Terms and Conditions

Terms and Conditions

May 2020 Version 3 – Rev – 2.7

1. Definitions and Interpretation

1.1 The following definitions apply in these Conditions:

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.

Certificate” means the document certifying that the Equipment has passed the Relevant Standards.

Conditions” means these terms and conditions as amended from time to time in accordance with clause 17.

Confirmation of Order” means the document dispatched by FTS confirming the Customer’s order, the price and any special provisions specific to the order.

Contract” means the contract between FTS and the Customer for the supply of Goods and/or the provision of the Services in accordance with these Conditions.

Customer” means any individual, business, partnership, trust, company, body, authority, association or other organisation which enters into a Contract with FTS pursuant to these Conditions for the provision of the Goods and/or Services.

Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Delivery Location” has the meaning afforded to it in clause 5.1.

Equipment” means the equipment that is to be tested by FTS pursuant to the provision of Services.

Failed Equipment” means Equipment which fails to meet the Relevant Standards, or such other phrase as may vary from time to time depending on the type of Equipment that is serviced.

Force Majeure Event” has the meaning afforded to it in clause 19.1.

FTS” means FTS Safety Solutions Limited, a company registered in England and Wales with company registration number 05994400 and whose registered office at 21 Moorhills Road, Wing, Leighton Buzzard, Bedfordshire, LU7 0NG.

Goods” means the goods ordered by the Customer as set out in the Confirmation of Order.

Normal Working Hours” means 9.00 am to 5.00pm Monday to Friday, excluding bank or public holidays.

Order” means the Customer’s order for Goods and/or Services as set out in the Customer’s written acceptance of the Quotation.

Price” means the cost of the Goods and/or the Services as set out in the Confirmation of Order.

Quotation” means an estimate of costs for providing the Goods and/or Services.

Relevant Standards” means those commonly accepted practices and standards in Health and Safety Testing and those relevant laws and regulations in force at the time the Services are carried out.

Services” means the services supplied by FTS to the Customer as set out in the Confirmation of Order.

Site” means the premises where the Services will be performed by FTS as detailed in the Confirmation of Order, or such other premises as specified by the Customer.

UK Data Protection Legislationmeans all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2 Any reference to a particular statute or statutory provisions, 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 A reference to writing or written includes fax and email.

1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.6 Provision headings are for reference only and do not affect the construction or interpretation of these Conditions.

1.7 Where the context permits, any reference to FTS includes its duly authorised representatives, officers, servants and agents.

1.8 A reference to a party includes its successors or permitted assigns.

1.9 Except where a contrary intention appears, a reference to a clause or Schedule is a reference to a clause of, or Schedule to, these Conditions.

1.10 Clause and Schedule headings do not affect the interpretation of these Conditions.

2. Quotations

Quotations for the provision of any Goods and/or Services may be given by FTS on the basis that:

2.1 any Quotation given by FTS shall not constitute an offer, and is only valid for a period of 30 (thirty) days from the date shown on the Quotation; and

2.2 FTS reserves the right to cancel or withdraw the Quotation at any time.

3. Orders

3.1 The Order constitutes an offer by the Customer to purchase the Good and/or Services in accordance with these Conditions.

3.2 No Order shall be deemed accepted until FTS issues a signed Confirmation of Order at which point and on which date the Contract shall come into existence.

3.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of FTS which is not set out in the Contract.

3.4 These Conditions apply to the Contract to the exclusion of any terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or previous course of dealings.

3.5 The Customer must ensure that the details of the 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.

3.6 All of these Conditionsshall apply to the supply of both Goods and Services except where application to one or the other is specified.

4. Goods

4.1 The Goods are as described in any catalogue, brochure or other promotional materials supplied by FTS, as the case may be. The images of the Goods are for illustrative purposes only. Although FTS has made every effort to display the colours accurately, it cannot guarantee that the display of the colours accurately reflects the colour of the Goods. The Goods may vary slightly from any images supplied.

5. Delivery of the Goods

5.1 FTS shall deliver the Goodsto the location set out in the Confirmation of Order or such other location as the parties may agree (the “Delivery Location”). FTS shall use its reasonable endeavours to effect delivery by the date and time agreed between the parties.

5.2 Delivery of the Goods shall be completed on the unloading of the Goods at the Delivery Location or, if required, depending on the type of Goods ordered, once the initial installation and commissioning service has been undertaken. Where such installation and commissioning services are required, FTS reserves the right to charge for providing such services. Where possible, FTS will ensure the Price listed in the Confirmation of Order includes any installation and commissioning fees that will apply.

5.3 Any dates quoted for delivery of the Goodsare approximate only, and the time of delivery is not of the essence. FTS shall not be liable for any delay in the delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide FTS with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6. Quality of the Goods

6.1 FTS warrants that on delivery, the Goods shall:

6.1.1 conform in all material respect with their description;

6.1.2 be free from material defects in design, material and workmanship;

6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

6.1.4 be fit for any purpose held out by

6.2 Subject to clause 3, FTS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:

6.2.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;

6.2.2 FTS is given a reasonable opportunity of examining such Goods; and

6.2.3 the Customer (if asked to do so by FTS) returns such Goods to FTS’ place of business at the Customer’s cost.

6.3 FTS shall not be liable for the Goods’ failure to comply with the warranty in clause 1 if:

6.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 2;

6.3.2 the defect arises because the Customer failed to follow FTS’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

6.3.3 the Customer alters or repairs such Goods without first obtaining the written consent of FTS;

6.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

6.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

6.4 Except as provided in this clause 6, FTS shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.

6.5 Insofar as the Goods comprise or contain equipment or components which were not manufactured or produced by FTS, the Customer shall be entitled only to such warranty or other benefit as FTS has received from the manufacturer.

6.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by

7. Title and Risk

7.1 The risk in the Goods shall pass to the Customer on completion of delivery.

7.2 Title to the Goods shall not pass to the Customer until FTS has received payment in full (in cash or cleared funds) for the Goods and any other goods that FTS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

7.3 Until title to the Goods has passed to the Customer, the Customer shall:

7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of FTS;

7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on FTS’ behalf from the date of delivery;

7.3.4 notify FTS immediately if it becomes subject to any of the events listed in clauses 15.3.1 to 15.3.5; and

7.3.5 give FTS such information relating to the Goods as FTS may require from time to time.

7.4 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clauses 15.3.1 to 15.3.5 then, without limiting any other right or remedy FTS may have, FTS may at any time:

7.4.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

7.4.2 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. Services

8.1 FTS will provide the Services during the Normal Working Hours at such dates and times as arranged between FTS and the Customer.

8.2 FTS shall use all reasonable endeavours to carry out and complete the Services by any dates specified in the Confirmation of Order but such dates shall be estimates only and time shall not be of the essence for performance of the Services.

8.3 The Services shall be carried out at the Site, and in relation to the Equipment, agreed with the Customer in advance.

8.4 FTS shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and FTS shall notify the Customer in any such event.

9. Service Limitations

9.1 Equipment which is tested by FTS and which passes the Relevant Standards complies with the Relevant Standards at the time of testing only. Immediately following the testing of the Equipment, its safety becomes the responsibility of the Customer.

9.2 FTS will notify the Customer of any Failed Equipment. Upon receiving such notification responsibility for withdrawing the Failed Equipment from use immediately passes to the Customer. FTS accepts no liability for any Failed Equipment which is not repaired or withdrawn from use.

9.3 FTS does not undertake and will not be liable to:

9.3.1 repair the Equipment; or

9.3.2 to keep the Equipment in repair; or

9.3.3 to replace the Equipment; or

9.3.4 to prepare the Equipment for inspection; or

9.3.5 to reassemble the Equipment; or

9.3.6 to pay the costs of any such works.

9.4 FTS may recommend that certain Equipment at the Site is either replaced or additional Equipment introduced to ensure compliance with the Relevant Standards. The new or replacement items include but are not limited to those items listed in the Schedule (the “Items”) and as notified by FTS to the Customer. If the Customer agrees to FTS providing the Items (which shall be Goods for the purposes of these conditions), FTS shall supply the Items using reasonable care and skill and shall charge the Customer for each Item supplied in accordance with FTS’ current price lists.

10. Price and Payment

10.1 The price for Goods:

10.1.1 shall be the price set out in the Confirmation of Order; and

10.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.

10.2 The charges for the Services will be on a time and material basis and undertaken in Normal Working Hours. FTS shall be entitled to charge an additional fee for performing the Services outside the “Normal Working Hours”, and such fee shall be set out in the Confirmation of Order.

10.3 The Price for the Goods and/or Services 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).

10.4 FTS reserves the right to increase the price of the Goods and/or Services required by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods and/or Services to FTS that is due to:

10.4.1 any factor beyond the control of FTS (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

10.4.2 any request by the Customer to change the delivery date(s) and or performance date(s) of the Goods and/or Services, or quantities or type of Goods ordered; or

10.4.3 any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give FTS adequate or accurate information or instructions in respect of the Goods and/or Services.

10.5 FTS shall invoice the Customer on delivery of the Goods and/or completion of the Services. In the instance that the Customer acquires Goods from FTS and requires its installation and/or commissioning Services, FTS shall invoice the Customer once any necessary Services have been completed.

10.6 FTS may impose additional charges including time charges for waiting (up to £100 per hour or part thereof) and the Customer shall pay such charges if FTS is prevented from performing its obligations under these Conditions by reason of the acts and/or omissions of the Customer.

10.7 The Customer shall pay each invoice submitted by FTS within 15 days of the date of the invoice date. In the event that the Customer disputes any invoice raised by FTS, whether in whole or in part, FTS must be notified in writing in accordance with the provisions outlined in clause 26 within 5 Business Days of the Customer’s receipt of the invoice, after which the Customer shall be deemed to have accepted the invoice and shall not be entitled to dispute the invoice and any payments already made.

10.8 Time for payment shall be of the essence of the Contract.

10.9 No payment shall be deemed received until FTS has received payment in pounds sterling in full and cleared funds to the bank account as notified by FTS from time to time.

10.10 When full payment of the Price is received by FTS in satisfaction of clauses 10.7 and 10.9, FTS will issue the relevant Certificates and reports to the Customer in respect of the Services undertaken, and title to any Goods will pass to the Customer in accordance with clause 7.2. Any Certificates and reports produced by FTS in connection with the Services will be sent electronically to the Customer’s email address as specified in the Confirmation of Order, or such other email address as may be specified by the Customer to FTS. If requested by the Customer, FTS can provide copies of the Certificates and reports via CD rom or an encrypted USB device.

10.11 All payments due by the Customer shall become due immediately on the termination or cancellation of the Contract for whatever reason.

10.12 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by FTS to the Customer, the Customer shall, on receipt of a valid VAT invoice from FTS, pay FTS such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services as the same time as payment is due for the supply of the Goods and/or Services.

10.13 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.

10.14 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 current rate authorised under the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis until payment is made, whether before or after any judgment. If civil proceedings are issued against the Customer, a claim will also be made for statutory interest on the amount outstanding calculated as detailed above and for any legal, recovery services and court costs.

10.15 The Customer hereby undertakes to indemnify FTS, its employees, agents, consultants and subcontractors and keep FTS, its employees, agents, consultants and subcontractors at all times fully indemnified from and against, all actions, proceedings, claims, demands, costs (including, without prejudice to the generality of this provision, all legal costs and expenses of FTS on a full indemnity basis), awards, or damages howsoever arising – directly or indirectly – as a result of any breach or non-performance by the Customer under the Contract.

11. Customer’s Obligations

11.1 In order to provide the Services and/or the Goods (as required), the Customer shall provide to FTS, its employees, agents, consultants and subcontractors:

11.1.1 full, unrestricted and convenient access to the Site and the Equipment; and

11.1.2 necessary utilities (including mains electricity) and other normal supplies required to undertake the Services and/or provide the Goods.

11.2 The Customer shall:

11.2.1 maintain suitable public liability insurance for the duration of the 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; and

11.2.2 co-operate with FTS in all matters relating to the Good and/or Services.

11.3 Prior to undertaking the Services and/or providing the Goods, FTS shall undertake an initial site inspection (if required) 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 and/or delivery of the Goods, it may refuse to provide/deliver further Services and/or Goods at any time.

11.4 If FTS’ 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 (“Customer Default”):

11.4.1 without limiting or affecting any other right or remedy available to it, FTS shall have the right to suspend performance of the Services and/or delivery of the Goods 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 FTS’ performance of any of its obligations;

11.4.2 FTS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the FTS’ failure or delay to perform any of its obligations as set out in this clause 4; and

11.4.3 the Customer shall reimburse FTS on written demand for any costs or losses sustained or incurred by FTS arising directly or indirectly from the Customer Default.

12. Acceptance of Services

12.1 Following the provision of the Services, FTS shall provide the Customer with a report of the assessments, testing and any other recommendations (the “Report”).

12.2 Upon receipt of the Report prepared by FTS, the Customer shall sign off the provision of the Services. Such sign off shall indicate the acceptance of the Services by the Customer. If the Customer fails to signal its acceptance of the Services within 14 days of the date of the Report, the Customer is deemed to have accepted the Services.

13. Data Protection

13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 13, “Applicable Laws” means (for so long as and to the extent that they apply to FTS) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK.

13.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and FTS is the processor.

13.3 Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to FTS for the duration and purposes of the Contract.

13.4 Without prejudice to the generality of clause 1, FTS shall, in relation to any personal data processed in connection with the performance by FTS of its obligations under the Contract:

13.4.1 process that personal data only on the documented written instructions of the Customer unless FTS is required by Applicable Laws to otherwise process that personal data. Where FTS is relying on Applicable Laws as the basis for processing personal data, FTS shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit FTS from so notifying the Customer;

13.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

13.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

13.4.4 not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

13.4.4.1 the Customer or FTS has provided appropriate safeguards in relation to the transfer;

13.4.4.2 the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

13.4.4.3 FTS complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

13.4.4.4 FTS complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

13.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

13.4.6 notify the Customer without undue delay on becoming aware of a personal data breach;

13.4.7 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and

13.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and immediately inform the Customer if, in the opinion of FTS, an instruction infringes the Data Protection Legislation.

13.5 The Customer acknowledges that FTS may be required to share the Customer’s personal data with any third-party specialists who have been instructed by FTS to undertake any part of the Services required. In such circumstances, FTS will be required to disclose the Customer’s personal data to the relevant third-party specialist but will not do so until and unless it has received written consent from the Customer beforehand.

13.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

14. Limitation of Liability

14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

14.2 Nothing in these Conditions excludes or limits the liability of FTS for:

14.2.1 death or personal injury caused by the negligence of FTS or the negligence of its employees, agents or subcontractors; or

14.2.2 fraud or fraudulent misrepresentation.

14.3 Subject to clause 14.2, FTS’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence) or breach of statutory duty, misrepresentation, restitution or otherwise shall be limited to the sum of £50,000 or 200% of the total value of the Contract, whichever is the lower amount.

14.4 Subject to clause 14.2, FTS shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise 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 or in connection to the Contract, which includes any damage or loss incurred by any third party services/ providers or special area associates utilised or employed by FTS in procuring the performance of any Services required.

14.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

14.6 This clause 14 shall survive termination of the Contract.

15. Termination

15.1 FTS may cancel the Contract without limiting its other rights or remedies upon written notice to the Customer at any time prior to forty-eight (48) hours before the Services were due to be undertaken, or the Goods were due to be delivered (or as the case may be), or in the instance that any of the events outlined in clause 15.4 occur.

15.2 The Customer may cancel the Contract by providing FTS with not less than 14 days’ written notice before the date the Services are due to be performed by FTS or the Goods are due to be delivered. If the Customer cancels the Contract by providing less than 14 day’s written notice to FTS or FTS, its employees, agents or sub-contractors are unable to gain access to the Site on the day the Services are due to be performed, FTS reserves the right to charge and invoice the Customer £160.00 (plus VAT) or 50% of the price of the Contract (whichever is the greater amount) and the Customer shall pay such sum to compensate FTS for its reasonable irrecoverable costs and/or losses (including but not limited to travel and administrative expenses). FTS, in its sole discretion, may not charge the Customer such sum if the Services and/or Goods are rebooked for an alternative date.

15.3 FTS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer:

15.3.1 fails to pay any amount due under the Contract on the due date for payment;

15.3.2 commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;

15.3.3 takes any step or action in connection with its 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;

15.3.4 suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

15.3.5 financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

15.4 Without affecting any other right or remedy available to it, FTS may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and FTS if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in 15.3.1 to clause 3.5, or FTS reasonably believes that the Customer is about to become subject to any of them.

16. Consequences of termination

16.1 On termination of the Contract the Customer shall immediately pay to FTS all outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, FTS shall submit an invoice, which shall be payable by the Customer immediately on

16.2 Termination of the Contract shall not affect any rights, remedies, obligations and 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.

16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

17. Variation

17.1 No variation of these Conditions and the Contract shall be valid unless it is in writing and signed by authorised representatives of the Parties.

18. Assignment

18.1 FTS may assign its rights or obligations under the Contract or any part of it to any person, firm or company.

18.2 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.

19. Force Majeure

19.1 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 the Services and/or delivery of the Goods 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), failure of a utility service or transport network, compliance with any law or governmental order, rule, regulation or direction or restraints or delays affecting carriers, epidemic or pandemic (“Force Majeure Event”).

19.2 If the Force Majeure Event prevents, hinders or delays FTS’ performance of its obligations for a continuous period of more than 90 days, the Customer will be entitled to terminate this Contract by giving 10 days’ notice in writing.

19.3 Neither party will be liable to the other party for any delay in or failure to perform its obligations (other than in accordance with clause 10) as a result of any Force Majeure Event. The time for performance of such obligations shall be extended accordingly, excluding time for payment in accordance with clause 10. In the instance that the Company is unable to perform its obligations under the Contract, or to achieve delivery within the estimated timescales, the Customer shall be entitled to re-schedule the delivery of the Goods and/or Services only and will in no circumstances be entitled to a refund or relief in respect of any payments already made or due to the Company, albeit the Company reserves the right at its discretion to extend any pre-agreed payment terms if it considers it just and reasonable to do so in light of the Force Majeure Event. The Customer shall in no circumstances be entitled to any compensation.

20. Delays other than by Force Majeure

FTS shall not be liable for any loss or damage suffered by the Customer, howsoever caused, whether direct or indirect, if FTS is delayed in performing the Services if such delay is caused by:

20.1 delays in obtaining Equipment, parts or delays in transport of the same;

20.2 the Customer employing other workers meaning that FTS has to wait for them to complete their work before it can perform the Services;

20.3 FTS is unable to access the Site on the date and time agreed;

20.4 the Site has not been made ready by the Customer as agreed; and

20.5 other similar events shall constitute Force Majeure Events for the purposes of this clause 20.

21. Severability

21.1 If any provision of these 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, unenforceability or unreasonableness be deemed severed and the remainder of the provision and Contract shall continue in full force and effect.

22. Waiver

22.1 Failure or delay by FTS in enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under these Conditions or the Contract.

22.2 Any waiver by FTS of any breach of, or any default under, any provision of the 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.

23. Third Parties

23.1 The parties to the Contract do not intend that any term of the 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.

24. Law and Jurisdiction

24.1 The formation, existence, construction, performance, validity and all other aspects of the Contract shall be governed by the law of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

25. Alternative Dispute Resolution

25.1 If any dispute arises in connection with the Contract, directors or other senior representatives of the parties with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

25.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (“ADR Notice“) to the other party to the dispute requesting mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 21 days after the date of the ADR Notice.

25.3 The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

26. Notices

26.1 All notices pursuant to the Contract shall either be sent in writing and delivered by hand to the relevant party, first class post to the addresses notified to the other party from time to time, or sent by fax to either party’s main fax number or by email to the address specified in the Confirmation of Order.

26.2 Any notice shall be deemed to have been received:

26.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

26.2.2 if 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 or at the time recorded by the delivery service; and

26.2.3 if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

26.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

26.4 Communications shall be deemed to have been received:

26.4.1 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

26.4.2 if delivered by hand on the day of delivery.

27. Entire Agreement

27.1 These Conditions and the Confirmation of Order comprise the Contract and which constitute the entire agreement between the parties.

27.2 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 the Conditions and the Contract unless a duly authorised representative of FTS specifically confirms them in writing at the time of the despatch of the Confirmation of Order.