The following definitions and rules of interpretation apply in these Conditions.
Definitions:
Additional Charges:
means the amount payable by the Customer to Cladspray for the Additional Services under the
Contract.
Additional Services:
means services in addition to the Services agreed in writing between the parties in
accordance with clause 5.7, and performed by Cladspray under the Contract.
Business Day: a day
other than a Saturday, Sunday or public holiday in England, when banks in London are open
for business.
Charges: the charges
payable by the Customer for the supply of the Services in accordance with clause 5,
including any Additional Charges.
Cladspray: Cladspray
Solutions Ltd registered in England and Wales with company number 08551448.
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 10.5.
Contract: the contract
between Cladspray and the Customer for the supply of Services in accordance with these
Conditions.
Customer: the person or
firm who purchases Services from Cladspray.
Customer Default: has
the meaning set out in clause 4.2.
Order: the Customer’s
order for Services as set out in the Customer’s purchase order form, or in the Customer’s
written acceptance of Cladspray’s quotation, as the case may be.
Specification: the
description or specification of the Services provided in writing by Cladspray to the
Customer.
Services: the services supplied by Cladspray to the Customer
as set out in the Specification, and any Additional Services (if any).
Interpretation:
A reference to a statute or statutory provision is a reference
to it as amended or re-enacted. A reference to a statute or statutory provision includes all
subordinate legislation made under that statute or statutory provision.
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.
A reference to writing
or written includes fax and email.
Basis of contract
The Order constitutes an offer
by the Customer to purchase Services in accordance with these Conditions.
The Order shall only be deemed
to be accepted when Cladspray issues written acceptance of the Order at which point and on which
date the Contract shall come into existence (“Commencement Date”).
Any samples, drawings,
descriptive matter or advertising issued by Cladspray, and any descriptions or illustrations
contained in Cladspray’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.
These Conditions apply to the
Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or
which are implied by trade, custom, practice or course of dealing.
Any quotation given by
Cladspray shall not constitute an offer, and is only valid for a period of 30 Business Days from its
date of issue.
Supply of Services
Cladspray shall supply the
Services to the Customer in accordance with the Specification in all material respects.
Cladspray shall use all
reasonable endeavours to meet any performance dates specified in the Specification, but any such
dates shall be estimates only and time shall not be of the essence for performance of the Services.
The Customer acknowledges that, in accordance with clause 10.1, certain matters outside of
Cladspray’s control, including any adverse weather, may hinder or delay Cladspray’s ability to
undertake the Services within the timeframe(s) (if any) set out in the Specification. In such
instances, Cladspray shall not be held responsible for any loss, damage or costs incurred as a
result of such delay.
Cladspray 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 Cladspray
shall notify the Customer in any such event.
Cladspray warrants to the
Customer that the Services will be provided using reasonable care and skill.
Cladspray will ensure that all
materials supplied in the provision of the Services comply with safe building practices and are free
from defects and that the Services are carried out with reasonable care and skill and to a
reasonable standard.
Prior to issuing written
acceptance of the Order pursuant to clause 2.2, Cladspray may carry out an inspection to make sure
that all Services quoted are appropriate and practicable.
If, after Cladspray’s
inspection pursuant to clause 3.6, any further work is necessary either because of alterations in
design, specification or otherwise and this causes an increase in costs, Cladspray will send the
Customer a further quotation giving details of the extra costs and will only proceed with the
Services once the Customer’s revised purchase order has been received pursuant to clause 2.1 and
Cladspray has issued written acceptance of the Order pursuant to clause 2.2.
Subject to clause 3.9 and
clause 4.2, Cladspray will make good any damage caused by Cladspray or its employees or contractors
whilst carrying out the Services to the extent such damage could have been avoided had the Customer
followed Cladspray’s reasonable instructions.
Notwithstanding clause 3.8, the
Customer acknowledges that, whilst Cladspray shall use its reasonable endeavours to avoid, limit or
mitigate any Overspray as a result of the Services, the Customer acknowledges that Overspray is a
potential consequence of the Services, and Cladspray will not be responsible for any loss, damage or
costs resulting from such Overspray in the event the Overspray could have been avoided had the
Customer followed Cladspray’s reasonable instructions, including any instructions in respect of
clearing the site. For the purposes of this clause 3.9, the term ‘Overspray’ shall mean anything where paint or other materials that Cladspray are
applying at the site as part of the Services, unintentionally make contact with any objects or
surfaces that were not intended to be treated.
Following completion of the
Services, the Customer shall have two Business Days in which to notify Cladspray of any issues with
the Services, including any Overspray.
If the Customer fails to give
notice of rejection of the Services or any part thereof, within two Business Days of completion of
the Services, it shall be deemed to have accepted the Services as if it had signed the Project
Sign-Off Sheet.
Notwithstanding clause 3.11,
the Customer’s signing of the Project Sign-Off Sheet shall evidence the Customer’s acceptance of the
performance of the Services.
Customer’s obligations
The Customer shall:
ensure that the terms
of the Order and any information provided in the Specification are complete and
accurate;
co-operate with
Cladspray in all matters relating to the Services;
provide Cladspray, its
employees, agents, consultants and subcontractors, with access to the Customer’s premises
and other facilities as reasonably required by Cladspray;
provide Cladspray with
such information, measurements and materials as Cladspray may reasonably require in order to
supply the Services, and ensure that such information is complete and accurate in all
material respects;
prepare the Customer’s
premises for the supply of the Services, including the clearing of any parking area(s)
around the relevant building(s), site(s) or premises, as Cladspray might request;
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; and g. comply with all applicable laws,
including health and safety laws.
If Cladspray’s performance of any of its obligations under the Contract
is prevented, hindered or delayed by any act or omission by the Customer or failure by the Customer
to perform any relevant obligation, including those set out in clause 4.1 (“Customer
Default”):
without limiting or
affecting any other right or remedy available to it, Cladspray 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 Cladspray’s performance of
any of its obligations;
Cladspray shall not be
liable for any costs or losses sustained or incurred by the Customer arising directly or
indirectly from Cladspray’s failure or delay to perform any of its obligations as set out in
this clause 4.2; and
The Customer shall
reimburse Cladspray on written demand for any costs or losses sustained or incurred by
Cladspray arising directly or indirectly from the Customer Default, including any charges in
relation to time wasted.
Charges and payment
The charges for the Services
(including details of any deposit to be paid by the Customer in advance (“Deposit”)) shall be set
out in the Order, and shall be the full and exclusive remuneration of Cladspray in respect of the
performance of the Services, subject to clause 5.7. Unless otherwise agreed in writing by the
Customer, the charges shall include every cost and expense of Cladspray directly or indirectly
incurred in connection with the performance of the Services.
The Customer shall pay the
Deposit to Cladspray in full and cleared funds to a bank account nominated in writing by Cladspray
prior to Cladspray’s commencement of the Services. Cladspray shall invoice the Customer for the
balance of the charges at its discretion either on a monthly basis (on the last Business Day of the
relevant month) or on completion of the Services.
The Customer shall pay each
invoice submitted by Cladspray: (a) within 30 days of the date of the invoice; and (b) in full and
in cleared funds to a bank account nominated in writing by Cladspray, and time for payment shall be
of the essence of the Contract.
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
Cladspray to the Customer, the Customer shall, on receipt of a valid VAT invoice from Cladspray, pay
to Cladspray 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.
If the Customer fails to make a
payment due to Cladspray under the Contract by the due date, then, without limiting Cladspray’s
remedies under clause 8, 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 5.5 will
accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a
year for any period when that base rate is below 0%.
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).
In addition to clauses 2.5,
3.3, and 3.7 and after the acceptance of an Order, in the event that:
the Customer requests
amendments or additions to the Services; or
Cladspray is required,
whether by applicable law or as a result of further inspection of the site, to amend the
Services or provide additional services ancillary to the Services in order to comply with
such applicable law and/or the results of such inspection,
(each an Additional
Service), Cladspray shall be entitled to charge
the Customer Additional Charges for such Additional Services. In such instance, Cladspray shall
provide the Customer with a revised quotation setting out such Additional Services and
Additional Charges and shall not be obliged to recommence the Services or the Additional
Services until such time as the Customer provides its written acceptance of the Additional
Charges.
In the event a Deposit is not set out
in the Order but, following Cladspray’s credit checks against the Customer, Cladspray is of the
opinion the
Customer poses a potential risk as a result of the results of such credit checks, it reserves the
right to
request a Deposit prior to commencement of the Services, and payment of such Deposit and the balance
of
Charges shall be in accordance with this clause 5.
Customer Guarantee
Where agreed in the Order,
Cladspray shall provide the Customer with a Cladspray written guarantee for completed Services
(“Guarantee”). A Guarantee shall only be provided once Cladspray’s invoice is paid by the Customer
in accordance with clause 5.3.
The Customer may reject the
Services delivered to it that do not comply with clause 6.1, provided that:
notice of rejection is
given to Cladspray;
in the case of a defect
that is apparent on normal visual inspection, within 48 hours of completion of the
Services;
in the case of a latent
defect, within a reasonable time of the latent defect having become apparent and within the
timeframe set out in clause 6.1; and
none of the events
listed in clause 6.3 apply.
Cladspray shall not be liable
for the Services’ failure to comply with the warranties set out in clauses 3.1 or 6.1 if:
the Customer makes any
further use of the Services after giving notice;
the defect arises
because the Customer failed to follow Cladspray’s oral or written instructions;
the defect arises as a
result of Cladspray following any specification or instruction supplied by the
Customer;
the Customer alters or
repairs the surfaces to which the Services were provided without the written consent of
Cladspray;
the defect arises as a
result of fair wear and tear, wilful damage or negligence; or
the Services differ
from the Specification as a result of changes made to ensure they comply with applicable
statutory or regulatory requirements.
If the Customer rejects the
Services under clause 6.2, then the Customer shall be entitled to require Cladspray to repair or
reperform the rejected Services. Once Cladspray has complied with the Customer’s request, it shall
have no further liability for the reject Services failure to comply with clauses 3.1 or 6.1.
Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
Nothing in the Contract limits
any liability which cannot legally be limited, including liability for death or personal injury
caused by negligence; for fraud or fraudulent misrepresentation; or in any other circumstances where
liability may not be limited under any applicable law.
Subject to clauses 7.1 and 7.3,
Cladspray’s total liability to the Customer whether in contract, tort, negligence, for breach of
statutory duty or otherwise for any loss or damage, costs or expenses arising under or in connection
with the Contract shall not exceed 100% of the total charges paid to Cladspray under the
Contract.
Subject to the provisions of
clause 7.1, neither party shall be liable to the other whether in contract, tort, negligence, for
breach of statutory duty or otherwise for loss of profit, revenue, use, or anticipated savings, in
each case whether direct or indirect, or any indirect or consequential loss or damage, costs or
expenses whatsoever or howsoever arising out of or in connection with the Contract. This clause 7
shall survive termination of the Contract.
Termination
Without affecting any other
right or remedy available to it, Cladspray may terminate the Contract by giving the Customer two (2)
weeks’ written notice, save that:
in the event the
anticipated commencement of the Services is expected to be within 2 weeks’ of the
Commencement Date, as much prior written notice as Cladspray may reasonably give; or
in the event Cladspray
undertakes its usual credit checks against the Customer after the date of the Contract and
determines in its opinion that the Customer is a potential risk as a result of the results
of such check, on immediate notice.
Without affecting any other
right or remedy available to it, the Customer may terminate the Contract by giving Cladspray two (2)
months’ written notice.
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:
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 fourteen (14) days of that party being notified in writing to do
so;
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), 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;
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
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.
Without affecting any other
right or remedy available to it, Cladspray may terminate the Contract with immediate effect by
giving written notice to the Customer if the Customer fails to pay any amount due under the Contract
on the due date for payment.
Without affecting any other
right or remedy available to it, Cladspray may suspend the supply of Services under the Contract or
any other contract between the Customer and Cladspray if the Customer fails to pay any amount due
under the Contract on the due date for payment, the Customer becomes subject to any of the events
listed in clause 8.2(b) to clause 8.2(d), or Cladspray reasonably believes that the Customer is
about to become subject to any of them.
Consequences of termination
On termination of the Contract
the Customer shall immediately pay to Cladspray all of Cladspray’s outstanding unpaid invoices and
interest and, in respect of Services supplied but for which no invoice has been submitted, Cladspray
shall submit an invoice, which shall be payable by the Customer immediately on receipt;
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.
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.
General
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, including but not limited to, any adverse whether which might
prevent or delay
the performance of the Services.
Assignment and other
dealings.
Cladspray 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.
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 Cladspray.
Confidentiality.
Each party undertakes that it shall not at any time during the
Contract, and for a period of five (5) years after termination 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 10.3(b).
Each party may disclose the other party’s confidential
information:
to its employees, officers, representatives,
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, subcontractors or advisers to whom it
discloses the other party’s confidential information comply with this clause 10.3;
and
as may be
required by
law, a
court of
competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s confidential
information for
any
purpose other than to perform its obligations under the Contract.
Entire agreement.
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.
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.
Nothing in this clause shall
limit or
exclude any liability for fraud.
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).
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.
Severance. If any provision or
part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed
modified
to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or
deletion
of a provision or part-provision under this clause shall not affect the validity and enforceability
of the
rest of the Contract.
Notices.
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); or sent by fax to its main fax number or sent by email to:
for Cladspray: the email address specified in Cladspray’s written
acceptance of
the Order; and
for the Customer: the email address specified in the Customer’s
Order.
Any notice or communication shall be deemed to have been received:
if delivered by hand, on
signature of a
delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class
post or
other next working day delivery service, at 9.00 am on the second Business Day after posting or at
the time
recorded by the delivery service; and
if sent by fax or 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 10.8(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.
This clause 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.
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.
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.
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.
How to contact Cladspray.
Cladspray
aims to provide a high level of service. If a Customer has an enquiry or complaint regarding the
Services
provided by Cladspray please address them to Tom Carter (Managing Director), 15 Mason Road, Norwich
NR6
6RF.
