Trading Ts & Cs
Last Updated: November 2016
1. TERMS AND TERMS OF PURCHASE (“TERMS”)
In these Terms the following definitions shall have the following meanings:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Customer: Just Racing Services Limited (registered in England and Wales with company number 09413693.)
Deliverables: all documents, services, 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 or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Delivery date: the date specified in the Order, or, if none is specified, within 5 days of the date of the Order.
Delivery Location: the address for delivery of Goods as set out in the Order.
Intellectual Property Rights: all intellectual property and industrial property rights, including without limitation, patents, trade marks, copyright and neighbouring and related rights (whether in drawings, plans, specifications, designs, computer software, film, footage, stills, moving images, GIFs, script, broadcast or otherwise), rights in designs, rights in passing off, goodwill, rights in get-up, rights to inventions, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) semiconductor topography rights, database rights 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 will subsist now or in the future in any part of the world.
Goods: all and any goods, parts, products, materials, designs, supplies or other items, (including any such storage material where the Goods are embodied in or on any computer disc, magnetic tape, video tape, live media or photograph) as set out in the Order.
Order: the Customer's order for the Goods and/or Services, as set out in the Customer's purchase order form.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.
Specification: any specification for the Goods, including any related plans and drawings that is agreed in writing by the Customer and the Supplier.
Supplier: the person or firm from whom the Customer purchases the Goods.
2. BASIS OF CONTRACT
These Terms apply to the Order 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 and shall apply to any subsequent placed or varied order or Order including those made verbally even where no specific reference is made to these Terms. The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Terms. The Order shall be deemed to be accepted on the earlier of:
(i) the Supplier issuing written acceptance of the Order; or
(ii) any act by the Supplier consistent with fulfilling the Order.
3. THE GOODS
3.1 The Supplier warrants that the Goods shall:
(a) correspond with their description, sample and/or any applicable Specification;
(b) be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier's skill
(c) comply with any standard of performance and requirements as to the development or testing as imposed and specified by the Customer, and be free from defects in design, material and workmanship;
(d) be free from any restrictions as to use and adaptation by the Customer in connection with its business (which includes without limitation, designing, manufacturing and racing of motor cars and all associated elements) without infringing any third party rights, breaching any regulation, restriction, order or other provision; and
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, design, material, labelling, packaging, storage, handling, safety and delivery of the Goods (including without limitation all Federation Internationale De l’Automobile regulations and those of other bodies governing the construction of Formula 1 and other racing cars) as in force at the time of supply of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Order and any contract governing the Order.
3.3 The Customer may inspect and test the Goods at any time before delivery at the Supplier’s expense. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 0, the Customer shall inform the Supplier and the Supplier shall, at its cost, immediately take such remedial action as is necessary to ensure compliance. If the Supplier fails to take such steps and comply with the Order, the Customer may at its sole option without prejudice to any other right or remedy it may have, rescind the Order and any contract governing the Order.
3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.6 The Supplier warrants that it is the owner of all Intellectual Property Rights in any drawing, design, artwork or other work comprising, forming part of, or produced in connection with the Goods that are not Customer Materials.
4. SUPPLY OF SERVICES
4.1 This clause sets out the principal obligations of the supplier for the services.
4.2 The Supplier shall from the date set out in the Order and for the duration of the contract provide the Services to the Customer in accordance with the terms of the Order (and any contract governing the Order).
4.3 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Customer.
4.4 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
(c) 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 Order;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) 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;
(g) obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises; and
(i) not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services
5.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable
them to reach their destination in good condition;
(b) 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
(c) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
5.2 The Supplier shall deliver the Goods (a) on the Delivery Date; (b) at the Delivery Location; and (c) during the Customer's normal business hours, or as instructed by the Customer.
5.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
5.4 The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.
6.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 0, or the Supplier fails to performs the Services by the applicable date, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following remedies :
(a) to terminate the Order (or the contract governing the Order);
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense
(c) to require the Supplier to repair or replace the rejected Goods and/or undertake remedial services, or to provide a full refund of the price of the rejected Goods and/or Services not provided (if paid);
(d) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Order (or any contract governing the Order).
6.2 If the Goods are not delivered on the Delivery Date the Customer may at its option claim or deduct 3% of the price of the Goods for each week's delay in delivery by way of liquidated damages, up to a maximum of 15% of the total price of the Goods. If the Customer exercises its rights under this clause 6.2, it shall not be entitled to any of the remedies set out in clause 0 in respect of the Goods' late delivery (but such remedies shall be available in respect of the Goods' condition).
6.3 These Terms shall apply to any repaired or replacement Goods supplied by the Supplier.
6.4 The Customer's rights and remedies under these Terms are in addition to its rights and remedies implied by statute and common law.
Risk in the Goods shall pass to the Customer on completion of delivery and is signed for by an authorised representative of the Customer.
8.1 Title in the Goods shall pass to the Customer immediately in the case of existing Goods or, in the case of Goods to be created, at the commencement of creation. The Supplier shall, once property in the Goods has passed to the Customer, comply with and procure that any necessary third parties comply with any written request by the Customer and give the Customer physical possession of the Goods.
8.2 The Supplier shall once property in the Goods has passed to the Customer, comply with and procure that any necessary third parties comply with any written request by the Customer and immediately give the Customer physical possession of the Goods (or part thereof, whether partially complete or in prototype phase) and any associated tooling and components at any time whether during the term of the Order or otherwise.
8.3 During the term and after termination of the Order (or any contract governing the Order) howsoever caused, the Supplier shall:
(a) store the Goods, Customer Materials and free issue materials separately from all other goods, products, components and materials owned or held by the Supplier so that they remain readily identifiable as the Customer’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods (or any part thereof), free issue materials or Customer Materials;
(c) maintain the Goods (or any part thereof), Customer Materials and free issue materials in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Customer immediately if it becomes subject to any of the events listed in clause 15.2; and
(e) give the Customer such information relating to the Goods (or part thereof), Customer Materials and free issue materials as the Customer may require from time to time.
8.4 If the Supplier becomes subject to any of the events listed in clause 15.2 (or in the opinion of the Customer is likely to become subject to any of the events listed in clause 15.2) or the Customer terminates the Order (or contract governing the Order) in whole or in part at any time before delivery, without limiting any other right or remedy the Customer may have the Customer may at any time:
(a) require the Supplier to deliver up all Goods (or any part thereof) or partially completed Goods and any associated tooling or components, the Customer Materials, free issue materials and any other materials belonging to the Customer in the Supplier’s possession in whatever stage of manufacture in its possession, custody or control; and
(b) if the Supplier fails to do so forthwith, enter any premises of the Supplier or of any third party where the Goods (or part thereof), free issue materials, tooling and components and Customer Materials are stored in order to recover them.
9. PRICE AND PAYMENT
9.1 The price of the Goods/Services shall be the price set out in the Order (and in relation to the performance of the Services, represents the full and exclusive remuneration of the Supplier) and is inclusive of all customs and excise and other import duties, any applicable taxes (other than VAT),
duties or levies whatsoever, insurance, packing, carriage, dispatch and overtime and no extras shall be effective unless agreed in writing with the Customer. Pricing of work by the Supplier shall be no higher than the Supplier’s standard basis of pricing at the time the order is placed.
9.2 The price of the Goods/Services excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
9.3 The Customer shall pay correctly rendered invoices within 30 days on the last day of the month following invoicing. Payment shall be made to the bank account nominated in writing by the Supplier.
9.4 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier. 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.
10. CUSTOMER MATERIALS
10.1 The Supplier acknowledges that all materials, equipment and tools, drawings, concept work, Specifications, deliverables, data and any other such items supplied by the Customer to the Supplier (Customer Materials) and all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to the Customer, and not dispose or use the same other than in accordance with the Customer's written instructions or authorisation.
10.2 Where the Goods and/or Services or any part of them, are designed and/or provided exclusively for the Customer or are ordered by the Customer on that understanding, the Supplier hereby assigns absolutely with full title guarantee to the Customer all rights, title and interest in and to the Intellectual Property Rights in the Goods and/or products of the Services (or part thereof) and all intermediate, preparatory, concept work, deliverables, specifications and other such physical items used in the creation and production of the Goods and/or Services and shall obtain all unconditional and irrevocable waivers of moral rights and
consents required to the ensure the uninterrupted and free use by the Customer of the Goods and/or products of the Services (or part thereof) and to allow the Customer’s title to the Intellectual Property Rights to be perfected as full unencumbered owner. The Supplier warrants that there are no residual rights in, it has not previously assigned, licensed, mortgaged, charged or otherwise dealt in the rights hereby granted and that it will make no use whatsoever of the Goods/Services or any part of them (as appropriate) or any preparatory material or storage material produced by the Supplier pursuant to this Order.
10.3 Where the Goods/Services or any part of them has been ordered by the Customer and are not designed exclusively for the Customer, the Supplier shall grant to the Customer a perpetual, irrevocable and royalty-free licence to use, adapt, alter and amend the Goods and/or Deliverables or any part thereof in any form and in any media. The Supplier hereby acknowledges that it has no right, title or interest in and shall not be entitled to any payments in respect of any use, development, enhancement or amendment of the Goods/Deliverables or any part by the Customer.
10.4 The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products and Deliverables of the Services.
10.5 The Supplier will at the Customer’s request and expense do and execute or procure the execution of all such documents and things which may be necessary to assign to or vest in or to procure the assignment or vesting in the Customer of the Intellectual Property Rights in the Goods/ products of the Services.
10.6 Where the Customer issues free materials (to include without limitation, data, parts, items, equipment, tools, composites and components) to the Supplier in order for it to complete the Order, the Supplier will record usage, stock levels, inventory and other detailed information as the Customer may request and supply this information, as and when requested by Customer.
The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
(a) 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 supply or use of the Goods (or part thereof) or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) 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 defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the 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.
This clause 11 shall survive termination of the Contract.
During the term of the Order (and any contract that governs the Order) and for a period of 2 years thereafter, the Supplier shall 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 Order and any contract governing 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.
Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, data, ideas, its engagement by the Customer, and/or initiatives acquired by the Customer and/or the Goods and/or developed by the Supplier in connection with the Supply of the Goods/Services which are of a confidential nature (whether or not marked confidential) and have been disclosed to the Supplier by the Customer, its employees, agents or subcontractors, and any other confidential information concerning the Customer’s business, its products and services which the Supplier may obtain. The Supplier shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Order, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Order. The Supplier may also disclose such of the Customer’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
This clause 13 shall survive termination of the Order (or any contract governing the Order).
The Supplier acknowledges that it may be required by the Customer to allow its employees, consultants, contractors, officers and premises to be photographed and interviewed for publicity purposes and any other promotional, advertising or public relations activity for the benefit of the Customer and/or any sponsor of the Customer and accordingly the Supplier hereby consents to agree and cooperate with regard the use of its name and the names and likeness of any of its employees, consultants, officers, contractors and the image of its premises for such purpose in any medium and form whatsoever. The Customer shall be permitted to continue use of such material and advertising after termination of the Order or any contract governing the Order.
15.1 The Customer may terminate the Order (or contract governing the Order) in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Order (or contract governing the Order). The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
15.2 Without limiting its other rights or remedies, the Customer may terminate the Order (or contract governing the Order) with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material breach of any term of the Order (or contract governing the Order) and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Supplier takes or threatens to take any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Supplier takes or threatens to take any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(e) the Supplier's financial position deteriorates to such an extent that in the Customer's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(f) any of the Supplier’s key personnel involved in the supply of the Goods leave employment with the Supplier or become ill.
15.3 In any of the circumstances in these Terms in which a party may terminate the Order (or contract governing the Order) where both Goods and Services are supplied, that party may terminate the Order in respect of the Goods, or in respect of the Services, and the Order shall continue in respect of the remaining supply.
15.4 Termination of the Order (or contract governing this Order), however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. On termination, for whatever reason, the Supplier shall pay forthwith all amounts outstanding to the Customer.
15.5 Clauses that expressly or by implication survive termination of the Order (or contract governing this Order) shall continue in full force and effect.
Assignment and other dealings
The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract. The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Order (and any contract governing the Order) without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
Time of the Essence. Time shall be of the essence in the performance of Supplier’s obligations under this Order (and any contract governing the Order)
Entire agreement. This Order (and any contract governing the Order) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Variation. No variation of the Order (or any contract governing the Order) including the introduction of any additional or amendment terms and Terms, shall be effective unless it is agreed in writing and signed by the Customer. These Terms shall prevail over any terms and conditions or similar provisions contained or referred to in any correspondence.
Waiver. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Order (or contract governing the Order) is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Order (or contract governing the Order).
Notices. (a) Any notice or other communication given to a party under or in connection with the Order (or contract governing the Order) shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email; (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 0; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission; (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Third party rights. No one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms.
Governing law. 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 the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).