General Terms & Conditions
SAACKE Combustion Services Limited GENERAL TERMS AND CONDITIONS
1. INCORPORATION
1.1 These General Terms and Conditions (“Conditions”) apply to all orders accepted by the Company for the provision of Plant, Services, Spare Parts, and / or Software. Where Services comprise Equipment Care, the Equipment Care Terms shall also apply to the provision of Equipment Care.
1.2 No employee or agent of the Company has any authority to agree to any variation to these Conditions or to an Order Acceptance unless such variation is expressed in writing and signed by a person duly authorised by the Company.
1.3 Without prejudice to the provisions of Conditions 1.1 and 1.2 above the Company reserves the right to waive the production and issuing of an Order Acceptance and to accept a customer’s order either verbally or in writing.
1.4 Where no Order Acceptance is issued to the Customer then the Conditions shall comprise the entirety of the agreed terms, conditions and warranties applying to the Contract unless the Company has expressly agreed otherwise in writing.
2. DEFINITIONS
In these Conditions, the following expressions shall have the following meanings:
“Company” SAACKE Combustion Services Limited (Company Number 7184556) whose registered office is at Langstone Technology Park, Langstone Road, Havant, Hampshire, PO9 1SA, United Kingdom;
“Contract” the contract for the purchase and supply of the Plant and/or the Services and/or the Services and/or the licensing and supply of Software;
“Customer” the person or company which places a Purchase Order accepted by the Company;
“Equipment Care Terms” the additional terms applying to the provision of Service Care Options as set out in Annex A – Equipment Care Terms.
“Goods” Plant and Spare Parts or any one of them as the context requires;
“Initial Commissioning” the initial setting to work of the Goods in whole or in part notwithstanding the need for further commissioning and/or the rectification of defects which do not materially affect the use of the Goods;
“Intellectual Property” any patent, copyright, registered design, unregistered design, trade mark or any other industrial or intellectual property rights in respect of the Plant and/ or Spare Parts and/or Software and any applications for any of the foregoing;
“Order Acceptance” any confirmation in writing or any form produced by the Company to accept orders following the placing of an order by the Customer; “Plant” new and unused machinery, apparatus, materials, equipment, computer hardware, articles and things of all kinds as set out in the Order Acceptance to be provided to the Customer under the Contract but in the absence of express contrary provision in writing excluding Spare Parts and Software;
“Price” the sum of the prices for the Goods and / or the Services set out in the Order Acceptance subject to the provisions of Condition 4.3;
“Purchase Order” the written order, signed by the Customer, offering to purchase the Services set out in the Company’s Tender;
“Scope of Work” a list of work and procedures to be carried out by the Company, in respect of the Services and, in particular where relevant, in respect of Equipment Care;
“Services” work agreed to be provided by the Company as set out in the Order Acceptance including (but not limited to) any of the Service Care Options or one-off installation, commissioning, maintenance and repair services, as detailed in the Tender;
”Service Care Options” the standard levels of services offered by the Company usually designated as Burner Care, Boiler Care or Plant Care, and as described in detail in the Tender;
“Site” unless otherwise agreed in writing by the Company, either:
• the place or places (within the United Kingdom or the Republic of Ireland) or
• the marine vessel at the location specified in the Order Acceptance, and to which the Goods are to be delivered and/or where the Services are to be provided;
“Software” the computer software to be supplied to the Customer by the Company under the Contract;
“Spare Parts” new and unused items supplied by the Company’s Spares Department including assembly and sub- assembly items;
“Specification” in respect to any Goods, the specification thereof set out in the Tender or, if none is set out therein, as published by the Company or otherwise provided to the Customer prior to the placing of the Purchase Order;
“Tender” the offer documentation (including the Scope of Work where appropriate) sent by the Company to the Customer setting out the basis of the Services offered by the Company;
“VAT” value added tax which includes any replacement or additional levy, tax, charge, or other form of sales tax.
3. FORMATION OF CONTRACT
3.1 A Tender does not constitute an offer by the Company and no Purchase Order placed in response to a Tender shall be binding upon the Company until such Purchase Order is accepted in writing by an Order Acceptance signed by a duly authorised signatory of the Company.
3.2 The Order Acceptance, the Tender and these Conditions (including the Equipment Care Terms in the Annex, where relevant) shall alone comprise the Contract and no contrary terms in the Customer’s Purchase Order shall have any effect. The order of priority of the contractual documents in the event of any contradiction or inconsistency
4. PRICE
4.1 The Price is exclusive of VAT, export duties and any taxes which may be applicable to overseas contracts and the Customer shall be additionally liable to pay all such taxes and duties in the same manner and at the same time as the part of the Price to which they are attributable.
4.2 The costs of delivery to the Site are not included in the Price unless otherwise specified in writing by a duly authorised signatory of the Company. The Company reserves the right to increase the costs of delivery or the Price (where the Price includes the cost of delivery) if the delivery point at the Site is not fully accessible and/or free from obstruction.
4.3 The Price is based on the costs of production and other ancillary factors prevailing at the date of the Contract or if earlier the date of tender by the Company. The Company reserves the right to vary the Price in the event of increase in the cost of labour or material (including but not limited to payment of overtime and for unsocial hours not anticipated on or before the date of the Contract) or any other factor beyond the Company’s control between the date of the Contract and the date of delivery of the Goods or the date when the Services are completed. The Company shall inform the Customer of the amount of any increase or any variation and the new price as soon as reasonably possible after such variation.
5. DELIVERY AND RISK
5.1 Unless otherwise specified in the Tender, delivery shall be EXW the Company’s premises at Langstone Technology Park, Havant, Hampshire, PO9 1SA United Kingdom and delivery shall therefore have been effected when the Company notifies the Customer that the Goods are ready for collection (and the term “offered delivery” shall be construed accordingly).
5.2 The Customer wrongfully fails to take delivery of the Goods if it fails to collect the Goods within the time specified by the Company in its notice under Condition 5.1 or, where the Company has agreed in the Tender to arrange carriage to the Site on behalf of the Customer, fails to give the Company adequate delivery instructions or fails to receive the Goods at the Site.
5.3 Any form of delivery specified in the Tender different to EXW shall be deemed to include a condition that delivery takes effect before any off-loading, storing or installing the Goods (as relevant).
5.4 Whether or not any Services relate to the Goods, risk in the Goods shall pass to the Customer on delivery, or (if the Customer wrongfully fails to take delivery) at the time when the Company has offered delivery.
5.5 If the Customer fails to take delivery of the Goods then without prejudice to any other right or remedy available to the Company the Company may:-
5.5.1 store the Goods until actual delivery and charge the Customer for the reasonable cost (including insurance) of storage; or
5.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for any excess over the Price or part thereof paid by the Customer under the Contract or charge the Customer for any shortfall below the Price under the Contract.
5.6 Time for delivery of the Goods by or on behalf of the Company to the Site and/or performance of the Services or any part thereof shall not be of the essence of the Contract.
5.7 Any dates quoted for delivery by the Company to the Site of the Goods and/or performance of the Services are approximate only and the Company shall not be liable for any losses occasioned by delay in such delivery or performance howsoever caused and the Customer accepts the risk of delayed delivery or performance.
6. PAYMENT
The Customer shall pay the Company as follows:-
6.1 For contracts including the supply of the Plant, and unless otherwise agreed in writing by the Company:-
6.1.1 35% of the Price with order;
6.1.2 55% of the Price immediately on notification of availability for delivery or collection;
6.1.3 10% of the Price 30 days after delivery or if the Customer wrongfully fails to take delivery 30 days after delivery is offered or, if earlier, forthwith upon commissioning of the Goods being completed.
6.2 For contracts for the provision of Services (whether with or without Plant) the Company may submit invoices at intervals throughout the Contract and shall render a final invoice on completion of the Services and the Customer shall pay all invoices within 30 days of the date of each such invoice.
6.3 For contracts for the provision of Spare Parts (whether with or without Plant) the Company shall submit invoices on or at any time after delivery or, where the Customer wrongfully fails to take delivery, on or at any time after delivery is offered and the Customer shall pay all invoices within 30 days of the date of invoice.
6.4 The Company reserves the right to charge interest both before and after judgement on overdue payments at the rate of 3% per annum above the Lloyds TSB base lending rate from time to time until payment in full is made. Without prejudice to the foregoing, the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 if higher. Any such interest shall accrue on a daily basis and be compounded quarterly.
6.5 Time for payment of the Price and any appropriate taxes shall be of the essence of the Contract.
6.6 Unless the Company specifies otherwise in writing, payment in respect of any Contract on which delivery is to take place within the United Kingdom shall be in sterling, and otherwise shall be in Euros.
7. EXPORT
7.1 Unless the context otherwise requires, any term or expression used in the Contract which is defined in or given a particular meaning by the provisions of the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force when the Contract is made (“Incoterms”) shall have the same meaning therein, but if there is any conflict between such provisions of Incoterms and the express provisions of the Contract, the latter shall prevail.
7.2 Where the Goods and/or Services are supplied for export from the United Kingdom, the provisions of this Condition 7 shall override any contrary provisions elsewhere in these Conditions.
7.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties or local taxes thereon.
7.4 Delivery shall be made, risk shall pass and the Price of the Goods shall be determined as set out in the Order Acceptance. The Company shall be under no obligation to give notice under section 32(3) Sale of Goods Act 1979.
7.5 The Customer shall be responsible for arranging any special testing and/or witness testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim made after shipment in respect of any effect in the Goods which would be apparent on inspection (whether or not inspection is made).
7.6 The Customer shall (where required by the Company) provide to the Company at the time of placing each order a confirmed irrevocable letter of credit guaranteeing full settlement in the currency specified under Condition 6.6 to a UK bank payable upon presentation of invoice and despatch documents. The Customer shall indemnify the Company in respect of all costs incurred by the Company in the opening of the letter of credit and in making any amendments thereto as shall be necessary during the performance of the Contract.
7.7 The Customer shall ensure that the letter of credit, when opened, does not specify the weight and/or dimensions of the Goods to be provided unless such specifications are clearly expressed as being estimates only.
8. RETENTION OF TITLE
8.1 Notwithstanding delivery and the passing of risk to the Customer, title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Company has supplied to the Customer in respect of which payment has become due.
8.2 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Company immediately if any of the events set out in Condition 15.1 occurs or is likely to occur; and
(f) give the Company such information relating to the Goods as the Company may require from time to time, PROVIDED however that the Customer may resell or use the Goods in the ordinary and normal course of its business.
8.3 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events set out in Condition 15.1, or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them
9. COMPANY’S LIABILITY
9.1 Illustrations, photographs, weights, dimensions and descriptions of the Goods or any part thereof are intended as a general guide only and are not intended to form the basis of a sale by description. Performance figures are only an indication of past performance and do not constitute a condition warranty or guarantee of future performance. The Company reserves the right to implement improvements and alterations to design of the Goods during the performance of the Contract.
9.2 The Customer shall notify the Company in writing of any damage, delay or partial loss of the Goods in transit within 3 days of delivery, or of non-delivery, within 7 days of the notified delivery date and any claim in respect thereof must be made in writing to the Company and to the Company’s courier within 7 days of delivery or, in the case of non- delivery, within 14 days of the notified delivery date.
9.3 The Company shall not be liable in respect of any claim for damage, delay partial loss or non-delivery unless the requirements of Condition 9.2 have been complied with except in any particular case where the Customer proves that it was not possible for it to comply with the requirements of that Condition and that notice to the Company was given and the claim was made as soon as reasonably possible.
9.4 Subject to the provisions of Condition 9.12 the Company warrants that for a period of 12 months from the initial commissioning of the Plant (if such commissioning takes place within 6 months of offered delivery) or, if such commissioning does not take place within 6 months of offered delivery, for a period of 18 months from the date of offered delivery the Plant will comply in all material respects with the Specification.
9.5 In the case of Plant which does not comply with the warranty set out in Condition 9.4 then the Company shall, subject to the provisions of Condition 9.12 and at its absolute discretion, either:-
9.5.1 repair the Plant either at the Site or at the Company’s works; or 9.5.2 replace the Plant or defective part thereof.
9.6 In the case of Plant supplied otherwise than in the UK or the Republic of Ireland the Company will supply the Customer with replacement Plant on an EXW basis and the Customer shall meet all costs of carriage.
9.7 Where the Company replaces Plant or part thereof the Customer shall at the Company’s request and cost return the defective Plant or part thereof to the Company.
9.8 Subject to the provisions of Condition 9.12, the Company warrants that Spare Parts will in all material respects meet the Specification for a period of 12 months from the earlier of the date of delivery or despatch of such Spare Parts.
9.9 In the case of Spare Parts which do not comply with the warranty set out in Condition 9.8, the provisions of Conditions 9.5 to 9.7 shall apply save that all references in those Conditions to Plant shall be substituted with references to Spare Parts, the reference to Condition 9.4 shall be a reference to Condition 9.8 and the provisions of Condition 9.12.4 shall not apply.
9.10 Subject to Conditions 9.11 and 9.12, the Company gives no warranty to the Customer in relation to the Software which is provided on an “as is” basis. Without prejudice to the foregoing, the Company will assign to the Customer, or otherwise seek to procure for the Customer the benefit of, any warranties provided to the Company by the original supplier of the Software.
9.11 The Customer shall prior to placing the Purchase Order satisfy itself that all external sources necessary for the full operation of the Software are adequate to allow proper performance of the Software.
9.12 LIMITATION OF LIABILITY
The warranties given in Conditions 9.1 to 9.11 above by the Company, and the Company’s liability generally under or in respect to the Contract, shall be subject to the following:
9.12.1 the Company shall not be liable in respect of any claim by reason of Conditions 9.4 to 9.11 unless the Customer shall have notified the Company in writing of the defect within 7 days of the Customer becoming aware of such defect;
9.12.2 the Company shall be under no liability in respect of any defect in the Goods or the Services arising from any drawing design or specification supplied by or on behalf of or approved by the Customer;
9.12.3 the Company shall be under no liability in respect of: (i) any defect arising from incorrect faulty or defective commissioning or installation of Plant or Spare Parts by the Customer or by a third party on behalf of the Customer; (ii) fair wear and tear to Plant or Spare Parts; (iii) wilful damage, negligence, changes in agreed working conditions or failure to follow the Company’s instructions (whether oral or in writing); (iv) misuse or alteration or repair of the Goods by the Customer or third parties without the Company’s prior written approval; (v) or otherwise in respect of loss or damage of whatever nature arising from circumstances wholly outside the Company’s control;
9.12.4 the Company shall not be liable for any costs of labour related to the Company’s obligations under Condition 9.5 where the commissioning of the Plant was not carried out by the Company;
9.12.5 the liability of the Company in respect of parts, materials or equipment not manufactured by the Company shall be limited to that equivalent to the Company’s own rights of action against the manufacturer or supplier of such parts materials or equipment and to the extent that the Company can enforce such rights of action;
9.12.6 the Company shall not be liable in respect of any damage or losses whatsoever resulting from the use or inability to use the Software where that loss or damage results from: (i) an inadequate or inaccurate supply of data from any external source not manufactured or supplied by the Company and which is necessary for the proper functioning of the Software; or (ii) any incompatibility of the Software with the Customer’s operating systems or other software;
9.12.7 the warranty set out at Condition 9.10 shall no longer apply once the Customer is deemed to accept the Software in accordance with Condition 13.3;
9.12.8 all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law;
9.12.9 save in respect of loss of life and personal injury caused by the Company’s negligence:
9.12.9.1 the Company accepts no liability for any loss of profit or other economic loss or for any consequential loss or damage of any kind whatsoever, including but not limited to loss of the use of the Goods (whether partial or complete), which arises out of or in connection with the supply of the Goods and/or Services or their use or resale by the Customer;
9.12.9.2 the Company shall not in any event be liable for any loss resulting from a claim by a third party howsoever caused and whether as a result of negligence or otherwise and the Customer shall keep the Company indemnified against any and all claims and actions by third parties in excess of the liabilities accepted by the Company herein; and
9.12.9.3 the total liability of the Company in respect of any one or more claims by the Customer shall not exceed the Price;
9.12.10 the warranties given in this Condition 9 do not extend to the replacement of consumables included in the Plant or Spare Parts including but not limited to paper, tapes, disks, printer ribbons, printer heads and ink.
10. FORCE MAJEURE
The Company shall be under no liability for delay in performing or failure to perform provisions of the Contract if the delay or failure results from any reason beyond its control including (but not limited to) Act of God, legislation, war (whether declared or not), military action, terrorism, fire, flood, drought, failure of power supply, plant and machinery failure, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the Contract. Such delay or failure shall not constitute a breach of the Contract and the time for performance shall be extended by a period equivalent to that during which the performance is so prevented. The Company reserves the right to exercise all or any of its rights under the Contract during the period of such force majeure.
11. INTELLECTUAL PROPERTY
11.1 All Intellectual Property in the Plant and/or Spare Parts shall as between the parties be the property of the Company or (as the case may be) SAACKE GmbH or other member of a corporate group of which the Company forms part. The Customer shall not copy any material in which any such intellectual Property is incorporated and the Customer shall on the Company’s request deliver all drawings, designs and other documents relating to the Plant and/or Spare Parts (other than operation and safety manuals and instructions) to the Company and shall not permit any copies to be made of the same or permit the use of the same other than for the purpose of the implementation of the Contract.
11.2 Where any designs or specifications have been supplied by the Customer in connection with the manufacture processing assembly or supply of the Plant and/or Spare Parts by or on behalf of the Company the Customer indemnifies the Company against any claim for infringement of any intellectual property rights of a third party by the Company’s use of those designs or specifications for such manufacture processing assembly or supply.
11.3 The Company will indemnify the Customer against any claim for infringement of any intellectual property rights of a third party by the use or resale of any Plant and/or Spare Parts supplied by the Company to the Customer provided that:
11.3.1 the Customer notifies the Company, in writing, forthwith as soon as any such claim shall be made;
11.3.2 the Customer shall co-operate fully with the Company and its advisers in relation to such claim;
11.3.3 the Customer shall not have used the Plant and/or Spare Parts for any purpose other than that for which it was supplied;
11.3.4 except pursuant to a final award, the Customer shall not pay or accept any such claims or compromise any such proceedings without the consent in writing of the Company;
11.3.5 the Customer shall do nothing which will or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
11.3.6 the Company shall be entitled to the benefit of and the Customer shall accordingly account to the Company for all damages and costs (if any) awarded in favour of the Customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld or delayed) to be paid by any other party in respect of any such claim, to the extent the Company has made any payment in respect of such claim to the Customer.
12. INSTALLATION AND SITE WORKING
12.1 In relation to the provision of the Services the Customer shall provide any necessary civil / building work, lifting tackle, cranes, scaffolding, ladders, site services, and fuel that may be required by the Company to complete such Services. The Customer shall ensure that the Site is fully accessible and that the Services can be carried out during normal working hours without interruption and that adequate site facilities and amenities fire fighting equipment and first aid are available on the Site at no extra charge to the Company. The Company reserves the right to make an extra charge if these conditions are not met.
12.2 It shall be the Customer’s responsibility to ensure that the state and condition of the Site and the conduct of its business are such as to comply with statutory requirements relating to conditions of work and that the Company’s servants, agents and sub- contractors are not exposed to risks to their health and safety as a result of working on the Site.
12.3 Without prejudice to the generality of Condition 12.2 the Customer shall ensure that the Company’s servants, agents and sub-contractors are properly supervised at all times whilst they are on the Site.
12.4 The Customer shall indemnify the Company fully and completely in respect of all claims brought by any person in respect of death of or personal injury to any employee, agent or sub-contractor of the Company where such person was on the Site and in respect of all costs and charges in connection therewith whether arising under statute or common law except to the extent that the same is caused by the negligence of the Company.
13. SOFTWARE
13.1 Plant and some Spare Parts are supplied with hard-coded firmware (“Software”) required for their operation. The Customer is granted a limited licence to such software only for the purpose of operating the Plant and configuring it within the parameters permitted by the firmware.
13.2 The Customer acknowledges that there is no requirement to reduce any of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer. Accordingly, the Customer has no right to and shall not (and shall not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software, whether in whole or in part.
14. TESTS ON PLANT
14.1 All Goods shall be carefully inspected and submitted to standard tests before despatch by the Company from its premises. If special tests, and/or witness tests at the Company’s works are required, these will be as set out in the Tender together with the applicable charges. If Customer requests additional testing at the Site which is not included in the Services set out in the Tender, the Company shall be entitled to charge for the additional testing at its then standard rates.
15. COMPANY RIGHTS
15.1 If the Customer:
a) commits any breach of the provisions of the Contract and, in the case of a breach which the Company believes to be capable of remedy, fails to remedy the same within 14 days of written notice to it giving particulars of the breach; or
b) 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
c) 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 its creditors; or
d) 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 Customer; or
e) a creditor or encumbrancer of the Customer 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
f) 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 Customer; or
g) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver; or
h) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Condition 8.2 (e); or
i) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
j) the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and then the provisions of Conditions 15.2 and 15.3 shall apply.
15.2 The Company, without prejudice to other remedies available to it, shall be entitled to:
15.2.1 terminate the Contract; or
15.2.2 suspend any future deliveries to and/or performance of the Services for the Customer and not proceed further with the Contract or any work for the Customer, and in any case shall be entitled to charge for any part of the Contract already carried out (whether completed or not) and for materials purchased for the Customer and for any expenses incurred or suffered by the Company in storing and/or in insuring the Goods.
15.3 In the event that the Company is entitled to charge the Customer for any matters referred to in Condition 15.2.2 such charges and the balance of the Price then outstanding shall forthwith become due and payable (notwithstanding the provisions of Condition 6) and the Company shall be entitled on the expiration of 14 days’ notice to dispose of such Goods in such manner and such material as it thinks fit and to apply the proceeds in accordance with Condition 5.5.2.
16. GOVERNING LAW, JURISDICTION, AND GENERAL PROVISIONS
16.1 Unless otherwise agreed in writing the Contract shall in all respects be governed by the law of England and the parties submit to the non-exclusive jurisdiction of the English Courts.
16.2 A person who is not a party to the Contract has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term thereof. This does not affect any right or remedy of such person which exists or is available apart from that Act.
16.3 The parties agree that they have entered into the Contract incorporating these Conditions in reliance only upon the representations and warranties specifically contained or incorporated in these Conditions and /or the Order Acceptance, and, except as expressly set out in writing by a duly authorised signatory of the Company, the parties shall have no liability in respect of any other representation and/or warranty made prior to the Contract to any person, unless it was made fraudulently.
16.4 Nothing in these Conditions nor any Contract incorporating these Conditions shall create, or be deemed to create, a partnership or a joint venture or the relationship of employer and employee or principal and agent between the parties and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16.5 The Customer shall not be entitled to make any deduction from the Price or any payment due to the Company in respect of any alleged right of withholding, set-off or counter claim.
16.6 If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal. The parties agree to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
16.7 The Company may sub-contract all or any of its obligations under the Contract which from time to time fall outside the standard business goods and services provided direct from within the Company. The Customer shall not assign any of its rights or duties under the Contract without the prior written consent of the Company.
16.8 Any waiver by the Company of a breach of any provision of the Contract shall not be considered as a waiver of any subsequent breach of the same or any other provision.
16.9 Any reference to this Agreement to “writing” or any related expressions includes a reference to cable, facsimile transmission, e-mail or comparable means of communication.
ANNEX – EQUIPMENT CARE TERMS
1) Incorporation
1.1 This Equipment Care Terms Annex sets out the additional terms and conditions (“Terms”) which apply to the provision by the Company of Equipment Care, as referenced in the Company’s General Terms and Conditions (“Conditions”).
1.2 These Terms are to be read in conjunction with the Conditions and are incorporated therein. The order of priority is as set out in the Conditions.
2) Definitions
2.1 In these Terms, the following expressions have the following meanings:
“Commencement Date” the commencement date set out in the Tender Purchase Form;
“Equipment” the specific plant machinery and other equipment to which the Contract relates (or any part thereof) as referenced in the Tender;
“Equipment Care” the provision of any of the Company’s Service Contract Options;
“Normal Working Hours” the normal working hours of the Company from time to time;
“Price” the price for the Equipment Care set out in the Tender, subject to these Terms and in particular Terms 4 and 6.4.
2.2 Any capitalised word or phrase used in these Terms which is not defined herein has the meaning given in the Conditions. In the event that these Terms give a different meaning to a word or expression defined in the Conditions, the meaning given in these Terms shall prevail.
3. Duration of Contract for Equipment Care
3.1 The Contract for Equipment Care shall remain in force for the period of 12 months from the Commencement Date or such other period as may be expressly stated in the Tender (“Initial Period”).
3.2 At the end of the Initial Period, and on each anniversary of the end of the Initial Period, the Contract shall automatically be renewed for the same length of time as the Initial Period at the then prevailing rates and prices of the Company, unless the Contract has been terminated in accordance with these Terms.
4. Price and Payment
4.1 Unless otherwise stated in the Tender, the Price is payable in full on the Commencement Date. Time for payment of the Price and VAT shall be of the essence of the Contract.
4.2 The Company reserves the right to review and adjust the Price with effect from each anniversary of the Commencement Date in accordance with the Company’s labour and material rates in force from time to time.
4.3 If payment is not made on the due date, the Company reserves the right:
4.3.1 to charge interest both before and after judgment on overdue payments at the rate of 3% per annum above the Lloyds TSB Bank base rate from time to time until payment in full is made;
4.3.2 to suspend the provision of Equipment Care or any part thereof; and/or
4.3.3 to suspend or to terminate the application of any discount for parts of services available to the Customer pursuant to the Contract, or to refuse the application of any discount previously conferred upon the Customer by previous trading.
4.4 The Company shall not be liable to reduce or refund any part of the Price if it is prevented from carrying out any part of the Scope of Work.
5. Services to be Provided
5.1 During the continuance of the Contract, the Company shall provide the Customer with the Equipment Care set out in the Tender.
5.2 The Customer shall, at regular intervals, request the Company to perform the applicable Scope of Work. The timing of the Company representative’s visit for this purpose shall be agreed between the Company and the Customer, the Customer giving at least seven days notice of the date requested.
6. Services not Included
6.1 Except where expressly provided for in the Service Contract Option specified in the Tender, the Contract shall not apply to:
6.1.1 calibration of instrumentation;
6.1.2 any replacement of Spare Parts found on inspection to be defective or which have failed, or of obsolete Spare Parts (the Company to determine whether any part is obsolete) but the Company may offer an upgrade or alternative solution at separate cost;
6.1.3 repair of any cosmetic damage, which does not affect the safe use of the Equipment;
6.1.4 failure or malfunction of the Equipment during the continuance of the Contract arising otherwise than from mechanical or electrical defect causing sudden stoppage of the Equipment;
6.1.5 any failure for which the Customer has a guarantee or warranty from the manufacturer, supplier or any other person whether enforceable or not but which is not out of date; or
6.1.6 work required to expose and/or repair structural failure in pipework, flue ducts, boilers or other equipment.
6.2 Except where expressly provided for in the Service Contract Option specified in the Tender, the Contract shall not apply to any damage, defect or malfunction, which in the Company’s opinion has arisen as a result of:
6.2.1 deterioration due to non-use or infrequent use or inadequate storage or protection from the elements;
6.2.2 any wilful act or neglect or any disregard by the Customer of the manufacturer’s operation and maintenance manual and/or other written instructions and recommendations;
6.2.3 fuel pressure, fuel temperature, fuel analysis, electrical supply, water supply, process pressure or other design parameters outside of the original specification of the Equipment;
6.2.4 any modification, adjustment or repair to the Equipment made by a third party during the continuance of the Contract;
6.2.5 faulty materials supplied other than by the Company;
6.2.6 any design defect in the Equipment if not manufactured by the Company;
6.2.7 any counterfeit Spare Part.
6.3 If on investigation the Company determines that any defect in or malfunction of the Equipment falls within the scope of Terms 6.1 or 6.2, the Customer shall be liable for all costs incurred by the Company in investigating the same, determining its cause and rectifying it.
6.4 Equipment Care comprises only the labour involved in the provision of the services specified in the Scope of Work, and any Spare Parts are charged as extras (and the Price for the Equipment Care is calculated accordingly).
7. Customer’s Obligation
7.1 The Customer shall at all times take all reasonable precautions to safeguard the Equipment from loss, damage, destruction or malfunction.
7.2 The Customer shall ensure that the Company’s representative shall have full and free access to the Equipment and to any records of its use kept by the Customer to enable the Company to perform the Contract.
7.3 The Customer shall provide the Company with such information concerning the Equipment, its application, use, location and environment as the Company may reasonably request to enable it to carry out its obligations under the Contract.
7.4 The Customer shall take all such steps as may be necessary to ensure the safety of any of the Company’s representatives who visit any premises of the Customer.
7.5 The Customer shall indemnify the Company fully and completely in respect of all claims brought by any person in respect of death of or personal injury to any servant, agent or sub-contractor of the Company while such person was o the Customer’s premises and in respect of all costs and charges in connection therewith whether arising under state or common law except to the extent that the same is caused by the negligence of the Company.
8. Warranty
8.1 The Company warrants that it will use reasonable skill and care in providing the relevant Equipment Care. Subject as aforesaid, all warranties and conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Where a visit to the Customer by the Company’s representative includes adjustment to the combustion performance of the Equipment and the Customer notified the Company within 14 days of such visit that the combustion performance is unsatisfactory, the Company will readjust the combustion performance except where the unsatisfactory performance has occurred through circumstances outside the Company’s control.
9. Variation
9.1 Any variation requested to the scope of the Equipment Care requested by the Customer during the continuance of the Contract may be subject to a charge to the Customer. Variations or changes to the Equipment may invalidate cover under the Contract but will not entitle the Customer to re-imbursement of any sums paid to the Company and will not constitute a termination of the Contract unless notice is also served in accordance with Term 10.1.
10. Termination
10.1 The Customer may terminate the Contract at any time (but not so as to be effective until the expiration of the Initial Period) by serving at least 12 weeks’ prior written notice on the Company.
10.2 The Company shall be entitled to terminate the Contract forthwith by giving written notice to the Customer:
10.2.1 if the Customer commits any breach of the provisions of the Contract;
10.2.2 if any part of the Equipment can no longer be maintained in good working order under the provisions of the Contract or the whole of the Equipment is damaged beyond economic repair otherwise than through the Company’s fault (as to whether either of these events have occurred, the Company’s decision shall be final and binding on the Customer);
10.2.3 if any of the events specified in Condition 15.1 of the Conditions occurs or is likely to occur in respect of the Customer.
10.3 On termination of the Contract by either party, the Company shall have an absolute discretion as to what (if any) refund is made to the Customer in relation to the period of time after the termination becomes effective.
10.4 In the event of termination of the Contract for any reason (other than termination by the Company under Term 10.1), the Company reserves the right to make a charge to the Customer equivalent to 15% of the annual Price applicable at the date of termination and 10% of the price of all Spare Parts purchased during the period between the Commencement Date, or the last anniversary thereof, and the date of termination.
SAACKE Combustion Services Ltd: Issue 2 – August 2015.
