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1. Trading name 'Industrial Air Power Limited'; is the registered company name.
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Supply of Services
INDUSTRIAL AIR POWER LIMITED
Terms & Conditions for the Supply of Services
The Customer’s attention is drawn in particular to the provisions of Condition 8.
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Contract: the contract (including as the case may be a Service Plan Contract) between the Supplier and the Customer for the supply of the Services and/or for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person, firm or company who purchases Services and/or Goods 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 agents, subcontractors, consultants and employees in relation to the Services in any form.
Designated Equipment: the equipment as identified by type and/or serial number in the Service Plan Contract.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Goods: the goods (if any) to be sold to the Customer by the Supplier in performing the Services.
In-put Material: all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications.
Order: the Customer’s purchase order for the Services and/or Goods or the Customer’s acceptance of a quotation for the supply of the Services and/or the Goods by the Supplier as set out overleaf.
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.
Service Contract Plan Fee: the annual fee to be charged pursuant to a Service Plan Contract.
Service Location: the premise or premises at which the Services are to be performed.
Service Plan Contract: an agreement relating to the provision by the Supplier of annual maintenance services for the Designated Equipment in accordance with these Conditions.
Services: the services to be provided by the Supplier under the Contract as set out in the Order.
Supplier: Industrial Air Power Limited (registered in England and Wales with company number 01978604).
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 title passes to the Customer.
Warranty Period: the relevant manufacturers warranty period (if any) for the Goods as supplied to the Supplier, details of which can be obtained from the Supplier and will vary with different Goods.
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 a 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 faxes and e-mails.
1.6 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to conditions are to the conditions and schedules of the Contract.
2. BASIS OF 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 Order constitutes an offer by the Customer to purchase the Services and/or Goods in accordance with these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by a written acceptance of the Order or a Service Plan Contract in either case issued and executed by the Supplier;
(b) (if earlier) by the Supplier starting to provide the Services in accordance with the Order, when a contract for the supply and purchase of the Services and Goods on these Conditions will be established. The Customer's standard terms and conditions (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 they shall not constitute an offer and no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 20 Business Days from its date, provided that the Supplier has not previously withdrawn it.
3. COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in the Order.
4. SUPPLIER'S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to provide the Services to the Customer, in accordance in all material respects with the Order and these Conditions.
4.2 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services or the supply of the Goods.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Service Location and that have been communicated to it under condition 5.1(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.
4.4 The Supplier warrants that on delivery to the Service Location, and for the Warranty Period, the Goods shall:
(a) conform in all material respects with their description and any applicable specification agreed in writing between the Customer and the Supplier;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
4.5 Subject to clause 4.6, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.4; and
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.6 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 4.4 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 4.5; or
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the defect arises as a result of the Goods not being compatible with or suitable for use with the Customer’s existing equipment or systems; or
(g) the defect is not covered by a valid warranty given by the manufacturer of the defective Goods in favour of the Supplier.
4.7 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.4.
4.8 The risk in the Goods shall pass to the Customer on completion of delivery of the Goods to the Service Location.
4.9 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods and the Services; and
(b) all other sums which are or which become due to the Supplier for sales of the Goods and/or the supply of the Services or any other products to the Customer.
4.10 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier'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 Supplier immediately if it becomes subject to any of the events listed in condition 10.1; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
4.11 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1, or the Supplier 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 Supplier may have, the Supplier 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.
5. CUSTOMER'S OBLIGATIONS
5.1 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, office accommodation, data and other facilities as reasonably required by the Supplier;
(c) provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may reasonably require and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the Service Location for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from the Service Location in accordance with all applicable laws, before and during the supply of the Services at the Service Location, and informing the Supplier of all of the Customer's obligations and actions under this condition 5.1(d);
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Service Location;
(f) ensure that all Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services 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 In-put Material and the use of the Customer's Equipment in relation to the Supplier's Equipment insofar as such licences, consents and legislation relate to the Customer's business, premises, staff and equipment, in all cases before the date on which the Services are to start; and
(h) keep, maintain and insure the Supplier's Equipment in good condition in accordance with the Supplier's instructions as notified in writing from time to time, and shall not dispose of or use the Supplier's Equipment other than in accordance with the Supplier's written instructions or authorisation.
5.2 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 losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 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, 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.
5.4 If interruptions in the provision of the Services are experienced then the Supplier will charge for additional journeys to and from the Service Location at normal day work rates to include labour, mileage, accommodation and plant hire, plus any other loss, damage or expenses incurred as a result of interruption.
5.5 The Supplier shall not be liable for any loss, damage or expenses suffered by the Customer if any Service is not completed within the time provided in the Contract.
5.6 The Supplier shall not be required to perform any services in addition to the Services unless the Customer gives a variation order in writing to cover the charges for such services and undertakes to pay for such additional services.
5.7 The Supplier does not accept responsibility for gaining access to the working area at the Service Location except as regards obstruction specifically brought to the Supplier’s attention by the Customer and specifically noted in the Order. If access to the working area at the Service Location is blocked or prevented by any means not specifically mentioned in the Order the Supplier will provide such necessary equipment and additional labour to obtain access upon the receipt of a written variation order from the Customer to pay for such additional work.
5.8 The Customer shall be liable for and shall indemnify the Supplier against any expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of any personal injury to or death of any person whomsoever arising out of or in the course of or caused by the carrying out of the Services at the Service Location by the Supplier unless due to any act or neglect of the Supplier or of any person for whom the Supplier is responsible.
5.9 The Customer shall be liable for and shall indemnify the Supplier against any expense, liability, loss, claim or proceedings in respect of any damage whatsoever to any property, real or personal arising out of or in the course of or by reason of the carrying out of the Services at the Service Location unless the same shall be due to any act or neglect of the Supplier or of any person for whom the Supplier is responsible.
5.10 Without prejudice to the Customer’s liability to indemnify the Supplier pursuant to clauses 5.8 and 5.9 the Customer shall maintain and shall cause any contractor to maintain such insurances as are necessary to cover the liability of the Customer and any contractor in respect of personal injury or death or damage to property, real or personal arising out of or in the course of or caused by the carrying out of the Services for which the Customer is liable pursuant to this clause 5 and further the Customer hereby warrants that the Service Location shall be fully compliant with all the provisions of all applicable statutes, regulations, statutory instruments, codes of practice or other provisions whatsoever. The Customer shall indemnify the Supplier against any expense, liability, loss, claim or proceedings arising from breach of this condition.
6. CHARGES AND PAYMENT
6.1 In consideration of the provision of the Services and/or the supply of Goods by the Supplier, the Customer shall pay the charges as set out in the Order or where no price is quoted in the Order the price shall be calculated on a time and materials basis. Condition 6.2 shall apply if the Supplier provides Services and Goods on a time and materials basis. Condition 6.3 shall apply if the Supplier provides Services and Goods for a fixed price. The remainder of this condition 6 shall apply in either case.
6.2 Where Services and Goods are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier's hourly charge rates as set out in the Supplier’s published price list in force at the date of the Contract and as amended from time to time in accordance with condition 6.5;
(b) the Supplier's standard hourly charge rate for each individual person whom it engages on the Services are calculated on the basis of hours worked between 7.00 am and 6.00 pm Monday to Saturday (excluding public holidays);
(c) the Supplier shall be entitled to charge overtime rates for hours worked by individuals whom it engages on the Services outside the hours referred to in condition 6.2(b). Hours worked between 6.00 pm and 12.00 pm (inclusive) Monday to Saturday (excluding public holidays) will be charged at the Supplier’s [standard out of hours rate] and hours worked on Sundays, public holidays or between 12.00 pm and 7.00 am (inclusive) on any day shall be charged at the weekend out of hours rate. For call outs outside of 7.00 am to 6.00 pm Monday to Saturday (excluding public holidays) there is a minimum call out charge of £100.
(d) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
(e) the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 6.2(f);
(f) the Supplier may (subject to Condition 6.11) invoice the Customer for its charges for time, expenses and materials (together with VAT where appropriate), calculated as provided in this condition 6.2 on or at any time after performance of the Services; and
(g) the price of Goods and any materials required in performing the Services shall be the price set out in the Suppliers published price list in force as at the date of delivery.
6.3 Where Services and Goods are provided for a fixed price, the total price for the Services and Goods shall be the amount set out in the Order. The total price shall be paid to the Supplier (without deduction or set-off) and subject to Condition 6.11.
6.4 Any fixed price and daily or hourly rate detailed in the Order or the Supplier’s published price list in force at the date of the Contract excludes:
(a) [the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services shall be invoiced by the Supplier at cost;] and
(b) VAT, which the Supplier shall add to its invoices at the appropriate rate.
6.5 The parties agree that the Supplier may review and increase its hourly charging rates as set out in its published price lists I n force at the date of the Contract or the charges set out in the Order (as the case may be), 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 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 14 days of such notice being received or deemed to have been received in accordance with condition 19, terminate the Contract with immediate effect by giving written notice to the Supplier.
6.6 Subject to condition 6.11 the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of the date of the invoice.
6.7 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 annual rate of 5% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and
(b) suspend all Services and supply of Goods until payment has been made in full.
6.8 Time for payment shall be of the essence of the Contract.
6.9 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 6.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.10 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.11 The Supplier reserves the right at any time to invoice the Customer for the Services and/or Goods and to demand payment for the Services and/or Goods prior to performance of the Services and/or supply of Goods and shall notify the Customer in writing if it requires payment before performance and/or supply.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and the Supplier, all intellectual property rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier.
8. LIMITATION OF LIABILITY
8.1 This condition 8 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 including any deliberate personal repudiatory breach, any deliberate breach of this Contract by the Supplier, or its employees, agents or subcontractors;
(b) any use made by the Customer of the Services, the Goods, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 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;
(c) for any liability incurred by the Customer as a result of any breach by the Supplier of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.4 Subject to condition 8.2 and condition 8.3
(a) the Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall not exceed the price paid for the Services and Goods.
8.5 The Supplier shall not be responsible for and shall not be liable to the Customer for the suitability and/or compatibility of the Goods and Services with the Customer’s existing systems and equipment or the suitability and/or compatibility of the Goods for use at the Service Location.
9. DATA PROTECTION
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 on behalf of the Supplier in connection with the Services.
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any 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) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up or bankruptcy 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
(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 other party; or
(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(h) 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 10.1(d) to condition 10.1(g) (inclusive); or
(i) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
10.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods 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 7 Business Days, return all of the Supplier's Equipment, Pre-existing 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.
10.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 7;
(b) condition 8;
(c) condition 10; and
(d) condition 20.
11. FORCE MAJEURE
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, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.1 The Supplier may, from time to time and without notice, change the Services and/or Goods 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 and/or Goods.
12.2 Subject to condition 12.1, 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.
13.1 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.
13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, 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.
14.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15. ENTIRE AGREEMENT
15.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.2 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 as expressly provided in the Contract.
15.3 Nothing in this condition shall limit or exclude any liability for fraud.
16.1 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.
16.2 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.
16.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
17. NO PARTNERSHIP OR AGENCY
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 agent for, or to bind, the other party in any way.
18. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.1 Any notice or other communication 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, by commercial courier or by fax or e-mail to the other party at its registered office or principal place of business (if it is a company) or its principal place of business (in any other case), or as otherwise specified by the relevant party by notice in writing to the other party.
19.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to in condition 20.1 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed or if sent by fax or e-mail one Business Day after transmission.
19.3 This condition 19 shall not apply to the service of any in any proceedings or other documents in any legal action.
20. GOVERNING LAW AND JURISDICTION
20.1 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.
20.2 The parties irrevocably agree that the courts of England and Wales shall have non-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).
21. SERVICE PLAN CONTRACT
21.1 The Conditions 1 to 20 (inclusive) apply to a Service Plan Contract as varied by this Condition 21 which only applies to a Service Plan Contract and in the event of any conflict this condition shall prevail over the other conditions set out in these Conditions.
21.2 Subject to Condition 10 and any term expressly set out in the Service Plan Contract the Contract shall be for a fixed period of 12 months from the start date specified in the Service Plan Contract.
21.3 Subject to Condition 6.11 the Service Plan Contract Fee shall be payable as set out in the Service Plan Contract or where no such provision is made the Service Plan Contract Fee shall be paid by the Customer in full and in cleared funds, within 30 days of the date of the Supplier’s invoice.
21.4 The Services to be provided under the Service Plan Contract shall comprise the routine servicing at the Service Location of the Designated Equipment in accordance with the manufacturer’s standard instructions.
21.5 The Service Plan Contract Fee covers the time and materials incurred by the Supplier in providing the Services set out in Condition 21.4.
21.6 The Service Plan Contract Fee does not include the cost of:-
(a) any Services save for those set out in Condition 21.4;
(b) any repairs to the Designated Equipment as a result of breakdown or failure including the diagnosis and rectification of any fault due to:-
(i) the Customer’s failure to maintain a suitable environment for the Designated Equipment; or
(ii) the Customer’s neglect or misuse of the Designated Equipment or its failure to operate the Designated Equipment in accordance with any manufacturer’s instruction manuals or for the purposes for which it was designed; or
(iii) any damage caused to the Designated Equipment by the Customer, its servants or agents; or
(iv) the alteration, modification or maintenance of the Designated Equipment by any party other than the Supplier without the Supplier’s consent; or
(v) the transportation or relocation of the Designated Equipment save where the same has been performed by or under the direction of the Supplier; or
(vi) the use of defective or inappropriate supplies with the Designated Equipment; or
(vii) any accident or disaster affecting the Designated Equipment including without limitation fire, flood, water, wind, lightning, transportation, vandalism or burglary; or
(viii) the Customer’s failure, inability or refusal to afford the Supplier’s personnel proper access to the Designated Equipment; or
(ix) the Designated Equipment being (in the Supplier’s reasonable opinion) obsolete or otherwise incapable of economic repair or maintenance.
(c) the painting or refinishing of the Designated Equipment or the relocation or transportation of the Designated Equipment or electrical work external to the Designated Equipment or the provision of supplies or materials for use in association with the Designated Equipment.
21.7 The Customer may request the Supplier to carry out Services other than those specified in Condition 21.4 but the Supplier shall not be obliged to do so. If the Supplier does agree the Supplier shall be entitled to charge for the same in accordance with Condition 6 below and subject to any additional terms as shall then be agreed.
21.8 The Customer warrants and undertakes to the Supplier that it is the owner of the Designated Equipment and that it has full power and authority to enter into the Service Plan Contract and permit the Supplier to perform the Services and the Customer undertakes to indemnify and hold harmless the Supplier against any loss or damage that the Supplier may suffer as a result of breach by the Customer of this Condition.
Conditions of Energy Survey
INDUSTRIAL AIR POWER LIMITED
Terms & Conditions of Energy Survey Report
1. In these terms & conditions the following definitions apply:-
“Client” – the person, firm or company to whom the Survey Report is addressed.
“IAP” – Industrial Air Power Limited (registered in England and Wales with company number 01978604).
“Survey Report” – the energy survey report prepared by IAP to which these terms and conditions are annexed or incorporated.
2. The Survey Report is made subject to these terms and conditions which shall apply to the Survey Report to the exclusion of any other terms that the Client seeks to impose or incorporate.
3. The purpose of the Survey Report is to analyse certain aspects of the Client’s usage of compressed air and all or part of the Client’s compressed air system. The purpose of this Survey Report is not to identify any errors, omissions, defects, code violations, manufacture instruction violations or any potential or actual hazardous or dangerous conditions, and IAP shall not be liable for the failure to discover such conditions or include such conditions in the Survey Report. The Survey Report should not be construed as professional engineering advice in any of the following disciplines – electrical, mechanical or structural. IAP shall not be under any duty to test or to arrange for the testing of electrical, heating, mechanical or other equipment.
4. The Survey Report will be provided for the stated purposes and for the sole use of the Client. The Survey Report will be confidential to the Client and the Client’s advisors/representatives. IAP accepts responsibility to the Client alone that the Survey Report will be prepared with reasonable skill, care and diligence but IAP accepts no responsibility whatsoever to any parties other than the Client. Any such parties rely on the Survey Report at their own risk. Neither the whole or any part of the Survey Report nor any reference to it may be included in any published document, circular or statement nor published in any way without IAP’s written approval of the form and context in which it may appear.
5. The Survey Report will have been prepared using data collected within a given time period and that data may not be reflective of normal usage if production cycles have been impacted by unusual or non-recurring events occurring during those production cycles. Flow data is free air delivered based on manufacturers published data.
6. The advice provided in the Survey Report is intended to be for information and discussion purposes only. The Client is advised to seek further detailed advice before reaching any decision on its requirements (including any future requirements as a result of expansion, increased demand or changes in its manufacturing processes) for compressed air usage and/or compressed air systems.
7. Nothing in the Survey Report or these terms and conditions shall limit or exclude IAP’s liability for:-
(a) death or personal injury caused by negligence, or the negligence of its employees, agents or sub-contractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for IAP to exclude or restrict liability.
8. Subject to paragraph 7 above:-
(a) IAP shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Survey Report; and
(b) IAP’s total liability to the Client in respect of all other losses arising under or in connection with the Survey Report whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed £10,000.
9. Except as set out in these terms and conditions, warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
10. In preparing the Survey Report, IAP will be relying on the accuracy of all the information supplied by the Client and/or the Client’s advisors, agents or contractors