TD Cooling Services Limited Standard Terms and Conditions of Sale
Ref: TDC082021 Issue: 1
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
1.1 In these Conditions:
CONDITIONS mean the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and TDC.
CONTRACT means the contract for the purchase and performance of the Service consisting of the contractual documentation as disclosed in Condition 2.1, the Conditions and any schedules.
CUSTOMER means the person who accepts a quotation of TDC or the performance of the Service or whose order for the Service is accepted by TDC.
GOODS means the Goods (including any instalment of the Goods or any parts for them) which TDC is to supply in accordance with these Conditions including Goods supplied
as part of the Service.
INTELLECTUAL PROPERTY means all inventions, patents, utility models, designs (both registered or unregistered and including rights relating to semi-conductor topographies), database rights, copyright and trade marks (both registered and unregistered), together with all rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature.
LOSS means any costs, claims, proceedings, demands, damages, compensation, awards, expenses (including professional) or other loss (including special, consequential, loss of
profit and other economic loss) whatsoever;
REPORTS mean any reports, advice, analysis and methodologies and other similar materials which may be generated, written or produced as part of the Services.
SERVICE means the Service(s) (including any parts of the Service) which TDC is to supply in accordance with these Conditions together with any Goods that TDC provides as part, or ancillary to, of the Service(s).
TDC means TD Cooling Services Limited (registered in England and Wales under number11672599).
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 In these Conditions words importing the singular only shall include the plural and vice versa.
2 BASIS OF THE CONTRACT
2.1 The Customer’s purchase order, or the Customer’s acceptance of a quotation for the Services by TDC, constitutes an offer by the Customer to purchase the Services specified in it on the Conditions. No offer placed by the Customer shall be accepted by TDC other than: 2.1.1 by a written confirmation or acceptance issued and executed by TDC’s authorised representative; or
2.1.2 (if earlier) by TDC providing the Services, when the Contract will be established.
The Conditions will apply to and be incorporated into the Contract and shall prevail over any terms or conditions contained, or referred to, in the Customer’s purchase order,
confirmation of order, acceptance of a quotation or specification, or any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
2.2 Quotations are given by TDC on the basis that no contract shall come into existence except in accordance with Condition 2.1. Any quotation is valid for a period of 30 days from its date, provided that TDC has not previously withdrawn it.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued
by TDC shall be subject to correction both before or after the Contract is made without any liability on the part of TDC.
2.4 Notwithstanding Condition 2.1, where the Services consist (in whole or part) of Goods manufactured by third parties, then the Contract shall consist of these Conditions together with the terms and conditions of the relevant third party so far as they relate to the use of the Goods.
3 CUSTOMER’S OBLIGATIONS
3.1 The Customer shall:
3.1.1 be responsible to TDC for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer;
3.1.2 be responsible for giving TDC any necessary information relating to the Service within a sufficient time to enable TDC to perform the Contract in accordance with its terms, and ensure that such information is complete and accurate in all material respects;
3.1.3 co-operate with TDC in all matters relating to the Services; and
3.1.4 provide TDC, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by TDC.
3.3 The Customer agrees to act in a timely manner and to provide properly competent and qualified personnel with respect to its obligations under the Contract and to any tasks to be undertaken by it, whether expressly set out in the Contract or otherwise reasonably requested of it by TDC. The Services are provided on the assumption that the Customer and its agents will fulfil their obligations and tasks on time and as stated.
3.4 The description of, and any specification for, the Service shall be those set out in TDC’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by TDC).
3.5 Where the Service is to be provided by TDC in accordance with a specification submitted by the Customer, the Customer shall indemnify TDC against all Loss which may be suffered or incurred by TDC in connection with or paid or agreed to be paid by TDC in settlement of any claim for infringement of the Intellectual Property rights of any other person which results from TDC’s use of the Customer’s specification.
3.6 TDC reserves the right to make any changes in the specification of the Services which are required to conform with any applicable safety or other regulatory requirements or which do not materially affect their quality or performance.
3.7 TDC shall be entitled to change the date of performance of the Services at any time up to 48 hours prior to the date on which the Services are due to be performed by informing the Customer verbally or in writing.
3.8 Notwithstanding Conditions 3.7, no order which has been accepted by TDC may be cancelled by the Customer except with the agreement in writing of TDC and on terms that the Customer shall indemnify TDC in full against all Losses incurred by TDC as a result of cancellation.
4.1 Any Reports supplied by TDC to the Customer, or specifically produced by TDC for the Customer in connection with the Contract together with the Intellectual Property in the Reports shall be the exclusive property of TDC.
4.3 The Customer shall have a perpetual, irrevocable licence to use the Reports for its own internal purposes and as otherwise provided by, and subject to, the provisions of this Condition 4.
4.3 The Customer shall only use the Reports for its own internal purposes and will not disclose, supply or copy the Reports to any third party other than the Customer’s third party advisers who are providing services relating to or connected with the Services and need to have access to the information contained in the Reports to perform their services.
4.4 TDC shall have no liability to the Customer for any error or omission in a Report due to the provision of false, misleading or incomplete information or documentation by the Customer or due to any acts or omissions of any person other than a representative of TDC. 4.5 Any recommendations made or given to the Customer in any Reports or otherwise are made in good faith and prepared to the best of TDC’s knowledge. No statement in any Report is deemed to be a representation, warranty or condition of the Contract and TDC specifically disclaims any responsibility or liability relating to any reliance placed by the Customer on any such recommendations.
5 PRICE OF THE SERVICES
5.1 The price of the Services shall be TDC’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time they may be altered by TDC without giving notice to the Customer.
5.2 The price of any additional services, including any additional visits made by TDC to the location of the Services for the purposes of completing the Services, shall be charged on a time and material basis:
5.2.1 the charges shall be calculated in accordance with TDC’s daily fee rates, as set out in TDC’s quotation;
5.2.2 TDC’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 4.00 pm worked on Monday to Friday excluding bank holidays;
5.2.3 TDC shall be entitled to charge an overtime rate for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.2.2 in accordance with the rates set out in TDC’s quotation; and
5.2.4 TDC shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by TDC for the performance of
the Services, and for the cost of any materials.
5.3 TDC reserves the right, by giving notice to the Customer at any time before performance of the Services, to increase the price of the Services to reflect any increase in the cost to TDC which is due to any factor beyond the control of TDC or due to any change in performance dates (except as permitted by Condition 3.7), or specifications for the Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give TDC adequate information or instructions.
5.4 The price is exclusive of any applicable value added or any other sales tax which may be chargeable and for which the Customer shall be additionally responsible for paying. Failure to pay any such taxes shall not entitle the Customer to withhold or delay payment of the price. Any additional expenses or charges incurred by TDC resulting from such failure shall be for the Customer’s account.
6 TERMS OF PAYMENT
6.1 Subject to Condition 6.2, and any special terms agreed in writing between the Customer and TDC, TDC shall be entitled to invoice the Customer for the price of the Services on or at any time after performance of the Services.
6.2 Where TDC is unable to provide the Service or any part of it by reason of the default of the Customer, TDC shall be entitled to invoice the Customer for the price at any time after TDC has notified the Customer that it has been unable, due to the Customer’s default, to provide the Service or any part of it.
6.3 The Customer shall pay the price of the Service in full and without any deduction or set- off on terms of end of month plus 30 days of the date of TDC’s invoice, notwithstanding that performance of the Service may not have taken place. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.4 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to TDC, TDC shall be entitled to:
6.4.1 cancel the Contract or suspend any further performance of Services to the Customer under the Contract;
6.4.2 appropriate any payment made by the Customer to such part of the Service (or the Services supplied under any other Contract between the Customer and TDC) as TDC may think fit (notwithstanding any purported appropriation by the Customer); and
6.4.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time, until payment in full is made.
6.5 TDC reserves the right where any doubts arise as to the Customer’s financial position or in the case of failure to pay for any Service to suspend performance of the Service or any part of the Service without liability until payment or satisfactory security for payment has been provided.
7 PERFORMANCE OF THE SERVICE
7.1 Performance of the Service shall be made by TDC completing the Service.
7.2 Any dates quoted for performance of the Service are approximate only and TDC shall not be liable for any delay howsoever caused. Time for performance shall not be of the essence unless previously agreed by TDC in writing. Where performance is agreed to be made within a certain period, that period shall only be deemed to commence once TDC is in receipt of all the information requested by TDC from the Customer. The Service may be performed by TDC in advance of the quoted performance date upon giving reasonable notice to the Customer.
7.3 If, as a result of any act or omission by the Customer or its agents (howsoever caused) which is not directly and wholly caused by TDC (including the provision of any incorrect or inadequate information or data by the Customer), TDC is prevented or delayed from performing any of its obligations under the Contract or the cost of such performance increases, then:
7.3.1 the time for performance of TDC’s obligations will be extended for a reasonable period; 7.3.2 the Customer shall pay TDC at TDC’s standard time rates for any additional time spent used by it with respect to any delays or extra work caused by such act or omission of the Customer; and
7.3.3 TDC may recover all other reasonable loss from the Customer which it sustains as a direct result of such act or omission.
8.1TDC warrants (subject to the other provisions of the Conditions) that the Services shall be performed using reasonable care and skill provided that time of performance shall not be of the essence.
8.2 The sole obligation of TDC under the Warranty in Condition 8.1 shall be to re-perform the Services as soon as reasonably practicable following the receipt of a complaint communicated in writing by the Customer to TDC.
8.3 The warranty in Condition 8.1 is given by TDC subject to the following conditions:
8.3.1 TDC shall be under no liability in respect of any defect in the Service arising from any drawing, design or specification supplied by the Customer; and
8.3.2 TDC shall be under no liability under the warranty in Condition 8.1 (or any other warranty, condition or guarantee) if the total price for the Goods and/or Service has not been paid by the due date for payment.
8.4 TDC shall not be liable for any defect in the Goods, in respect of which, TDC shall, so far as it is able, give the Customer the benefit of any express warranty or guarantee as is given by the manufacturer to TDC.
9 DISCLAIMER AND LIMITATION OF LIABILITY
9.1 Nothing in the Contract shall limit the liability of TDC to the Customer for death or personal injury resulting from TDC’s negligence (as defined in the Unfair Contract Terms Act 1977), for fraud or fraudulent misrepresentation, or for any liability which cannot be excluded by law.
9.2 Subject to Condition 9.1, the following provisions set out the limitations on the liability of TDC (including any liability for the acts and omissions of its respective employees, agents and sub-contractors) to the Customer with respect to:
9.2.1 any breach of its contractual obligations arising under the Contract;
9.2.2 any representation, statement, act or omission given, made or carried out under or in connection with the Contract (whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever).
9.3 It is the Customer’s responsibility to ensure that the Services are suitable for its needs. In particular, TDC expressly disclaims all warranties that use of the Services will result in any economic advantage, increase in profits or reduction in costs.
9.4 Except as expressly set forth in the Contract, all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Goods and/or Services are excluded to the fullest extent permitted by law and in no event shall TDC be liable for any negligence or other tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not TDC is advised of the possibility of loss, liability, damage or expense):
9.4.1 loss of revenue;
9.4.2 loss of actual or anticipated profits (including for loss of profits on contracts); 9.4.3 loss of the use of money;
9.4.4 loss of anticipated savings;
9.4.5 loss of business;
9.4.6 loss of opportunity;
9.4.7 loss of goodwill;
9.4.8 loss of reputation;
9.4.9 loss of, damage to or corruption of data; or
9.4.10 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in Conditions 9.4.1 – 9.4.10).
Direct financial and other loss not excluded by this Condition is accepted by TDC up to the limits set out in Condition 9.5.
9.5 Except as stated in Condition 9.1, the aggregate liability of TDC to the Customer with respect to all claims under or in connection with the Contract shall be limited to the price of the Goods and/or Services which gave rise to the liability.
9.6 The parties hereby expressly acknowledge and agree that having taken independent legal advice, the limitations upon the liability of TDC in this Condition 9 are in all respects fair and reasonable, reflect a duly considered allocation of risk between the parties and are reflected in the price paid for the Services under the Contract.
9.7 TDC shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of TDC’s obligations in relation to the Services, if the delay or failure was due to any cause beyond TDC’s reasonable control.
10 INTELLECTUAL PROPERTY
The Customer shall have no rights in respect of any trademarks owned or used by TDC or of the associated goodwill or in respect of any other Intellectual Property
of TDC protecting or relating to the Services or the Reports, and the Customer hereby acknowledges that, except as expressly provided in this Contract, it shall not acquire any such rights and that all such rights and goodwill are, and shall remain, vested in TDC.
11 INSOLVENCY OF CUSTOMER
11.1 This Condition applies if: –
11.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 an encumbrancer takes possession, or a Receiver is appointed, of any of the property or assets of the Customer; or
11.1.3 the Customer ceases, or threatens to cease, to carry on business; or
11.1.4 TDC reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
11.2 If Condition 11.1 applies then, without prejudice to any other right or remedy available to TDC: –
11.2.1 TDC shall be entitled by written notice to the Customer to cancel the Contract or suspend performance under the Contract without liability to the Customer; and
11.2.2 if the Services have been performed but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.3 TDC shall be entitled to terminate the Contract at any time for convenience on giving the Customer 30 day’s written notice.
14 SUBCONTRACTING AND ASSIGNMENT
14.1 TDC may sub-contract to any other person the performance any of its obligations under the Contract.
14.2 TDC may assign, transfer (in whole or in part) or charge or deal in any manner with this Contract or the benefit or burden of or the rights under this Contract.
14.3 The Customer may not without the prior written consent of TDC assign, transfer (in whole or in part) or charge or deal in any manner with this Contract or the benefit or burden of or the rights under this Contract.
No amendment of the Contract shall be effective unless it is in writing and signed by or on behalf of each of the parties.
16 WAIVERS AND REMEDIES
16.1 Except as otherwise stated in the Contract, the rights and remedies of each party under the Contract are in addition to and not exclusive of any other rights or remedies under the Contract or the general law and may be waived only in writing and specifically.
16.2 Delay in exercising or non-exercise of any right under the Contract is not a waiver of that or any other right.
16.3 Partial exercise of any right under the Contract shall not preclude any further or other exercise of that right or any other right under the Contract.
16.4 Waiver of a breach of any term of the Contract shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
17.1 If any provision of the Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the legality, validity or enforceability in that jurisdiction of any other provision of the Contract or the legality, validity or enforceability in any other jurisdiction of that or any other provision of the Contract.
17.2 Whilst the parties consider the provisions contained in the Contract reasonable, having taken independent legal advice, if any one or more of the provisions are adjudged alone or together to be illegal, invalid or unenforceable, the parties shall negotiate in good faith
to modify any such provision(s) so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provision(s).
18 ENTIRE AGREEMENT
18.1 The Contract constitutes the entire agreement between the parties with respect to the subject matter of the Contract and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
18.2 Each party acknowledges to the other that it has not been induced to enter into the Contract by nor has it relied upon any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in the Contract. Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of the Contract shall be for breach of contract under the terms of the Contract and it shall have no right of action against any other party in respect of any such representation, promise, assurance, warranty or undertaking.
18.3 This Condition shall not exclude any liability which either party would otherwise have to the other or any right which either of them may have to rescind the Contract in respect of any statements made fraudulently by the other prior to the execution of the Contract or any rights which either of them may have in respect of fraudulent concealment by the other.
19 RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the Contract but this does not affect any right or remedy of a third party which exists or is available apart
from that Act.
20 GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.