TERMS AND CONDITIONS
PLEASE NOTE THAT OUR LIABILITY IS LIMITED UNDER CLAUSE 18. 1. INTERPRETATION
a day other than a Saturday, Sunday or public holiday, in England when banks in London are open for business.
these terms and conditions.
the contract between the you and us for the supply of the Services and Equipment in accordance with the Contract Details, the Quotation and these Conditions.
all documents, work product and materials, developed by us or our agents, subcontractors and employees as part of or in relation to the design aspect of the DS&I Services, in any form, including without limitation any plans, data, reports and specifications (including drafts).
Delivery and Installation Dates
the approximate date(s) for the delivery and installation of the Equipment as set out in the Quotation or otherwise specified by us.
where the Contract Details specify that these are the Services, the design services, and the supply and installation of any Equipment and any Software, to be supplied to you as detailed in the Quotation.
where the Contract is:
(a) for DS&I Services, as defined in the Contract Details; or
(b) for Maintenance Services, the equipment, accessories and conducting media provided you under a previous contract for DS&I Services and/or
such replacement equipment, accessories, conducting media or parts provided you as part of the
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
as defined in the Contract Details.
where the Contract is for the supply of Maintenance Services, the period of 12 months from the Services Start Date and each successive period of 12 months thereafter.
where the Contract Details specify that these are the Services, the maintenance services to be supplied to you as detailed in the Quotation and in clause 13.
any information, materials, plans, drawings, specifications and data in your possession or control which we require to perform the DS&I Services.
your order for the Equipment and/or the Services whether in a purchase order or in your verbal or written approval of the Quotation.
Price Quotation Specification
as defined in the Contract Details.
as defined in the Contract Details.
the specifications contained in the Quotation setting out your design, operational, installation and performance requirements for the Equipment and/or the Services.
Services Start Date
as specified in the Contract Details, being either the DS&I Services or the Maintenance Services.
the software necessary for to enable you to control certain Equipment, as described in the
as defined in the Contract Details.
in the case of the DS&I Services, the period of 12 months commencing on the date on which the tests referred to in clause 9.4 have been successfully completed.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 “Writing” includes e-mails. When we use the words “writing” or “written” in these Conditions, this includes e-mails.
2. THESE CONDITIONS
2.1 What these Conditions cover. These are the terms and conditions on which we supply
the Equipment and the Services to you.
2.2 Why you should read them. Please read these Conditions carefully before you sign the Contract. These Conditions tell you who we are, how we will provide any Equipment and the Services to you, how you and we may change or end the Contract, what to do if there is a problem, and other important information. If you think that there is a mistake in these Conditions or require any changes, please contact us to discuss.
3. INFORMATION ABOUT US AND HOW TO CONTACT US
3.1 Who we are. We are Equippd Limited a company registered in England and Wales. Our company registration number is 08537406 and our registered office is at 145b Walton Road, East Molesey, Surrey, England, KT8 0DU. Our registered VAT number is 219815394.
3.2 How to contact us. You can contact us by telephoning us or by writing to us by e-mail or post using the contact information specified in the Contract Details. This includes where you have questions or complaints about the Services and/or any Equipment.
3.3 How we may contact you. If we have to contact you, we will do so by telephone or by writing to you by e-mail or post using the contact information specified in the Contract Details.
4. OUR CONTRACT WITH YOU
4.1 The Quotation. A Quotation is not an offer to provide the Services and/or Equipment to
you. Your acceptance of any Quotation shall not bring any contract into existence.
4.2 How we will accept an Order. Your Order constitutes an offer to purchase any Equipment and the Services specified in a Quotation in accordance with the Contract. We shall then issue the Contract Details. Only when you and we have signed the Contract Details or we have otherwise accepted your offer in writing will the Contract shall come into existence.
4.3 If we cannot accept an Order. If we are unable to accept an Order, we will inform you of this. This might be because of unexpected limits on our resources which we could not reasonably plan for, because a credit reference we have obtained for you does not meet our minimum requirements or because we have identified an error in the Quotation.
4.4 Additional Equipment and Services. If we issue an additional Quotation, you place an Order in respect of it and we expressly accept your Order in writing, this will vary the Contract to incorporate the additional Quotation.
5. CHANGES YOU WISH TO MAKE
5.1 Changes to the Services. If you wish to make a change to the Specification, the Services or the Equipment as set out in the Quotation, please contact us. We will let you know if the change is possible. If it is possible we will let you know, by issuing an additional quotation or amended Quotation, about any changes to the Price, any additional payments that are required, any changes to any delivery date(s) or anything else which would be necessary as a result of your requested change, and ask you to confirm whether you wish to go ahead with the change.
5.2 Changes to be expressly agreed. Your requested changes to the Specification, the Services or the Equipment will not be effective except in accordance with clause 21.8.
6. OUR RIGHTS TO MAKE CHANGES
6.1 Minor changes. We may change the Equipment and/or the Services:
6.1.1 to reflect changes in relevant laws and regulatory requirements that apply to the Equipment and/or the Services; and
6.1.2 to implement minor technical adjustments and improvements. These changes will not affect your use of the Equipment and/or the Services.
7. PROVIDING THE DS&I SERVICES
Clauses 7 to 12 (inclusive) shall apply only in the event the Contract Details state that we are to perform the DS&I Services.
7.1 When we will provide the DS&I Services. We will supply the DS&I Services to you from the Services Start Date until we have completed the DS&I Services. The estimated dates for completion of milestones in the DS&I Services are as set out in the Quotation.
7.2 Time for performance of the DS&I Services. Any dates specified in the Quotation or otherwise agreed with you for the supply of the DS&I Services or any milestones shall be estimates only and time shall not be of the essence for performance of the DS&I Services.
7.3 We are not responsible for delays outside our control. If our performance of the DS&I Services is affected by an event outside our control then:
7.3.1 we will contact you as soon as reasonably possible to let you know;
7.3.2 unless the event is within your control and/or is or results from any failure or delay by other consultants or contractors engaged by you, we will use reasonable endeavours to minimise the effect of the delay;
7.3.3 provided we do the above, we will not be liable for delays caused by the event;
7.3.4 unless the event is within your control and/or is or results from any failure or delay by other consultants or contractors engaged by you, if there is a risk of substantial delay of more than 6 months you may contact us to end the Contract and receive a refund for any DS&I Services or Equipment you have paid for but not yet received.
7.4 If you do not allow us access to provide the DS&I Services. If you do not allow us access to the Location as arranged (and you do not have a good reason for this) we may charge you additional costs incurred by us as a result. If, despite our reasonable efforts, we are unable to contact you or re-arrange access to the Location we may end the Contract (see clause 12.1).
7.5 What will happen if you do not provide the Materials to us. We may need certain Materials from you so that we can provide the DS&I Services to you. We will contact you to ask for these. If you do not provide them within a reasonable time of us asking for them, or you provide us with incomplete or incorrect Materials, we may either end the Contract (see clause 12.1) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result.
7.6 Your permission to use the Materials. You give us, or shall procure from the owner(s) of the relevant Intellectual Property Rights, the right to use the Materials for all purposes necessary in connection with the supply of the DS&I Services.
7.7 Your warranty regarding the Specification and the Quotation. You warrant to us that the Specification contains all your requirements in respect of the DS&I Services and the Equipment. You are responsible for ensuring that the contents of the Quotation and Specification are complete and accurate.
7.8 Acceptance of designs. We will not supply and/or install any Equipment until you have accepted the Deliverables. We will not be liable for delay in performing the supply and/or installation where this results from your delay in accepting such Deliverables within a reasonable time.
7.9 Ownership of Deliverables. We retain ownership of all Deliverables and all Intellectual Property Rights created by us or on our behalf in the Deliverables, whether accepted by you or not. We grant you the limited right to use the accepted Deliverables and Intellectual Property Rights only to the extent that we provide the DS&I Services to you. All other rights in any Deliverables are reserved.
7.10 Reasons we may suspend the DS&I Services. We may have to suspend the DS&I Services to:
7.10.1 deal with technical problems or make minor technical changes;
7.10.2 update the DS&I Services to reflect changes in relevant laws and regulatory requirements;
7.10.3 make changes to the DS&I Services as requested by you (see clause 4.4).
7.11 We may also suspend the DS&I Services if you do not pay or comply. If you do not pay us for the DS&I Services and/or any Equipment (see clause 16.4) or comply with a necessary requirement in the Contract when you are supposed to, we may suspend supply of the DS&I Services until you have paid us the outstanding amounts and complied with the necessary requirement(s). We will contact you to tell you we are suspending the supply. We will not suspend the DS&I Services where you dispute an unpaid invoice and payment is required under clause 16.4.3. As well as suspending the DS&I Services we can also charge you interest on your overdue payments (see clause 16.7).
8.1 What happens if the Equipment is delivered prior to installation. In the event that the Equipment is delivered to you prior to installation, the Equipment will be at your risk from the time of delivery until commencement of the installation and during that period you will keep and insure the Equipment in accordance with clause 8.3.
8.2 When ownership of the Equipment passes to you. Ownership of the Equipment will not pass to you if we have not received payment of:
8.2.1 all sums payable in connection with the DS&I Services and the Equipment itself; and
8.2.2 such other sums as will from time to time become payable by you to us on any account including any interest on such sums.
8.3 What you must do until ownership of the Equipment has passed.
8.3.1 You must hold the Equipment on a fiduciary basis as our bailee.
8.3.2 Until we have installed the Equipment, you must keep the Equipment separate from other equipment so it is identifiable as our property, you must keep it safe and secure, inside and in a dry environment.
8.3.3 You must not destroy, damage or deface any identifying mark or packaging on or relating to the Equipment.
8.3.4 You must keep the Equipment insured for its full price against all risks, and hold the proceeds of any insurance monies received on trust for us.
8.3.5 You must not encumber in any way, charge or allow any person to take as security, the Equipment; We shall be entitled to payment for the DS&I Services and the Equipment regardless of whether ownership of the Equipment has passed from us.
8.4 When your right to possession of the Equipment will terminate. Your right to possession of the Equipment will terminate immediately, and we shall have the right to suspend further deliveries of Equipment if, before ownership of the Equipment has passed to you:
8.4.1 you breach any of the obligations in clause 8.3;
8.4.2 we lawfully end the Contract for DS&I Services, whether under clause 12 or clause 17; or
8.4.3 one of the events specified in clauses 17.1.3 to 17.1.11 (inclusive) happens to you.
8.5 Our right to inspect or recover Equipment. You grant us, our agents and employees an irrevocable licence, upon reasonable notice, to enter any location where the Equipment is or may be kept in order to inspect it or, where your right to possession has terminated, to recover it.
9. DELIVERY AND INSTALLATION OF THE EQUIPMENT
9.1 Before installation of the Equipment. We shall carry out an inspection of the Location to confirm that it is suitable for the installation of the Equipment. If it is in our opinion that the Location is not suitable, we will notify you of this and what needs to be rectified before we can install the Equipment. We will not be liable for any delay in performing the installation until a reasonable period has passed after the Location has been made suitable.
9.2 When the Equipment will be delivered and installed. Subject to you complying with the terms of the Contract, the Equipment will be delivered and installed on the Delivery and Installation Dates. The Delivery and Installation Dates shall be estimates only and, as such, time shall not be of the essence.
9.3 Postponing the installation of the Equipment. You shall inform us as soon as reasonably practicable if the you wish to cancel or postpone the installation of the Equipment. If we receive notice of such cancellation or postponement less than 5 Business Days before installation is due to commence, we may charge you a fee of an amount equal to the elements of the Price relating to the provision of labour for installation of the Equipment. Such fee shall be without prejudice to any other rights or remedies we may have in respect of any breach of the Contract by you.
9.4 After the Equipment has been installed. During the installation of, and on completion of the installation, of the Equipment, we will carry out tests to confirm that it is in accordance with the Specification and our warranty at clause 15.1.2, and should be in accordance with our warranty at clause 15.1.4. Should the tests not be successful, we will carry out any necessary work on the Equipment and action further tests as soon as reasonably practicable. Upon successful completion of the tests and successful demonstration of the Equipment to you, the DS&I Services shall be complete. You shall sign such acceptance of the DS&I Services and Equipment as we may reasonably require.
10. YOUR USE OF THE SOFTWARE
We shall install the Software on the relevant Equipment under the standard licence terms of the relevant third party owner or licensor of such Software. The licence terms are available on the website of the Software provider and you shall familiarise yourself with these. You agree to comply with such licence terms and to be responsible for any loss or damage which we may suffer as a result of your breach of such terms.
11. YOUR RIGHTS TO END A CONTRACT (FOR DS&I SERVICES ONLY)
11.1 When you can end the Contract. You may end a Contract for DS&I Services for a
reason set out below at any time by writing to us. The relevant reasons are:
11.1.1 we have told you about an error in the Price or a material error in the description of the DS&I Services and/or Equipment and you do not wish to proceed;
11.1.2 there is a risk the DS&I Services may be significantly delayed because of events outside our control (see clause 7.3);
11.1.3 you have a legal right to end the Contract because of something we have done wrong.
If you are ending the Contract on this basis, the Contract will end immediately and we will refund you in full for any DS&I Services and/or Equipment which have not been provided or have not been properly provided.
12. OUR RIGHTS TO END A CONTRACT (FOR DS&I SERVICES ONLY)
12.1 We may end the Contract if you break it. Without affecting our other rights and remedies (and without prejudice to any right to terminate under clause 17), a Contract for DS&I Services may be terminated at any time by us writing to you if:
12.1.1 you do not make any payment to us when it is due and you still do not make payment within 14 days of us reminding you that payment is due;
12.1.2 you do not, within a reasonable time of us asking for them, provide us with complete and correct Materials so that we can provide the DS&I Services to you;
12.1.3 you do not, within a reasonable time, give us access to the Location to enable us to provide the DS&I Services to you.
12.2 We may stop providing the DS&I Services. If you have not fully complied with the obligations under the Contract at the time we are due to commence installation of the Equipment, we shall be entitled to remove the Equipment from the Location and give notice to you demanding performance of your obligations within the time period set out in the same.
You will be liable for all loss, damage, costs and expenses suffered by us as a result of your breach and, without prejudice to our other rights and remedies, we may require payment of such sums prior to installation of the Equipment.
13. MAINTENANCE SERVICES
Clauses 13 and 14 shall apply only in the event the Contract Details state that we are to perform the Maintenance Services.
13.1 When we will provide the Maintenance Services. We shall provide the Maintenance Services from the Services Start Date for a Maintenance Year, and for each subsequent Maintenance Year save where the Contract is terminated under clause 14.
13.2 Maintenance visits. We shall provide the number of maintenance visit(s) set out in the Quotation at such time(s) on such date(s) as we both agree (but during usual working hours and on Business Days). During such visit(s) we shall carry out the routine inspection and testing of the Equipment set out in the Quotation. Should we find a fault or malfunction, or otherwise recommend any repair or replacement, we shall inform you of our recommendations.
13.3 Additional charges. Subject to the use of any time included without charge within the Maintenance Services, our rates for support and attendance at the Location are set out in the Quotation. You will be notified in advance of the amount of any additional charges to be paid.
13.4 If you find a fault. If you experience a fault or malfunction with the Equipment during the Maintenance Year, you shall notify us immediately.
13.5 Rectification of faults. If we find a fault or malfunction or you notify us of one, we shall attempt to rectify the fault or malfunction remotely or by discussing the problem with you on the telephone. Where it is not possible to attempt to rectify the fault or malfunction remotely or by discussing the problem with you on the telephone, we shall use reasonable endeavours to attend the Location within a reasonable time.
13.6 Costs of replacement Equipment, parts and labour. If, in our opinion, a fault or malfunction cannot reasonably be rectified without an item of Equipment, or parts within such an item, being replaced by us, we shall inform you of the additional charges for the replacement Equipment or the replacement parts and any labour for the replacement. Where you agree to pay such additional charges, we shall carry out the necessary replacement within a reasonable time. At our discretion, we may require payment for such replacement Equipment or parts before the replacement or may invoice for the additional charges after replacement.
13.7 What if a fault cannot be repaired at the Location. If, in our opinion, a fault or malfunction cannot be repaired at the Location, we shall be entitled to remove the relevant Equipment for repair or replacement.
13.8 Delivery and Installation of replacement Equipment and parts. We shall inform you of the Delivery and Installation Dates for any replacement Equipment or parts. The Delivery and Installation Dates shall be estimates only and time shall not be of the essence.
13.9 What happens if you object. If you object to the removal of Equipment for repair, to the additional charges for replacement Equipment or parts or labour, or to the relevant Delivery and Installation Dates, we shall have no further obligation to provide the Maintenance Services with respect to that fault or malfunction, but we will continue to provide Maintenance Services for the remaining Equipment. You will not be entitled to a refund of any part of the Maintenance Fee.
13.10 Replacement Equipment and/or parts.
13.10.1 We reserve the right to supply new, second-hand or reconditioned replacement parts for any Equipment for when we are carrying out the Maintenance Services.
13.10.2 On replacement, replaced Equipment and/or parts shall become our property and you warrant that we shall have free and unencumbered title to such replaced Equipment and/or parts.
13.10.3 On replacement, but subject to full payment of the Maintenance Fee for the Maintenance Year in which the fault or malfunction arose and any additional charges for the replacement Equipment and/or parts, the replacement Equipment and/or parts shall become your property.
13.10.4Until ownership has passed, clause 8.3 shall apply to the replacement Equipment and/or parts as if reference to the “DS&I Services” was to the “Maintenance Services”.
13.10.5Your right to possession of the replacement Equipment and/or parts will terminate immediately if, before ownership has passed to you:
(a) you breach any of the obligations in clause 8.3;
(b) we lawfully end the Contract for Maintenance Services, whether under clause 14.1.3, clause 14.1.4 or clause 17; or
(c) one of the events specified in clauses 17.1.3 to 17.1.11 (inclusive) happens to you.
13.11 Exclusions from Maintenance Services. Unless otherwise agreed, the Maintenance Services shall not include maintenance in respect of:
13.11.1 the Software;
13.11.2 any equipment, accessories, conducting media or parts not installed by us;
13.11.3 any Equipment which has been upgraded, altered, modified or maintained by someone else;
13.11.4 any Equipment that has been removed from the Location or relocated within the Location;
13.11.5 any work properly carried out by other suppliers or tradespersons; and
13.11.6 any defect, failure, fault or malfunction in the Equipment resulting from those matters specified in clauses 15.2.3(a) to 15.2.3(j) (inclusive).
14. RIGHTS TO END A CONTRACT (FOR MAINTENANCE SERVICES ONLY)
14.1 Reasons for terminating the Maintenance Services. Without affecting our other rights and remedies (and without prejudice to any right to terminate under clause 17.1), a Contract for Maintenance Services may be terminated:
14.1.1 with effect from the end of a Maintenance Year, by you giving notice to us within 14 days of receipt of notification of the Maintenance Fee for the subsequent Maintenance Year under clause 16.6;
14.1.2 with effect from the end of a Maintenance Year, if either of us gives notice to the other no later than 30 days before the end of that Maintenance Year that we do not wish to continue the Maintenance Services for the subsequent Maintenance Year;
14.1.3 by us giving you notice in writing if you fail to pay an instalment of the Maintenance Fee on its due date for payment;
14.1.4 save where we have required you to pay additional charges for replacement Equipment or parts in advance, by us giving you notice if you fail to pay any additional charges for replacement Equipment or parts within 14 days of the due date;
14.1.5 if in our opinion the Equipment can no longer be maintained in good working order by the provision of replacement Equipment or parts or is not capable of repair or you prevent us from entering the Location to action any maintenance to the Equipment.
15.1 What we warrant. We warrant to you that:
15.1.1 We have full right and title to the Equipment and the right to pass title in the Equipment to you;
15.1.2 The Equipment shall be as described, fit for purpose and of satisfactory quality;
15.1.3 We shall provide the Services with reasonable care and skill;
15.1.4 During the Warranty Period, the Equipment will be in accordance with the Specification and be free from defects arising from defective materials or workmanship; and
15.1.5 In the case of any replacement carried out under clause 13 as part of the Maintenance Services, during the remainder of the Maintenance Year, any replacement Equipment or parts will be free from defects arising from defective materials or workmanship.
15.2 What our warranties are subject to. Our warranties given under clause 15.1 are subject to the following:
15.2.1 Any claims made pursuant to this clause must be notified to us within the Warranty Period with sufficient detail and evidence of any defect;
15.2.2 Replacement Equipment or parts are warranted only for the unexpired portion of the Warranty Period or the relevant Maintenance Year (as applicable);
15.2.3 We shall not be liable for any defect, failure, fault or malfunction resulting from:
(a) Your failure to operate the Equipment or the Software, and keep it in a suitable environment (including as regards to temperature, humidity and power supply), in accordance with the operational manual(s) and guidance provided to you by us or for any purpose for which it was not designed;
(b) The relocation of the Equipment within the Location or the transportation of the Equipment to another location;
(c) Any breach of any of your obligations pursuant to the Contract;
(d) The upgrading, modification or alteration of, or interference with, the Equipment or the Software in any way;
(e) Any misuse, failure to maintain, improper maintenance, negligence or other damage to the Equipment or the Software by you or any third party;
(f) The acts or omissions of any other suppliers or tradespersons engaged by you for the supply of goods, services or digital content at the Location;
(g) Accidental or intended damage or fair wear and tear;
(h) Fire, flood, storm or other natural disaster or weather, water, radiation, power surge or failure of utilities;
(i) Your use of the Equipment following notification of a claim, defect, failure, fault or malfunction to us; or
(j) Anything else the liability for which is excluded or limited under the Contract.
15.2.4 We have no liability for any defect, failure, fault or malfunction in the Software. Please refer to the licence terms and any warranty of the Software provider.
16. PRICE AND PAYMENT
16.1 What happens if we got the Price wrong. We take all reasonable care to ensure that the Price is correct. It is always possible that, despite our best efforts, the Services and/or the Equipment may be incorrectly priced. If we enter into the Contract where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the Contract, refund you any sums you have paid and not perform the Services or supply the Equipment.
16.2 Fluctuation in supplier prices. The price of the Equipment from our suppliers may change between the date of the Contract and the date we order it from our suppliers. Any increase or decrease in the price of the Equipment shall be invoiced or credited (as applicable) to you on conclusion of the DS&I Services.
16.3 We will pass on changes in the rate of VAT. If the rate of VAT changes between the date of the Contract and the date of any supply of the Services and/or Equipment for VAT purposes, we will adjust the rate of VAT that you pay, unless you have already paid for the Services and Equipment in full before the change in the rate of VAT takes effect.
16.4 When you must pay for the Price for the DS&I Services.
16.4.1 Any part of the Price stipulated in the Quotation to be paid as an advance
payment must be paid on entering into the Contract.
16.4.2 Any part of the Price stipulated in the Quotation to be paid on a specific date or on completion of a specific milestone must be paid on the relevant date.
16.4.3 Where the Quotation requires you to pay an instalment of the Price following invoice by us, such an invoice must be paid within 30 days after the date of the invoice.
16.5 When you must pay for the Maintenance Fee. The Maintenance Fee is payable either annually in full and in advance on entering into the Contract or monthly in advance in twelve equal monthly instalments by direct debit.
16.6 Increases in the Maintenance Fee. Before the expiry of a Maintenance Year, we shall notify you in writing of the Maintenance Fee payable for the next Maintenance Year. We reserve the right to increase the Maintenance Fee for the next Maintenance Year.
16.7 We can charge interest if you pay late. If you do not make any payment to us by the due date, we may charge interest to you on the overdue amount at the rate of 8% a year above the base lending rate of Barclays Bank Plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
16.8 Payment requirements. All payments made under the Contract shall be made in cleared funds, in full and without deduction, set-off or withholding, on the due date for payment.
16.9 What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
16.10 Time of the essence. Time shall be of the essence for all payments payable by you under the Contract.
17. RIGHTS TO END ANY CONTRACT
17.1 Other reasons for ending the Contract. The Contract may be ended by one of us
writing to the other at any time if:
17.1.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
17.1.2 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
17.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed either unable to pay its debts or as having no reasonable prospect of so doing so;
17.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
17.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
17.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
17.1.7 the holder of a qualifying floating charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
17.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
17.1.9 the other party (being an individual) or one of the is the subject of a bankruptcy petition, application or order, or dies;
17.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
17.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1.3 to clause 17.1.10 (inclusive);
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17.1.12 if the other party is a business, the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
17.1.13 there you are subject to a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
17.2 Consequences of ending the Contract. If either of us ends the Contract for any reason:
17.2.1 you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of any Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
17.2.2 the ending of the Contract shall not affect our or your rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination;
17.2.3 you shall if we require in writing, at our discretion, either to deliver up or destroy and delete irretrievably any Deliverables.
17.3 You must compensate us if you break the Contract. If we end the Contract in any of the situations set out in clauses 12.1, 14.1.3, 14.1.4 or 17, or in any other case where we lawfully end the Contract as a result of your breach, you will pay us compensation for the loss, damage, costs and expenses we incur as a result of your breach. We may deduct such sums from any amount we owe to you.
18. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU AND LIMITATIONS AND EXCLUSION OF LIABILITY
18.1 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; any other liability which cannot be limited or excluded by applicable law.
18.1.1 If you are purchasing the Services and Equipment as a consumer, it also includes any breach of your legal rights:
(a) to receive Equipment which is as described and matches information we provided to you and any sample seen or examined by you; and
(b) to receive Equipment which is of satisfactory quality and fit for any particular purpose made known to us;
(c) for us to supply the Services with reasonable skill and care; and
(d) for defective products under the Consumer Protection Act 1987.
18.2 When we are liable for damage to your Location. If we are providing Services at the Location, we will make good any damage to the Location or your property caused by us while doing so. However, we are not responsible for:
18.2.1 the cost of repairing any pre-existing faults or damage to the Location or your property;
18.2.2 the cost of repairing any damage that it was agreed we could cause as a result of installation of the Equipment;
18.2.3 the cost of repairing any damage that was agreed to be repaired, or was reasonably foreseeable would be repaired, by other suppliers or tradespersons engaged, or to be engaged, by you to supply services at the Location.
18.3 If you are purchasing the Services and/or Equipment as a consumer.
18.3.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with the Contract, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this Contract, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made, both we and you knew it might happen, for example, if you discussed it with us before we entered into the Contract.
18.3.2 We are not liable for business losses. We only supply the Services and the Equipment for domestic and private use. If you use the Services for any commercial, business or re-sale purpose, we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
18.4 If you are purchasing the Services and/or Equipment as a business.
18.4.1 We will have no liability to you, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, for any:
(a) loss of profit;
(b) loss of business;
(c) loss of contracts;
(d) loss of goodwill;
(e) business interruption;
(f) loss of business opportunity;
(g) loss of anticipated savings;
(h) loss of use or corruption of software, data or information; or
(i) any indirect or consequential loss.
18.4.2 With regards to a defect in the supply and installation of Equipment or the Equipment itself, our liability shall be limited to repairing or replacing or re- installing the Equipment in question.
18.4.3 If you purchase the Services and/or Equipment as a business, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
18.5 In any case, our liability is limited as follows.
18.5.1 Where we introduce other suppliers to you and you contract with them directly for the supply of other goods, services or digital content to you, we are not liable for their acts or omissions or any defects or malfunctions in what they supply to you.
18.5.2 We are not liable for the acts or omissions of any other suppliers or tradespersons engaged by you for the supply of goods, services or digital content at the Location including:
(a) any damage they cause to the Equipment;
(b) any interference (including electromagnetic interference) with the operation of the Equipment caused by them, or anything installed by them, where we have made you and/or them aware of any relevant operational, installation and performance requirements for the Equipment;
(c) any defects or malfunctions in the goods, services or digital content they supply to you and any defects or malfunctions which may be caused in the Equipment as a result;
18.5.3 We are not liable for any failure in the operation or performance of the Equipment, or for any loss of use or corruption of software, data or information, caused by events outside our control, including: (i) any act of God, natural disaster or contamination; (ii) terrorist attack, civil commotion, riot or war; (iii) collapse of buildings, fire, explosion or accident; (iv) any labour or trade dispute, strike, industrial action or lockout; (v) burglary or criminal damage; (vi) or any interruption or failure of utility service.
18.5.4 We have no liability for any failure, fault or malfunction in the Software, any failure, fault or malfunction in the Equipment or loss of use or corruption of software, data or information caused by any failure, fault or malfunction in the Software, and any claim by a third party that the Software infringes their Intellectual Property Rights.
18.5.5 We are not liable for any defect, failure, fault or malfunction in the Equipment resulting from those matters specified in clauses 15.2.3(a) to 15.2.3(j) (inclusive).
18.5.6 We have no liability for loss of use or corruption of software, data or information.
18.5.7 Subject to the remainder of this clause 18, our liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
(a) for physical damage to the Location and any other property caused by the Equipment and/or the Services and/or their supply where the same arises from our breach of contract or our negligence or the negligence of subcontractors providing the Services on our behalf: £100,000 per event or in aggregate in relation to a single event or series of events;
(b) otherwise arising out of or in connection with the supply of the Services and/or the Equipment and/or the Contract itself:
(i) in the case of the Maintenance Services and any Equipment supplied pursuant to them, the Maintenance Fee for, plus any additional charges paid in, the Maintenance Year in which the cause of action arises, but subject to a maximum of £500,000; or
(ii) in the case of the DS&I Services and any Equipment supplied pursuant to them, the Price paid, accounting for any additional charges and credits paid or given, in relation to the DS&I Services, but subject to a maximum of £500,000.
19. HOW WE MAY USE YOUR PERSONAL INFORMATION
20. YOUR GENERAL OBLIGATIONS
20.1 Further obligations. You agree throughout the continuance of the Contract you must:
20.1.1 perform your obligations under the Contract in a timely manner and co-operate with and assist us so that we can perform our obligations under the Contract;
20.1.2 take all necessary precautions to protect the health and safety of our employees, agents and sub-contractors whilst at the Location;
20.1.3 make available any delivered Equipment and supply all Materials necessary for us to discharge our obligations under the Contract;
20.1.4 keep and operate the Equipment and the Software in a proper and careful manner and ensure that only competent persons are allowed to operate it;
20.1.5 not make any addition, modification or adjustment to the Equipment and the Software.
20.2 Warranties as regards consents. You warrant that you have obtained all necessary consents, including landlord consent, building regulations approval, listed building consent, conservation area consent and planning permission as may be required for the installation of the Equipment at the Location and you shall notify us promptly of any specific requirements of such consents which may apply to the installation. You shall be responsible for all losses and costs we incur as a result of providing the Services where such consents are not in place or where we infringe any requirement of such a consent of which you have not made us aware.
21. OTHER IMPORTANT TERMS
21.1 Confidentiality. Each of us undertakes that we shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other, except as permitted in this clause 21.1. Each of us may disclose the other’s confidential information:
21.1.1 to our employees, officers, representatives or advisers who need to know such information for the purposes of exercising our rights or carrying out our obligations under or in connection with the Contract; and
21.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither of us shall use the other’s confidential information for any purpose other than to exercise our rights and perform our obligations under or in connection with the Contract.
21.2 We may transfer the Contract to someone else. We may transfer our rights and obligations under the Contract to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the Contract. If you are unhappy with the transfer you may contact us to end the Contract within four weeks of us telling you about it and we will refund you any payments you have made in advance for Services not provided.
21.3 You may not transfer the Contract to someone else. You may only transfer your rights or your obligations under the Contract to another person with our written consent.
21.4 Nobody else has any rights under this Contract. The Contract is between you and us. No other person shall have any rights to enforce any of its terms.
21.5 If a court finds part of this contract illegal, the rest will continue in force. Each of the clauses of these Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
21.6 Even if we delay in enforcing the Contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under the Contract, or if we delay in taking steps against you in respect of your breaking the Contract, that will not mean that you do not have to do those things or prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide any Services, we can still require you to make the payment at a later date.
21.7 Joint and several liability. Where you are more than one person, you shall be jointly and severally liable for your obligations under the Contract.
21.8 How we can vary the Contract. No variation to the Contract shall have effect unless expressly agreed to in writing by each of us.
21.9 How to give notice under the Contract.
21.9.1 Any notice or other communication given to a party under or in connection with
the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service to the address of the other party stated in the Contract Details or at its registered office (if a company); or
(b) provided proof of delivery is obtained, sent by e-mail to the address specified in the Contract Details.
21.9.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
(c) if sent by e-mail, provided proof of delivery is obtained, at 9.00 am on the next Business Day after transmission.
21.9.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21.10 The Contract contains all terms between us. The Contract constitutes the entire agreement between you and us, and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to their subject matter.
21.11 Exclusion of representations. You and we agree that we shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation based on any statement in the Contract.
21.12 Which laws apply to the Contract and where you may bring legal proceedings. The Contract is governed by English law and you and we can bring legal proceedings in respect of the Contract only in the English courts.