Terms and Conditions for supply of Services
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6 (Charges and payment).
Commencement Date: has the meaning set out in clause 3.2.
Company: Modpack System Ltd. incorporated and registered in England and Wales with company number 11114968 whose registered office is at 1 Pacific Road, Birkenhead, Wirral, Merseyside, CH41 1LJ.
Company Equipment: means vehicles, plant and machinery belonging to Modpack System Ltd., required to provide the Services.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Company and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Company.
Customer Default: has the meaning set out in clause 5.2.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Order: The Customer’s order for Services as set out in the Customer’s purchase order form.
Quotation: means the Company’s proposal for the supply of Services.
RAMS: means Risk Assessments and Method Statements.
Services: the services supplied by the Company to the Customer as set out in the Quotation.
Site: means the premises where the Services are to be provided and where the Company Equipment will operate.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
1.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.4 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A reference to writing or written includes faxes and emails.
2.1 The Company shall provide the Customer with a Quotation which will be valid for a period of 28 days after which the Company reserve the right to review and amend the terms of the Quotation.
2.2 Unless otherwise specified by the Company in writing, every quotation is open for a period of twenty eight days, after which the quotation will be subject to confirmation.
2.3 Unless otherwise stated by the Company in writing, every quotation is based on the following assumptions and circumstances applying:
(a) the Site will be subject to a project management plan with safe systems of work and RAMS;
(b) the Company will carry out the Services in daylight during normal working hours unless otherwise agreed.
(c) the Company will oversee delivery of the Services without interruption and on a clear Site with adequate approaches suitable for the necessary movement of the Company Equipment;
(d) the Company will inform the Customer of the weights and loads of the Company Equipment;
(e) the Customer will inform the Company of the weights of the items that are to be lifted;
(f) the Customer will ensure that the ground and all surfaces and floors are firm, level and in good condition and will provide adequate support for the weight of the Company Equipment and loads as stated by the Company;
(g) the Customer will inform the Company of the presence of holes, basements or cellars below the ground, floor or other surface at the Site and ensure the suitability and adequacy of support for the Company Equipment including stagetesting of samples as appropriate; and
(h) The Customer warrants that the information it has provided to the Company is accurate and comprehensive and that such will allow the safe lifting and removal of all items.
2.4 In the event that some or all of the assumptions under clause 2.1 do not apply:
(a) the Company reserves the right to issue a revised quotation for the Services.
(b) if the Customer declines the revised Quotation it shall be liable for the costs incurred by the Company; and
(c) the Company may elect to be discharged from the Contract without further liability to the Customer.
(d) Where the Company agrees to perform additional Services:
(i) the additional Services shall be regarded as a new Contract;
(ii) the Customer must confirm its acceptance of the charges for the additional Services and authorise the commencement of supply of the Services, in writing;
(iii) payment for the original Services ordered must be paid on time in accordance with clauses 6.3 and 6.4. Where no formal order for additional Services is provided then the Company reserves the right to pass on any or all reasonable costs associated with leaving and returning to the Site.
2.5 If a Quotation or revised Quotation has multiple sections, the pricing of each sub- section assumes acceptance by the Quotation in its entirety and the Company reserves the right to adjust its Quotation or revised Quotation, if only a part of the Quotation or revised Quotation is accepted by the Customer.
2.6 The Charges may be increased by the amount of any costs incurred by the Company as a result of delays or cancellations in commencing or completing the contract work due to circumstances beyond the Company’s reasonable control including but not limited to inclement weather or industrial action.
3. BASIS OF CONTRACT
3.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
3.3 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.5 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.
4. SUPPLY OF SERVICES
4.1 The Company shall supply the Services to the Customer.
4.2 The Company shall use all reasonable endeavours to meet any performance dates specified in Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Company reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
4.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides is complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company;
(d) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all Company Equipment, materials, equipment, documents and other property of the Company (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
(i) comply with and obtain all permits for transport through local jurisdictions during transit.
5.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
(b) The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be calculated on a Fixed Price or on a time and materials basis:
(a) the Charges shall be calculated in accordance with the Company’s daily fee rates, as set out in the Schedule;
(b) The Company’s daily fee rates for each individual are calculated based on an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) The Company shall be entitled to charge an overtime rate of as described in the Schedule per cent of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause
(d) The Company shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials
6.2 The Company reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
6.3 The Customer shall pay for the Services in accordance with the terms stated in the Quotation which may be either:
(a) in advance on acceptance of the Customers Order by the Company; or
(b) on part-completion or completion of the Services.
6.4 The Customer shall pay each invoice submitted by the Company:
(a) within 30 days, unless otherwise agreed, from the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.
6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect off value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.6 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under Clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.7 If the Customer chooses to make payment by credit card; bank transfer or by any other method involving handling charges then those handling charges will be at the expense of the Customer.
6.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. DATA PROTECTION AND DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Company is the processor.
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, the Company shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless the Company is required by Applicable Laws to otherwise process that personal data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Company has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the Customer if, in the opinion of the Company, an instruction infringes the Data Protection Legislation
7.5 The Customer does not consent to the Company appointing any third party processor of Personal Data under the Contract.
7.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in the Contract shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, the Company shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
8.3 Subject to clause 8.1, the Company’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to £125.00 per cargo tonne.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one month’s written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment; or
(a) there is a change of Control of the Customer.
9.4 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or the Company reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Company Equipment. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, Customers or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in In the Schedule
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.