The customer’s a.en0on is drawn in par0cular to the provisions of clause 9.
1. INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in
London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with
clause 5.
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
13.9.
Contract: the contract between the Supplier and the Customer for the supply of Services in
accordance with the Order and these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and
neighbouring and related rights, moral rights, trade marks and service marks, business names and
domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair
competition, rights in designs, rights in computer software, database rights, rights to use, and
protect the confidentiality of, confidential information (including know-how and trade secrets), and
all other intellectual property rights, in each case whether registered or unregistered and including
all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim
priority from, such rights and all similar or equivalent rights or forms of protection which subsist or
will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services, as set out in the Order Form.
Order Form: the Supplier’s order form as provided by the Supplier to the Customer.
Restricted Person: has the meaning set out in clause 5.3.
Samples: any products submitted for examination by the Customer to the Supplier.
Services: the services, including the Deliverables supplied by the Supplier to the Customer as set
out in the Specification.
Specification: the description or specification of the Services attached to the Order Form.
Supplier: Armstrong Environmental Limited (registered in England and Wales with company number
06317253).
Supplier Materials: has the meaning set out in clause 4.1(g).
1.2 Interpretation:
(a) a reference to a statute or statutory provision is a reference to it as amended or re-enacted.
A reference to a statute or statutory provision includes all subordinate legislation made
under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar
expression, shall be construed as illustrative and shall not limit the sense of the words,
description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email but not fax.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these
Conditions.
2.2 The Order shall only be deemed to be accepted on the earlier of:
(a) the Supplier issues written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (the Commencement
Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any
descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or
published for the sole purpose of giving an approximate idea of the Services described in them. They
shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks
to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of
twenty (20) Business Days from its date of issue.
3. SERVICES
3.1 The Supplier shall provide the Services on and subject to the terms of the Contract.
3.2 Upon request of the Customer, the Supplier may provide programmes for the work as part of the
Specification.
3.3 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the
Order Form or Specification, but any such dates shall be estimates only and time shall not be of the
essence for performance of the Services.
3.4 The Supplier shall notify the Customer if it becomes apparent to the Supplier that there will be a delay
in the completion of the Services (other than at the request of the Customer).
3.5 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable
law or regulatory requirement, or if the amendment will not materially affect the nature or quality of
the Services, and the Supplier shall notify the Customer in any such event.
3.6 The Supplier warrants to the Customer that the Services will be provided using reasonable care and
skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are
complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to
the Customer’s premises, office accommodation and other facilities as reasonably required
by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably
require in order to supply the Services, and ensure that such information is complete and
accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be
required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws;
(g) keep all materials, equipment, documents and other property of the Supplier (the Supplier
Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier
Materials in good condition until returned to the Supplier, and not dispose of or use the
Supplier Materials other than in accordance with the Supplier’s written instructions or
authorisation;
(h) ensure that the Deliverables and Services are not used by any third party (unless the Supplier
has provided its prior written consent);
(i) comply with any additional obligations as set out in the Specification; and
(j) shall not make, or permit any person to make any public announcement, communication or
circular concerning the existence, subject matter or terms of the Contract without the prior
written consent of the Supplier.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by
any act or omission by the Customer or failure by the Customer to perform any relevant obligation
(the Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have
the right to suspend performance of the Services until the Customer remedies the Customer
Default, and to rely on the Customer Default to relieve it from the performance of any of its
obligations in each case to the extent the Customer Default prevents or delays the Supplier’s
performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer
arising directly or indirectly from the Supplier’s failure or delay to perform any of its
obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses
sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. NON-SOLICITATION OF STAFF
5.1 In order to protect the legitimate business interests of the Supplier, the Customer covenants with
the Supplier that it shall not attempt to solicit or entice away from the employment or service of the
Supplier the services of any Restricted Person other than by means of a national advertising
campaign open to all-comers and not specifically targeted at such staff of the Supplier.
5.2 The Customer shall be bound by the covenant set out in clause 5.1 during the term of the Contract,
and for a period of twelve (12) months after termination of the Contract.
5.3 For the purposes of this clause 5, a Restricted Person shall mean any firm, company or person
employed or engaged by the Supplier during the term of the Contract who has been engaged in the
provision of the Services or the management of the Contract either as principal, agent, employee,
independent contractor or in any other form of employment or engagement.
5.4 If the Customer commits any breach of this clause 5, the Customer shall on demand, pay to the
Supplier a sum equal to one year’s basic salary of the annual fee that was payable by the Supplier to
the Restricted Person plus the recruitment costs incurred by the Supplier in replacing such person.
The Supplier and Customer confirm that these liquidated damages are reasonable and
proportionate to protect the legitimate interest of the Supplier.
6. PUBLICITY
6.1 The Customer shall not use the business name of the Supplier for purposes of publicity promotion
or advertising without the prior written consent of the Supplier.
6.2 The Supplier may publish any description or illustration of the Services with prior written consent of
the Customer.
7. CHARGES AND PAYMENT
7.1 The price of the Services shall be set out in the Order Form.
7.2 The Supplier shall if it discovers an error in the price of the Services, contact the Customer to inform
it of the error. The Customer shall then have the option of continuing to purchase the Services at the
correct price or cancel the Order. If the Supplier is unable to contact the Customer, the Order shall
be treated as cancelled and the Customer shall be notified of this in writing. If the Supplier mistakenly
accepts an Order where a pricing error is obvious and unmistakeable and could reasonably have
been recognised by the Customer as a mispricing, the Supplier may cancel the supply of the Services
and refund any Charges paid for the Services.
7.3 The Charges are calculated on the Supplier’s normal working hours which are 8:30am -5:30pm
Monday to Friday unless otherwise agreed in writing by the Supplier.
7.4 Charges are provided on the basis of continuity of work. The Supplier shall make additional charges
should continuity of work then not be available.
7.5 The Supplier shall invoice the Customer on or at any time after commencement of the Services.
7.6 The Customer shall pay each invoice submitted by the Supplier:
(a) within thirty (30) days of the date of the invoice;
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier; and
(c) in pounds sterling unless otherwise agreed in writing by the Supplier.
Time for payment shall be of the essence of the Contract.
7.7 Receipts of payment will be issued on request of the Customer.
7.8 The Supplier may consult or register information about the Customer with a licensed credit reference
agency. The Supplier may consult a licensed credit agency about any credit information it holds on
the Customer.
7.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of
value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is
made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid
VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.10 The Charges shall make no allowance for main contractor’s discount or retention unless otherwise
agreed in writing by the Supplier.
7.11 If requested by the Supplier, the Customer shall provide and be liable to bear the cost of scaffolding
and/or safe working platforms. In the event the Supplier has to provide scaffolding and/or safe
working platforms in order to carry out the Services, the Customer shall pay all costs and expenses
(including any VAT on such costs and expenses) incurred by the Supplier plus 25%.
7.12 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then,
without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the
overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
Interest under this clause 7.12 will accrue each day at 4% a year above the Bank of England’s base
rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.13 The Supplier may charge the Customer all legal and other costs, charges and expenses (including
VAT on such items) which the Supplier has incurred in enforcing or reasonably attempting to enforce
payment under the Contract.
7.14 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction
or withholding (other than any deduction or withholding of tax as required by law).
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services and the
Deliverables shall unless otherwise agreed in writing by the Supplier be owned by the Supplier.
8.2 In consideration of the Customer’s payment of the Charges, the Supplier grants to the Customer an
exclusive, royalty-free, non-transferable licence to copy but not modify the Deliverables for use by
the Customer in its business.
8.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable
licence to copy and modify any materials provided by the Customer to the Supplier for the term of
the Contract for the purpose of providing the Services to the Customer.
8.4 The Supplier confirms that is has all the rights in relation to the Deliverables that are necessary to
grant all the rights it purports to grant under, and in accordance with the terms of the Contract.
9. LIMITATION OF LIABILITY
9.1 This clause 9 sets out the Supplier’s entire financial liability (including any liability for the acts of
omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising
under or in connection with the Contract.
9.2 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for:
(i) results obtained from the use of the Services or the Deliverables by the Customer;
(ii) conclusions drawn from such use; and
(iii) any action or inaction on the part of the Customer or any other person arising out of
or in connection with such use or conclusions drawn from such use of the Services
or the Deliverables;
and the Supplier shall have no liability whatsoever arising out of or in connection with results
obtained from, or conclusions drawn from such use of, the Services or the Deliverables
however arsing; and
(b) the Supplier shall have no liability in respect of:
(i) any actions taken by the Supplier at the Customer’s direction;
(ii) any loss or damage however caused to any Samples;
(iii) any loss, damage, costs, expenses or other claims for compensation arising from any
instructions supplied by the Customer which are incomplete, incorrect or
inaccurate; and
(iv) any claim or liability incurred by the Customer in connection with pollution or
contamination of any kind;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever
implied by statute or common law are, to the fullest extent permitted by applicable law,
excluded from the Contract.
9.3 Nothing in the Contract shall limit or exclude the Supplier’s or the Customer’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title
and quiet possession); and
(d) any other liability which cannot be limited or excluded by applicable law.
9.4 The Supplier shall have no liability to the Customer in respect of the following excluded types of loss:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
9.5 Subject to clause 9.3, the Supplier’s total liability (including liability in contract tort (including
negligence), breach of statutory duty, misrepresentation, restitution or otherwise) arising under or in
connection with the Contract shall be limited to the total value of the Contract.
9.6 Nothing in this clause 9 shall restrict of limit the Customer’s general obligation at law to mitigate a
loss it may suffer or incur as a result of an event that may give rise to a claim.
9.7 This clause 9 shall survive termination of the Contract.
10. INDEMNITY
The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and
losses (including reasonable professional costs and expenses) suffered or incurred by the Supplier
arising out of or in connection with any claim made against the Supplier:
(a) by third parties arising out of or in connection with use of the Deliverables or Services; and
(b) due to the infringement of any regulation, enactment or legislation by the Customer.
11. TERMINATION
11.1 Without limiting its other rights and remedies, the Supplier may terminate the Contract with
immediate effect by giving written notice to the Customer if:
(a) the Customer becomes subject to any of the events listed in clause 11.3; or
(b) the Customer fails to pay any amount due under the Contract on the due date for payment.
11.2 Without limiting its other rights and remedies, the Supplier may suspend provision of the Services if:
(a) the Customer becomes subject to any of the events listed at clause 11.3; or
(b) the Supplier reasonably believes that the Customer is about to become subject to any of
them; or
(c) the Customer fails to pay any amount due under the Contract on the due date for payment.
11.3 For the purposes of clauses 11.1 and 11.2, the relevant events are:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is
remediable) fails to remedy that breach within five (5) days of being notified to do so;
(b) the Customer takes any step or action in connection with it 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;
(c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry
on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s
opinion, the Customer’s capability to adequately fulfil its obligations under the Contract has
been placed in jeopardy.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid
invoices and interest and, in respect of Services supplied but for which no invoice has been
submitted, the Supplier shall submit an invoice, which shall be payable by the Customer
immediately on receipt; and
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not
been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s
premises and take possession of them. Until they have been returned, the Customer shall be
solely responsible for their safe keeping and will not use them for any purpose not connected
with the Contract.
12.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the
parties that have accrued up to the date of termination, including the right to claim damages in
respect of any breach of the Contract which existed at or before the date of termination.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in
force on or after termination of the Contract shall remain in full force and effect.
13. GENERAL
Force majeure
13.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to
perform, any of its obligations under the Contract if such delay or failure result from events,
circumstances or causes beyond its reasonable control.
Assignment and other dealings
13.2 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over
or deal in any other manner with any or all of its rights and obligations under the Contract.
13.3 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust
over or deal in any other manner with any of its rights and obligations under the Contract without the
prior written consent of the Supplier.
Confidentiality
13.4 Each party undertakes that it shall hold the other’s Confidential Information in confidence and,
except as permitted by clause 13.5, not make the other’s Confidential Information available to any
third party.
13.5 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know
such information for the purposes of carrying out the party’s obligations under the Contract.
Each party shall ensure that its employees, officers, representatives, subcontractors or
advisers to whom it discloses the other party’s confidential information comply with this
clause 13.5; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or
regulatory authority provided that, to the extent it is legally permitted to do so, provided that
it gives the other party as much notice of such disclosure as possible and, where notice of
disclosure is not prohibited and is given in accordance with this clause 13.5(b), it takes into
account the reasonable requests of the other party in relation to the content of such
disclosure.
13.6 Neither party shall use the other party’s confidential information for any purpose other than to
perform its obligations under the Contract.
Entire agreement
13.7 The Contract 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.
13.8 Each party acknowledges that in entering into the 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 the Contract. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation or negligent misstatement based on any statement
in the Contract.
Variation
13.9 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in
writing and signed by the parties (or their authorised representatives).
Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and
shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to
exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of
that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any
other right or remedy. No single or partial exercise of any right or remedy provided under the Contract
or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance
13.10 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it
shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
Any modification to or deletion of a provision or part-provision under this clause 13.10 shall not affect
the validity and enforceability of the rest of the Contract.
Notices
13.11 Any notice given to a party under or other communication given to a party under or in connection with
the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or
its principal place of business (on any other case) or such other address as that party may have
specified to the other party in writing in accordance with this clause, and shall be delivered
personally, sent by pre-paid first class post or other next working day delivery service, commercial
courier or email.
13.12 A notice or other communication shall be deemed to have been received: if delivered personally,
when left at the address referred to in clause 13.2; of sent by pre-paid first class post or other next
working day delivery service, at 9:00 am on the second Business Day after posting; if delivered by
commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent
by email, one (1) Business Day after transmission.
13.13 Third party rights Unless it expressly states otherwise, the Contract does not give rise to any rights
under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.14 Governing law The Contract, and any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with it or its subject matter or formation shall be governed by,
and construed in accordance with the law of England and Wales.
13.15 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive
jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out
of or in connection with the Contract or its subject matter or formation.
