Terms and Conditions
Please take a few minutes to read through these terms and conditions, as by placing an order with us, you will be considered to have agreed to be legally bound by them.
These terms and conditions (the “Terms and Conditions”) apply to products and services provided by AG Automation Ltd.
References to “We”, “Us” and “Our” refer to AG Automation Ltd and
references to “You” and “Your” mean you, the customer purchasing AG Automation Ltd products and services.
The terms below will have the following meanings whenever they are used in these Terms and Conditions:
“Call Out Fee” means Our fee for an Engineer Call Out.
“Commissioning” means demonstrating to You that the Products and Services comply with the Statement of Works and showing You how to safely operate the System.
“Contract” means a binding contract for Our delivery of Products and/or Services to You, and comprises a signed Statement of Works together with these Terms and Conditions.
“Deposit” means an amount equal to fifty percent (50%) of the Estimated Price.
“Drawings” means Our technical drawings and other information comprising the initial specification of the System.
“Installations Order Form” means Your order for Services required to prepare the Drawings.
“Engineer Call Out” means attendance by one of Our engineers at Your request to attend to Your System.
“Estimated Price” means Our estimated price for the Products and Services to be supplied to You, as amended in accordance with these Terms and Conditions.
“Excessive Usage” means a level of use of a Product or System that is greater than 120% of the Normal Usage level.
“Existing Equipment” means any System or part thereof that was not supplied and installed by Us.
“Handover Pack” means the pack of information handed to You by Us upon Commissioning which shall include any relevant Technical Specifications.
“Installation Acceptance” means the document to be signed by You confirming Your acceptance that installation of the Products has been completed in accordance with the Statement of Works.
“Installation Requirements” means the pre-installation requirements and pre-requisites that You need to ensure are in place at the Location to enable Us to install the Products, and which may include providing Us with a Utilities Plan.
“Location” means the address to which You require Us to deliver and install the Products, as set out in the Statement of Works.
“Normal Usage” means the level of use of a Product or System that is specified as normal in the Statement of Works.
“Products” means the products to be supplied by Us to You as set out in the Installations Order Form or the Statement of Works.
“Price” means the price of the Products and Services to be supplied to You, as specified in the Statement of Works, as amended in accordance with these Terms and Conditions.
“Services” means Our services to You which may include, as requested by You:
a) services for the preparation of Drawings;
b) services for the delivery and installation of the Products;
c) Engineer Call Outs, including any associated repairs and replacements;
d) Servicing; and/or;
e) Specialist consultations, AG Automation Ltd, advice and reports.
“Servicing” means Our Services for the servicing of Your System
“Servicing Exclusions” means the performance of, and all costs associated with:
a) hiring specialist equipment not normally carried by Us, including but not limited to cranes and other lifting equipment; and
b) making Existing Equipment compliant with health and safety legislation; and
c) making Products compliant with health and safety legislation that is brought into effect after the date of Commissioning; and
d) ground-works, builders’ works or making good; and
e) telephony, if any Product or Existing Equipment requires connection to any network.
f) Faults or issues that have arisen as a result of vandalism, accidental damage, abuse or misuse or other events other than normal wear and tear.
“Statement of Works” means the document provided by Us to You confirming Our quote for the provision of Products and Services to You, that specifies:
a) that it is subject to these Terms and Conditions;
b) a description of the Products and/or Services to be supplied;
c) details of the Location;
d) Your obligations;
e) Installation Requirements;
f) details of the estimated Price; and
g) any special information about the Products
“System” means Your gate system, either installed by Us, or supplied to You by any other supplier.
“Technical Specifications” means the written specification and instructions and/or manuals for the Products.
“Utilities Plan” means Your plans of the Location or the results of a survey of the utility services at the Location, identifying the position and routing of underground cables and pipes.
“Working Days” means Monday to Friday, excluding English Bank and Public Holidays.
2 Your Contract for AG Automation Ltd Products and Services
2.1 Upon Your request for Our services, We will make available Our specialist consultancy service to You. Subject to Your requirements, We may provide You with a Statement of Works setting out the details and any things that We need You to do, and the Price (if any), for Your signature. Signature of this Statement of Works will create a binding Contract under which We will supply our Services and You will pay Us the corresponding Price (if any).
2.2 We provide an Estimated Price to You when We have made an initial site visit to Your Location and discussed Your requirements for Products and Services with You. Please be aware that the Estimated Price is for guideline purposes only and does not constitute a firm quote, and may need to be amended if Your requirements change or if other circumstances arise.
2.3 If You decide to go ahead with Our Products, We will ask You to sign the Installations Order Form. Please check the Installations Order Form carefully before You sign. Once it is signed, We will ask You to pay the Deposit so that We can prepare site drawings and conduct a second site visit with You. If after signing the Installations Order Form and paying the Deposit, You decide not to proceed, You must notify Us as set out in Clause 3.1. We will refund the Deposit less Our administration and production costs which shall be between ten percent (10%) and twenty five percent (25%) of the Estimated Price.
2.4 After the second site visit, We will provide You with a Statement of Works that sets out the details of the Products and Services We propose to deliver to You, and the things that You will need to do both before and after the beginning of the work.
2.5 If after the second site visit, You decide not to proceed with an order for Products, You must notify Us as set out in Clause 3.1. We will refund the Deposit less Our administration and production costs which shall be between ten percent (10%) and twenty five percent (25%) of the Estimated Price.
2.6 It is important that You read and understand the Statement of Works before signing it, as You are responsible for ensuring that it covers all of Your requirements associated with the intended use of the Products. You are also responsible for meeting the Installation Requirements set out in the Statement of Works, as these must be completed before We can commence work, and for meeting Your other obligations described there. If You do not meet these obligations or Installation Requirements, work may be delayed and You may incur additional costs.
2.7 If You wish to purchase the Products and Services set out in Our Statement of Works, and agree to undertake Your obligations and meet the Installation Requirements set out within it, You must sign and return the Statement of Works to Us. This will create a binding Contract under which We will supply the specified Products and Services and You will pay Us the corresponding Price.
2.8 We will provide You with estimated timescales for delivery of the Products and completion of Our work by email, once the Contract has been made. While We shall use Our reasonable endeavours to meet these estimated timescales, because of the nature of the work, We do not guarantee to meet them. If We do encounter unexpected delays We will contact You as soon as is reasonably possible by email to let You know the revised estimated timescales.
2.9 By signing the Statement of Works You grant Your permission for Us to take of photographs of the System, where such photographs will be used for Our internal records and to support Us in providing Products and Services. They may be used in Our brochures or marketing material without Your written permission to do so.
2.10 We will need Your written permission if You wish Us to begin work on the Services straight away or at any time in the fourteen (14) days after Your signature. If You subsequently decide to cancel, then We are entitled to charge You for the Services We have carried out prior to Your cancellation.
3.1 If You wish to cancel at any time, please contact Us as soon as possible by telephone, email or in writing using Our contact details. You may use the cancellation form We may have provided to You. If You telephone or email Us, We may ask You for signed confirmation in writing, but Your cancellation will be effective from the date of Your call or email.
3.2 If We are supplying Services to You:
a) If You have requested an Engineer Call Out for urgent repairs, or if You have given Your written permission for Us to start work within the fourteen (14) days after Your signature, You may cancel by notifying Us as set out in Clause 3.1. We will be entitled to charge You for the Services We have carried out prior to Your cancellation;
b) If We have not started work on the Services and You cancel by notifying Us within fourteen
(14) days after Your signature, You may cancel by notifying Us and We shall refund any Deposit paid in full.
3.3 If We are supplying Products to You, You may cancel at any point before We have begun delivering the Products by notifying Us. Because We may have already incurred some costs prior to cancellation and because the Products are bespoke for You, the following conditions will apply:
a) If We receive notice of cancellation within fourteen (14) days of Our receipt of the signed Statement of Works and We have not started work on the Products We shall refund a proportion of the Deposit after deducting a reasonable fee to reflect Our administration and production costs which shall be between ten percent (10%) and twenty five percent (25%) of the Price;
b) If We receive notice of cancellation after this fourteen (14) day period or after We have started work on the Products, but before the start of delivery of Products, We will refund a proportion of the Deposit after deducting a reasonable fee to reflect Our administration and production costs which shall be between ten percent (10%) and fifty percent (50%) of the Price;
c) If You wish to cancel after We have started delivery of the Products, We are entitled to charge You the Price in full.
3.4 Once We have started delivering Products and/or Services, You may cancel the Contract by giving Us written notice if:
a) We have materially breached the Contract, and have failed to resolve the problem within sixty (60) days written notice from You, asking Us to do so; or
b) We have become insolvent or have ceased trading or have had a receiver or administrator appointed over Our business or assets.
4 Delivery and Installation
4.1 We will contact You by email to arrange a date and approximate time to deliver the Products and begin installing them. This must be a date when You, or Your authorised representative, will be present to meet Us, provide access to the Location and address any queries that We may have as We begin work. We will try to deliver all of the Products in one visit, but please be aware that We may need to make more than one delivery.
4.2 You must ensure that, prior to the agreed delivery date, You have completed the work needed to meet the Installation Requirements, and informed Us of any circumstances that may reasonably be expected to impact on Our ability to deliver and install the Products in accordance with the Statement of Works. We reserve the right to refuse to deliver or to commence installation work if, in Our reasonable opinion, the Installation Requirements have not been met or if it is no longer safe or possible to do so because of a change in circumstances that You have not informed Us of prior to delivery.
4.3 If You wish to change the agreed delivery date for Products, please tell Us as soon as possible to arrange a new date. We reserve the right to charge You a reasonable fee to cover any additional delivery and storage costs that We may incur as a result of the rescheduling.
4.4 We will endeavour to deliver and install the Products in the required Location in accordance with the Statement of Works, the agreed delivery date and the installation timescales that We have advised to You.
4.5 If We attempt delivery on the scheduled date, but are unable to deliver or install the Products for any reason, including but not limited to:
a) access restrictions which have not been notified to Us; or
b) neither You nor Your nominated representative is present; or
c) the Installation Requirements have not been met; or
d) We believe, acting reasonably, that delivery or installation would result in irreparable damage to property, damage to the Products, or injury to Our staff or other persons; or
e) You refuse to accept delivery for any reason other than the failure of the Products to comply fully with the Statement of Works;
– then We will return the Products to Our premises and We reserve the right to charge You a reasonable fee to cover the additional delivery and storage costs that We have incurred. In this event We shall agree a revised delivery date with you.
4.6 You appreciate that many of the Products and associated specialist items required by Us to complete the Statement of Works are purpose-made and specially procured by Us for You. If installation is delayed by You for more than five (5) Working Days then We may, at Our discretion, invoice You for Our reasonable costs arising as a result of Your delay. These costs may include storage costs and other costs which may amount to up to the remaining fifty percent (50%) of the Price.
5 Services and Installation Work
5.1 We shall perform the Services either by Ourselves or using Our carefully selected subcontractors. Whichever team We use to deliver the Services to You, You can be assured that We remain fully responsible for their delivery in accordance with the Contract, and We will be pleased to respond to any questions or issues You may have in connection with the Services.
5.2 We understand that things can change in the course of a project, for a variety of reasons. If, at any time after You have signed the Statement of Works:
a) You change Your intended use of the System or You request changes to the Products or Services; or
b) It is necessary for Us to replace products or items that have been supplied by a third party supplier, and which are in Our reasonable judgement considered to be unsafe, unsuitable or of an unsatisfactory standard, or do not meet the Installation Requirements; or
c) It is necessary for Us to complete or re-do work or services that have been carried out by a third party supplier, and which do not meet the Installation Requirements; or
d) Any Existing Equipment, existing support structures such as piers or posts, or other existing items that You have requested Us to use or re-use are, in Our reasonable judgement, considered to be unsafe, unsuitable or of an unsatisfactory standard, requiring Us to install alternative support structures; or
e) We need to make changes to the Products or Services in order to address any other changes in Your requirements or in the site circumstances that We could not reasonably have identified from Our site visits (including problems identified as a result of any investigative scan survey);
– then We will endeavour to accommodate these changes wherever possible, but We cannot guarantee to do so. We will create an amendment to the Statement of Works, describing the changes or additions to Products and/or Services and setting out the time and costs associated with the change. No change will be implemented without Your written approval (which You may give by email).
5.3 If a change is essential for Us to complete the Services, We reserve the right to stop work until Your approval is received and, if approval is not received within five (5) Working Days. We may invoice You for Our reasonable costs arising as a result of Your delay which may be up to the balance of the Price. Once work has resumed and the Services are complete, We may charge You for Our reasonable costs incurred in suspending and re-starting the delivery of the Services, including any associated storage costs.
5.4 We reserve the right to stop work and disconnect an installation or System if circumstances arise that We believe, acting reasonably, would result in unsafe operation or represent a risk of damage to property or injury to Our staff or other persons. You acknowledge and agree that:
a) if at any time an installation or System is deemed to present a serious health and safety risk, or is otherwise deemed to be unsafe, the System may be turned off or isolated pending completion of any recommended safety works;
b) We cannot reconnect an installation or System and continue Our work as planned unless and until corrective upgrade works are completed.
5.5 We shall use Our reasonable endeavours to avoid damage to Your or any third party’s property
during Our Services or delivery and installation of the Products.
5.6 In the event of accidental damage to Your or any third party’s property, We shall at Our expense repair or replace such damaged property to a fair and reasonable standard provided that:
a) We were informed in advance of the importance of specific items of property of which We would otherwise not reasonably have been aware, such as (for example) special trees or plants;
b) The damage is caused by Our staff or Our subcontractors in the course of delivery or installation;
c) You clearly describe any such damage on the Installation Acceptance, before We leave the Location; and
d) You grant to Us or Our nominated subcontractors access to the Location and the damaged property when We reasonably request this, having given You reasonable notice, in order to carry out these repairs and/or replacements.
5.7 When We carry out ground works at the site, We shall backfill with soil and other material excavated in the course of the works, once the work is done. We shall remove all items and waste caused by Us a result of Our site works to leave the Location in a tidy state, unless prevented by circumstances outside Our control. Any pre-existing items removed from the site by Us are deemed to be of no value and will be disposed of by Us, unless otherwise set out in the Statement of Works. All disposals will be carried out by Us responsibly. We shall only provide further finishing (such as, for example, re-laying patio, lawn or other surfaces) if this requirement is expressly set out in the Statement of Works or agreed by You and Us as a change as described in paragraph 5.2.
5.8 On completion of the installation, and prior to Our staff departing the Location, We shall carry out Commissioning of the System. You or Your nominated representative must be present for Commissioning and complete the Installation Acceptance document. If You or Your nominated representative is not present, then We will arrange a date and time to complete Commissioning with You. We reserve the right to charge You for Our associated additional time and costs in attending any delayed Commissioning.
5.9 If Commissioning is carried out successfully, We shall give You the Handover Pack and You or Your nominated representative shall sign the Installation Acceptance document indicating that the Products and Services comply with the Statement of Works.
5.10 You shall notify Us of any damage that has occurred during delivery or installation, or of any problems or issues that prevent Commissioning from occurring on the Installation Acceptance document. You shall not unreasonably withhold signature of the Installation Acceptance document.
6 Servicing, Call Outs and Repairs
6.1 Scheduled Servicing visits shall be carried out at the intervals specified in the Statement of Works. We will contact You by email or telephone to arrange a date and approximate time for the visit which must be a date when You, or Your authorised representative, will be present to meet Us, provide access to the System and address any queries that We may have.
6.2 During Servicing, We shall perform preventative servicing tasks in accordance with Our then- current Servicing Procedures. If We identify that a repair to, or replacement of, a Product (or any component of a Product) is necessary then we will supply an estimate listsing the items required for your approval. We will prepare a corresponding Statement of Works for signature by You in accordance with Clause 2.
6.3 During Servicing We shall not be responsible for performing any of the services covered under the definition of Servicing Exclusions, or for remedying any problem listed under the warranty exclusions listed in Clause 7.8, unless a Statement of Works has been entered into to cover such additional services and You have agreed to pay the corresponding additional costs.
6.4 If You request an Engineer Call Out, We will contact You by email or telephone to arrange a date and approximate time for the visit which must be a date when You, or Your authorised representative, will be present to meet Us, provide access to the System and address any queries that We may have. You agree to pay a Call Out Fee for each Engineer Call Out that You request. This fee will not apply to any site visits that We carry out in the normal course of an installation.
6.5 If You wish to change or cancel an Engineer Call Out or a scheduled Servicing visit, You must tell Us at least two (2) Working Days before the planned date. If You fail to notify Us in time, We reserve the right to charge You a reasonable fee for the change or cancellation.
6.6 We will endeavour to identify and correct faults with Your System promptly, but please be aware that delays may occur if We encounter problems with accessing the System and with the condition of the System, including problems associated with any hidden parts. If there are problems with the condition of the System, including where it may present a health and safety risk or is deemed to be unsafe, the provisions of Clause 5.4 may apply.
6.7 If You require Us to repair Existing Equipment, or to replace a component of Existing Equipment, You agree that We shall be responsible only for such repair or replacement component, and We shall have no liability in respect of the remainder of the Existing Equipment.
6.8 If, during an Engineer Call Out, We identify a requirement for new or replacement Products with a value of greater than £750.00 [+VAT] or for Services that cannot be completed during that Engineer Call Out, We will prepare a corresponding Statement of Works for signature by You in accordance with Clause 2.
7.1 We warrant that for a period of twelve (12) months from installation, the workmanship and the Products will comply with the Contract and will be free of material defects. If the relevant manufacturer of the Products offers a longer warranty, We shall extend this warranty offering to You. Please note that these warranties do not apply in the circumstances set out in Clauses 7.7 and 7.8.
7.2 We warrant that for a period of three (3) months from their provision and/or installation any sundries provided as part of Servicing (such as, but not limited to, replacement washers, grease, oil and sealants will be free of material defects.
7.3 If You wish to benefit from these warranties, You must notify Us immediately You become aware of any defect in the Products or any non-compliance with the Contract by telephone and in writing and provide Us with access to inspect the site, to investigate and assess the details of the defect.
7.4 If We fail to comply with the warranties in Clause 7.1 or Clause 7.2, We shall, at Our expense, either repair any defects in the Products, or replace any faulty Products, within a reasonable period of time (to be agreed with You) after We have received Your notification or after We have completed Our inspection, whichever is the later.
7.5 If We replace any Product, the replacement Product shall be covered by the warranty in clause
7.1 for the remainder of the warranty period applicable to the original product or for thirty (30) days, whichever is the longer.
7.6 We also warrant that the Services will be carried out with reasonable skill and care by personnel who are suitably skilled and experienced for the tasks to which they are allocated, and will be performed in accordance with the Contract. If We fail to comply with this warranty We will re- perform the Service in question at Our expense.
7.7 The warranties given in these Terms and Conditions will not apply to any Existing Equipment except if, and solely to the extent that, any component of the Existing Equipment has been replaced by Us under Servicing or at Your request.
7.8 The warranties given in these Terms and Conditions will not apply if the Products or a part of the Products have been:
a) used improperly or outside their normal environmental or operational parameters as set out in the Statement of Works or the Technical Specification; or
b) subject to accidental damage or vandalism; or
c) subject to flooding, subsidence or other ground movement; or
d) subject to Excessive Usage; or
e) serviced, repaired, altered or modified other than by Us; or
f) in respect of timber Products, used against Our advice or recommendations; or
g) subject to damage as a consequence of the failure of parts or items which You decided should be used, or should not be not repaired or replaced, against Our advice or recommendations; or
h) subject to damage as a consequence of the failure of parts or items not installed or serviced by Us; or
i) found to have defects which have arisen as a result of works not carried out by Us, including but not limited to footings/foundations, connections to other structures, and electrical connections; or
j) not cared for or not maintained in accordance with the Technical Specifications.
7.9 Products shall not be considered to be faulty or in breach of their warranty solely because of:
a) The effects of normal wear and tear; or
b) Any slight deviation in dimensions due to manufacture;
– where these do not materially affect the normal operation of the Products.
7.10 If You are a consumer, the above warranties and warranty remedies are in addition to and shall not reduce Your statutory rights including Your rights in respect of Our obligation to provide Products of satisfactory quality.
7.11 If You are a business, the warranties set out in this Clause 7 are the only warranties that apply to the Products and Services and We hereby exclude all other conditions, warranties, representations or other terms that might otherwise be implied or incorporated in these Terms and Conditions, such as (but not limited to) those of satisfactory quality, fitness for a particular or any purpose, or the ability to achieve any particular result.
8 Title and Risk
8.1 The Products shall belong to Us until Our receipt of cleared funds of the Price in full payment for such Products, at which time title shall pass to You.
8.2 We shall be responsible for the Products until We have delivered the Products to the Location. All Products installed or left at the Location during the works shall be at Your risk and You should ensure that You have appropriate insurance in place for the Products as You will be responsible for the repair or replacement of any delivered Products which become lost or damaged other than as a result of Our fault.
9 Your Co-operation.
9.1 In order for Us to provide the Products and Services to You, We need Your co-operation and support. This includes but is not limited to:
a) a reasonable level of responsiveness to Our requirements and communications;
b) granting Us access to the Location at all reasonable times to enable Us to deliver and install the Products;
c) the performance of Your specific obligations as set out in these Terms and Conditions and the Statement of Works (including the completion of work required to meet the Installation Requirements); and
d) the use of the Products only in accordance with the Statement of Works, and Technical Specifications and documentation.
9.2 You agree that We will not be considered to be in default under the Contract if We are unable to perform Our obligations because You have not performed Your obligations as set out above.
10 Fees & Payment.
10.1 If We are supplying and installing the Products, You agree to pay Us:
a) the Deposit upon the arrangement of a second site visit for new installations, or otherwise upon signature of the Statement of Works; and
b) an amount equal to thirty percent (30%) of the Price upon installation of the gate and post elements of the System; and
c) the balance of the Price in full upon Our completion of the installation of the Products. For the avoidance of doubt, the full amount of monies is due upon completion, despite any delays in commissioning not caused by Us or due to circumstances outside Our control.
10.2 If We are supplying the Products to You but not installing them, You agree to pay Us the Price as set out on Our invoice.
10.3 We know from experience that unexpected events can occur during a project that can give rise to additional costs, and which may not be covered by a change to the Statement of Works under Clause 5.2. We will notify You of any such event and estimated costs (where possible) and We will endeavour to keep any additional costs to a minimum, but We reserve the right to invoice You and You agree to pay Us for any costs that We reasonably incur in addition to the Price, for such events including but not limited to:
a) Use of a structural engineer or other professional body if required in any way;
b) Delays due to circumstances outside Our control, affecting Your site, or delays or circumstances caused by You or under Your control or caused by third parties under Your control;
c) Delays due to the need for pedestrian or vehicular access at the Location;
d) Lack of free onsite parking;
e) Special site conditions, access or parking restrictions, special clothing requirements (PPE) and any restriction of working due to Trade Union Agreements or other reasons which We could not reasonably have identified or been aware of from Our site survey; and
f) Use of specialist lifting equipment (if not agreed in writing beforehand).
10.4 We shall invoice You for any Services, including but not limited to AG Automation Ltd or Engineer Call Outs, and You shall pay Us, upon completion of the work or visit.
10.5 We shall invoice You the Price for Servicing annually in advance.
10.6 If You experience problems with the Products and Services please refer to Our warranties in Clause
7. If You are a consumer You agree that in the event of any alleged minor defect in the Products or Services, You shall not withhold more than a proportionate amount of the sum due to Us under the Contract. If You are a business, You agree that You shall not withhold or set-off payment of any amount due to Us under the Contract for any reason.
10.7 If You are an account customer, We will agree a credit limit with You in writing. Unless such credit terms have been agreed, all invoices shall be due for payment immediately on presentation.
10.8 If You do not pay Us by the due date, We have the right to charge You interest on the overdue amount (and any fees associated with recovering the debt) in accordance with the Late Payment of Commercial Debts (Interest) Act (1998) (as amended). You must pay Us interest and fees together with any overdue amount.
10.9 If You dispute an invoice in good faith and contact Us to let Us know within five (5) days of receiving an invoice that you dispute it, Clause 10.8 will not apply for the period of the dispute. However, if payment is overdue and You have not notified Us that You dispute an invoice within this five (5) day period, then We reserve the right to suspend provision of the Products and/or Services until We have received payment in full in cleared funds from You.
11 Limitation of Liability
11.1 We shall be liable to You in respect of:
a) death or personal injury caused by Our negligence or the negligence of Our employees, agents or subcontractors or by any faulty Product supplied to You by Us;
b) fraud or fraudulent misrepresentation by Us;
c) Our breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
d) if You are a consumer, Our breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples);
e) if You are a consumer, defective Products under the Consumer Protection Act 1987; and
f) if You are a consumer, loss or damage directly caused and that is a foreseeable result of Our breach of the Terms and Conditions or Our negligence..
11.2 Subject to Clause 11.1 We shall not be liable for any loss of use, lost profits, loss of revenue, loss of anticipated savings, loss of goodwill, loss of reputation, loss of business, business interruption, loss of business opportunity or any indirect or consequential loss (except if You are a consumer, any indirect or consequential losses that were foreseen or foreseeable). If You are a business Our maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 125% of the Price paid and payable by You under the Contract.
11.3 All other liabilities are excluded to the fullest extent permitted by law. Subject to Clause 11.1, We shall not be liable for any claims, losses, costs or damages arising from any of the following events or circumstances and You shall be solely responsible for any associated additional costs, unless otherwise agreed by Us in writing beforehand:
a) Flooding of any part of the installation;
b) Inherent problems with timber products, where these have been used against Our advice or recommendations;
c) Damage to underground cables or pipes where You have not provided Us with a Utilities Plan or where the Utilities Plan that You provided Us with is out of date or is incorrect in any way;
d) Damage or consequential effects caused by foliage or vegetation not properly cleared from the installation site by You or Your third party supplier;
e) Your failure to carry out any safety recommendations made by Us;
f) Any damage caused by Us to Your or a third party’s property other than as described by Clause 5.6;
g) Problems arising from the use or re-use of Existing Equipment, existing structures or items against Our recommendations; or
h) Problems arising due to faults in Existing Equipment which We have not inspected or where such faults could not be identified by Us upon reasonable inspection.
12 Intellectual Property.
12.1 The copyright, trade secrets, trademarks and all other intellectual property rights in the Drawings, Statement of Works, Products and Our documentation belong to or are licensed to Us.
12.2 We grant to You a limited licence to use and to share the Statement of Works solely for the purposes of assessing its suitability for Your requirements, for carrying out work required to meet the Installation Requirements and for assessing the Products and the Services for the purposes of accepting them.
13.1 Confidential Information is defined as any information (in any form) relating to the Contract or to Your or Our business affairs or activities, and which: (i) has been marked as confidential, (ii) has been identified as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.
13.2 Each party agrees that the terms of the Contract and the Confidential Information shall be kept confidential between the parties and shall not be disclosed to any third party who does not have a reasonable and lawful need for such information and shall ensure that any such third party shall be bound by the same confidentiality obligations as are set out in this Clause 13.
13.3 If this agreement is terminated, each party shall, at the other party’s choice, return or destroy all
Confidential Information of the other party.
13.4 You agree that We may use photographs of installations carried out by Us for marketing purposes unless You inform Us otherwise in writing.
13.5 If You are a consumer, We will use the personal information You provide to Us to:
a) provide the Products to You;
b) process Your payments to Us; and
c) inform You about similar products or services that We provide, but You may choose to stop receiving these at any time by notifying Us by telephone, email or in writing.
13.6 Other than as required by Clause 13.5 We will not give Your personal data to any other third party unless required to do so by law.
14 Contacting Us
14.1 Our company details are set out at the top of these terms. If You have any questions or if You have any complaints, please contact Us. You can contact Us by telephoning Our main head office on 01672 521382 or email firstname.lastname@example.org
14.2 If you wish to contact Us in writing, or if any clause in the Contract requires you to give Us notice in writing You can send this to Us by e-mail, by hand, or by pre-paid post to the address at the top of these terms. We will confirm receipt to You in writing. If We have to contact You or give You notice in writing, We will do so by e-mail, by hand, or by pre-paid post to the address You provide to Us on the Statement of Works.
15 Other Important Terms
15.1 We may transfer Our rights and obligations under the Contract to another organisation. We will notify You in writing if this happens, but this will not affect Your rights or obligations under the Contract. You may only assign or transfer Your rights or obligations under the Contract if We agree in writing.
15.2 We will not be responsible for any failure to perform, or for any delay in performance of, any of Our obligations under the Contract which is caused by an event outside Our reasonable control that directly or indirectly delays or prevents Our timely performance under the Contract. Any agreed dates or times shall be postponed automatically for the period of delay arising from the event.
15.3 The Contract constitutes the entire agreement between You and Us, and supersedes and takes precedence over all other representations, agreements and other communications between You and Us on this subject, both oral and written. If there is anything important to You that You feel is not covered clearly within either these Terms and Conditions or the Statement of Works, please do not sign the Statement of Works. Instead, request amendments or improvements to the Statement of Works until You are happy that they properly address all of the key issues that matter to You.
15.4 If a dispute arises that You and We are unable to resolve between ourselves, You and We agree to first attempt to settle it by mediation under the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure, and neither party shall commence court proceedings until it has attempted to settle the dispute by mediation. However, nothing in the Contract shall limit either party’s right to seek injunctive relief.
15.5 These Terms and Conditions and the Contract are governed by English law. If You are a consumer, subject to Clause 15.4, You and We both agree to submit to the non-exclusive jurisdiction of the English courts, although if You are a resident of Northern Ireland You may also bring proceedings in Northern Ireland, and if You are a resident of Scotland, You may also bring proceedings in Scotland. If You are a business, then subject to Clause 15.4 You and We both agree to submit to the exclusive jurisdiction of the English courts.
15.6 Each of the paragraphs of these Terms and Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15.7 If We fail to insist that You perform any particular obligation under the Contract, or if We do not enforce Our rights against You when We are entitled to do so, or if We delay in doing so, that will not mean that We have waived Our rights against You or that You do not have to comply with those obligations. If We do waive a default by You, We will only do so in writing, and that will not mean that We will automatically waive any later default by You.
15.8 The Contract may not be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by Us and You.
15.9 The Contract is between You and Us. No other person shall have any rights to enforce any of its terms. If You are a consumer, any purchaser of Your property will have the benefit of the warranties at Clause 7, but We and You will not need their consent to cancel or make any changes to the Contract.