1 In these Conditions the following words have the following meanings:
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 as set out in the Order Form.
Contract: the contract between Hi-Spec Electrical and the Customer for the supply of Services, which consists of the Order Form and these Conditions.
Customer Default: has the meaning set out in clause 5.2.
Data Protection Legislation: the UK Data Protection Act 2018, GDPR and any other applicable legislation relating to personal data and all other legislation and regulatory requirements in force from time to time.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know- how), and all other intellectual property rights which subsist or will subsist now or in the future in any part of the world.
Order Form: the Customer’s order for Services as set out overleaf.
Specification: the description or specification of the Services provided in writing by Hi-Spec Electrical to the Customer.
Supplier Materials: all materials, equipment, documents and other property of Hi-Spec Electrical.
2.1 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.
2.2 A reference to writing or written includes faxes and emails.
3 Basis of contract
3.1 The Order Form constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3.2 The Order Form shall only come into force when Hi-Spec Electrical confirms acceptance of the Order Form, at which point the Contract shall be deemed to come into existence from the “Start Date” set out in the Order Form.
3.3 Any samples, drawings, descriptive matter or advertising issued by Hi-Spec Electrical, and any descriptions or illustrations contained in the Hi-Spec
Electrical ’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.
3.4 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 law, trade custom, practice or course of dealing.
3.5 Any quotation given by Hi-Spec Electrical shall not constitute an offer, and is intended to be valid for a period of 30 Business Days from its date of issue.
4 Supply of Services
4.1 Hi-Spec Electrical shall use all reasonable endeavours to supply the Services to the Customer in accordance with the description in the Order Form and shall to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.2 Hi-Spec Electrical reserves the right to amend the Services 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 Hi-Spec Electrical shall notify the Customer in any such event.
4.3 Hi-Spec Electrical warrants to the Customer that the Services will be provided using reasonable care and skill.
5 Customer’s obligations
5.1 The Customer shall:
5.1.1 ensure that the terms of the Order Form and any information it provides are complete and accurate;
5.1.2 co-operate with Hi-Spec Electrical in all matters relating to the Services;
5.1.3 provide Hi-Spec Electrical, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Hi- Spec Electrical;
5.1.4 provide Hi-Spec Electrical with such information and materials as Hi-Spec Electrical may reasonably require in order to supply the
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Services, and ensure that such information is complete and accurate in all material respects;
5.1.5 prepare the Customer’s premises for the supply of the Services;
5.1.6 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;
5.1.7 comply with all applicable laws, including health and safety laws;
5.1.8 keep any Supplier Materials that are kept at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Hi-Spec Electrical, and not dispose of or use Hi-Spec Electrical Materials other than in accordance with Hi-Spec Electrical ’s written instructions or authorisation; and
5.1.9 comply with any additional obligations as set out in the Order Form.
5.2 If Hi-Spec Electrical ’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1 without limiting or affecting any other right or remedy available to it, Hi-Spec Electrical 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 Hi-Spec Electrical ’s performance of any of its obligations;
5.2.2 Hi-Spec Electrical shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Hi-Spec Electrical ’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse Hi-Spec Electrical on written demand for any costs or losses sustained or incurred by Hi-Spec Electrical arising directly or indirectly from the Customer Default.
6 Charges and payment
6.1 The Charges for the Services shall be calculated as set out in the Order Form. Where those Charges are described on the basis of hours or days:
6.1.1 the Charges shall be calculated in accordance with Hi-Spec Electrical’s daily fee rates, as set out in the Order Form or to be made available to the Customer on request;
6.1.2 Hi-Spec Electrical ’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
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6.1.3 Hi-Spec Electrical shall be entitled to charge an overtime rate of Hi-Spec Electrical per cent of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.1.2; and
6.1.4 Hi-Spec Electrical shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Hi-Spec Electrical engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Hi-Spec Electrical for the performance of the Services, and for the cost of any materials.
6.2 Hi-Spec Electrical reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Start Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
6.3 Unless provided otherwise in the Order Form the Customer shall pay each invoice submitted by Hi-Spec Electrical:
6.3.1 within 30 days of the date of the invoice [or in accordance with any credit terms agreed by Hi-Spec Electrical and confirmed in writing to the Customer]; and
6.3.2 in full and in cleared funds to a bank account nominated in writing by Hi-Spec Electrical, and
6.3.3 time for payment shall be of the essence of the Contract.
6.4 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 Hi- Spec Electrical to the Customer, the Customer shall, on receipt of a valid VAT invoice from Hi-Spec Electrical, pay to Hi-Spec Electrical such additionalm 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.
6.5 If the Customer fails to make a payment due to Hi-Spec Electrical under the Contract by the due date, then, without limiting Hi-Spec Electrical ’s remedies under Clause 10, 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 6.5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, or at 8% a year for any period when that base rate is below 0%.
6.6 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).
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7 Intellectual property rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Hi-Spec Electrical.
8 Data Protection
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. To the extent that the Supplier receives any personal data from the Customer the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor and the provisions of schedule 1 will apply.
9 Limitation of liability:
9.1 Hi-Spec Electrical has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000 per claim. The Supplier has been unable to obtain insurance in respect of certain types of loss at a commercially viable price. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 The restrictions on liability in this Clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
9.4 Nothing in the Contract limits any liability which cannot legally be limited.
9.5 Subject to clause 9.4 Hi-Spec Electrical’s total liability to the Customer shall not exceed £1,000.
9.6 In no event shall Hi Spec Electrical be liable for any of the following types of loss, however they may arise: loss of profits, loss of sales or business,loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or any Indirect or consequential loss.
9.7 Unless the Customer notifies the Supplier that it intends to make a claim within six months of completion of the relevant Services, the Supplier shall have no liability for those Services.
10.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party two months’ written notice.
10.2 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:
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10.2.1 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 Hi-Spec Electrical days of that party being notified in writing to do so;
10.2.2 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;
10.2.3 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
10.2.4 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.
10.3 Without affecting any other right or remedy available to it, Hi-Spec Electrical 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.
10.4 Without affecting any other right or remedy available to it, Hi-Spec Electrical may suspend the supply of Services under the Contract or any other contract between the Customer and Hi-Spec Electrical 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 10.2.2 to clause
10.2.4 or Hi-Spec Electrical reasonably believes that the Customer is about to become subject to any of them.
11 Consequences of termination
11.1 On termination of the Contract:
11.1.1 the Customer shall immediately pay to Hi-Spec Electrical all of Hi- Spec Electrical ’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Hi-Spec Electrical shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.1.2 the Customer shall return all of Hi-Spec Electrical Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Hi-Spec Electrical may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
11.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12 Force Majeure
12.1 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.
13 Assignment and other dealings.
13.1 Hi-Spec Electrical 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.
13.2 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.
14.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
14.2.1 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; and
14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15 Entire agreement.
15.1 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.
15.2 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.
15.3 Nothing in this clause shall limit or exclude any liability for fraud.
16.1 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).
17.1 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 default. 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.
18.1 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.
19 Third party rights.
19.1 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.
20 Governing law.
20.1 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 and 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).
Schedule 1 Data Protection
Where Hi Spec Electrical deals with Personal Data on behalf of the Customer the following provisions will apply:
1.1 “Data Controller” has the meaning given to ‘Data Controller’, or ‘Controller’ as appropriate, in the Data Protection Laws;
1.2 “Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
1.3 “Data Processor” has the meaning given to ‘Data Processor’, or ‘Processor’ as appropriate, in the Data Protection Laws;
1.4 “Data Protection Laws” means any and all laws, statutes, enactments, orders or regulations or other similar instruments of general application and any other rules, instruments or provisions in force from time to time relating to the processing of personal data and privacy applicable to the performance of this Agreement, including where applicable the Data Protection Act 1998, the Data Protection Bill, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) as amended or superseded and the GDPR (Regulation (EU) 2016/679);
1.5 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing directive 95/46/EC as updated, superseded or repealed from the time to time;
1.6 “Personal Data” has the meaning given in the Data Protection Laws.
2. COMPLIANCE WITH DATA PROTECTION LAWS
The Parties shall each comply with their respective obligations under the applicable Data Protection Laws.
3. DATA PROCESSING OBLIGATIONS
In respect of any Personal Data to be processed by a Party acting as Data Processor pursuant to this Agreement for which the other Party is Data Controller, the Data Processor shall:
3.1 provide appropriate technical and organisational measures in such a manner as is designed to ensure the protection of the rights of the data subject and to ensure a level of security appropriate to the risk;
3.2 not engage any sub-processor without the prior written authorisation of the Data Controller (and for this purpose the Data Controller agrees that the Data Processor may appoint any sub-processor provided that any such sub- processor is subject to data protection obligations that are similar to those applicable to the Data Processor under this Schedule;
3.3 process that personal data only to perform its obligations under this Agreement or other documented instructions and for no other purpose save to the limited extent required by law;
3.4 once the data is no longer needed, at the Data Controller’s option either return or destroy the personal data (including all copies of it) immediately;
3.5 ensure that all persons authorised to access the personal data are subject to obligations of confidentiality;
3.6 make available to the Data Controller, at the Data Controller’s request and expense all information necessary to demonstrate compliance with the obligations laid out in Article 28 of GDPR and this Schedule and allow for and contribute to audits, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller; provided that, in respect of this provision the Data Processor shall immediately inform the Data Controller if, in its opinion, an instruction infringes Data Protection Laws;
3.7 taking into account the nature of the processing, provide assistance to the Data Controller at the Data Controller’s request and expense, insofar as possible, in connection with the fulfilment of the Data Controller’s obligation to respond to requests for the exercise of data subjects’ rights pursuant to Chapter III of the GDPR to the extent applicable. Such assistance to be chargeable at Data Processor’s standard rates or rates agreed by the Parties from time-to-time;
3.8 provide the Data Controller, at the Data Controller’s request and consent, with assistance in ensuring compliance with articles 32 to 36 (inclusive) of the GDPR (concerning security of processing, data breach notification, communication of a personal data breach to the data subject, data protection impact assessments, and prior consultation with supervisory authorities) to the extent applicable to the Data Controller, taking into account the nature of the processing and the information available to the Data Processor. Such assistance to be chargeable at Data Processor’s standard rates or rates agreed by the Parties from time-to-time;
3.9 notify the Data Controller without undue delay of becoming aware of a security breach in respect of Personal Data that it processes on behalf of the Data Controller in writing if the Data Processor becomes aware of a Data Breach;
3.10 allow the Data Controller (or its appointed third Party auditor) to conduct an audit of compliance of this Schedule by the Data Processor pursuant to this Agreement (including by way of physical inspection) no more frequently than once per year during the term and on at least 10 days’ notice to the Data Processor in advance (provided that the Data Processor shall be entitled to require that any third party auditor appointed to conduct such an audit enters into a confidentiality agreement with the Data Processor prior to such audit being conducted. Support for audits to be chargeable at Data Processor’s standard rates or rates agreed by the Parties from time-to-time.
DETAILS OF PROCESSING ACTIVITIES:
The following table sets out the details of processing as required by Article 28 of GDPR:
|Purposes for which the Personal Data shall be processed|
Please specify the purposes for which the Data Processor intends to process the Personal Data.
|For the purpose of providing the Services under this Agreement, including any necessary follow up.|
|Description of the categories of the data subjects |
Please specify the categories of data subject whose Personal Data shall be processed under this Agreement.
|Individuals that receive the Services from Hi Spec Electrical|
|Description of the categories of Personal Data|
Please specify the categories of Personal Data that shall be processed under this Agreement.
|The minimum required personal data to allow Hi Spec Electrical to carry out the services (e.g Names, addresses, telephone numbers)|
|Description of transfers of Personal Data to a country outside of the EEA|
Please record transfers of Personal Data outside of the EEA, recording the country and/or international organisation and, where applicable, please document suitable safeguards.
|The envisaged time limits for erasure of the different categories of Personal Data|
Please specify how long you think the Personal Data will be retained for, where possible.
|Personal Data will be kept for the term of the services or for so long as the Supplier requires use of the data|
|General description of technical and organisational security measures|
|All data held by the Supplier is held securely|
List the sub-processors who will process Personal Data.
|Any subcontractors from time to time appointed by the Supplier|