ELECTRICAL POWER ENGINEERING SERVICES LIMITED t/a E.P.E.S.
Standard Terms and Conditions of Sale
1. CONTRACT
The following definitions and rules of interpretation apply in these Conditions.
1.1. Definitions:
Conditions: these terms and conditions as amended from time to time in accordance with clause 26.
Contract: the contract between the Seller and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Seller.
Force Majeure Event: has the meaning given to it in clause 11.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Seller.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s written acceptance of the Seller’s quotation.
Services: the services, including without limitation installation or maintenance services, supplied by the Seller to the Customer as set out in the Seller’s quotation and/or the Service Specification (if any).
Service Specification: the description or specification for the Services (if any, and if separate from the Seller’s quotation) provided in writing by the Seller to the Customer.
Seller: Electrical Power Engineering Services t/a E.P.E.S., registered in England and Wales with company number 04203336.
Seller Materials: has the meaning given in clause 8.5.8.
1.2. Interpretation:
1.2.1. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative 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. The headings to these Conditions are for convenience or reference only and shall have no effect on the construction of the Conditions.
2. GENERAL
2.1. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Seller issues written acceptance of the Order at which point and on which date the Contract shall come into existence. For the avoidance of doubt, the Customer’s acceptance of the Seller’s quotation shall not be binding until the Customer’s Order is accepted in writing by the Seller.
2.3. In all Contracts between the Seller and the Customer these Conditions shall be deemed to be incorporated except to the extent that they may be expressly varied in writing by a director of the Seller. No other conditions or terms, whether oral or written, regardless of the date or dates upon which they were sent to the Seller or exhibited by the Customer shall affect or vary these Conditions and/or the terms or conditions upon which the Contract is made. For the avoidance of doubt the Seller shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or any other communication from the Customer.
2.4. No representative, agent or salesman who is not a director of the Seller has any authority to amend or waive any of these Conditions or other provisions of the Contract and, in accordance with 2.3 above, no amendment by a director shall be binding on the Seller unless made in writing.
2.5. If any provision or part-provision of these Conditions 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 should 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 these Conditions.
2.6. Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.7. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. LIMITS OF CONTRACT
3.1. All quotations are made subject to acceptance by the Customer within 30 days of the date thereof (unless otherwise stated in writing by the Seller) and subject to the Goods and/or Services being available and/or the quotation not being withdrawn by the Seller prior to acceptance. All Goods and/or Services are liable to be withdrawn from sale without notice.
3.2. All quotations relate only to such Goods and/or Services as are specified therein. Drawings, dimensions and weights submitted must be taken to be approximate and do not form part of the Contract. All extras and accessories ordered but not specified in the Seller’s quotation will be charged for separately as will the costs of all alterations, additions and other work undertaken at the request of the Customer.
3.3. The acceptance of the Seller’s quotation must be accompanied by sufficient information to enable the Seller to proceed with the order forthwith; otherwise the Seller shall be at liberty to amend the quotation price(s) to cover any increased costs in labour or materials which may take place after acceptance.
3.4. The Seller will make every effort to execute all Orders at the price indicated (subject to clauses 3.2 and 3.3 above) (the “Quotation Price”) at the time of the acceptance but reserves the right to raise the Quotation Price in the event of any increase in the Seller’s costs (including, but not limited to, the cost of raw materials) that may take place between the date of acceptance of the Seller’s quotation and the date such Goods are ready for delivery and/or date for provision of Services.
3.5. The Goods are carefully inspected and submitted to standard tests (as outlined in the Seller’s quotation) before despatch. If additional or special tests are required or if the Customer wishes that any test to which the Goods are to be subjected take place in the presence of the Customer or its representative and/or at a site designated by the Customer, the Seller reserves the right to charge an additional fee. If requested by the Customer, the Seller shall give the Customer 7 days’ notice of when any tests are due to take place on the Goods. In the event of the failure of the Customer or its representative attending at the date and time specified by the Seller, the tests shall proceed in their absence, but, any additional fee in respect of those tests shall still be payable by the Customer.
3.6. To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Goods Specification. This clause 3.6 shall survive termination of the Contract.
3.7. The Seller reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Seller shall notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1. Where it is agreed in the Order that the Customer shall collect the Goods from the Seller, then except where otherwise stated in writing by the Seller, the Goods are deemed delivered when they are made ready for collection at the Seller’s premises.
4.2. Where it is agreed in the Order that the Seller shall deliver the Goods to the Customer, then the Goods will be despatched according to the Customer’s instructions and subject to clause 5.3, shall be deemed to be at the Customer’s risk from the time of loading by the Seller. The Customer is advised to insure the Goods from the time that risk in them transfers to it.
4.3. Goods sold delivered (rather than ex-works) will be despatched by any means of transport at the Seller’s option unless otherwise agreed in writing. All unloading and demurrage charges which may be incurred will be charged to the Customer. It is an implied condition that where the Seller sells Goods delivered to the Customer’s premises or site that adequate facilities exist for so doing by road and/or rail and for unloading.
4.4. Any packing or protection shall be at the discretion of the Seller. All such packing will be charged to the Customer unless it is specifically included in the Quotation Price.
4.5. The Customer shall be solely responsible for the proper unloading of the Goods. If the Seller assists the Customer in unloading or removing the Goods from the point of delivery in such circumstances neither the Seller nor any sub-contractor of the Seller shall have any liability whatsoever for loss or damage to the Goods or other property of the Customer or any third party and the Customer shall indemnify the Seller in respect thereof.
4.6. The Seller reserves the right to make delivery by instalments, unless otherwise expressly agreed in writing. The period during which instalments may be delivered and the quantity of Goods delivered in each instalment shall be at the Seller’s discretion. Where Goods are delivered in instalments, each delivery shall constitute a separate contract (to which these Conditions apply) and failure by the Seller to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as repudiated.
5. TIME FOR DELIVERY
5.1. Delivery times where given will be approximate and date from the acceptance of the Customer’s Order by the Seller; under no circumstances shall delivery times be, or be capable of being, made of the essence of the Contract.
5.1.1. Delivery times are calculated from receipt by the Seller of the Customer’s Order providing all details and full approvals to enable the Seller to proceed without interruption to manufacture and/or supply the Goods.
5.1.2. Lead times quoted are estimated based on the Seller’s workload at the point of receipt of the Customer’s Order.
5.1.3. Delivery times when given are subject to the payment provisions contained in clause 12 below.
5.2. The Seller will subject to clause 9.1, not be liable for any loss, damage, loss of profit or expense whether direct, indirect or consequential and which may be suffered by the Customer by reason of late delivery of the Goods whatsoever or howsoever arising from any such late delivery. Furthermore, the Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.3. If the Seller does not receive payment of the Quotation Price (or relevant part thereof) within 14 days of notification that the Goods are available for collection or delivery (as agreed) the Seller shall be at liberty to arrange storage either at the Seller’s works or elsewhere at the Customer’s risk and charge reasonable costs for storage, insurance and demurrage from the date of notification that the Goods are available for collection or delivery until actual collection or delivery. The storage costs, insurance and demurrage incurred by the Seller will be notified and invoiced to the Customer on a weekly basis.
6. LOSS OR DAMAGE IN TRANSIT
6.1. Subject to clause 9.1, in the event of loss or damage of Goods in transit from any cause whatsoever (including causes which might be considered fundamental breach of contract) the liability of the Seller shall be limited (at the Seller’s option) to replacing or repairing the Goods or refunding the purchase money. In no circumstances shall the Seller be liable for any loss, damage, loss of profit or expense whether direct, indirect or consequential and which may be sustained by the Customer as a result of the Goods being lost or damaged in transit.
6.2. The Seller shall not be liable for any such damage as is referred to in 6.1 above unless the Seller and the carriers are notified of such damage or loss within 7 days of delivery. It is the responsibility of the Customer to examine the Goods immediately on receipt.
7. GUARANTEE
7.1. Subject to clause 7.3 and clause 7.4 below, If any Goods manufactured, rebuilt or reconditioned by the Seller are found to be faulty within the offered guarantee period (which shall, unless otherwise agreed in writing by the Seller, be 12 months, after the date of notification of readiness to despatch), then, provided that the fault has not been caused or aggravated by a circumstance listed in clause 7.2 below, and provided further that the Seller is notified in writing promptly and at the latest within 7 days of the discovery thereof, the Seller undertakes to rectify the fault at its own cost, or if, at the Seller’s sole discretion, it deems it necessary, replace the Goods or the faulty part.
7.2. The Seller shall not be liable for any failure in the Goods’ if:
7.2.1. the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.1;
7.2.2. the defect arises because the Customer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
7.2.3. the defect arises as a result of the Seller following any drawing, design or Goods Specification supplied by the Customer;
7.2.4. the Customer alters or repairs such Goods without the written consent of the Seller;
7.2.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
7.2.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.3. A Customer who invokes the guarantee in clause 7.1 must return the Goods at its own risk and cost to the Seller’s works unless it is specifically agreed that the Seller will do the work (or make a preliminary inspection) at the Customer’s premises.
7.4. Engine driven generating sets, electronic components and engine repairs do not carry any warranty unless the Seller specifically notifies in writing otherwise.
7.5. No guarantee is given in respect of equipment not manufactured, rebuilt or reconditioned by the Seller. In such cases the Customer must satisfy itself that the equipment will meet its requirements and rely on the manufacturer’s guarantee where available.
7.6. Subject to the provisions clause 9.1 this guarantee shall be the Customers sole remedy in relation to any fault with or in the Goods.
8. SUPPLY OF SERVICES AND CUSTOMER’S OBLIGATIONS
8.1. The Seller shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2. The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3. The Seller reserves the right to amend the Service Specification 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 Seller shall notify the Customer in any such event.
8.4. The Seller warrants to the Customer that the Services will be provided using reasonable care and skill.
8.5. The Customer shall:
8.5.1. ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
8.5.2. co-operate with the Seller in all matters relating to the Services;
8.5.3. provide the Seller, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services;
8.5.4. provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.5.5. prepare the Customer’s premises for the supply of the Services;
8.5.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.5.7. comply with all applicable laws, including health and safety laws;
8.5.8. keep all materials, equipment, documents and other property of the Seller (Seller Materials) at the Customer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation; and
8.5.9. comply with any additional obligations as set out in the Service Specification and the Goods Specification.
8.6. If the Seller’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):
8.6.1. without limiting or affecting any other right or remedy available to it, the Seller 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 Seller’s performance of any of its obligations;
8.6.2. the Seller shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this clause 8.6; and
8.6.3. the Customer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Customer Default.
9. LIMITATION OF LIABILITY: The Customer’s attention is particularly drawn to this clause.
9.1. Nothing in the Contract shall limit or exclude the Seller’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
9.1.4. breach of the terms implied by Section 12 of the Sale of Goods Act 1979 (title and quiet possession);
9.1.5. defective products under the Consumer Protection Act 1987; or
9.1.6. any other liability which cannot be limited or excluded as a matter of law
9.2. Subject to clause 9.1:
9.2.1. the Seller shall under no circumstances whatever be liable to the Customer or any third party,whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any:
(a) loss or damage to any premises, stocks or other property;
(b) loss of profit;
(c) loss of goodwill;
(d) loss of contract or opportunity;
(e) pure economic loss; or
(f) any indirect or consequential loss; and
9.2.2. the Seller’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 statutoryduty, or otherwise, shall in no circumstances exceed 100% (one hundred percent) of the price of the Goods or Services provided by the Seller under the Contract arising under or in connection with which the claim is made.
9.3. 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.
9.4. This clause 9 shall survive termination of the Contract.
9.5. Notwithstanding the other provisions of these Conditions, the Seller may supply Goods on hire to the Customer (Hired Goods). Any hire of the Hired Goods shall be on the Seller’s separate terms of hire.
10. CANCELLATION AND VARIATION BY THE CUSTOMER
Orders accepted by the Seller cannot be varied or cancelled without the Seller’s written consent. The Seller reserves the right to make charges to cover overheads, profit and direct costs incurred or otherwise suffered by the Seller to the date of acceptance of the cancellation and/or to cover any amendments to the Goods and/or Services Specification or otherwise of the Goods and/or Services ordered, as requested by the Customer.
11. CANCELLATION BY THE SELLER
11.1. If, owing to hostilities (whether war has been declared or not), government restrictions, strikes, riots, civil commotion, difficulty or inability to obtain suitable raw materials, epidemic, pandemic, Covid-19, devaluation, major movements in international exchange rates, or causes of any other nature beyond the Seller’s reasonable control (any such event being a Force Majeure Event), the Seller decides it to be unreasonable or uneconomical to deliver the whole or any part of an Order, the Seller shall without liability have the right on giving notice in writing to the Customer to cancel the Order or any undelivered balance of the Order.
11.2. In the event of cancellation under this clause 11, the Customer shall not be entitled to make any claim arising from such cancellation other than a refund (without interest) of any advance payment made or a reasonable proportion thereof in respect of the cancellation of part of such Order as the case may be.
12. PAYMENT
12.1. Unless otherwise agreed in writing payment of the price for the Goods and/or Services shall be in cash or cleared funds with Order, or, where a credit account has been approved, in cash or cleared funds within 30 days of issue of invoice by the Seller to the Customer.
12.2. For orders to the value of £15,000.00 or more the Seller will specify in writing, prior to acceptance of the Customer’s Order, the breakdown and intervals at which stage payments will need to be made and/or monthly evaluations and the Customer agrees to make payment as specified by the Seller.
12.3. Prices for Goods and/or Services will be quoted by the Seller as exclusive of either carriage or Value Added Tax (VAT) unless otherwise stated in writing by the Seller. Where applicable, VAT will be added to the Seller’s invoice/s at the appropriate rate prevailing at the time of raising the invoice/s or otherwise as required by the relevant VAT statutory regulations.
12.4. All equipment quoted as ex-stock is offered subject to being unsold prior to acceptance by the Seller of the Customer’s Order.
12.5. Title and risk:
12.5.1. Notwithstanding delivery and the passing of risk in the Goods to the Customer, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of Goods and all other goods agreed to be sold by the Seller to the Customer for which payment is then due, together with any interest or other sums payable under the relevant contract in respect of the Goods and such other goods.
12.5.2. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected, insured and identified as the Seller’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
12.5.3. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so, forthwith to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
12.5.4. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Customer does so all monies owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
12.5.5. The Seller shall have a general lien on all goods and property of the Customer in its possession until payment is made in full and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as the Seller thinks fit and apply any proceeds towards such debts.
12.6. No disputes as to quality or performance of the Goods or Services shall entitle the Customer to delay payment unless the Seller shall agree in writing liability thereon in an agreed sum.
12.7. In the event of the Customer failing to comply with the Seller’s terms of payment the Seller (without prejudice to any legal rights of action) reserves the right without notice to discontinue forthwith the provision to the Customer of any further Goods and/or Services.
12.8. When delivery of the Goods is made by instalments the Seller may invoice the Customer for each instalment.
12.9. The Seller does not accept any set-off or retention against the price/s invoiced for Goods, and/or Services supplied unless agreed in writing by the Seller prior to acceptance of the Customer’s Order/s.
12.10. The Seller reserves the right at any time before proceeding or proceeding further with an Order to demand full or partial payment of monies due and payable under the Contract and any other contract between the Seller and the Customer.
12.11. If the Customer defaults in any payment the Seller may, in addition to exercising any of the rights set out above, suspend work, delay or withhold delivery under or cancel either the Contract and/or any other contract between the Seller and the Customer and to retain any progress payments or payments on account already received under either the Contract or under any other contract between the Seller and the Customer.
12.12. The Seller reserves the right to charge interest at the annual rate of 4% above the base rate from time to time of National Westminster Bank Plc on all overdue monies. Where the base rate is below 0%, interest under this clause shall accrue at 4% a year.
12.13. All rights and remedies afforded to the Seller in these Conditions for non-payment shall be in addition and without prejudice to all other rights and remedies available to the Seller under the Contract or at law.
12.14. The Seller may issue and proceed with court action against the Customer for payment of the price for Goods when due notwithstanding the fact that property in the Goods may not have passed to the Customer.
13. RETURN
Goods may only be returned with the prior agreement in writing of the Seller. Any Goods returned without the prior agreement of the Seller will be returned to the Customer and a reasonable charge for handling plus all carriage costs will be made.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. For the purposes of this clause 14 Intellectual Property Rights means: any patent rights, registered designs, copyright, trade marks (and service marks), business names or domain names, rights in get-up, goodwill and the right to sue for passing-off, rights in designs, database rights or any other intellectual property rights, in each case whether registered or not 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
14.2. The Seller and/or its licensors, shall retain ownership of all Intellectual Property Rights in the Goods and/or Services.
14.3. If any claim is made against the Customer alleging that Goods, and/or Services infringe third party Intellectual Property Rights:
14.3.1. the Customer shall forthwith notify the Seller with full particulars, and
14.3.2. the Seller or its suppliers or licensors (as case may be) shall be at liberty at their expense to conduct all negotiations and/or litigation in respect thereof and (if necessary) in the name of the Customer, and
14.3.3. the Customer shall not pay or accept any such claim or compromise any proceedings without the consent of the Seller (which shall not be unreasonably withheld or delayed) and if as a result of such negotiations or litigation, the Customer shall be unable to use the Goods and/or Services substantially for the purpose for which they were bought the Seller shall (except where clause 14.4 below applies) take them back and refund the price thereof and such refund shall be in full satisfaction of all claims by the Customer against the Seller.
14.4. The Customer shall indemnify the Seller against all actions costs (including reasonable cost of defending legal proceedings) claims proceedings and demands in respect of any infringement or alleged infringement by the Seller of Intellectual Property Rights attributable to the Seller complying with any special instructions from or requirements of the Customer relating to the Goods and/or Services provided always that the Customer shall use its best endeavours to mitigate any such costs, claims proceedings and demands and any losses and/or damages in relation to them.
15. GOODS OFFERED WHICH ARE NOT THE SELLERS OWN PROPERTY
15.1. Any information supplied by the Seller concerning the location and other matters in respect of Goods offered for sale by the Seller but which are not the Seller’s property is given on the understanding that the Customer/enquirer will not make a direct approach to purchase the Goods from any third party owners but will purchase them through the Seller.
15.2. The Customer agrees not to make any direct approach to any such third party owner and undertakes to indemnify the Seller in respect of any loss of commission or other loss which may result to the Seller as a breach of this Clause.
16. INSTALLATION NOTES AND QUALIFICATIONS
In the event that the Seller offers to carry out installation and/or site works as part of the Services, the following clauses will apply:
16.1. The Seller only offers to carry out installation works specifically as detailed within the Seller’s quotation. Any further works not detailed in the quotation will be quoted as extra and charged at additional cost.
16.2. All prices stated in the Seller’s quotation are estimated until a fully detailed site survey including detailed measurement has been carried out.
16.3. Whilst the Seller endeavours to give a fully detailed best engineered solution, unless the Seller provides a quotation specifically agreed and stated to be a “design quotation”, the Seller accepts no responsibility for the system network design. If the Customer requires and requests a detailed system network design, a separate quotation specifically stated to be a “design quotation” will be provided by the Seller.
16.4. The Seller’s quotation does not include any provision for any liaison with the Distribution Network Operator (DNO) unless expressly stated otherwise.
16.5. It is the responsibility of the Customer to advise the DNO of any increase in power requirements and to arrange for adjustment of the Allowed Supply Capacity (ASC). Further, it is the Customer’s responsibility to arrange suitable tariffs/charges with the meter operator.
16.6. Any costs associated or connected with upgrading the distribution network or metering equipment are not included in the Seller’s quotation unless specifically detailed therein.
16.7. Where the Seller includes earthing of high voltage equipment or power transformers in the quotation, the Seller will allow for 4 x 2.4 metres driven earth rods for the earthing matrix at the location specified. If test readings prove unsatisfactory due to ground conditions (or otherwise) then the Seller reserves the right to raise appropriate additional charges to achieve the required ohmic value.
16.8. Where a site is identified as a “hot site”, a detailed site survey will need to be carried out and a specific Quotation for earthing will be provided based on the survey. The Seller’s quotation does not include the earthing of hot sites unless specifically detailed therein after completion of a detailed site survey carried out for that purpose.
16.9. The Seller’s employees will only operate the Customer’s high voltage electrical switchgear if it is considered to be in a suitable condition and under the supplier’s safety rules. All switchgear must have documented evidence that routine and all necessary maintenance has been carried out.
16.10. The Seller’s quotation allows for normal working hours being from 8.00am to 4.30pm Monday to Friday; any work carried out beyond these times will be charged additionally at normal day work or overtime rates as appropriate unless stated otherwise in writing by the Seller.
16.11. Any waiting time incurred by the Seller’s employees, not due to the fault of the Seller, will be charged at normal day work or overtime rates as appropriate.
17. TERMINATION
17.1. Without affecting any other right or remedy available to it, the Seller may terminate the Contract with immediate effect by giving written notice to the Customer if:
17.1.1. the Customer becomes insolvent; or
17.1.2. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
17.1.3. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
17.1.4. the Customer ceases, or threatens to cease, to carry on business; or
17.1.5. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly; or
17.1.6. the Customer fails to pay any amount due under the Contract by the due date for payment.
17.2. If any of the events set out in clause 17.1 occur, without prejudice to any other right or remedy available to the Seller:
17.2.1. the Seller shall be entitled to suspend work, delay or withhold delivery under or cancel the Contract without any liability to the Customer;
17.2.2. if the Goods have been delivered but not paid for; the Goods shall be immediately be returned back to the Seller, and the Seller shall have a right to enter the Customer’s site (and it appropriate, the Customer shall procure approval from the owner of any third party land at which Goods are located, for the Seller to enter such land) to reclaim the Goods;
17.2.3. the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
17.3. This clause 17 is subject to the retention of title provisions set out in 12.5 above.
17.4. Without affecting any other right or remedy available to it, the Seller may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Seller 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 17.1.1 to clause 17.1.4 or the Seller reasonably believes that the Customer is about to become subject to any of them.
17.5. On termination of the Contract:
17.5.1. the Customer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Customer immediately on receipt;
17.5.2. the Customer shall return all of the Seller Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Seller 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 this Contract.
17.6. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
17.7. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
18. SURVIVAL OF PROVISIONS
The expiration or determination of a Contract, howsoever arising, shall be without prejudice to any provisions thereof (including these Conditions) which are to have effect after the date of expiration or determination.
19. WAIVER
No waiver by the Seller or any breach or obligation of the Customer pursuant to the Contract shall constitute a waiver of any other prior to subsequent breach or obligation.
20. NOTICES
20.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by pre-paid first-class post or other next day working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
20.2. Any notice shall be deemed to have been received on the second working day after positing or at the time recorded by the delivery service.
21. ASSIGNMENT AND OTHER DEALINGS
21.1. The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
21.2. 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 Seller.
22. DATA PROTECTION
To the extent that the Seller or Customer process any personal data under the Contract, each party shall comply with its respective obligations under the data protection legislation. This clause 22 does not relieve, remove or replace a party’s obligations or rights under data protection legislation.
23. CONFIDENTIALITY
23.1. Each party undertakes that it shall not at any time during the term of the Contract and for a period of five years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party except as permitted by clause 23.2.
23.2. Each party may disclose the other party’s confidential information:
23.2.1. to its employees, officers, representatives or advisors who need to know such information for the purposes of exercising the other party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party’s confidential information comply with this clause 23; and
23.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
24. THIRD PARTY RIGHTS
The parties to this agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
25. ENTIRE AGREEMENT
25.1. 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.
25.2. 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 misrepresentation based on any statement in the Contract.
25.3. Nothing in this clause shall limit or exclude any liability for fraud.
26. VARIATION
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
27. GOVERNING LAW AND JURISDICTION
27.1. 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.
27.2. The Seller and the Customer hereby irrevocably agree 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.
