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The YOUNG DRIVER™ Training Ltd Terms and Conditions for the Purchase of Goods and Services
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 13.8.
“Contract” means the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
“Customer” means The YOUNG DRIVER™ Training Ltd (Company no: 06979425) as specified in the applicable Order.
“Customer Materials” means all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
“Deliverables” means all Documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).
“Document” includes, without limitation, 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” means the goods (or any part of them) set out in the Order.
“Intellectual Property Rights” means 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, 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.
“Order” means the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form.
“Services” means the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Specification.
“Specification” means any specification for the Goods or Services provided by the Customer to the Supplier or agreed by the Customer and Supplier in writing or referenced in the Order.
“Supplier” means the person or firm from whom the Customer purchases the Goods and/or Services.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)
1.2.2 clause headings are for convenience only and do not affect the interpretation of these Conditions.
1.2.3 a 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
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of the Supplier issuing written acceptance of the Order; or any act by the Supplier consistent with fulfilling the Order at which point and on which date the Contract shall come into existence.
2.3 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 trade, custom, practice or course of dealing.
3. Supply and Delivery of Goods
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description and any applicable Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication;
3.1.3 be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that: the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
3.3 The Supplier shall deliver the Goods on the date specified in the Order, to the premises set out in the Order or as instructed by the Customer before delivery ("Delivery Location"), during the Customer's normal hours of business, or as instructed by the Customer and in accordance with any other delivery requirements specified by the Customer in the Order.
3.4 The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent.
3.5 Title and risk in the Goods shall pass to the Customer on completion of delivery.
4. Supply of Services
4.1 The Supplier shall from the Commencement Date and for the duration of the Contract provide the Services to the Customer in accordance with the terms of the Contract. The Supplier shall meet any performance dates for the Services specified in the Order or any Specification notified to the Supplier by the Customer.
4.2 In providing the Services, the Supplier shall:
4.2.1 perform the Services with all reasonable care, skill and diligence and in accordance with best practice in the Supplier's industry, profession or trade;
4.2.2 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract
4.2.3 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
4.2.4 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design
4.2.5 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations; and
4.2.6 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises or delivery location.
5. Customer Remedies
5.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date for delivery and/or performance, the Customer shall, without limiting its other rights or remedies (and whether or not the Customer shall exercise any right to terminate the Contract under clause 11) have one or more of the following rights:
5.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
5.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
5.1.3 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
5.1.4 where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
5.1.5 to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to meet such dates.
5.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 0, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights: (i) whether or not it has accepted the Goods to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense; (ii) to terminate the Contract with immediate effect by giving written notice to the Supplier; (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 (if paid); (iv) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make; (v) to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and (vi) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to supply Goods in accordance with clause 0.
5.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier. The Customer's rights under the Contract are in addition to its rights and remedies implied by statute and common law.
6. Customer's Obligations
The Customer shall provide the Supplier with such information as the Supplier may reasonably request for the provision of the Goods and/ or Services and the Customer considers reasonably necessary for the purpose of providing the Services.
7. Charges and Payment
7.1 The price for the Goods shall be the price set out in the Order and shall unless otherwise stated in the order be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing by the Customer.
7.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier incurred in connection with the performance of the Services.
7.3 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services or in accordance with any payment milestone referenced in the Order or the Specification. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.4 The Customer shall pay invoiced amounts 30 days after the end of the calendar month in which a correctly rendered invoice is received by the Customer. Payment shall be made to a bank account nominated in writing by the Supplier unless otherwise specified in the Order.
7.5 All amounts payable by the Customer under the Contract are (unless otherwise stated in the Order) exclusive of amounts in respect of valued added tax chargeable from time to time ("VAT") which shall be payable in addition.
7.6 If the Customer fails to pay any amount properly due and payable by it under the Contract, the Supplier shall have the right to charge interest on the overdue amount at the rate of 2% per cent per annum above the base rate for the time being of Lloyds TSB Bank Plc accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. This clause shall not apply to payments that the Customer disputes in good faith.
7.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
7.8 The Supplier shall not be entitled to assert any credit, set-off or counterclaim against the Customer in order to justify withholding payment of any such amount in whole or in part. The Customer may, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by the Customer to the Supplier.
8. Intellectual Property Rights
In respect of the Goods and any goods that are transferred to the Customer as part of the Services under the Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer. The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables. All Customer Materials are the exclusive property of the Customer.
9.1 The Supplier shall keep the Customer indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Customer as a result of or in connection with:
9.1.1 any claim made against the Customer 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 defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
9.1.2 any claim made against the Customer by a third party arising out of, or in connection with, the supply of the Goods or Services, 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; and
9.1.3 any claim made against the Customer 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, or receipt, use or supply of the Services.
9.2 The Supplier shall, where specified in the Order, 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 for an appropriate period stipulated in the Order, and shall, on the Customer'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.
9.3 This clause 9 shall survive termination of the Contract.
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 10 shall survive termination of the Contract.
11.1 Without limiting any other rights or remedies, the Customer may terminate the Contract Agreement with immediate effect by giving written notice to the Supplier if:
11.1.1 the Supplier commits a material or persistent breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing of the breach; or
11.1.2 the Supplier repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
11.1.3 the Supplier suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, 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 has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof or (being a natural person) 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 has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any other statutory provision for the time being in force for the relief of insolvent debtors, or any proceedings are otherwise commenced relating to the insolvency or possible insolvency of the other party; or
11.1.4 any event occurs or proceeding is taken with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to the events mentioned in this clause 11.1; or
11.1.5 the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
11.2 In any circumstances in which the Customer may terminate the Contract, where both Goods and Services are supplied, the Customer may instead terminate part of the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
12. Consequences of Termination
On termination of the Contract or any part of it for any reason where the Services are terminated, the Supplier shall immediately deliver to the Customer all Deliverables, whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may without limiting its other rights or remedies enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract. On termination of the Contract or any part of it for any reason the accrued rights and remedies of the parties as at 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 and clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 Force majeure: Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from supplying the Goods and/or Services for more than 14 days, the Customer shall have the right, without limiting its other rights or remedies, to terminate the Contract with immediate effect by giving written notice to the Supplier.
13.2 Assignment and subcontracting: The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.
13.3 Notices: Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number. Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
13.4 Waiver and cumulative remedies: waiver (which may be given subject to conditions) of any right or remedy provided under the Contract or by law shall only be effective if it is in writing. It shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
13.5 Severance: If a court or any other competent authority finds that any provision (or part of any provision) of the Contract 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.
13.6 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 any way.
13.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.8 Variation: Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Customer.
13.9 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.