Updated: 01 August 2023
1. Definitions
1.1. The following definitions apply in these Conditions:
Company
Means Red One Limited, company number 07379630, whose registered address is: Devon Transport Centre, Red One Offices, Westpoint, Clyst St Mary, Exeter, EX5 1DJ.
Conditions
The clauses, terms and conditions as provided herein.
Contract
Any contract between the Company and the Customer for the sale and supply of Goods and/or Services, made up of the Contract Documentation.
Contract Documentation
Means:
a) The Conditions; and
b) Any proposal/Quotation/estimate provided to the Customer by the Company;
Customer
Means the organisation or person who purchases Goods and/or Services from the Company;
Data Protection Legislation
Means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 (“GDPR”); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 (“DPA”) and (to the extent in force) the UK GDPR as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“UK GDPR”)); (iii) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); and (iv) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, as updated, amended or replaced from time to time;
Delivery Point
Means the place where delivery of the Goods and/or Services is to take place under clause 4;
Goods
Means any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or component of them);
Intellectual Property Rights
Means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world;
Party
Means either the Company or the Customer and ‘Parties’ shall be construed accordingly;
Price
Means the price payable for the relevant Goods and/or Services in accordance with clause 7;
Services
Means any chargeable service in the Contract to be supplied to the Customer by the Company;
Order
Means an order for Goods submitted by the Customer in accordance with clause 2;
Quotation
Means any statement of work, tender, quotation, price list or other similar document describing the Goods and/or Services to be provided by the Company;
VAT
Means value added tax chargeable under English law for the time being and any similar additional tax.
2. Interpretation of Contract
2.1. If any disputes between the parties relating to any ambiguity or discrepancy between the Contract Documentation arises, the order of priority of the Contract Documentation shall be:
2.1.1 any proposal/Quotation/estimate provided to the Customer by the Company; then
2.1.2 the Conditions; and then
2.1.3 the information document and joining instructions.
2.2. In the Conditions, unless the context otherwise requires:
2.2.1. the masculine includes the feminine and the neuter and vice versa; the singular includes the plural and vice versa;
2.2.2. headings are included for ease of reference only and shall not affect the interpretation or construction of the Contract;
2.2.3. references to Clauses are unless otherwise provided, references to Clauses and Appendices within the Contract Conditions;
2.2.4. “Act of Parliament” or any Order, Regulation, Statute, Statutory Instrument, Code of Practice, Byelaw, Directive or the like, whether detailed expressly or incorporated by general reference, shall be deemed to include a reference to any amendment, re-enactment or replacement of it;
2.2.5. a reference to writing or written includes emails; and
2.2.6. the words “includes” or “including” shall be constructed without limitation.
3. Conditions Applying
3.1. Each Order submitted by the Customer to the Company constitutes an offer by the Customer to purchase the Goods and/or Services subject to these Conditions, which the Company shall be free to accept or decline at its discretion. An acknowledgement or invoice of that Order by post or email shall constitute the acceptance of that offer.
3.2 Unless otherwise agreed in writing, these Conditions will govern the supply of all Goods and/or Services by the Company to the Customer. Any qualification or modification of these Conditions and any other conditions which the Customer may seek to impose shall not apply.
3.3. No order for Goods and/or Services may be cancelled by the Customer except with the written agreement of the Company and on terms that the Customer shall indemnify the Company against any loss, costs, charges and expenses incurred by the Company as a result of cancellation, which may include staff and equipment costs, to the extent it is not reasonably possible for the Company to redeploy staff and equipment to other customers.
3.4. Quotations issued to the Customer by the Company may be withdrawn or varied at any time, and unless otherwise specified shall be automatically withdrawn after 30 days. No binding contract shall arise until there is an Order.
3.5. The Company’s employees and agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Company in writing
3.6 The Contract shall commence on the date of the Company’s written acknowledgement of the Customer’s offer which accepts the Company’s proposal/Quotation/estimate and shall automatically expire upon the date of completion of the Services, subject to earlier termination in accordance with its terms (the “Term“).
4. Delivery
4.1. The Delivery Point for the supply of Goods shall be at the Company’s premises at Devon Transport Centre, Red One Offices, Westpoint, Clyst St Mary, Exeter, EX5 1DJ unless otherwise agreed in writing.
4.2. The Company shall endeavour to deliver the Goods at the Delivery Point on the date specified in the Order.
4.3. All dates given for the delivery of Goods or supply of Services are an estimate only. Time for delivery or supply shall not be of the essence of the contract and the Company shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods and/or supply of the services, howsoever caused. Notwithstanding this clause 4.3, the Company shall endeavour to notify the Customer upon despatching the Goods to the Delivery Point.
4.4. If the Company is unable to deliver the Goods to the Customer due to the acts or omissions of the Customer, or the Customer fails to take delivery of the Goods , the Company may, where applicable, arrange for storage of the Goods and at its option, insurance, either at the Company’s own premises or elsewhere and the Customer shall pay to the Company the charges and costs incurred by the Company for so doing, upon providing reasonably acceptable evidence of such costs. In such circumstances, for the purposes of clause 5 the Goods shall be deemed delivered by the Company.
5. Passing of Risk
5.1. Notwithstanding the provisions of clauses 4 hereof risk in the Goods passes to the Customer upon delivery of the Goods by the Company.
6. Loss or Damage Pre-Delivery or In Transit
6.1. Any loss or damage or shortage of Goods must be notified to the Company as soon as possible and in any event within 5 days of delivery.
6.2. Where the Customer considers the Goods are damaged, the Customer shall not dispose of the Goods and packaging without first permitting the Company access to the Goods and packaging for inspection.
7. Price and Payment
7.1. The Price quoted in the Quotation is open for acceptance for 5 days unless withdrawn by the Company in writing beforehand. If an Order is not received and accepted by the Company within the period stated, the Company reserves their right to review the Price in the Quotation.
7.2. All Prices quoted are exclusive of any VAT at the appropriate rate payable in respect to the supply of Goods and/or Services, any applicable charges as outlined in the Quotation and any other applicable taxes which will be charged in addition at the rate in force at the time the Customer is required to make payment. VAT and any applicable charges and other taxes shall be payable by the Customer.
7.3. Payment of the invoiced amounts shall be in the manner specified in the Quotation and shall be due and payable within 30 calendar days of the date of the invoice, and in any event prior to any Services being performed, unless otherwise agreed by the Parties in writing. The Company endeavours to raise invoices for Goods on delivery and invoices for Services on completion, unless otherwise agreed between the parties. Where deposit terms are agreed, payment of the deposit must be made when placing the Order.
7.4. If the Customer does not pay the whole of the invoice by the due date the Company shall be entitled to charge interest daily on any overdue amount, from the due date until the date of payment at the statutory rate.
7.5. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to receive payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied. The Customer’s non-issuance of a purchase order shall not prevent the Company validly raising the invoice.
7.6. So long as any payment is outstanding, the Company shall not be obliged to make good any deficiency under the terms of its warranties.
7.7. Cancellation of the Customer’s Order can only be accepted after prior negotiation and agreement between the Parties. If the Company agrees to accept cancellation, part cancellation or return of the Goods, a minimum charge of 20% plus VAT will be made.
7.8 The Company cannot accept liability for any importation taxes, sales taxes, with-holding taxes or any other charges that may be levied at delivery destinations outside of the UK.
8. Retention of Title
8.1. Notwithstanding the delivery of and the passing of risk in the Goods to the Customer, title in the Goods shall not pass to the Customer until the Customer has paid the Company all sums due under the Contract in full and cleared funds.
8.2. Until such time as title in the Goods passes to the Customer, the Customer shall hold such Goods as the Company’s fiduciary agent and bailee, and shall keep such Goods properly stored, protected and insured.
8.3. Until such time as title in the Goods passes to the Customer, the Company shall be entitled at any time to require the Customer to immediately deliver up such Goods to the Company and if the Customer fails to do so, the Company may enter any premises of the Customer or any third party where such Goods are stored and repossess such Goods.
8.4. The Customer may resell the Goods before title has passed to it (unless the Company revokes such entitlement in writing) provided that:
8.4.1. any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
8.4.2. the proceeds of any sale received by the Customer in respect of the Goods shall be held by the Customer as trustee for the Company and shall at all times be identifiable as, and available to the Company as, a fund from which the Customer’s liabilities to the Company, whether in respect of these Conditions or otherwise, can at the discretion of the Company be discharged.
8.5. Unless the Customer receives prior written consent from the Company, the Customer’s right to possession of and to resell the Goods shall terminate immediately if the Customer suffers any of the events specific in clauses 12.1.3 to 12.1.9.
8.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods, which remain the property of the Company.
9. Warranty
9.1. To the extent the Company itself manufactures the Goods, the Company warrants that on the date of delivery of the Goods the Goods free from material defects in design, and workmanship.. To the extent the Company is not the manufacturer of the Goods, the Company shall where practicable assign to the Customer all rights and/or benefits arising from all warranties given by any third party manufacturer in connection with the Goods supplied under the Contract, provided the Customer shall claim against such third party manufacturer in respect of any Good which does not conform to such warranty and the Company shall have no liability to the Customer in respect of any such claim.
9.2. The Company warrants that the Services performed under this Agreement shall be performed using reasonable skill and care
9.3 Except as expressly stated in these Terms and Conditions, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Company.
10. Indemnification
10.1. The Customer shall indemnify the Company against all claims, costs and expenses which the Company may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under these Conditions.
11. Limitation of Liability
11.1. All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from the Contract.
11.2. The Company shall not be liable for death or personal injury except to the extent caused by the Company’s negligence.
11.3. The Company shall not be liable for any damage to any personal or Customer belongings.
11.4. Except for any legal responsibility that we cannot exclude by law we will in no event be responsible for any loss of:
11.4.1. contracts;
11.4.2. opportunity;
11.4.3. business or goodwill;
11.4.4. profit; or
11.4.5. any indirect, consequential or special loss (unless the Customer is an individual consumer).
whatsoever arising under the Contact.
This shall apply even where such a loss was reasonably foreseeable or the Company had been made aware of the possibility of the Customer incurring such a loss.
11.4. Subject to clause 11.2 the Company’s total liability to the Customer in respect of all events arising under the Contract, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, arising out of or in connection with the Contract shall be limited to the price paid by the Customer under the Contract or £20,000 whichever is lower.
12. Termination
12.1. Either Party may terminate the Contract immediately upon notice in writing to the other if:
12.1.1 the other party commits a material breach of the Contract and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.1.2. the other party commits a material breach of the Contract which cannot be remedied under any circumstances;
12.1.3. the other party suspends, or threatens to suspend payment of its debts or is deemed unable to pay its debts within the meaning of section 123(1), Insolvency Act 1986; or
12.1.4. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
12.1.5. a petition is presented, or a resolution is passed, or an order is made, for the winding up, provisional winding up, or bankruptcy of the other party, other than for the sole purpose of a solvent amalgamation or solvent reconstruction of that other party; or
12.1.6. a receiver, administrative receiver, administrator, compulsory manager or any similar officer is appointed in respect of the other party or any of its assets, or any step is taken towards the appointment of any such officer; or
12.1.7. the other party commences negotiations in relation to, or enters into, any arrangement, compromise, assignment or composition with its creditors or any class of them (with or without first having sought or obtained a moratorium); or
12.1.8. enforcement of any security over any assets of the other party; or
12.1.9. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1.3-12.1.8 inclusive.
12.2. The Company shall be entitled to terminate the Contract immediately if the Customer fails to any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.
13. Consequences of termination
13.1. All rights and obligations of the Parties shall cease to have effect immediately on termination or expiry of the Contract except that termination shall not prejudice or affect:
13.1.1. the accrued rights and obligations of the parties at the date of termination;
13.1.2. the right to claim damages for losses whenever they occur provided they arise out of an event occurring on or before termination of the Contract; and
13.1.3. the continued existence and the validity of the rights and obligations of the parties under any clauses the survival of which is necessary for the interpretation or enforcement of the Contract.
13.2 On termination or expiry of the Contract:
13.2.1. the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Goods and/or Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and
13.2.2. the Parties shall return all or any Confidential Information in its possession relating to the other Party together with all copies thereof, or at the other Party’s option destroy all such Confidential Information by shredding or incineration of all documents and other material in its possession, custody or control and/or irretrievably deleting the same if stored on electronic or magnetic media and certifying to the other Party that this has been done.
14. Intellectual Property Rights and Confidentiality
14.1. As between the Company and the Customer, the Company owns the Intellectual Property Rights in the Goods. The Customer agrees that the Intellectual Property Rights in the Goods may not be reproduced or used in any way except with the prior written consent of the Company.
14.2. All Intellectual Property Rights produced from or arising as a result of the performance of the Contract shall, so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company, which may include executing agreements upon request by the Company.
14.3. Except with the consent of the disclosing party or as required by law, a court order or by any relevant regulatory or government authority or to the extent that information has come into the public domain through no fault of the receiving party, each party shall treat as strictly confidential all commercial and technical information relating to the other party received or obtained as a result of entering into or performing the Contract including information which relates to the provisions or subject matter of the Contract (“Confidential Information“). Each party may share the other party’s Confidential Information with its affiliates, consultants or employees to the extent necessary for provision or receipt of the Goods and/or Services.
15. Force Majeure
15.1. Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including industrial relations difficulties, strikes, lock-outs (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, riot, strikes, pandemics, accidents, civil commotion, malicious damage, fuel shortage, compliance with any law or government order, rule or regulation or direction, breakdown of equipment, fire, flood, storm or default by suppliers or subcontractors.
16. Independent Contractors
16.1. The Company and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Company may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Company of its obligations under this Agreement or any applicable Quotation.
17. Data Protection
17.1. Each Party shall comply with Data Protection Legislation in respect of any personal data processed under the Contract.
18. Assignment
18.1 The Customer shall not be entitled to assign or transfer its rights or obligations or delegate its duties under the Contract without the prior written consent of the Company.
18.2 The Company shall be entitled to assign, novate, subcontract or otherwise dispose of its rights and obligations under the Contract or any part thereof to any third party entity which will substantially perform any of the functions that had previously been performed by the Company provided that any such assignment, novation or other disposal shall not increase the burden of the Customer’s obligations under the Contract.
19. Severability
19.1. If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if the Contract had been agreed with the invalid illegal or unenforceable provision eliminated.
20. Waiver
20.1. Any failure or delay of the Company to enforce or to exercise, at any time for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect the Company’s right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege whatsoever.
21. Notice
21.1. Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall be deemed to be received on the same working day it was sent (or if sent on a day which is not a working day, the next working day), , if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
22. Entire Agreement
22.1. The Contract contains the entire agreement between the parties relating to the supply of Goods and Services and supersedes all prior agreements, representations, understandings or arrangements between the Parties (oral or written) in relation to such subject matter. Each party acknowledges that:
22.1.1. upon entering into the Contract, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to the Contract or not) except those expressly set out in the Contract; and
22.1.2. the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under the Contract.
22.2. Nothing in this clause 22 shall limit or exclude any liability for fraud.
23. The Contracts (Rights of Third Parties) Act 1999
23.1. Unless expressly provided in the Contract, no term of the Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
24. Right to Set Off
24.1. The Company reserves its right to set-off against its indebtedness to the Customer any debt owed to it by the Customer and any liability, damage, loss, costs, charges and expenses which it has incurred in consequence of any breach by the Customer of the Contract or any other contract with the Company. The Customer shall have no right to set-off any amounts under the Contract.
25. Governing Law and Jurisdiction
25.1 The Contract and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with the Contract, its subject matter or formation.