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The definitions and rules of interpretation in this Condition shall apply in these Conditions.
Company: Leakbusters Limited.
Conditions: these Terms and Conditions of Supply.
Confidential Information: Any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential.
Contract: any contract between the Company and the Customer for the supply of Services, incorporating these Conditions.
Customer: any person, firm, company or other organisation who is the addressee of the Company's quotation or acceptance of order issued by the Company and shall include any parent or subsidiary company of the Customer and any successor-in-title of the Customer and any company or entity arising (wholly or partly) by way of any merger, amalgamation, reorganisation or acquisition of the Customer.
Equipment: any goods or materials in relation to which any Services are to be performed.
Input Material: any documents or other materials, and any data or other information provided to the Company by the Customer relating to the Services.
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.
Output Material: any documents or other materials including, without limitation, any data or other information provided by the Company to the Customer relating to the Services.
Personal Data: Any data which relates to a living individual who may be identified from such data.
Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including but not limited to any fault detection and repair work to be undertaken in relation to any Equipment.
Site: the place where the Services are to be performed, including but not limited to the Customer’s premises.
Working Hours: between 09.00 and 17.00 on Monday to Friday inclusive, excluding any public or bank holidays.
1.1 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.2 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2.1 Subject to any variation under Condition 2.2, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These Conditions apply to the supply of any and all Services by the Company and any variation to these Conditions and any variation to or representations about any Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company.
2.3 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition 2.3 shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these Conditions. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgment of order is issued by the Company.
2.6 The Customer shall ensure that the terms of its order and any Input Material and/or any applicable specification are complete, accurate and fully comprehensible and are submitted to the Company within a sufficient time period such as will enable the Company to fulfil the Company’s obligations under the Contract.
2.7 The description of the Services shall be as set out in the Company's acknowledgment of order issued pursuant to Condition 2.5.
2.8 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them and they shall not form part of the Contract.
2.9 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.10 No order of the Customer may be cancelled by the Customer, except with the Company’s agreement in writing and on such terms as the Company may require.
2.11 No order of the Customer may be varied, altered or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such variation, alteration or deferment.
2.12 The Customer shall be liable for any additional costs, charges or expenses which arise from any conditions at the Site being at variance with any conditions perceived by or notified to the Company.
2.13 Any surplus materials shall remain the property of the Company and shall be returned to it.
2.14 The Customer shall ensure that any Input Material and/or specification submitted by the Customer does not contravene any applicable safety or other statutory or regulatory requirement.
2.15 The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material or any specification submitted by the Customer.
2.16 During the performance of the Services, the Company shall check various aspects of the Equipment and replace or repair any faulty Equipment (or faulty components of the Equipment).
2.17 Any response time indicated in the Company’s written acceptance of order is an estimate only and time shall not be of the essence for the performance of the Services.
2.18 The Customer warrants and undertakes to the Company that it is the owner or authorised user of the Equipment, that it has full power and authority to permit the Company to perform the Services and the Customer undertakes to fully and promptly indemnify and hold the Company harmless against any loss or damage that the Company may suffer as a result of any breach by the Customer of this Condition 2.18.
2.19 All defective parts removed from the Equipment by the Company shall become the property of the Company and their replacements shall become the property of the Customer.
2.20 Unless otherwise agreed in writing by the Company, the Services shall not include:
(a) any work in relation to anything which does not form a part of the Equipment; or
(b) any repair work with respect to any modification of, or addition to, the Equipment, if any such modification or addition has been undertaken without the Company’s prior consent; or
(c) the repair of any damage to the Equipment caused by fire, water, frost, lightning, wind, damage in transit, burglary, vandalism, or explosion; or
(d) the remedy of any defect resulting from any misuse of, neglect of, tampering with, or wilful or accidental damage to the Equipment, or from any failure to follow any instructions contained in any operation or maintenance manual published for, or otherwise specified to be appropriate for use in conjunction with, the Equipment, or from any failure to follow any written or oral instructions of the Company, or from any failure to maintain a suitable environment for the Equipment at the Site; or
(e) any test of the Equipment required by the Customer other than such test(s) as would routinely be undertaken by the Company; or
(f) any work undertaken outside Working Hours.
3.1 The Company shall undertake the Services with reasonable skill and care.
3.2 The Company shall use its reasonable endeavours to meet any performance dates specified by the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Customer shall:
(a) be responsible for preparing and maintaining any relevant part of the Site for the performance of the Services and for reinstating any such part of the Site and undertaking any required making good and clean-up work once performance of the Services has been completed;
(b) ensure that conditions at the Site are suitable for the performance of the Services and that any relevant thing required to perform the Services thereon is available and in good working order;
(c) if requested to do so by the Company and without charge, provide facilities at the Site for the off-loading and storage of the Company’s tools, equipment and materials in a readily accessible and secure storage area protected from theft and damage and shall be solely responsible for the safekeeping of the Company’s tools, equipment and materials whilst the same are stored at the Site;
(d) take all steps to ensure the health and safety of the personnel of the Company whilst they are in attendance at the Site in connection with the performance of the Services and be solely responsible for ensuring the safety of any and all persons who are or may be present at the Site during the performance of the Services, including but not limited to restricting access to those areas of the Site where the Services are or are to be performed to those individuals engaged in performing the Services, or providing assistance to those so engaged;
(e) provide prompt and unobstructed access to and egress from the Site;
(f) inform the Company of any unusual layout, composition or construction of the Site or its parts and be responsible for reporting any unusual conditions or obstacles to the performance of the Services at the Site to the Company;
(g) at all times during the performance of the Services ensure, insofar as it is reasonably practicable to do so, that other trades or operations are not undertaken on that part of the Site where the performance of the Services is to take place, so as to ensure that the Services can be performed in one continuous, uninterrupted operation during the Company’s normal working hours;
(h) be responsible at its own cost (other than for statutory obligations placed solely on the Company) for obtaining all consents, permissions, easements and licences necessary for the performance of the Services in accordance with these Conditions and for complying with all Statutes and Orders, Regulations and By-Laws which are applicable at any time to the Services and shall indemnify and keep indemnified the Company against any actions, proceedings, costs, charges, claims or demands arising out of or in connection with any breach of this Condition 3.3 (h);
(i) provide the Company with all information, co-operation, support and access to such facilities, resources and utilities as may be required to enable the Company to carry out its obligations to the Customer; and
(j) effect and maintain appropriate insurance at the Site on an all risks basis and in an adequate amount.
3.4 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 6 months after the last date of supply of the Services or termination of the Contract, as applicable, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
3.5 Any consent given by the Company in accordance with Condition 3.4 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company's employee, consultant or subcontractor.
4.1 The price for the Services shall be the price set out in the Company’s written acknowledgment of order issued pursuant to Condition 2.5.
4.2 Unless otherwise stated, the price will be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of commencement of performance of the Services.
4.3 The Company reserves the right to increase the price for the Services to reflect any increase in costs to the Company which is due to any factor beyond the control of the Company (including, without limitation, any increase in the costs of labour, materials or other costs of supply and any foreign exchange fluctuation, currency regulation or alteration of duties), any change in performance dates or specifications for the Services which is requested by the Customer and accepted by the Company and any other cause attributable to the Customer, including but not limited to any delay caused by the Customer, or any failure of the Customer to give the Company adequate, accurate or complete information or instructions.
4.4 The Company’s time-based rates are calculated from the time of departure from the Company’s place of business to the time of return thereto. A mileage charge is also charged, as applicable, to overtime rates and call out costs whether or not incurred in an emergency and will be applied based upon such rates and costs as are published by the Company from time to time.
4.5 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.
4.6 The Company reserves the right to charge the Customer for any Output Material provided to the Customer.
5.1 All Customers will be credit checked by the Company and the Company will either approve or refuse credit, at the Company’s sole discretion. The price for the Services shall be paid by the Customer to the Company, as follows:
(a) if the Company has approved the Customer’s credit, the Company’s invoices must be paid within 30 days of the date of the relevant invoice; or
(b) if no credit terms have been approved, the Company’s invoices must be paid within 7 days of the date of the relevant invoice.
5.2 Time for payment shall be of the essence. Without prejudice to Condition 5.1, the Company reserves the right to request stage payments and/or the payment of a deposit from time to time.
5.3 No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
5.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
5.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
5.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 5.
5.7 Without prejudice to Condition 5.6, any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 9.1 (b)-(e) shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
(a) to suspend or cancel the performance of the Services;
(b) to withdraw or reduce any agreed monthly credit limit; and
(c) to treat the Contract as having been repudiated by the Customer.
6.1 The Customer and the Company agree that in the course of the Company providing Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will not use the Confidential Information other than to perform their obligations under the Contract. Each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party.
6.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. The Customer further acknowledges that, without limitation, any and all Intellectual Property Rights developed by the Company in performing the Services shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this Condition 6.2.
6.3 Without limiting the generality of Conditions 6.1 or 6.2 above:
(a) any report provided to the Customer following a survey of the Site (a ‘Survey Report’) is the sole and exclusive property of the Company; the reproduction or dissemination of all or any part of the Survey Report without the prior written consent of the Company is expressly prohibited;
(b) the Survey Report is provided to the Customer for guidance only; due to potential variations in environmental conditions the Survey Report cannot be relied upon to incur expenditure;
(c) any recommendations and views contained within the Survey Report are intended for the sole use of the Customer and any third party liability is specifically excluded; and
(d) if the Survey Report is intended for use in connection with legal proceedings, this must be communicated to the Company in writing in advance thereof, so that the Company may review the exact intended use of the Survey Report.
7.1 Subject always to any additional limitation of the Company’s liability elsewhere in these Conditions, this Condition 7 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Output Material, or any part of them or it; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
7.2 With respect to the Company’s liability hereunder, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.3 Nothing in these Conditions limits or excludes the liability of the Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company; or
(c) for any liability incurred by the Customer as a result of any breach by the Company of the conditions implied by section 2 of the Supply of Goods and Services Act 1982.
7.4 Subject to Condition 7.2 and Condition 7.3:
(a) the Company shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
7.5 If the Company's performance of its obligations under the Contract is prevented, suspended, delayed, or otherwise adversely affected by any act, omission or delay of (or occasioned by) the Customer, the Company shall not be liable for any costs, charges or losses incurred by the Customer arising directly or indirectly from the prevention or suspension of, or delay in or adverse effect on, the performance of the Company’s obligations, but the Customer shall be liable for any costs, charges or losses so incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Company confirming such costs, charges and losses to the Customer in writing.
7.6 The Customer shall be liable to pay to the Company, on demand, all costs, charges or losses incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
7.7 The Customer shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
The Customer acknowledges that any Personal Data contained in any of the Input Material and/or any applicable specification may be processed by and on behalf of the Company in connection with the Services, whether or not the Personal Data relates to the Customer (which, for the purposes of this Condition 8, includes any employee, servant or agent of the Customer) or to another third party data subject. The Customer hereby expressly consents to any processing of the Customer’s Personal Data by the Company and undertakes to procure the consent of any other relevant third party data subject to any processing of their Personal Data, and shall provide such proof of said third party data subject’s consent to such processing as may be requested by the Company.
9.1 Either party shall be entitled to immediately terminate the Contract on giving written notice to the other if:
(a) the other party commits any material breach of any of these Conditions and in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt any late payment or failure to pay by the Customer any sums due shall be a material breach); or
(b) an incumbrancer takes possession or a receiver is appointed over any of the property or assets of the other party; or
(c) the other party makes a voluntary arrangement with its creditors or becomes the subject of an administration order; or
(d) the other party has a bankruptcy order made against it or goes into liquidation (except for the purposes of amalgamation, reconstruction or other reorganisation); or
(e) the other party ceases or threatens to cease to carry on its business.
9.2 Termination of the Contract shall be without prejudice to any accrued rights and remedies of either party.
The Company shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, Act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of any suppliers or subcontractors.
11.1 Notwithstanding the provisions of Condition 2.2 (which shall not apply to this Condition 11), the Company reserves the right without prior approval from or notice to the Customer to make any changes to the Services which are required to conform to any applicable safety or other statutory or regulatory requirements or which, in the reasonable opinion of the Company, do not materially affect the specification of the Services.
12.1 No forbearance or indulgence granted by the Company to the Customer shall in any way limit the rights of the Company under these Conditions.
12.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
12.3 Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.5 The Company, but not the Customer, shall be free to sub-contract or delegate to any third party any or all of its obligations under the Contract without seeking the prior consent of the other party.
12.6 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
12.7 Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties. The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final.
12.8 These Conditions shall be subject to and construed under English Law and the parties hereby submit to the exclusive jurisdiction of the English courts for that purpose.