1.1 In these Terms:
“Additional Works” means works carried out by the Supplier pursuant to an Additional Works Contract;
“Additional Works a written contract between the Customer and the Supplier Contract” which is for goods and/or services in addition to the Service or varies the Goods or Service in any way whatsoever;
“Business Customer” means a Customer who is not a Consumer;
“Consumer” means a Customer who is a consumer under the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Negotiations 1999;
“Contract” means the contract for the supply of the Goods and/or the provision of the Service;
“Customer” means the person (or persons) named on the Quotation for whom the Supplier has agreed to provide the Service in accordance with these Terms;
“Document” includes, in addition to a document in writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form including, without limitation, plans showing the routes of all services (including gas, water, electricity and drains) to and from the Customer’s property;
“Goods” means any Goods or materials, and any data or other information provided by the Supplier and set out in the Quotation;
“Supplier’s Standard Charges” means the charges shown in the Quotation and the Additional Works Contract (if any) including any non refundable deposits required to be paid;
“Service” means the service to be provided by the Supplier for the Customer and detailed in the Quotation and subject to the Supplier’s Health and Safety Policy contained in Schedule 1 hereto;
“Supplier” means Owls Hall Environmental Limited of Blackmore End, Braintree, Essex, CM7 4DF;
“Quotation” means the quotation to which these Terms are appended.
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
1.3 If the Customer is more than one person, each of those persons shall have authority to bind the other(s) in respect of any dealings or modifications agreed with the Supplier.
- Orders and Specifications
2.1 An order of the Customer shall not be deemed to be accepted by the Supplier until confirmed in writing by the Supplier’s authorised representative. Furthermore Prices will only be confirmed, when the site has been inspected by the Supplier’s Surveyor (not Sales Person). Up to that point, the contract will not be binding on either party.
2.2 The Customer shall at its own expense supply the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to the Goods and Service, within sufficient time to enable the Supplier to provide the Goods and Service in accordance with the Contract. The Customer shall ensure the accuracy of all Documents and indemnify the Supplier against any claim for loss or damage which may be incurred by the Supplier as a result of any inaccuracies in the Documents.
2.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Supplier’s Quotation. If a third party e.g a manufacture of the goods, changes any of their specification or sizing criteria once an order has been confirmed by the Supplier to the Customer and are unable to supply the original goods, then the Supplier will be entitled to quote the Customer for any variation, before the order has been placed with the manufacture. The Customer has the option to cancel the contract if they are not satisfied with the price variation.
2.4 An order accepted by the Supplier may not be cancelled by the Customer except with the Supplier’s written agreement and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit) costs and expenses suffered by the Supplier as a result of cancellation.
2.5 All labour materials, plant and equipment required in or about the execution of the Contract shall be supplied by the Supplier unless otherwise agreed in writing between the Supplier and the Customer. The Customer shall be wholly responsible for any work undertaken or material, plant; equipment supplied other than by the Supplier and the Supplier expressly excludes any liability for damage caused to such materials during execution of the Contract.
2.6 For Business Customer, time for carrying out the Contract shall not be of the essence unless previously agreed in writing by both parties.
- Supply of the Specified Goods and Service
3.1 The Supplier shall supply the Goods and the Service to the Customer subject to these Terms. Any variations to the Goods, Service or these Terms must be agreed in writing by the Supplier and the Customer and in an Additional Works Contract. Additional Works shall be provided subject to these Terms (as varied by the Additional Works Contract).
3.3 The Quotation is given on the basis of the work proceeding without the need for de-watering and/or “shoring” systems (required as a result of poor ground conditions) or any other specialist equipment of whatsoever nature required, for example, as a result of unusual or unexpected underground obstacles (e.g. rock). Any work or equipment of this nature is not included within the Quotation and you must enter into an Additional Works Contract to have such work undertaken or equipment supplied by the Supplier.
3.4 The Customer shall at its own expense retain duplicate copies of all Documents and insure against loss or damage. The Supplier shall have no liabilities for any such loss or damage, however caused.
3.5 In communication with the Customer, the Supplier may correct any typographical or other errors or omissions in any brochure, promotional literature, Quotation or other document relating to the provision of the Goods and Service without any liability to the Customer. The Supplier’s employees or agents are not authorised to make any representations concerning the Goods.
3.6 The Supplier may at any time without notifying the Customer make any changes to the Goods and Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Goods and Service.
3.7 In the event that the Supplier cannot complete the Contract for reasons which are beyond the Supplier’s control, the Customer shall pay for the part of the work completed (including Goods delivered) by the Supplier at a rate which is reasonable having regard to the cost and circumstances of the particular order.
3.8 The Service is subject to suitable access at all times including tanker access for any de-sludge/pump out works. The Supplier accepts no responsibility for damage to the part of the Customer’s property (including driveways) or manhole/grids.
3.9 Any advice or recommendation given by the Supplier or its employees or agents to the Customer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by the Supplier or which contradicts the written advice is followed or acted upon entirely at the Customer’s own risk and accordingly the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
3.10 The Supplier shall not be liable for any ground movement that occurs after the Goods have been installed. Any such ground movement shall be the responsibility of the Customer.
4.1 The Customer shall pay the Supplier’s Standard Charges at the date agreed in writing between the Supplier and the Customer or, in the event that no such date is agreed, within seven days of the date of the Supplier’s invoice.
4.2 For Business Customers, unless otherwise stated, all charges quoted to the Customer for the provision of the Goods and/or Service are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time.
4.3 The Supplier’s Standard Charges is based on the following assumptions and the Supplier shall be entitled to amend such price both before and after acceptance of a Quotation if any assumption is or becomes unworkable:
4.3.1 All work is undertaken during normal working hours; and
4.3.2 The Supplier shall have possession of the site within two months of acceptance of this Quotation or such other date as may be expressly agreed; and
4.3.3 The Supplier shall have free and unrestricted access to the site at all reasonable times during the course of the works; and
4.3.4 The Supplier shall be entitled to clear a site or otherwise remove any materials necessary to execute the works.
4.3.5 Any Quotation is based upon wages, rates and material prices prevailing at the date thereof. In the event of such cost items relevant to the Contract increasing following the date of the Quotation, the Supplier shall be entitled to increase the Supplier’s Standard Charges quoted by the amount of such extra costs.
4.4 The Supplier may invoice the Customer at the times stated in the Quotation or the Additional Works Contract (as the case may be).
4.5 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy the Supplier shall be entitled to:
4.5.1 cancel the Contract by written notice to the Customer or suspend any further deliveries to the Customer;
4.5.2 charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of 8 per cent per annum above Lloyds Bank PLC base rate from time to time until payment in full is made;
4.5.3 appropriate any payment made by the Customer to such of the Goods (or goods supplied under any other contract between the Customer and the Supplier) as the Supplier may think fit (notwithstanding any purported appropriation by the Customer).
4.6 In addition to the principal claim for the outstanding amount and the interest, the Supplier shall furthermore be entitled to require the Customer to pay all costs incurred out of court because payment was not made or was not made on the due date. Costs incurred out of court shall be payable by the Customer whenever the Supplier secures the assistance of a third party for the collection. If the Supplier files a petition for the Customer’s bankruptcy, the Customer shall also be held to pay the costs incurred for the petition to declare him bankrupt, as well the principal sum, the interest and the out of court costs. If the Supplier is adjudged to be wholly or partially in the right in legal proceedings, all costs incurred and associated with the proceedings shall be borne by the Customer.
4.7 The Supplier accepts all major credit cards. However, the Supplier is charged a handling fee by the card issuer and as a result it regrets that an additional fee equivalent to the one it is charged will be made to the Customer for all accounts settled using this facility. This fee will be advised when settling the accounts.
Where settlement of accounts are made to the Supplier’s representatives on site, for reasons of security the Supplier’s representatives are not authorised to accept cash payments. The Supplier accepts cheques, bankers’ drafts and all major credit cards. Should the Customer wish to pay by cash it should contact the Supplier’s office prior to payment being made so that necessary arrangements can be made for the Customer to pay by this means in person at the Supplier’s office.
4.8 Unless otherwise stated in a Quotation the Supplier’s Standard Charges is for delivery of the goods at the Supplier’s nominated warehouse or storage depot. If the Supplier agrees to deliver the Goods otherwise than at the Supplier’s nominated premises the Customer shall be liable to pay the Supplier’s transport charges.
4.9 Unless otherwise stated there is no mains contractor discount given. The Customer shall make all payments due under the Contract without retention, deduction or set-off.
5.1 Delivery shall be made by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection.
5.2 At the Customer’s request, the Supplier may agree to deliver the Goods to a place other than in clause 5.1. If the Supplier agrees to deliver the goods to such an alternative place then the cost of transporting and insuring the goods shall be borne by the Customer. The Supplier reserves the right to require the Customer to pay the cost of transporting and insuring the goods before the goods are transported. The Supplier shall not be liable for any damage to the Goods other than by the default of the Supplier, in the event of which the limitations of liability in section 7 of this Contract shall apply.
5.3 Dates quoted for delivery of the Goods are approximate only. The Supplier shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Supplier in writing. Upon giving reasonable notice to the Customer, the Goods may be delivered by the Supplier in advance of the quoted delivery date. Upon giving reasonable notice to the Customer, the Goods may be delivered by the Supplier in instalments.
5.4 Where the goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
5.5 If the Supplier fails to deliver the Goods for any reason other than any cause beyond the Supplier’s reasonable control or the Customer’s fault and the Supplier is accordingly liable to the Customer the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer of similar goods to replace those not delivered over the price of the Goods.
5.6 If the Customer fails to take delivery of the Goods or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then without prejudice to any other right or remedy the Supplier may:
5.6.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage;
5.6.2 cancel the Contract or suspend any further deliveries to be made under the contract without liability to the Customer;
5.6.3 sell the Goods at the best price readily obtainable (after deducting all reasonable storage and selling expenses) and account to the Customer for the excess over the price under the Contractor or charge the Customer for any shortfall below the price under the Contract.
- Goods – Risk and Property
6.1 Risk of damage to or loss of the Goods passes to the Customer upon delivery.
6.2 Notwithstanding the passing of risk in the Goods or any other provision of these Terms property in the Goods shall not pass to the Customer until the Supplier has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Supplier to the Customer for which payment is due or will become due at a later date and payment of all sums due to the Supplier for Service provided to the Customer.
6.3 Until property in the Goods passes to the Customer the Customer shall hold the Goods as the Supplier’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored protected and insured and identified as the Supplier’s property.
6.4 Until property in the Goods passes the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Supplier for the proceeds of sale of the Goods (including insurance proceeds) and shall keep all such proceeds separate from any monies or property of the Customer and third parties.
6.5 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Supplier shall be entitled at any time to require the Customer to deliver up the Goods to the Supplier and if the Customer fails to do so forthwith on demand at any time of the day or night the Supplier shall be allowed to enter upon any premises of the Customer or any third party where the Goods are sold and repossess the Goods.
6.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier. If the Customer attempts to do so all monies owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier) immediately become due and payable. The Supplier shall take all legal steps to repossess the goods.
- Warranties and Liability
7.1 Subject to the Terms set out below the Supplier warrants that the Goods will (at the time of delivery) correspond with any relevant specification and will be free from defects and of good quality.
7.2 The above warranty is given by the Supplier subject to the following Terms:
7.2.1 The Supplier shall be under no liability in respect of any defect arising from wilful damage, negligence abnormal storage conditions or handling operation failure to follow the Supplier’s instructions (whether oral or in writing) misuse or mixing the Goods with any other Goods or subjecting the Goods to any process without the Supplier’s approval.
7.2.2 The Supplier shall be under no liability under the warranty in clause 7.2.1 (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
7.3 For Business Customers, subject as expressly provided in these Terms warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.4 Any claim by the Customer based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Supplier on the delivery note or otherwise within 7 working days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) as soon as reasonably practicable following discovery of the defect of failure such notification to be confirmed (in either case) to the Supplier in writing within five working days thereafter. If delivery is not refused and the Customer does not notify the Supplier accordingly the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
7.5 When any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Supplier in accordance with these Terms the Supplier shall be entitled to replace the Goods free of charge or at the Supplier’s sole discretion refund to the Customer for the price of the Goods (or a proportionate part of the price) but the Supplier shall have no further liability to the Customer.
7.6 Nothing in these Terms shall limit or exclude the Supplier’s liability for:
7.6.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
7.6.2 fraud or fraudulent misrepresentation.
7.7 Subject to clause 7.6, the Supplier shall not be liable to Business Customers, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the supply of Services or the Goods (or their use or resale by the Business Customer) except as expressly provided in these Terms.
7.8 Subject to clause 7.6, the Supplier shall not be liable to Consumers, for any loss of income or indirect or consequential loss arising under or in connection with the supply of Services or the Goods (or their use or resale by the Consumer) except as in the case of:
7.8.1 the Supplier’s negligence; or
7.8.2 the Supplier’s breach of any warranty condition or other term implied by statute or common law; or
7.8.3 otherwise expressly provided in these Terms.
7.9 The Supplier shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Supplier’s obligations in relation to the Goods or Services if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as such causes:
7.9.1 Act of God, explosion, flood tempest, fire or accident;
7.9.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
7.9.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
7.9.4 Import or export regulations or embargoes;
7.9.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party).
7.10 The Supplier warrants to the Customer that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Quotation and/or the Additional Works Contract. Where the Supplier supplies in connection with the provision of the Service any goods (including the Goods) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
7.11 The Supplier shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Documents or instructions supplied by the Customer which are incomplete, incorrect, inaccurate or illegible, or any other fault of the Customer.
8.1 The cancellation or postponement of the Contract by the Customer shall not be effective unless communicated to and accepted by the Supplier in writing.
8.2 Unless otherwise than required by statute, if the Contract is cancelled or postponed in accordance with clause 8.1 the Supplier reserves the right to charge a cancellation or variation charge which is reasonable having regard to the circumstances and cost of the particular order.
- Insolvency of Customer
9.1 This clause applies if:
9.1.1 The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
9.1.2 An encumbrance takes possession of any of the property or assets of the Customer, or, a receiver is appointed; or
9.1.3 The Customer ceases or threatens to cease to carry on business; or
9.1.4 The Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
If this clause applies then without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 These Terms (together with the Quotation and Additional Works Contract (if any)) constitute the entire agreement between the parties, supersede any previous agreement or undertaking and may not be varied except in Writing between the parties. For Business Customer, all other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
10.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving this notice.
10.3 No failure or delay by the Supplier in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by the Supplier of any breach of the Contract shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
10.5 English law shall apply to the Contract, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.
10.6 The Customer shall be responsible for all and any loss or damage to equipment hired to him by or on behalf of the Supplier.