For the purposes of this Agreement the following definitions shall have the following meanings:
1.1 AGREEMENT shall mean this agreement, into which the Buyer has entered with the Seller for the Scope of Works as further detailed in Clause 12 below;
1.2 BUYER shall mean the customer named in the attached Quotation or for the purposes of servicing, maintenance or repair work, where no bespoke Quotation is issued, the client named in the confirmation email to which these terms are attached;
1.3 PRICING TERMS shall mean the attached sheet titled “Servicing, Maintenance and Repair Costs” which sets out the hourly rate or up-front cost at which repairs, servicing or maintenance will be carried out together with how the parts will be costed or discounted.
1.4 QUOTATION shall mean, where applicable, the attached document headed “Quotation” and in which is set out the Scope of Works to be carried out and the Price which is to be paid for those works, as further clarified by Clauses 2 and 3 below; and
1.5 SELLER shall mean Harrogate Automation Ltd (Company Number: 08026554) of Dragon Court Business Park, 168-170 Skipton Road, Harrogate, North Yorkshire, HG1 4PS.
2. SCOPE OF WORK
- 2.1 The Seller agrees, in exchange for the Price, to carry out the Scope of Works.
- 2.2 For installation work the Scope of Works shall be the work and goods set out in the Quotation. For the purposes of servicing, maintenance or some repair work where no bespoke quotation is issued the Scope of Works shall be as set out in the confirmation email to which these terms are attached, save where Clause 9 below applies. For repair works where it is not possible or appropriate to send a confirmation email (for example, but not limited to, emergency repairs works), the Scope of Works shall include all work associated with the project including but not limited to the travel to and from the property, the diagnosis of the issue and any necessary repair works to rectify the issue.
- 2.3 Where, for whatever reason, the Seller is no longer in a position to supply the Scope of Works it will inform the Buyer as soon as possible.
- 2.4 Following any notice given by the Seller in accordance with Clause 2.3 above:
- 2.4.1 where the Seller’s inability to deliver the whole of the Scope of Works is minor and/or does not fundamentally alter the obligations set out under this Agreement then the Parties will negotiate the relevant changes to the Scope of Works and Price in accordance with Clause 9.
- 2.4.2 where the Seller’s inability to deliver the Scope of Work fundamentally alters the Parties’ obligations under this Agreement then the Seller shall offer the Buyer the following choice:
- 2.4.2 a) to renegotiate the Parties’ obligations under this Agreement in accordance with Clause 9; or
- 2.4.2 b) a refund on the following basis:
- i) where the Seller has not begun the Scope of Works or only preliminary works have been undertaken, a refund for the totality of the Price; and/or
- ii) where work has been undertaken for which the Buyer has obtained benefit (for example, but not limited to, where wiring or a motor has been installed to which the Buyer could attach alternative equipment) then the Seller shall only refund the proportion of the Price relating to work not yet undertaken.
- 2.5 For the avoidance of doubt, the Seller shall not be required to renegotiate a lower Price or provide any refund in accordance with Clause
- 2.4 above where the reason the Seller can no longer carry out the Scope of Works is because of any action or inaction of the Buyer or anyone working on behalf of the Buyer. Such actions or inaction include but are not limited to the Buyer’s obligations under Clauses 4.4 and Clause 6.
- 2.6 Further for the avoidance of doubt, the Seller shall not be required to renegotiate a lower Price or provide any refund in accordance with Clause 2.4 above where the reason why it can no longer carry out the Scope of Works is out of its control for reason of an act or inaction of a third party or Act of God or nature.
- 3.1 The Price shall be as set out in the Quotation (unless Clause 3.2 below applies) which will give both the Price inclusive and exclusive of VAT unless otherwise specified in the Quotation.
- 3.2 For servicing, maintenance and repair work for which no bespoke quotation is issued the price will be calculated in accordance with the Pricing Terms.
- 3.3 The Price shall be payable by the Buyer in accordance with the Payment terms of Clause 5 below.
4. UNDERTAKING THE SCOPE OF WORKS
4.1 DATE FOR INSTALLATION AND DURATION OF THE WORKS SPECIFIED IN A QUOTATION
- 4.1.1 Following the payment of the Deposit (as further describe in Clause 5 below) the Parties shall discuss and agree a date for the Scope of Works to begin (the “Date of Commencement”).
- 4.1.2 The Seller will also give the Buyer its best estimate for the duration of the Scope of Works and whether it will be completed in one go or as a number of separate visits.
- 4.1.3 The Buyer expressly agrees that it understands that both the Date of Commencement and the duration of the Scope of Works may need to change, even at very short notice, due but not limited to such factors as the weather, other contractors on site or work scheduling.
- 4.1.4 The Buyer expressly accepts that whilst the Seller will make all reasonable effort to commence the Scope of Works on the Date of Commencement neither Date of Commencement nor the Seller’s estimated duration shall be terms of this Agreement and the Seller will not be held responsible for any loss, howsoever arising, out of any changes that are made to the same.
- 4.1.5 Notwithstanding Clause 4.1.4 above, the Seller shall give the Buyer as much notice as reasonably practicable should it not be able to start the Scope of Works on the Date of Commencement or, after the Date of Completion, should it be prevented from carrying out the Scope of Works in the estimated timescales.
- 4.1.6 Notwithstanding the above provisions the Seller will carry out the Scope of Works within a reasonable time.
- 4.2.1 Where the Agreement includes the delivery of goods (for example but not limited to gates or parts) these will be delivered to site by the Seller at the time of installation unless alternative arrangements have been expressly agreed between the Parties.
4.3 COMPLETION OF THE WORKS
- 4.3.1 Following the completion of the Scope of Works (“Completion”) the Seller shall raise an invoice in accordance with Clause 5 below.
- 4.3.2 Due to the complex and technical nature of the Scope of Works some small issues (“Snagging Items”) may not be obvious on Completion. The Buyer must notify the Seller, immediately, of any Snagging Items that it discovers and the Seller will return as soon as practicable to resolve any issue in accordance with Clauses 4.3.3 to 4.3.9 below.
4.3.3 On Completion the Seller shall give the Buyer copies/certificates of any and all guaranties relating to the Scope of Works, and the following shall apply:
- 4.3.3 a) Any guarantee given under this Clause shall run from the date of Completion.
- 4.3.3 b) The duration of the guarantees varies from manufacturer to manufacturer but typically covers 12 months to 3 years from Completion.
- 4.3.3 c) The Seller will guarantee any products and/or installation and workmanship not covered by a specific manufacturer’s guarantee for a period of 12 months from Completion.
- 4.3.3 d) For the avoidance of doubt, the Seller can only guarantee those parts of the system that it has supplied and installed. The Seller will not be responsible for the products and services of another supplier or their negative impact on the Seller’s products or services.
- 4.3.4 The Buyer is made aware that the validity of all guarantees is dependent upon the works being well maintained and serviced on a regular basis and the Buyer will remain responsible for ensuring that an adequate servicing agreement is put in place.
- 4.3.5 The Seller may offer the Buyer or the Buyer may request to negotiate a servicing agreement with the Seller. The Buyer is not obliged to enter into a servicing agreement with the Seller and may make its own arrangements to fulfil its obligations under Clause 4.3.4 above. Where the Buyer and Seller do agree to enter into a servicing agreement then any such servicing agreement will fall under a separate agreement and will not form part of this Agreement.
4.3.6 During the first 12 months (or such other product specific guarantee duration as discussed in Clause 4.3.3 above) following Completion the Seller shall:
- 4.3.6 a) at no cost to the Buyer, repair any faults which may arise in the Scope of Works; and
- 4.3.6 b) carry out minor additional works (for example, additional intercom programming). The decision whether not to charge the Buyer for any such minor changes will remain at the sole discretion of the Seller.
- 4.3.7 For the avoidance of doubt, where the Buyer requests additional work, even during the currency of any guarantee period, which is not minor in nature, then this additional work will be subject to a separate agreement and a separate price will be charged. What is deemed to be minor is at the Seller’s sole discretion.
- 4.3.8 In relation to the time for performance of the Scope of Works, the Buyer’s attention is drawn to Clauses 5.4 and 5.5 below. Under law, the Seller is required to give the Buyer a 14 day “cooling-off period” during which the Buyer may cancel the Agreement. As such, unless the Buyer invokes Clause 4.3.9 below, the Seller cannot commence work or order the goods until the 14 day period has elapsed.
- 4.3.9 The Buyer may expressly request that the Seller shall proceed with the works notwithstanding the right to a cancellation period.
- 4.3.8 The Buyer should be aware that should it make a request in accordance with Clause 4.3.9 above then it does not lose its right to cancel the contract within the 14 day period set out in Clause 5.4 below unless the work is completed before the cancellation is attempted. In addition, the Buyer may have to reimburse the Seller for costs incurred as a result of the instruction to proceed, in accordance with Clause 5.5 below.
4.4 BUYER’S OBLIGATIONS IN RELATION TO THE WORKS
- 4.4.1 The Buyer shall do everything within its power to assist the Seller in its completion of the Scope of Works. For example (but not limited to the following examples) the Buyer should ensure:
- 4.4.1 a) that the location where the Scope of Works will be carried out will be free from obstruction, safe and free from any health risk or hazard;
- 4.4.1 b) that, should any power source be required, it is available and the Seller has easy and safe access to it;
- 4.4.1 c) that, should other contractors be on site, they do not interfere with the Seller’s ability to carry out the Scope of Works; and
- 4.4.1 d) that should the Buyer purchase goods from another supplier that it wishes the Seller to install that these should be available at the Date of Commencement.
4.5 PHOTOGRAPHS OF THE SCOPE OF WORKS
- 4.5.1 The Buyer agrees that, during the extent of the Scope of Works and for a reasonable period thereafter, the Seller may take photographs of the Scope of Works or factors affecting those works for contractual and publicity purposes.
- 4.5.2 In relation to the photographs mentioned in Clause 4.5.1 above the Seller will not take any photographs that would compromise the Buyer’s safety, the security of their premises, the Buyer’s reputation or the reputation of its business. The photographs will not include children. The photographs will not include adults without their prior consent.
- 4.5.3 By their acceptance of this Agreement the Buyer is taken to have given its consent to the Seller using the photographs in publicity and promotion of the Seller’s business. Should the Buyer wish the Seller not to use the photographs in this way they must give the Seller written notice of this request before the Date of Commencement.
4.6 COMPLAINTS PROCEDURE
- 4.6.1 Should the Buyer become aware of any default or issue with any of the goods or services supplied under this Agreement then it must notify the Seller immediately.
- 4.6.2 In the first instance, if the issue is minor and within the warranty period, then the Buyer may email or telephone the Seller regarding the issue and it will be dealt with as a Snagging Item in accordance with Clause 4.3.2 above.
- 4.6.3 Should:
- 4.6.3a) the issue raised in accordance with Clause 4.6.2 above escalate;
- 4.6.3 b) a major fault be discovered; or
- 4.6.3 c) the Buyer has a serious complaint about the Scope of Works;
- then the Buyer must notify the Seller immediately in writing of the issue, including as much detail as possible.
- 4.6.4 For the avoidance of doubt an email to: info@harrogate- automation.co.uk and clearly labelled in the subject bar as a complaint will be treated as “in writing” for the purposes of Clause 4.6.3 above.
- 4.6.6 Should the issue fail to be resolved in accordance with the above provisions then the Parties agree that (save where Clause 5.3.2. – undisputed debt action applies), before any legal proceedings are commenced, they will take all reasonable steps to resolve the issue in accordance with the relevant Pre-Action Protocol in effect at the time that the dispute arose.
- 4.6.7 For the avoidance of doubt the Seller will not be liable for any loss or damage caused as a result of the Buyer’s failure to bring the issue to the Seller’s immediate attention in accordance with Clause 4.6.1 or 4.6.3 above.
- 4.6.8 Nor will the Seller be liable for any loss or damage arising out of any attempt by the Buyer themselves or by a third party to rectify any fault themselves.
- 4.6.5 On receipt of a communication from the Buyer under Clause 4.6.3 above, the Seller will take all reasonable steps and without undue delay to rectify the issue raised and or the complaint.
- 4.6.9 Further for the avoidance of doubt, where any work is required to repair or maintain the Scope of Works after the end of any guarantee or warranty period then that repair or maintenance work will be carried out under a separate agreement and a separate cost will be incurred.
4.7 DATE AND DURATION FOR SERVICING, MAINTENANCE AND REPAIR WORK NOT SET OUT IN A BESPOKE QUOTATION
- 4.7.1 The Seller agrees to carry out the work in a reasonable time after the Buyer’s request for the work.
- 4.7.2 The Seller will give the Buyer an estimate of the date for carrying out the works and a possible duration. However, the terms set out in Clauses 4.1.3 to 4.1.6, regarding the time for delivery, apply equally to works carried out under this Clause 4.7.
- 4.7.3 For the avoidance of doubt Clause 4.2 to 4.6 also apply to works carried out under this Clause 4.7.
5.1 TERMS OF PAYMENT
- 5.1.1 The Buyer shall pay the Seller the Price in the following Instalments:
- 5.1.1 a) 60% of the Price on acceptance of the Quotation (the “Deposit”); and
- 5.1.2 b) 40% of the Price on Completion of the Scope of Works (the “Balance”).
- 5.1.2 Notwithstanding that Clause 5.1.1 above shall represent the Seller’s usual Terms of Payment, the Seller reserves the right to amend the terms of Clause 5.1.1 b (payment of the Balance as a single 40% payment) in the following circumstances:
- 5.1.2 a) Where Completion is unreasonably delayed by the actions or inactions of the Buyer and/or a third party working for the Buyer or for whose actions or inactions the Buyer is otherwise responsible. Examples include but are not limited to: access is not granted to the Seller due to other contractors working on site; or stone pillars, gate posts, cabling etc. for which the Buyer is responsible has not been completed or is not at a standard that would allow the Seller to proceed as planned.
- 5.1.2 b) Whatamountsto“unreasonablydelayed”shallbeattheSeller’s sole discretion.
- 5.1.2 c) Should the Seller believe that this clause applies it will give notice of the same to the Buyer.
- 5.1.2 d) Where this Clause 5.1.2 is invoked the Seller shall then be entitled to:
- i) raise an invoice for 30% of the Price 24 hours after giving notice under 5.1.2 c) above; and
- ii) raise an invoice for 10% of the Price on Completion.
- 5.1.3 The Seller will raise invoices in accordance with Clause 5.1.1 and/or 5.1.2 above and those invoices shall be due and payable on the date of the invoices.
5.2 METHODS FOR PAYMENT
- 5.2.1 Payment should either be made by:
- 5.2.1 a) bank transfer: Sort Code: 20-37-13, Account 33861368; or
- 5.2.1 b) cheque made payable to “Harrogate Automation Ltd.”
5.3 LATE PAYMENT AND INTEREST
- 5.3.1 Should the Buyer fail to make payment in accordance with Clause 5.1 above, the Seller shall be entitled to charge interest and claim statutory compensation upon the outstanding sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002 or such subsequent legislation as is in force at the time the debt falls due.
- 5.3.2 In addition, unless the Buyer makes known any complaint or dispute in relation to the invoice within 30 days of receipt of the invoice, the Seller shall be entitled to pursue the non-payment as a simple recovery of debt action.
5.4 THE BUYER’S RIGHT TO CANCEL THE AGREEMENT WITHIN 14 DAYS
- 5.4.1 The Buyer has the Right to Cancel the Agreement within 14 days, without giving any reasons, unless a specific exception below applies.
- 5.4.2 The right to cancel this Agreement will expire 14 calendar days from the date of this Agreement.
- 5.4.3 For the avoidance of doubt, the date of this Agreement shall be the date on which the Buyer intimates its clear intention to be bound by the Agreement. This is normally, but not limited to, their acceptance of the Quotation by an instruction to raise an invoice for the Deposit, in accordance with Clause 5.1.1 above. Where this Agreement is for servicing, maintenance or repair work, for which no bespoke invoice is issued, the date upon which the Buyer requests the Scope of Works (which will usually be the date of the confirmation email or the date set out in the confirmation email).
- 5.4.4 To exercise its right to cancel the Agreement, the Buyer must inform the Seller (address, telephone and email address found at the end of this Agreement) of its decision to cancel this Agreement by a clear statement (e.g. by email) or you may use the cancelation form template attached at Schedule 1.
- 5.4.5 For the avoidance of doubt, the use of the Schedule 1 template is not obligatory. To meet the cancellation deadline, it is sufficient for the Buyer to send its clear communication concerning its exercise of the right to cancel before the cancellation period has expired.
5.5 THE EFFECTS OF CANCELLATION
- 5.5.1 If the Buyer cancels this Agreement in accordance with Clause 5.4 above then the Seller will reimburse the Buyer all payments received from the Buyer including the costs of delivery (except for the supplementary costs arising if the Buyer chose a type of delivery other than the least expensive type of standard delivery offered by the Seller).
- 5.5.2 The Seller may make a deduction from the reimbursement for the loss in value of any goods supplied, if the loss is the result of unnecessary handling by the Buyer.
- 5.5.3 The Seller will make the reimbursement without undue delay, and not later than:
- 5.5.3 a) 14 days after the day the Seller receives back from the Buyer any goods supplied;
- 5.5.3 b) (if earlier) 14 days after the day the Buyer provides evidence that it has returned the goods; or
- 5.5.3 c) if there were no goods supplied, 14 days after the day on which the Seller was informed about the Buyer’s decision to cancel the Agreement.
- 5.5.4 The Seller will make the reimbursement using the same means of payment as the Buyer used for the initial transaction, unless the Parties have expressly agreed otherwise; in any event, the Buyer will not incur any fees as a result of the reimbursement.
- 5.5.5 If the Buyer requested the Seller to begin performance of this Agreement in accordance with Clause 4.3.7 above during the cancellation period the Buyer shall pay the Seller an amount which is in proportion to what has been performed until the Buyer communicated to the Seller its cancellation of this Agreement in comparison with the full coverage of the Agreement.
- 5.5.6 For the avoidance of doubt, once the 14 statutory period has elapsed the Buyer will lose its automatic right to cancel the Agreement without reason. Thereafter should the Buyer wish to cancel the Agreement it must give written notice of its intention to the Seller including its reasons for so doing. The right to any reimbursement rests at the sole discretion of the Seller who may take into account such factors as costs already incurred on the Scope of Works or other losses incurred by the Seller as a result of the Buyer’s breach of the Agreement and/or the Seller may require the payment of any outstanding sums due under Clause 5.
6. WARRANTIES AND GUARANTIES
- 6.1 The Buyer warrants that it is the person named in the attached Quotation or in the case of servicing, maintenance and repair works for which no bespoke quotation is issued, the confirmation email. Should the name or contact details in the Quotation or the confirmation email be incorrect then the Buyer must immediately bring this to the Seller’s attention.
- 6.2 Where an individual enters into this Agreement on behalf of a company, organisation or other body, (“Company”) that individual warrants that they have the authority of that Company to enter into this Agreement.
- 6.3 Where it is discovered that that person did not have the requisite authority then that person shall remain personally liable to fulfil all of the obligations of the Buyer under this Agreement.
- 6.4 The Buyer warrants that it has obtained all of the relevant planning permissions and other authorisations necessary for completion of the Scope of Works. The Seller shall not be held liable for any of the Buyer’s breaches of its obligations under this Clause.
6.5 The Seller warrants that, in the completion of the Scope of Works, it will:
- 6.5.1a) carry out its duties and workmanship with all reasonable care and skill and in accordance with any and all industry regulations and standards in force at the time the Scope of Works is undertaken; and
- 6.5.2 b) that all goods supplied in accordance with this Agreement will be of satisfactory quality and reasonably fit for purpose and will comply with any and all industry and safety regulations and standards in force at the time the Scope of Works is undertaken.
- 7.1 This Agreement and any matter arising out of the same shall be governed by the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to deal with the same.
- 7.2 If any part of these terms and conditions is declared unlawful or unenforceable, then that provision shall be deemed deleted from the Agreement and the remaining provisions of the Agreement shall remain in full force and effect.
8. DATA PROTECTION
- 8.1 The Seller’s Privacy Notice is set out in full on its website www.harrogate.automation.co.uk. This Privacy Notice may be updated from time to time to ensure that it is fully compliant will all current legislation. The Privacy Notice applicable to this Agreement shall be the Privacy Notice in force at the date of this Agreement.
- 9.1 Any modification or amendment of this Agreement, particularly in relation to the Scope of Works and/or Price, will only be binding if evidenced in writing to have been agreed by both Parties.
- 9.2 The Seller shall not be required to proceed with any amendment until it has the Buyer’s written confirmation of its acceptance of any such change.
- 10.1 Should the Seller fail to exercise any of its rights under this Agreement, or other Contract between the Seller and the Buyer, it will not amount to a waiver by the Seller of those rights.
11. ELECTRONIC COMMUNICATIONS
- 11.1 By providing its Email Address the Buyer agrees to receive any communication, required by this Agreement, by email.
- 11.2 The Buyer also agrees and accepts that an email communication shall amount to a “communication in writing” where there is a legal requirement or a requirement under this Agreement that a notice or similar communication is given in writing.
12. COMPLETE AGREEMENT
- 12.1 This Agreement together with the Quotation shall constitute the whole Agreement between the Parties unless expressly stated in the Quotation and can only be amended in accordance with Clause 9 above.
- 12.2 It is hereby agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided by this Agreement and/or Quotation.
- 12.3 Further for the avoidance of doubt, any illustrations provided by the Seller with the Quotation are for illustrative purposes only and do not form part of this Agreement except for the application of Clause 12.4 below.
- 12.4 The Seller expressly reserves and retains all intellectual property in the illustrations mentioned in Clause 12.3 above. The license which the Seller grants to the Buyer in relation to the illustrations is strictly limited to their use in relation to the completion of this Agreement and they must not be used for any other purpose whatsoever.
- 12.5 In the process of negotiating this Agreement the Buyer may have received an Estimate from the Seller prior to a formal Quotation. The Estimate was to provide a ball park figure only. It has no binding power on the Parties and does not form part of this Agreement.
Harrogate Automation Ltd
Dragon Court Business Park 168-170 Skipton Road, Harrogate
Tel: 01423 560 053
Terms and Conditions October 2018
Cancellation Form – Right to Cancel Within 14 Day (Clause 5.5)
To: Harrogate Automation Ltd – Dragon Court Parade, 168-170 Skipton Road,
Harrogate, Hg1 4PS
I/We hereby give notice that I/We wish to cancel my/our Agreement of date: .
Name of Buyer:
Address of Buyer:
Signature of Buyer (if notification to be given in paper format):