Quotation;

“Price” means the total price payable by the Customer to Whittan for the Goods and/or Services, as set out in the Quotation or varied from time to time in accordance with these Conditions;

“Services” means the installation and/or design services supplied by Whittan to the Customer as set out in the Service Specification;

“Whittan” means Whittan Industrial Limited, registered in England and Wales with company number 04428828 and whose registered office is at Link House, Halesfield 6, Telford, Shropshire, TF7 4LN;

2 Basis of contract

2.1 As between Whittan and the Customer, the process for issuing Quotations and placing and accepting Orders shall be as set out in this:

2.1.1 Whittan shall provide a Quotation to the Customer which shall contain, as a minimum, the following details:

(i) details of the Goods;

(ii) the Goods Specification (if any);

(iii) details of the Services (if any);

(iv) the Services Specification (if any);

(v) the Price;

(vi) the Alternative Payment Terms (if any); and

(vii) the Delivery Information;

2.1.2 Whittan may at any time following receipt of an Order:

(i) issue written acceptance of that Order to the Customer.  The Order shall only be deemed to be accepted when Whittan issues written acceptance of the Order at which point and on which date the Contract shall come into existence;

(ii) confirm to the Customer in writing that Whittan will not be accepting the Order.

2.2 Any samples, drawings, descriptive matter or advertising issued by Whittan and any descriptions of the Goods or illustrations or descriptions of the Services contained in Whittan’s brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them.  They shall not form part of the Contract or have any contractual force.

2.3 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 law, 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 application to one or the other is specified.

2.5 In the event of a conflict between a Quotation and these Conditions, the Quotation shall prevail only to the extent that the two conflict.

3 Goods

3.1 The Goods are described in Whittan’s catalogues and on Whittan’s website as modified by any applicable Goods Specification.

3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied or contributed to by the Customer, the Customer shall indemnify Whittan and keep Whittan fully and effectively indemnified from and against all Losses suffered or incurred by Whittan arising out of or in connection with such contribution (including any alleged or actual infringement of a third party’s Intellectual Property Rights).

3.3 Whittan reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Whittan shall notify the Customer in any such event.

4 Delivery of Goods

4.1 Whittan shall deliver the Goods to the location set out in the Quotation or such other location as the parties may agree in writing on or not later than two Business Days after the delivery date specified in the Quotation or such other date as the parties may agree in writing.  The parties agree and acknowledge that the time for delivery is not of the essence.

4.2 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location and, unless agreed otherwise between the parties in writing, the Customer shall be responsible for, and shall bear the risk associated with, the off-loading of the Goods at the Delivery Location.

4.3 If Whittan 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.  Whittan 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 Whittan with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.4 If the Customer fails to accept delivery of the Goods on the date on which they are attempted to be delivered, then except where such failure or delay is caused by a Force Majeure Event or by Whittan’s failure to comply with its obligations under the Contract in respect of the Goods:

4.4.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day after the Attempted Delivery Date.

5 Quality of Goods

5.1 Whittan warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:

5.1.1 conform in all material respects with any applicable Goods Specification

5.2 Whittan shall, at its option, repair or replace any defective Goods, or refund the price of any defective Goods in full if:

5.2.1 the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

5.2.2 Whittan is given a reasonable opportunity of examining such Goods.

5.3 Whittan shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:

5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

5.3.2 the defect arises because the Customer failed to follow Whittan’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

5.3.3 the defect arises as a result of Whittan following any drawing, design or Goods Specification supplied or contributed to by the Customer (to the extent that the defect relates to such contribution);

5.3.4 the Customer alters or repairs such Goods without the written consent of Whittan;

5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.

5.4 The warranty provided under clause 5.1 does not apply to any aspect of the Goods which is provided to Whittan by a third party.  Whittan shall use all reasonable endeavours to ensure that the Customer shall benefit from any warranty provided to Whittan by the third party supplier of such aspect of the Goods.

5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Whittan.

6 Title and risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

6.2.1 Whittan receives payment in full (in cash or cleared funds) for the Goods and any other goods that Whittan has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;

6.2.2 (if the Customer is a Distributor) it resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Whittan’s property;

6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Whittan’s behalf from the date of delivery;

6.4 The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Whittan receives payment for the Goods.  However, if the Customer resells the Goods before that time:

6.4.1 it does so as principal and not as Whittan’s agent.

7 Supply of Services

7.1 Whittan shall supply the Services to the Customer in accordance with the Service Specification in all material respects.

7.2 Whittan shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation (or as otherwise agreed in writing between the parties), but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3 Whittan reserves the right to amend the Service Specification 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 Whittan shall notify the Customer in any such event.

7.4 Whittan warrants to the Customer that the Services will be provided using reasonable care and skill.

7.5 In the event that any Services provided by Whittan are defective, Whittan shall re-perform the defective Services at such time to be mutually agreed in writing between the parties, if:

7.5.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Services are defective; and

7.5.2 Whittan is given a reasonable opportunity of examining such completed Services and agrees (in its reasonable opinion) that such Services are defective,

7.6 Whittan shall have no liability to the Customer in respect of defective Services.

7.7 Whittan reserves the right to charge reasonable Charges if the performance of their Services specified and accepted by the Customer (or as otherwise agreed in writing between the parties) is subsequently changed by the Customer or delayed due to no fault of Whittan.

7.8 The terms of these Conditions shall apply to any re-performance of Services by Whittan.

8 Customer’s obligations

8.1 The Customer shall:

8.1.1 ensure that the terms of the Quotation and any information it provides in the Service Specification and/or the Goods Specification (including the Customer Documentation) are complete and accurate;

8.1.2 co-operate with Whittan in all matters relating to the Goods and/or Services;

8.1.3 provide Whittan, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Whittan to provide the Goods and/or Services;

8.1.4 prepare the Customer’s premises for the supply of the Goods and/or Services;

8.1.5 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;

8.1.6 comply with all applicable laws, including health and safety laws.

8.2 If Whittan’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:

8.2.1 without limiting or affecting any other right or remedy available to it, Whittan shall have the right to suspend delivery of the Goods and/or 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 in each case to the extent the Customer Default prevents or delays Whittan’s performance of any of its obligations;

8.2.2 Whittan shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from Whittan’s failure or delay to perform any of its obligations;

8.2.3 Whittan shall have the right to alter the delivery date(s) for the provision of the Goods and/or Services and/or the Price to the extent that these are affected by the Customer Default.

9 Charges and payment

9.1 The price for Goods shall be as set out in the Quotation or, if no price is quoted, the price set out in Whittan’s published price list as at the date of the Order.

9.2 Whittan reserves the right to charge the Customer for all additional costs and charges of packaging, insurance, and transport of the Goods, which shall be invoiced to the Customer.

9.3 Unless otherwise agreed between the parties in writing, the charges for Services shall be as set out in the Quotation.

9.4 Whittan reserves the right to increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost to Whittan of providing the Goods and/or Services that is due to:

9.4.1 any factor beyond the control of Whittan (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

9.4.2 any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Goods Specification and/or Service Specification;

9.4.3 any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give Whittan adequate or accurate information or instructions in respect of the Goods and/or Services.

9.5 The Customer shall pay each invoice submitted by Whittan:

9.5.1 within 30 days of the date of the invoice; and

9.5.2 time for payment shall be of the essence of the Contract.

9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”).  Where any taxable supply for VAT purposes is made under the Contract by Whittan to the Customer, the Customer shall, on receipt of a valid VAT invoice from Whittan, pay to Whittan such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.7 If the Customer fails to make a payment due to Whittan under the Contract by the due date, then, without limiting Whittan’s remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.  Interest under this clause will accrue at 8% per month.

9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10 Intellectual property rights

10.1 The Contract does not transfer or grant any interest in Intellectual Property Rights other than as expressly set out in the Conditions.  For the avoidance of doubt, Whittan is and shall at all times remain the owner of all Intellectual Property Rights in the Goods and the Whittan Documentation.

10.2 The Customer:

10.2.1 warrants that the receipt and use of the Customer Documentation in the performance of the Contract by Whittan, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party;

10.2.2 shall indemnify Whittan and keep Whittan fully and effectively indemnified from and against all Losses awarded against or incurred or paid by Whittan as a result of or in connection with any claim brought against Whittan, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Contract of the Customer Documentation.

11 Confidentiality

11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or materials (including the Whittan Documentation and Customer Documentation) of the other party.

11.2 Each party may disclose the other party’s confidential information:

11.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract.  Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause.

11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

12 Limitation of liability

12.1 Whittan shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for any losses.

12.2 Whittan’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall in no circumstance exceed the Price.

13 Termination and cancellation of Orders

13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.1.1 the other party commits a material breach of any of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

13.1.2 the other party 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), 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;

13.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

13.2 Without affecting any other right or remedy available to it, Whittan may terminate the Contract with immediate effect by giving written notice to the Customer if:

13.2.1 the Customer fails to pay any amount due under the Contract on or before the due date for payment;

13.2.2 there is a change of control of the Customer;

13.2.3 the Customer’s financial position deteriorates to such an extent that in Whittan’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.3 If the Customer cancels the Order, due to no fault by Whittan, after receipt of written acceptance of the Order from Whittan, Whittan, at its sole discretion, has the right to charge a minimum cancellation fee of up to 20% of the value of the total Order for all Goods and Services, subject to clause 13.3.1

13.3.1 A fee, in addition to the cancellation fee, will be payable at Whittan’s sole discretion if manufacturing or deliveries have commenced, or if Whittan has placed Orders with external suppliers as a consequence of the Order.  If a cancellation notice is received after commencement of deliveries, clause 14.1.1 will apply

13.3.2 The customer will indemnify Whittan in full from any claims of liability for any breach or non-performance under the Contract as a result of the cancellation notice, including claims from third parties

14 Consequences of termination

14.1 On termination of the Contract:

14.1.1 the Customer shall immediately pay to Whittan all of Whittan’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Whittan shall submit an invoice, which shall be payable by the Customer immediately on receipt.

15 Assignment and other dealings

15.1 Whittan may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

16 Notices

16.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

16.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

17 General

17.1 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.

17.2 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.  No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

18 Governing law and jurisdiction

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 England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.