INTERPRETATION 1.1 The following definitions and rules of interpretation in this clause apply in these terms and conditions. Codem: Codem Composites Limited a company incorporated in England and Wales under number 6963305 whose registered office is at Suite B, 32 Thorpe Wood, Peterborough PE3 6SR Contract: any contract between Codem and the Customer in relation to the Project, incorporating these terms and conditions. Customer: the person, firm or company named in the Quotation. Deliverables: all Documents, products and materials developed by Codem in relation to the Project and Project Plan in any form, including samples, drawings, description matter, data, reports and specifications (including drafts). Deposit: the non-refundable deposit specified in the Quotation and payable by the Customer Pursuant to clause 4.1. Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. Goods: any goods to be purchased by the Customer. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Project Plan: the plan of the Project to be agreed by the Customer and Codem in accordance with clause 5. Project: the project to be undertaken by Codem as further detailed in the Project Plan. Quotation: the document or email to which these terms and conditions are attached. 1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or reenactment and includes any subordinate legislation for the time being in force made under it. 1.3 Words in the singular include the plural and in the plural include the singular. 1.4 A reference to one gender includes a reference to the other gender. 1.5 Clause headings do not affect the interpretation of these terms and conditions.
APPLICATION OF TERMS 2.1 The Quotation is given by Codem on the basis that no Contract shall come into existence except in accordance with clause 2.2. Any quotation is valid for a period of 30 days from its date, provided that Codem has not previously withdrawn it. 2.2 The Quotation constitutes an offer by Codem to undertake the Project on these terms and conditions. The Customer shall be deemed to have accepted Codem’s offer upon: 2.2.1 signing the Quotation and delivering it to Codem; or 2.2.2 issuing a purchase order to Codem; 2.2.3 accepting the Quotation in writing (whether by e-mail or otherwise). 2.3 Following acceptance of the Quotation by the Customer in accordance with clause 2.2, a Contract for the provision of the Project on these terms and conditions will be established. 2.4 The Contract shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document). 2.5 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
THE PROJECT 3.1 The specification and description of the Project shall be as set out in the Project Plan. 3.2 All samples, drawings, descriptive matter, specifications and advertising issued by Codem and any descriptions or illustrations contained in Codem’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the items described in them. They shall not form part of the Contract.
DEPOSIT 4.1 Upon acceptance of the Quotation by the Customer in accordance with clause 2.2, the Customer shall pay the Deposit to Codem. 4.2 The Customer acknowledges that the Deposit is non-refundable and is a genuine pre-estimate of the cost of any work to be undertaken on a time and materials basis by Codem in the course of preparing the Project Plan. 4.3 Codem shall not be under any obligation to prepare the Project Plan until the Customer has paid the Deposit in cleared funds.
PROJECT PLAN 5.1 The Project Plan shall be agreed in the following manner: 5.1.1 Following payment of the Deposit by the Customer in accordance with clause 4 Codem shall, as soon as reasonably practicable, provide the Customer with a draft Project Plan; and 5.1.2 Codem and the Customer shall discuss and agree the draft Project Plan and when it has been agreed, they shall both sign a copy of it and it shall become subject to these terms and conditions. 5.2 Once the Project Plan has been agreed and signed in accordance with clause 5.1.2, no amendment shall be made to it except in accordance with clause 6. 5.3 Subject to clause 17.3 either party may terminate the Contract at any time prior to agreement of the Project Plan in accordance with clause 5.1.2 by giving no less than 7 days written notice to the other PROVIDED ALWAYS that Codem shall be entitled to charge the Customer on a time and materials basis for any work undertaken prior to such termination and Codem shall be entitled to retain such sum from the Deposit.
CHANGE CONTROL 6.1 If either party wishes to change the scope or execution of the Project, it shall submit details of the requested change to the other in writing. 6.2 If either party requests a change to the scope or execution of the Project, Codem shall, within a reasonable time, provide a written estimate to the Customer of: 6.2.1 the likely time required to implement the change; 6.2.2 any variations to Codem’s charges arising from the change; 6.2.3 the likely effect of the change on the Project Plan; and 6.2.4 any other impact of the change on the terms of the Contract. 6.3 Codem may, from time to time and without notice, change the Project in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Project. If Codem requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it. 6.4 If the Customer wishes Codem to proceed with the change, Codem has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
CODEM’S OBLIGATIONS 7.1 Codem shall use reasonable endeavours to complete the Project in accordance in all material respects with the Project Plan. 7.2 Codem shall use reasonable endeavours to meet any performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
CUSTOMER’S OBLIGATIONS 8.1 The Customer shall: 8.1.1 co-operate with Codem in all matters relating to the Project; 8.1.2 provide, in a timely manner, such information and documentation as Codem may request and ensure that it is accurate in all material respects; 8.1.3 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Project and the Customers use of the Project. 8.2 If Codem’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, Codem shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay. 8.3 The Customer shall be liable to pay to Codem, on demand, all reasonable costs, charges or losses sustained or incurred by Codem (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Codem confirming such costs, charges and losses to the Customer in writing.
DELIVERY 9.1 Unless otherwise agreed in writing by Codem, delivery of the Goods shall take place at Codem’s place of business. 9.2 The Customer shall take delivery of the Goods within 7 days of Codem giving it notice that the Goods are ready for delivery. 9.3 Any dates specified by Codem for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. 9.4 Subject to the other provisions of these terms and conditions Codem shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Codem’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract. 9.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or Codem is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations: 9.5.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by Codem’s negligence); 9.5.2 the Goods shall be deemed to have been delivered; and 9.5.3 Codem may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). 9.6 The Customer shall provide at its expense adequate and appropriate equipment and manual labour for loading and unloading the Goods. 9.7 Codem may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
NON-DELIVERY 10.1 The quantity of any consignment of Goods as recorded by Codem upon despatch from Codem’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary. 10.2 Codem shall not be liable for any non-delivery of Goods (even if caused by Codem’s negligence) unless the Customer gives written notice to Codem of the non-delivery within 2 working days of the date when the Goods would in the ordinary course of events have been received. 10.3 Any liability of Codem for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
RISK/TITLE 11.1 The Goods are at the risk of the Customer from the time of delivery. 11.2 Ownership of the Goods shall not pass to the Customer until Codem has received in full (in cash or cleared funds) all sums due to it in respect of: 11.2.1 the Goods; 11.2.2 the Project; and 11.2.3 all other sums which are or which become due to Codem from the Customer under the Contract or on any account. 11.3 Until ownership of the Goods has passed to the Customer, the Customer shall: 11.3.1 hold the Goods on a fiduciary basis as Codem’s bailee; 11.3.2 store the Goods (at no cost to Codem) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Codem’s property; 11.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and 11.3.4 maintain the Goods in satisfactory condition and keep them insured on Codem’s behalf for their full price against all risks to the reasonable satisfaction of Codem. On request the Customer shall produce the policy of insurance to Codem. 11.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions: 11.4.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and 11.4.2 any such sale shall be a sale of Codem’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale. 11.5 The Customer’s right to possession of the Goods shall terminate immediately if: 11.5.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors(whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof,or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the grant-ing of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
11.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to
observe or perform any of his/its obligations under the Contract or any other contract between Codem and the Customer, or is unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
11.5.3 the Customer encumbers or in any way charges any of the Goods;
11.5.4 any event, similar to those listed in this clause 11.5 occurs in respect of the Customer in any jurisdiction.
11.6 Codem shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Codem.
11.7 The Customer grants Codem, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be
stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
11.8 Where Codem is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the
Customer shall be deemed to have sold all goods of the kind sold by Codem to the Customer in the order in which they were invoiced to the Customer.
11.9 On termination of the Contract, howsoever caused, Codem’s (but not the Customer’s) rights contained in this clause 11 shall remain in effect.
PRICE 12.1 Unless otherwise agreed by Codem in writing, the price for undertaking the Project shall be the price set out in the Project Plan. 12.2 The price for undertaking the Project shall be exclusive of any value added tax and all costs or charges in relation to payment (including but not limited to any bank charges incurred by either party in relation to payment), packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition.
PAYMENT 13.1 Subject to clause 13.5, payment of the price for the Project is due in pounds sterling in accordance with the Project Plan. 13.2 Codem shall be entitled to recover payment for the Project notwithstanding that ownership of any of the Goods has not passed from Codem in accordance with clause 11.2. 13.3 Time for payment shall be of the essence. 13.4 No payment shall be deemed to have been received until Codem has received cleared funds. 13.5 All payments payable to Codem under the Contract shall become due immediately on its termination despite any other provision. 13.6 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Codem to the Customer. 13.7 If the Customer fails to pay Codem any sum due pursuant to the Contract, the Customer shall be liable to pay interest to Codem on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of HSBC Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgement.
QUALITY 14.1 Subject to the other provisions of these terms and conditions, Codem warrants to the Customer that the Project shall be free from defects in material and workmanship for a period of 12 months from the date of Completion; 14.2 The warranty given by Codem at clause 14.1 is subject to the following conditions: 14.2.1 Codem shall be under no liability in respect of any defect in the Project arising from any drawing, design or specification supplied by the Customer; 14.2.2 Codem shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Codem’s or the manufacturer’s instructions, misuse or alteration or repair of the Project or any of the Goods without Codem’s written approval; 14.2.3 Codem shall be under no liability if the total price for the Project has not been paid by the due date for payment; 14.2.4 The warranty does not extend to parts, materials or Goods not manufactured by Codem in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Codem. 14.3 Codem shall not be liable for a breach of the warranty in clause 14.1 unless: 14.3.1 the Customer gives notice of the defect to Codem within a reasonable time of the time when the Customer discovers or ought to have discovered the defect; and 14.3.2 Codem is given a reasonable opportunity after receiving the notice of examining the Project or the relevant Goods. 14.4 Subject to clause 14.3 if the Project does not conform with the warranty in clause 14.1 Codem shall at its option repair or replace the defective part provided that, if Codem so requests, the Customer shall, at Codem’s expense, return the part of the Project which is defective to Codem. 14.5 If Codem complies with clause 14.4 it shall have no further liability for a breach of the warranty in clause 14.1 in respect of such defect.
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY 15.1 All Intellectual Property Rights in the Project the Project Plan and the Deliverables shall remain the property of Codem at all times. 15.2 The Customer shall keep in strict confidence the Project Plan, the Deliverables and all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Codem, its employees, agents or sub-contractors and any other confidential information concerning Codem’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to Codem, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer. 15.3 This clause 15 shall survive termination of the Contract however arising.
LIMITATION OF LIABILITY 16.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract. 16.2 Nothing in these terms and conditions excludes or limits the liability of Codem: 16.2.1 for death or personal injury caused by Codem’s negligence; or 16.2.2 under section 2(3), Consumer Protection Act 1987; or 16.2.3 for any matter which it would be illegal for Codem to exclude or attempt to exclude its liability; or 16.2.4 for fraud or fraudulent misrepresentation. 16.3 Subject to clause 16.1 and clause 16.2: 16.3.1 Codem’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and 16.3.2 Codem shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
TERMINATION 17.1 Subject to Clause 17.2 the Contract shall terminate automatically on completion of the Project in accordance with the Project Plan. 17.2 Without prejudice to any other rights or remedies which either party may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if: 17.2.1 the other party commits a material breach of any of the terms 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; or 17.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or 17.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or 17.2.4 a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or 17.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or 17.2.6 the other party ceases, or threatens to cease, to trade; or 17.2.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt. 17.3 On termination of the Contract for any reason: 17.3.1 the Customer shall immediately pay to Codem all of Codem’s outstanding unpaid invoices and interest and, in respect of work undertaken but for which no invoice has been submitted, Codem may submit an invoice, which shall be payable immediately on receipt; 17.3.2 the Customer shall, return all Goods in respect of which ownership has not passed to the Customer. If the Customer fails to do so, then Codem may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, they shall remain at the absolute risk of the Customer. 17.3.3 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected. 17.3.4 The Customer shall if required by Codem immediately destroy or return to Codem (at Codem’s option) all copies of the Project Plan and all Deliverables then in its possession, custody or control and, in the case of destruction, certify to Codem that it has done so.
GENERAL 18.1 Codem may assign the Contract or any part of it to any person, firm or company. 18.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Codem. 18.3 Codem reserves the right to defer the date of delivery or to cancel the Contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Codem including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. 18.4 Each right or remedy of Codem under the Contract is without prejudice to any other right or remedy of Codem whether under the Contract or not. 18.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 18.6 Failure or delay by Codem in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 18.7 Any waiver by Codem of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract. 18.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. 18.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts. 18.10 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax: 18.10.1 (in case of communications to Codem) to its registered office or such changed address as shall be notified to the Customer by Codem; or 18.10.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to Codem by the Customer. 18.11 Communications shall be deemed to have been received: 18.11.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or 18.11.2 if delivered by hand, on the day of delivery; or 18.11.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day
