PX Farms Ltd – Standard Terms and Conditions of Business
These
terms and conditions
apply to the provision to you, the Customer, by us, PX Farms Ltd, the Supplier,
of services.
1 Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (“Conditions”).
“Contract” means the agreement between the Customer and the Supplier incorporating these Conditions and the Customer’s purchase order or the Supplier’s quotation, as the case may be, under condition ;
“Control” means direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of either the Customer or Supplier, as the case may be, and/or to direct the affairs of either the Customer or the Supplier, as the case may be, whether by virtue of the ownership of shares, contract or otherwise.
“Customer” means the person, firm or company who purchases Services from the Supplier;
“Customer’s Equipment” means any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services;
“Document” includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
“Services” means the services to be provided by the Supplier under the Contract as set out in the quote, together with any other services which the Supplier provides, or agrees to provide, to the Customer;
“Supplier’s Equipment” means any equipment, including tools, systems or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer;
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 A reference to writing or written includes faxes but not e-mail.
1.5 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2.1 These Conditions shall:
2.1.1 apply to and be incorporated into the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
2.2.1 by a written acknowledgement issued and executed by the Supplier; or
2.2.2 (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition . Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer on or around the date specified in the quote (with the exact date to be agreed within 2 weeks of the proposed start date).
3.2 Subject to condition , the Services supplied under the Contract shall continue to be supplied for such a period of time as specified in the quote.
4.1 The Supplier shall use reasonable endeavours to manage and/or provide the Services in accordance in all material respects with the quote.
4.2 The Supplier shall supply the Services with reasonable skill and care and shall use reasonable endeavours to meet any performance dates specified in the quote, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under condition , provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5.1 The Customer shall:
5.1.1 co-operate with the Supplier in all matters relating to the Services;
5.1.2 provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier;
5.1.3 provide to the Supplier, in a timely manner, such Documents and other information as the Supplier may require and ensure that it is accurate in all material respects;
5.1.6 ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements ; and
5.1.7 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of Documents and the use of the Customer’s Equipment in relation to the Supplier’s Equipment in all cases before the date on which the Services are to start.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.4 Any consent given by the Supplier in accordance with condition shall be subject to the Customer paying to the Supplier a sum equivalent to 10% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 10% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the invoice, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Condition shall apply if the Supplier provides Services on a time and materials basis. Condition shall apply if the Supplier provides Services for a fixed price. The remainder of this condition shall apply in either case.
6.2 Where Services are provided on a time and materials basis:
6.2.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the quote and as amended from time to time by the Supplier giving not less than 1 month’s written notice to the Customer;
6.2.3 the Supplier shall be entitled to charge an overtime rate of 15% 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 condition ;
6.2.4 all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
6.2.5 the Supplier shall ensure that, if applicable, every individual whom it engages on the Services completes time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges covered by each weekly invoice referred to in condition ; and
6.4 Any fixed price and daily rate contained in the quote excludes the cost of travelling (mileage will be charged at the rate per mile travelled from the Supplier’s premises to the Customer’s premises set out in the relevant invoice) and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier. The quotes shall be based on a fuel cost of 35 pence per litre which may be amended from time to time, on reasonable notice.
6.5 If the Customer asks the Supplier to incur any expenses on the Customer’s behalf then the Supplier may do so subject to agreement with the Customer and the Supplier reserves the right to charge an administration fee, the greater, of 10% of the total costs of the expense or £40.
6.6 The Supplier reserves the right to charge a fee of £25 per person for each hour, or part thereof, that the Supplier or an employee of the Supplier is prevented by the Customer from carrying out the Services;
6.7 The Customer will also be responsible for paying any costs reasonably incurred by the Supplier in connection with the collection of any late payment of the invoices. These will include (but will not be limited to) costs of: (a) communicating with the Customer; and (b) taking steps, including court action, to obtain payment.
6.8 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 14 days of receipt to a bank account nominated in writing by the Supplier.
6.9 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
6.9.1 charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of National Westminster Bank Plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
6.9.2 suspend all Services until payment has been made in full.
6.10 Time for payment shall be of the essence of the Contract.
6.12 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.13 The Supplier shall have, on any grain stored in accordance with this Contract, a particular lien, as well as a general lien, entitling it to retain the grain as security for payment of all sums due from the Customer on any account whether relating to the grain or not. Any relevant storage charges shall continue to accrue on any grain detained under lien.
7 Limitation of liability - THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
7.1 This condition sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
7.1.1 any breach of the Contract;
7.1.2 any use made by the Customer of the Services; and
7.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
7.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
7.3.1 for death or personal injury resulting from negligence; or
7.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
7.4 Subject to condition and condition ;
7.4.1 the Supplier shall not be liable for: (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill and/or similar losses; or (iv) loss of anticipated savings; or (v) loss of contract; or (vi) loss of use; or (vii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
7.4.2 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services.
8.1 Either party may give notice in writing to the other terminating this Agreement with immediate effect if:
8.1.2 an order is made or a resolution is passed for the winding-up of the other party or an administrator is appointed by order of the court or by other means to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is validly appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt;
8.1.3 there is a change of Control of the Customer;
8.1.4 the Customer ceases, or threatens to cease, to carry on business; or
8.1.5 the Customer purports to assign its rights or obligations under this Agreement; or
8.1.6 if the Customer being an individual dies.
8.2 On termination of the Contract for any reason:
8.2.1 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 may submit an invoice, which shall be payable immediately on receipt;
8.2.2 the Customer shall return all of the Supplier’s Equipment and Documents. 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 or repossessed, the Customer shall be solely responsible for their safe keeping; and
8.3 On termination of the Contract (however arising), the conditions 1, 6, 7, 8 and 9 shall survive and continue in full force and effect
9.1 The Customer confirms and acknowledges that it has not been induced to enter into this Contract by any representation, warranty, or undertaking not expressly incorporated into it. However , nothing in this Contract purports to exclude liability for any fraudulent statement or act.
9.2 No variation, other than in accordance with Condition 6.4 of this Contract shall be valid unless it is in writing and signed by an authorised representative of each of the parties.
9.3 The failure or delay of the Supplier to exercise or enforce any right under this Contract shall not operate as a waiver of that right or preclude the exercise or enforcement of it at any time or times thereafter.
9.4 Any notice to be given under this Contract shall be in writing and shall be delivered by prepaid registered post or facsimile to the other party at the address set out in this Contract. Notices are deemed to have been given:
9.4.1 if sent by registered post from within the United Kingdom, three business days after posting (or seven business days if posted from outside the United Kingdom); and
9.4.2 if sent by facsimile, at the time the facsimile is received shown in the transmission report as that time that the whole facsimile was sent unless received after 5pm in the place of receipt or on a non-business day, in which case the notice is deemed to have been given at 9am the next business day.
9.5 Neither party shall be liable for any delay in or for failure to perform its obligations under this Contract, other than an obligation to make any payment due to the other party, if that delay or failure is caused by circumstances beyond the control of that party including, without limitation, fires, strikes, insurrection, riots, embargoes, failure of a telecommunications or internet service provider, or regulations of any civil or military authority.
9.6 The Customer shall not be entitled to assign or transfer all or any of its rights or obligations under this Contract without the prior written consent of the Supplier.
9.7 This Contract constitutes the entire understanding between the parties with respect to the subject matter of this Contract and supersedes and replaces all prior Contracts, negotiations and discussions between the parties relating to it.
9.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract, and nothing in this Contract shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Contract.
9.9 If any provision of this Contract shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Contract and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of this Contract which will remain in full force and effect.
9.10 This Contract shall be governed by and construed in accordance with English law and shall be subject to the non-exclusive jurisdiction of the English Courts.