THE TECHNICAL DEPARTMENT LTD – TERMS AND CONDITIONS OF SALE AND HIRE
1. AGREEMENT FOR EQUIPMENT AND SERVICES
1.1 In these terms and conditions of sale and hire (“Terms”), “the Technical Department” shall mean The Technical Department Limited or its sub-contractors. These Terms shall apply to all quotations for work supplied by the Technical Department and are the conditions upon which the Technical Department are prepared to supply goods and render services. The person firm or corporation to whom a quotation is supplied or to whom goods and services are supplied is referred to as the “Client” in these Terms. The Client is deemed to accept these Terms when the Client accepts a quotation or makes a request for goods, materials, or equipment (“Equipment”) to be sold or hired or makes a request for services to be rendered or installations made or designed and/or erected (“Services”). The Client’s terms and conditions (if any) shall, to the extent that they are inconsistent with the terms herewith, be deemed to be waived by the Client.
1.2 All Equipment and Services shall be supplied only on the basis of these Terms. These Terms supersede all previous terms and shall apply both to the present transaction and all further and subsequent dealings between the Technical Department and the Client unless varied by subsequent terms and conditions supplied by the Technical Department.
WARNING: The individual signing any document or placing any order with the Technical Department on behalf of a Client will be and by signing an order agrees to be liable for the costs of Equipment and Services.
1.3 The Technical Department shall use its reasonable endeavours to fulfil its obligations to the Client. It is hereby agreed that:-
(a) unless any Equipment is installed by the Technical Department, the Client shall be wholly responsible for the installation of Equipment sold or hired. The Technical Department does not give any warranty, representation or undertaking that Equipment sold or hired or subsequent installation thereof complies with any local authority electrical or fire regulations and/or other statutory consents or requirements; and
(b) the Technical Department gives no warranty, representation or undertaking as to the suitability of any Equipment sold or hired for subsequent installation in any place, land, building or premises (the “Site”). The Technical Department shall supply the Client with information to enable the Client to suitably prepare the Site for delivery and installation of Equipment; and
(c) while the Technical Department shall use its reasonable endeavours to ensure that Equipment sold or hired is in accordance with the Client’s specifications, the Technical Department specifically reserves the right to alter any materials used in the sale or hire of Equipment and/or specifications thereof in its sole discretion.
2. CLIENT’S OBLIGATIONS
2.1 It is the Client’s responsibility and obligation to ensure that any Equipment sold or hired or Services rendered including, if any, the installation thereof, shall be:
(a) in accordance with the Client’s requirements; and
(b) suitable in size and character for the Site; and
and that all permissions, consents and approvals shall be obtained by the Client prior to the commencement of any installation.
2.2 To enable the Technical Department to carry out its obligations hereunder, the Client shall at its own expense provide the Technical Department, its employees, representatives, agents and anyone acting on the Technical Department’s behalf including sub-contractors with:
(a) full access to the Site and any other premises required to be accessed. The Client hereby irrevocably gives permission to the Technical Department and its employees, representatives, agents or sub-contractors to execute any works on the Premises for, or in connection with, the installation, maintenance, or removal of Equipment; and
(b) prior to the commencement of any installation work, all necessary consents and approvals to allow the Technical Department to undertake its obligations hereunder, including obtaining any necessary easements, landlord consents, alteration consents or any other consents relating to the Site; and
(c) while Services are undertaken, all reasonable assistance, facilities and environmental conditions in order to allow the Technical Department to perform its obligations hereunder at the Site; and
(d) where Equipment is supplied or Services are undertaken outside of the United Kingdom, notification to the Technical Department of all applicable laws including union requirements that may affect the provision of Equipment and Services hereunder and the cost thereof. Where local employment or labour laws or recognised unions require the use of local sub-contractors or specify wage rates, the Technical Department may invoice the Client for the additional cost of such sub-contractors.
2.3 In respect of any Equipment hired from the Technical Department, Equipment shall remain the property of the Technical Department and the Client shall:
(a) comply with all instructions the Technical Department may notify to the Client for use of Equipment; and
(b) not allow Equipment to be repaired or maintained other than by an authorised employee, representative, agent or sub-contractor of the Technical Department; and
(c) keep Equipment in good working order and not damage, add, modify or in any way interfere with the performance of Equipment and immediately notify the Technical Department of any fault or suspected fault.
2.4 Without limitation to other provisions contained herein, in the event that any hired Equipment is not returned to the Technical Department prior to the date specified for its return, then the Client shall pay a late return fee equivalent to the hire charge in addition to the rental rate agreed up until such Equipment is returned. In the event that any Equipment hired is not returned within twenty one (21) days after the date due to be returned then, at the election of the Technical Department at any time after such twenty-one (21) day period, the Technical Department shall be entitled to deem such Equipment irrecoverable whereupon the Client shall be liable for the replacement cost of the said Equipment in addition to any accrued hire charges and late return fee.
2.5 For so long as any Equipment remains in the Technical Department’s legal and/or beneficial ownership or in the physical possession, custody or control of the Client, the Client shall stand possessed of such Equipment as bailee for the Technical Department (notwithstanding that such Equipment may be at the Client’s risk as hereinbefore provided) and the Client is responsible for Equipment. The Client will be liable to the Technical Department for any loss of or damage to Equipment, except where such loss or damage is due to fair wear and tear.
2.6 The Client agrees to indemnify the Technical Department against any claim made against the Technical Department concerning the copyright, design right or other intellectual property right in any design supplied by the Client to the Technical Department. In the event of the Technical Department incurring any such liability of whatever nature, the Client shall indemnify the Technical Department on an indemnity basis including all and any such loss and expense incurred by the Technical Department arising thereof.
3.1 All quotations for Equipment and Services shall be exclusive of VAT which shall be payable in addition to all sums quoted.
3.2 Unless otherwise specifically agreed:
(a) payment for Services shall be made as to eighty per cent (80%) upon acceptance of the Technical Department’s quotation, twenty per cent (20%) upon completion of Services; and
(b) payment for Equipment sold shall be upon acceptance of the Technical Department’s quotation; and
(c) payment for Equipment hired shall be paid on a periodic basis as specified by the Technical Department in the applicable quotation or invoice.
(d) Full and Final payment shall be within sixty (60) days. Otherwise, The Technical Department has the right to claim interest for late payment. The right to claim reasonable debt recovery costs. The right to challenge contractual terms that do not provide a substantial remedy against late payment.
3.2 The Technical Department reserves the right to vary prices (whether specifically quoted) to take account of increases of raw materials, manufacture, transport or wages arising before dispatch.
3.3 Interest at the rate of 2% per month compound is payable on invoices from the first day after the last due date for payment has passed. The aforementioned right to charge interest shall not prejudice the Technical Department’s rights of recovery of Equipment or the Technical Department’s other rights against the Client.
3.4 The Technical Department reserves the right to close any trading account for any reason by notice to the Client. If a trading account is closed, any balance (including interest) then outstanding must be discharged within twenty-one (21) days.
3.5 The Client shall not be entitled to set-off or withhold any payment to the Technical Department in the event of a dispute between the parties regarding payment of any sums to the Technical Department.
3.6 Until the Technical Department has been paid in full for Equipment and Services, the legal and beneficial ownership in Equipment supplied shall remain with the Technical Department except that the risk therein passes to the Client at the point where delivery is made or if earlier the date when the Technical Department notifies the Client that Equipment is ready for delivery or collection.
3.7 Should any amount due from the Client to the Technical Department in respect of Equipment or Services shall remain unpaid after the due date for payment has passed then, at the Client’s expense, the Technical Department may recover Equipment at any time from the Client if it is in the Client’s possession, custody or control and for that purpose the Technical Department and its employees, representatives, agents or sub-contractors shall be entitled to enter unhindered upon the Site or other place where Equipment happens to be. The Client shall forthwith supply the Technical Department upon request with full details of the whereabouts of Equipment and such other information as the Technical Department may reasonably and properly require.
3.8 In respect of all Equipment hired and where any amount due from the Client to the Technical Department in respect of Equipment or Services shall remain unpaid after the due date for payment has passed, if the Client attempts to effect any sale, disposal, charge, lien, mortgage or other encumbrance which confers any rights of title in or against Equipment in favour of any third party, the Client, shall until all monies whatsoever and howsoever due from the Client have been paid, stand possessed of the proceeds of such sale or disposition or of any right to receive the same as trustee for the Technical Department to apply the same in satisfaction of any monies due from the Client. Without prejudice to any other rights or remedies the Technical Department may have the Technical Department shall have the right to proceed against the Client’s own customer to the extent that their own Clients’ account with them is unpaid; any warranties, representations, agreements or undertakings given, made or implied by the Client to any third party shall not be binding on the Technical Department and the Technical Department shall be indemnified by the Client in relation thereto.
4.1 Where collection or delivery is made or is to be made by instalments, any non-delivery or delay of any instalment shall not entitle the Client to cancel the remainder of the deliveries or any of them.
4.2 The Technical Department shall use its reasonable endeavours to effect any delivery or make equipment available for collection in accordance with pre-arranged times and dates. Any time or date stated by the Technical Department for collection or delivery is given and intended as an estimate only and the Technical Department shall not be liable to make good any damage or loss whether arising directly or indirectly out of any delay or failure in collection or delivery.
4.3 It is the Client’s responsibility to check carefully the quantity and type of Equipment sold or hired and any claims or complaints must be made to the Technical Department by notice in writing within fourteen days of receipt of Equipment.
4.4 In respect of non-delivery, late delivery or alleged defective Equipment, the Technical Department shall not be liable for any claim for loss of profits, machine time or any other consequential loss or damage.
4.5 In the event that the Client fails to collect Equipment sold or hired on the due date for collection or in the event that the Technical Department is unable to deliver the same to the Client then the Technical Department shall have the right by notice in writing to require the Client in writing to collect the said Equipment within a period of forty-eight (48) hours after having received such notice after which the Technical Department shall be entitled without prejudice to any other right or remedy (including the Technical Department’s right to full payment) to sell, dismantle or dispose of the same and re-use the component parts for its own use. Without prejudice to the above the Technical Department shall be entitled to charge a storage fee in respect of all Equipment that is not collected on the due date for collection or which the Technical Department is unable to deliver.
4.6 The Technical Department reserves the right to charge collection or delivery fees unless the same is specifically referred to as being included in the quotation.
5.1 Without prejudice to any other rights the Technical Department may have against the Client, the Technical Department shall have the right to terminate this Agreement or defer delivery of any Equipment ordered or performance of Services in the event of:
(a) any sums due from the Client to the Technical Department being overdue; or
(b) the Client being in breach of any of these Terms or other agreements made with the Technical Department; or
(c) the Client attempting to sell, charge, mortgage, dispose of or otherwise deal with any Equipment hired or sold and not paid for; or
(d) the Client becoming insolvent, or being unable to pay its debts as and when they fall due, or a meeting of its creditors being convened, or any arrangement or composition with or any assignment for the benefit of its creditors being proposed or made, or any receiver, administrator, administrative receiver, liquidator or similar officer being appointed in respect of all or any of the assets or undertaking of the Client.
5.2 Where this Agreement is terminated for any reason, the Technical Department shall be entitled to enter the Site and remove any Equipment hired or sold and not paid for.
6. RISK AND INSURANCE
6.1 It is the Client’s responsibility to insure all Equipment hired or sold to the Client against all risks. The risk in all Equipment passes to the Client at the point where delivery begins or if earlier the date when the Technical Department notifies the Client that Equipment is ready for delivery or collection. The Technical Department shall not be responsible for any loss or damage caused in transit. Without prejudice to the generality of the foregoing, the Client is responsible for all public liability arising out or in connection with the use of Equipment sold or hired by the Technical Department and it is the Client’s obligation to effect the appropriate insurance to indemnify the Technical Department in connection therewith. The Technical Department recommend that insurance be effected with an insurance office of repute in the sum of five million pounds or the full value of any Equipment together with a suitable contingency.
6.2 Where the Technical Department accepts into its possession or custody whether or not pursuant to any agreement any materials, equipment or legal property of any description (hereinafter referred to as “property”) and or where the Technical Department gives possession or custody of such property or any part thereof to an employee, representative, agent or sub-contractor of the Technical Department and where such property or any part thereof is lost, stolen damaged or destroyed, the liability for such loss, theft, damage or destruction whether the same be accidental or be caused or contributed to by the negligent breach of contract or breach of duty by the Technical Department, its employees, representatives, agents or sub-contractors, shall be limited to the payment by the Technical Department of the value of such property or one hundred pounds whichever sum be the lesser unless the Technical Department prior to acceptance shall have agreed in writing that a particular sum be payable in the event of any such loss, theft, damage or destruction.
7. EXCLUSION AND LIMITATION OF LIABILITY
7.1 Nothing hereunder shall exclude or limit liability for death or personal injury resulting from the negligence of either party.
7.2 Neither party shall be liable in contract or tort (other than fraudulent misrepresentation) arising out of or in connection with this Agreement for:
(a) any economic losses (including, without limitation, loss of revenues, profits, contracts, or business); or
(b) any special, indirect or consequential losses or any destruction of data, arising out of or in connection with the provisions of these Terms.
7.3 Subject to clauses 7.1 and 7.2, the Technical Department’s liability to the Client arising out of or in connection with this Agreement or the performance or observation of its obligations hereunder shall be limited in aggregate to the charges paid by the Client hereunder.
If the Client is not satisfied with any aspect of Equipment or Services, the Client should notify an employee of the Technical Department. If such employee fails to deal with the complaint to the satisfaction of the Client within a reasonable time, the Client should notify a director of the Technical Department.
9. STANDARDS AND REGULATIONS
All Equipment and Services are provided in accordance with the Institute of Electrical Engineers Wiring Regulations (BS 7671) and where applicable in accordance with The Electrical Equipment (Safety) Regulations 1994.
10.1 The Technical Department shall be entitled to assign, licence or sub-contract to a third party the provision of any of Equipment or Services that the Technical Department agrees to perform for the Client. All the Client’s obligations to the Technical Department hereunder shall remain due to the Technical Department and where directed to the third party.
10.2 If any intellectual property right arises out of any design of an installation sold or hired to the Client, the Technical Department retains all such rights. The Technical Department licenses such rights to the Client on a non-exclusive basis for the period of any hire and in respect of installations sold, in perpetuity.
10.3 The Technical Department shall not be responsible for any failure or inability to supply Equipment or Services in the event that due performance is impracticable due to act of God, war, terrorist attack, civil commotion, riot, strikes, lockouts, fire, drought, flood, destruction or damage to premises plant or machinery, explosion, shortage, failure of fuel materials or transportation, acts of Governments, Local or Public Authorities or other causes beyond the Technical Department’s control or owing to the inability to procure materials or equipment except at enhanced prices due to any of the aforesaid or any other causes.
10.4 No forbearance or indulgence by the Technical Department shown or granted to the Client whether in respect of these Terms or otherwise is to be regarded as a waiver of any of these Terms and shall in any way affect or prejudice the Technical Department’s rights against the Client. No waiver, variation or amendment to these Terms shall be valid unless made by a notice in writing and signed by a Director of the Technical Department and the Client and shall only apply to the particular order in respect of which the waiver, variation or amendment was made.
10.5 The Technical Department and the Client each agree to comply with their respective obligations under applicable data protection legislation and maintain all relevant registrations, including (in relation to the Client) such registrations and consents as the Client should obtain and maintain to enable the Technical Department to process personal data in connection with the performance by the Technical Department of its obligations hereunder.
10.6 No person who is not a party to this Agreement has any right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.
10.7 The parties shall keep in confidence any information (whether written or oral) of a confidential nature obtained under or in connection with this Agreement and will not without the written consent of the other party disclose that information to any person (other than their employees, representatives, agents, sub-contractors or professional advisers).
10.8 Notices between the parties shall be in writing and may be sent by hand, by facsimile or by prepaid post to the other’s address herein set out or such other address within the United Kingdom as the parties may respectively notify each other.
10.9 These Terms shall constitute the entire agreement between the parties (unless the parties have agreed a variation in writing) and supersedes and cancels all (if any) prior agreements, arrangements and negotiations between the parties in respect thereof. Each party acknowledges and agrees that it has not relied on and shall have no right of action in respect of any representation, warranty or undertaking in relation to its subject matter save as expressly set out in these Terms.
10.10 The Client shall execute such deeds and documents, and take such steps as the Technical Department may reasonably require to allow the Technical Department to exercise its rights and perform its obligations hereunder and to enable the Technical Department to take such steps as may be necessary to enforce and protect such rights.
10.11 If any part of these Terms shall be deemed to be invalid or unenforceable it shall not affect the validity of the balance of the Terms.
10.12 These Terms shall be governed and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction.
The Technical Department 2006