Example Costs Table for Flood Damage Claims
Call Out Including First Hour On Site
|Monday – Friday 8am – 6pm||£120.00|
|Monday – Saturday 6pm – 8am||£180.00|
|Sunday All Day and Bank Holiday||£220.00|
|Additional Hours on Site||Technician|
|Monday – Friday 8am – 6pm||£45.00|
|Monday – Friday 6pm – 6am||£67.50|
|Saturday All Day||£67.50|
|Sunday and Bank Holidays||£90.00|
Call Out (Sewage) First Hour on Site
|Monday – Friday 8am – 6pm|
Monday – Friday 6pm- 8am and Saturdays
|Sunday and Bank Holidays||£300.00|
|Additional Hours On Site (Sewage/ Contaminated water)||Technician|
|Monday- Friday 8am – 6pm (Sewage/Contaminated Water)|
Monday – Friday 6pm- 8am and Saturdays
|£80.00 per hour|
£90.00 per hour
|Sunday and Bank Holidays (Sewage/Contaminated Water)||£110.00 per hour|
Drying Equipment Hire Charges
|Equipment Type||Weekly Charge||Daily Charge|
|Refrigerant Dehumidifier 1200||£95.00||£13.58|
|Low Grain Dehumidifier 1800 / Revolution||£130.00||£18.58|
|Dehumidifier LGR 7000 (Large House & Commercial Properties)||£280.00||£40.00|
|Air Mover / Velo||£60.00||£8.58|
Please note: all equipment is for a minimum of 1-week rental
|Major Water Extraction|
|Truck Mounted Extraction Unit||£150.00 per hour + Technicians Rate|
|Large Submersible Pump||£60.00 per use + Technician Rate|
|Services Visit (Re-visit first ½ hour on site tech rate thereafter)||£90.00|
Swift Cleaning Services Ltd t/a Restorations UK provides its services on the following terms and conditions.
- The meaning of some words used in these terms and conditions
|we, us or our||is a reference to Swift Cleaning Services Ltd t/a Restorations UK;|
|you or your||is a reference to the person to whom we are providing our Services and who is required to pay for the Services we provide;|
|Materials||means any materials, goods, equipment, parts or items we need to buy necessarily in order to perform the Services;|
|Parties||is a reference to both us and you;|
|Premises||means the place where we will provide the Services; and|
|Services||means the advice, assistance, help or provision of equipment we will provide in connection with your requirements. The precise Services we will be providing to you will be stated in the quotation form and as we agree from time to time.|
2. Entering into a legally binding contract
2.1. A contract between you and us will come into being in one of two ways:
2.1.1. when you sign the quotation form we and you will enter into a legally binding contract on the date you sign.
2.1.2. where you and we agree orally that we should provide the Services then there will be a legally binding contract on the date of our oral agreement.
2.2. We suggest that before you sign the quotation or orally agree to us providing Services that you read through these terms and conditions. If you have any questions concerning them please ask us.
2.3. You should keep a copy of these terms and conditions for your records.
3. Providing the Services
3.1. Once we and you have entered into a legally binding contract we will normally start providing the Services to you at the Premises using the Materials straight away or on a date agreed between us without further discussion with you. Occasionally the Services will be provided at some other date or time or be dependent on a number of factors.
3.2. Our aim is to always provide you with the Services:
3.2.1. using reasonable care and skill;
3.2.2. in compliance with commonly accepted practices and standards in our industry;
3.2.3 in compliance with relevant laws and regulations in force at the time we are carry out the Services.
4. Days and times when we normally provide the Services and performance of Services away from the Premises
4.1. Unless we agree otherwise we will provide the Services on normal working days and start work no earlier than 7.00am and finish work no later than 7.00pm.
4.2. The performance of some of the Services may take place away from the Premises. For example, we may be able only to carry out some of the activities in performing the Services other than at your Premises or when you are present.
At the time we perform the Services we may not have all the Materials we need to perform the Services. This may be for a number of reasons such as:
5.1. we have not provided an estimate and cannot reasonably establish what Materials are necessary until we start performing the Services; or
5.2. where we have provided an estimate, it may not have been reasonably possible to establish the need for particular Materials at the time we provided the estimate. The need for the particular Materials may only be revealed when we start performing the Services; or
5.3. whether or not we have provided an estimate, the condition of an item or the area which is the subject of the Services may only become apparent when we start performing the Services and it was not reasonably possible to establish it until that point.
In such cases we may need to buy Materials. We will not charge you for any time spent in obtaining Materials or if we have bought or ordered the wrong Materials.
6.1. Our responsibility to perform the Services by particular dates
We aim to carry out the Services by the dates and times we either agree with you or notify to you. But we cannot guarantee or provide a firm commitment that:
6.1.1. we will start performing the Services by a specified date or time; or
6.1.2. we will complete the performance of all the Services by any specified date or time; or
6.1.3. the performance of any individual part of the Services will be completed by a specified date or time.
6.2 What can happen if we cannot start performing the Services or complete performing the Services
6.2.1. If we do not start or complete performing the Services within a reasonable period from the date(s) we have agreed or notified then you may either choose either to continue to wait until we can start performing the Services or complete performing them or you can cancel the contract.
6.2.2. Where we have started performing the Services and you decide you wish to cancel the contract you will only have to pay for any Services we have performed up to the date of cancellation and for any Materials which we have a legal obligation to pay for. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 14 days of cancellation.
6.2.3. What is a reasonable period of time depends on the types of Services we will be performing and the length of time they will take to perform. For example, if you and we believe that the Services will take only a few hours to perform, then if we fail to start performing the Services within (eg half a day) then you may have the right to cancel. If eg the Services are due to take several weeks to perform, then if we fail to start to perform the Services two weeks after we are due to or we do not perform the Services during a couple of weeks when we were due to, then in such circumstances you may be entitled to cancel the contract.
6.3. Situations or events outside our reasonable control
6.3.1. In addition, there are certain situations or events that occur that are not within our reasonable control (some examples are given in clause 6.3.2 below). Where one of these occurs we will normally attempt to recommence performing the Services as soon as the situation which has stopped us performing the Services has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.
6.3.2. The following are examples of events or situations which are not within in our reasonable control:
a) where weather conditions make it impossible or unsafe for us to perform any of the Services;
b) if the Materials are not delivered on the date or at the time agreed with the supplier of the Materials (and it is not possible to obtain a replacement from an alternative supplier at all or within a reasonable amount of time, or the price charged by the alternative supplier is excessively higher than by the original supplier if ordered at short notice);
c) where you make a change in the Services you wish us to perform (and this results in, for example, us having to do further work or wait for new or different Materials);
d) where we have to wait for other providers of services (who have been engaged by you) to complete their work before we are able to perform the Services (or the relevant part of the Services dependent on the other provider if ordered at short notice);
e) where we are unable to gain access to the Premises to carry out the Services at the times and dates we have agreed with you;
f) where the areas in the Premises have not be readied by you as we and you have agreed in order for us to perform the Services; or
g) for other some unforeseen or unavoidable event or situation which is beyond our control.
6.3.3. If the delay in us recommencing performing the Services will be excessive then we will offer you the option of either:
a) continuing to wait until we are able to recommence performing the Services. If you are required to make any payments during this period (for example if we and you have agreed that you will pay us in staged amounts) then we will not require you to make any of the payments required until we are able to recommence performing the Services; or
b) allowing you cancel the contract. If you choose this option then you will only have to pay for any Services we have performed up to the date of cancellation and for any Materials for which we have a legal obligation to pay. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 14 days of cancellation.
7. Price, estimates and payment
7.1. Our charges based on time spent
We normally charge for our Services on a time basis dependent upon the type of Services required. We charge for each hour we spend in providing our Services and for each day or week we provide Materials. Our rates for performing the Services are set out in our fee schedule provided to you. We shall be entitled to charge overtime for time worked beyond 7.00pm on normal working days.
7.2. Our charges based on an estimate
7.2.1. If we provide an estimate then we will charge you the amount stated in the estimate rather than a charge based on the time taken in performing the Services. Note: we only provide estimates and not quotations or binding indications of how much we will charge. Estimates are normally valid for a period of 30 days from the date they are given.
As we provide an estimate we may need to charge you a higher amount than stated in the estimate. This can occur for a number of reasons, in particular where:
a) what you require us to do changes, or the amount of work or Services you require us to provide increases or is different to what we and you agreed before we started performing the Services and as stated in the estimate; or
b) when we start performing the Services it becomes apparent that the amount of Services we will need to perform or the type of work that is involved is different to what we agreed before we started performing the Services and we could not reasonably foresee this before we started performing the Services.
7.2.3. Where the amount of work involved is greater than that stated in an estimate (as set out in clause 7.2.2) the following will happen:
a) if the amount of extra time we need to spend to finish performing the Services will mean that the extra amount payable by you will not exceed 20% of the amount stated in the estimate, then we will carry on providing and completing the Services without contacting you and obtaining your agreement;
b) otherwise we will not continue performing the Services and we will seek your approval to the extra amount that you will need to pay, unless:
(i) it is not possible to contact you within a reasonable time; or
(ii) it is not safe not to carry out and finish performing the Services (for example, your goods or premises may be left in a dangerous condition or unprotected from theft if the Services are not completed).
7.3. When payment is required
Payment for our Services and the Materials is normally made in two ways, either:
7.3.1. at the time we finish performing the Services; or
7.3.2. in a number of staged payments, often involving:
a) the payment of a deposit before we commence performing the Services, the deposit will be 30% of the total estimate given; and
b) the payment of the remaining amount we will be charging you either on completion of the Services or in a number of fixed payments paid at regular periods as specified in order form.
Which option we will use will be indicated on the quotation form. Payment must be made within 14 days of our final invoice being submitted.
All amounts stated (whether orally or in writing) are exclusive of VAT, which will be added at the rate currently in force.
7.5. If you do not pay when required to
If you fail to make payment by the date or time we and you agree we may:
7.5.1. charge you interest (at the Bank of England’s base interest rate plus 5%) on any outstanding amounts if those outstanding amounts remain unpaid for more than 14 days from the date of our invoice or when we asked you first to pay them; and/or
7.5.1. if the amounts not paid represent more than 10% of the total value of the Services we are to perform for you, and there remain some Services which we have not yet performed, then we may suspend performing the remaining Services until you make payment.
7.6. Where you seek to not pay amounts due to us
You will not refuse to pay any amount owing to us where there is only a minor or inconsequential defect or error in the performance of the Services. You will be entitled only to refuse to pay no more than a proportionate amount of any amount due.
7.7. You will remain personally liable to pay our charges irrespective of whether you have an insurance policy in place to insure your losses.
7.8. You will remain personally liable to pay our charges irrespective of whether you have signed our quote form personally or whether it is signed on your behalf by a loss adjuster.
8. Your Obligations
8.1. You shall:
8.1.1. Keep your insurance policy in place and notify your insurers in accordance with the terms of your insurance policy, and in any event as soon as is reasonably practicable;
8.1.2. Provide us with your claim approvals number;
8.1.3. Execute a letter of assignment;
8.1.4. Notify your insurer of this agreement and the letter of assignment;
8.1.5. Ensure that the terms of the order and any information it contains are complete and accurate;
8.1.6. Co-operate with us in all matters relating to our provision of the Services;
8.1.7. Provide us, our employees, agents, consultants and contractors with access to your Premises as reasonably required to enable us to perform the Services;
8.1.8. Provide us with such information and materials as we may reasonably require in order to supply the Services;
8.1.9. Prepare your Premises for our supply of Services;
8.1.10. Keep and maintain all materials, equipment, documents and other property belonging to us at your Premises in safe custody;
8.1.11. Maintain our Materials or equipment in good conditions until returned to us; and
8.1.12. Not dispose of or use our Materials or equipment other than in accordance with our written instruction.
8.2 If our performance of the Services is prevented or delayed by any act or omission by you of failure by you to perform any of your obligations set out at clause 8.1:
8.2.1. We shall without limiting our other rights or remedies under this agreement have the right to suspend performance of the Services until you remedy your default;
8.2.2. We shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our suspension of Services in accordance with clause 8.2.1;
8.2.3. You shall reimburse us on written demand for an costs or losses sustained or incurred by us arising directly or indirectly from your default.
8.3. You confirm that you agree to assign to us such portion of the proceed of your insurance policy as shall be required to pay for our Services and you authorise your insurance company to make payment directly to us. Should direct payment not be possible you authorise and direct your insurer to name us as additional loss payee.
9. Exclusion and limitation of liability
9.1. We do not exclude or limit liability for our negligence or negligent omission which causes you personal injury or results in death.
9.2. We shall only be liable for any loss or damage suffered by you which is a reasonably foreseeable consequence of a breach by us of this contract. In the event that any loss or damage suffered by you relates to your business activities or use of the Premises for commercial purposes then we exclude all liability for any business loss and in particular we exclude all liability for loss of profits or other economic loss arising out of a breach of this contract.
9.3. You understand that any equipment we provide for your use such as dehumidifiers, airmovers, submersible pumps and generators may be dangerous and cause harm if used incorrectly. We will provide you with instruction and demonstration of use of any such equipment but hold no liability should you use the equipment incorrectly thereafter.
10. Communicating with us
10.1. You can telephone us at 01252 874866.
10.2. However, for important matters we suggest that you use writing and send any communications by post to Unit 2 Blackbushe Business Village Park, Yateley, Hampshire, GU46 6GA (or by email to email@example.com).
11. Cancellation by you
11.1. Once we and you enter into a binding contract you will normally not be able to cancel the contract, except where we agree or as otherwise provided for in this contract or by law.
11.2. If we agree to cancel then you will be responsible for the cost of:
11.2.1. any of our time in performing the Services up to the date we stop providing the Services;
11.2.2. any Materials we are contractually committed to buying up to the date of termination (whether or not we need to pay for them before or after the date the contract between us and you is cancelled). Any Materials we have purchased (but not used in performing the Services) will be delivered to you.
11.3. In the circumstances stated in clause 10.2 we will first deduct the amounts for which you are responsible from any deposit you have paid. Any remaining deposit will be returned to you. If the amount owing is greater than the deposit we will return invoice you for the amount in excess of the deposit.
11.4. If you:
11.4.1. purport to cancel the contract; or
11.4.2. give notice purporting to cancel; or
11.4.3. otherwise do not fulfil your obligations (such as by not paying any sums due to be paid to us) in a way which amounts to you cancelling the contract, we do not have to accept your cancellation except as provided in clause 10.2 or by law or as otherwise provided for in this contract. However, we may choose to accept cancellation, and if we choose to do so you will be required to pay to us a reasonable amount for the losses and costs (including loss of profit) we have suffered. If you have paid a deposit, this will be retained and if our reasonable losses and costs (including loss of profit) are greater than the deposit we have retained we will require you to pay for our losses and costs in excess of the deposit retained. You shall return to us immediately all materials and equipment provided to you.
12. Amendments to the contract terms and conditions
We will have the right to amend the terms and conditions of this contract where:
12.1. we need to do so in order to comply with changes in the law or for regulatory reasons; or
12.2. we are changing the rates we charge for the provision of Services as provided for in clause 7;
12.3. we need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long as such correction is minor and does not materially affect the contract.
Where we are making any amendment we will give you 30 days’ prior notice (unless the contract is terminated before that period).
13. Contacting each other
If you wish to send us any notice or letter then it needs to be sent to the address in clause 9.2 and should be marked for the attention of the Managing Director If we wish to send you a letter or notice we will use the address you have given in the quote form.
14. Contracts (Rights of Third Parties) Act 1999
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
15. Law and jurisdiction
This contract shall be governed and construed by the law of England and you and we agree to submit to the jurisdiction of the courts of England and Wales.
- Swift Cleaning Services Ltd t/a Restorations UK a company incorporated in England and Wales under company number 04481859 and whose registered office is at Unit 2 Blackbushe Business, Village Blackbushe Business, Park Yateley, Hampshire, GU46 6GA (the Company)
- ____ a company incorporated in England and Wales under company number [number] and whose registered office is at ____ (the Customer) and
a) The Customer wishes to receive advice, recommendations and services in connection with fire and flood restoration.
b) The Company has the skills, background and experience in providing advice, recommendations and services in connection with fire and flood restoration.
c) The Company is willing to provide the Company’s Services (as defined below) and the Customer wishes to receive the Company’s Services, all subject to the provisions of this Agreement.
THE PARTIES AGREE
- Definitions and interpretation
In this Agreement:
|Company’s Services||means the services, including the deliverables, provided to the Customer by the Company as set out in the order form/estimate/quotation;|
|Completion Date||means [date] or such other date as the Parties may agree;|
|Reports||means all reports, documentation, presentations, software or drawing in whatever format that the Company shall or may create or deliver to the Customer as part of the Company’s Services provided by the Company; and|
|Specification Document||has the meanings given in clause 2.2 and the document attached to this Agreement as the Schedule.|
In this Agreement unless the context otherwise requires:
1.2.1. words importing any gender include every gender;
1.2.2. words importing the singular number include the plural number and vice versa;
1.2.3. words importing persons include firms, companies and corporations and vice versa;
1.2.4. references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
1.2.5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
1.2.6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
1.2.7. the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
1.2.8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
1.2.9. where the word including is used in this Agreement, it shall be understood as meaning including without limitation.
2. Company’s services
2.1. The Company shall provide the Company’s Services to the Customer, subject to the provisions of this Agreement.
2.2. At the commencement of the Company’s Services, the Company shall submit to the Customer a specification for the Company’s Services. The specification shall specify the Company’s Services to be undertaken, the time estimates for the provision of the Company’s Services and the fees payable (Specification Document).
2.3. On receipt of the Specification Document the Customer will sign a copy and return that copy to the Company to signify the Customer’s agreement as to the Company’s Services to be provided and the fees payable to the Company. The Customer acknowledges and agrees that no Company’s Services (other than the preparation of the Specification Document) will be provided until the Company has received the signed copy of the Specification Document. The Customer shall sign and return a copy of the Specification within 7 days of the Company providing a copy to the Customer.
2.4. The Specification Document may be varied, or added to, from time to time, in writing and signed by both Parties. The changes shall be clearly identified, together with the additional or different level of fees to be paid by the Customer.
3. Calculation of time
3.1. For fees calculated on a daily rate: day shall mean a period of 12 hours inclusive of travel time both to the Customer’s site and from the Customer’s site. Time spent in excess of a 12 hour period shall be charged at the pro-rated rate for a day.
3.2. For fees calculated by reference to an hourly rate: for time spent which is less than a complete hour, the Customer shall be charged on a pro-rated basis.
4. Performance of the Company’s Services
4.1. The Parties shall agree the time and place (if not set out in the Specification Document) for performance of the Company’s Services, subject to the availability of the Company’s staff and agents.
4.2. The Company shall use reasonable endeavours to complete the Company’s Services by the Completion Date or meet such other dates as agreed by the Parties.
4.3. Time shall not be of the essence:
4.3.1. for any times when the Company’s Services are to be performed, whether given or agreed to by the Company; or
4.3.2. for the length of time that any of the Company’s Services are to take, whether set out in the Specification Document or otherwise; or
4.3.3. for the Completion Date or such other date as agreed by the Parties.
5. Fee and payment
5.1. Payment of the Fee for the Company’s Services shall be made within 14 days of the date of invoice.
5.2. Payment of the Fee may, at the Company’s discretion, be required to be paid in stages involving:
5.2.1. The payment of a deposit before the Company commences the provision of Services; and
5.2.2. The payment of the remaining amount either on completion of the Services or in a number of fixed payments paid at regular periods.
5.3. All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Customer.
5.4. If payment of the Fee is not received by any due date, the Seller shall be entitled (without prejudice to any other right or remedy):
5.4.1. to charge interest on the outstanding amount at the rate of 8% a year above the base lending rate of the Bank of England plc, accruing daily;
5.4.2. to require that the Customer make a payment in advance of any Company’s Services or part of the Company’s Services not yet supplied;
5.4.3. not to provide any further Company’s Services or part of the Company’s Services; or
5.4.4. not to provide any Reports due on completion of the Company’s Services (until such payment is made).
5.5. All payments shall quote the Company’s invoice number and other reference numbers including (where applicable) the Specification Document reference number.
5.6. The Fee may be varied from the Specification Document if the Company advises that further fees are required in which case the Specification Document shall be treated as having been amended to include further fees approved by the Customer.
5.7. The Customer remains liable to pay the Company’s Fee irrespective of whether the Customer has an insurance policy in place to insure its losses.
5.8. The Customer will remain liable to pay the Company’s Fee irrespective of whether the Customer has signed this Agreement or whether it is signed on its behalf by a loss adjuster.
6. The Customer’s obligations
6.1. The Customer acknowledges and agrees that for the Supplier to be able to provide the Company’s Services the Customer shall:
6.1.1. co-operate with the Company as the Company reasonably requires;
6.1.2. provide to the Company such information and documentation as the Company reasonably requires;
6.1.3. make available to the Company the facilities, resources, working space and staff as specified in the Specification Document and/or as the Company reasonably requires from time-to-time;
6.1.4. instruct the Customer’s staff and agents to co-operate and assist the Company;
6.1.5. maintain an appropriate insurance policy and notify its insurers in accordance with the terms of that insurance policy, and in any event as soon as is reasonably practicable;
6.1.6. provide the Company with its claim approvals number;
6.1.7. execute a letter of assignment as provided by the Company;
6.1.8. notify its insurer of this agreement and the letter of assignment;
6.1.9. keep and maintain all materials, equipment, documents and other property belonging to the Company at its premises in safe custody;
6.1.10. maintain the Company’s materials or equipment in good conditions until returned to the Company; and
6.1.11. not dispose of or use the Company’s materials or equipment other than in accordance with the Company’s written instruction.
6.2. The Company may charge the Customer for any additional reasonable costs and expenses incurred by the Company caused by changes in the Customer’s instructions, failure to provide instructions, or failure to comply with clause 6.1.
6.3. The Customer agrees to assign to the Company such portion of the proceed of its insurance policy as shall be required to pay for the Company’s Services and the Customer authorises its insurance company to make payment directly to the Company. Should direct payment not be possible the Customer will direct its insurer to name the Company as additional loss payee.
7. Reporting requirements
7.1. The Specification Document shall set out the Reports that are to be produced during or on completion of the Company’s Services (Reports).
7.2. Where required in the Specification Document to provide Reports, the Company shall supply one copy of the Reports to the Customer. The Company grants to the Customer a non-exclusive licence (without the right to sub-licence) to use the Reports for the Purpose. The Company shall own all copyright, database and other intellectual property rights in the Reports.
8. Protection of confidential information
8.1. Each Party (Receiving Party) shall keep the confidential information of the other Party (Supplying Party) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause 8, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
8.2. The obligations of clause 8.1 shall not apply to any information which:
8.2.1. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
8.2.2. is, or becomes, publicly available through no fault of the Receiving Party;
8.2.3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
8.2.4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
8.2.5. is required to be disclosed by order of a court of competent jurisdiction.
8.3. This clause 8 shall survive termination of this Agreement for a period of 3 years.
9 Warranties, liability and indemnities
9.1. The Company warrants that it will use reasonable care and skill in performing the Company’s Services to a standard which conforms to generally accepted industry standards and practices.
9.2. If any part of the Company’s Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Customer (if the request is given within 6 months of the Completion Date), the Company will re-perform the relevant part of the Company’s Services, always subject to clauses 9.4 and 9.5 below.
9.3. The Company expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given Completion Date or any other date.
9.4. Except in the case of death or personal injury caused by the Company’s negligence, the Company’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to the Company under this Agreement. The provisions of this clause 9.4 shall not apply to clause 9.6.
9.5. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 9.5 shall not apply to clause 9.6.
9.6. The Customer shall indemnify and hold harmless the Company from and against all Claims and Losses arising from loss, damage, liability, injury to the Company employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Customer by the Company, its employees or consultants, or supplied to the Company by the Customer within or without the scope of this Agreement. Claims shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and Losses shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
9.7. The Customer understands that any equipment provided by the Company for their use such as dehumidifiers, airmovers, submersible pumps and generators may be dangerous and cause harm if used incorrectly. The Company will provide instruction and demonstration of use of any such equipment but hold no liability should the Customer use the equipment incorrectly thereafter.
9.8. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. Nothing in this Agreement excludes liability for fraud.
10.1. The Supplier may terminate this Agreement if:
10.1.1. the Customer does not sign the Specification Document and upon the Supplier giving the Customer 7 days’ notice following the end of the period specified in clause 2.3;
10.1.2. the Customer does not pay the Fees by the dates specified in the invoice(s) or elsewhere and upon the Supplier giving the Customer 7 days’ notice following the date specified for the payment of the invoice(s) in clause 5.1.
10.2. Without prejudice to other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party (Other Party), the notice taking effect as specified in the notice:
10.2.1. if the Other Party is in material breach of its obligations under this Agreement, and where a breach is capable of remedy within [number] days, the breach is not remedied within 14 days by the Other Party receiving notice specifying the breach and requiring the breach to be remedied; or
10.2.2. if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
11.1. Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
11.4. Entire agreement
This Agreement contains the whole agreement between the parties in respect of the Supply of the Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by the Company in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.6. Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
11.7. Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
No Party shall issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
11.10.1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or email (confirmed by first class mail or air mail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant facsimile number set out below, or such other address or facsimile number as that Party may from time to time notify to the other Party in accordance with this clause.
11.10.2. Notices sent as above shall be deemed to have been received 3 working days after the day of posting (in the case of inland first class mail), or 7 working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted).
11.10.3. To prove notice was given it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
11.11. Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
11.12. Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
AGREED by the parties