DEFINITIONS
‘Supplier’ means Trade Fire Suppression Ltd. Registered Office: 5 Hagley Court South, The Waterfront, Brierley Hill, West Midlands DY5 1XE. Company Number 08266675.
‘Customer’ means any person, body of persons, agent, firm or Company or group of Companies (acting in its own right or through any employee or agent).
’Customer default’ failure of the Customer to follow procedural instructions provided by the Supplier/ Manufacturer in relation to any services provided or any act or omission of the customer its employees, servants or agents whilst using the system.
‘Initial period’: the first 12 months from the Commencement Date.
‘Goods’ all Equipment, Materials, Stock and Components supplied and installed by the Supplier as per any quotation.
‘Maintenance’ means maintenance, remedial works and supply of goods, as per any quotation provided by the Supplier.
‘Services’ means either Maintenance Services or the provision of Projects in accordance with the Customer’s request.
‘Projects’ means the design, supply of materials, installation, commissioning and verification as per any quotation provided by the Supplier.
1. BASIS OF CONTRACT
1.1. The Customer’s Order constitutes an offer by the Customer to purchase Services/Projects from the Supplier in accordance with these Conditions.
1.2. The Customer’s Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). To the extent that any of the Services are provided before signature they will be treated as being performed under this Contract
1.3. 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 trade, custom, practice or course of dealing.
1.4. In the event of any conflict between these terms and conditions and any other terms and conditions, whether expressed or implied, incorporated or referred to in any communication from the Customer then these terms and conditions shall prevail and the Customer’s terms and conditions shall be excluded in whole for the Contract.
1.5. No amendment or variation of these terms and conditions or oral promise or commitment related to it shall be valid unless committed to in writing and signed by or on behalf of both parties.
1.6. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue
1.7. For Service Contracts only :The Customer may ask the Supplier to provide additional maintenance/remedial Services and if the Supplier agrees, it will be entitled to provide a further quote in respect to those Services and will not be obliged to provide the same until the Customer has placed an order or provided any other written acceptance or the work has commenced as per clause 1.2 above.
2. DURATION
2.1. For Service Contracts only : The initial period of the Contract is 12 months unless otherwise agreed between the parties. The Contract will automatically roll over and continue after the initial period until it is terminated by either party in accordance with clause 10.
3. CUSTOMER’S OBLIGATIONS
3.1. The Customer shall:
3.1.1. ensure that the details of any Order and any other information it provides, to include any Specification(s), drawings or designs are complete and accurate. The Supplier reserves the right to adjust its costs should it later be advised of information not previously provided by the Customer that will affect the costs of the Services provided;
3.1.2. co-operate with the Supplier in all matters relating to the provision of Service;
3.1.3. provide the Supplier, its employees, agents, consultants and subcontractors, with unencumbered access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
3.1.4. provide the Supplier with such information, works and materials as the Supplier may reasonably require to enable them to provide the Services, and undertake that such information is complete and accurate in all material respects;
3.1.5. obtain and maintain all necessary licences, permits, permissions and consents which may be required for the Services before the date on which the Services are to start;
3.1.6. enable the Supplier to comply with all applicable laws, including health and safety laws;
3.1.7. 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, and maintain the Supplier’s Materials, tools and equipment in good condition until returned to the Supplier, and not dispose of or use the same other than in accordance with the Supplier’s written instructions or authorisation;
3.1.8. comply with any additional obligations as set out in the Suppliers quotation.
3.2. 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 OR follow any instructions provided by the Supplier/manufacturer in the use of any Service (Customer Default) then:
3.2.1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of all 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;
3.2.2. the Supplier shall not be liable for any costs or losses, consequential or otherwise, sustained or incurred by the Customer arising directly or indirectly whether foreseen or unforeseen from the Supplier’s failure or delay to perform any of its obligations;
3.2.3. 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.
3.3. The customer is responsible for ensuring that their own operatives receive the correct training, at any given time, for the operation of any system OR Goods installed or provided by the Supplier in so far as it applies to them.
3.4. Where any of the Supplier’s employees are admitted to the Customer’s premises pursuant to the Contract, the Customer undertakes that it will take such measures as are necessary to ensure that, as far as reasonably practicable, its premises and any plant, equipment, articles or substances in such premises are safe and without risk to the health of the Supplier’s employees. The Customer shall indemnify the Supplier against all loss, claim and demands suffered by the Supplier as a result of any breach of this condition by the Customer.
4. SUPPLIERS OBLIGATIONS
4.1. The Supplier shall exercise reasonable skill and care in the performance of the Services.
4.2. The Supplier will provide a quotation in relation to any Service requested and the same will remain open for 30 days, thereafter the Supplier may revise the quotation.
4.3. For Service Contracts only: In cases of emergency, the Supplier will promptly respond to the Client’s call for Services and emergency call-out telephone contact number will be provided for office and out of office hours.
4.4. Except in an emergency, maintenance/remedial and any other Services will be carried out between the hours of 8.30am to 5pm on weekdays unless otherwise agreed between the parties.
4.5. Major maintenance/remedial Services: If these are likely to involve disruption to the Customer’s business activities (if carried out during normal working hours) may be undertaken during unsocial hours provided the parties have agreed in advance. (This may include weekend working). Work carried out during unsocial hours may carry an additional charge.
4.6. All Services to be undertaken by the Supplier shall be carried out by competent and suitably qualified personnel of the Supplier to the reasonable satisfaction of the Client.
4.7. Whenever relevant, Services, Goods and components shall conform to relevant manufacturers’ and equipment suppliers’ specifications, and all materials and spare parts shall be obtained from the original equipment manufacturers or from suppliers approved by them.
4.8. Where specified in the Quotation, the Supplier shall submit regular reports to the Customer detailing Services carried out, repairs and adjustments made, condition of Goods and other information which the Customer may from time to time reasonably require.
4.9. Upon Practical Completion of any project, the Supplier will offer one session to train designated personnel of the Customer and the Customer will ensure that all such training is conveyed to the appropriate personnel in their business.
4.10. The Customer may require the Supplier to provide additional training for its personnel in which case the Supplier will be entitled to impose additional charges.
5. CHARGES AND PAYMENT
5.1. All prices shall be paid in sterling unless specifically requested otherwise by the Supplier.
5.2. The Supplier reserves the right to increase the price of the Services, by giving notice to the Customer any time, to reflect any increase in the cost of Goods or otherwise to the Supplier that is due to;
5.2.1. any factor beyond the control of the Supplier to include market forces;
5.2.2. any request by the Customer to change the delivery date(s) quantities design or specification already agreed by the parties and described in the Suppliers quotation;
5.2.3. any delay caused by the Customer in any way to include failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.
5.3. All Services are quoted exclusive of VAT which will be added as appropriate when invoiced at the price prevailing at the time of Contract unless otherwise agreed in writing with the Supplier.
5.4. The Supplier may invoice the Customer on completion of the Services OR at intervals to be agreed with the Customer OR on a pro forma basis. Payment in respect to a Pro Forma invoice is immediate and before commencement of any Service.
5.5. Payment in respect to any Invoices is strictly within 30 days of the end of the month of the date stated on the Supplier’s invoice unless otherwise agreed between the parties in writing, and in no circumstances, shall the Customer be entitled to make any set-off, counterclaim, deduction or otherwise withhold monies due (other than any deduction or withholding of tax as required by law).
5.6. 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: –
5.6.1. the Customer shall pay interest on any overdue sum at a daily rate of 10% OR 5% above bank rate whichever is the greater until final payment;
5.6.2. the Supplier is entitled to claim such interest at the rate calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, together with additional costs to reflect the reasonable administrative and legal costs incurred in recovering the outstanding monies. This does not affect any other rights of the Supplier under the Contract;
5.6.3. the Supplier will be entitled to suspend performance of any Service and will give 7 days’ notice in writing to the Customer before suspending such Services. If full payment of the outstanding amount is received by the Supplier before expiry of the notice period, the suspension notice will be cancelled;
5.6.4. in the event the Customer has an approved credit account the Supplier may suspend it OR withdraw it OR reduce the Customer credit limit or bring forward the due date for payment. Such action will be taken without notice.
5.7. Any Customer payments shall not be subject to any third-party arrangements and are in accordance with the terms of any credit account agreed with the Supplier.
5.8. No express terms in the contract regarding lack of signature, date of submission of our invoices or return of any documents will prevent payment of any sums otherwise due.
6. VARIATION TO SCOPE OF WORKS
6.1. Any initial quotation is based on information, drawings and specifications supplied by the Customer. Variations to any quotation may occur at the Customer’s request or as a result of the Suppliers site survey. The Supplier reserves the right to issue an amended quotation which may lead to a variation in the costs originally quoted even if received after the contract has commenced or has been acknowledged.
6.2. In such circumstances the Supplier reserves the right to issue a revised quotation and the additional Services will only proceed upon receipt of a written Order from the Customer.
6.3. The Supplier will not be obliged to accept any reduction in the scope of the Services where such reduction is more than 5% of the Contract value.
6.4. The Supplier reserves the right to substitute any Goods not forming part of any specifications of the quoted Services agreed in writing by the Supplier and the Customer agrees to accept the same.
7. RISK DELIVERY AND TITLE
7.1. The Risk in any Goods delivered to site shall pass to the Customer on completion of delivery.
7.2. Title to any Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) where payment has become due. Payment shall include all interest and additional costs due under these terms and conditions.
7.3. Until Title to Goods has passed to the Customer, the Customer shall:
7.3.1. store them separately 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 them;
7.3.3. maintain them 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. give the Supplier such information relating to them as the Supplier may require from time to time.
7.4. If before Title to any Goods passes to the Customer the Customer becomes insolvent, has an administrative receiver appointed for its business or it is compulsorily or voluntarily wound up:
7.4.1. the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
7.4.2. the Supplier may at any time:
7.4.2.1. require the Customer, Insolvency Practitioner or Administrator to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
7.4.2.2. if they fail to do so promptly, the Customer, Insolvency Practitioner or Administrator will permit the Supplier their servant or agent to enter any premises of the Customer or of any third party where the Goods are stored and take possession of them.
7.5. Any dates provided by the Supplier for the delivery of Services are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Supplier they have paid no regard to any quoted delivery dates of Goods and Services ordered.
7.6. If the Customer fails to take delivery of any Goods or Services or any part of them on the due date and fails to provide any instruction or documents required to enable the Services to be delivered on the due date the Supplier may, after giving written notice to the Customer, store or arrange for the storage of any Goods and, the Customer accepts that on the service of a Notice:
7.6.1. Risk in such Goods shall pass to the Customer and they will be responsible for insuring the same against all risks;
7.6.2. delivery of Services shall be deemed to have taken place; and
7.6.3. the Customer shall pay to the Supplier all costs and expenses including the costs of this Contract and additional charges by way of storage and insurance charges arising therefrom.
7.7. The Supplier shall not be liable for any costs, penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause or at all, nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract.
8. CANCELLATION
8.1. Orders for Goods may be cancelled by written notice at any time before they are allocated to the Contract but if a cancellation notice is received after Goods have been purchased and allocated to the Contract then the Customer will be liable to pay for such Goods and cannot be returned to the Supplier for a refund.
9. LIMITATION OF LIABILITY
9.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
9.1.2. fraud or fraudulent misrepresentation; and
9.1.3. as expressly stated in these conditions.
9.2. Subject to clause 9.1 the Supplier excludes all liability for loss, damage or expense to include loss of profit, consequential losses or otherwise caused to the Customer its property, goods, persons or the like, directly or indirectly resulting from breach of contract, its negligence (or any other claim in tort), breach of statutory duty or delay or failure or malfunction of the systems or components provided by the Supplier, or for whatever reason.
9.3. “Services” provided by the Supplier does not include the investigation or rectification of any default or other problem resulting from:
9.3.1. the improper use or operation of Goods by the Customer or third-party including failure to comply with operating instructions or guidance;
9.3.2. modification or repair to any of the Goods made by any person other than the Supplier or a person authorised by the Supplier;
9.3.3. accidental damage to Goods; or
9.3.4. failure by the Customer to implement recommendations and training previously advised by the Supplier.
9.4. Under no circumstances shall the Supplier have any liability of whatever kind for;
9.4.1. any defects resulting from wear and tear, accident, Customer Default or the customers improper use of the system except if carried out in accordance with the instructions or advice provided by the Supplier/Manufacturer;
9.4.2. for any damage or failure to any system maintained by the them if such damage or failure is through third party intervention whether deliberately, innocently or negligently;
9.4.3. any variations in the quantities or dimensions of any Services or changes to the specifications or substitution of any Goods. If the variation or substitution does not materially affect the characteristics of the Services, and the substituted Goods are of a quality equal or superior to those originally specified.
9.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.6. If the Customer establishes that any Goods have not been delivered, are damaged, defective, of incorrect quantity the Supplier reserves the right to replace OR repair with similar Goods which are missing, lost or damaged OR may allow the Customer credit for their invoice.
9.7. The Supplier will not be liable to the Customer for any defect arising in relation to any design or specification by the Supplier if any adjustments, alterations or other work has been carried out by any person except as authorised by the Supplier.
9.8. The Supplier will not be liable for any losses sustained by the client in the event of any ‘client default’
10. TERMINATION
10.1. For Service Contracts only: After the ‘initial period’ in clause 2.1 either party may give the other 90 days’ notice in writing to terminate this agreement.
10.2. In respect of all other contracts: The Supplier may at its discretion suspend or terminate the supply of Services if the customer fails to make payment within 30 days of the due date or otherwise defaults in any of its obligations under this contract or becomes insolvent, has an administrative receiver appointed of its business or is compulsory or voluntarily wound up or the Supplier bona fide believes that any of those events may occur.
10.3. Upon termination the Customer shall pay the Supplier all monies properly due up to the date of termination to include for any Goods ordered by the Supplier.
10.4. If the Supplier terminates this contract under clause 10.2, the Customer will be liable to pay the Supplier a reasonable sum to compensate the Supplier for its loss of profit on the Contract and the Supplier shall be given access to recover any Goods at any customer site.
10.5. Termination shall not affect the accrued rights and liabilities of the parties at the termination date.
11. CUSTOMER SERVICES
11.1. The Supplier must be notified in writing of any Customer complaint within 5 days of discovery of the grounds of complaint and will detail the nature of the complaint.
11.2. Any complaint that any Goods or Services have been delivered and are damaged, are not of the correct quality, or do not comply with their description shall be notified in writing by the Customer to the Supplier within 3 days of delivery.
11.3. The Supplier shall be afforded reasonable opportunity to investigate any complaints made under this clause and the Customer shall if so requested in writing by the Supplier promptly return any components or materials which are the subject of any claim securely packed to the Supplier for examination. Carriage will be paid by the Customer unless otherwise agreed in writing by the Supplier.
11.4. The Supplier shall have no liability with regard to any claim where the Customer has failed to comply with this clause 11.
12. GENERAL
12.1. The Supplier may sub-Contract the performance of the Services or the Contract in whole or in part.
12.2. The Supplier shall have a lien on Customer property in the Supplier’s possession for all monies due at any time from the Customer and may use, sell or dispose of that property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of such amounts on 28 days’ notice in writing to the Customer. After accounting to the Customer for any balance remaining after payment of any amounts due to the Supplier and the costs of sale or disposal the Supplier shall be discharged of any liability in respect of the Customers property.
12.3. If the Goods OR Services are prepared in accordance with any design or specification provided by the Customer, the Customer shall compensate the Supplier in full on demand for all claims, expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the design or specification infringes the rights of any third party.
12.4. Except for that which is expressly agreed between the parties to be included in the Goods or Services, all tools patterns, materials, drawings, specifications and other data provided by the Supplier shall remain its property and all technical information, patentable, copyright and registered designs arising from the executions of any orders shall be the property of the Supplier
13. CONFIDENTIALITY
13.1. The Customer shall not at any time whether before or after the termination of these Terms and Conditions or the Contract divulge or use any unpublished technical information deriving from the Supplier or any other confidential information in relation to the Supplier’s affairs or business or method of carrying on business.
14. FORCE MAJEURE
14.1. The Supplier shall not be liable for any delay, or other failure to perform any part of the Contract, as a result of any factor outside of the Suppliers control, whether an Act of God or otherwise.
15. INFORMATION AND DATA
15.1. The Supplier shall take all reasonable precautions to preserve the integrity and prevent any corruption or loss, damage or destruction of any Customer data and information and will comply with the Data Protection Act 1998 including the General Data Protection Regulation (Regulation (EU) (GDPR) and all applicable Statutory requirements about the processing of Personal Data and privacy.
15.2. In the event of termination of this Agreement the Supplier shall when directed to do so by the Customer, instruct all its agents and sub-contractors to, erase information and data provided by the Customer and all copies of any part of the information and data provided from the Supplier’s systems and magnetic data unless it is necessary to retain the same for lawful reason.
16. GOVERNING LAW AND JURISDICTION
16.1. These Terms and Conditions shall be governed by and constructed in accordance with the Law of England and Wales.
16.2. 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 this contract or its subject matter or formation.
