Terms & Conditions

TERMS & CONDITIONS

The Customer’s attention is particularly drawn to the provisions of clause 12 (Limitation of Liability).
If the Schedule applies, then the Contract shall include, and shall be subject to, the provisions in the Schedule annexed hereto.

1.    DEFINITIONS AND INTERPRETATION
1.1    The following definitions and rules of interpretation apply in these Conditions:    

Affected Party	has the meaning given to it in clause 16.2;
Bespoke Goods	means Goods which are made to the Customer’s specification and which are not “off-the-shelf”;
Business Day	means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Business Hours	means the period from 09:00 to 17:00 on any Business Day;
Cancellation Charges	has the meaning given to it in clause 14.2;
Charges	means the charges payable by the Customer for the supply of Goods and/or Services together with the Installation Price (if applicable) as set out in the Order Form;
Commencement Date	has the meaning given in clause 2.5;
Conditions	means these terms and conditions as amended from time to time in accordance with clause 20.1;
Confidential Information	means has the meaning given in clause 15.1;
Contract	means the contract between the Supplier and the Customer for the supply of Goods and/or Services and/or Installation Works in accordance with the Order Form, the Schedule (if applicable), and these Conditions;
Customer	as set out in the Order Form;
Customer Default	has the meaning given to it in clause 9.2;
Delivery Date	as set out in the Order Form (or such other date as the parties may agree in writing from time to time);
Delivery Location	as set out in the Order Form (or such other location as the parties may agree in writing from time to time);
Deposit	means the deposit payable by the Customer to the Supplier as set out in the Order Form;
Force Majeure Event	has the meaning given to it in clause 16;
Goods	means the goods (or any part of them) set out in the Order Form;
Installation Price	means the price payable for the Installation Works as set out in the Order Form (if applicable);
Installation Works	means the installation works as set out in the Order Form;
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 trade secrets), 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;
Order Form	means the order form as issued by the Supplier to the Customer in accordance with clause 2.5;
Services	means the services supplied by the Supplier to the Customer, as set out in the Order Form;
Services End Date	means the date on which the Supplier shall cease supplying the Services to the Customer, as set out in the Order Form;
Services Start Date	means the date on which the Supplier shall start supplying the Services to the Customer, as set out in the Order Form;
Supplier	as set out in the Order Form;
Supplier Materials	has the meaning given in clause 9.1.9;
VAT	means value added tax (or any replacement or equivalent as chargeable in the UK from time to time);
Warranty Period	means the warranty period in respect of the Goods as notified by the Supplier to the Customer in writing.

1.2    A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.3    A reference to writing or written includes email but not fax.

1.4    A reference to days is a reference to any day of the year, including Saturdays, Sundays and public holidays.

1.5    Any words following the terms including and include or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2.    BASIS OF CONTRACT

2.1    An order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with the Contract.

2.2    Where the Goods are Bespoke Goods, the following process shall be followed:

2.2.1    The supplier shall provide the Customer with a quotation containing:
             2.2.1.1    drawing(s) of the Goods;
             2.2.1.2   the specification of the Goods; 
             2.2.1.3   the price of the Goods; and
             2.2.1.4   details of any customer obligations applicable to the supply of the Goods, including minimum                                       requirements in respect of:
                             (a)    site preparation; and
                             (b)    the availability of utility and other services at the site,
 

(Bespoke Quotation).

2.3    On receipt of the Bespoke Quotation, the Customer shall either:
          2.3.1    confirm to the Supplier, in writing, its approval of the Bespoke Quotation; or
          2.3.2   inform the Supplier of any errors or omissions in the Bespoke Quotation, in which case the Supplier                           shall issue an update Bespoke Quotation.

2.4    If the Customer confirms its approval of the Bespoke Quotation pursuant to clause 2.3.1, it shall be  incorporated in to (or otherwise deemed to form part of) the Order Form.

2.5    The Customer’s order shall only be deemed to be accepted when: 
          2.5.1    the Supplier issues the Customer with a completed copy of the Order Form; and 
          2.5.2    if applicable, the Supplier receives payment of the Deposit in full.
          at which point, and on which date the Contract shall come into existence (Commencement Date).

2.6    Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.

2.7    These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.8    Any quotation given by the Supplier shall not constitute an offer and is only valid for the period set out in the quotation, or, if no period is set out in the quotation, a period of 30 days from its date of issue.

2.9    All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

2.10    The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.11    The Supplier reserves the right to amend the Order Form if required by any applicable statutory or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods and/or the Services, and the Supplier shall notify the Customer in any such event.

2.12    If there is any conflict or ambiguity between: (i) the Order Form; (ii) these Conditions; and (iii) the Schedule (if appliable), a term contained in a document higher in this list set out as follows:
            2.12.1    the Order Form;
            2.12.2   the Schedule (if applicable); and
            2.12.3   these Conditions,
            shall have priority over a term contained in a document lower in this list. 

3.    DURATION

3.1    If the Contract is for the supply of Goods only, the Contract shall commence on the Commencement Date and shall continue, unless terminated in accordance with its terms, until the delivery of the Goods in accordance with clause 5.2 when it shall terminate automatically without notice.

3.2    If the Contract includes the supply of Services, the Contract shall commence on the Commencement Date and shall continue, unless terminated in accordance with its terms, until the Services End Date when it shall terminate automatically without notice.

4.    DEPOSIT

4.1    The Supplier shall invoice the Customer the Deposit (if applicable) at the same time as issuing the Order Form pursuant to clause 2.5.1.

4.2    The Customer acknowledges that if the Contract is terminated (other than by the Customer pursuant to clause 13), the Deposit is non-refundable.

5.    DELIVERY OF GOODS

5.1    The Supplier shall use reasonable endeavours to deliver the Goods to the Delivery Location by the Delivery Date, but such times and dates for delivery are an estimate only and time for deliver shall not be of the essence. 

5.2    Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

5.3    The Supplier shall not be liable for any failure or delay in delivery of the Goods which is caused by: 
           5.3.1    a Force Majeure Event; or 
           5.3.2    the Customer’s failure to provide the Supplier with adequate delivery instructions or any other                      instructions that are relevant to the supply of the Goods.

5.4    If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 

5.5    If the Customer fails to accept delivery of the Goods, then except where such failure is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
          5.5.1    delivery of the Goods shall be deemed to have been completed at 09:00 on the date the Supplier                  attempted to deliver the Goods; and
          5.5.2    the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all              related costs and expenses (including insurance).

5.6    If ten Business Days after the date the Supplier attempted to deliver the Goods the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part of or all the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

5.7    The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

6.    QUALITY OF GOODS

6.1    The Supplier warrants that on delivery, and for the Warranty Period (if applicable), the Goods shall:
         6.1.1    conform in all material respects with the Order Form;
         6.1.2    be free from material defects in design, material and workmanship; and
         6.1.3    be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

6.2   Subject to clause 6.3, if:

6.2.1	the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all the Goods do not comply with the warranty set out in clause 6.1;
6.2.2	the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3	the Customer (if reasonably requested to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
	the Supplier shall, at its option, repair or replace the defective Goods, or refund the Charges in respect of the defective Goods in full.

 
           
           

       

 

 

 

 

 

6.3    The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 if:

6.3.1	the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2;
6.3.2	the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good  trade practice regarding the same;
6.3.3	the defect arises as a result of the Supplier following any information, material, drawing, design or specification requested or supplied by the Customer;
6.3.4	the Customer alters or repairs such Goods without the written consent of the Supplier;
6.3.5	the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working  conditions; or
6.3.6	the Goods differ from the Order Form as a result of changes made to ensure they comply with applicable statutory or regulatory requirements

 

6.4    Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the  Goods’ failure to comply with the warranty set out in clause 6.1.

6.5    These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

7.    TITLE AND RISK

7.1    The risk in the Goods shall pass to the Customer on completion of delivery.

7.2    Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.

7.3    Subject to clause 7.4, until title to the Goods has passed to the Customer, the Customer shall:
          7.3.1    store the Goods separately from all other goods held by the Customer so that they remain readily                  identifiable as the Supplier’s property;
          7.3.2    not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
          7.3.3    maintain the Goods in satisfactory condition and keep them insured against all risks for their full                    price on the Supplier’s behalf from the date of delivery;

7.3.4    notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1.2 or                  clause 13.1.3; and

7.3.5    give the Supplier such information as the Supplier may reasonably require from time to time                          relating to:
          7.3.5.1    the Goods; and
          7.3.5.2    the ongoing financial position of the Customer.

7.4    If the Supplier is responsible for installation of the Goods, the provisions of clause 7.3 shall not apply until such installation is completed. 

8.    SUPPLY OF SERVICES

8.1    The Supplier shall supply the Services to the Customer from the Services Start Date and in accordance with the Order Form in all material respects.

8.2    The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

8.3    The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

9.    CUSTOMER’S OBLIGATIONS

9.1    The Customer shall:

9.1.1	ensure that the terms of the Order and any information and materials it provides or contributes to the Order Form are complete and accurate;
9.1.2	co-operate with the Supplier in all matters relating to the Services;
9.1.3	provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
9.1.4	provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Goods and the Services, and ensure that such information is complete and accurate;
9.1.5	prepare the Delivery Location and the Customer’s premises for the delivery of Goods and the supply of the Services (including complying with any guidance and/or instructions issued by the Supplier from time to time);
9.1.6	be responsible for all utility connections at any location where Goods and/or Services are to be provided and ensure that all such utility connections are fully compliant with all applicable laws, regulations and codes from time to time in force;
9.1.7	obtain and maintain all necessary licences, permissions and consents which may be required for:
	9.1.7.1    the Goods before the date the Goods are delivered; and 9.1.7.2    the Services, before the Services Start Date;
9.1.8	comply with all applicable laws, including health and safety laws;
9.1.9	keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
9.1.10	comply with any additional obligations as set out in the Order Form.

 

9.2    If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

9.2.1	without limiting or affecting any other right or remedy available to it, the Supplier shall have the      right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
9.2.2	the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
9.2.3	the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

            

10.    CHARGES AND PAYMENT

10.1    The Charges for Goods and/or Services shall be the Charges as set out in the Order Form.

10.2    The Supplier reserves the right to increase the Charges applicable to the: 
            10.2.1    Goods, at any time prior to delivery; and,
            10.2.2   Services, at any time (whether prior to, or during performance),
            by giving notice to the Customer to reflect any increase in the cost of the Goods and/or the Services to the              Supplier that is due to:
                          10.2.2.1    any factor beyond the control of the Supplier (including foreign exchange fluctuations,                                  increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
                          10.2.2.2   any request by the Customer to change the Delivery Date(s), quantities or types of                                        Goods ordered, scope of Services, or any other information or specifications set out in the Order                                Form; or
                          10.2.2.3   any delay caused by any instructions of the Customer or failure of the Customer to give                                the Supplier adequate or accurate information or instructions.

10.3    The Supplier shall invoice the Customer in accordance with the payment terms as set out in the Order Form. If no terms are set out in the Order Form, then the Supplier shall:
            10.3.1    in respect of the Goods, invoice the Customer on or at any time after completion of delivery; and
            10.3.2    in respect of the Services, invoice the Customer monthly in arrears for Services supplied that                       month.

10.4    The Customer shall pay each invoice submitted by the Supplier in accordance with the payment terms as set out in the Order Form. If no such terms are set out in the Order Form, the Customer shall pay each invoice submitted by the Supplier:
           10.4.1    within 30 days of the date of the invoice or in accordance with any credit terms agreed by the                       Supplier and confirmed in writing to the Customer; and
          10.4.2    in full and in cleared funds to a bank account nominated in writing by the Supplier.

10.5    All amounts payable by the Customer under the Contract are exclusive VAT. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of all or any of the Services or Goods or Installation Works as applicable, at the same time as payment is due for the supply of such Services or Goods or Installation Works.

10.6    If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.6 will accrue each day at the rate as in force under The Late Payment of Commercial Debts (Interest) Act 1998.

10.7    All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10.8    If a dispute arises between the parties in respect of an invoice amount, the parties agree to refer the matter to an independent firm of accountants (appointed jointly by the parties), whose written decision on the matter shall be final and binding on the parties (in the absence of manifest error or fraud).

11.    INTELLECTUAL PROPERTY RIGHTS

11.1    All Intellectual Property Rights in or arising out of or in connection with the Goods and the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

11.2    The Customer warrants that it shall not do, or permit to be done, any act which will or may weaken, damage or be detrimental to the Supplier's Intellectual Property Rights, or the reputation or goodwill associated with the Supplier’s Intellectual Property Rights, or which may invalidate or jeopardise any of the Supplier’s Intellectual Property Rights.

11.3    The Customer shall indemnify the Supplier against:
           11.3.1    all losses (including but not limited to all direct, indirect and consequential losses), liabilities, costs,                 damages and expenses that the Supplier does or will incur or suffer; and
           11.3.2    all claims or proceedings made or brought or threatened against the Supplier by any person and                 all losses, liabilities or costs (on a full indemnity basis), damages and expenses the Supplier does or will                     incur or suffer as a result of defending or settling any such actual or threatened claims or proceedings,
           in each case arising out of or in connection with any breach of the warranty contained in clause 11.2. 

11.4    This clause 11 shall survive termination of the Contract.

12.    LIMITATION OF LIABILITY

12.1    References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2   Nothing in the Contract shall limit or exclude any liability for:
           12.2.1    death or personal injury caused by negligence;
           12.2.2    fraud or fraudulent misrepresentation;
           12.2.3    breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply               of Goods and Services Act 1982 (title and quiet possession); and
           12.2.4    any other liability which cannot be limited or excluded by applicable law.

12.3   Nothing in the Contract shall limit or exclude:
           12.3.1    a party’s payment obligations under the Contract; 
           12.3.2    any liability to reimburse under clause 9.2.3; and
           12.3.3    any liability for loss arising from the indemnity provisions under: 
           12.3.3.1    clause 11.2; and
           12.3.3.2    paragraph 2.5 of the Schedule (if applicable). 

12.4   Subject to clause 12.2 and clause 12.3, the Supplier shall not be liable for any loss arising from or in connection with: 
           12.4.1    any Goods produced or modified by the Supplier in accordance with any information, material,                     drawing, design or specification requested or supplied by the Customer; and
           12.4.2    loss or damage to any inventory stored within any Goods supplied by the Supplier, for example,                   foodstuffs stored in any refrigeration unit supplied by the Supplier (so-called “contents loss”).

12.5    Subject to clause 12.2, clause 12.3, and clause 12.4, each party’s total liability to the other party in aggregate under the Contract shall not exceed 100% of the Charges paid or payable to the Supplier under the Contract. 

12.6   Subject to clause 12.2 and clause 12.3, neither party shall be liable for:
           12.6.1     loss of profits (including loss of anticipated profits);
           12.6.2    loss of sales or business;
           12.6.3    loss of agreements or contracts;
           12.6.4    loss of anticipated savings;
           12.6.5    loss of or damage to goodwill or reputation;
           12.6.6    loss of use or corruption of software, data or information;
           12.6.7    defects in the Installation Works (if any) arising in materials specified or chosen by the Customer;
           12.6.8    defects in the Installation Works (if any) arising due to the fault of a contractor, subcontractor                     and/or supplier nominated by the Customer; and/or
           12.6.9    any indirect or consequential loss.

12.7    The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 6 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

12.8    This clause 12 shall survive termination of the Contract.

13.    TERMINATION AND SUSPENSION

13.1   Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.1.1	the other party commits a material breach of any term of the Contract and (if such breach is          remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.1.2	the other party takes 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), obtaining a moratorium, 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; or
13.1.3	the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all its business.

                         

13.2  Without affecting any other right or remedy available to it, the Supplier may terminate the Contract:
          13.2.1    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; or
          13.2.2    by giving the Customer not less than 30 days’ written notice.

13.3  Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1.2 or clause 13.1.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

13.4  Without affecting any other right or remedy available to it and subject to paying the Cancellation Charges, the Customer may cancel and Order for Goods (in whole or in part) on written notice to the Supplier at any time prior to delivery of the Goods. 

14.    CONSEQUENCES OF TERMINATION

14.1    On termination or expiry of the Contract:
14.1.1    the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
14.1.2    the Customer shall return all the Supplier Materials or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

14.2    If the Customer cancels and Order for Goods (whether in whole or in part) pursuant to clause 13.4, the following cancellation charges shall be payable by the Customer to the Supplier:
14.2.1    in respect of Goods which are not Bespoke Goods, a sum equal to the reasonable costs and/or losses incurred and/or suffered by the Supplier arising out of or in connection with such cancellation up to a maximum of 25% of the Charges paid or payable by the Customer for the Goods cancelled; and
14.2.2    in respect of Bespoke Goods, a sum equal to the reasonable costs incurred by the Supplier in connection with the supply of the Bespoke Goods up to the point of termination (including material and manufacturing costs), such amounts being not less than 25% of the Charges paid or payable by the Customer for the cancelled Bespoke Goods,
(Cancellation Charges).

14.3    On cancellation of an Order for Goods pursuant to clause 13.4, the Supplier shall refund to the Customer any amounts paid in advance by the Customer (including any Deposit), but shall deduct from such refund the Cancellation Charges. If there is any shortfall between amounts paid in advance by the Customer (including any Deposit) and the Cancellation Charges, the Supplier shall invoice the Customer such shortfall, such invoice being payable in full and by way of electronic bank transfer (to such bank account as the Supplier may nominate in writing) within seven days of the date of such invoice.

14.4    Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

14.5    Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

15.    CONFIDENTIALITY

15.1    Each party undertakes that it shall not at any time, disclose to any person all information of a confidential nature concerning the business, assets, affairs, customers, clients, or suppliers of the other party (Confidential Information), except as permitted by clause 15.2.

15.2    Each party may disclose the other party’s Confidential Information:
15.2.1    to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract and each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information materially comply with this clause 15; and
15.2.2    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3    No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
 

16.    FORCE MAJEURE

16.1    Force Majeure Event means any circumstance not within a party’s reasonable control, whether or not reasonably foreseeable, including:
16.1.1     acts of God, flood, drought, earthquake or other natural disaster;
16.1.2    epidemic or pandemic (including COVID-19);
16.1.3    terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
16.1.4    nuclear, chemical or biological contamination or sonic boom;
16.1.5    any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
16.1.6    collapse of buildings, fire, explosion or accident; 
16.1.7    national emergency or period of national mourning; 
16.1.8    malicious damage or theft; and/or
16.1.9    any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party).

16.2    If and to the extent a party is prevented, impeded, hindered, conditioned, or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

16.3    If the Force Majeure Event prevents, impedes, hinders, conditions, or delays the Affected Party’s performance of its obligations for a continuous period of more than 90 days, the corresponding obligations of the party not affected by the Force Majeure Event will be suspended, and it’s time for performance of such obligations extended, to the same extent as those of the Affected Party.

16.4    The Affected Party shall as soon as reasonably practicable after the start of the Force Majeure Event, notify the party not affected by the Force Majeure Event of the Force Majeure Event and of its ability to perform any of its obligations under the Contract.

16.5    If the Force Majeure Event prevents, impedes, hinders, conditions, or delays the Affected Party’s performance of its obligations for a continuous period of more than 6 months, either party may terminate the Contract by giving 30 days’ written notice to the other party.

16.6    It is acknowledged and agreed that the party not affected by the Force Majeure Event shall be required to accept non-contractual performance offered by the Affected Party.

17.    NOTICES

17.1    Any notice given to a party under or in connection with the Contract shall be sent by email to the relevant email address as set out in the Order Form (or an email address substituted in writing by the party to be served).

17.2    A notice shall be deemed to have been received at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

17.3    The provisions of this clause 17 shall not apply to the service of any proceedings or other documents in any legal action.

18.    ENTIRE AGREEMENT

18.1    The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

18.2    Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

18.3    Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

19.    ASSIGNMENT AND OTHER DEALINGS

19.1    Neither party shall assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

20.    GENERAL

20.1    No variation of these Conditions shall be effective unless it is in writing and signed by both parties (or their authorised representatives).

20.2    A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

20.3    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, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

20.4    Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

20.5    If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

20.6    If any provision or part-provision of the Contract is deemed deleted under clause 20.5, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20.7    Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

21.    GOVERNING LAW AND JURISDICTION 

21.1    The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

21.2    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
 
SCHEDULE – INSTALLATION TERMS AND CONDITIONS
If the Schedule is marked as ‘applies’ on the Order Form, then the following provisions shall be incorporated into the Contract and supplement the Contract as set out herein.

1.    DEFINITIONS AND INTERPRETATION

1.1    The definitions and rules of interpretation as set out in the Conditions shall apply in this Schedule, together with the following definitions and rule of interpretation.

Certificate of Practical Completion	means a written notice from the Supplier confirming that the works are deemed to have reached Practical Completion;
Consents	means any necessary approval, authorisation, consent, exemption, licence, permit, permission or registration by or from any governmental or other authority, landlords, funders, adjoining land owners or any other person in relation to the Installation Works or otherwise required to enable delivery of the Installation Works;
Defect	means defects, shrinkages or other faults in the Installation Works;
Defects Liability Period	means the 12 months immediately following Practical Completion;
Due Date	has the meaning given in paragraph 4.1 of this Schedule;
Practical Completion	means the date of completion of the Installation Works determined in accordance with paragraphs 8.1.1 and 8.1.2 of this Schedule;
Statutory Requirements	means the notices required by any statute, any statutory instrument, rule or order or any regulation or bylaw applicable to the Installation Works.

                  
1.2    The Completion Date and the Site shall have the meanings shown in the Order Form.

2.    THE INSTALLATION WORKS

2.1    The Supplier shall carry out the Installation Works in a good and workmanlike manner and complete the Installation Works in accordance with the Contract using materials and workmanship herein specified or otherwise of a good and suitable standard and which are not generally regarded as deleterious.

2.2    The Supplier may appoint sub-contractors to perform any or all of the Installation Works but shall be liable for the acts and defaults of all such sub-contractors as if they were its own acts and defaults and shall not be relieved of any obligation hereunder by reason of the use or appointment of sub-contractors.

2.3    The Supplier shall use reasonable endeavours to complete its obligations relating to the Installation Works at the times required by the Contract, but time will not be of the essence in the performance of these obligations.

2.4    The Customer shall be responsible for obtaining all Consents, and warrants that all Consents required for the Installation Works to proceed have been obtained and not withdrawn.

2.5    The Customer shall indemnify the Supplier against:
2.5.1    all losses (including but not limited to all direct, indirect and consequential losses), liabilities, costs, damages and expenses that the Supplier does or will incur or suffer; and
2.5.2    all claims or proceedings made or brought or threatened against the Supplier by any person and all losses, liabilities or costs (on a full indemnity basis), damages and expenses the Supplier does or will incur or suffer as a result of defending or settling any such actual or threatened claims or proceedings,
in each case arising out of or in connection with any loss or damage to any equipment (including that of third parties) caused by the Customer, or its agents or employees.

2.6    In accordance with clause 11 of the Conditions, all Intellectual Property Rights arising in any documents prepared by the Supplier connection with the Installation Works remain vested in the Supplier but, subject to the Supplier having been paid all sums due and payable in relation to the Installation Works under the Contract, the Customer shall have an irrevocable, royalty-free, non-exclusive licence to copy and use such documents for any purpose relating to the Installation Works. Such licence shall not include a right to reproduce the documents for any extension of the Installation Works and the Supplier shall not be liable for any use of the documents for any purpose other than that for which they were prepared. 

3.    INSTALLATION PRICE

3.1    The Customer agrees to pay the Installation Price in consideration of the Supplier carrying out the Installation Works at the times and in the manner specified in the Contract.

3.2    In addition the Supplier may recover from the Customer its reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Installation Works.

4.    PAYMENT

4.1    In relation to the Installation Works and Installation Price only, the following payment provisions shall apply:
4.1.1    up to Practical Completion (subject to the sole discretion of the Supplier thereafter unless otherwise stated in this Schedule), the Supplier shall be entitled to interim payments and, unless otherwise agreed between the parties, the due dates for such interim payments shall be the Payment Dates (each being a Due Date);
4.1.2    the Supplier shall submit an invoice for payment on or before each Due Date identifying the amount due up to the relevant Due Date;
4.1.3    within 5 days of each Due Date the Customer shall give a payment notice in writing to the Supplier specifying the amount of the interim payment to be made and about the basis on which such amount is calculated (Payment Notice);
4.1.4    subject to any alternative payment terms as may be set out on the Order Form, the final date for payment shall be 14 days after the Due Date (the Final Date for Payment).
4.1.5    if the Customer intends to pay less than the amount stated in the Payment Notice then it shall give a pay less notice to the Supplier not later than 5 days before the Final Date for Payment identifying the amount to be paid and the basis on which such amount is calculated;
4.1.6    if any sum payable under the Contract for the Installation Works is not paid by the Final Date for Payment then, without prejudice to the Supplier’s other rights or remedies under the Contract, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment and interest under this paragraph 4.1.6 will accrue each day at the rate as in force under The Late Payment of Commercial Debts (Interest) Act 1998; and
4.1.7    should the Customer fail to pay any invoice by the Final Date for Payment the Supplier may, following notice in writing, suspend all or part or the Installation Works and upon the ending of a suspension the Customer shall pay the Supplier’s reasonable costs of the suspension and shall grant the Supplier an extension of time for the period of the suspension.

5.    VARIATION AND AMENDMENTS

5.1    The Supplier will be entitled to an addition to the Installation Price and extension to the Completion Date if the Installation Works are varied in any way or are affected by matters outside of the Supplier’s reasonable control, including where:
5.1.1    the Supplier varies any details of the Contract or issues an instruction (whether verbal or written) changing the Installation Works;
5.1.2    the Supplier impedes or prevents the execution of the Installation Works in any way or defers giving possession or prevents access to the Site;
5.1.3    the progress of the Installation Works is affected by the carrying out of work, or failure to carry out work, by a statutory undertaker or other supplier, contractor and/or subcontractor nominated by the Supplier in relation to the Site or Installation Works;
5.1.4    there is an inconsistency or ambiguity in any documents prepared for the purposes of the Installation Works;
5.1.5    the Supplier encounters inclement weather conditions, including adverse weather that may (at the Supplier’s sole discretion) affect the health and safety of operating at the Site; 
5.1.6    the Supplier encounters unforeseen Site conditions, ground conditions or obstructions that were not allowed for in the Installation Price; and/or
5.1.7    any other circumstances arise that are beyond the reasonable control of the Supplier.

5.2    Any addition to the Installation Price to be payable to the Supplier pursuant to paragraph 5.1 or paragraph 8.3 of this Schedule shall be valued by the Supplier on the basis of the Supplier’s rates and prices plus reasonable direct and/or indirect loss and/or expense incurred by the Supplier and an estimate of the required adjustment to the Completion Date. The Supplier shall issue an invoice to the Customer for any additional costs. The Supplier shall not be required to carry out and complete any addition to the installation Works until such time as the relevant time and price adjustment have been agreed.

6.    CONSEQUENCES OF TERMINATION

6.1    In the event of termination under clause 13.1 or clause 13.2 of the Conditions, the Customer shall pay to the Supplier the value of the Installation Works executed, based upon the Supplier’s rates and prices, materials on Site and the cost of removal of its plant, tools and equipment by the Supplier.

6.2    In the event of termination by the Supplier under clauses 13.1 or clause 13.2.1 of the Conditions, the Customer shall also pay the Supplier its direct loss and expense and loss of profit on the Installation Works.

6.3    All payments made under this paragraph 6 shall be made in accordance with paragraph 4 of this Schedule.

7.    LIMITATION PERIOD

7.1    No proceedings shall be commenced against the Supplier in relation to the Installation Works performed under the Contract more than 6 years after Practical Completion or earlier termination of the Supplier’s engagement under the Contract.

8.    PROGRAMME AND EXTENSION OF TIME

8.1    The Supplier shall use its reasonable endeavours to take possession of the Site on the Commencement Date and complete the Installation Works to the point where the Customer can assume occupation of the Site and the Installation Works by the Completion Date, as such date may be adjusted under the Contract. The Customer shall be regarded as being able to assume occupation of the Site and the Installation Works following the issue by the Customer of the Certificate of Practical Completion, which shall be issued when:
8.1.1    the Installation Works are completed in accordance with the Contract, save for small items of work which do not affect the compliance of the Installation Works with the Statutory Requirements or affect the intended use of the Installation Works and the Site, as such items are agreed in writing between the Customer and the Supplier (both acting reasonably) and set forth on a list of snagging items; and
8.1.2    applicable authorities have, if necessary, approved the Installation Works.

8.2    Practical Completion shall be regarded as having been achieved when the Certificate of Practical Completion is issued by the Supplier or the Customer takes possession of the Site or the requirements of paragraph 8.1.1 and paragraph 8.1.2 of this Schedule have been satisfied, whichever is earlier. 

8.3    If it becomes apparent that the Installation Works will not be completed by the Completion Date (or any later date fixed under this paragraph from time to time) for reasons beyond the control of the Supplier, including a Force Majeure Event or compliance with any instruction of the Customer which is not due to the default of the Supplier, then the Supplier shall notify the Customer in writing confirming that the Completion Date has been amended. In the case of compliance with an instruction of the Customer, the Customer shall also make an allowance for the Supplier’s direct loss and expense occasioned by the extension of time and such sum shall be added to the Installation Price.

9.    RISK AND INSURANCE

9.1    The Customer will be responsible for maintaining adequate insurance in respect of the Installation Works and, where appropriate, the existing structures at the Site. 

9.2    The Supplier will be responsible for insuring loss or damage caused to any materials on the Site. Where the value of any materials for use in the Installation Works has been included within an invoice issued by the Supplier and the Customer has not paid the amount due to the Supplier, the Customer will be responsible for insuring the materials but will not own the materials until the Supplier has received payment, in full, for them.

9.3    The Supplier will not be responsible for the security of the Site which will be entirely the responsibility of the Customer.

10.    DEFECTS IN THE INSTALLATION WORKS

10.1    If any Defects appear during the Defects Liability Period due to the Supplier’s failure to comply with its obligations in relation to the Installation Works under the Contract (and not as a result of any misuse and/or failure to maintain by the Customer), the Customer shall notify the Supplier of those Defects by sending a schedule of Defects to the Supplier at any time before the end of the Defects Liability Period. Subject to paragraph 10.2 of this Schedule, the Supplier shall make good the such Defects as soon as reasonably practicable after receiving that schedule. 

10.2    Notwithstanding any other provision of the Contract, the Supplier shall have no liability under paragraph 10.1 of this Schedule to rectify any Defects or wants of repair which have arisen due to:
10.2.1    the Customer’s failure to follow any oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Installation Works or (if there are none) good trade practice regarding the same;
10.2.2    the Customer altering or repairing the Installation Works without the Supplier’s written consent; or 
10.2.3    fair wear and tear, wilful damage, negligence, abnormal working conditions and/or lack of regular maintenance.

11.    ADJUDICATION

11.1    If any dispute or difference concerning the Installation Works shall arise between the Customer and the Supplier, such dispute or difference may be referred to adjudication to be conducted in accordance with the Scheme for Construction Contracts Regulations (England and Wales) 1998 (as amended). For the purposes of such adjudication the parties agree that the nominating body for appointment of the adjudicator shall be the President or Vice President of the Royal Institute of Chartered Surveyors.