MAINtenance and repair contractstandard terms and conditions
(These conditions form part of this Contract)
The Customer’s attention is particularly drawn to the provisions of clause 7.
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.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract: this Contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Services: The Maintenance Service Type (as defined on front sheet of this Contract) supplied by the Supplier to the Customer in respect of the Lift System (as defined on the front sheet of this Contract).
Supplier Materials: has the meaning set out in clause 4.1(d).
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 personal representatives, 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;
(e) a reference to writing or written includes faxes but not e-mails; and
(f) the schedules form part of this Contract.
2. Basis of Contract
2.1 This Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in this Contract.
2.2 These Conditions apply to this 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. Supply of Services
3.1 The Supplier shall supply the Services to the Customer for the period of this Contract until terminated under clause 9.
3.2 The Supplier shall use all reasonable endeavors to meet any performance times specified in the Maintenance Service Type, but any such times shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and will provide any relevant part of the Services in compliance with the original manufacturer’s recommendations.
3.4 All repairs to the Lift System shall not be undertaken by the Supplier until the Customer has accepted in writing the Supplier’s quotation for such repairs.
4. Customer’s Obligations
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier in order to perform the Services;
(c) provide the Supplier upon request with such information and original Lift System materials, installations and other records relating to past maintenance and repair of the Lift System as the Supplier may reasonably require in order to properly and effectively supply the Services, and ensure that such information is accurate in all material respects.
(d) Keep and maintain all materials, equipment, documents and other property of the Supplier (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 Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorization; and
(e) Shall not during the period of this Contract without the prior written agreement of the Supplier (such consent not to be unreasonably withheld or delayed if the Supplier is unable to provide the Services within a reasonable period of time if urgent) permit any third party to provide services the same or similar to the Services and the Customer acknowledges to the Supplier that this restriction is purely for the health and safety of users of the Lift System and in all circumstances is reasonable.
4.2 If the Supplier’s performance of any of its obligations under this 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) 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; and
(c) The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Charges and Payment
5.1 The Charges for the Services are set out in the Maintenance Service Type.
5.2 The set-up charge (as set out in Schedule 2) (if relevant) shall be invoiced and paid by the Customer on the date of this Contract.
5.3 The Supplier shall invoice the Customer monthly in arrears for all other charges (as set out in Schedule 2).
5.4 The Customer shall pay each invoice submitted by the Supplier under clause 5.2
(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 the Supplier, and time for payment shall be of the essence of this Contract.
5.5 All amounts payable by the Customer under this 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 this 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.
5.6 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under this Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 6 per cent per annum above the then current HSBC Bank plc base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.7 The Customer shall pay all amounts due under this Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, 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.
6.1 Title to any new parts which the Supplier installs as part of the Services shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) of the invoice in which the parts are included as part of the Services.
6.2 Until title to the said parts has passed to the Customer, the Customer shall:
(a) Not remove the said parts from the lift system which is the subject of this Contract.
(b) Notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(c) Give the Supplier such information relating to the said parts as the Supplier may require from time to time.
6.3 If before title to the said parts passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2 then, without limiting any other right or remedy the Supplier may have then the Supplier may at any time enter any premises of the Customer in order to recover the said parts from the lift system which is the subject of this Contract notwithstanding that the lift system may not then be viable or safe.
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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 6 shall survive termination of the Contract.
8. Limitation of Liability:
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; or
(b) fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1:
(a) the Supplier shall not 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 this Contract; and
(b) The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with this Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total amount of Charges paid by the Customer to the Supplier under this Contract at the date of the claim except that the Supplier shall have no liability under this clause to the Customer if the Customer is in breach of clause 4.1(e).
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
8.4 This clause 8 shall survive termination of the Contract.
9. Term and Termination
9.1 Subject to clause 9.2 this Contract shall only terminate if either the Supplier or the Customer serves on the other 60 days prior written notice. In the event of the Supplier terminating the contract early, any part during the year, will be responsible to pay the remainder amount of the contract, including years which have not yet commenced.
9.2 Notwithstanding clause 9.1 and without limiting its other rights or remedies, each party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) The other party commits a material breach of this Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing of the breach;
(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) 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) A floating charge holder 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; or
(l) 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.
9.3 Notwithstanding clauses 9.1 and
9.2 without limiting its other rights or remedies, the Supplier may terminate this 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.
9.4 Notwithstanding clause 9.3 and without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under this Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(l) 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
10.1 On termination of this 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 return all of the Supplier Materials. 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, 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 not be affected, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination or expiry; and
(d) Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 Force majeure:
(a) 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.
(b) 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.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 12 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.
11.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Contract and may subcontract or delegate in any manner any or all of its obligations under this Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Supplier, assign,transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first- class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above 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, on the next Business Day after transmission.
(c) This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
(a) A waiver of any right under this Contract 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 under this 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.
(b) Unless specifically provided otherwise, rights arising in this Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in this 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.
11.7 Third parties: A person who is not a party to this Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to this Contract, shall only be binding when agreed in writing and signed by the Supplier.
11.9 Governing law and jurisdiction: 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales
11.10 Counterparts: This Contract may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument. Any party to this Contract may enter into it be executing any such counterpart