1. Definitions and Interpretation
2. In these Conditions, the following definitions apply:
3. Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
4. Conditions: these conditions as amended from time to time together with any special terms agreed in writing between the Customer and ESL;
5. Contract: the contract between ESL and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
6. Customer: the person or firm who purchases the Goods from ESL, whether or not the person or firm is acting as an intermediary or is the end-user of the Goods;
7. ESL: Eze Shoring (Halifax) Limited (a company registered in England and Wales with company number 10111451) whose registered address is c/o Virtuoso Legal Ltd, 5 Sheepscar Court, Northside Business Park, Leeds, LS7 2BB;
8. Force Majeure : an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving ESL or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
9. Goods: the goods (or any part of them) set out in the Order;
10. Insolvency Event: means (a) the other party (being a company or limited liability partnership) (i) has entered liquidation; (ii) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (iii) proposes to make any arrangements with its creditors or goes into liquidation; or (iv) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events; or (b) the other party (being an individual) (i) is deemed either unable to pay its debts or has no reasonable prospect of doing so, within the meaning of section 268 of the Insolvency Act 1986; or (ii) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
11. Intellectual Property Rights: any current and future intellectual property rights and interests including patents, utility models, designs, design rights, copyright (including rights in software), decryption rights, database rights, trade marks, rights pursuant to passing off, service marks, business and trade names, domain names, know-how, topography rights, inventions, rights in confidential information (including technical and commercial trade secrets) and image rights, and rights of similar or corresponding character in any part of the world, in each case whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world;
12. Order: the Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of ESL’s quotation, and/or overleaf;
13. Premises: Lumbrook Mills, Westercroft Lane, Halifax, West Yorkshire, HX3 7TY;
14. Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and ESL; and
15. Temporary Works Designs: the temporary works design document applicable to the Goods, which sets out the instructions for use and maintenance of the Goods only. All actual designs shall be provided by the end user who MUST seek deigns from a temporary works engineer in accordance with the current ground conditions.
16. In these Conditions, unless the context otherwise requires:
17. 1.1.1 A reference to the Contract includes these Conditions, the Order and their respective schedules, appendixes and annexes (if any).1.1.2 A reference to a ‘party’ means either ESL or the Customer and includes that party’s personal representatives, successors and permitted assigns.
18. 1.1.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
19. 1.1.4 Any phrase including the terms “including”, “include”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
20. 1.1.5 Any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions.
21. Basis of Contract
22. These Conditions apply to the Contract to the exclusion of any other terms the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. These Conditions shall apply to any repaired or replacement Goods supplied by ESL.
23. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions and shall only be deemed to be accepted by ESL when ESL issues a written acceptance of the Order (“Order Confirmation”), at which point the Contract shall come into existence.
24. The Customer must ensure that the terms of the Order submitted by it are complete and accurate and that the Order is accompanied by all relevant information required for ESL to supply the Goods. It is the Customer’s responsibility to ensure that the Goods ordered satisfy the Customer’s requirement in terms of sizing and specification and ESL shall have no liability in this respect or for any Goods manufactured or supplied as a result of incorrect information provided by the Customer.
25. Any samples, drawings, descriptive matter or advertising produced by ESL and any descriptions or illustrations contained in ESL’s brochures or the website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract.
26. A quotation given by ESL does not constitute an offer. A quotation is valid for a maximum period of 30 Business Days from its date of issue although may be withdrawn by ESL at any time without notice.
27. The Customer will only be entitled to cancel or change an Order (including in respect of materials, design, quantities or delivery terms) that has been accepted by ESL if it receives written acceptance of such cancellation or change from ESL. ESL shall be entitled to recover in full from the Customer any losses or expenses incurred by ESL as a result of such cancellation or change.
29. The Goods are described on ESL’s website from time to time as amended by any applicable Specification.
30. The Customer shall indemnify ESL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by ESL in connection with any claim made against ESL for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with ESL’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
31. ESL reserves the right to amend the Specification if required by any applicable or regulatory requirements.
32. The Customer will bear responsibility for sourcing all relevant Temporary Works Designs, including the payment of all associated costs. ESLmay arrange for the Temporary Works Designs to be supplied to the Customer using the relevant ESL app or website
33. The Customer must always adhere to the Temporary Works Designs complied by a qualified temporary works engineer when using, installing and/or assembling the Goods and where the Customer is not the end user it must ensure that any end user is made aware of the Temporary Works Designs and the requirements to strictly follow the same. ESL accepts no liability if the Customer or end user is not experienced, competent and/or knowledgeable of trench shoring or similar processes or if the Customer or end user fails to follow the Temporary Works Designs.
35. ESL shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
36. Delivery of the Goods shall be Ex-Works (Premises) unless otherwise agreed between the parties.
37. The Customer shall collect the Goods from the Premises or such other location as may be advised by ESL prior to delivery within 3 Business Days of ESL notifying the Customer that the Goods are ready.
38. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. ESL shall not be liable for any failure or delay in delivery of the Goods that is caused by Force Majeure or the Customer’s failure to provide ESL with adequate instructions that are relevant to the supply of the Goods.
39. If ESL fails to deliver the Goods, ESL shall, at its option, either:
40. provide the Goods within a reasonable time; or
41. issue a credit note at the pro rata contract rate against any invoice raised for the Goods which have not been delivered.
42. Except as provided in clause 4.5, ESL shall have no liability to the Customer in respect of ESL’s failure to deliver the Goods.
43. If the Customer fails to collect the Goods within 3 Business Days of ESL notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by an event beyond ESL’s control or ESL’s failure to comply with its obligations under the Contract:
44. delivery of the Goods shall be deemed to have been completed at 9:00 am on the Business Day following the day on which ESL made the Goods available for collection; and
45. ESL shall store the Goods at the Customer’s risk until the Goods are collected by the Customer and charge the Customer for all related costs and expenses (including insurance).
46. The Customer shall examine the Goods on delivery and notify ESL of any damage within 3 Business Days of delivery.
47. If the Customer has not received the quantity of Goods ordered it shall notify ESL of the discrepancy within 3 Business Days of delivery.
48. Quality of Goods
49. ESL warrants that on delivery and for 3 months after delivery, the Goods shall:
50. conform in all material respects with their description;
51. be free from material defects in design, material and workmanship; and
52. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
53. Subject to clause 5.3, if:
54. the Customer gives notice in writing within 3 Business Days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
55. ESL is given a reasonable opportunity of examining such Goods,
56. ESL shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Customer shall be responsible for the costs incurred in returning the defective Goods.
57. ESL shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
58. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
59. the defect arises because the Customer failed to follow ESL’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods, or because the Customer or end user failed to follow the Temporary Works Designs;
60. the defect arises as a result of ESL following any drawing, design or Specification supplied by the Customer, or any incorrect information supplied with the Order pursuant to clause 2.3;
61. the Customer alters or repair such Goods without ESL’s written consent;
62. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
63. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
64. Except as provided in this clause 5, ESL shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
65. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
67. Title to the Goods shall not pass to the Customer until the earlier of:
68. ESL receives payment in full (in cash or cleared funds) for the Goods; or
69. The Customer resells the Goods, in which case title to the Goods shall pass at the time specified in clause 6.3.2.
70. Until title to the Goods has passed to the Customer, the Customer shall:
71. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ESL's property;
72. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
73. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ESL's behalf from the date of delivery;
74. notify ESL immediately if it becomes subject to an Insolvency Event; and
75. give ESL such information relating to the Goods as ESL may require from time to time.
76. Subject to clause 6.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before ESL receives payment for the Goods. However, if the Customer resells the Goods before that time:
77. it does so as principal and not as ESL’s agent; and
78. title to the Goods shall pass from ESL to the Customer immediately before the time at which resale by the Customer occurs.
79. If before title passes to the Customer, the Customer becomes subject to an Insolvency Event then, without limiting any other right or remedy ESL may have:
80. the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
81. ESL may at any time:
82. require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
83. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
84. Price and Payment
85. The price of the Goods shall be the price set out in the Order.
86. ESL may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
87. any factor beyond ESL’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in labour, materials and other manufacturing costs);
88. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
89. any delay caused by any instructions of the Customer or failure of the Customer to give ESL adequate or accurate information or instructions.
90. The price of the Goods:
91. excludes amounts in respect of VAT, which the Customer shall pay to ESL at the rate prescribed by law; and
92. excludes the costs and charges of transport of the Goods which shall be payable in addition and in the amount set out in the Order.
93. ESL may invoice the Customer for the Goods upon acceptance of the Order pursuant to clause 2.2.
94. The Customer shall pay the invoice in full and cleared funds within the timescale agreed with the Customer. Payment shall be made to the bank account nominated in writing by ESL. Time for payment shall be of the essence.
95. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding.
96. Intellectual Property
97. All Intellectual Property Rights belonging to a party will remain vested in that party.
98. All Intellectual Property Rights arising out of or in connection with the Goods and the Temporary Works Designs will be and remain vested in ESL.
100. Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if the other party:
101. commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; or
102. is unable to pay its debts and/or suffers an Insolvency Event.
103. Without limiting its other rights or remedies, ESL may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
104. On termination of the Contract for any reason the Customer shall immediately pay to ESL all of ESL’s unpaid invoices and interest and for any Goods provided for which no invoice has been raised, ESL shall invoice the Customer and the invoice shall be payable immediately on receipt.
105. Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
106. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
107. Limitation of Liability
108. Nothing in these Conditions shall limit or exclude ESL’s liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) any other matter which cannot be limited or excluded by law.
109. Subject to clause 10.1, ESL shall under no circumstances be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contract, or any indirect or consequential loss arising under or in connection with the Contract.
110. Subject to clause 10.1, ESL’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed a sum equal to the price paid for the Goods which give rise to the liability.
112. Force Majeure. A party shall not be liable if delayed or prevented from performing its obligations due to Force Majeure, provided that it:
113. promptly notifies the other party of the Force Majeure event and its expected duration; and
114. uses best endeavours to minimise the effects of that event.
115. If, due to Force Majeure, a party:
116. is or shall be unable to perform a material obligation; or
117. is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or a total of more than 30 days in any consecutive period of 60 days;
118. The parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.
120. Notices. Notices required to be given under this Contract shall not be sent by email. Notices shall be deemed to have been duly received:
121. if delivered personally, when left at the registered address of the relevant party or otherwise the address notified by the recipient to the other party in writing; or
122. if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day (excluding weekends and public holidays) after posting; or
123. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
124. Anti-Bribery and Modern Slavery Each party shall comply with the Bribery Act 2010 and the Modern Slavery Act 2015 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010 or the Modern Slavery Act 2015.
125. Assignment and Transfer. The Customer may not assign, delegate, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under this Contract without the prior written consent of ESL.
126. Further Assurance. At any time, each party shall sign all documents and do or cause to be done all further acts and things as that party so requiring may reasonably require to give full effect to the terms of this agreement.
127. Entire Agreement. This agreement (and the documents referred to within it) contains all the terms which the parties have agreed with respect to its subject matter and supersedes all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to enter into this agreement by a statement or promise which it does not contain or is not contained in a document referenced within it. All warranties, conditions and other terms (whether express or implied) that are not set out in this agreement are (to the fullest extent permitted by law) excluded from this agreement.
128. Conflicts within contract If there is a conflict between the terms contained in these Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions and the schedule shall prevail.
129. Third Party Rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999 no person who is not a party to this Contract shall have any right to enjoy the benefit or enforce any of the terms of this Contract.
130. Variation. No variation of this Contract shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
131. Waiver. Failure to exercise (or to fully exercise), or any delay in exercising, any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy under this agreement or by law.
132. Severability. If any provision of this Contract is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from this Contract in so far as this agreement relates to that jurisdiction and the validity and enforceability of that provision in other jurisdictions and the other provisions of this agreement shall not be affected or impaired.
133. Governing law The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
134. Jurisdiction The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).