1.1 The definitions and rules of interpretation apply to these terms and conditions (Conditions).
Contract: the Customer’s acceptance of a Quotation for Services by S-Tech under condition 2.2.
Customer's Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Engineer: means the representative of S-Tech.
Goods: any goods to be supplied to the Customer by S-Tech.
Quotation: the estimate for the Services provided by S-Tech to the Customer.
Services: the services to be provided by S-Techs under the Quotation together with any other services which S-Tech provides, or agrees to provide to the Customer.
S-Tech: S-Tech Systems Ltd.
S-Tech’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by S-Tech or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer which includes for the avoidance of doubt any equipment which S-Tech has hired from any other third party.
S-Tech VAT: value added tax chargeable under English law for the time being and any similar additional tax.
2. Application of conditions
2.1 These Conditions shall come into force on S-Tech’s acceptance of the Customer’s order:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Quotation, Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer's purchase order, or the Customer's acceptance of a Quotation for Services by S-Tech, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by S-Tech other than:
(a) by a written acknowledgement issued and executed by S-Tech; or
(b) (if earlier) by S-Tech starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 S-Tech reserve the right at any time to refuse orders and decline work at its own discretion.
2.4 Quotations are given by S-Tech on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that S-Tech has not previously withdrawn it.
3. Commencement Dates
3.1 Dates for commencement of the Services are estimated start dates only and time shall not be of the essence for performance of the Services and shall not infer a continual obligation to commence the Services on that date.
3.2 S-Tech shall not be liable for any direct or indirect or consequential loss caused directly or indirectly by any delay nor shall any delay to the date of commencement permit the Customer to terminate their Quotation once it has been accepted by S-Tech.
3.3 S-Tech reserve the right to use an Engineer of their choice and at its sole discretion.
4. Customer's obligations
4.1 The Customer shall:
(a) co-operate with S-Tech in all matters relating to the Services;
(b) provide S-Tech, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data, toilet facilities, electrical power and other facilities as required by S-Tech;
(c) provide to S-Tech, in a timely manner, such information as S-Tech may require and ensure that it is accurate in all material respects;
)d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Services at those premises, and informing S-Tech of all of the Customer's obligations and actions under this condition 4.1(d);
(e) inform S-Tech of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, in all cases before the date on which the Services are to start;
(g) keep maintain and insure S-Tech’s’ Equipment in good condition and in accordance with S-Tech’s ‘instructions and not to dispose of or use S-Tech’s Equipment other than in accordance with S-Tech’s instructions or authorisation.
4.2 If S-Tech performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, S-Tech shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly, indirectly or consequential from such prevention or delay.
4.3 The Customer shall be liable to pay to S-Tec, on demand, all reasonable costs, charges or losses sustained or incurred by S-Tech (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to S-Tech confirming such costs, charges and losses to the Customer in writing.
4.4 The Customer shall not, without the prior written consent of S-Tech, at any time from the date of the Contract to the expiry of 24 months after the last date of supply of the Services, solicit or entice away from S-Tech or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of S-Tech in the provision of the Services.
5. Charges and payment
5.1 In consideration of the provision of the Services by S-Tech, the Customer shall pay the charges as set out in the Quotation.
5.2 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with S-Tech’s standard hourly fee rates and as amended from time to time;
(b) all charges quoted to the Customer shall be exclusive of VAT, which S-Tech shall add to its invoices at the appropriate rate;
(c) the cost of materials is in addition to the hourly rate.
5.3 Where Services are provided for a fixed price, the total price for the Services shall be the amount set out on the Quotation. S-Tech may require payment (without deduction or set-off) in instalments, as set in the Quotation. At the end of a period specified in the Quotation, S-Tech shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT including materials ordered or provided by S-Tech for incorporation into the Services by S-Tech but not yet incorporated.
5.4 If after the Order has been accepted by S-Tech:-
(a) the Customer instructs S-Tech to carry out additional works which are not included in the Quotation; or
(b) there is an increase in the price of materials;
(c) it is discovered that additional works need to be carried out by S-Tech which were not anticipated by S-Tech when the Quotation was accepted;
(d) S-Tech have made a manifest error in the Quotation or a typographical or clerical error has occurred in the Quotation;
S-Tech reserve the right to revise the Quotation.
5.5 The Customer shall pay each invoice submitted to it by S-Tech, in full and in cleared funds in accordance with the payment dates set out in the Quotation or in the absence of such date 14 days from the date of the invoice to a bank account nominated in writing by S-Tech.
5.6 If the Customer wishes to raise a query on the invoice submitted by Diverse it must do so by writing to a Director of Diverse within a period of 14 days from the date of the invoice. For the avoidance of doubt after this period the invoice will be deemed to have been accepted by the Customer.
5.7 Without prejudice to any other right or remedy that it may have, S-Tech may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Lloyds TSB Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. S-Tech may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
5.8 Time for payment shall be of the essence of the Contract.
5.9 All sums payable to S-Tech under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.9 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
5.10 S-Tech may, without prejudice to any other rights it may have, set off any liability of the Customer to S-Tech against any liability of S-Tech to the Customer.
6. Limitation of liability
6.1 This condition 6 sets out the entire financial liability of S-Tech (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
6.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.3 Nothing in these Conditions limits or excludes the liability of Diverse:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by S-Tech; or
(c) for any liability incurred by the Customer as a result of any breach by S-Tech of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
6.4 Subject to condition 6.2 and condition 6.3
(a) S-Tech shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) S-Tech’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
6.5 In the event that the Customer provides their own equipment systems or cabling etc., clauses 6.1, 6.2, 6.3 and 6.4 will not apply and S-Tech shall not be responsible for any claims, damages, losses, expenses, costs and other liabilities whatsoever.
7.1 Without prejudice to any other rights or remedies which S-Tech may have, it may terminate the Contract without liability to the Customer immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment; or
(b) the other party commits a breach of any of the terms of the Contract; or
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 8.1(c) to condition 8.1.(i) condition 8.1(g) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
7.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to S-Tech all of S-Tech’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, S-Tech may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall return all of S-Tech’s Equipment. If the Customer fails to do so, then S-Tech enter the Customer's premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
7.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) Condition 6;
(b) Condition 7; and
(c) Condition 18.
8.1 All Goods shall be at the Customers risk as from the point of delivery to the Customer.
8.2 In spite of delivery having been made property in the Goods shall not pass from S-Tech until:
(a) the Customer shall have paid the charges in accordance with clause 5 in full; and
(b) no other sums whatever shall be due from the Customer to S-Tech.
8.3 Until property in the Goods passes to the Customer in accordance with clause 8.2 the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for S-Tech. The Customer shall store the Goods (at no cost to S-Tech) separately from all other goods in its possession and marked in such a way that they are clearly identified as S-Tech’s property.
8.4 S-Tech shall be entitled to recover payment from the Customer notwithstanding that property in any of the Goods has not passed from S-Tech.
8.5 Until such time as property in the Goods passes from S-Tech the Customer shall upon request deliver up such of the Goods to the Seller. If the Customer fails to do so S-Tech may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods.
8.6 The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Customer does so all sums whatever owing by the Customer to S-Tech shall forthwith become due and payable.
8.7 The Customer shall insure and keep insured the Goods to the full cost as set out in the Quotation against ‘all risks’ to the reasonable satisfaction of S-Tech until the date that property in the Goods passes from S-Tech and shall whenever requested by S-Tech produce a copy of the policy of insurance. Without prejudice to the other rights of S-Tech if the Customer fails to do so all sums whatever owing by the Customer to S-Tech shall forthwith become due and payable.
9. Force majeure
S-Tech shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of S-Tech or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of S-Tech or subcontractors.
10.1 S-Tech may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
10.2 Subject to condition 10.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
11.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
11.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable and, to the greatest extent possible, achieves the parties' original commercial intention.
13. Entire agreement
13.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
13.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as provided in the Contract.
13.3 Nothing in this condition shall limit or exclude any liability for fraud.
14.1 The Customer shall not, without the prior written consent of S-Tech, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.
14.2 S-Tech may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
14.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
15. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16. Rights of third parties
A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in Schedule 2, or as otherwise specified by the relevant party by notice in writing to the other party.
17.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in Schedule 2 or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
17.3 This condition 17 shall not apply to the service of any in any proceedings or other documents in any legal action.
17.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
18. Governing law and jurisdiction
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
18.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.