01. October 2023
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.00am to 4.30pm (Monday to Thursday) and 8.am to 3.15pm (Friday) (but subject to it being a Business Day.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Intellectual Property Rights: patents, models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's written acceptance of the Supplier's quotation.
Order Confirmation: the Supplier’s confirmation of the Customer’s order.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.
Supplier: Hatz Great Britain Limited (registered in England and Wales with company number 01053271) of registered office 4 Alan Bray Close, Dodwells Bridge Industrial Estate, Hinckley, Leicestershire LE10 3BP.
Supplier Materials: has the meaning set out in clause 4.1(g).
Supplier’s Quotation: the written quotation for the supply of Services by the Supplier to the Customer produced by the Supplier in writing and sent to the Customer (which may be sent by email).
(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written excludes fax but not email.
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues the Order Confirmation (or as the case may be, written acceptance of the Order) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to imp ose or incorporate, or which are implied by law, trade custom, practice or course of dealing. These Conditions shall also supply to all future supplies of any further or additional services supplied by the Supplier to the Customer, including but not limited to repairs, maintenance, overhaul, technical assistance and training.
2.5 To the extent that the Contract or any additional services envisage by clause 2.4 includes the supply of any goods or spare parts, the Supplier’s Terms and Conditions for the Supply of Goods (available upon request) shall apply to such goods supplied.
2.6 Any Supplier’s Quotation given by the Supplier shall not constitute an offer, and is only valid for the period set out in the Quotation. If no period is stated in the Quotation, the default period is one calendar month.
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. In the event of additional Services or an extension to the Services being required by the Customer, any estimated performance dates will be extended accordingly by a reasonable period.
3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier warrants the Services for a period of 12 months (Warranty Period) from completion of the Services subject to:
(a) The Customer undertaking any appropriate maintenance requirements, cleaning or servicing within the Warranty Period; and
(b) The Customer notifying the Supplier within 7 days of any claim during the Warranty Period.
(c) In relation to any spare parts, the Warranty Period will be the lesser of 12 months or the period set out in the Order Confirmation or Quotation, as the case may be.
3.6 If:
(i) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Services do not comply with the warranty set out in clause 3.5;
(ii) the Supplier is given a reasonable opportunity of examining such Services undertaken and verifies such non-compliance;
the Supplier shall, at its option, undertake remedial works or refund the price of the defective Services in full.
3.7 The Warranty Period shall not apply if the Customer modifies the Services or has the Services modified by a third party without the written consent of the Supplier.
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in any Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
(h) comply with any additional obligations as set out in any Specification; and
(i) agree any reasonable extension of the estimated time for performance under clause 3.2.
(j) Where the Customer supplies or delivers property, machinery or equipment (Customer Equipment) to the Supplier at the Supplier’s premises for the purposes of the Contract:
(i) the Customer Equipment shall be transported at the Customer’s own risk and the Customer shall insure the Customer Equipment at all times;
(ii) The Customer shall ensure that all attachments, accessories, storage media and other parts that are not part of the Customer Equipment required for the Contract are removed prior to delivery to the Supplier;
(iii) the Customer shall ensure the Customer Equipment is clean and free from all hazardous, toxic or harmful substances; and
(iv) the Customer shall collect the Customer Equipment promptly when notified by the Supplier to do so (and if the Customer fails to do so, the Customer shall pay the Supplier’s reasonable storage fees).
(k) On completion of the Services, sign the Supplier’s completion report.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.1 The Charges for the Services are set out in the Supplier’s Quotation or Order Confirmation as the case may be. In the event that the Charges are not set out or additional Services are provided at the request of the Customer over and above the Supplier’s Quotation, such Charges shall be calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with the Supplier's standard rates;
(b) the Supplier's daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 3.30 pm Mreworked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b); and
(d) the Supplier 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 the Supplier for the performance of the Services, and for the cost of any materials and any associated waiting time.
5.2 The Supplier reserves the right to increase its standard rates twice yearly.
5.3 The Supplier shall invoice the Customer as provided for in the Supplier Quotation or, if not timescale is provided, prior to the commencement of the Services. The Supplier shall be entitled to factor or assign its invoices now or in the future subject to appropriate notices to the Customer.
5.4 The Customer shall pay each invoice submitted by the Supplier:
(a) Within the agreed written payment terms with the Customer (or if no such written payment terms have been agreed, within 14 days of the date of the invoice); and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract. The Supplier reserves the right to request payment in full prior to the commencement of the Services.
5.5 The Customer shall pay any deposit requested by the Supplier prior to commencement of the Services. The Supplier may suspend delivery of any Services in the event of the non-payment of any deposit or invoice.
5.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to the Supplier (or its factoring company as the case may be) under the Contract by the due date, then, without limiting the Supplier's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.9 In the event of the Supplier undertaking an inspection of any Customer Equipment requiring such equipment to be strip or dismantled (wholly or in part) for the purposes of providing a Quotation to the Customer, the Supplier shall be entitled to charge the Customer for such work in the event that the Customer does not place an order for further services related to the said equipment. Such charges shall be calculated in accordance with clause 5.1(a) but subject to a maximum charge of two hours’ time.
5.10 The Supplier may exercise a lien over any Customer Equipment for all the Supplier’s charges, costs and expenses in connection with the Contract until full payment is received from the Customer.
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
The parties shall comply with their data protection obligations as required by law.
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.3 Nothing in this clause 8 shall limit the Customer's payment obligations under the Contract.
8.4 Nothing in the Contract limits any liability which cannot legally be limited, including [but not limited to] liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5 Subject to clause 8.3 (No limitation in respect of deliberate default), and clause 8.5 (Liabilities which cannot legally be limited), the Supplier's total liability to the Customer:
(a) for loss arising from the Supplier's failure to comply with its data processing obligations under clause 7 shall not exceed £500,000; and
(b) for all other loss or damage shall not exceed £5,000,000.
8.6 The caps on the Supplier's liabilities shall be reduced by:
(a) payment of an uncapped liability;
(b) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
8.7 Subject clause 8.3 (No limitation in respect of deliberate default), clause 8.4 (No limitation of customer's payment obligations) and clause 8.5 (Liabilities which cannot legally be limited), this clause 8.8 sets out the types of loss that are wholly excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.8 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.9 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.10 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving the Customer three months' written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 9.2(c) or clause 9.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and
(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2(b).
10.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination [or expiry], including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt. Any emailed notice under the Contract shall also be sent within two working days by first class post to the Recipient.
(c) This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.10 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction.
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.