1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
Acceptance: acceptance of the Goods and/or Services in accordance with condition 8.
Additional Charges: any charges payable by the Customer for the provision by TIS of any Goods or Services under or in connection with the Agreement and which are not included in the Charges.
Agreement: the agreement between TIS and the Customer for the provision of Goods and/or Services created in accordance with these Conditions.
Application: has the meaning given in condition 10.2.
Assessment Day: the last working day in each calendar month.
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 to TIS for the provision of the Goods and/or Services as specified in the Agreement.
Commissioning Tests: where applicable, the tests of the System after installation to ensure it is functioning correctly and in accordance with any applicable specification.
Customer Equipment: any equipment, systems or facilities provided by the Customer and used directly or indirectly in the supply of the Goods and/or Services.
Excluded Loss: means loss or deferment of profit, loss of revenue, loss of use, business interruption, loss of contract, loss of reputation, credit or goodwill, loss or corruption of data or information, loss of opportunity and (except where specifically provided to the contrary elsewhere in the Agreement) costs resulting from non-operation or increased expense of construction, operation or maintenance, cost of finance and cost of purchased or replacement equipment or systems howsoever caused including negligence or breach of duty.
Goods: any goods to be supplied by TIS to the Customer and, where applicable, the goods which form part of or are incorporated into the System.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Services: the installation and commissioning of the System (or part of a System), the repair and maintenance of a System(or part of a System) and/or any other services which TIS provides or agrees to provide to the Customer and “Service” shall mean any of the Services.
Sites: the sites of the Customer at which TIS is to provide the Services (if more than one) and which are listed in the Agreement and “Site” shall mean any of them.
System: any system (or part of a system) to be supplied under the Agreement or a system belonging to the Customer in respect of which TIS provides a Service.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Warranty Statement: TIS’s standard warranty statement from time to time applicable to the supply of Goods and/or Services and which, if not provided with the Agreement is available on request or at www.tis.co.uk.
1.2 Any reference to a person includes any individual, firm, body corporate, unincorporated association, partnership, trust, foundation, government, government body or agency, estate, association or joint venture and includes any person’s executors, administrators, successors and permitted assigns.
1.3 Words in the singular shall include the plural and vice versa.
1.4 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.
1.5 A reference to writing or written includes faxes and e-mail.
1.6 Where the words include(s), including or in particular are used in the Agreement, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when TIS issues written acceptance of the Order or, if earlier, when TIS commences the provision of the Goods and/or Services at which point and on which date the Agreement shall come into existence (Commencement Date).
2.3 These Conditions apply to the Agreement 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.
2.4 Any quotation given by TIS shall not constitute an offer, and (unless otherwise stated in the quotation) is only valid for a period of 30 days from its date of issue.
2.5 Any samples, drawings, descriptive matter or advertising issued by TIS and any descriptions of the Goods or illustrations or descriptions of the Services contained in any specifications provided by TIS are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Agreement.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. SUPPLY OF GOODS AND SERVICES
3.1 On the terms and conditions set out in the Agreement, TIS agrees to:
(a) supply the Goods to each relevant Site; and
(b) provide the Goods and Services.
3.2 In respect of the supply of a System, TIS provides a warranty on the terms set out in the Warranty Statement (which terms shall prevail over any terms in these conditions which are inconsistent with the Warranty Statement). In respect of the supply of Goods and/ or Services other than the supply of a System, the relevant provisions of these conditions shall apply.
3.3 TIS shall use its reasonable endeavours to meet any delivery or performance dates or times specified in the Agreement or as may be agreed from time to time, but any such dates shall be estimates only and time shall not be of the essence of the Agreement.
3.4 TIS shall comply with all health and safety rules and regulations and any other security requirements that apply at any of the Sites and that have been communicated to it under condition 5.1(c), provided that it shall not be liable under the Agreement if, as a result of such compliance, it fails to meet or perform any of its obligations under the Agreement.
4. QUALITY OF GOODS AND SERVICES
4.1 TIS warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Goods specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
4.2 Subject to condition 4.3, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in condition3.2;
(b) TIS is given a reasonable opportunity of examining such Goods
TIS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.3 TIS shall not be liable for the Goods’ failure to comply with the warranty in condition 4.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with condition 4.2;
(b) the defect arises because the Customer failed to follow TIS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of TIS following any drawing, design or Goods specification supplied by the Customer, its agents, employees or contractors;
(d) the Customer alters or repairs such Goods without the written consent of TIS;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description or any Goods specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
4.4 Except as provided in this condition 4, TIS shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 4.1.
4.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by TIS under condition 4.2.
4.6 TIS warrants that the Services shall be performed and supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, s13.
4.7 TIS shall, at its option, remedy, re-perform or refund the Charges for any Services that do not comply with condition 4.6, provided that the Customer serves a written notice on TIS:
(a) not later than ten Business Days from the performance of the relevant Services in the case of defects discoverable by a physical inspection; or
(b) within a reasonable period of time from performance of the relevant Services in the case of latent defects, that some or all of the Services do not comply with condition 4.6 and identifying in sufficient detail the nature and extent of the defects; and
(c) gives TIS a reasonable opportunity to examine the claim of the defective Services (or the equipment to which they relate).
4.8 The Customer shall be deemed to accept the Services if it does not notify TIS of any failure of the Services to comply with condition 4.6 within the time periods set out in condition 4.7.
4.9 These Conditions shall in addition apply to any Services that are remedied or re-performed with effect from the performance of the remedied or re-performed Services.
4.10 TIS shall not be liable for any failure of the Services to comply with condition 4.6:
(a) where such failure arises by reason of wilful damage or negligence by the Customer;
(b) to the extent caused by the Customer’s failure to comply with TIS’s or any relevant manufacturers instructions as to :(i) use or benefit from the Services (or the equipment to which they relate), or (ii) good practice in relation to the use or benefit from the Services (or the equipment to which they relate);
(c) to the extent caused by TIS following any design, specification or requirement of the Customer in relation to the Services (or the equipment to which they relate);
(d) where the Customer alters any Services (or the equipment to which they relate) without TIS’s prior written consent or, having received such consent, not in accordance with TIS’s instructions.
4.11 Except as set out in this condition 4:
(a) TIS gives no warranty and makes no representations in relation to the Services; and
(b) shall have no liability for their failure to comply with the warranty in condition 4.6, and the conditions implied by ss 12-16 of the Supply of Goods and Services Act 1982 are expressly excluded.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) provide, for TIS, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Sites, office accommodation, data and other facilities as requested by TIS and which is reasonably required to enable TIS to provide the Services;
(b) at its own expense, prepare the Site(s) in accordance with the information provided by TIS in advance of the date for the commencement of any works (including ensuring the availability of an electrical supply for the operation of the equipment and obtaining any way-leaves which may be required).
(c) inform TIS of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Sites;
(d) in any circumstances where any equipment of TIS is to be located at one of the Sites, take all reasonable steps to keep such equipment in good condition and shall not dispose of or use such equipment other than in accordance with TIS’s written instructions or authorisation;
(e) comply with any reasonable requests by TIS from time to time(including reasonable requests which are necessary for reasons of health, environment/sustainability, security, safety or the quality and/or performance of the Services);
(f) provide for TIS, its agents, sub-contractors and employees, in a timely manner and at no charge, such information as TIS might reasonably require from the Customer from time to time.
5.2 If TIS’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, contractors, consultants or employees:
(a) TIS shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; and
(b) the Customer shall pay to TIS on demand all reasonable costs, charges or losses sustained or incurred by TIS as a result of being so prevented or delayed (including the cost of any additional work which TIS is required to perform) subject to TIS confirming such costs, charges and losses to the Customer in writing. In particular, but without limitation, if the completion and Acceptance of any works is delayed in the circumstances contemplated in this condition 5.2, TIS may invoice the Customer for the additional time it (and its employees, agents and sub-contractors) is required to spend completing the works at TIS’s standard rates).
6. CHANGE CONTROL
6.1 If either party wishes to change the scope or execution of any of the Goods and/or Services, it shall inform the other party of the proposed change.
6.2 Any change under this condition 6 which has a material impact on the provision or nature of any of the Goods and/or Services by TIS shall be a “Major Change” and shall be subject to the provisions set out in conditions 6.4 to 6.5 below. Any other change shall be a “Minor Change”. TIS’s decision as to whether a change is a Major Change or a Minor Change shall be final and binding.
6.3 TIS may, from time to time and without notice, make a Minor Change for any reason including in order to comply with any applicable health, safety or statutory requirements, provided that such changes do not materially affect the nature, scope of or the charges for the Goods and/or Services.
6.4 If either party requests a Major Change, TIS shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the Major Change;
(b) any variations to the Charges arising from the Major Change; and
(c) any other impact of the Major Change on the terms of the Agreement.
6.5 If the Customer wishes TIS to proceed with a Major Change, TIS has no obligation to do so unless and until the parties have agreed in writing (signed by a duly authorised representative of each) on the necessary variations to its charges and any other relevant terms of the Agreement to take account of such Major Change.
7. COMMISSIONING TESTS
7.1 Any applicable Commissioning Tests shall be started as soon as reasonably possible after completion of the installation of the System. TIS shall carry out the agreed Commissioning Tests for the System. TIS shall permit the Customer to observe all or any part of the testing.
7.2 If the System fails to pass the Commissioning Tests, TIS shall remedy the defects and deficiencies and the relevant test(s) shall be repeated within a reasonable time.
8. SYSTEM ACCEPTANCE
8.1 Acceptance of the System shall be deemed to have occurred on whichever is the earliest of:
(a) the signing by the Customer of an acceptance certificate;
(b) the expiry of five days after the successful completion of all the Commissioning Tests; or
(c) the commencement of use of the System by the Customer.
9. TITLE AND RISK
9.1 The risk in any Goods shall pass to the Customer on delivery to the Site.
9.2 Title to the Goods shall not pass to the Customer until TIS receives payment in full (in cash or cleared funds) for the Goods and any other goods that TIS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
9.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as TIS’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on TIS’s behalf from the date of delivery;
(d) notify TIS immediately if it becomes subject to any of the events listed in condition12.1; and
(e) give TIS such information relating to the Goods as TIS may require from time to time.
9.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in condition 12.1, then, without limiting any other right or remedy TIS may have TIS may at any time:
(a) TIS may at any time: require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
10. CHARGES AND PAYMENT
10.1 The Customer shall pay to TIS the Charges. The Charges are payable at the times and in the manner set out in this condition 10. Time for payment shall be of the essence.
10.2 If the estimated time for the completion of the Services specified in the Agreement is more than 30 days, TIS may submit monthly applications for payment (each an Application) until Acceptance at which time TIS shall issue its final Application. Each Application shall be for the Services completed as at the relevant Assessment Date plus any Additional Charges which have become due in the period since the previous Assessment Date.
10.3 Following the receipt of each Application the Customer shall, within 7 days following the receipt by the Customer of the Application, inform TIS in writing if it disagrees with the Application or any part of it and shall provide details in writing explaining the amounts with which it disagrees (the Disputed Amount) and the reasons for its disagreement.
10.4 If the Customer does not notify TIS that it disagrees with an Application under condition 10.3 TIS shall issue its invoice for the amounts due under the Application which invoice shall be paid by the Customer within 30 days following the date of invoice.
10.5 If the Customer notifies TIS that it disagrees with an Application under condition 10.3 TIS shall issue its invoice for the amounts due under the Application which are not disputed which invoice shall be paid by the Customer within 30 days following the date invoice. The parties shall each use their respective reasonable endeavours to resolve any Disputed Amounts in good faith.
10.6 If the estimated time for the completion of the Services is less than 30 days, TIS shall issue its invoice for the Services following Acceptance which invoice shall be paid by the Customer within 30 days following the date of invoice provided that if the Services have not been completed through no fault of TIS within 30 days following the date of commencement of the Services by TIS, TIS shall be entitled to submit an Application and the provisions set out in conditions 10.2 to 10.5 shall apply in such circumstances.
10.7 The Customer shall pay to TIS any Additional Charges which become payable under or in connection with the Agreement within thirty (30) days from receipt of an invoice from TIS without any deduction, counterclaim or set off. Time for payment shall be of the essence of the Agreement.
10.8 Unless otherwise specified in the Agreement, the Charges exclude:
(a) any ancillary expenses reasonably incurred by TIS in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties. Such expenses, materials and third party services shall be invoiced by TIS at cost plus TIS’s standard handling charge from time to time; and
(b) VAT, which TIS shall add to its invoices at the appropriate rate.
10.9 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay any invoice of TIS on the due date for payment, TIS may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and/or
(b) suspend the provision of the Services (or any part of the Services) until payment has been made in full.
10.10 TIS may, without prejudice to any other rights it may have, set off any liability of the Customer to TIS against any liability of TIS to the Customer.
11. LIMITATION OF LIABILITY AND DISCLAIMER
11.1 This condition 11sets out the entire financial liability of TIS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer for:
(a) any breach of the Agreement;
(b) the provision of the Goods and/or Services; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement;
or otherwise under or in connection with the Agreement.
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
11.3 Nothing in these conditions limits or excludes the liability of TIS:
(a) for death or personal injury resulting from its negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by TIS; or
(c) for any liability incurred by the Customer which cannot be limited or excluded by TIS by law.
11.4 Subject to condition 11.3:
(a) TIS shall not be liable for any Excluded Loss;
(b) TIS’s aggregate liability to the Customer of any description (including for breach of contract and negligence) in connection with the Agreement shall not exceed the total Charges paid by the Customer pursuant to the Agreement.
11.5 The Customer acknowledges and agrees that the Agreement is for the provision of Goods and/or Services and that TIS gives no undertaking or guarantee that any System cannot be compromised or circumvented or will be fully functional or operational at all times and in all circumstances. The Customer also acknowledges and agrees that the System may not prevent loss, damage or injury, that TIS is not an insurer of the Customer’s property and that the Charges are not calculated by reference to the value of the Sites or the property at the Sites. Accordingly, it is the responsibility of the Customer to maintain comprehensive insurance against all normal risks applicable to the Sites and the property held or located at the Sites.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving notice to the other if:
(a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 21 days of notification in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party (or where the Customer is an individual, the Customer becomes subject to a bankruptcy petition or order); or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
12.2 On termination of the Agreement under condition 12.1 for any reason:
(a) the Customer shall immediately pay to TIS all of TIS’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TIS may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall pay to TIS (within 14 days of the date of termination) an amount or amounts equal to any remaining Charges which would have been due to TIS under the Agreement until the end of any applicable minimum period for a Service as specified in the Agreement (notwithstanding that such Services have not been provided due to the termination);
(c) the Customer shall return all of TIS’s equipment (or, as TIS may elect, the Customer shall allow access to TIS to the Customer’s premises to enable TIS to repossess the same). Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(d) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.3 TIS may, at its discretion, suspend and/or stop access to a Service, either in whole or in part:
(a) in an event of emergency;
(b) where it is required to do so by law (including where directed to do so by a regulatory authority);
(c) to comply with an order, instruction or request of government, an emergency services organisation, or other competent administration;
(d) where TIS becomes entitled to terminate the Agreement pursuant to condition 12.1; or
(e) where it is expressed to have the right to do so elsewhere in the Agreement and shall not be liable to the Customer in respect of any such suspension.
13.1 No variation of the Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.2 Neither party shall have any liability to the other under the Agreement if it or any of its sub-contractors or suppliers is prevented from, or delayed in, performing its obligations under the Agreement (other than the Customer’s obligation to pay the Charges) or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
13.3 Failure to exercise, or any delay in exercising, any right or remedy provided under the Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude 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 Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
13.4 A waiver (which may be given subject to conditions) of any right or remedy provided under the Agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
13.5 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
13.6 If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
13.7 The Agreement (which includes these General Conditions) and any documents referred to in it constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter of the Agreement.
13.8 Each party acknowledges that, in entering into the Agreement and any documents referred to in it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to the agreement or not) other than as expressly set out in the Agreement or those documents. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract. Nothing in this condition shall limit or exclude any liability for fraud.
13.9 The Customer shall not, without the prior written consent of TIS, assign, transfer, charge, mortgage, subcontract or deal in any other manner with any of its rights or obligations under the Agreement.
13.10 A person who is not a party to the Agreement shall not have any rights under or in connection with it.
13.11 Notice given under the Agreement shall be in writing, sent for the attention of the person, and to the address, email or fax number, given in the Agreement (or such address, email, fax number or person as the relevant party may notify to the other party in writing) and shall be delivered personally, sent by email, fax or sent by pre-paid, first class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of email or fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition is not within business hours (meaning 8:30 am to 5:30 pm Monday to Friday on a day that is a business day), at 8:30 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted email or by fax, to the email address or fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
13.12 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.