TERMS AND CONDITIONS OF BUSINESS FOR THE SUPPLY OF GOODS AND SERVICES BY POWER ELECTRIC SERVICES LIMITED (“THE SUPPLIER”)
The Customer’s attention is particularly drawn to the provisions of clause 7.
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 and Goods in accordance with clause 5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
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.
Deliverables: the deliverables set out in the Purchase Order (or other document) produced by the Supplier for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form OR the Customer’s written acceptance of the Supplier’s quotation OR in the Customer’s purchase order form, the Customer’s written acceptance of a quotation by the Supplier, or otherwise, as the case may be].
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing (or otherwise) by the Supplier to the Customer.
Supplier: Power Electric Services Limited registered in England and Wales with company number 02775251
Supplier Materials: has the meaning set out in clause 4.1(g).
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 writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services and Goods in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier confirms acceptance of the Order 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 samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (or on its website), 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.
2.5 These Terms and 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 or estimate given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES AND GOODS
3.1 The Supplier shall supply the Services and Goods to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates requested by the Customer, 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 Services or Goods supplied 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.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier is unable to guarantee work carried out and parts and equipment supplied to the Customer if they are misused, treated negligently of if the work carried out is repaired, modified or tampered with by anyone other than the Supplier. Where the Supplier carries out work using the Customer’s materials, the Supplier can take no responsibility for the quality, fitness for purpose or otherwise of those materials and the terms of the Supplier’s Guarantee will not apply
3.6 Although care will be taken, the Supplier is unable to guarantee (and no liability is accepted) for damage to carpets, floor coverings, expensive items and furniture during the duration of the works being carried out
3.7 The Supplier cannot guarantee work that has been carried out against their advice. The Supplier’s Guarantee is also void if the Supplier has indicated to the Customer that further work needs to be carried out and that additional work has not been completed
3.8 The Supplier cannot guarantee work carried out on existing installations that are over 10 years old, nor can the Supplier guarantee or make any warranties as to the effectiveness or otherwise of the work carried out in those situations
3.9 The Supplier will only be responsible for rectifying their own work when the Supplier has accepted that the work needs to be rectified. The Supplier will not be held responsible for any consequential loss or damages or claims for other works overlooked by the Customer
3.10 Electrics: It is the Customer’s responsibility to protect any data equipment, software or stored data information, which may become damaged or deemed lost, due to power loss. Whilst every care shall be taken, and it should be assumed that accidental loss of power might occur, the Supplier accepts no liability for any consequences of that loss of power.
4. Customer’s obligations
4.1 The Customer shall:
(a) ensure that the terms of the Order [and any information it provides in the Specification] are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is 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 before the date on which the Services are to start;
(g) 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 authorisation;
(h) Indemnify the Supplier against all actions, suits, claims, demands, losses, charges, costs and expenses which the Supplier suffers or incurs resulting from a claim by any third party arising out of a breach of the Customer’s obligations, undertakings, representations and warranties under this agreement
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 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.
(d) The Customer shall also compensate the Supplier for any costs or damages the Supplier may have to pay where the negligence or faulty workmanship of any person, agent or contractor employed or engaged by the Customer makes the Supplier liable for those damages or responsible for the rectification of that damage
5. Charges and payment
5.1 Parts and materials are charged to the Customer at retail price plus a handling charge. The Charges for the Services shall be either on a time and materials basis or on a fixed price basis and the Supplier’s estimate will make that clear:
(a) where work is being carried out on a time-charged hourly basis, the total Charge will be for the time spent doing the work. It will include all reasonable time spent in obtaining materials.
(b) the price payable by the Customer is the price stated as the invoice total, or where no price is stated, the Supplier’s current standard rates for the service will apply. It is the responsibility to enquire into the Supplier’s rates for the specific service that is required. The Supplier incurs no liability or obligation to present this information to the Customer, except on request.
(c) where labour charges apply, unless otherwise confirmed, all services shall be charged with a minimum labour charge of two hours for the initial visit and rounded up to the nearest hour thereafter. Subsequent visits shall be charged on merit rounded up to the nearest hour.
(d) unless explicitly agreed in writing, the Supplier cannot guarantee to work within upper ceiling limits. Whilst the Supplier will endeavour to use all reasonable care and diligence to ensure compliance, the Customer agrees to accept any additional costs.
(e) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
(f) with fixed price work, the Supplier’s quotation will include the cost of labour and materials. The price will be fixed but manifest errors contained in the quotation will exempted. Quotations may need to be revised by the Supplier if the Customer changes the scope of the work, or if there is an increase in the price of materials, or if further works are required.
(g) with fixed price work, the price payable by you is specified in the Supplier’s quotation. The Supplier however reserves the right to increase the price before carrying out the work by an amount equivalent to any increase to them in the cost of relevant materials since the date of their quotation, save if this would increase the cost by more than 10%, when the Supplier will provide an amended quotation. If the Customer declines the revised quotation, the Customer may be liable to a charge for time and work undertaken by the Supplier up until that point
(h) the Supplier reserves the right to withdraw any quotation without notice before we receive the Customer’s acceptance.
(i) dates specified for the commencement and completion of works are estimates only and shall not form the essence of the contract.
(j) where all consideration is given to the evaluation or work duration, all reasonable precaution will be taken by the Supplier to avoid additional costs. It is however agreed, and a condition of these terms, that should further work be necessary to complete the contract and where the Customer of their site representative is not available (for whatever reason), to sanction the necessary extension, the Supplier has the Customer’s authority (without express reference to the Customer) to extend the working day or re-attend to complete the works. Additional hours worked will be charged in accordance with the Supplier’s current rates.
5.2 The Supplier shall invoice the Customer on completion of the Services and for Goods and Materials supplied, the Customer will be invoiced for those items which must be paid for in full before commencement of the works.
5.3 Payment to the Supplier shall be made on completion of the works, unless specifically requested and agreed otherwise
5.4 The Customer agrees that by providing debit/card details as the preferred method of payment or security for the Supplier’s charges. The Customer has provided the necessary authorisation for funds to be taken from that card upon completion of works, or when invoices are unpaid and outside the agreed credit terms, or at a time where, at the Supplier’s discretion, the security for that payment needs to be processed
5.5 The Supplier will require the Customer’s Debit/Credit card details as security for any works undertaken, unless otherwise agreed
5.6 Credit card transactions shall incur a 5% surcharge and, this charge will be VAT exempt
5.7 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days net of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated by the Supplier, and time for payment shall be of the essence of the Contract.
5.8 All amounts payable by the Customer under the Contract are exclusive of 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.
5.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier will be entitled to add to the account balance and recover from the Customer, late payment interest, compensation and any charges under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended) and the 2013 Late Payment Regulations.
5.10 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.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 All Supplier Materials are the exclusive property of the Supplier.
7. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 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
(c) breach of the terms implied by the Supply of Goods and Services Acts.
7.2 Subject to clause 7.1:
(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 the amount of the invoice value of the work.
7.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 and the provisions of the Consumer Rights Act 2015 are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 above shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 1 months’ written notice.
8.2 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 control of, 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) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(k) 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
(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.
8.3 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 30 days after being notified in writing to do so.
8.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services and supply of Goods 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 8.2(b)) to clause 8.2(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.
9. 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, late payment interest and late payment charges in respect of Services and Goods 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 and any Deliverables which have not been fully paid for. 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 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.
10. Force majeure
10.1 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.
10.2 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.
10.3 If the Force Majeure Event prevents the Supplier from providing any of the Services, 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.
11.1 Retention of Title to Goods
(a) Goods supplied by or delivered to the Customer’s premises (or delivery address) shall remain the property of the Supplier until payment in full has been made. Whilst goods supplied remain the Supplier’s property (and they shall continue to retain legal title over them), the Supplier has the absolute authority to retake, sell or otherwise dispose of all or any part of those goods. The Supplier will be entitled to seek a court injunction to prevent the Customer (or Insolvency Practitioner) from selling, transferring or otherwise disposing of such goods. However, once goods have been delivered, the Customer is responsible to keep them safe and secure. The Supplier will be entitled to charge for goods damaged as a result of the Customer’s negligence.
11.2 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.
(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 and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier
(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 11.3(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
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(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.
(c) If, under this sub-heading, the parties are unable to negotiate amendments to the Contract to achieve the original intentions of the parties, either party is entitled to terminate the Contract upon giving 14 days’ written notice
11.5 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.
11.6 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.
11.7 Third parties. A person who is not a party to the Contract shall not have any rights or duties to enforce its terms.
11.8 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.
11.9 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.
11.10 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).