Terms & Conditions
Call Out Terms & Conditions
These terms and conditions apply if you (the Customer) order maintenance services from us (Sprint Door Systems Limited) and you do not have an ongoing maintenance service agreement in place with us.
1. Interpretation & Definitions
1.1 The definitions and rules of interpretation in this clause apply to each Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: all charges payable by the Customer under a Contract and in accordance with these Conditions.
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 17.
Contract: a contract between SDS and the Customer for the supply of Maintenance Services in accordance with these Conditions.
Corrective Maintenance: means:
(a) making any adjustment to Equipment; and
(b) replacing any part or component of Equipment;
required to restore Equipment to Good Working Order, in accordance with clause 3.1.
Customer: the person or firm who purchases Maintenance Services from SDS.
Equipment: the electric door or shutter in respect of which the Customer requests Maintenance Services.
Excluded Cause: means any of:
(a) a defect in the manufacturer’s design of Equipment;
(b) a defect in Equipment which is beyond economic repair; or
(c) a failure, interruption or surge in electrical power or infrastructure connected to Equipment.
Excluded Maintenance: any maintenance services required to restore any malfunctioning or failed Equipment to Good Working Order where the malfunction or failure results from or is caused by any Excluded Cause.
Good Working Order: Equipment operates in accordance with the Operating Manual.
Location: the location of Equipment at the Customer’s premises as specified by the Customer.
Maintenance Services: any Corrective Maintenance and any Excluded Maintenance which SDS performs in accordance with clause 5.2.
Normal Business Hours: 9.00 am to 5.00 pm GMT on a Business Day.
Operating Manual: any operating manual, specification or other manufacturer documentation relating to Equipment.
Order: a written or verbal order for Maintenance Services of Equipment provided by the Customer to SDS.
Response Time: within 24 hours of the next Business Day following the Commencement Date.
Service Fee: the fee payable for Maintenance Services or any Excluded Maintenance which SDS performs in accordance with clause 5.2 calculated at the Service Rates.
Service Rate: SDS’ prevailing hourly charging rates for the time being (which SDS shall make available to the Customer on request).
SDS: Sprint Door Systems Limited registered in England and Wales with company number 08924634.
1.2 Clause headings shall not affect the interpretation of these Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to a statute or statutory provision or any subordinate legislation is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes faxes and e-mail.
1.8 Any words following the terms including, include shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract
2.1 An Order constitutes an offer by the Customer to purchase Maintenance Services in accordance with these Conditions.
2.2 An Order shall only be deemed to be accepted when SDS issues a written or verbal acceptance of the Order at which point and on which date a Contract shall come into existence (Commencement Date). Each Contract (unless terminated earlier in accordance with clause 11) shall terminate on the later of the completion of the Maintenance Services or the Customer’s payment of all outstanding sums.
2.3 These Conditions apply to each 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.
2.4 Any quotation given by SDS shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Maintenance Services
3.1 SDS shall following acceptance of an Order in accordance with clause 2.2:
(i) use reasonable endeavours to attend the relevant Location within the relevant Response Time during Normal Business Hours; and
(ii) use reasonable endeavours to perform Corrective Maintenance of Equipment within a reasonable period;
time not being of the essence in each case.
3.2 In performing Maintenance Services, SDS shall use reasonable endeavours to restore any malfunctioning or failed Equipment to Good Working Order while in attendance at the Location. Where this is not reasonably practicable within Normal Business Hours, SDS shall arrange for a further visit to the Location within Normal Business Hours (or such other time as is agreed between the parties) to complete the repair.
4. Customer’s obligations
The Customer shall:
(a) obtain and maintain all licences, consents, and permissions necessary for SDS to provide Maintenance Services at the Location,
(b) at its cost provide a parking space at the premises of the relevant Location for use by SDS personnel at all times whilst SDS personnel are in attendance at the Location;
(c) at all reasonable times provide SDS personnel with full and free access to the Location and Equipment and provide adequate and safe working space, and any electrical and telecommunications facilities reasonably required to enable SDS to perform Maintenance Services at the Location;
(d) hire such equipment as is necessary to safely access the Location, including but not limited to mobile work platforms for work at height, or pay any reasonable hire charges incurred by SDS;
(e) ensure that no persons enter the immediate area of the relevant Location whilst Maintenance Services are being performed;
(f) ensure that all persons located within the Location adhere to any reasonable instructions of SDS;
(g) provide SDS with any information that is reasonably requested for the performance of Maintenance Services; and
(h) take any steps reasonably necessary to ensure the safety of SDS personnel when attending the Location and any other persons on the Customer’s premises.
5. Excluded Maintenance
5.1 SDS is not obliged to perform Excluded Maintenance.
5.2 Where SDS at its absolute discretion performs Excluded Maintenance in circumstances where it is established that Equipment was not in Good Working Order due to any Excluded Cause, SDS may charge, and the Customer shall pay, the Service Fee for all time spent at the Location by SDS personnel in respect of that work.
6. Materials and spare parts
6.1 In performing Maintenance Services, SDS shall use reasonable endeavours to source materials and spare parts required to restore Equipment to Good Working Order. SDS is entitled to charge the Customer for materials and spare parts.
6.2 All spare parts and/or replacements provided by SDS shall become part of the Equipment and will be the property of the Customer. All parts and components removed from the Equipment by SDS in providing Maintenance Services shall no longer constitute part of Equipment and will be the property of SDS. Title to all parts and components removed from Equipment by SDS shall pass to SDS on removal.
7. Charges
7.1 The Customer shall pay the Service Fee for all time spent at the Location by SDS personnel in performing the Maintenance Services.
7.2 Where SDS personnel are:
(a) unable to safely access a Location to provide Maintenance Services at the arranged time; or
(b) unable to safely complete Maintenance Services;
due to a Customer breach of any obligation under clause 4, SDS is entitled to charge the Customer the Service Fee for all time spent by SDS’ personnel at the Location subject to a minimum one hour charge.
7.3 All Charges shall be due and payable, within 30 days of receipt of a valid invoice from SDS. Time of payment is of the essence.
7.4 If the Customer fails to make any payment due to SDS under a Contract by the due date for payment, then, without limiting SDS’ remedies under clause 11, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank PLC’s 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.
7.5 All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
8. Supplier warranties
8.1 SDS represents and warrants to the Customer that the Maintenance Services shall be performed:
(a) by suitably qualified and experienced personnel;
(b) using all reasonable skill and care; and
(c) in accordance with all applicable laws and regulations in force from time to time.
8.2 Except as expressly stated in these Conditions, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
9. Liability
9.1 Neither party excludes or limits liability to the other party for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by negligence; or
(c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
9.2 Subject always to clause 9.1, SDS shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
(a) any loss (whether direct or indirect) of profits, business, revenue, or goodwill;
(b) loss or corruption (whether direct or indirect) of data or information; or
(c) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under a Contract.
9.3 Subject always to clause 9.1, SDS’ total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of a Contract shall be limited to the total Charges in respect of the relevant Contract.
10. Confidentiality
10.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 A party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with a Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with a Contract.
10.4
11. Term and termination
11.1 Without prejudice to any rights that have accrued under a Contract or any of its rights or remedies, SDS may terminate a Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits any serious breach of any term of that Contract and (in the case of a breach capable of being remedied) fails to remedy the breach, within 30 days after the receipt of a request in writing from SDS to do so; or
(b) the Customer fails to pay any sum due under the terms of that Contract and such sum remains unpaid for 14 days after written notice from SDS that such sum has not been paid.
(c) the Customer 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;
(d) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Customer’s financial position deteriorates to such an extent that in SDS’ opinion the Customer’s ability to adequately fulfil its obligations under a Contract has been placed in jeopardy.
11.2 Any provision of a Contract that expressly or by implication is intended to come into or continue in force on or after termination of a Contract shall remain in full force and effect.
11.3 Termination of a Contract, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination, including the right to claim damages in respect of any breach of a Contract which existed at or before the date of termination.
11.4 On termination of a Contract for any reason, any outstanding amounts owed to SDS by the Customer pursuant to a Contract shall become immediately due and payable.
12. Force majeure
Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
13. Assignment
13.1 SDS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract.
13.2 The Customer may not 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 a Contract without the prior written consent of SDS.
14. Waiver
No failure or delay by a party to exercise any right or remedy provided under a Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
15. Notices
15.1 Any notice given to a party under or in connection with a Contract shall be in writing and shall be:
(a) 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
(b) sent by fax to its main fax number; or
(c) sent to the business email address of a partner or director (who is listed for the time being at Companies House) of the other party or such other email address as is notified by one party to the other as acceptable for the receipt of notices from time to time.
15.2 Any notice given under clause 15.1 shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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; and
(c) if sent by fax or email, at 9.00 am on the next Business Day after transmission.
15.3 Clauses 15.1 and 15.2 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16. Entire agreement
16.1 These Conditions constitute 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.
16.2 Each party acknowledges that in entering into a 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 these Conditions.
16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
17. Variation
No variation of a Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Severance
If any provision or part-provision of a 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.
19. No partnership or agency
19.1 Nothing in a Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. Third-party rights
No person other than a party to a Contract shall have any rights to enforce any term of a Contract.
21. Rights and remedies
Except as expressly provided in a Contract, the rights and remedies provided under a Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
22. Governing law
A 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.
23. 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 a Contract or its subject matter or formation (including non-contractual disputes or claims).
Supply and Installation agreement
1 Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreement Details Form: the agreement details form set out at the beginning of this agreement.
Business Day: a day other than a Saturday Sunday or a public holiday in the UK
Commencement Date: the date of this agreement as stated in the Agreement Details Form
Completion Date: the date on which installation of Equipment at the Location is completed by SDS.
Customer: the customer whose details are stated in the Agreement Details Form.
Delivery Date: such date as is notified to the Customer by SDS from time to time.
Equipment: the equipment supplied by SDS to the Customer as described in the Agreement Details Form and such other equipment as may be agreed from time to time in writing between the parties.
Equipment Delivery Location: the delivery location for Equipment specified in the Agreement Details Form.
Excluded Cause: means any of:
(a) a defect in the manufacturer’s design of Equipment;
(b) faulty materials or workmanship in the manufacture of Equipment;
(c) use of Equipment with parts or materials not supplied or approved in writing by SDS;
(d) any maintenance, alteration, modification or adjustment performed by persons other than SDS or its employees or agents unless approved by SDS in writing;
(e) the Customer or a third party moving Equipment;
(f) the use of Equipment otherwise than in accordance with any manufacturer’s operating manual or direction given to the Customer by SDS from time to time;
(g) a failure, interruption or surge in electrical power or infrastructure connected to Equipment; or
(h) neglect or misuse of Equipment.
Installation Date(s): such date(s) as is/are notified to the Customer by SDS from time to time on which Equipment is to be installed at the Location.
Intellectual Property Rights: all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof existing in any part of the world whether now known or in the future created
Location: the location at the Customer’s premises where Equipment is to be installed as stated in the Agreement Details Form.
Price: the total price for Equipment and the installation services to be provided under this agreement as stated in the Agreement Details Form.
SDS: Sprint Door Systems Limited registered in England and Wales with company number 08924634.
Trade Account: a trade account which has been approved in advance in writing by SDS permitting the Customer to purchase Equipment and the installation of Equipment on credit (and in relation to which SDS has not otherwise notified the Customer that such trade account has been terminated or suspended).
Warranty Period: a period of 12 months commencing on the Completion Date.
1.2 Clause headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Agreement Details Form forms part of this agreement.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 A reference to a statute or statutory provision or any subordinate legislation is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail.
1.9 Any words following the terms including, include shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.10 If there is an inconsistency between any of the provisions in these terms and the Agreement Details Form, the provisions in these terms shall prevail.
2 Basis of agreement
2.1 This agreement shall commence on the Commencement Date and shall terminate automatically (unless terminated earlier in accordance with clause 9) on the later of the day following the Completion Date or the Customer’s payment of all outstanding sums.
2.2 The terms of this agreement apply 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.
2.3 This agreement 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 SDS which is not set out in this agreement.
2.4 Any samples, drawings, descriptive matter, or advertising produced by SDS and any descriptions or illustrations contained in SDS’ catalogues, website or brochures are produced for the sole purpose of giving an approximate idea of the Equipment described in them. They shall not form part of this agreement or have any contractual force.
2.5 A quotation for Equipment given by SDS shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3 Equipment and services to be provided
3.1 SDS agrees, subject to the terms of this agreement, to:
3.1.1 sell Equipment to the Customer free from encumbrances;
3.1.2 install Equipment at the Location.
4 Payment
4.1 The Customer shall pay the Price in accordance with this clause 4 for the sale and installation of Equipment.
4.2 If the Customer has a Trade Account SDS shall invoice the Customer the Price and any applicable taxes or charges on or at any time after the Completion Date.
4.3 If the Customer does not have a Trade Account:
4.3.1 the Customer shall pay 50% of the Price and any applicable taxes or charges on the Commencement Date; and
4.3.2 SDS shall invoice the Customer 50% of the Price and any applicable taxes or charges on or at any time after the Completion Date.
4.4 The Customer shall pay each invoice in full and in cleared funds within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by SDS. Time of payment is of the essence.
4.5 The Price and any additional charges payable under this agreement are exclusive of any applicable VAT and other sales tax which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law against submission of a valid tax invoice.
4.6 SDS shall have the right to charge interest on overdue invoices at rate of 4% per year above the base rate of National Westminster Bank PLC calculated from the date when payment of the invoice becomes due up to and including the date of actual payment whether before or after judgment.
5 Delivery and installation
5.1 On the Delivery Date SDS shall arrange for the Equipment to be delivered to the Equipment Delivery Location but shall not be responsible for off-loading the Equipment or moving it to the Location which shall be undertaken by the Customer at its own expense. Time of delivery shall not be of the essence.
5.2 The Price does not include the cost of transportation of Equipment or any other delivery costs which shall be paid by the Customer in addition to the Price.
5.3 Provided the Customer adheres to its obligations in accordance with clause 7, SDS shall install Equipment at the Location within 7 days of the Delivery Date. Time of installation shall not be of the essence.
5.4 The Price does not include the cost of additional materials which are required to install the Equipment where the use of such materials was not reasonably anticipated by SDS from an initial visual inspection of the Location (Additional Materials). Any Additional Materials shall be paid by the Customer in addition to the Price.
5.5 If in SDS’s reasonable opinion it is necessary to remove or otherwise disconnect any of the Customer’s existing equipment or power supply at the Location in order to carry out the installation of Equipment, the Customer shall permit and obtain all necessary consents for such removal and/or disconnection and shall give SDS all necessary assistance to enable such work to be carried out.
6 Title and risk
6.1 Title to Equipment shall pass to the Customer on payment in full of the Price and any other sums which may then be due under this agreement.
6.2 Risk in Equipment shall pass to the Customer on delivery.
6.3 Until title to Equipment has passed to the Customer, the Customer shall:
6.3.1 store Equipment securely and separately from all other goods held by the Customer so that it remains readily identifiable as SDS’ property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to Equipment;
6.3.3 maintain Equipment in satisfactory condition and keep it insured against all risks for its full price from the date of delivery;
6.3.4 notify SDS immediately if it becomes subject to any of the events listed in clauses 9.1.3 to 9.1.4; and
6.3.5 give SDS such information relating to Equipment as SDS may require from time to time.
7 Customer’s Obligations
7.1 The Customer shall:
7.1.1 obtain and shall maintain all licences, consents, and permissions necessary for SDS to install Equipment at the Location,
7.1.2 prepare the Location for installation of Equipment prior to the Installation Date(s) in accordance with any directions issued by SDS personnel (including but not limited to the installation of any electrical supply required to connect Equipment);
7.1.3 at its cost provide a parking space at the premises of the relevant Location at all times during the Installation Date(s) for use by SDS personnel;
7.1.4 at all reasonable times provide SDS personnel with full and free access to the Location on the Installation Date(s) and provide adequate and safe working space, and any electrical and telecommunications facilities reasonably required to enable SDS to install Equipment at the Location;
7.1.5 hire such equipment as is necessary to safely access the Location, including but not limited to mobile work platforms for work at height, or pay any reasonable hire charges incurred by SDS;
7.1.6 ensure that no persons enter the immediate area of the relevant Location whilst the installation of Equipment is being performed;
7.1.7 ensure that all persons located within the Location adhere to any reasonable instructions of SDS;
7.1.8 provide SDS with any information that is reasonably requested for the performance of the installation of Equipment; and
7.1.9 take any steps reasonably necessary to ensure the safety of SDS personnel when attending the Location and any other persons on the Customer’s premises.
8 Customer’s default
Where SDS personnel are either
(a) unable to safely access a Location at the arranged time to install Equipment; or
(b) unable to safely complete the installation of Equipment;
due to a Customer breach of any obligation under clause 7, SDS is entitled to charge the Customer in accordance with SDS’ prevailing hourly rates for all time spent by SDS personnel at the Location subject to a minimum one hour charge.
9 Termination
9.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, SDS may terminate this agreement with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits any serious breach of any term of this agreement and (in the case of a breach capable of being remedied) fails to remedy the breach, within 30 days after the receipt of a request in writing from SDS to do so; or
9.1.2 the Customer fails to pay any sum due under the terms of this agreement and such sum remains unpaid for 14 days after notice from SDS that such sum has not been paid.
9.1.3 the Customer 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;
9.1.4 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the Customer’s financial position deteriorates to such an extent that in SDS’ opinion the Customer’s ability to adequately fulfil its obligations under this agreement has been placed in jeopardy.
9.1.6 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
9.1.7 Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination.
9.1.8 On termination of this agreement for any reason, any outstanding amounts owed to SDS by the Customer pursuant to this agreement shall become immediately due and payable.
10 Installation Warranty
10.1 SDS warrants that, for a period of 12 months from the Completion Date (the Warranty Period), the installation of Equipment shall:
10.1.1 be free from material defects;
10.1.2 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
10.1.3 be fit for purpose and any purpose held out by SDS.
10.2 SDS shall, at its option, remedy, re-perform or refund the installation of Equipment if it does not comply with clause 10.1, provided that:
10.2.1 the defect or non-compliance is not due to an Excluded Cause;
10.2.2 the Customer serves a written notice on SDS not later than 5 Business Days from the Completion Date in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and
10.2.3 such notice specifies that installation of the Equipment did not comply with clause 10.1 and identifies in sufficient detail the nature and extent of the non-compliance; and
10.2.4 the Customer gives SDS a reasonable opportunity to examine the installation of Equipment to consider the claim of non-compliance with clause 10.1.
10.3 Except as set out in this clause 10:
10.3.1 SDS gives no warranties and makes no representations in relation to the installation of Equipment; and
10.3.2 shall have no liability for their failure to comply with the warranty in clause 10.1; and
10.3.3 all warranties and conditions relating to the installation of Equipment (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
11 Liability
11.1 Neither party excludes or limits liability to the other party for:
11.1.1 fraud or fraudulent misrepresentation;
11.1.2 death or personal injury caused by negligence; or
11.1.3 a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
11.2 Subject always to clause 11.1, SDS shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
11.2.1 any loss (whether direct or indirect) of profits, business, revenue, or goodwill;
11.2.2 loss or corruption (whether direct or indirect) of data or information; or
11.2.3 any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.
11.3 Subject always to clause 11.1, SDS’ total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Price paid by the Customer under this agreement.
12 Confidentiality
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 A party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
13 Force Majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
14 Assignment
14.1 SDS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
14.2 The Customer may not 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 this agreement without the prior written consent of SDS.
15 Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
16 Notice
16.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
16.1.1 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
16.1.2 sent by fax to its main fax number; or
16.1.3 sent to the business email address of a partner or director (who is listed for the time being at Companies House) of the other party or such other email address as is notified by one party to the other as acceptable for the receipt of notices from time to time.
16.2 Any notice given under clause 16.1 shall be deemed to have been received:
16.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
16.2.2 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; and
16.2.3 if sent by fax or email, at 9.00 am on the next Business Day after transmission.
16.3 Clauses 16.1 and 16.2 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17 Entire Agreement
17.1 This agreement 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.
17.2 Each party acknowledges that in entering into this agreement 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 this agreement.
17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18 Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19 Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
20 No Partnership or Agency
20.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between either party, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21 Third Party Rights
No person other than a party to this agreement shall have any rights to enforce any term of this agreement.
22 Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23 Governing Law
This agreement 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.
24 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 agreement or its subject matter or formation (including non-contractual disputes or claims)