- DEFINITIONS AND INTERPRETATION:
1.1 The following terms as used herein shall have the meaning as stated:
Charges: the charges, costs, disbursements and expenses referenced in the Order Confirmation, or subsequently notified to the Customer;
Conditions: these terms and conditions;
Confidential Information: information belonging or pertaining to either party to the Contract and concerning the business and affairs of that party;
Contract: a contract between ELTL and the Customer for the supply of Services, as evidenced by the Order Confirmation;
Customer: the party named as the Customer in the Order Confirmation;
Effective Date: the date on which the Order Confirmation is issued by ELTL;
Goods: any goods to be provided in conjunction with the Services;
Initial Contract Term: As defined in the Order Confirmation.
Order Confirmation: ELTL’s written acknowledgment of the Customer’s instructions to ELTL to undertake services for the Customer;
ELTL: EL Techniques Limited;
Services: the services to be provided by ELTL which are referenced in the Order Confirmation;
Site: the place where the Services are to be performed;
Supplies: the Services and Goods.
- APPLICATION OF CONDITIONS:
2.1 ELTL and the Customer shall each be deemed to be a party for the purposes of these Conditions and the term parties shall be construed accordingly.
2.2 No Contract shall come into existence other than in accordance with the Order Confirmation.
2.3 The Contract shall be governed by these Conditions to the exclusion of any other terms or conditions.
- OBLIGATIONS OF THE PARTIES:
3.1 ELTL will carry out the Services set out in the Order Confirmation. The Customer acknowledges that:
(a) any changes, alterations or additions to the Services or any related matter will be charged at ELTL’s applicable rates; and
(b) any performance timescales given by ELTL are estimates only and ELTL shall not be liable for any delay in performing the Services.
3.2 ELTL warrants that the Services will be performed with reasonable skill and care.
3.3 The Customer shall notify ELTL of any claim under the Contract as soon as reasonably possible and in any event within 48 hours of the occurrence giving rise to the alleged loss or damage.
3.4 The Customer shall:
(a) provide all necessary information to ELTL in relation to all matters affecting the Services, including information related to access to and use and management of the Site;
(b) ensure that all reasonable and practical measures are taken to enable ELTL to undertake the Services at the Site and shall provide without charge such access and facilities as ELTL may reasonably require; and
(c) ensure that the Site is safe and comply with all obligations required by UK and EU health and safety legislation; and
(d) ensure that the provision of the Services by ELTL will not at any time contravene any statutory or other regulation, order or bylaw affecting the security of the Site or any business carried out at the Site.
3.5 If ELTL is unable to perform the Services in whole or in part due to any act or omission directly or indirectly attributable to the Customer, then ELTL shall be entitled to be paid for the Services in full or in part, as appropriate.
- INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL INFORMATION:
4.1 All intellectual property rights in relation to the Supplies shall, as and between ELTL and the Customer, vest in and belong solely and exclusively to ELTL.
4.2 Where the Supplies are to be provided in accordance with any specification submitted by the Customer, the Customer warrants that the specification will not infringe the intellectual property rights of any third party and the Customer shall indemnify and hold ELTL harmless against any relevant third party claim.
4.3 Each party agrees to use Confidential Information solely for the purposes of fulfilling its obligations hereunder. Neither party shall disclose Confidential Information to any other person without the other party’s prior written consent except when such disclosure is necessary for the fulfilment of its obligations hereunder or is otherwise required by law.
- CHARGES AND PAYMENT:
5.1 The Charges payable under the Contract shall be those which are referenced in the Order Confirmation or subsequently notified to the Customer and all such Charges are exclusive of Value Added Tax.
5.2 The Customer shall pay ELTL’s invoices in accordance with the payment profile set out in the Order Confirmation.
5.3 If the Customer fails to pay to ELTL any sum due to ELTL on or before the date that such sum falls due for payment, then ELTL shall be entitled to charge the Customer interest thereon at a rate of five per cent (5%) per annum above the Bank of England’s Base Rate or, where applicable, the allowable rate of interest chargeable on commercial debts (whichever is the higher) from the date that such sum falls due until the same has been paid to ELTL.
5.4 Without limiting any other right or remedy available to ELTL (up to and including termination of the Contract), ELTL reserves the right to suspend any further work under the Contract if any Charges payable to ELTL have not been paid in full.
- WARRANTIES AND LIABILITY:
6.1 The following provisions set out ELTL’s financial liability to the Customer in respect of:
(a) any breach of these Conditions;
(b) any use made by the Customer of any of the Supplies; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
6.2 Except for the warranty given by ELTL in clause 3.2, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982 and section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
6.3 Nothing in these Conditions excludes or limits ELTL’s liability:
(a) for death or personal injury caused by ELTL’s negligence; or
(b) for any matter for which it would be illegal for ELTL to
exclude or attempt to exclude ELTL’s liability; or
(c) for fraud or fraudulent misrepresentation.
6.4 Subject to clause 6.2 and clause 6.3:
(a) ELTL’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of the Contract shall be limited to the amount of the Charges paid by the Customer for the Supplies; and
(b) ELTL shall not in any event be liable to the Customer for loss of profit, economic loss, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- TERMINATION:
7.1 Either party shall be entitled by notice in writing to the other party at any time forthwith to terminate the Contract if the other party is in material or persistent breach of the Contract or if the other party becomes subject to insolvency proceedings.
7.2 Any equipment or materials used by ELTL in performing the Services may be removed by ELTL from the Site following termination of the Contract.
- NON-SOLICITATION:
8.1 The Customer shall not at any time during the Contract or for a period of 12 months after its termination offer employment to or employ a person engaged in the provision of the Services.
8.2 In the event that the Customer breaches clause 8.1 in relation to any person, the Customer shall pay to ELTL in respect of each such person on demand a sum equivalent to 15% of the salary and other remuneration of such person over a period of 12 months.
- FORCE MAJEURE:
ELTL shall not be liable to the Customer for any loss or damage experienced by the Customer as a direct or indirect result of the provision of the Supplies by ELTL being prevented, restricted, hindered or delayed by any circumstances outside the control of ELTL.
- GENERAL:
10.1 The Contract constitutes the entire agreement between the parties.
10.2 ELTL may subcontract all or any of its obligations under the Contract.
10.3 No variation to the Contract shall be effective unless agreed in writing by the parties hereto.
10.4 In the event that any part of the Contract shall be held to be unenforceable by a court of competent jurisdiction, then the remainder thereof shall remain in full force and effect.
10.5 The Contract shall be construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts.