THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
TERMS AND CONDITIONS
1. Basis of Contract
a) Gemini AMPM Ltd (the Company) will submit a Quote Template/Service proposal to the Customer (as defined in the Quote Template) for the supply of equipment and/or provision of services. Any quote given by the Company is only valid for a period of 30 days from its date of issue. Where a Quote Template is issued by the Company to the Customer, the Quote Template shall only be deemed to be accepted when the Company issues written acceptance of the Quote Template at which point, and on which date the contract shall come into existence.
b) Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the equipment and/or services described in them. They shall not form part of the Contract or have any contractual force.
c) Variation and or amendment to the Quote Template must be agreed by the Company and any variations or amendments may be subject to additional costs and time.
d) The Contract and the Quote Template constitute the entire agreement between the parties. 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.
e) All of these Conditions shall apply to the supply of both equipment and services except where application to one or the other is specified.
2. Supply of Equipment
a) The equipment to be supplied is described in the Company’s Quote Template.
b) The Company reserves the right to amend the Quote Template if required by any applicable statutory or regulatory requirements, and the Company shall notify the Customer in any such event.
c) Where stated on the Quote Template, the Company shall supply and install the equipment at the location set out in the Quote Template or such other location as the parties may agree.
d) Any dates quoted for delivery and installation of the equipment are approximate only, and the time of delivery is not of the essence. The company shall not be liable for any delay in delivery of the equipment that is caused by a Force Majeure Event (as defined below) or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply and/or installation of the equipment.
e) Completion of installation of the equipment shall occur upon completion of commission and handover to the Customer.
3. Supply of Services
a) The Company shall supply the services to the Customer in accordance with the Quote Template in all material respects.
b) The Company shall use all reasonable endeavours to meet any performance dates specified in the quote or any Quote Template, but any such dates shall be estimates only and will be subject to the factors within the Company’s control. Time shall not be of the essence for performance of the services.
c) The Company reserves the right to amend the Quote Template if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the services, and the Company shall notify the Customer in any such event.
d) The Company warrants to the Customer that the services will be provided using reasonable care and skill.
4. Customer’s Obligations
a) The Customer shall:
i. ensure that the terms of the quote and any information it provides in any Quote Template is complete and accurate;
ii. co-operate with the Company in all matters relating to the services and supply of equipment;
iii. provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company;
iv. provide the Company with such information and materials as the Company may reasonably require in order to supply the equipment and services and ensure that such information is complete and accurate in all material respects. No responsibility is accepted by the Company for malfunction of equipment that may occur due to incorrect or lack of information so being provided;
v. prepare the Customer’s premises for the supply of the services;
vi. obtain and maintain all necessary licences, permissions and consents which may be required for the equipment and/or the services before the date on which the services are to start;
vii. comply with all applicable laws, including health and safety laws;
viii. keep all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation;
ix. comply with any additional obligations as set out in the Quote Template;
x. ensure the Company is allowed to carry out the works during normal working hours when drilling noise will be acceptable, that being Monday to Friday, 08.00hrs to 17.30hrs excluding Bank and Statutory Holidays, having freedom of access and continuity of works, unless otherwise detailed within the Quote Template; and
xi. provide the Company with reasonable working site conditions and environment and assumes normal working height without the use of special provision scaffolding or high-level access equipment which, if so required is assumed to be provided by others, free of charge for use and provided in compliance with all safety standards.
b) If the Company’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 (Customer Default):
i. without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the 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 Company’s performance of any of its obligations;
ii. the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4(b); and
iii. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5. Charges and Payments
a) The price for equipment shall be the price set out in the Quote Template or, if no price is quoted, the price set out in the Company’s published price list as at the date of delivery.
b) The charges for services shall be on a time and materials basis:
i. the charges shall be calculated in accordance with the Company’s standard daily fee rates, as set out in the Quote Template;
ii. the Company shall be entitled to charge an overtime rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages as set out in the Quote Template; and
iii. the Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the company engages in connection with the services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the services, and for the cost of any materials.
c) In respect of equipment and its installation, the Company shall invoice the Customer on or at any time after completion of delivery. In respect of services, the Company shall invoice the Client following completion of the works as specified in the Quote Template.
d) The Customer shall pay each invoice submitted by the Company:
i. within 30 days of the date of the invoice; and
ii. in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
e) All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the services at the same time as payment is due for the supply of the services.
f) If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5(f) will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
g) All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
h) The risk in the equipment shall pass to the Customer on completion of delivery. Title of any property or equipment installed under this Contract remains with the Company until full and final payment is made to the Company.
6. Data protection
a) The Company will warrant for a twelve-month period from date of installation of the equipment that the equipment shall:
i. conform with their description and any applicable specification;
ii. be free from material defects in design, material and workmanship; and
iii. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
b) The warranty in clause 7(a) applies to equipment, installation and maintenance services supplied by the Company. Where the installation, servicing and maintenance of this equipment is not provided by the Company then the warranty in clause 7(a) shall not apply to the service involved in attending the Customer’s premises to repair or replace the equipment the subject of the warranty. The Customer will be required to pay for the services in this regard and the Company shall invoice the Customer in this respect.
c) Subject to clause 7(d), if:
i. the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the equipment does not comply with the warranty set out in Clause 7(a);
ii. the Company is given a reasonable opportunity of examining such equipment; and
iii. the Customer (if asked to do so by the Company) returns such equipment to the Company’s place of business at the Customer’s cost,
the Company shall, at its option, repair or replace the defective equipment, or refund the price of the defective equipment in full.
d) The Company shall not be liable for the equipment’ failure to comply with the warranty set out in clause 7(a) in any of the following events:
i. upon express instruction from the Company not to do so, the Customer makes any further use of such equipment after giving notice in accordance with clause 7(c);
ii. the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the equipment or (if there are none) good trade practice regarding the same;
iii. the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
iv. the Customer alters or repairs such equipment without the written consent of the Company;
v. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
vi. where the equipment has not been competently maintained and serviced by a recognised and competent company employed with the Company’s knowledge and approval; or
e) Except as provided in this clause 7, the Company shall have no liability to the Customer in respect of the equipment failure to comply with the warranty set out in clause 7(a).
f) The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
g) These Conditions shall apply to any repaired or replacement equipment supplied by the Company.
8. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
a) The Company has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £500,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
b) Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation;
iii. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
iv. defective products under the Consumer Protection Act 1987
c) Subject to clause 8(b):
a) the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
b) the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Contract.
d) This clause 8 shall survive termination of the Contract.
a) For service maintenance contracts: Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than three months’ written notice.
b) Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
i. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
ii. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business
iii. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
iv. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
c) Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
d) Without affecting any other right or remedy available to it, the Company may suspend the supply of services under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9(b)(ii) to clause 9(b)(iv), or the Company reasonably believes that the Customer is about to become subject to any of them.
10. Consequences of termination
a) On termination of the Contract:
i. the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
ii. the Customer shall return all of the Company Materials and any equipment which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
b) Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
c) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after of the Contract shall remain in full force and effect.
a) Force majeure. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes whether involving the workforce of the Company or any other party, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Company from providing any of the services and/or equipment for more than 12 weeks, the Company, or the Customer shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer/Company.
b) Assignment and other dealings.
i. The Company may at any time subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights and obligations under the Contract, and the Company shall notify the Customer in any such event.
In performing its obligations under the agreement, the Company will ensure that each of its sub-contractors, comply with all applicable laws, statutes, regulations and codes from time to time in force including but not limited to the Bribery Act 2010 and the Modern Slavery Act 2015.
ii. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
i. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or Company’s of the other party, except as permitted by clause 11(c)(ii).
ii. Each party may disclose the other party’s confidential information:
A. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11(c); and
B. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
iii. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
d) Entire agreement.
i. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
ii. Each party acknowledges that in entering into the Contract it does not rely on, and 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
e) Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
f) Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
g) Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
h) Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
i) Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
j) Jurisdiction. 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 the Contract or its subject matter or formation.
January 2020 V3