Terms & Conditions

Schedule 1 Conditions

The Customer's attention is particularly drawn to the provisions of clause 8.

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) 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.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person or firm who purchases Services from the Supplier. Customer’s Equipment: the Customer’s materials, equipment, systems or facilities;

Location: the Customer’s premises, office accommodation and other facilities or such other location(s) for the provision for Services set out in the Quotation.

Order: the Customer's order for Services as set out in the Customer's Order confirmation overleaf or the Customer's written or verbal acceptance of the Quotation, as the case may be.

Quotation: the description or specification of the Services provided in writing by the Supplier to the Customer.

Services: the equipment and services supplied by the Supplier to the Customer during the Services Period as set out in the Quotation together with any other services which the Supplier provides or agrees to provide to the Customer.

Services Period: the period during which Services are to be provided to the Customer as set out in the Quotation or any other period during which the Supplier provides or agrees to provide the Services to the Customer.

Start Date: the date on which the Services are to start as set out in the Quotation.

FWL Terms & Conditions

Supplier: FWL Facilities

Supplier Equipment: any vehicles, equipment, property or other facilities provided by the Supplier and used directly or indirectly in the supply of Services.

Supplier Personnel: the employees, agents or other representatives of the Supplier whose services are employed or engaged by the Supplier in connection with the provision of Services.

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not

having separate legal personality);

(b) a reference to a party includes its successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes e-mails.

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 the Supplier issues written acceptance of the Order or, if no written acceptance is issued, the date in which the Supplier starts to provide the Services, at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4 Any descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues, brochures or website, are issued or published for the sole purpose of giving an approximate idea of the Supplier Equipment and Services described in them. They shall not form part of the Contract or have any contractual force. 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 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.

2.6 Any Quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue. The provision of a Quotation by the Supplier does not guarantee the availability of the Supplier Equipment and/or the Services whether at the time the Quotation is made or at the time the Customer places an Order.

3. SUPPLY OF SERVICES

3.1 The Supplier shall supply the Supplier Equipment and the Services to the Customer in accordance with the Quotation in all material respects.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier shall have the right to make any changes to the Supplier Equipment and/or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event. If the Supplier requests a change to the scope of the Supplier Equipment or Services for any other reasons, the Customer shall not unreasonably, withhold or delay consent to it.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4. CUSTOMER'S OBLIGATIONS

4.1 The Customer shall:

(a) ensure that the terms of the Order and the Quotation are complete and accurate; (b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier with such information as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; or unsuitable ensure that the Supplier and/or the Supplier’s Personnel and/or the Supplier’s Equipment have suitable and safe routes and access to the Location and be responsible for preparing and maintaining the Location for the supply of the Supplier’s Equipment and the Services. The Supplier’s Personnel shall however exercise their own judgment with regard to the safety and suitability of routes and access to Locations and if they deem routes and access to be unsafe or unsuitable, the Customer shall find alternative routes and access;

(d) keep and maintain all Supplier Equipment at the Location in safe and secure custody and protected from interference from third parties.The Supplier’s Personnel shall however exercise their own judgment with regard to the safety and security of the Location and if they deem the Location not to be sufficiently safe or secure to leave the Supplier’s Equipment then the Customer shall find an alternative Location;

(e) maintain the Supplier Equipment in good condition and free from damage until returned to the Supplier;

(f) ensure that the Supplier Equipment is used and/or operated only by suitably qualified and experienced personnel;

(g) not dispose of or use the Supplier Equipment other than in accordance with the Supplier's written instructions or authorisation. For the avoidance of doubt only Supplier Personnel may be transported in any vehicle of the Supplier;

(h) ensure that the Customer’s Equipment used directly or indirectly in connection with the Services are in good working order, suitable for the purposes for which they are used and conform to all relevant standards and requirements in the United Kingdom (including Portable Appliance Testing);

(i) ensure that the Customer’s Equipment is kept and stored in accordance with all relevant standards and requirements in the United Kingdom and comply with all relevant legislation in relation to the Services and the use of the Customer’s Equipment in relation to the Supplier’s Equipment;

(j) immediately inform the Supplier if at any time during the Contract any damage is caused to the Supplier’s Equipment or if any part of it requires adjustment or repair or if there are any accidents or incidents involving the Supplier’s Equipment;

(k) at all reasonable times during the Contract permit the Supplier and/or the Supplier’s Personnel with access to the Supplier’s Equipment to inspect, test, adjust, alter or replace the same;

(l) obtain and maintain all necessary licences, permissions and consents which may be required before the Start Date in relation to the to the Services;

(m) inform the Supplier and/or the Supplier’s Personnel of all health and safety rules and regulations and any other security requirements that apply at the Location;

(n) notify the Supplier as soon as it becomes aware of any health and safety hazards or issues at the Location and/or which may relate to the provision of Services;

(o) during the Contract and for a period of one year afterwards, maintain in force with a reputable insurance company:

(i) public liability insurance of at least £5,000,000 per claim; and

(ii) adequate insurance cover for the Customer’s Equipment against all losses and liabilities, including business interruption, and all other risks that are normally insured against by a person carrying on the same type of business as the Customer

and in each case notify the Supplier if such policy is (or will be) cancelled or its terms are (or will be) subject to any material change. On taking out or renewing each policy, the Customer shall promptly send a copy of the receipt of the premium to the Supplier and on the Supplier’s written request, the Customer shall provide the Customer with copies of insurance policy certificates and details of the cover to be provided.

4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer, its officers, employees, sub-contractors or agents or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2.

4.3 The Customer shall be liable to pay to the Supplier, on demand, all costs or losses sustained or incurred by the Supplier arising directly or indirectly from any act or omission of the Customer, its officers, employees, sub-contractors or agents, a Customer Default, its fraud or negligence.

5. CHANGE TO SERVICES

5.1 If the Customer wishes to change the scope of execution of the Services, it shall submit details of the requested change to the Supplier in writing.

5.2 The Supplier shall within a reasonable time, provide a written estimate to the Customer of:

(a) the likely time required to implement the change;
(b) any necessary variation to the Charges; and
(c) any other impact of the change on the Quotation or the provision of Services.

5.3 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed the necessary variations to the Charges and the Services.

6. CHARGES, PAYMENT AND CANCELLATION

6.1 The Charges for the Services shall be the amounts(s) set out in the Quotation, as amended from time to time in accordance with clause 5.

6.2 The Customer shall provide the Supplier with a written Order within 24 hours of the Supplier’s written request. The Supplier shall invoice the Customer for the Services either on completion of the Services or weekly in arrears, as set out in the Quotation, regardless of whether a written Order has been received by the Supplier.

6.3 The Customer shall pay each invoice submitted by the Supplier:

(a) within 7 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

6.4 The following cancellation charges shall apply for the cancellation of any Services:

(a) If the Service Period of the Contract is less than 7 days, the Customer shall pay to the Supplier on demand 100% of the total Charges for cancellation at any time;

(b) If the Service Period of the Contract is 4 – 12 weeks, the Customer shall pay to the Supplier on demand:

(i) 50% of the total Charges; for cancellation within 7 days of the Start Date and

(ii) 100% of total Charges for cancellation at any time after the Start Date

(i) there will be no cancellation charge for cancellation before the Start Date provided that the Supplier can re-allocate the Supplier’s Equipment to another customer or customer for the Service Period;

(ii) for cancellation after the Start Date, the Customer shall pay to the Supplier on demand 100% of the total Charges.

6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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 any payment due to the Supplier under the Contract by the due date for payment , then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Lloyds Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

7. CONFIDENTIALITY

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.

8. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

8.1 Nothing in these Conditions shall limit or exclude the Supplier'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

8.2 Subject to clause 8.1:

(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £5,000,000.

8.3 The Supplier shall not be liable to the Customer for any losses caused by damage to the Customer’s Equipment expect where such damage arises as a direct result of the Supplier’s negligence.

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. TERMINATION

9.1 Without limiting its other rights or remedies, 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 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) 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;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) 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;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) 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;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) 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;

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) 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 clause 9.1(b) to clause 9.1(i) (inclusive);

(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

(l) the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

9.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.

9.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b)) to clause

9.1(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10. CONSEQUENCES OF TERMINATION

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 supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall permit the Supplier access to the Location or such other place as the Supplier Equipment is located to take possession of them. Until they the Supplier Equipment has been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and

(d) clauses which expressly or by implication survive termination shall continue in full force and effect.

11. FORCE MAJEURE

11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to 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.

11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

11.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

12. GENERAL
12.1 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, 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.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

12.2 Notices

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax [or e-mail].

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax [or e-mail], one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.3 Severance.

(a) 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.

(b) If [one party gives notice to the other of the possibility that] any provision or part- provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

12.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.

12.8 Governing law. This 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.

12.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

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Terms & Conditions