Terms and Conditions – Commissioning and Servicing

Terms and Conditions – Commissioning and Servicing

1. Interpretation

1.1 In these conditions:

‘Acknowledgement of the Quotation” means the countersigned duplicate of the Quotation.

‘Additional Services’ has the meaning given in clause 7.1.

‘Buyer’ means the ‘person’ ‘firm’ or ‘company’ named in the Quotation as the customer.

‘Commissioning Works’ means the commissioning works as detailed in the Quotation.

‘Conditions’ means the standard terms and conditions set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in Writing between the Buyer and the Seller and/or as set out in the Quotation.

‘Contract’ means the contract for the supply of services, consisting of the Quotation, any Acknowledgement of the Quotation, if relevant, (and any documents referred to therein) and these Conditions.

‘Due Date’ has the meaning given in clause 5.1.

‘Material’ means all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, CAD materials, calculations, data, databases, schedules, programmes, bills of quantities, budgets and any other materials provided in connection with the Services and all updated, amendments, additions and revisions to them and any works, designs, or inventions incorporated or referred to in them for any purpose.

‘Quotation’ means the Seller’s quotation for the Services.

‘Permitted Uses’ means the design, construction, completion, reconstruction, modification, refurbishment, development, maintenance, facilities management, funding, disposal, letting, fitting-out, advertisement, decommissioning, demolition, reinstatement, building information modelling and repair of the property or properties which are the subject of the Services.

‘Price’ has the meaning given in clause 4.1. plus any additional payment due under clause 7.2 below.

‘Seller’ means WHITESALES LIMITED (registered in England and Wales under number 08482222).

‘Services’ means the Commissioning Works and the Servicing Works agreed to be carried out under the Contract.

‘Servicing Works’ means the servicing works as detailed in the Quotation.

‘Writing’ includes e-mails, cable, facsimile transmission and comparable means of communication, provided that where the term is used in the context of an amendment, substitution or variation to the Conditions.

1.2 Any reference in these Conditions to any provision of a statue, regulation, order or other form of legislation is construed as a reference to that provision as amended re-enacted or extended from time-to-time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Seller’s Obligations

2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions.

2.2 The Seller shall carry out the Services in a good and workmanlike manner.

2.3 No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Seller and the Buyer.

2.4 The Seller may appoint sub-consultants to perform any or all of the Services, but shall be liable for the acts and defaults of all such sub-consultants 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-consultants.

2.5 The Seller’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of, any such representations, which are not so confirmed.

2.6 Any typographical, clerical or other error or omission in any document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. Orders and Specifications

3.1 The Buyer shall be responsible to the Seller for giving the Seller any necessary information relating to the Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.2 The Buyer shall be responsible for providing the Seller with access to carry out the Services, together with all temporary facilities and equipment which may be required by the Seller to carry out and complete the Services. If the Seller is required to provide its own equipment for the carrying out of the Services, the Seller may recover the cost of doing so from the Buyer.

3.3 Save for the exception contained at clause 4.6, no Contract shall be cancelled or terminated by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 Seller as a result of such cancellation or termination. The Buyer shall also pay to the Seller that part of the Price that has not been paid as at the date of termination by the Buyer.

3.4 In addition to any other rights and remedies which the Seller may have, the Seller may at any time by notice in Writing to the Buyer immediately terminate the whole or any part of the Seller’s engagement under the Contract without any liability to the Buyer for any sums whatsoever incurred because of such termination.

4. Servicing Works

4.1 For a period of 12 months following the later of (1) completion of the Commissioning Works or (2) acceptance of the Quotation, the Seller shall carry out two inspections of the products which form part of the Servicing Works, each at six-monthly intervals.

4.2 In carrying out the Servicing Works, the Seller shall:

4.2.1 Ensure the smoke ventilator and control panel(s) are distributing the correct amount of power throughout the system and are in good working order;

4.2.2 Carry out a visual inspection of the unit(s) to check for any early signs of deterioration, in particular: Check for visible damage; Check ventilator fixing details paying special attention to weather seals and any areas of corrosion; Clean ventilator and control panel using soft brush or vacuum cleaner; Clean and lubricate all bearings, pivots and hinges; Check operating mechanism for wear, chafing, damage, loose fixings and leakage; Check incoming power supply and wiring connections; Check operation of ventilator; Adjust limit switches or restrictors if necessary; Check indicator lamps, LEDs and dip switches in control panel and lip unit; and Close panel after full system check and carry out functional test.

4.3 If the Seller has any concerns having carried out the checks detailed above, the Seller will provide a quotation for the necessary remedial works to resolve any issues and/or make safe the existing unit(s) prior to any such works being carried out.

4.4 The Buyer shall permit the Seller and their servants and agents at all reasonable times access to the site which is the subject of the Servicing Works for the purpose of carrying out the Servicing Works. If the Seller is unable to obtain access to the site, the Seller reserves the right to recover any costs incurred for the abortive visit.

4.5 After expiry of the 12 month period referred to in clause 4.1 above, the Contract in respect of the Servicing Works shall continue on the same terms and conditions on an annual basis, subject to the consent of the Seller. The Price for the Servicing Works after expiry of the first 12 month period shall be the same for each other 12 month period unless otherwise advised by the Seller to the Buyer in Writing.

4.6 The Buyer may not terminate the Contract without first giving three months’ notice in Writing to the Seller and only after expiry of the initial 12 month period. Upon such termination the Buyer shall pay to the Seller any part of the Price for the relevant 12 month period that has not yet been paid to the Seller.

5. Price of the Services

5.1 The price of the Services shall be the price set out in the Quotation (the ‘Price’). The Price, unless stated otherwise in the Quotation, shall be valid for 30 days or until earlier acceptance by the Buyer, after which time the Price may be altered by the Seller without notice to the Buyer.

5.2 The Price does not include the cost of the provision of any additional contract documents such as collateral warranties. For the avoidance of doubt additional contract documents such as collateral warranties, will be provided at the Seller’s discretion and no such documents (including any requested warranties) will be provided unless and until the Price has been paid in full. In the event any warranty (or any other document) is supplied to the Buyer before the Price has been paid in full to the Seller, the Buyer will have no right to rely on such document(s) provided unless and until the Price has been paid in full.

5.4 The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay the Seller.

5.5 The Price, and or any amounts quoted or invoiced are in £GBP unless specifically agreed otherwise in writing by a director of the Seller.

6. Terms of payment

6.1 Subject to any alternative payment terms set out in the Contract, the Price or any part thereof is due for payment on the date that the Buyer receives each invoice.

6.2. The final date for payment shall be 14 days after the Due Date (the “Final Date for Payment”).

6.3 In the event of a failure to pay any sum due to the Seller by the Buyer by the Final Date for Payment the Buyer shall have the right to:

6.3.1 suspend, following 7 days’ notice in writing, all or part of the Services. Upon the ending of a suspension the Buyer shall pay the Seller all reasonable costs of the suspension and shall grant the seller an extension of time for the period of the suspension;

6.3.2 charge the Buyer interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 for the period of late payment.

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

6.5 The Seller may at any time, without notice to the Buyer, set off any liability of the Buyer to the Seller against any liability of the Seller to the Buyer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Seller of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.

6.6 The Seller shall be entitled to withhold any part of the Services (including the issue of any certificates) until the Price or part of the Price has been paid in full by the Buyer in accordance with this clause 6.

7. Variations

7.1 The Buyer may, without invalidating the Contract, request an addition to or omission from or other change in the Services (“Additional Services”). As soon as reasonably practicable after receiving such a request, the Seller shall provide the Buyer with a written estimate of cost of the Additional Services. Such estimate is deemed to be accepted by the Buyer unless disputed in Writing within 7 days of the date of the estimate. The Seller shall in addition be entitled to reasonable direct loss and/or expense incurred by the Buyer or its agents as a result of any requested change.

7.2 The Seller is under no obligation whatsoever to accept a request to carry out Additional Services and may refuse to do so without giving a reason to the Buyer. Any such refusal shall not invalidate the Contract.

8. Intellectual Property Rights

8.1 The Seller owns all intellectual property rights (including copyright) relating to the Material it produces, and these rights shall remain vested in the Seller.

8.2 The Seller grants to the Buyer from the date of the Contract an irrevocable, royalty-free, non-exclusive licence to use and to reproduce all Material prepared by, or on behalf of, the Seller for any purpose relating to the property or properties that are the subject of the Services, including any of the Permitted Uses.

8.3 The Seller shall not be liable for the use of the Material for any purpose other than that for which it was prepared and/or provided.

9. Insurance and Liability

9.1 The Buyer shall ensure that the products which are the subject of the Services are covered by the insurance policy of the Buyer or other third party. Such insurance must be all risk insurance on the full value of the Services and the products which are the subject of the Services.

9.2 Subject to clause 9.4, the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the greater of £100,000 or the sum equivalent to ten times the Price.

9.3 Nothing in the Contract shall limit or exclude the Seller’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be limited or excluded by applicable law.

9.4 Subject to clause 8.3, the Seller shall not be liable to the Buyer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; and
(g) any indirect or consequential loss.

10. Dispute Resolution

10.1 If a dispute or difference arises between the Buyer and Seller the parties agree to meet in good faith to attempt to resolve the dispute or difference that exists between them.

10.2 If any dispute or difference concerning the Services shall arise between the Buyer and Seller, such dispute or difference may be referred to adjudication such 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.

11. Governing law and Jurisdiction

11.1 The governing law of the Contract shall be the law of England and Wales.

11.2 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 Services or the Contract (including non-contractual disputes or claims).

12. Third Party Rights

Nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

13. Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.