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1. INTERPRETATION
1.1 Definitions:
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.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between Sutton Projects Ltd and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Sutton Projects Ltd.
Customer Default: has the meaning set out in clause 4.2.
Deliverables: the deliverables set out in the Order produced by Sutton Projects Ltd for the Customer (and which may include standard and/or bespoke materials).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in getup, 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 knowhow), and all other intellectual property rights, in each case whether registered
or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority
from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of
the world.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form, or the Customer’s written acceptance of a
quotation by Sutton Projects Ltd, or overleaf, as the case may be.
Quotation: a quotation provided by Sutton Projects Ltd to the Customer setting out the details and pricing for the specific Services
required by the Customer (whether pursuant to a tender or otherwise).
Services: the services, including the Deliverables, supplied by Sutton Projects Ltd to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in the Quotation by Sutton Projects Ltd to the Customer.
Supplier: Sutton Projects Limited registered in England and Wales with company number 5073037 whose registered office is situated at 01 Cuffley Place, Sopers Road, Cuffley, EN6 4RY.
Supplier Materials: has the meaning set out in clause 4.1(g).
1.2 Interpretation:
(a) 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
(b) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative
(c) A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Sutton Projects Ltd issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Sutton Projects Ltd, and any descriptions or illustrations contained in Sutton Projects Ltd’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.
2.4 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 trade, custom, practice or course of dealing.
2.5 Any quotation given by Sutton Projects Ltd shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Sutton Projects Ltd shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 Sutton Projects Ltd shall use all reasonable endeavours to meet any performance dates specified in the Quotation or agreed at any pre-start meeting, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Notwithstanding clause 6, Sutton Projects Ltd shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Sutton Projects Ltd shall notify the Customer in any such event.
3.4 Sutton Projects Ltd warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Where any material supplied by Sutton Projects Ltd carries a manufacturer’s guarantee, Sutton Projects Ltd shall use its reasonable endeavours (but shall not be obliged) to pass on the benefit of such guarantee to the Customer.
3.6 Should the Customer have any issues or complaints regarding the Services or the performance of Sutton Projects Ltd’s obligations under the Contract, it shall promptly report the same to Sutton Projects Ltd. Sutton Projects Ltd shall, in its reasonable discretion, remedy the issue or defect by returning to the Customer’s premises to re-perform the Services at its own expense.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate (including, but not limited to, accurate measurements, as appropriate. The Customer acknowledges that certain Deliverables will be supplied by Sutton Projects Ltd in reliance on the measurements supplied);
(b) co-operate with Sutton Projects Ltd in all matters relating to the Services;
(c) provide Sutton Projects Ltd, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Sutton Projects Ltd, in order for it to supply the Services;
(d) provide Sutton Projects Ltd with such information and materials (including but not limited to any health and safety issues) as Sutton Projects Ltd may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services, as may be agreed between the parties at any pre-start meeting;
(f) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(g) keep and maintain all materials, equipment, documents and other property of Sutton Projects Ltd (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Sutton Projects Ltd, and not dispose of or use the Supplier Materials other than in accordance with Sutton Projects Ltd’s written instructions or authorisation;
(h) provide Sutton Projects Ltd with all information relating to any health and safety issues, such as asbestos risks, in which case, access shall be provided to the Customer’s asbestos register or reports, if any; and
(i) comply with any additional obligations as set out in the Specification.
4.2 If Sutton Projects Ltd’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):
(a) Sutton Projects Ltd shall without limiting its other rights or remedies, 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 to the extent the Customer Default prevents or delays Sutton Projects Ltd’s performance of any of its obligations;
(b) Sutton Projects Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Sutton Projects Ltd’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Sutton Projects Ltd on written demand for any costs or losses sustained or incurred by Sutton Projects Ltd arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be agreed at the pre-start meeting and set out in the acceptance of the Order, and may be agreed as a fixed price (where the Order was awarded pursuant to a successful tender bid or for a set Specification) or where supplying reactive maintenance services, then on a time and materials retainer basis.
5.2 Where the Charges for the Services are agreed on a fixed price basis (for example, in relation to a project), the Charges shall be calculated in accordance with Sutton Projects Ltd’s quoted rates, as set out in the Quotation.
5.3 Where the Charges for the Services are agreed on a time and materials basis:
(a) the Charges shall be calculated in accordance with Sutton Projects Ltd’s standard daily fee rates, as set out in the Quotation;
(b) Sutton Projects Ltd standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00am to 5.00pm worked on Business Days;
(c) Sutton Projects Ltd shall be entitled to charge an overtime rate of an agreed percentage of the standard 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 5.3(b); and
(d) Sutton Projects Ltd shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Sutton Projects Ltd engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Sutton Projects Ltd for the performance of the Services, and for the cost of any materials.
5.4 Sutton Projects Ltd reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 12 month period. Sutton Projects Ltd will give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Sutton Projects Ltd in writing within 2 weeks of the date of the Sutton Projects notice and Sutton Projects shall have the right without limiting its other rights or remedies to terminate the Contract by giving 4 weeks’ written notice to the Customer.
5.5 Sutton Projects Ltd shall invoice the Customer on completion of the Services, where the Charges for the Services are agreed on a fixed price basis. Where the Services relate to a specific project, and where agreed, then Sutton Projects Ltd reserves the right to invoice the Customer on an interim basis by way of instalments, as Sutton Projects may in its absolute discretion deem appropriate. Where the Services are to be supplied on a time and materials retainer basis, then Sutton Projects Ltd shall invoice the Customer monthly in arrears, unless agreed otherwise.
5.6 The Customer shall pay each invoice submitted by Sutton Projects Ltd:
(a) within 30 days of the date of the invoice; and (unless agreed otherwise}
(b) in full and in cleared funds to a bank account nominated in writing by Sutton Projects Ltd, and time for payment shall be of the essence of the Contract.
5.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Sutton Projects Ltd to the Customer, the Customer shall, on receipt of a valid VAT invoice from Sutton Projects, pay to Sutton Projects Ltd 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.
5.8 If the Customer fails to make any payment due to Sutton Projects Ltd under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Sutton Projects Ltd may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Sutton Projects Ltd to the Customer.
6. CHANGE CONTROL
6.1 Where Sutton Projects supplies the Services on a particular project whose length exceeds 3 months, then the Customer’s Manager and Sutton Projects Manager shall meet at least once every month to discuss matters relating to the Services. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, Sutton Projects Ltd shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any necessary variations to Sutton Projects charges arising from the change;
(c) the likely effect of the change on the project plan; and
(d) any other impact of the change on this agreement.
6.3 If the Customer wishes Sutton Projects to proceed with the change, Sutton Projects has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms to take account of the change. Where additional Services are required and agreed, then Sutton Projects Ltd shall raise a variation request and the Customer shall raise an additional Order in relation to the additional Services.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Sutton Projects Ltd.
7.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Sutton Projects Ltd obtaining a written licence from the relevant licensor on such terms as will entitle Sutton Projects to license such rights to the Customer.
7.3 All Supplier Materials are the exclusive property of Sutton Projects Ltd.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in the Contract shall limit or exclude Sutton Projects Ltd liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1, Sutton Projects Ltd shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
8.3 Subject to clause 8.1,Sutton Projects total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract in the 12 months preceding the date on which the claim arose.
8.4 This clause 8 shall survive termination of the Contract.
9. TERMINATION
9.1 Without limiting its other rights or remedies, either party may terminate the Contract for any reason and at any time by giving the other party 1 month’s written notice.
9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) 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 14 days of that party being notified in writing to do so;
(b) 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;
(c) 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
(d) 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.
9.3 Without limiting its other rights or remedies, Sutton Projects Ltd 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 and remains in default not less than 28 days after being notified to make such payment.
9.4 Without limiting its other rights or remedies, Sutton Projects Ltd may suspend provision of the Services under the Contract or any other contract between the Customer and Sutton Projects Ltd if the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or Sutton Projects Ltd reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Sutton Projects all of the Sutton Projects outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Sutton Projects Ltd shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall immediately pay for all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Sutton Projects 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 this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
11. GENERAL
11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) Sutton Projects Ltd may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of Sutton Projects, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of one year 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 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) 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 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) This agreement 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.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
11.7 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.
11.8 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.8(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
11.10 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.
11.11 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.