Terms and Conditions
Computer Power Protection (Sales) Limited ("CPP Sales") TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
1.1 In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context: "Business Day" any day other than a Saturday or Sunday or a public or bank holiday in England and Wales; "Confidential Information" all information in respect of the business of the parties including, without prejudice to the generality of the foregoing, any business, financial development or manpower plans, know-how or other matters connected with the Contract, and information concerning the parties' relationships with actual or potential clients, customers or suppliers and the needs and requirements of the parties and of such persons and any other information which, if disclosed, will be liable to cause harm to the parties; "Consumables" those items that are consumed during and replaceable in the day to day operation of the Equipment which are the Customer's responsibility which may be provided as part of the Services at the request of the Customer for an additional cost to be agreed with CPP Sales and which may be more particularly detailed in the Contract; "Contract" any contract between CPP Sales and the Customer for the supply of the Services; "Customer" the person(s), firm or company whose order for the Services is accepted by CPP Sales; "Equipment" the Customer's equipment upon which the Services are to be performed; "Force Majeure" any cause preventing CPP Sales from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of CPP Sales including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of CPP Sales or otherwise), protest, act of God, war, or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic, default of suppliers or unavailability of supplies or materials; "Materials" any component or spare part used by CPP Sales in providing the Services excluding any Consumables; "Services" any services which CPP Sales provides to the Customer in respect of the Equipment (including the provision of any Materials and Consumables) as more particularly detailed in the Contract; "Site" the site or sites at which the Services are to be performed; "Terms and Conditions" the terms and conditions set out in this document together with any special terms agreed in writing between the Customer and CPP Sales which are expressly stated to vary or add to these terms and conditions.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2.1 Subject to any variation under Condition 2.6, the Contract will be upon these Terms and Conditions to the exclusion of all other terms and conditions regarding the Services provided hereunder and all previous oral or written representations, including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2 Each order or acceptance of a quotation for Services will be deemed to be an offer by the Customer to purchase Services upon these Terms and Conditions. The Contract is formed when the order is accepted by CPP Sales by way of a verbal or written acknowledgement of order or by provision of the Services.
2.3 Any quotation is valid for a period of 30 days only from its date, provided CPP Sales has not previously withdrawn it.
2.4 The Customer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.5 Subject to Conditions 6.3 and 12.1, the Customer may not cancel the Contract. CPP Sales may cancel the Contract at any time prior to commencement of the Services upon reasonable notice to the Customer.
2.6 Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by an authorised signatory of CPP Sales and an authorised signatory of the Customer.
3.1 CPP Sales shall provide the Services to the Customer in accordance with the Contract.
3.2 The Customer shall undertake its responsibilities detailed in this Contract within the time scales specified, or if no time scales are specified, without delay. Time for performance of all obligations of the Customer under the Contract is of the essence.
3.3 CPP Sales may make changes to the Services or the manner in which they are provided which are required to conform with any applicable safety or other statutory or regulatory requirements.
4.1 The price for the Services will be the price set out in CPP Sales's published price list current at the date of the Contract in default of any specific price detailed in the Contract by CPP Sales to the Customer and is exclusive of any value added tax or other applicable sales tax or duty which will be added to the sum in question.
4.2 CPP Sales may increase the price of the Services following any changes in the provision of the Services made both at the request of the Customer and agreed by CPP Sales or to cover any extra expense as a result of the Customer's instructions or lack of instructions, or to comply with the requirements referred to in Condition 3.3.
5.1 CPP Sales may invoice the Customer for the Services on or at any time after performance commences and subject to Condition 5.4, payment is due in pounds sterling. Payment terms shall be in line with the terms stated in the quotation document and are set at a maximum of 30 days of the invoice date unless agreed in writing by a director of the company. Time for payment will be of the essence. No payment will be deemed to have been received until CPP Sales has received cleared funds.
5.2 All payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Customer is required by law to make any such deduction or withholding.
5.3 CPP Sales may apply any payment made by the Customer to CPP Sales to any invoice for the Services as CPP Sales thinks fit, despite any intended application by the Customer to a specific invoice.
5.4 If any sum payable under the Contract is not paid when due then, without prejudice to CPP Sales's other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgement, at 2% per annum over LIBOR from time to time and CPP Sales will be entitled to suspend performance of the Services until the outstanding amount has been received by CPP Sales from the Customer.
6.1 CPP Sales shall have the right to inspect the Equipment prior to the commencement of the Services to ensure that no major defects exist. CPP Sales reserve the right to charge the Customer for such inspection in accordance with the current CPP Sales price list if not stated in the Contract.
6.2 The Customer shall allow or shall ensure that CPP Sales are given such access to the Site and Equipment as is necessary in order to enable CPP Sales to perform the Services. In the event that special security clearance is required in order to gain access to the Site, the Customer shall inform CPP Sales immediately and undertake the necessary arrangements for access to be granted.
6.3 CPP Sales will use reasonable endeavours to perform each of the Customer's orders for the Services within the time agreed in the Contract and, if no time is agreed, then within a reasonable time, but the time of performance will not be of the essence. If, despite those endeavours, CPP Sales is unable for any reason to fulfil any performance on the specified date, CPP Sales will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will CPP Sales have any liability to the Customer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in performance except as set out in this condition. Any delay in performance will not entitle the Customer to cancel the order unless and until the Customer has given 14 days' written notice to CPP Sales requiring the performance to be made and CPP Sales has not fulfilled the performance within that period. If the Customer cancels the order in accordance with this Condition 6.3 then: 6.3.1 CPP Sales will refund to the Customer any sums which the Customer has paid to CPP Sales in respect of that order or part of the order which has been cancelled less any costs incurred by CPP Sales in respect of Services already performed or prepared; and 6.3.2 the Customer will be under no liability to make any further payments under Condition 5.1 in respect of that order or part of the order which has been cancelled.
6.4 If the Customer fails to provide any instructions, documents, licences or authorisation's or access to the Site required to enable the Services to be performed on time (except solely on account of CPP Sales's default), the Services will be deemed to have been performed on the due date and CPP Sales will not be deemed to be in breach of its obligations under the Contract.
7.1 Subject to the payment of the relevant additional charges, CPP Sales may perform additional services to those specified in the Contract upon these Terms and Conditions at the Customer's request but shall not be obliged to do so. The following services are examples of services which are expressly excluded from the Services including but not limited to: 7.1.1 servicing or replacing of Equipment which is lost, damaged or failing due to: 188.8.131.52 misuse, neglect, wilful damage or operation outside the specified limits set out in the relevant operations and maintenance manuals or warranty terms and conditions for the Equipment; 184.108.40.206 external causes including fire, lightning, water (including but not limited to water from a sprinkler installation), frost, flooding, explosion, earthquake, aircraft or articles dropped from aircraft or failure of room ventilation; 220.127.116.11 the Customer's failure to report a known fault or malfunction; 18.104.22.168 repairs, adjustments or modifications to the Equipment not authorised by CPP Sales or any third party product introduced by the Customer which has not been authorised by CPP Sales; 22.214.171.124 the fluctuation, interruption or failure of systems at the Site not forming part of the Equipment, including but not limited to electrical supply (UPS excluded), water, refrigeration, chilled water or glycol systems, drains or system for heating or cooling; 7.1.2 replacing major items of Equipment which require replacement due to external causes or age related failure; 7.1.3 replacement of obsolete Equipment or spares; 7.1.4 .scaffolding, building work or lifting heavy Equipment; 7.1.5 fitting spares not supplied by or on behalf of CPP Sales; 7.1.6 servicing, repairing or replacing equipment not included in the Equipment; or 7.1.7 repair or replacement of batteries or other Consumables after the expiry of their 12 month warranty period.
7.2 CPP Sales reserve the right to refuse to repair any Equipment or components thereof which are considered unsafe, obsolete or contrary to any legislation. Should CPP Sales exercise such right it shall inform the Customer of the reasons for such refusal to repair and shall charge to the Customer any fees so far incurred.
8.1 Risk of loss or any damage to any Materials shall pass to the Customer upon the Materials being supplied, repaired or replaced by CPP Sales.
8.2 Where the Services include the replacement or supply of any Materials or otherwise involve the transfer of any property to the Customer, property therein shall not pass to the Customer until CPP Sales has received in full (in cash or cleared funds) all sums due to it in respect of the Services and all other sums which become due to CPP Sales from the Customer on any account.
Limitation of Liability
9.1 Condition 9 sets out the entire liability of CPP Sales (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of: 9.1.1 any breach of its contractual obligations under the Contract; 9.1.2 any representation, statement or tortuous act or omission, including negligence, arising under or in connection with the Contract. Warranty for Services
9.2 CPP Sales warrants to the Customer that the Services will be performed with reasonable skill and care and in accordance with the Contract. Warranty for Materials
9.3 CPP Sales warrants to the Customer that the Materials will be free of any defects. CPP Sales will, free of charge: (i) within a period of 12 months from the date of the completion of the Services in respect of any new Materials supplied; and (ii) within a period of 12 months from the date of completion of the Services in respect of any Materials which have been repaired or refurbished which are proved to the reasonable satisfaction of CPP Sales to be damaged or defective due to defects in material, or workmanship or design (other than a design made, furnished or specified by the Customer), repair, or at its option replace, such Materials. This obligation will not apply where: 9.3.1 a defect in the Materials arises from fair wear and tear; 9.3.2 the Materials have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair; 9.3.3 the Materials have been improperly installed or connected by the Customer; 9.3.4 any maintenance requirements relating to the Materials have not been complied with; 9.3.5 any instructions as to storage of the Materials have not been complied with in all respects; 9.3.6 the Customer has failed to notify CPP Sales of any defect or suspected defect within 14 days of the completion of the Services where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Customer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 12 months from the date of purchase.
9.4 Any Materials which have been replaced will belong to CPP Sales. Any repaired or replacement Products will be liable to repair or replacement under the terms specified in Condition 9.3 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Products.
9.5 The warranty contained in Condition 9.3 does not extend to any Consumable, parts, Materials or equipment not manufactured by CPP Sales, in respect of which the Customer shall only be entitled to the benefit of any warranty or guarantee as given by the manufacturer to CPP Sales (if any) which are capable of being passed on to the Customer.
9.6 In the event of any breach of CPP Sales' express obligations under Condition 9.2 above, the remedies of the Customer will be limited to the balance of the total price payable by the Customer for the provision of the Services minus the value of any Materials replaced under Condition 9.3.
9.7 In the event of any breach of CPP Sales' express obligations under Condition 9.3 above, the remedies of the Customer will be limited to the repair or replacement of the relevant Materials at the option of CPP Sales.
9.8 CPP Sales does not exclude its liability (if any) to the Customer: 9.8.1 for breach of CPP Sales's obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982; 9.8.2 for personal injury or death resulting from CPP Sales's negligence; 9.8.3 under section 2(3) Consumer Protection Act 1987; 9.8.4 for any matter which it would be illegal for CPP Sales to exclude or to attempt to exclude its liability; or 9.8.5 for fraud.
9.9 Except as provided in Condition 9.8, CPP Sales will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with: 9.9.1 the performance of the Services and the provision of the Materials; 9.9.2 any breach by CPP Sales of any of the express or implied terms of the Contract; 9.9.3 any statement made or not made, or advice given or not given, by or on behalf of CPP Sales or otherwise under the Contract.
9.10 Except as set out in Conditions 9.1 to 9.8, CPP Sales hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
9.11 Each of CPP Sales's employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in Conditions 9.6 to 9.9 in that person's own name and for that person's own benefit, as if the words "its employees, agents and subcontractors" followed the word CPP Sales wherever it appears in those clauses save each reference in Condition 9.7.
9.12 The Customer acknowledges that the above provisions of this Condition 9 are reasonable and reflected in the price which would be higher without those provisions. Indemnity
9.13 The Customer agrees to indemnify, keep indemnified and hold harmless CPP Sales from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgements which CPP Sales incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Customer of the terms of the Contract.
The Customer shall be responsible for observance by itself, its staff, its customers or any other third party and its subcontractors and notification with reasonable notice to CPP Sales of any legislation including without limitation all applicable health and safety precautions necessary for the protection of the CPP Sales engineers who visit the Site in order for the Services to be performed and any other CPP Sales staff and subcontractors visiting the Site or its property, including all precautions required to be taken under any legislation.
11.1 CPP Sales will not be in breach of the Contract or otherwise be liable to the Customer in any manner whatsoever for any failure or delay or for the consequences of any failure or delay in performance of this Contract if it is due to any event of Force Majeure and will be entitled to a reasonable extension of time to perform such obligations so delayed.
11.2 If the Force Majeure in question continues for more than 3 months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
12.1 Either party may by notice in writing served on the other terminate the Contract forthwith if the other party is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the defaulting party fails to remedy such breach within 14 days of service of a written notice from the non-defaulting party, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 5.1 is a material breach of the terms of the Contract by the Customer which is not capable of remedy.
12.2 CPP Sales may, by notice in writing served on the Customer, terminate the Contract forthwith if the Customer should become bankrupt or insolvent or have entered into liquidation or into any arrangement with its creditors or take or suffer any similar actions in consequence of a debt; has any distraint, execution or other process levied or enforced on any of its property; ceases to trade; has a change in its senior management and/or control as defined by section 840 Income and Corporation Taxes Act 1988; the equivalent of any of the above occurs to the Customer under the jurisdiction to which the Customer is subject; or CPP Sales reasonably believes that one of the above set of circumstances is about to occur.
12.3 CPP Sales will be entitled to suspend any performance otherwise due to occur following service of a notice specifying a breach under Condition 12.1, until either the breach is remedied or the Contract terminates, whichever occurs first.
12.4 The termination of the Contact howsoever arising is without prejudice to the rights, duties and liabilities of either the Customer or CPP Sales accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination. All sums payable to CPP Sales under the Contract will become due immediately upon termination of the Contract.
13.1 Each party will keep confidential any and all Confidential Information that it may acquire. Neither party will use the Confidential Information for any purpose other than to perform its obligations under the Contract. The parties will ensure that their officers and employees comply with the provisions of this Condition 13.
13.2 The obligations on the parties set out in Condition 13.1 will not apply to any information which: 13.2.1 is publicly available or becomes publicly available through no act or omission of the receiving party; or 13.2.2 the receiving party is required to disclose by order of a court of competent jurisdiction.
14.1 Each right or remedy of CPP Sales under any Contract is without prejudice to any other right or remedy of CPP Sales under this or any other Contract. No failure or delay by CPP Sales to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
14.2 If any Condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
14.3 The Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without CPP Sales' prior written consent.
14.4 Save as set out in Condition 9.11, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
Any notices given hereunder must be in writing and effected by first class pre-paid post, Special Delivery post or facsimile and (subject to proof that such notice was properly addressed and dispatched ) shall be deemed to be received; if delivered by first class post 48 hours after the date of posting; if delivered by Special Delivery when delivery is certified as having taken place; if delivered by facsimile, at the time of transmission provided that, where in the case of transmission by facsimile, such transmission occurs either after 4.00 pm on a Business Day, or on a day other than a Business Day, service will be deemed to occur at 9.00 am on the next following business day (such times being local time at the address of the recipient).
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.