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1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions)
Contract: The Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2
Customer: The person, firm or company who purchases Services from the Supplier. Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Deliverables: All Documents, products and materials developed by the Supplier or its agent, subcontractors, consultants and employees in relation to the Services in any form.
Document: Includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disc or other device or record embodying information in any form.
In-put Material: All Documents, information and materials provided by the Customer relating to the Services.
Intellectual Property Rights: All patents, rights to inventions, utility models, copyright and related rights, trade marks, services marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing of, unfair competition rights, rights in design, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals of extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: All Documents, information and materials, provided by the Supplier relating to the Services which existed prior to the commencement of the Contract, including computer programs, data, reports and specifications.
Services: The Services to be provided by the Supplier under the Contract as set out in the Supplier’s written quotation together with any other Services which the Supplier provides, or agrees to provide to the Customer.
Supplier: Infinity Coves.
Supplier’s Equipment: Any equipment including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which the title passes to the customer.
VAT: Value added tax chargeable under English law for the time being and any similar additional tax.1.2 Headings in these Conditions shall not affect their interpretation.1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).1.4 A reference to statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.1.5 A reference to writing or written includes email.1.6 Any obligation to the Contract on a person not to do something includes, without limitation, not to agree, allow, permit or acquiesce in that thing being done.1.7 References to Conditions and schedules are to the Conditions and schedules of the Contract.
2.1 These Conditions shall: (a) apply to and be incorporated into the Contract; and (b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.2.2 The Customer’s acceptance of a quotation for Service by the Supplier constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than: (a) by a written acknowledgement issued and executed by the Supplier; or (b) (if earlier) by the Supplier starting to provide the Services, when a Contract for the supply and purchase of the Services on these Conditions will be established. The Customers standard Terms and Condition (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with Condition 2.2. Any quotation is valid for a period of 60 days from its date, provided that the Supplier has not previously withdrawn it.
3.1 The Supplier shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Supplier’s written quotation.3.2 The supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply to the Customer’s premises and that have been communicated to it under condition 4.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4.1 The Customer shall: (a) co-operate with the Supplier in all matters relating to the Services; (b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, and other relevant facilities as required by the Supplier; (c) provide the Supplier, in a timely manner, such in-put Material and other information as the Supplier may require and ensure that it is accurate in all material respects; (d) be responsible (at its own costs) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing the Supplier of all of the Customer’s obligations and actions under condition 4.1 (e); (e) inform the Supplier of all health and safety rules and regulation and any other reasonable security requirements that apply to the Customer’s premises; (f) ensure that all Customer’s equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements; (g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of the in-put material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment, in all cases before the date on which the Services are to start. (h) keep and maintain the Supplier’s Equipment in good condition and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation.4.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or loss sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.4.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, any direct or indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Supplier’s written quotation. The remainder of this condition 5 shall apply in either case.5.2 The total price for the Services shall be the amount set out in the Supplier’s written quotation. The total price shall be paid to the Supplier without deduction or set-off. The Supplier shall invoice the Customer for the charges that are then payable. (a) be invoiced by the Supplier at cost; and (b) VAT, which the Supplier shall add to its invoices at the appropriate rate.5.3 The parties agree that the Supplier may review and increase the charges set out in the Supplier’s written quotation, provided that such charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 28 days of such notice being received or deemed to have been received in accordance with condition 18, terminate the Contract with immediate effect by giving written notice to the Supplier.5.4 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier.5.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may: (a) charge interest on such sum, from the due date for payment, at the Bank of England Base rate plus 8% calculated using simple interest. (as per the Late Payment of Commercial Debt Regulations); and (b) suspend all Services until payment has been paid in full.5.6 Time for payment shall be of the essence of the Contract.5.7 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.5.8 The Supplier may, without prejudice to any other rights it may have, set off any liability or the Customer to the Supplier against any liability of the Supplier to the Customer.
6.1 The Customer shall keep in strict confidence all technical and commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.6.2 The Customer may disclose such information: (a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; (b) and as may be required by law, court order or any governmental or regulatory authority.6.3 The Customer shall ensure that its employees, officers, representatives, advisors, agents or subcontractors to whom it discloses such information comply with this condition 6.6.4 The Customer shall not use any such information for the purpose other than to perform its obligations under the Contract.6.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
7.1 This condition 7 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:- (a) any breach of the Contract; (b) any use made by the Customer of the Services, the Deliverables or any part of them; and (c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.7.2 All warranties, conditions and any other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.7.3 Nothing in these Conditions limits or excludes the liability of the Supplier: (a) for death or personal injury resulting from negligence; or (b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.7.4 Subject to condition 7.2 and condition 7.3 (a) the Supplier shall not be liable for: (i) loss of profits; or (ii) loss of business; or (iii) loss of goods; or (iv) loss of contract; or (v) loss of use; or (vi) any specific, indirect, consequential or pure economic loss, costs, damages, charges or expenses. (vii) any damage, cracks or deterioration due to Temperature and or Humidity levels. (b) the Supplier’s total liability on contract, tort (including negligence or breach), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to £2million.
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and behalf of the Supplier.
9.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than 1 months written notice or immediately on giving notice to the other if: (a) the other party fails to pay the amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or (b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (c) 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; or (d) 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the insolvency act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or (e) 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 arrangements with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with or more other companies or the solvent reconstruction of that other party; or (f) 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 that other party 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; or (g) 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; or (h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or (i) a person becomes entitled to appoint a receiver over the assets of the other party or if a receiver is appointed over the assets of the other party; or (j) a creditor or encumbrance 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 its assets and such attachment or process is not discharged within 14 days; or (k) 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 condition 9.1 (d) to condition 9.1 (j) (inclusive); or (l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.9.2 On termination of the Contract for any reason: (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; (b) the Customer shall, within a reasonable time, return all of the Supplier’s Equipment, Pre-existing Equipment Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and (c) The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.9.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect: (a) condition 6; (b) condition 7; (c) condition 9; and (d) condition 18.
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lockouts or any other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility services 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.
11.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.11.2 Subject to condition 11.1, no variation of the Contract or these Conditions or of any of the Documents referred to in them, shall be valid unless it is in writing and signed by or on behalf of each of the parties.
12.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.12.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.1 If any person of the Contract (or part of any provision) is found by any court or authority of competent jurisdiction to be invalid, illegal or enforceable, that provision or part provision shall, to the extent required be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.13.2 If a provision of the Contract (or any part of the provision) is found illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
14.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.14.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance, or warranty (whether made negligently or innocently) (other than for breach of Contract), as provided in the Contract.14.3 Nothing in this Condition shall limit or exclude any liability or fraud.
15.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.15.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.15.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as an agent for, or to bind, the other party in any way.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
18.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 2, or as otherwise specified by the relevant party by notice in writing to the other party.18.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in Schedule 2 or, if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s receipt is signed.18.3 This condition 18 shall not apply to the Service of any in any proceedings or other Documents in any legal action.18.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
19.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.19.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).