Terms and Conditions of Business
Revised August 2018
- Introduction and Definitions
No order submitted by the Customer shall be deemed to be accepted by CAT unless and until confirmed in writing by CAT’s authorised representative and subject to these Conditions.
For the purposes of these Conditions:
“Agreement” means the contract between CAT and the Customer for the supply of Goods and/or Services. Each order from the Customer for Goods or Services whether based upon a Proposal or Quote or otherwise which is accepted by CAT shall constitute a separate Agreement which shall be governed by these Conditions;
“CAT” means Clean Air Technologies Limited (company number 3500241) whose registered office is at B11 Laser Quay, Culpeper Close, Medway City Estate, Rochester, Kent, ME2 4HU;
“CAT Equipment” means any measuring and/or monitoring and/or other equipment provided by CAT (but not sold) to the Customer under the Agreement;
“Business Day” means a day other than a Saturday or Sunday or public holiday in England and Wales;
“Consumer” means a natural person acting outside of the course of a business, profession or trade;
“Customer” or “you” means the partnership, company or other entity entering into the Agreement with CAT and identified in the Proposal or Quotation;
“Customer Equipment” means the any equipment owned by or under the control of the Customer used in connection with the supply Goods and/or Services under the Agreement;
“Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and thereafter (ii) any successor legislation to the GDPR or the Data Protection Act 1998
“Goods” means any goods or materials sold by CAT to the Customer;
“Delivery Date” in respect of the delivery of any specific Goods or Services the delivery date agreed in writing with the Customer for those specific Goods or Services, and absent written agreement as determined by CAT;
“Project Plan” means the document prepared by CAT planning the delivery of the Services and Goods;
“Quotation” and/or “Proposal” means CAT’s written quotation or proposal for Goods or Services upon which the Customer’s order is/may be accepted by CAT, which may include any specifications and details about the Goods or Services.
“Schedule of Costs” means the schedule prepared by CAT outlining the costs of Services and Goods required in order to deliver the Project Plan.
“Services” means any services provided by CAT to the Customer in terms of any Quotation or Proposal, including, without limitation, design and specification services, the provision of training, technical advice and the inspection and maintenance of Customer Equipment.
- Delivery/Collection and Installation/Commissioning
- Save as set out in terms of the Agreement, or as otherwise agreed, CAT will supply Goods and/or Services against orders placed by the Customer and which are accepted by CAT.
- The Customer acknowledges that collection of Goods from a CAT site or agent shall be at the Customer’s own risk and that the Customer is responsible for handling and transporting the load safely, training the driver on the hazards of the Goods and compliance with all relevant legislation including (without limitation) the Carriage of Dangerous Goods by Road Regulations.
- Delivery of the Goods and or Services shall be made by CAT delivering the Goods to the place in the United Kingdom specified in the Proposal/Quotation. Subject to Condition 7(g) CAT’s delivery/collection note shall be conclusive evidence of delivery and quantity of the Goods.
- Failure by CAT to deliver or perform by any time specified by CAT shall not entitle the Customer to terminate the Agreement and time shall not be of the essence in respect of deliveries or performance. CAT’s liability for a failure to deliver or perform shall be limited in accordance with Condition 7. Delivery of Goods or Services may be by instalment.
- If delivery of any Services or Goods or any part of them cannot be made on the Delivery Date due to the act or omission of the Customer (or the act or omission of any employee, agent or contractor of the Customer) including if the Customer fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods or Services to be delivered on that date including any delay occurring on site or causing CAT to be delayed while on site and CAT receives less than 5 working day notice of the delay:
- if CAT delivers the Goods and/or Services at any time thereafter the delivery date shall be determined by CAT and CAT shall have no liability in respect of such late delivery;
- the Goods and/or Services shall be deemed to have been delivered on the Delivery Date and CAT may charge for abortive journeys, standing time, the cost of returning (and then re-ordering) some or all of the Goods and for storage thereof until delivered.
- CAT may charge the Customer for the wasted time of the CAT installer(s) for the period of delay and/or for the full duration of the time and dates allocated to the delayed or aborted work and for any re-scheduled visits which shall occur at CAT’s convenience;
- CAT shall be entitled in its discretion to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 4(f) risk in the Goods shall pass to the Customer upon exercise of the discretion. Delivery shall be deemed to have taken place and the Customer shall pay to CAT all costs and expenses arising including storage and insurance charges arising therefrom.
- If CAT fails to deliver the Goods and/or Services within 60 Business Days of the Delivery Date the Customer may cancel the Agreement and CAT’s liability shall be limited to the excess (if any) of the cost of the Customer (in the cheapest available market) of similar goods to those not delivered over the price of the Goods not delivered or, as the case may be, to the cost of obtaining the Services from an alternative contractor.
- Services are to be rendered during Office Hours (between 08h30 and 17h00) on Business Days unless agreed otherwise in writing. If the Client requires CAT to render Services out of hours CAT may charge its then prevailing overtime rates (OT Rates), including any subsistence and other additional costs arising.
- Customer Duties and Responsibilities
The Customer shall:
- provide free of charge adequate and safe access to the Customer’s sites, information, documents and facilities (including labour for loading and unloading of Goods and the provision of electricity and materials for use during testing and commissioning) for CAT to carry out its duties and rights under the Agreement;
- be responsible for the safe custody of CAT’s and its sub-contractor’s property left on the Customer’s site for the purposes of installation, commissioning, maintenance and removal of Goods and for the performance of any Services;
- insure any Goods not paid for in full to their full replacement cost against “all risks” and against all normal public liability risks. All insurance shall be on terms satisfactory to CAT;
- ensure that all work and materials for which the Customer is responsible meet and comply with all legal and statutory requirements and with CAT’s specifications;
- obtain all necessary consents and comply with all legal obligations in connection with installation or use of Goods and/or any Services performed at the Customer’s or its nominee’s site;
- comply with any operating manual (or other instructions) provided, and not otherwise adjust, repair or interfere with the Goods without CAT’s written consent, failing which CAT shall have no further liability in connection with those Goods;
- be responsible for the safety and condition of, and comply with applicable legal requirements in respect of, any Customer owned equipment, goods or materials and attachments which CAT may encounter when delivering the Services or in connection with the delivery or installation of the Goods.
- Title and Risk
- Property in any Goods shall only pass to the Customer on receipt by CAT in full of:
- the price (and VAT) for the relevant Goods; and
- all other sums due from the Customer under the Agreement; and
- all sums due from the Customer under any other contracts, agreements or arrangements between the Customer and CAT.
- Save for rights over the Goods under this Agreement, the Customer shall have no rights over any other property of CAT or its contractors brought onto the Customer’s or its nominee’s site.
- CAT reserves the right to repossess any Goods in which CAT retains title without notice. The Customer irrevocably authorises CAT to enter the Customer’s premises during Office Hours for the purpose of repossessing the Goods in which CAT retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of Condition 4(e).
- The Customer’s right to possession of the Goods in which CAT maintains legal and beneficial title shall terminate if any of the circumstances in Condition 8(a) and/or 8(b)
- Until such time as the property in any Goods has passed to the Customer under Condition 4(a) the Customer shall:
- hold such Goods as a fiduciary or bailee of CAT, stored separately from the Customer’s own goods, identified as CAT’s Goods, and fully insured;
- not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Goods; and
- not dispose of or deal with the Goods or any documents of title relating to them or any interest in them, except that the Customer may, without prejudice to Condition 4 (f) (and subject to the other terms of the Agreement), on its own account use the Goods in the ordinary course of its business.
- Risk of damage to or loss of the Goods shall pass to the Customer at:
- in the case of Goods to be delivered at CAT’s premises, the time when CAT notifies the Customer that the Goods are available for collection;
- in the case of Goods to be delivered otherwise than at CAT’s premises, the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when CAT has tendered delivery of the Goods; or
- in the case of Goods installed by CAT, the time that CAT notifies the Customer that the installation is complete.
- Property in any Goods shall only pass to the Customer on receipt by CAT in full of:
- Re-Sale of Goods
- Subject to Goods supplied by CAT may be re-sold but the Customer shall not assign any rights or obligations under this Agreement and it indemnifies CAT accordingly.
- The Customer hereby indemnifies and keeps indemnified and holds harmless CAT at all times against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by CAT to CAT’s satisfaction arising out of or in connection with any alleged defects in Goods or Services re-sold by the Customer.
- The Customer shall be entirely responsible for providing proper instructions, warnings and other safety information in connection with any re-sale of Goods or Services.
- For the avoidance of doubt, no re-sale of any Goods or Services by the Customer shall relieve the Customer of any of its obligations under the Agreement, in particular, without limitation, payment of any charges.
- Price and Payment
- The price for Goods and Services shall be the price specifically contained in a Quotation or Proposal as a fixed price for a specific period or agreed otherwise in writing. All prices are in Pound Sterling unless specifically agreed otherwise in writing. Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of order, invoice or other document or information issued by CAT shall be subject to correction without any liability on the part of CAT.
- Sales literature, price lists and other documents issued by CAT in relation to Goods and Services are subject to alteration without notice and do not constitute offers to sell Services or Goods that are capable of acceptance.
- Normal terms of payment are 30 days from the date of invoice.
- In relation to payment for Goods or Services by debit card, credit card or charge card, the Customer will be charged when CAT systems confirm to CAT that the Goods or Services have been supplied. Where the Customer pays by debit card, credit card, or charge card in any other circumstances, CAT reserves the right to charge any additional costs CAT incurred as a result of such payment by debit card, credit card or charge card.
- CAT’s preferred method of invoicing is by electronic bank transfer. CAT reserves the right to charge any additional costs CAT incurs in generating paper invoices or non-standard invoices for the Customer.
- CAT should be error on an invoice within fourteen days of date of the invoice.
- The commitment on the part of CAT to supply the Customer under the Agreement is conditional on CAT remaining satisfied with the Customer’s credit worthiness. If any payment is overdue or the Customer’s credit worthiness changes or any event referred to in Condition 8(a) and/or 8(b) occurs CAT may stop the delivery, commissioning or installation of Goods or provision of Services and payment shall become immediately due for all Goods and Services supplied to that date.
- CAT may charge interest at 2% above the base rate of the Bank of Scotland or at 5% whichever is the higher and/ or CAT may levy charges otherwise provided for pursuant to The Late Payment of Commercial Debts (Interest) Act 1998, Such charges or interest shall be payable on demand. CAT reserves the right to claim compensation for debt recovery costs as set out in the same legislation where CAT is not paid according to agreed credit terms.
- All prices and charges are expressed exclusive of VAT which shall be charged and paid as applicable.
- If at any time CAT’s costs change due to government action or to a change in the law, CAT reserves the right to adjust prices to take account of such change in its costs.
- All amounts due shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding .
- Liability, Warranties and Exclusions
- Save as set out in this Condition 7 and subject only to Condition 7(b), CAT shall have no liability, out of or in connection with the Agreement, the Goods or the Services, howsoever arising, for any:
- other loss or damage (whether direct or indirect); or
- loss of or damage to revenue, profits, savings, use, contracts, goodwill or business (whether direct or indirect); or
- consequential or indirect loss or damage.
- When used or referred to in this Condition 7 the term “howsoever arising” shall cover all causes and actions giving rise to liability whether in contract, tort (including negligence), restitution, for breach of statutory duty, misrepresentation or otherwise.
- Nothing in the Agreement limits or excludes CAT’s liability:
- for death or personal injury to the extent that it results from CAT’s negligence;
- for fraud or fraudulent misrepresentation; or (iii) to the extent not permitted by law.
- CAT accepts liability for physical damage to the Customer’s property to the extent that it results from breach of contract or CAT’s negligence in connection with the performance of the Agreement subject to a limit of £50,000 (fifty thousand pounds) per claim or series of claims arising out of the same event or circumstances.
- CAT accepts liability, to the extent that it results from breach of contract or CAT’s negligence in connection with the performance of the Agreement, for losses, costs, expenses or damage:
- caused by CAT supplying Goods: up to a limit of £5,000 or, if greater, the price of the Goods sold to the Customer under this Agreement at that time, for any one incident;
- arising from delay or failure by CAT in delivery of any Goods up to a limit of an amount equal to CAT’s price for the Goods that CAT has failed to deliver; and
- resulting from the provision of Services up to
- Save as set out in the Quotation or Proposal, CAT cannot guarantee or warrant that the Goods or Services are suitable for the use or process that the Customer intends to use them. If a specific tolerance, capacity or level of compliance with a specific standard is required in connection with the Goods or Services, the Customer shall notify CAT in writing thereof prior to delivery of the Goods or Services and same shall be binding on CAT only if reproduced in the Proposal or Quotation.
- CAT warrants that the Services (if any) will be provided with reasonable care and skill. CAT’s warranty in relation to Goods is set out in Condition 15.
- CAT shall not be liable for any shortage, loss, damage or discrepancy in Goods or failure to perform the Services unless notified to CAT in writing within five Business Days of completion of the Services or receipt of the relevant Goods by the Customer. This exclusion of liability shall not apply if the Customer proves that it was not reasonably possible to notify CAT within this time period, and such notification was given as soon as was practicable and in any event within five Business Days after the Customer became aware, or could reasonably be expected to have become aware, of the claim. If acceptance tests are provided in the Agreement for Goods or Services this Condition 7(g) shall not apply to such Goods or Services and the Customer shall be deemed to have accepted the Goods or Services upon successful completion of those tests.
- Subject to the other terms of the Agreement (and in particular Condition 15), where any shortage, loss, damage or discrepancy in Goods and/or failure to perform the Services is notified to CAT in accordance with Condition 7(g) CAT shall at its option rectify the shortage, loss, damage or discrepancy in the Goods free of charge, re-perform the Services or refund or forego an appropriate proportion of the price for the Goods or Services. If CAT complies with this obligation it shall have no further liability in respect of, or arising from the relevant Goods or Services under this Condition 7(h).
- If CAT’s performance of any obligation by its normal means is prevented, hindered or delayed due to any cause beyond CAT’s reasonable control, that contract obligation shall be suspended during the period CAT is affected by such cause.
- All warranties and conditions which arise from statute and relate to the supply of goods and services are excluded from the Agreement except to the extent that such exclusion is prevented by law.
- The Customer shall indemnify and keep indemnified and hold harmless CAT at all times against all claims, demands, liability, loss, damages, costs (including legal costs on a full indemnity basis) and expenses incurred by CAT arising out of or in connection with CAT’s presence on the Customer’s or its nominee’s site except to the extent caused by the negligence of CAT.
- Technical advice or training supplied to the Customer by CAT shall be prepared or delivered in good faith, in the context of the law in force as at the date of its preparation and on the basis of the matters and information disclosed by the Customer to CAT. CAT accepts no responsibility for subsequent changes in law which may affect the conclusions of and/or recommendations in technical advice or training or for any loss or damage incurred or suffered by the Customer arising out of a failure by the Customer to disclose facts or circumstances necessary for the preparation of technical advice or training.
- Returns of Goods which are not defective, and which are returned by the Customer and accepted by CAT may be credited to the Customer at CAT’s sole discretion and without any obligation on the part of CAT.
- Save as set out in this Condition 7 and subject only to Condition 7(b), CAT shall have no liability, out of or in connection with the Agreement, the Goods or the Services, howsoever arising, for any:
- Breach and Termination
- Without prejudice to either party’s other rights and remedies either party may terminate the Agreement by written notice at any time if the other party is in material breach of any of its terms and (in the case of a remediable breach) the breach is not remedied within 28 days of a notice specifying the breach and requiring it to be remedied.
- Without affecting any other rights or remedies that CAT may have, CAT may terminate the Agreement immediately at any time by written notice to the Customer if the Customer:
- has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three business days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Customer is incorporated, resident or carries on business; or
- fails to make any payment due to CAT.
- Without prejudice to its other rights or remedies (including its rights of termination) CAT may elect to suspend performance of all or any of its obligations under the Agreement by written notice to the Customer upon the occurrence of any of the events specified in Conditions 8(b)(i)or (b)(ii) or Condition 8(a) and CAT may appropriate any payment made by the Customer to such of the Goods and Services (or as supplied under any other contract between the Customer and CAT) as CAT may think fit (notwithstanding any purported appropriation by the Customer), and may require the Customer to pay either cash-on-delivery or in full in advance of delivery regardless of any other credit terms in respect of the Agreement and/or any other agreement between them.
- In the case of a remediable breach referred to in Condition 8(a) CAT may elect to suspend performance upon the occurrence of the breach and shall not be required to wait until the 28 day period referred to in Condition 8(a) has expired.
- Termination shall be without prejudice to any accrued rights of either party.
- If CAT terminates the Agreement any charges which are payable in instalments are still outstanding, an amount representing the outstanding instalments shall become due and payable by the Customer on termination of the Agreement.
- Where the Agreement, or any sale of Goods or Services to the Customer, requires CAT to sell and the Customer to purchase Goods or Services over a defined contractual period the full contractual price shall be due to CAT notwithstanding earlier termination save where termination is due to a material breach by CAT.
- Any losses of CAT shall include costs for design, materials and project management.
- Intellectual Property and Confidentiality
- CAT’s trade marks and names shall not be used otherwise than as applied by CAT to CAT Equipment or any Goods and/or Services.
- No right or licence is granted under the Agreement to the Customer under any patent, trade mark, copyright (including in respect of any software), registered design or other intellectual property right, except the right to use or re-sell Goods or Services as permitted under the Agreement. No warranty is given as to whether that use, or re-sale will infringe the rights of any third party.
- Any know how, information, pricing or documents disclosed at any time by either party shall be treated by the other party as confidential and shall not for a period of 3 years from the date of disclosure be disclosed to any third party or used for any purpose other than for the purpose of this Agreement without the prior written consent of the disclosing party, unless and until the same is public knowledge other than through default of the receiving party, is independently developed by the receiving party, or comes into the receiving party’s possession bona fide from a third party.
- Any notices under the Agreement shall be in writing and signed by or on behalf of the party giving it.
- Any such notice may be served by delivering it personally or by sending it by pre-paid recorded delivery post, facsimile transmission or email at or to the address shown above of the relevant party or any other address which it may from time to time notify in writing to the other parties. All legal proceedings must be served by pre-paid recorded delivery post, and in the case of those sent to CAT also be sent by email to email@example.com.
- Any such notice delivered personally shall be deemed to be received when delivered (or, if delivered otherwise than between 9.00am and 5.00pm on a Business Day, at 9.00am on the next Business Day); any notice sent by pre-paid recorded delivery post shall be deemed to be received 2 Business Days after posting and in proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted. A notice sent by facsimile transmission shall be deemed to have been received at the time of transmission (or, if transmitted otherwise than entirely between 9.00am and 5.00pm on a Business Day, at 9.00am on the next Business Day), and in proving the service of the same it shall be sufficient to show that such facsimile transmission was duly transmitted to a current facsimile number of the addressee provided that any service shall not be effective unless the sender shall have received printed confirmation of the transmission and a copy of such transmitted notice is sent by recorded delivery post no later than four Business Days after the day of such facsimile transmission being effected. A notice sent by email shall be deemed to have been received at the time of transmission (or, if transmitted otherwise than entirely between 9.00am and 5.00pm on a Business Day, at 9.00am on the next Business Day), and in proving the service of the same it shall be sufficient to show that such email was duly transmitted to a current email address of the Customer, or in the case of CAT to firstname.lastname@example.org and copied to the CAT Account Manager (where relevant), provided that in the case of an email sent to CAT any service shall not be effective unless the Customer shall have received an acknowledgement of receipt.
- CAT shall be entitled to assign, novate, charge or hold on trust for another all or any of its rights and obligations under the Agreement on giving written notice to the Customer, but without any further consent of the Customer being requested. CAT shall be entitled to sub-contract any of its obligations under the Agreement provided that CAT shall remain liable for the acts and/or omissions of its sub-contractors.
- The Customer shall not without the prior written consent of CAT assign, novate, charge or hold on trust any of its rights or sub-contract any of its obligations under the Agreement in whole or in part to any third party.
- Data Protection
- Each Party shall comply with all applicable requirements of the Data Protection Legislation. This Condition 12 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation. It is not anticipated that any personal data will be provided to CAT in rendering the Services or selling the Goods.
- If personal data should become possessed by CAT then for the purposes of the Data Protection Legislation, where CAT is the data controller and/or the data processor then Data Controller, Data Processor and Personal Data shall have the meanings as defined in the Data Protection Legislation.
- Without prejudice to the generality of Condition 12 (a), to the extent that the Services or sale of Goods involve the processing of any Personal Data, the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data to CAT for the duration and purposes of this Agreement.
- Without prejudice to the generality of Condition 12 (a), CAT shall, in relation to any Personal Data processed in connection with the performance of its obligations under this Agreement:
- process that Personal Data only on the written instructions of the Customer unless CAT is required by the laws of any member of the European Union or by the laws of the European Union applicable to CAT to process Personal Data (Applicable Laws). Where CAT is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, CAT shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit CAT from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
- the Customer or CAT has provided appropriate safeguards in relation to the transfer;
- the Data Subject has enforceable rights and effective legal remedies;
- CAT complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- CAT complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a Personal Data breach;
- at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this Condition 12.
- CAT may, at any time on not less than 30 days’ notice, revise this Condition 12 by replacing it with any applicable Data Processing Legislation standard clauses or similar terms which shall apply on expiry of the notice unless the Customer reasonably objects.
- From time to time CAT may contact the Customer about products and services from CAT and its business partners. The Customer may opt-out of receiving mailings by contacting CAT at email@example.com.
- CAT may with the prior written approval of Customer (i) identify the Customer as its Customer, (ii) use the Customer’s name, logo and other identifying information or image in connection with emails, communications, and proposals to other prospective Customers, and (iii) disclose the terms of this Agreement as may be required by law.
- If by arrangement with the Customer, Goods, or Services are supplied to any person who is not a party to the Agreement, the Customer shall procure that such person agrees to be bound by the terms of the Agreement as though a party to the Agreement. The Customer shall indemnify and hold harmless CAT against any consequences (including any claim made by such person which he could not make if a party to the Agreement) of the Customer failing to do so or of such person not fulfilling the obligations applicable to it under the Agreement. Any order from or supply to such person shall be on behalf of the Customer and is made pursuant to the terms of the Agreement. Nothing in this Condition 13 shall relieve the Customer of any of its obligations under the Agreement, in particular, without limitation, payment of any Charges or sums owing to CAT.
- Save as provided by Condition 13 (a), no term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Agreement.
- Any variation or waiver of the Agreement (save in terms of Condition 12(e)) must be expressly agreed in writing by both parties. A failure to enforce or delay in enforcing a right or remedy in the Agreement does not constitute a waiver of that right or remedy.
- The Customer warrants that it is not a Consumer and is subject to the exemption under the Consumer Credit Act 1974.
- If any provision of the Agreement is or becomes invalid, illegal or unenforceable in any way under any law, it shall to the extent of such invalidity, illegality or unenforceability be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
- The Agreement together with any additional rights and obligations not conflicting with these Conditions and contained in any Quotation or Proposal, constitutes the whole and only agreement between the parties relating to the subject matter of the Agreement and supersedes any previous agreement or understanding between the parties relating to the supply of Goods and/or Services by CAT to the Customer including, without limitation, any previous forms of CAT’s General Conditions of Sale supplied to the Customer by CAT. Unless otherwise agreed in writing by CAT, no terms or conditions endorsed upon, delivered with or contained in the Customer’s acceptance or acknowledgement of the Agreement, purchase order(s), Customer site documents (including sign-off on Services rendered or Goods received), specifications or similar documents will amend or vary the provisions of the Agreement and the Customer waives any right which it might otherwise have to rely on such terms and conditions.
- The Customer acknowledges and agrees that:
- in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made), or understanding of any person (whether party to the Agreement or not) which is not expressly set out in these Conditions or a Proposal or Quote and
- the only remedy available to it for breach of any statement, representation or other term that is expressly set out in the Agreement shall be for breach of contract under the terms of the Agreement.
- Nothing in Condition 13(g) shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by English law and the parties agree that the courts of England and Wales shall have exclusive jurisdiction.
- The terms and conditions for the sale of Goods and the provision of Services, to the extent not already covered by these Conditions shall be specifically agreed in writing between CAT and the Customer.
- Delivery of Services
- Where CAT agrees to provide Services or sells Goods in connection with Customer Equipment or whenever requested by CAT regarding a particular site the Customer will make available at least 5 Business Days prior to delivery (or within 5 Business days of request) up-to-date copies of all available plans/drawings, test certificates and maintenance inspection reports and any other documents or information that CAT requests applicable to the delivery.
- CAT reserves the right to refuse to supply Goods or Services if CAT determines that the working environment is unsafe until the Customer has completed any remedial work which CAT considers is essential to the safe delivery or safe operation of the Customer Equipment and any delay arising shall be deemed a Customer delay and Condition 2(e) shall apply.
- CAT shall carry out the Services having regard to legal requirements and good safety practices and in accordance with (as the case may be) CAT‘s Proposal, Quote, Project Plan and Schedule of Costs as provided to the Customer. CAT may within the Services provide a certificate to reflect the condition of the Customer Equipment at the time of the Services which certificate shall not in any way be a warranty of, or render CAT liable for, the condition or fitness for purpose of the Customer Equipment. On completion of the Services or delivery and/or installation of the Goods CAT will provide the Customer with detailing the delivery and/or installation of Goods and/or Services carried out. The Customer shall be responsible for the safe retention of all inspection and maintenance documentation provided by CAT. If the Customer requires a hard copy, changes to, re-issues of or other additional work regarding the report CAT may apply charges as required.
- CAT shall, having regard to other commitments and availability of suitably skilled staff, respond as soon as is reasonably practicable to any request by the Customer for work outside the scope of the Project Plan or Schedule of Costs. If no specific price or charging basis for such work is agreed in writing, the Customer shall pay for all materials and expenses at CAT’s then current list price and for time at CAT‘s then current labour rate including travel time to and from CAT’s base.
- The Customer shall report any unsatisfactory operation of the Customer Equipment and changes of layout or withdrawals from service of the Customer Equipment promptly to CAT. The Customer shall make Customer Equipment available to CAT for delivery/installation of Goods or delivery of Services at the time agreed. If the Customer causes undue delay to the CAT engineer’s work, then CAT may charge for the time spent and where appropriate for travelling time, call time and expenses incurred.
- CAT may inform the Customer of Customer Equipment in need of replacement or repair but CAT is not liable for monitoring the state of repair of the Customer Equipment except as expressly otherwise agreed in writing. CAT shall notify the Customer of such items and should the Customer require such work to be carried out CAT will charge in the manner described in Condition 15(e) above.
- CAT disclaims all responsibility for the proper functioning of the Goods or Services if the Customer has caused or allowed the Customer Equipment and/or Goods to be worked on or repaired or fall into disrepair, save in the course of proper operation, by anyone other than a CAT engineer.
- If damage, maloperation or breakdown of Customer Equipment serviced or repaired by CAT is due to failure on CAT‘s part to carry out such work correctly, CAT shall, at CAT’s option:
- repay a proportionate amount of the Service charge appropriate to the items of Customer Equipment concerned; or
- at CAT’s discretion, and at no cost to the Customer for materials or labour, either rectify the damage, maloperation or breakdown or replace the item of Customer Equipment concerned.
- Warranty for the Sale of Goods
- CAT undertakes to repair in Office Hours or, at its option, replace Goods it supplied or parts thereof which fail (fair wear and tear excepted) as a result of a defect in materials or workmanship arising within twelve months of the sale of the Goods to the Customer (or within such other period as may be specified by CAT in the Agreement having regard to the nature and properties of the Goods concerned), and occurring under normal conditions and subject to proper storage, use and maintenance according to the Original Equipment Manufacturer (OEM) specification and provided that:
- The Customer shall be entitled (subject to compliance with Condition 15(a) above) only to the benefit of any guarantee CAT may have from the supplier or manufacturer provided that subsequent purchasers are entitled to the benefit of that guarantee.
- If Goods sold by CAT are found to be defective, CAT undertakes to refund the Customer’s reasonable expenses incurred in returning the Goods to CAT or to CAT’s order.
- CAT may at its option elect to refund or forego the contract price for the defective Goods and take back the Goods sold in full satisfaction of any liability or obligation under Condition 15(a) and (b) above
- Any repairs undertaken outside of Office Hours at the Customer’s request shall be charged at OT Rates.