Terms & Conditions for Design and Build
The following terms and conditions apply to the supply of services and the sale of goods to you (the ‘Customer’) by Lan Services Limited t/a Commercial Washrooms (the ‘Company’).
1.1 In these Conditions the following definitions apply:
Business Day means a day other than Saturday, Sunday and public holidays; Business Hours means 0830-1700 hours on a Business Day;
Conditions means the terms and conditions set out in this document;
Confidential Information means 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 means the agreement between the Company and the Customer for the supply of Services and/or the sale of Goods incorporating these Conditions;
Force Majeure means an event or sequence of events beyond the Company’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an Act of God, pandemic, epidemic, fire, flood, lightning, earthquake or other natural disaster or general weather conditions; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption, delay or failure of supplies to the Company of power, fuel, water, transport, equipment, workmen or telecommunications service, or material required by or for performance of the Contract;
Goods means any goods to be supplied by the Company to the Customer, including any Goods which are to be supplied with the Services;
Intellectual Property Rights means 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;
Location means the address for performance of the Services and/or delivery of the Goods as set out in the Order or the Company’s quotation (as applicable);
Order means the Customer’s order for the Goods and/or Services from the Company;
Services means the services supplied to the Customer by the Company as set out in the Order or the Company’s quotation;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods and/or Services;
Working Area means that interior part (or parts) of the Location where the Services are to be performed.
1.2 Unless the context otherwise requires:
(a) each gender includes the others;
(b) the singular includes the plural and vice versa;
(c) references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
(d) clause headings do not affect their interpretation;
(e) general words are not limited by example;
(f) references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; and
(g) references to ‘writing’ includes faxes and emails.
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1 These Conditions shall apply and govern the Contract between the Company and the Customer. They supersede any previously issued terms and conditions of supply, including the Company’s own Terms and Conditions of Supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.3 No variation of these Conditions or to an Order, or to a quotation from the Company will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Company.
2.4 Each Order by the Customer to the Company will be deemed to be an offer to purchase Services and/or Goods subject to the Conditions and will be deemed to have been authorised by an officer of the Customer’s company.
2.5 An Order will be accepted by the Company only when it confirms its acceptance to the Customer, at its sole discretion. The Company reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. Confirmation of acceptance as aforesaid shall be deemed to have occurred upon the happening of any of the following events: (i) receipt by the Company (in full) of payment of the Company’s deposit invoice; (ii) provision by the Company of a credit account to the Customer in accordance with the Company’s Credit Account Terms and Conditions; or (iii) the Company commencing the supply of the relevant Goods and/or Services to the Customer (provided that the Customer already had a credit account with the Company which was in existence at the time the Order was placed and was not subsequently terminated). Once confirmation of acceptance has occurred, there will be a binding agreement in place between the Company and the Customer for the supply of the relevant Goods and/or Services to the Customer. Without limiting the application of the foregoing provisions of this clause 2.5, the Company and the Customer acknowledge that an agreement for the supply of Goods and/or Services may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. For the avoidance of doubt, any signature on behalf of the Customer which appears on an executed agreement for the supply of Goods and/or Services as aforesaid shall be deemed to have been made by an officer of the Customer’s company.
2.6 No Order which has been accepted by the Company shall be cancelled by the Customer except with the written agreement of the Company.
2.7 The Company’s employees or agents are not authorised to make any representations concerning the Services or Goods unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Conditions affects either party’s liability for fraudulent misrepresentation.
2.8 The Customer shall be responsible to the Company for ensuring the accuracy of any Order and for giving the Company such information as may be necessary for the Company to perform the Contract in accordance with the Conditions.
2.9 The Company may at any time on giving written notice to the Customer make any changes to the Goods and/or Services which are necessary to comply with any applicable safety or other statutory requirements.
3. QUOTATIONS, PRICE AND PAYMENT
3.1 Any quotation by the Company for the provision of Goods and/or Services will be deemed to be:
(a) an invitation to treat (and shall not be an offer) by the Company to supply Services and/or Goods on and subject to the Conditions; and
(b) will be valid for 30 days only from the date of issue (unless otherwise stated on the quotation); and
(c) subject to adjustment at any time up to completion of the performance of the Services.
3.2 Quotations include anticipated transport, travel and subsistence costs but do not (unless otherwise stipulated in writing by the Company) include:
(a) electricity required for the supply of any Services;
(b) unloading, hoisting or storage of materials;
(c) access equipment required for the performance of the Services;
(d) the cost of deploying any individuals who are to provide access to the Location;
(e) arranging for the Customer’s structural engineer to determine whether the Company will need to undertake any structural work, including but not limited to the demolition of walls or floors;
(f) any costs involved in the production of any drawings required by the CDM regulations;
(g) any costs associated with notifying HSE of the start of any works subject to CDM regulations and any related administration costs;
(h) any work with respect to, or any responsibility for or indirect costs associated with, any fire alarms, fire sprinklers, smoke detectors or motion sensors or their activation;
(i) any work related to any CCTV systems, telephone systems or other communications or data transfer systems;
(j) the cost of hoses or any parts required in connection with the re-installation of existing equipment;
(k) the cost of the breakdown and re-assembly of equipment made necessary by restricted access to the Location; or
(l) the isolation, installation or removal of radiators, heating pipes, counters and canopies, or any HVAC connections inside or outside the Working Area (and for the avoidance of doubt, all such requirements shall be the responsibility of the Customer).
3.3 Quotations are not binding on the Company and the Customer acknowledges that the Company may need to impose charges in addition to the charges set out in its quotation. The need to impose additional charges can arise for a number of reasons, including (but not limited to) circumstances where:
(a) the Customer requests additional or different Goods and/or Services (and the Company has agreed to make such additions or changes);
(b) additional or different Goods and/or Services are necessary in the opinion of the Company to comply with applicable health and safety or statutory requirements;
(c) additional or different Goods and/or Services are necessary in the opinion of the Company as a result of incorrect or misleading information having been provided to the Company;
(d) it becomes apparent to the Company that the amount of Goods and/or Services or the type of Goods and/or Services needed to satisfy the Customer’s request(s) is different to what was notified to the Company when the quotation was provided;
(e) there has been any change, for example to the Location or to the Working Area or to other goods or services which affect the supply of the Goods and/or Services; or
(f) the structure or surface to which any Goods are to be affixed is not suitable for that purpose in the opinion of the Company.
3.4 Without prejudice to the generality of clause 3.3 (and unless otherwise stipulated in writing by the Company), all quotations are based upon the assumption that:
(a) the Services can be undertaken in one continuous, uninterrupted operation during Business Hours;
(b) all existing electrical installations and water, gas and drainage services are in good condition and comply with current regulations, are available within 1 metre of the Working Area and are of adequate size and power to accommodate the proposed works and that no earth bonding will be required;
(c) all water can be isolated locally within the Working Area and that all existing isolation valves are in full working order and can be easily closed (notwithstanding any instructions from the Customer and any response from the Company);
(d) all cold water supplies are via mains cold water, that no tank water feeds are present and that the incoming pipe size and water pressure are each appropriate for any revised layout detailed in the Contract;
(e) no exploratory excavations nor bullet pipework will be required and that all supplies are and will be above ground;
(f) the existing hot water system is of an adequate size and bar pressure to work in conjunction with any new installations or equipment operating at full capacity and that there will be no requirement for a new hot water system or new water pumps (bearing in mind that the Customer will be solely responsible for checking the existing system with their own heating engineers and for initiating any request for a new system or new pumps); and
(g) the building comprising the Location is of sound construction with suitably positioned damp proof membranes and that no supply and fix of a surface damp proof membrane will be required.
3.5 Subject to clauses 3.3 and 3.4, the price for the Services and/or the Goods (the Price) will be as set out in the Company’s quotation or in default of such provision will be calculated in accordance with the Company’s standard scale of charges in force on the date of formation of the Contract.
3.6 The Price does not include VAT. VAT will be charged by the Company at the then-applicable rate.
3.7 The Price is payable in full in cleared funds before any Goods will be despatched to the Customer.
3.8 Subject to clause 3.7 and unless otherwise agreed in writing (and further subject to clause 10.3), the Price is payable in full in cleared funds within 30 days of the date of the Company’s invoice without any deduction or set-off (other than as permitted by law). Time for payment of the Price is of the essence.
3.9 The Company reserves the right to claim statutory interest at 8% above the Bank of England’s interest rate in force on the date that any payment to it from the Customer becomes due and at any subsequent rate where the Bank of England’s rate changes and the debt remains unpaid, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as may be amended from time to time.
3.10 Without prejudice to or limiting any other rights that the Company may have, where any sums due to the Company are not paid in full in cleared funds by the due date for payment, the Company may:
(a) suspend or cancel the supply of Goods and/or Services to the Customer;
(b) terminate all and any Contract(s) with the Customer upon giving written notice.
3.11 Without prejudice to clause 3.8, any stage payments which are to be made under the Contract shall be made at the times and in the amounts stipulated.
3.12 If any deposit is paid to the Company in respect of the Goods and/or Services then such deposit will not be refunded to the Customer under any circumstances. The Company will not pay interest on any deposit held.
3.13 The Company shall have a general lien on all goods and property belonging to the Customer and such lien shall be exercisable in respect of all sums lawfully due from the Customer to the Company; the Company shall be entitled on the expiration of fourteen days’ notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds toward such debt.
3.14 The Company shall not entertain any request for liquidated damages, nor accept any retentions or withholdings of payment, nor accept any Pay Less Notices issued by the Customer.
4.1 The Services will be supplied at and the Goods will be delivered to the Location.
4.2 All and any Goods supplied will be deemed delivered on arrival of the Goods at the Location.
4.3 Where the Contract includes Services as well as Goods, delivery of the Goods and performance of the Services will not commence until such time as the Company receives from the Customer written approval of its drawings and any specifications.
4.4 Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
4.5 The Company will use its reasonable endeavours to meet estimated delivery dates and dates provided for the performance of the Services but such dates are approximate only, and time for delivery of Goods and time for performance of the Services is not of the essence.
4.6 The Company will not be liable for any delay in or failure of delivery of the Goods, or any delay in or failure of the supply of the Services caused by:
(a) the Customer’s failure to:
(i) make the Location (or any equipment or items necessary for the delivery of the Goods and/or Services) available to the Company; or
(ii) prepare the Location in accordance with the Company’s instructions as required for the provision of the Goods and/or Services; or
(iii) provide the Company with adequate instructions pertaining to delivery of the Goods or performance of the Services, or otherwise relating to the Goods or Services; or
(b) any delay or failure by any third party to supply goods or services to the Customer; or
(c) an event of Force Majeure; or
(d) the Customer requesting additional or alternative Goods and/or Services which is agreed by the Company; and the Company shall have the right to extend all or any agreed delivery and/or performance timelines as a result of any such failure, delay, event or request.
4.7 If, 5 Business Days after the due date for delivery of the Goods, the Customer has not taken delivery of the Goods, the Company may resell or otherwise dispose of the Goods. If such Goods are resold or otherwise disposed of, the Company will:
(a) invoice the Customer for reasonable storage charges and costs of resale; and
(b) account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.
4.8 Unless otherwise agreed by the Company in writing, if the Company delivers to the Customer Goods which have dimensions falling within acceptable industry standard manufacturer’s tolerances, the Customer shall not be entitled to object or to reject the Goods or any part of them.
4.9 Where the decorative laminates and core materials used to produce the Goods permit, the Goods will comply generally with the quality specification of BS4965. The Company does not warrant that decorative laminates will conform to a particular colour shade nor be consistent with a particular colour or pattern. The Company shall not be liable for the distortion or bowing of Goods due to conditions at the Location or at the Customer's storage facility.
5. GOODS, TITLE AND RISK
5.1 The Company shall have the right to substitute any Goods specified in the Contract for other goods or materials, provided such substitutes are of substantially the same quality as the Goods specified in the Contract.
5.2 The Customer acknowledges that some Goods supplied by the Company are fragile and require delicate handling, which shall be the sole responsibility of the Customer.
5.3 The Customer must notify the Company by the next Business Day after delivery if any Goods are found to be damaged or faulty. The Customer shall provide such evidence of any alleged damage or fault as the Company may reasonably request. The Company may at its discretion refund the price of any damaged or faulty Goods or replace them. If the Company requests that such Goods are returned to it then the Customer shall return such Goods in their original packaging.
5.4 If the Customer discovers within 5 Business Days of delivery of the Goods that it has ordered Goods of the wrong description then the Company may at its discretion allow the return of such Goods and supply alternative Goods to the Customer provided that:
(a) such alternative Goods are readily available;
(b) the price of the alternative Goods has been agreed by the Customer;
(c) the Customer bears the cost of returning the original Goods to the Company; and
(d) the Customer pays an administration charge of at least 25% of the value of the Goods being returned;
(e) any Goods which are bespoke and made to the Customer’s specification cannot be returned.
The risk in the Goods returned to the Company under this clause 5.4 shall remain with the Customer until such Goods have arrived at the Company’s premises and the Company reserves the right to charge the Customer for any Goods found damaged on arrival.
5.5 Risk in the Goods shall pass to the Customer on arrival of the Goods at the Location. Unless otherwise agreed in writing, the Customer shall unload the Goods at its own cost and risk.
5.6 Title to the Goods will not pass to the Customer until the Company has received payment in full and cleared funds for all charges due in respect of the relevant Contract under which the Goods are supplied.
5.7 Until title to the Goods has passed to the Customer, the Customer will:
(a) hold the Goods as a bailee for the Company;
(b) store the Goods separately from all other materials in the Customer’s possession;
(c) take all reasonable care of the Goods and keep them in reasonable and saleable condition;
(d) insure the Goods:
(i) with a reputable insurer;
(ii) from the time and date of delivery;
(iii) against all risks; and
(iv) for an amount at least equal to the Price;
(e) ensure that the Goods are labelled and clearly identifiable as belonging to the Company;
(f) not remove or alter any mark on or packaging of the Goods;
(g) inform the Company as soon as possible if it becomes subject to any of the events set out in clause 10.1;
(h) provide the Company such information concerning the Goods as the Company may request from time to time.
5.8 If, at any time before title to the Goods has passed to the Customer, the Customer has, or the Company reasonably believes the Customer is likely to, become subject to any of the events specified in clauses 10.1, or if either of the circumstances in clause 10.2 occur, the Company shall be entitled to:
(a) repossess all or any of the Goods and to take possession of all or any goods incorporating the Goods; and
(b) require the Customer at the Customer’s expense to redeliver the Goods to the Company and if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them using such transport as may be necessary, or instruct agents to do so.
5.9 The Customer warrants that it is not at the time of entering into the Contract insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
6. COMPANY’S OBLIGATIONS
6.1 The Company will carry out the Services with reasonable care and skill. Practical completion shall be deemed to have been achieved once the Services have been completed and/or the Working Area has been opened and put into use by the Customer. Payment of any outstanding or remaining charges shall be due upon practical completion and shall not be withheld (in full or in part) due to minor snags. Scratches, dents, or signs of damage reported by the Customer after practical completion shall not be accepted by the Company. Subject to clause 6.3, if any visible or latent defect is found in the Company’s workmanship within 12 months of practical completion, then provided that:
(a) the Customer informs the Company by email of such alleged defect promptly and in any event within 5 Business Days of discovery; and
(b) the Customer provides the Company with such access to the Location and alleged defect as the Company may request; the Company shall inspect such alleged defect; and
(c) if in the Company’s reasonable opinion the alleged defect is due to a defect in the workmanship of the Company, then the Company shall carry out such further Services as may be reasonably necessary to rectify such defect and the Company shall thereafter have no further liability to the Customer, subject to clause 6.2 below.
6.2 The Company will endeavour to pass on any warranty or guarantee for the Goods provided to the Company by the manufacturer of the Goods; the Company otherwise excludes all warranties and guarantees in respect of the Goods to the fullest extent permitted by law.
6.3 The Company will not be liable for any defects arising:
(a) where such defect arises by reason of fair wear and tear, wilful damage, negligence, or abnormal working or environmental or natural conditions;
(b) where such defect arises from any drawing, design, information, data, requirement or specification supplied by the Customer or by a third party on the Customer’s behalf (and for the avoidance of doubt, once drawings have been issued by the Company, the Customer shall be solely responsible for reviewing and approving them in order to ensure that they are correct and complete);
(c) if the Company has notified the Customer of the possibility of such a defect arising as a result of the Customer’s instructions, requirements or Order;
(d) to the extent caused by the Customer’s failure to comply with any instructions of the Company;
(e) where the defect is due to any act or omission of the Customer or any third party;
(f) if the total price due to the Company under the Contract has not been paid by the due date for payment;
(g) if the Customer is otherwise in breach of its obligations under the Contract.
6.4 The Company shall not be responsible for the provision of ongoing maintenance services on completion of performance of the Services and it is the sole responsibility of the Customer to maintain the Goods in accordance with manufacturers’ recommendations.
6.5 Subject as expressly provided in these Conditions and except where Goods and/or Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6.6 The Customer acknowledges that it does not enter into the Contract in reliance on any representation, warranty or other provision except as expressly provided in these Conditions.
7. CUSTOMER’S OBLIGATIONS
7.1 Unless the Company has agreed in writing to assume responsibility for any one or more of the matters listed below, the Customer shall in each case at its own cost and expense:
(a) ensure that each Order and any associated documentation is complete and accurate;
(b) ensure that any specification or other information which it provides is complete and accurate and contains all information that the Company may require;
(c) provide the Company with such information as it reasonably requires, co-operate fully with the Company in relation to delivery of the Goods and performance of the Services and comply with such instructions that the Company may issue during the provision of the Goods and/or Services;
(d) ensure that the Location and any equipment that the Customer is to provide to assist the Company in supplying the Goods and/or Services are each available and accessible:
(i) prior to the provision of the Goods and/or Services for such inspections as may be requested by the Company; and
(ii) at the estimated time for delivery of the Goods and/or performance of the Services;
(e) provide the Company with safe and secure storage at or near the Location;
(f) be solely responsible for the security of the Location and its own equipment;
(g) provide the Company with such health and safety information that may apply to the Location;
(h) take all such steps as may be necessary to ensure and preserve the health and safety of the Company, its employees, agents and sub-contractors at the Location and ensure that the Location and any equipment supplied by the Customer is safe and compliant with all relevant health and safety laws and regulations;
(i) protect its own property and belongings (including but not limited to its lifts, staircases, floors and windows) during the delivery of the Goods and/or performance of the Services;
(j) ensure that there is a constant and safe supply of electricity at the Location sufficient for the delivery of the Goods and/or performance of the Services, together with adequate lighting;
(k) ensure that appropriate welfare facilities (including but not limited to toilet facilities) are available to the Company’s employees, agents and sub-contractors during the provision of the Goods and/or Services;
(l) supply such access equipment as the Company may request for the delivery of the Goods and/or performance of the Services;
(m) ensure that all necessary permissions, consents, licenses and approvals are obtained in relation to the performance of the Services (including but not limited to planning permission, building regulations approval, fire officer approval and landlord’s consents); and the Company will not be responsible or liable to the Customer for any delay or failure of the Customer to do so;
(n) ensure that all existing equipment intended to be removed and subsequently re-installed is regularly and properly cleaned and serviced in accordance with the relevant manufacturer’s recommendations or requirements;
(o) ensure that all Quality Assurance Forms are signed upon request by the Company;
(p) provide sufficient parking for vehicles at the Location which is adequate for the off-loading of all Goods and the performance of all Services under the Contract (which, if not so provided, shall incur a fixed charge of at least £60.00 per vehicle per day, unless otherwise agreed in the Company’s quotation);
(q) provide lift access to the Working Area, if the Working Area is not on the ground floor; and
(r) provide any barriers or signage necessary to restrict access to the Working Area during the performance of the Services.
7.2 Without prejudice to the generality of clause 7.1, where the Company will be installing any wall cladding, flooring, cubicles, IPS systems and/or any other washroom installations:
(a) the Customer shall provide the Company with:
(i) a minimum Working Area of 5 metres x 4 metres which shall be kept clear when not being used by the Company; and
(ii) a space which is suitable and which is of sufficient size to accommodate the horizontal storage of 1200 mm x 3000 mm sheets and the storage of potentially inflammable adhesives.
(b) the Customer shall ensure that:
(i) the Working Area and the area immediately adjacent to the Working Area is kept free of all other trades at all times during the performance of the Services (and the Company reserves the right to charge £350.00 per day per man for any return visit to the Location which takes place due to the Working Area or the area immediately adjacent to the Working Area not being kept free of all trades as aforesaid).
(ii) protection is provided for the cladding and the flooring at the end of each day during the performance of the Services, unless otherwise agreed by the Company in writing;
(iii) a minimum temperature of 14 degrees centigrade is maintained within the Working Area both 24 hours prior to installation and during the performance of the Services and immediately following completion of the Services;
(iv) all walls in the Working Area are flat and plumb;
(v) all surfaces within the Working Area are dry enough to yield an acceptable protimeter moisture reading prior to the application of any surface materials;
(vi) all furniture, machinery and equipment shall be moved from the Working Area prior to performance of the Services and if this is not possible, protected by the Customer against damage; and
(vii) all preparatory or building work, together with the removal of electrical services, plumbing and fixtures and fittings is completed prior to the performance of the Services.
7.3 The Customer shall notify the Company of the presence of any asbestos at the Location; a copy of the asbestos records must be provided to the Company prior to the commencement of performance of any Services at the Location.
7.4 In addition to asbestos, the Customer shall provide the Company with advance notice of the presence of any lead or any other type of deleterious material at the Location and shall identify the type and the extent of any such material.
7.5 Nothwithstanding the provisions of clauses 7.3 and 7.4, the Customer shall notify the Company of any safety hazards which may exist or which may arise at the Location and which may adversely affect the Company in the performance of its obligations under the Contract.
8.1 The Company does not limit or exclude its liability:
(a) for death or personal injury caused by its (or its employees) negligence; or
(b) for breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982;
(c) for defective products under the Consumer Protection Act 1987; or
(d) for fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1, the Company’s total aggregate liability in respect of all claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with the Contract shall in no event exceed the amount of the Company’s charges for the Goods and/or Services supplied under the Contract in connection with which such claim is made.
8.3 Subject to clause 8.1 the Company shall not be liable for:
(a) any indirect, special or consequential loss or damage, or
(b) any loss of profit, turnover, business opportunity or damage to goodwill (whether direct or indirect), howsoever arising.
8.4 Without prejudice to the generality of the foregoing, the Company shall not be responsible or liable for:
(a) any breach by the Customer of the Contract (including but not limited to these Conditions);
(b) any act or omission of the Customer or any third party;
(c) any goods or services supplied to the Customer by any third party;
(d) the cost of repairing any pre-existing faults or damage to any part of the Location that the Company discovers in the course of the provision of the Goods or Services;
(e) claims arising from or connected to Goods supplied by the Company but nominated or selected by the Customer or another third party where the Company has expressed doubts to the Customer in respect of such Goods’ availability, suitability, quality or performance;
(f) damages or breakages to glass or glazing where the Services involve the removal or alteration of such glass or glazing; or
(g) the failure of the Customer or any third party to follow any instructions of the Company.
9. FORCE MAJEURE
9.1 The Company will not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it promptly notifies the Customer of the Force Majeure event and its expected duration.
10.1 The Contract may be terminated forthwith at any time by the Company giving written notice to the Customer if:
(a) the Customer commits a material breach (or a series of breaches resulting in a material breach) of the Contract and such breach is not remediable or is not remedied within 10 days of written notice to do so;
(b) the Customer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
(c) the Customer,
(i) negotiates with its creditors for the rescheduling of its debts;
(ii) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction, or
(iii) makes an application to court for protection from its creditors generally;
(d) the Customer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the Customer, or a winding-up order is made in relation to the Customer, other than solely in relation to a solvent amalgamation or reconstruction;
(e) a receiver or administrative receiver is appointed in relation to the Customer or any of its assets;
(f) any creditor of the Customer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Customer’s assets, and such attachment or process is not discharged within 14 days;
(g) the Customer takes or suffers any action similar to any of the above in any jurisdiction;
(h) there is a material change in the management, ownership or control of the Customer;
(i) the Customer suspends trading, ceases to carry on business, or threatens to do either;
(j) the Customer, (being an individual) dies or ceases to be capable of managing his own affairs or there is a petition issued for his bankruptcy.
10.2 In addition to its rights under clause 10.1 the Company may suspend or terminate any Contract with the Customer at any time by giving written notice to the Customer if:
(a) the Customer has failed to pay any amount due under the Contract on the due date;
(b) in the reasonable opinion of the Company there is any risk to the health and safety of the Company’s employees, agents or subcontractors at the Location (or any other location attended by the Company in the provision of the Goods and/or Services).
10.3 On termination of the Contract for any reason:
(a) the Customer will immediately pay all invoices of the Company then outstanding;
(b) the Company will, within 30 Business Days, invoice the Customer for all Goods and/or Services delivered or provided but not yet invoiced and the Customer will pay such invoice within 5 Business Days of the date of such invoice;
(c) the Customer will within 5 Business Days return all materials, equipment and other property of the Company then in its possession or control; if it fails to do so, the Company may enter onto any premises owned by or under the control of the Customer and take possession of said materials, equipment and property;
(d) the accrued rights and liabilities of the parties will not be affected; and
(e) any clause which expressly or by implication is to survive termination will do so.
11. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION
11.1 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Goods and/or 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. 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 any and all Intellectual Property Rights developed by the Company in performing any Services or providing any Goods shall become vested and shall vest in the Company absolutely.
11.2 If any Goods or Services are to be supplied by the Company in accordance with any express or implied instructions of the Customer (including but not limited to any specifications or drawings submitted by the Customer), the Customer shall hold the Company harmless and shall fully and promptly indemnify the Company against all loss, damages, 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 Right of any other person which directly or indirectly results from the Customer’s instructions.
11.3 The Customer and the Company agree that in the course of the Company providing Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that 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. Neither party shall use any Confidential Information for any purpose other than the discharge of its obligations under the Contract.
12.1 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deductions for any tax, levy, duty, charge, or withholdings of any kind now or in the future.
The parties are independent businesses and not principal and agent, nor partners, nor employer and employee.
If any part of these Conditions or the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the Contract and the remaining provisions of the Conditions and the Contract will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
(a) by first-class post: two Business Days after posting;
(b) by hand: on delivery;
(c) by fax or email: one Business Day after the fax transmission or email was sent.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
12.6 Rights of Third Parties
The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The terms of these Conditions shall prevail over those of the Order.
12.8 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
12.9 Succession and Assignment
This Contract will bind and benefit each party’s successors and personal representatives. The Customer may not assign any of its rights or obligations under this Agreement. For the avoidance of doubt, the Company may engage sub-contractors to provide the Services or any part thereof.
12.10 Governing Law & Jurisdiction
The Contract shall be governed by the laws of England and any disputes thereunder shall be submitted to the exclusive jurisdiction of the English Courts.