Terms and Conditions
The customer’s attention is particularly drawn to condition 10.
1.1 The definitions and rules of interpretation in these Conditions apply in these terms and conditions (Conditions).
Contract: the Customer’s purchase order and Addfield Environmental Systems Limited acceptance of it, or the Customer’s acceptance of a quotation for Services by Addfield under condition 2.2.
Customer: the person, firm or company who purchases Services from Addfield.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Goods: all goods supplied by Addfield to the Customer in relation to the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Addfield: Addfield Environmental Systems Limited whose Head Office is situated at Unit 9, Zone 4, Burntwood Business Park, Staffordshire, WS7 3XD registered in England with company registration number 6516522 .
Addfield Equipment: any equipment, including tools, systems, cabling or facilities, provided by Addfield or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Services: the services to be provided by Addfield under the Contract as set out in the quotation, together with any other services which Addfield provides, or agrees to provide, to the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of the Contract.
1.5 A reference to writing or written includes faxes but not e-mail.
1.6 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to conditions and schedules are to the conditions and schedules of the Contract.
2. Application of conditions
2.1 These Conditions shall:
2.1.1 Apply to and be incorporated into the Contract; and
2.1.2 Prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by Addfield, constitutes an offer by the Customer to purchase the Services specified in Addfield quotation on these Conditions. No offer placed by the Customer shall be accepted by Addfield other than:
2.2.1 By a written acknowledgement issued and executed by Addfield; or
2.2.2 (If earlier) by Addfield starting to provide the Services,
When a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by Addfield on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that Addfield has not previously withdrawn it.
3. Time for performance
3.1 Any dates specified by Addfield for the Service to be carried out are intended to be an estimate only and time shall not be made of the essence by notice.
3.2 If no dates are so specified, the time for carrying out the Service shall be within a reasonable time from the date of acceptance by Addfield of the Customer’s offer in accordance with condition 2.2.
4. ADDFIELD’S OBLIGATIONS
4.1 Addfield shall:
4.1.1 Use reasonable endeavours to provide the Services, and to deliver the Goods to the Customer, in accordance in all material respects with the quotation.
4.1.2 Use reasonable endeavours to meet any performance dates specified in the quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.1.3 use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under condition 5.1.6, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4.1.4 Ensure that the Goods and Services reasonably comply with specifications and performance criteria set out in the quotation.
4.2 The Goods and Services supplied to the Customer by Addfield under this agreement shall:
4.2.1 Reasonably conform to the specification set out in the quotation;
4.2.2 In the case of Goods, be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and reasonably fit for any purpose held out by Addfield;
4.2.3 In the case of Services, be carried out with reasonable care and skill;
4.2.4 Be free from defects in design, material and workmanship and remain so for 12 months after completion of the Service; and
4.2.5 Comply with all applicable statutory and regulatory requirements.
5. Customer’s obligations
5.1 The Customer shall:
5.1.1 Co-operate with Addfield in all matters relating to the Services;
5.1.2 Ensure that the specification set out in the quotation is suitable for its intended use;
5.1.3 provide Addfield, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as required by Addfield;
5.1.4 Provide to Addfield, in a timely manner, such relevant information as Addfield may reasonably require and ensure that it is accurate in all material respects;
5.1.5 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing Addfield of all of the Customer’s obligations and actions under this condition 5.1.5;
5.1.6 Inform Addfield of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;
5.1.7 ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements; and
5.1.8 Obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the Goods, and the use of the Customer’s Equipment, in all cases before the date on which the Services are to start.
5.2 If Addfield’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Addfield shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to Addfield, on demand, all reasonable costs, charges or losses sustained or incurred by Addfield (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Addfield confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of Addfield, at any time from the date of the Contract to the expiry of 6 months after the last date of supply of the Services, solicit or entice away from Addfield or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Addfield in the provision of the Services.
5.5 Any consent given by Addfield in accordance with condition 5.4 shall be subject to the Customer paying to Addfield a sum equivalent to 10% of the then current annual remuneration of Addfield’s employee, consultant or subcontractor or, if higher, 10% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
5.6 The Customer shall indemnify Addfield in respect of any costs incurred by Addfield defending any proceedings brought against it under the Health and Safety at Work etc Act 1974 as a consequence of the Customer’s breach of any of Conditions 5.1.5 to 5.1.7 above.
6. ACCEPTANCE AND DEFECTIVE GOODS AND SERVICES
6.1 The Customer must notify Addfield of any Goods or Services that do not comply with Condition 4.2:
6.1.1 In the case of a defect that is apparent on normal visual inspection, within 3 Business Days of Delivery; and
6.1.2 In the case of a latent defect, within a reasonable time of the latent defect having become apparent.
6.2 If the Customer fails to give notice in accordance with Condition 6.1, it shall be deemed that the relevant Goods and/or Services comply with Condition 4.2.
6.3 Following receipt of a notice under Condition 6.1:
6.3.1 The Customer must permit Addfield to inspect the defect complained of; and
6.3.2 Addfield may, at its discretion:
(a) Carry out any remedial works to the Services; and/or
(b) Repair or replace the Goods.
And it shall then have no further liability to the Customer in respect of the failure to comply with Condition 4.2.
6.4 The terms of this agreement shall apply to any repaired or replacement Goods or Services.
7. Title and Risk
7.1 The risk in the Goods shall pass to the Customer on delivery at the Customer’s premises.
7.2 Title to the Goods is they supplied or supplied & installed shall not pass to the Customer until Addfield has received payment in full (in cash or cleared funds) for:
7.2.1 The Goods; and
7.2.2 Any other goods or services that Addfield has supplied to the Customer.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 Hold the Goods on a fiduciary basis as Addfield bailee;
7.3.2 Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Addfield’s property;
7.3.3 Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.5 Notify Addfield immediately if it becomes subject to any of the events listed in Condition 7.2; and
7.3.6 Give Addfield such information relating to the Goods as Addfield may require from time to time,
But the Customer may resell or use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 7.2, or Addfield reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Addfield may have, Addfield may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. Charges and payment
8.1 In consideration of the provision of the Services by Addfield, the Customer shall pay the charges as set out in the quotation. Condition 8.2 shall apply if Addfield provides Services on a time and materials basis. Condition 8.3 shall apply if Addfield provides Services for a fixed price. The remainder of this Condition 8 shall apply in either case.
8.2 Where Services are provided on a time and materials basis the charges will be based on our standard day work rates and conditions (which are available on request) unless agreed otherwise in advance and in writing.
8.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the quotation. The total price shall be paid to Addfield (without deduction or set-off) in instalments, as set out in the quotation. In respect of each instalment Addfield shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in Condition 8.4.
8.4 Any fixed price and day work rate provided by Addfield’s excludes VAT, which Addfield shall add to its invoices at the appropriate rate.
8.5 The parties agree that Addfield may review and increase its day work rates from time to time. Addfield will give the Customer written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 1 month of such notice being received or deemed to have been received in accordance with Condition 21, terminate the Contract by giving 1 month’s written notice to Addfield.
8.6 The Customer shall pay each invoice submitted to it by Addfield, in full and in cleared funds, no later than 30 days from the end of the month in which the invoice is received to a bank account nominated in writing by Addfield.
8.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Addfield on the due date, Addfield may:
8.7.1 charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of [FULL NAME OF BANK], accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgment; and
8.7.2 Suspend all Services until payment has been made in full.
8.8 Timely payment shall be of the essence of the Contract.
8.9 All sums payable to Addfield under the Contract shall become due immediately on its termination, despite any other provision. This Condition 8.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.10 Addfield may, without prejudice to any other rights it may have, set off any liability of the Customer to Addfield against any liability of Addfield to the Customer.
8.11 The Customer shall pay on demand and on the standard basis all legal costs and expenses which Addfield may from time to time incur in connection with enforcing the payment of any sum due under this Contract and/or successfully defending a claim brought by the Customer relating to this Contract.
9. Confidentiality and Addfield’s property
9.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Addfield, its employees, agents, consultants or subcontractors and any other confidential information concerning Addfield’s business or its products which the Customer may obtain.
9.2 The Customer may disclose such information:
9.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
9.2.2 As may be required by law, court order or any governmental or regulatory authority.
9.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this Condition 9.
9.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
9.5 All materials, equipment and tools, drawings, specifications and data supplied by Addfield to the Customer (including Addfield’s Equipment) shall, at all times, be and remain the exclusive property of Addfield, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good Condition by the Customer until returned to Addfield, and shall not be disposed of or used other than in accordance with Addfield’s written instructions or authorisation.
10. Limitation of liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
10.1 This Condition 10 sets out the entire financial liability of Addfield (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
10.1.1 Any breach of the Contract, any deliberate breach of this Contract by Addfield, or its employees, agents or subcontractors;
10.1.2 Any use made by the Customer of the Services, the Goods or any part of them; and
10.1.3 Any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in this Contract limits or excludes the liability of Addfield:
10.3.1 For death or personal injury resulting from negligence; or
10.3.2 For any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Addfield; or
10.3.3 for any liability incurred by the Customer as a result of any breach by Addfield of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
10.4 Subject to Condition 10.2 and Condition 10.3
10.4.1 Addfield shall not be liable for:
(a) Loss of profits; or
(b) Loss of business; or
(c) Depletion of goodwill and/or similar losses; or
(d) Loss of anticipated savings; or
(e) Loss of goods; or
(f) Loss of contract; or
(g) Loss of use; or
(h) Loss of production; or
(i) Loss of corruption of data or information; or
(j) Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
10.4.2 Addfield’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall not exceed the value of the contract].
10.5 Addfield shall not be liable for:
10.5.1 any advice or recommendation given to the Customer, including that regarding use, storage or application of the Goods, which is not set out in writing on behalf of Addfield.
10.5.2 The Goods or Services not meeting any specifications or performance criteria, unless they are set out in the quotation.
10.5.3 Ensuring the Goods or Services is suitable for any intended use, unless the use is set out in the quotation.
10.5.4 Accidental damage to the Customer’s premises caused by Addfield’s employees or agents.
11. Data protection
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Addfield in connection with the Services.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
12.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
12.1.2 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
12.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
12.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) 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; or
12.1.5 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; or
12.1.6 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
12.1.7 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; or
12.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
12.1.9 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; or
12.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
12.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 12.1.4 to Condition 12.1.10 (inclusive); or
12.1.12 The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
12.1.13 There is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
12.2 The parties acknowledge and agree that any breach of Conditions 7.3, 8.6, 8.11, or 9 shall constitute a material breach for the purposes of this Condition 12.
12.3 On termination of the Contract for any reason:
12.3.1 the Customer shall immediately pay to Addfield all of Addfield’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Addfield may submit an invoice, which shall be payable immediately on receipt;
12.3.2 The Customer shall return all of Addfield’s Equipment. If the Customer fails to do so, then Addfield may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
12.3.3 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
12.4 On termination of the Contract (however arising), the following Condition shall survive and continue in full force and effect:
12.4.1 Condition 9;
12.4.2 Condition 10;
12.4.3 Condition 12; and
12.4.4 Condition 22.
13. Force majeure
Addfield shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Addfield 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.
14.1 Addfield may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
14.2 If the Customer requests additional Services to those set out in the quotation or a variation to the Services set out in the quotation then if Addfield carries out such additional Services or varied Services and no price has been agreed in advance then the cost of such Services shall be calculated in accordance with clause 8.2.
14.3 Subject to Conditions 14.1 and 14.2, no variation of the Contract or of any of the documents referred to shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. Entire agreement
17.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly provided in the Contract.
17.3 Nothing in this Condition shall limit or exclude any liability for fraud.
18.1 The Customer shall not, without the prior written consent of Addfield, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2 Addfield may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of 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.
18.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
19. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
20. Rights of third parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
21.1 Any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 2, or as otherwise specified by the relevant party by notice in writing to the other party.
21.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in Schedule 2 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
21.3 This Condition 21 shall not apply to the service of any in any proceedings or other documents in any legal action.
21.4 A notice required to be given under the Contract shall not be validly served if sent by e-mail.
22. Governing law and jurisdiction
22.1 The 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.
22.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).