Terms and Conditions of Service
1. Definitions and Interpretation
1.1 The following definitions apply in these Terms and Conditions:
“Customer” |
means any individual, business, partnership, trust, company, body, authority, association or other organisation which enters into a contract pursuant to these Terms and Conditions for the provision of the Services;
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“Normal Working Hours” |
means 9.00 am to 5.00pm Monday to Friday, excluding bank or public holidays. Any times requested outside the above are by specific arrangement;
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“Services” |
means providing health and safety testing and risk assessments;
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“FTS”` |
means FTS Safety Solutions Limited, a company registered in England and Wales with company number: 05994400 and its registered office at 14 Forrabury Avenue, Milton Keynes, Buckinghamshire, MK13 8NG
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“Confirmation of Order” |
means the document dispatched by FTS confirming the Customer's order, the price and any extra or different provisions;
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“Contract” |
means the contract between FTS and the Customer for the provision of the Services, consisting of these Terms and Conditions and the Confirmation of Order;
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“Price” |
means the cost of the Services set out on the Confirmation of Services;
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“Terms and Conditions” |
means the FTS Safety Solutions Limited terms and conditions of Service
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“Certificate” |
means the document used in conjunction with the detailed asset register and the asset pass labels. The Certificate of Portable Appliance Testing – Issue No: PATCERT01
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“Business Day” |
means any day (other than a Saturday, Sunday or bank or public holiday) when banks in the City of London are open for business.
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1.2 Any reference to a particular law, code, policy or similar is to it as it is in force for the time being taking into account any amendment, extension, application or re-enactment for the time being.
1.3 Words in the singular include the plural and vice versa and references to one gender includes a reference to the other gender.
1.4 Provision headings are for reference only and do not affect the construction or interpretation of these Terms and Conditions.
1.5 Where the context permits, any reference to FTS includes its duly authorised representatives, officers, servants and agents.
2. Quotations
2.1 Quotations for services may be given by FTS on the basis that:
2.1.1 no Contract shall come into existence until FTS dispatches a Confirmation of Order to the Customer or FTS verbally agree the Contract:
2.1.2 any quotation is valid for a period of 30 (thirty) days only from its date;
2.1.3 FTS reserves the right to cancel or withdraw the quotation at any time.
3. Orders
3.1 Each order or acceptance of a quotation for Services by the Customer shall be deemed to be an offer by the Customer to purchase the Services subject to these Terms and Conditions and any special provisions contained in the Confirmation of Order.
3.2 No order made by the Customer shall be deemed accepted until FTS issues a signed Confirmation of Order or verbally agrees the Contract. The Customer must provide a purchase order prior to completion or on sign off of the completed site.
3.3 The Customer must ensure that the details of its order are complete and accurate and FTS shall not be liable for any damage or loss, whether direct or indirect, howsoever caused to the Customer as a result of the information provided to FTS being incomplete or inaccurate.
3.4 Upon issue of a signed Confirmation of Order the Contract subject to these Terms and Conditions shall come into existence between the Customer and FTS.
3.5 Subject to any variation under clause 13, the Contract shall be on these terms to the exclusion of all other terms and conditions (including any terms or conditions the Customer purports to apply under any purchaser order, confirmation, specification or other document).
3.6 No terms or conditions endorsed on, delivered with or contained in the Customer's quotation, order, invoice or other document shall form part of the contract simply as a result of being referred to in the Contract.
4. Services
4.1 FTS will provide the Services during the Normal Working Hours at such times as arranged between FTS and the Customer.
4.2 The Services shall be provided in respect of the premises and the equipment of the Customer as agreed in advance and set out in the Confirmation of Order only.
5. Service Limitations
5.1 Equipment is deemed safe at the time of testing and once the site has been returned to the Customer following sign off, the equipment and its safety becomes the responsibility of the Customer.
6. Cancellation
6.1 No cancellation or variation of the terms of the order by the Customer shall be accepted without the written consent of FTS.
6.2 FTS may cancel the Contract upon written notice to the Customer at any time prior to forty-eight hours before the Services were due to be undertaken pursuant to clause 4.1.
6.3 In the event that the Customer cancels on the day of testing or the engineer is unable to gain access to the site a minimum charge (plus VAT if applicable) will be due. The minimum charge will not be charged if the Service is rebooked for an alternative date by the Customer. However, the Customer shall be liable for all other costs incurred by FTS (including travel and administrative expenses) in relation to the Customer cancelling on the day of testing.
7. Price and Payment
7.1 The Price shall be exclusive of any value added tax or other applicable taxes which amounts shall be payable in addition when the Price is due (if applicable).
7.2 Payment of the Price is due on the terms specified by these Terms and Conditions or as otherwise specified in the Confirmation of Order.
7.3 Unless otherwise agreed by FTS in writing, once the Confirmation of Order has been despatched the Customer shall be liable for all costs incurred by FTS (including any travel expenses) in relation to that order even in the event that the Customer cancels the Contract or refuses to allow FTS to provide the Services.
7.4 Payment shall be due within fourteen (14) days of the Service being completed unless FTS agrees otherwise.
7.5 Time for payment shall be of the essence.
7.6 No payment shall be deemed received until FTS has received payment in pounds sterling in full and cleared funds
7.7 When full payment of the Price is received by FTS in satisfaction of clauses 7.4 & 7.6, FTS will issue the Certificate to the Customer within seven Business Days of receipt.
7.8 All payments due by the Customer shall become due immediately on the termination or cancellation of the Contract for whatever reason.
7.9 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless FTS has agreed to the same in writing.
7.10 Without prejudice to any other rights and remedies of FTS, if the Customer fails to pay FTS any sum due pursuant to the Contract, the Customer shall be liable to pay interest to FTS on such sums from the due date for payment at the rate of 8% per cent above The Bank of England reference base rate, accruing on a daily basis until payment is made, whether before or after any judgment.
7.11 FTS will exercise the statutory right to claim interest and compensation for debt recovery costs under The Late Payment of Commercial Debts (Interest) Act 1998 if FTS are not paid according to their credit terms
8. Access
8.1 In order to provide the Services, the Customer shall provide to FTS:
8.1.1 full, unrestricted and convenient access to the premises and the equipment of the Customer;
8.1.2 necessary utilities (including mains electricity) and other normal supplies required to undertake the Services.
8.2 The Customer shall maintain suitable public liability insurance for the duration of this Contract with a reputable insurer and shall provide a copy of the insurance policy and proof of payment of the premiums to FTS upon reasonable request.
8.3 Prior to undertaking the Services, FTS shall undertake an initial site and risk assessment. If FTS is not satisfied as to the safety or suitability of the site or the risks prior to or during the provision of the Services, it may refuse to provide further Services at any time.
9. Acceptance of Services
9.1 Following the provision of the Services FTS shall provide the Customer with a report of the assessments, testing and any other recommendations (“the Report”).
9.2 Upon receipt of the Report of FTS, the Customer shall sign off the provision of the Services. Such sign off shall indicate the acceptance of the Services by the Customer.
9.3 The Report of FTS is accurate as at the time of sign off by the Customer, and FTS accepts no liability for and shall not be responsible for any alterations to the premises and/or equipment of the Customer after the acceptance that may alter the accuracy of the Report.
10. Warranty
10.1 FTS adheres to all Codes and Standards relevant to the industry as required by the Institute of Engineering and Technology.
10.2 FTS complies with all applicable laws in relation to the industry.
10.3 All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from this Contract.
11. Limitation of Liability
11.1 This clause sets out the entire limitation (including any liability for the acts, defaults, neglect or omissions) of FTS in respect of any breach of the Contract and/or any tortuous statement, act or omission including negligence arising under or in connection with the Contract.
11.2 Nothing in these Terms and Conditions excludes or limits the liability of FTS for death or personal injury caused by the negligence of FTS and/or for any matter in respect of which it would be illegal to exclude or attempt to exclude liability and/or for fraud or fraudulent misrepresentation.
11.3 FTS's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with this Contract shall be limited to the replacement cost of replacement of any equipment damaged by FTS in the provision of the Services.
11.4 FTS shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, and depletion of goodwill or otherwise in each case whether direct or indirect or consequential, or any claims for consequential compensation however caused, which arise out of on in connection to this Contract.
11.5 FTS shall not be held responsible for items that are damaged during testing unless they are negligent in the way that testing is carried out. FTS shall not be held responsible for equipment usage once testing has been carried out but before the site sign off has been completed.
12. Variation
12.1 No variation of these Terms and Conditions and the Agreement between the Parties shall be valid unless it is in writing and signed by the authorised representatives of the Parties.
12.2 FTS reserves the right to vary these Terms and Conditions, the charges for the services and any other documents referred to in these Terms and Conditions from time to time and the Customer should check the terms and conditions on each occasion a contract is entered into with FTS.
13. Assignment
13.1 FTS may assign its rights or obligations under the contract or any part of it to any person, firm or company.
13.2 The Customer shall not be entitled to assign its rights or obligations under the contract or any part of it without the prior written consent of FTS.
14. Force Majeure
14.1 FTS shall not be liable for any loss or damage suffered by the Customer, howsoever caused, whether direct or indirect, if it is prevented from or delayed in the carrying on of its services due to circumstances beyond the reasonable control of FTS including, without limitation, acts of God, natural disasters, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether relating to FTS's workforce or the workforce of suppliers or other contractors of FTS) or restraints or delays affecting carriers.
14.2 For the avoidance of doubt, delays caused by road or weather conditions, telephone line and power failures, delays in obtaining equipment, parts or delays in transport of the same and other similar events shall constitute force majeure events for the purposes of this clause
15. Severability
15.1 If any provision of these Terms and Conditions or the contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or un reasonableness be deemed severed and the remainder of such provision shall continue in full force and effect.
16. Waiver
16.1 Failure or delay by FTS in enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under these Terms and Conditions or the contract.
16.2 Any waiver by FTS of any breach of, or any default under, any provision of these Terms and Conditions or the contract shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.
17. Third Parties
17.1 The Parties to this contract do not intend that any term of this contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18. Law and Jurisdiction
18.1 The formation, existence, construction, performance, validity and all other aspects of this contract shall be governed by the law of English and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales.
19. Notices
19.1 All notices pursuant to this contract shall be in writing and delivered by hand first class post or fax to the addresses notified to the other party from time to time.
19.2 Communications shall be deemed to have been received:
19.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
19.2.2 if delivered by hand on the day of delivery; or
19.2.3 if sent by fax on a working day prior to 4.00pm, at the time of transmission, and otherwise on the next working day at 9.00am.
20. Entire Agreement
20.1 The Terms and Conditions and Confirmation of Order shall constitute the entire agreement between the Parties.
20.2
Any statements, representations or warranties made orally or in writing prior to the formation of the Contract do not form part of the Contract and are superseded by these Terms and Conditions and the Confirmation of Order unless a duly authorised representative of FTS specifically confirms them in writing at the time of the despatch of the Confirmation of Order.
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