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1.1 All contractual agreements with J&C Joel (being the Company as herein defined) whether in the United Kingdom or elsewhere in the world are subject to these terms and conditions at all times and whether they be for the sale of Goods and/or supply of Works (both as herein defined).
“Company” means either
(i) J&C Joel Limited of Corporation Mill, Corporation Street, Sowerby Bridge, Halifax, HX6 2QQ, England, or
(ii) J&C Joel South Africa Pty Limited of Block A1, Centurion Close, 119 Gerhard Street, Centurion, Gauteng, South Africa, or
(iii) Joel Middle East Theatrical Equipment LLC of P.O. Box 23566, Dubai Investments Park, Phase II, Dubai, United Arab Emirates, or
(iv) J&C Joel Hong Kong Limited of 19/F Pat Tat Industrial Building, 1 Pat Tat Street, San Po Kong, Kawloon, Hong Kong; or
(v) J&C Joel Macau Limited of Alameda Dr. Carlos, D’Assumpcao no.263, Edificio China Civil Plaza, Macau
And in the case of each Contract being the relevant one of these Companies with whom the Customer places or has placed an Order and from whom the Customer receives and Order Acknowledgement.
“Customer” means any person or persons, firm, business, partnership, Company, or other organisation who, having placed an Order with the Company, enters into a Contract for the Company to carry out any Work and/or supply and Goods.
“Goods” means any fabric and/or drapes and/or any Goods or items supplied by the Company to the Customer pursuant to a Contract (together with any associated items and including any replacements thereof).
“Works” means any supply of services or installation work in respect of any Goods (including any and all work ancillary thereto) under the terms of any Contract between the Company and the Customer.
“Order” means any request by a Customer for the Company to supply Goods and/or Works (whether as detailed in any previous quotation or not).
“Order Acknowledgement” means the confirmation in writing of acceptance by the Company of an Order placed by a Customer (whether following a quotation issued by the Company in whatever format or a tender submission made by the Company or otherwise).
“Contract” means any Contract between the Company and the Customer as defined in Section 4 hereof.
“Company’s Premises” means in the case of each Contract, the relevant premises at which the relevant Company is based and with whom a Contract is made.
“the Premises” means the location listed in the Order or any other Premises or building agreed by the Company at the time of entering into a Contract and being either the place at which it is agreed Goods are to be delivered and/or Works carried out.
“the Contract Price” means the amount payable by the Customer under the terms of a Contract and/or as detailed in the quotation or in the Order Acknowledgement (plus any additions as detailed herein).
3.1 The Company shall, at the Company’s sole discretion, be allowed access to the Premises prior to the issue of any quotation in Order to evaluate the Premises, and the Customer’s requirements prior to issuing a quotation for the supply of Goods and/or Works.
3.2 For the avoidance of doubt, the Company may issue a quotation for any supply of Goods and/or Works without carrying out any such evaluation as detailed in paragraph 3.1 above.
3.3 All quotations given by the Company remain open for acceptance for a period of 30 days from the date of issue by the Company to the Customer. If any quotation shall not be accepted by the Customer by way of Order to the Company within the said 30 day period of validity then the quotation shall be deemed to have been withdrawn. The acceptance by a Customer without notice or reason being given and at the Company’s sole discretion.
3.4 Where any variation to any proposed Goods and/or any proposed Works is agreed by the Company, the Company reserves the right to amend the price in a quotation and/or a Contract accordingly.
3.5 These terms and conditions shall apply to every quotation (howsoever given) and Contract. The Company shall not be bound by any terms and conditions which may be inconsistent with these terms and conditions.
3.6 All quotations given by the Company are exclusive of VAT (or whichever equivalent tax is relevant in the jurisdiction) and all other taxes and duties which shall be added to the Contract Price.
3.7 All quotations issued by the Company are exclusive of delivery (unless otherwise stipulated) and are on the basis that Goods will be collected from the Company’s Premises by the Customer or upon the Customer’s behalf. In the event that the Customer shall require the Company to deliver the Goods (or to collect Goods from one of the other Companies not being the Company with whom the Contract is made), then any additional costs incurred by the Company shall be added to the Contract Price.
3.8 It is the responsibility of the Customer to ensure that any quotation provided by the Company (in whatever format) meets their requirements and specification. The Company does not accept any responsibility any errors and/or omissions where the quotation has been accepted by the Customer (howsoever accepted).
4.1 A Contract for the supply of any Goods and/or any Works by the Company to the Customer shall only exist when the Company has confirmed and accepted any Order placed by the Customer by way of an Order Acknowledgement.
4.2 No provisions, modifications, amendments, or variations of any Contract by the Customer shall apply unless they are in writing and are agreed and signed by or on behalf of the Company. In such circumstances, the Company reserves the right to amend or alter the Contract Price.
4.3 Any such provision, modification, amendment, or variation as detailed in clause 4.2 above shall be deemed to be an amendment to the Contract and shall not constitute a new Contract.
5.1 Delivery of Goods under a Contract shall be effective either:-
(i) when the Customer or the Customer’s carrier or agent collects Goods from the Company’s Premises (“Collected”), or
(ii) when the Company delivers the Goods to the Premises and unloads the Goods at the Premises (“Delivered”).
5.2 At the time of placing an Order the Customer shall stipulate whether the Goods are to be Delivered or Collected (failing which the Company shall be entitled to assume that the Goods are to be Collected).
5.3 In the event that the Goods are to be Delivered by the company, then the additional costs incurred by the Company in so doing shall be invoiced to the Customer and shall be added to and form part of the Contract Price.
5.4 Delivery shall be on a date which may be notified by the Company and wherever possible agreed with the Customer. The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery of the Goods nor shall any such delay or failure entitle the Customer to refuse to accept any delivery under a Contract or performance of any Works, or to repudiate any Contract.
5.5 Any dates quoted or provided by the Company for delivery are approximate only although the Company shall use its best endeavours to supply Goods within any time notified by the Company to the Customer but time shall never and not be of the essence at any point. The Company shall not incur any liability whatsoever for failure to supply or deliver by any given or such date or dates.
5.6 In the event of the Goods being Delivered by the Company to the Customer’s Premises, the Customer warrants in entering into any Contract with the Company to ensure that adequate and safe access is available to the Premises. If the Customer should fail to adhere to this warranty, then the Company shall be permitted to deliver the Goods at the closest point of accessibility which shall be determined by the Company’s employees or agents at their sole discretion and the Customer shall raise no objection or requisition thereto, and delivery shall be effected accordingly.
5.7 The Company reserves the right to amend or alter the Contract Price in the event that the means of delivery should charge from that notified in an Order or agreed at the time of the Order Acknowledgement to cover any increased costs or costs of carriage.
5.8 Delivery of Goods may take place separately and on a piecemeal basis.
6.1 The date for commencement of any Works and/or completion of the same shall be on a date notified by the Company and agreed by the customer in advance.
6.2 Any dates quoted or provided by the Company for the commencement and/or completion of any Works are approximate only although the Company shall use its best endeavours to commence and/or complete any Works within any time notified by the Company to the Customer but time shall never and not be of the essence at any point. The Company shall not incur any liability whatsoever for failure to commence nor carry out any Works by any given or such date or dates, or within any given timescale, nor shall any such delay entitle the Customer to refuse to accept the performance of the Works or to repudiate a Contract.
6.3 The Company shall have the right to employ any subcontractors of the Company’s own choosing to carry out any Works on its behalf at the Company’s sole discretion.
6.4 Where the Company is supplying Goods and also the Works, then the same may take place separately and, if applicable, on a piecemeal basis.
7.1 In consideration of the supply of any Goods and/or Works, the customer shall pay the Company the Contract Price.
7.2 Should the Company be prevented from adhering to any delivery date (whether for the supply of Goods and/or carrying out of Works) by the Customers postponement or delay (howsoever arising) then the Company shall be entitled to increase the Contract.
7.3 All prices quoted and the contract Price are in pounds sterling (unless otherwise requested by the Customer and agreed by the Company) and are exclusive of value added tax, and where applicable, of any substitute taxes in the jurisdiction, levies, duties, import and export duties, fees, or charges whatsoever and howsoever payable, all of which shall be added to the Contract Price and shall be payable by the Customer in full and/or reimbursed to the Company as appropriate. The Customer shall at all times indemnity the Company against non payment of the same.
8.1 In consideration of the supply of any Goods and/or Works by the Company to the Customer, the Customer shall pay the Company the Contract Prices.
8.2 Unless otherwise agreed by the Company at the time of the Contract, payment for the Goods and/or the Works shall be due and paid at the time stipulated by the Company in the quotation or Order Acknowledgement (if different). In the event that no date is stipulated, then payment shall be due 30 days from the date of invoice.
8.3 Payment shall be made in the currency detailed in the quotation or Order Acknowledgement (if different).
8.4 In the event of any late payment whatsoever the Company shall be at liberty to change interest on a daily basis on any balance due at the rate of 6% over the Bank of England base rate, the interest being calculated from the date the payment falls due until the date of payment in full, plus interest.
8.5 The Customer shall reimburse the Company all costs and expenses (including, but not limited to, legal costs) incurred in the collection of any overdue amount.
8.6 If so requested, the Customer shall pay a deposit of such figure as may be required by the Company to cover any up front costs of a Contract upon the placing of an Order and before any Goods are supplied or Work commenced.
8.7 If so requested, the Customer shall be required to pay the full Contract Price upon the placing of an Order and before any Goods are supplied or Work commenced.
8.8 Invoices shall be raised by the Company upon delivery and/or commencement of any Works. In the event of piecemeal delivery, then the Company may (at the Company’s sole discretion) raise separate invoices as and when each separate delivery is effected.
8.9 In the event that the period of any Work shall take longer than estimated, the Company reserves the right to request an interim payment for Work done upon expiration of each and every 14 days period (at the Company’s sole discretion).
8.10 Payment shall be made in full and the Customer shall have no right of set-off.
9.1 The risk in all Goods shall pass to the Customer immediately upon delivery and the Customer shall take out and ensure appropriate insurance is in place accordingly.
10.1 Notwithstanding clause 9 above, the Company shall retain title and ownership in all Goods supplied until the Contract Price (plus any additions) and all other sums outstanding and owing by the Customer to the Company are paid in full (and whether under the same Contract or any other Contract between the parties).
10.2 Pending payment in full pursuant to clause 8 above, the following sub-clauses shall apply
(a) The Customer shall store all Goods separately and in such a way as they can be readily identifiable as belonging to and being the Goods of the Company.
(b) The Customer shall at the Customer’s own expense immediately return the Goods to the Company should the Company or its authorised representatives so request at any time after payment is due.
(c) In the event that any Goods shall be in any way mixed, compounded, or entwined with the property of a third party or parties then the product or products thereof shall be deemed to be held in common with such third party or parties.
(d) Without prejudice to clause 9 above, the Customer shall hold all Goods as the Company’s Trustee and Bailee and shall keep the Goods separate, securely stored in appropriate conditions, protected, insured, and marked and identified as being the company’s property.
(e) The Customer shall not sell, give away, or otherwise dispose of any Goods. In the event that the Customer shall do so (which for the avoidance of doubt is strictly forbidden until the price and all sums outstanding have been paid to the Company), then any monies received and the proceeds of sale, or disposal, including any cheque received or other payment shall be held on trust by the Customer for the Company and the Customer will forward the cheque or payment to the Company immediately. Pending the same, the Customer shall keep any monies received in a separate account so as to be identifiable as being the Company’s monies. In particular, but without prejudice to the foregoing, the Customer shall not pay the proceeds into any bank account which is overdrawn.
(f) The Company shall be entitled at any time following the date upon which payment is due and without additional notice to enter the Premises of the Customer or any third party where any Goods are situate or shall be stored and repossess the same accordingly. For the avoidance of doubt, the Customer irrevocably consents to allow the Company access onto their Premises for this purpose (or any other premises under the control or ownership of the Customer, or, in the event that the Goods shall be on premises outside the Customer’s control or ownership, the Customer warrants to use its best endeavours to facilitate across by the Company to such premises). The Customer shall reimburse the Company for all reasonable expenses and fees incurred (including, but not limited to, legal expenses) in so doing.
(g) The Company shall be entitled to maintain an action for the price of any Goods notwithstanding that title to the same shall not have passed to the Customer.
(h) The Customer will immediately notify the Company of any damage to any Goods and will hold any insurance monies received in trust for the Company absolutely. In the event that a claim is to be made under the Customer’s insurance, the Company may, at the Company’s sole discretion, conduct negotiations and effect a settlement with the insurers in place of the Customer. The Customer at all times irrevocably authorises the Company to collect any insurance monies from the insurers. The Company may apply any insurance money as the Company shall see fit.
11.1 At the time of delivery, the Customer shall note on the delivery documentation any defect or damage to Goods which is immediately evident and visible. Otherwise, and if not so evident, the Customer shall carefully examine all Goods following delivery and shall notify the Company in writing of any shortages or defects reasonably discoverable upon careful examination within 5 working days of delivery, commencing with the date of delivery, and/or completion of any Works as appropriate. In the absence of such notification, the Company excludes all liability in respect of any defects or shortages.
11.2 Any Goods which the Customer believes to be damaged or defective must be retained together with the packaging for inspection by or on behalf of the Company. The Company may at the Company’s sole discretion insist that the Goods are returned to the Company (at the Customer’s expense), such returns to be agreed in advance within the time period detailed in paragraph 11.1 above. In making any such return, the Customer shall ensure that the Customer obtains a Returns Number” from the Company and this Returns Number shall be clearly marked on the packaging.
11.3 In lieu of all warranties, conditions, or liabilities imposed by law, the Company’s sole liability in respect of any defect in or failure of any Goods supplied or Works undertaken or for any loss, injury, or damage attributable thereto is limited to making good by replacement or by repair of defects which under proper use appear therein and arise solely from defective design, workmanship, or faulty materials within a period of 12 months from the date of delivery or completion of the Works.
11.4 At no time shall the Company be liable for any defect in or failure of any Goods as a result of misuse by the Customer or any third party, due lack of care by the Customer, due lack of attention by the Customer, lack of general maintenance by the Customer, or faulty installation where the installation has not been carried out by the Company..
11.5 In the event that any damage is found not to have been as a result of any defect or is a result of neglect or misuse, due to lack of care or attention, then the Company shall be at liberty to charge the Customer for any time incurred in dealing with the matter.
12.1 The Company shall only be liable as stated in clause 11 above. This clause is in lieu of all conditions, warranties, and statements of whatever nature in respect of any Contract whether express or implied by statute, trade, customer, or otherwise, and any such condition, warranty or statement is hereby excluded.
12.2 The Customer accepts responsibility for insuring the Premises and any Goods at the Premises and the Company accepts no liability whatsoever in respect of any loss or damage to the Premises or of any Goods at the Premises whether during the period of the Carrying out of any Works or otherwise.
12.3 Without prejudice to the foregoing clauses, the Company’s liability for any loss or damage sustained by the Customer as a direct result of any breach of any contract or any liability of the Company (including negligence) in respect of the performance of any Contract shall be limited to payment of damages not exceeding the invoice value of the Contract.
12.4 The Company shall not be liable for the following loss or damage which may arise out of or in connection with any failure or defect of or in any part of any Goods supplied (including any delay in supplying or any failure to supply the Goods in accordance with any Contract or any quotation or at all). or their use by the Customer or howsoever caused (even if foreseeable or in the Company’s contemplation at the time of entering into any Contract):-
(a) Loss of profit or profits, business, or revenue whether sustained by the Customer or any third party, and/or
(b) Special, indirect, or consequential loss or damage whether sustained by the Customer or any third party, including, but not limited to, loss of profit, loss of interest, loss of contract, loss of chance, damage to the property of the Customer or anyone else, and/or
(c) Any loss arising from any claim made against the Customer by any person, and/or
(d) Any personal injury to the Customer or any other person or individual where such injuries are not caused by the Company’s negligence.
12.5 The Customer shall indemnify the Company against all claims, actions, costs, expenses (including any Court costs and legal fees incurred) or other liabilities whatsoever. Non exhaustive illustrations of the same include:-
(a) Any liability arising under the Consumer Protection Act 1987, unless caused by the negligent act or omission of the Company in the manufacture and/or supply of any Goods, and/or
(b) Any claim for breach of intellectual property rights arising out of the compliance with any drawings, designs, specifications, requirements or Order of the Customer, and/or
(c) Any breach of contract or negligent or willful act or omission of the Customer in relation to any Contract.
12.6 The Company shall not be liable for any defects in any Goods or Works arising directly or indirectly from compliance with any drawings, designs, specifications, or Order of the Customer, the Customer’s architects, designers, builders, surveyors, or any other adviser or agent or third party appointed by or upon the Customer’s behalf.
12.7 These conditions do not purport to exclude nor restrict any liability for death or personal injury which is expressly prohibited by the Unfair Contract Terms Act 1977 nor the Company’s liability for fraud or fraudulent misrepresentation.
13.1 The Company shall be entitled, without liability on its part and without prejudice to its other rights, to terminate any contract or an unfulfilled part thereof, or, at its option, to suspend or give partial performance under any Contract if performance by the Company or its suppliers is prevented, hindered, or delayed whether directly or indirectly by any reason or any cause whatsoever beyond the Company’s or its supplier’s reasonable control, and whether or not such cause existed on the date when the Contract was made. Non exhaustive illustrations include; an act of God, war, riot, explosion, terrorism, abnormal weather conditions, fire, flood, government action, strike, or shortage of materials.
14.1 The Customer shall, at the Customer’s sole expense, provide by any proposed date given for commencement of any Works (and thereafter maintain throughout the period of the Works) adequate electricity power together with suitable environmental conditions to enable the Company to properly complete any Works.
14.2 The Company cannot guarantee to avoid causing superficial damage to decor in the immediate vicinity of any Works, and repair of any such damage or replacement of such items shall at all times be the sole responsibility of the Customer.
14.3 Whilst the Company shall make good any damage to the Premises or other belongings of the Customer where the same has been caused by the Company’s negligence, in the event that such damage to the Premises is as a result of any inherent defect in the Premises, its construction or make-up, the Company shall not be liable for any repair nor mend of the same, although the Company may at the Company’s sole and absolute discretion agree to do so if instructed by the Customer, upon receipt of payment for the same. In such instance, such increase in payment shall constitute an amendment to any Contract and an increase in the Contract Price.
15.1 The Company shall have and shall retain the Property, copyright, and all other intellectual property rights in all drawings, designs, plans, proofs, models, prototypes, specifications, and quotations prepared by the Company.
15.2 In the event that the Customer shall submit drawings, designs, plans, proofs, specifications to the Company the Customer warrants that the use or performance of such will not infringe any patent, trade mark, copyright, registered or unregistered design, or other industrial or intellectual property rights of any third party.
15.3 The Customer shall indemnify the Company from all actions, costs, claims, demands, expenses and liabilities whatsoever arising from any actual or alleged infringement brought in connection with clauses 15.1 and 15.2 and at the Customer’s own expense will defend, or at the Company’s option, assist in the defence of any proceedings, which may be brought in that connection, provided that the Company shall be under no liability in respect of any infringement as aforesaid occasioned by use of a design or specification supplied to the Customer by the Company.
16.1 In the event of any payment due by the Customer to the Company not being paid on the due date, or in the event of the Customer becoming insolvent or bankrupt or a petition being presented or a resolution being passed for the liquidation or sequestration of the Customer or a receiver, administrator, administrative receiver, or judicial factor being appointed over all or any of the assets of the Customer or if any steps are taken in relation to any of the foregoing (and, in each case, equivalent steps to the same being taken in the relevant jurisdiction) or the Customer making any voluntary arrangements with its creditors generally, or if the Customer shall cease or threaten to cease trading or carrying on business, or if the Company reasonably believes that any of the foregoing events is about to occur (and notifies the Customer accordingly) the Customer shall be entitled to treat any Contract between the Company and the Customer as repudiated and shall be entitled to suspend deliveries and/or Works to or on behalf of the Customer on giving written notice thereof to the Customer and without being liable for any form of loss.
17.1 Either party shall be entitled to terminate any Contract (without prejudice to any other rights in respect of breaches of the terms of the Contract by the other) with immediate effect in the event of any fundamental breach by the other of these terms and conditions, save that in the event of such a breach being remedial, then notice may be given to the defaulting party at the other party’s sole discretion to rectify and remedy any breach within 14 days of such notice. Notice shall at all times be at the non defaulting party’s sole discretion and shall not be compulsory. In the event that such a breach is not subsequently remedied by the defaulting party then any contractual agreement to which the breach relates shall terminate with immediate effect.
18.1 In entering into a Contract with the Company, the Customer confirms that they have not relied upon any warranty, representation, or undertaking of or on behalf of the Company save for any representation or warranty or undertaking expressly set out in the body of these terms and conditions or in any quotation or Order Acknowledgement.
19.1 At all times it is the sole responsibility of the Customer to ensure that any Goods or Works shall comply with all appropriate laws, codes of conduct, guidelines, and legislation of any kind (whether in England and Wales or in the relevant jurisdiction). The Company shall not at any time be liable in any way shape or form for any information or suggestion provided by the Company (or its employees or agents) to the Customer in relation to the same. In entering into any Contract, the Customer warrants it has ascertained and verified compliance with all such matters with any appropriate third party. This shall include (the list being indicative only and non exhaustive) compliance with building regulations, health and safety guidelines and legislation, fire regulations, planning regulations and disability access requirements as may apply to the location of the Premises and their relevant jurisdiction and/or any other location at which the Goods shall or may be stored or used.
19.2 The Customer warrants that it has ascertained that any Goods ordered from the Company or Works to be supplied by the Company are suitable and appropriate for the Customer’s requirements. The Company shall not at any time be liable for any information or suggestion provided by the Company (or its employees or agents) in relation to the use of any Goods, capabilities of any Goods, or as to whether or not any Goods or Works carried out shall be suitable for the Customer’s requirements and/or compatible with any of the Customer’s pre-existing Goods.
19.3 The Customer warrants that it will store any Goods provided by the Company in an appropriate manner and in accordance with industry standards. It is the responsibility of the Customer to obtain the correct storage information. The Customer accepts that the Company cannot be held liable for any damage caused to any Goods that are not stored in this manner.
19.4 The Customer warrants that it will maintain any Goods installed or Work carried out by the Company in an appropriate manner and in accordance with industry standards. It is the responsibility of the Customer to obtain the correct maintenance information. The Customer accepts that the Company cannot be held liable for any damage caused to any Works that are not maintained in this manner.
20.1 The Customer may not cancel any Contract unless the Company agrees it in writing and then only upon the terms of the Customer shall indemnity the Company in full against all loss (including loss of profit, costs including the cost of all labour, materials, administration costs, and services used), charges and expenses incurred by the Company as a direct result of the cancellation.