TERMS AND CONDITIONS
Terms and Conditions for the Supply of Services
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
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 5.
Cladspray: Cladspray Solutions Ltd registered in England and Wales with company number 08551448.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.
Contract: the contract between Cladspray and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Cladspray.
Customer Default: has the meaning set out in clause 4.2.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form, or in the Customer’s written acceptance of Cladspray’s quotation, as the case may be.
Specification: the description or specification of the Services provided in writing by Cladspray to the Customer.
Services: the services supplied by Cladspray to the Customer as set out in the Specification. 1.2
Interpretation:
(a) 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.
(b) 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.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Cladspray issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 Any samples, drawings, descriptive matter or advertising issued by Cladspray, and any descriptions or illustrations contained in Cladspray’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.
2.4 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.
2.5 Any quotation given by Cladspray shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1 Cladspray shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 Cladspray shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Cladspray reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Cladspray shall notify the Customer in any such event.
3.4 Cladspray warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Cladspray will ensure that all materials supplied in the provision of the Services comply with safe building practices and are free from defects and that the Services are carried out with reasonable care and skill and to a reasonable standard.
3.6 Prior to issuing written acceptance of the Order pursuant to clause 2.2, Cladspray will carry out an inspection to make sure that all Services quoted are appropriate and practicable.
3.7 If, after Cladspray’s inspection pursuant to clause 3.6, any further work is necessary either because of alterations in design, specification or otherwise and this causes an increase in costs, Cladspray will send the Customer a further quotation giving details of the extra costs and will only proceed with the Services once the Customer’s revised purchase order has been received pursuant to clause 2.1 and Cladspray has issued written acceptance of the Order pursuant to clause 2.2.
3.8 Cladspray will make good any damage caused by Cladspray or its employees or contractors whilst carrying out the Services.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Cladspray in all matters relating to the Services;
(c) provide Cladspray, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by Cladspray;
(d) provide Cladspray with such information, measurements and materials as Cladspray 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; and
(g) comply with all applicable laws, including health and safety laws.
4.2 If Cladspray’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, Cladspray 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 Cladspray’s performance of any of its obligations;
(b) Cladspray shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Cladspray’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Cladspray on written demand for any costs or losses sustained or incurred by Cladspray arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The charges for the Services (including details of any deposit to be paid by the Customer in advance (“Deposit”)) shall be set out in the Order, and shall be the full and exclusive remuneration of Cladspray in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of Cladspray directly or indirectly incurred in connection with the performance of the Services.
5.2 The Customer shall pay the Deposit to Cladspray in full and cleared funds to a bank account nominated in writing by Cladspray prior to Cladspray’s commencement of the Services. Cladspray shall invoice the Customer for the balance of the charges at its discretion either on a monthly basis (on the last Business Day of the relevant month) or on completion of the Services.
5.3 The Customer shall pay each invoice submitted by Cladspray:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Cladspray, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Cladspray to the Customer, the Customer shall, on receipt of a valid VAT invoice from Cladspray, pay to Cladspray 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.
5.5 If the Customer fails to make a payment due to Cladspray under the Contract by the due date, then, without limiting Cladspray’s remedies under clause 8, 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 5.5 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%.
5.6 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).
6. Customer Guarantee
6.1 Where agreed in the Order, Cladspray shall provide the Customer with a Cladspray written guarantee for completed Services (“Guarantee”). A Guarantee shall only be provided once Cladspray’s invoice is paid by the Customer in accordance with clause 5.3.
7. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
7.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence; for fraud or fraudulent misrepresentation; or in any other circumstances where liability may not be limited under any applicable law.
7.2 Subject to clauses 7.1 and 7.3, Cladspray’s total liability to the Customer whether in contract, tort, negligence, for breach of statutory duty or otherwise for any loss or damage, costs or expenses arising under or in connection with the Contract shall not exceed 100% of the total charges paid to Cladspray under the Contract.
7.3 Subject to the provisions of clause 7.1, neither party shall be liable to the other whether in contract, tort, negligence, for breach of statutory duty or otherwise for loss of profit, revenue, use, or anticipated savings, in each case whether direct or indirect, or any indirect or consequential loss or damage, costs or expenses whatsoever or howsoever arising out of or in connection with the Contract.
7.4 This clause 7 shall survive termination of the Contract.
8. Termination
8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party four (4) weeks’ written notice.
8.2 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 fourteen (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.
8.3 Without affecting any other right or remedy available to it, Cladspray 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.
8.4 Without affecting any other right or remedy available to it, Cladspray may suspend the supply of Services under the Contract or any other contract between the Customer and Cladspray 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 8.2(b) to clause 8.2(d), or Cladspray reasonably believes that the Customer is about to become subject to any of them.
9. Consequences of termination
9.1 On termination of the Contract the Customer shall immediately pay to Cladspray all of Cladspray’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Cladspray shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.2 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.
9.3 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.
10. General
10.1 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.
10.2 Assignment and other dealings.
(a) Cladspray 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, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Cladspray.
10.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five (5) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(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 10.3; 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.
10.4 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.
10.5 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).
10.6 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 right or remedy. 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.
10.7 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.
10.8 Notices.
(a) Any notice 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:
(i) for Cladspray: the email address specified in Cladspray’s written acceptance of the Order; and (ii) for the Customer: the email address specified in the Customer’s Order. (b) Any notice or communication shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) 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; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(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.
10.9 Third party rights. 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.
10.10 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.
10.11 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.
10.12 How to contact Cladspray. Cladspray aims to provide a high level of service. If a Customer has an enquiry or complaint regarding the Services provided by Cladspray please address them to Tom Carter (Managing Director), 15 Mason Road, Norwich NR6 6RF.
