TERMS AND CONDITIONS
In this Agreement unless the context otherwise requires, the following expressions shall have the following respective meanings. Words in the singular shall include the plural and vice versa.
“Agreement” The Agreement as set out in this document and in the Assignment Instructions (where relevant).
“Agreement Period” The period from the Commencement Date until termination of this Agreement.
“Assignment Instructions” The document (if any) entitled “Assignment Instructions” and all subsequent written (but not oral) amendments thereto from time to time agreed by the Client and the
Company and signed on behalf of each of them.
“Associate” Any associate (as defined in Section 435 of the Insolvency Act 1986) of the Client of any its or their officers, employers, agents or sub-contractors.
“Charges” The charges specified in the Agreement as amended from time to time.
“Company’s Group” Means, from time to time, the Company, any subsidiary undertaking of the Company, any parent undertaking of the Company, any subsidiary undertaking of any such parent undertaking any franchisee of any member of the Company’s Group and the terms “subsidiary undertaking” and “parent undertaking shall have the meanings ascribed to them in section 1162
Companies Act 2006.
“Equipment” Any equipment, machinery, tools, materials or consumables of any description.
“Key” Includes keys and any electronic key-car or similar access device.
“Key Receipt” The Company’s receipt given to the Client on receiving Keys to the Premises from the Client.
“Losses” Any and all costs, claims, proceedings, losses, damages, proceedings and expenses.
“Personnel” The personnel engaged in the provision of the Services.
“Regulations” The Transfer of Undertakings (Protection of Employment) Regulation 2006 as amended, replace or re-enacted from time to time.
“Representative” An officer, employee, agent or sub-contractor any of the Company’s Group and any Personnel.
“Services” All or any of the services provided to the Client by the Company described in this Agreement and in any Assignment Instructions.
“Supplies” Any Equipment supplied (or to be supplied) to the Client, not including Equipment rented (or to be rented) to the Client.
References to Clauses and Sub-clauses are references to Clauses and Sub-clauses of this document.
Subject to the Client fully complying with its obligations hereunder, the Company undertakes to provide the Services and the Supplies to the Client at the Premises on the terms and conditions set out in the Agreement.
The Representatives will at all times safeguard any Keys entrusted to the Company for the purpose of performing the Services in respect of which a Key Receipt shall have been issued to the
Client by any Representative. In the event of any form of industrial action affecting the Premises or the Client’s or any other employees, the Company shall not be obliged to perform any duties or functions previously performed by the Client’s or any other person’s employees involved in the industrial action but shall subject as aforesaid continue to perform the Services to the extent possible in the circumstances.
The Company shall not be obliged to perform the Services or deliver Supplies where such performance would expose any Representative to risk of physical injury.
PROVISION OF FACILITIES AND THE PREMISES
The Client will at all times and at no charge to the Company provide and maintain such facilities at the Premises as the Company may reasonably require to carry out the performance of the services, which facilities shall included (without prejudice to the generality of this provision) adequate heating, lighting, water, power, waste disposal and toilet facilities. The Client hereby warrants that the Premises are safe for the Company to carry out the Services and in particular, but without limitation, they comply with all relevant UK health and safety legislation. The Client will
indemnify and keep indemnified the Company against any Losses it may incur or suffer in connection with any death or physical injury suffered by any Representative or loss of or damage to the property belonging to the Company, or any Representative arising, in each case, from the unsafe state of the Premises or anything situated thereon belonging to or under the control of the Client.
The Client will effect adequate insurance cover with reputable insurers at the Client’s own expense for any liability it may incur under this Sub-clause. The Client will allow the Representative such access to the Premises as is reasonably required for the purpose of providing the Services and delivering the Supplies. Where such access is not permitted for any reason the Client agrees in any case to pay the Charges in full as if such access had been permitted and the Services and Supplies provided. Where the Company is in possession of Keys provided by the Client for the purpose of the Services, the Company shall provide the Client with a Key Receipt detailing the number, serial number/identity number of the Keys, the date, and the name of the Representative receiving the Keys. The Key Receipt shall be signed by both parties and a copy of the Key Receipt shall be given to the Client.
If at any time during the period of this Agreement there is an increase in costs to the Company in providing the Services or the Supplies which are beyond the Company’s control including (without limitation) an increase in the national minimum wage, changes to National Insurance contributions, or any other additional liabilities, or other liabilities imposed on the Company by legislation or other change in the law after the Commencement Date, then the Charges or any part thereof may be increased pro rata to include such increase with effect from the expiry of 28 days notice from the Company to the Client of the increase. Without prejudice to any other remedy which it may have, if the Client fails to pay any amount payable by it under this Agreement on its due date, the Company shall be entitled to charge interest which shall accrue daily and be compounded monthly at the rate in force pursuant to the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 on all such overdue sums from the due date to the date of actual payment whether before or after any judgement together with all professional, legal and other debt recovery costs, fees and expenses incurred by the Company, before and after judgment. Time shall be of the essence as regards payment of the Charges.
Any additional services in addition to the Services provided to the Client at its request by the Company will in any event, in the absence of an express written agreement by the Company to the contrary, be subject to the terms and conditions of this Agreement and recorded in the Assignment Instructions. The Company reserves the right to refuse to perform any such additional services.
Notwithstanding the provision of Clause 5.1 the Client will advise the Company in writing of any additional services requested by the Company, the performance of which shall be subject to payment by the Client of the Company’s additional charges in respect of such additional services, in addition to the Charges. Whilst the Company will endeavour to comply with any request for additional services from the Client, the Client acknowledges that the Company’s ability to do so will be governed by the availability and capacity of suitable qualified personnel and the extent of the advance notification given by the Client. The Company reserves the right without reason to refuse to perform any additional services.
EQUIPMENT AND SUPPLIES
All Equipment used by the Company in the provision of the Services (not including Supplies but including Equipment rented to the Client) shall remain the property of the Company or its Representatives. The Client will indemnify and keep indemnified the Company against any Losses (including repair or replacement as new costs) it may incur or suffer in connection with any loss of or damage to property, including Equipment belonging to or under the control of the Company or any Representative whilst at the Premises. Upon termination of this Agreement for whatever reason the Company shall, upon giving reasonable notice to the Client, be permitted to remove all or any of its Equipment which may have been placed by it in or upon the Premises and the Client hereby grants permission to the Company and the Representatives to enter the Premises to carry out such removal, failing which the Client will reimburse the Company for the full replacement cost of the Equipment.
The Company’s obligation to provide Equipment (whether as rental equipment or otherwise) shall be suspended (but all relevant Charges shall remain payable in full) during any period that the Equipment is damaged or in the process of replacement or repair, due to the wilful damage, negligence, mishandling, tampering or unauthorised repair of the Equipment by the Client or any Associate.
The Client and its Associates shall.
(a) not sell, part with possession of, pledge or otherwise dispose of any Equipment and shall take no action inconsistent with the Company’s or its Representative’s ownership of the Equipment;
(b) insure against injury (including death) to any persons or for loss of or damage to property as a result of the Client’s default or negligence in the operation or use of the Equipment;
(c) shall immediately notify anyone claiming possession of the Equipment that it belongs to the Company or its Representative:
(d) shall comply with all statutory and safety requirements relating to the use of the Equipment;
(e) shall notify the Company immediately of any damage, destruction or loss to or of any Equipment;
(f) shall not any time permit any Equipment to be removed, cleaned or repaired or maintained other than by the Company or its Representative.
Risk of damage to or loss of any Supplies provided to the Client shall pass to the Client at the time of delivery.
Notwithstanding delivery and the passing of risk in any Supplies, the property and title in all Supplies shall not pass to the Client until the Company has received in cash or cleared funds payments in full of the Charges for the Supplies and all Services for which payment is then due.
Until such time as the property and title in any Supplies passes to the Client:
the Client shall hold such Supplies as the Company’s fiduciary agent and bailee and shall keep those Supplies separate from those of the Client and third parties and properly stored, protected and insured and identified as the Company’s property business.
the Company shall be entitled at any time to require the Client to delivery up the Supplies to the Company and if the Client fails to do so forthwith, to enter upon any premises of the Client or any
third party where the Supplies are stored and repossess the Supplies.
SUSPENSION OF SERVICES
The Company shall not be liable to the Client for any Losses caused to or suffered by the Client as a direct or indirect result of the supply of the Services or any Supplied being suspended pursuant to Sub-clause 7.3 or being prevented, restricted, hindered or delayed by reason of any circumstances outside the reasonable control of the Company.
The Company will give notice in writing of suspension of the Services under Sub-clause 7.3 and any other circumstances referred to in Sub-clause 7.1 to the Client stating the reason in question as soon as practicable. Upon service of such a notice: (i) the obligations of the Company to perform the Services and deliver Supplies shall forthwith be suspended until the Company service notice on the Client that such circumstances have ceased; and (ii) the Client shall immediately pay to the Company all arrears of Charges then due for payment. The Client shall be liable to make payment in respect of the period of any such suspension as if the Services had been provided during that period.
Notwithstanding Clause 4.2 the Company shall be entitled to suspend the Services and delivery of any Supplies during the period that any monies remain outstanding from the Client for more than 7 days past their due date for payment.
ASSIGNMENT BY THE COMPANY
Notwithstanding any other provision in this Agreement or any subsequent modification of this Agreement, the Company shall be entitled to freely assign its rights under this Agreement and/or subcontract
its obligations, at any time, to any member of the Company’s Group. Following receipt of written notice of any such assignment the Client hereby agrees to enter into a formal novation of this Agreement to any such member of the Company’s Group.
Notwithstanding any other provisions of this Agreement, this Agreement may be terminated by the Company forthwith if the Client is adjudged bankrupt, or shall go into liquidation, or any a petition presented against it seeking the making of an administration order, or shall suffer the appointment of a receiver, or an encumbrancer takes possession over all or any of its assets, or shall make an arrangement or composition for the benefit of any of his or its creditors, or a resolution is passed or an order is made or petition present for the winding up of the Client.
Without prejudice to any other remedy available to it, if any payment due from the Client to the Company under this Agreement (in whole or in part), including any Charges, is unpaid for a period of 7 days after it has become due, the Company may at any time thereafter give to the Client 7 days written notice to terminate this Agreement and unless such overdue sum has been paid before
the expiration of such notice period, the Company shall, without need for the giving of any further notice, have the absolute right at any time thereafter to cease to provide the Services and any Supplies whereupon this Agreement shall then terminate absolutely and the Company’s obligations hereunder shall cease, but without prejudice to the liabilities of the Client to the Company.
The Company may terminate this Agreement forthwith if credit references relating to the Client are obtained which are unsatisfactory to the Company.
In the event that, following termination of this Agreement, the employment of any employee of the Company’s Group transfers or is deemed to transfer to the Client or any other third party (the “transferee”) as a result of the operation of the Regulations, then the Client agrees to indemnify the Company against any and all Losses incurred or suffered by any member of the Company’s
Group as a result of the acts or omissions of the transferee in relation to any such employee on or after the date of such transfer or deemed transfer, and any failure by the transferee to comply with any part of the Regulations.
In the event that any insurance cover held by the Company in respect of the Services becomes unavailable, or its cost is materially increased by reasons outside of the control of the company,
then upon receipt of notice to that effect, the Client shall be entitled to specify to the Company in writing that it accepts that the Company shall exclude all liability to the Client for Losses that would otherwise have been covered by such insurance, or to terminate (without liability for either party) this Agreement forthwith by notice in writing to the company.
If the Client purports to terminate this Agreement before expiry of the minimum term or other than by notice pursuant to Clause 9.5, or giving the required period of notice as shown overleaf, or if the Company terminates this Agreement in the circumstances set out in Clauses 9.1, 9.2 or 9.3 then the Client shall pay to the Company upon receipt of an invoice therefore by way of liquidated and agreed damages a sum equal to the Charges due for either: the balance of the minimum term or if this is less than the required period of notice; the period from the date of the said notice of termination until expiry of the required period of notice.
LIABILITY AND INSURANCE
The liability (if any) of the Company and its Representatives to the Client howsoever arising in respect of any Losses whatsoever (other than liability for personal injury and/or death to the extent caused by the negligence of the Company) shall be limited to physical loss and damage directly arising from such liability and shall be limited in accordance with the following provisions, which are without prejudice to each other and to other provisions of this Agreement:
All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law, excluded from this Agreement by the Company. Nothing in this Agreement shall however affect the statutory rights of the Client.
The company shall have no liability for any loss of profit, loss of business, loss of opportunity, damage or depletion to goodwill, loss of opportunity, loss of goods, loss of contract, loss of use, loss of data or any economic loss or any special, indirect or consequential unforeseeable loss howsoever caused.
The liability (if any) of the Company in respect of all or any Losses arising out of or by reason of any act or default of the Company (or any representative) in breach of contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall not exceed the Individual Limit in respect of any one incident or series of related incidents and shall not exceed the Overall Limit in respect of all or any incidents howsoever arising in any period of twelve consecutive months.
Subject to (e) below the liability (if any) of the Company in respect of the replacement of locks and/or Keys arising from the loss or misplacement of Keys of the Client by the Company, or any of its
Representatives shall not exceed £20,000 in respect of each such incident.
The Company shall have no liability whatsoever in respect of any losses arising from the loss or misplacement of Keys in respect of which no Key Receipt has been issued to the Client by the company or its Representatives.,unless due to the negligence of the company.
The Client shall not be entitled to make any claim against the Company or any Representative unless it gives the Company written notice of the event giving rise to such claim, containing sufficient information for it to be identified and investigated by the Company, as soon as reasonably practical after the Client becomes or ought reasonably to have become aware of the occurrence of such event.
The Company shall have no liability in respect of any Losses caused by the injurious act or default of any Representative unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of the Company. Where such injurious act or default should have been foreseen or avoided by the company, its liability (if any) shall not exceed the liabilities of the Company as set out in this Sub-clause 10.1.
The Company shall not be liable for physical damage to property other than that which is the direct result of the Company’s negligence in carrying out the Services.
The Client shall for all purposes be treated by the Company and its Representatives as the sole beneficial owner of the Premises and all of the contents or things thereon whether buildings or chattels. In the event that any third party makes a claim or allegation against the Company or any of its Representatives for Losses in excess of the level of liability referred to in Sub-clause10.1 or Losses which are excluded under this Clause 10, then to that extent, the Client agrees to indemnify the Company and its Representatives against all losses which the Company or its
Representatives incur or suffer as a result of such a third party claim.
If any Representative of the Company, acting upon the instructions of the Client or any of its Associates, shall take or omit to take any action which is outside the scope of the Services or which
requires the Services to be performed other than in accordance with this Agreement, the Company shall have no liability for any Losses arising as a result of such act or omission and the Client shall indemnify the Company against all Losses it may incur or suffer as a result of such act or omission.
The Company warrants that it has in force and will maintain during the term of this Agreement, Employers Liability Insurance and Public Liability Insurance.
The Client agrees to indemnify the Company’s Group in respect of Losses which it may suffer as a result of the termination by any of the Company’s Group of the employment of any person engaged in the provision of the services arising as a result of the termination of this Agreement, or the suspension or reduction of any part of the Services, for any reason. The client shall
indemnify the Company’s Group against all or any Losses incurred by the Company where and to the extent that such Losses arise directly or indirectly as a result of any act or omission of the
Client or any Associate of it which is either negligent or in breach of this Agreement.
In the event that any individual’s employment transfers to the employment of the Company’s Group by virtue of the Regulations and the provision of the Services by the Company (the “Transferring
Employees”) then the provisions of this clause 10.8 shall have effect.
The Client warrants and undertakes to the Company to comply with the regulations in relation to the Transferring Employees.
The Client agrees to indemnify the Company’s group against all Losses which it suffers or incurs as a result of (i) the Client’s breach of the warranty set out in Sub-clause 10.8(a); (ii) any acts
or omissions (including without limitation failure to pay any accrued emoluments and to comply with statutory obligations) of the previous employer in relation to the Transferring Employees prior to the date of such transfer; (iii) any change of identity of employer occurring by virtue of the Regulations and/or this Agreement being significant and detrimental to any of the Transferring
PROTECTION OF THE Company’s INTERESTS
The Client shall:
Not, and shall procure that its associates do not, without the consent of the Company during the term of this Agreement or for a period of 90 days thereafter directly or indirectly solicit or entice away or employ or endeavour to solicit or entice away or employ any Representative where such person is to be engaged by the Client or its associates in a similar capacity to his engagement by a member of the Company’s Group:
Keep strictly confidential and not use (save as properly required in connection with the operation of this Agreement) at any time any information in relation to the Services and/or costs or other financial information which the Company discloses to the Client or its advisors has access either in the course of the Agreement and/or the negotiations leading up to it.
If the Client shall commit any breach of its obligations under Sub-clause 11.1(a) it shall pay to the Company a sum equal to 20 per cent of the amount of the relevant person’s annualised gross earnings immediately preceding the termination of his employment or other arrangement with the company, or if higher, 20 percent of the amount of the relevant person’s annualised gross earnings paid by the Client or its Associate following employment of such person by the Client or its Associate.
The Client’s obligations of confidentiality shall survive any termination of this Agreement.
Subject to any other rights or remedies available to the parties either under this Agreement or at law:
In the unlikely event there is anything you are not completely satisfied with, please contact us as soon as you can in order that we can rectify any problems as soon as possible. Either call us, write to us or email us at and we aim to respond within x days of receiving your complaint and where possible, will provide you with a date to remedy any issues raised.
Where we are unable to resolve your complaint using our own complaints procedure, as a Which? Trusted trader we use Ombudsman Services Ltd for dispute resolution. In the unlikely event that we cannot remedy your complaint to your satisfaction you may wish to refer your complaint to them. If you wish to do so please contact Which? Trusted traders in the first instance on 0117 981 2929.
No variation extension exclusion or cancellation of this Agreement (including the Assignment Instructions) shall be binding until it is confirmed in writing in the case of the Assignment Instructions, by the Client and the Company, or in the case of any provisions of this Agreement under the hand of a Director of the Company.
HEALTH AND SAFETY
All chemicals, solvents, cleaning materials and pesticides (if relevant) used by the Company are approved under the Control of Pesticides Regulations 1986 and have been assessed for any hazard under the Control of Substances Hazardous to Health Regulations (COSHH)
THIRD PARTY RIGHTS
Except for any member of the Company’s Group, no term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
PARTNERSHIP OR AGENCY
Nothing in this Agreement shall be construed as constituting either party as the agent or the other for any purpose whatsoever and all Personnel shall be employees of the Company’s Group.
Any notice to be given under the Agreement shall be in writing and shall be sent by hand or by first-class mail to the relevant party at the address appearing at the head of this Agreement (or such other address as shall be notified in writing for the purpose of this Clause) and if by mail shall be deemed to have been given on the second day (excluding Saturdays, Sundays and English statutory holidays) after despatch.
If any term or provision in this Agreement (or any document referred to herein) is or shall become in whole or in part unenforceable the enforceability of the remainder of this Agreement (or any document referred to herein) shall not be affected or impaired..
The Client shall not be entitled to withhold payment of monies due under this Agreement by reason of any claim or counter claim it may have or allege against any of the Company’s Group or otherwise. The Company shall be entitled to set off against the monies owed by the Company’s Group to the Client, all monies owed by the Company’s Group to the Client, all monies owed by the
Client to the Company’s Group.
This agreement shall expressly override all or any terms or conditions sought to be imposed by the Client howsoever communicated to the Company and whether before or after the date of this
Agreement unless and until such variations to this Agreement are agreed to by the Company in strict accordance with Clause 13 heerof.
The headings in this agreement are for convenience only and shall not affect the construction thereof
LAW AND JURISDICTION
The construction validity and performance of this Agreement and all disputes or claims arising out of it or in connection with its subject matter or formation (including non contractual disputes or claims) shall be governed by English law and the parties hereby submit to the non exclusive jurisdiction of the courts of England and Wales.
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