9. CUSTOMER'S OBLIGATIONS

9.1 The Customer shall:

• confirm that the terms of the Quotation are complete and accurate;
• co-operate with the Supplier in all matters relating to the Services;
• provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, chimney flue and other facilities as reasonably required by the Supplier to provide the Services;
• provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
• 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;
• ensure that where a chimney flue is to be swept and/or tested as part of the Services:
  1. the chimney flue has not been used for at least 24 hours prior to the date that the Services are to be provided;
  2. it has notified the Supplier of any damage or alteration to the appliance, stack, flue, pot or any other part of the structure that might affect the sweeping and/or testing processes;
  3. the chimney is in a fit and proper condition to withstand any potential stresses caused by the sweeping and/or testing processes;
  4. if there is any question as to the suitability, or structural integrity of the appliance, stack, flue, pot or any other part of the structure, that this is checked out and verified by a competent, accredited builder, prior to the sweeping and/or testing services being carried out; and
  5. keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) in safe custody at its own risk, take reasonable care to maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.

9.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

• the Supplier 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 the Supplier's performance of any of its obligations
• the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 9.2.; and
• the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

10. CHARGES AND PAYMENT

10.1 The price for the Goods shall be the price set out in the Quotation. The price of the Goods is inclusive of all costs and charges of packaging, insurance and transport of the Goods.

10.2 The price for Services shall be the price set out in the Quotation.

10.3 The charges for any Additional Services shall be on a time and materials basis:

• the charges shall be calculated in accordance with the Supplier's standard daily fee rates from time to time in force; and
• the Supplier's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days.

10.4The price for the Services shall include any expenses incurred by the individuals whom the Supplier engages in connection with the Services and any Additional Services.

10.5 The Supplier reserves the right to:

• increase the price of the Goods, by giving notice to the Customer at any reasonable time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
  • any request by the Customer to change the Delivery Date(s), quantities or types of Goods ordered, or the Specification in respect of the Goods; or
  • any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

10.6 the Supplier shall invoice the Customer 100% of the price of the Goods and/or Services immediately upon the Commencement Date.

10.7The Customer shall pay each invoice submitted by the Supplier as stated in the invoice within 14 days and in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract. If the Customer fails to pay sums due in accordance with Clause 10.7 the Supplier reserves the right without limiting any right or remedy, to remove any discount applied to the order.

10.8 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 the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

10.9.1 Without limiting any other right or remedy of the Supplier, if a Trade Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to exercise its statutory right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 and the Regulations made under it unless the Act is found not to apply in which case the Supplier will charge interest on the overdue amount at the rate of 8% per annum above the Bank of England minimum lending rate from time to time until payment in full, compounding quarterly

10.9.2 Without limiting any other right or remedy, if a Consumer fails to make any payment by the Due Date, the Supplier will charge interest on the overdue amount at the rate of 5% per annum above the Bank of England minimum lending rate calculated on a daily basis or otherwise as determined by court proceedings in accordance with clause 14.7.

10.9.3 Without limiting any other right or remedy, if the Customer fails to make payment within 60 days of the Due Date, the Supplier reserves the right to instruct a third party debt collection agency, without further notice, to recover the sums due and any additional legal costs and expenses of the third party debt collection agency incurred as a result.

10.10 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).

11. CONFIDENTIALITY

11.1Each 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 11.2.

11.2 Each party may disclose the other party's confidential information:

• 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 12; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

12. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:

• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• fraud or fraudulent misrepresentation;
• breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 and sections 12-15 of the Sale of Goods Act 1979 (title and quiet possession, description; satisfactory quality; sale by sample); or.
• breach of the terms implied by sections 13-15 of the Supply of Goods and Services Act 1982 (supply to be carried out with reasonable care and skill, within a reasonable time and for a reasonable price)

12.2 Subject to clause 12.1:

• the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss (unless such loss was reasonably foreseeable and was incurred due to breach of contract) arising under or in connection with the Contract; and
• the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be determined in the first instance by negotiation or if both parties agree by mediation; but if negotiation and/or mediation fail, shall be determined by the court in accordance with clause 14.7.

12.3 This clause 12 shall survive termination of the Contract.

13. TERMINATION

13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

• the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 Business Days after receipt of notice in writing of the breach;
• the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986.
• The Customer is subject to any insolvency which includes, but is not limited to, Company Voluntary Arrangements; Bankruptcy Petitions and Orders; IVA (Individual Voluntary Arrangements); DRO (Debt Relief Order); Receivership; Administration/Administration Orders; Winding-up Orders (Registered and Unregistered Companies.
• the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

13.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract:

• by giving the Customer 1 month’s written notice; and
• with immediate effect by giving written notice to the Customer if the Customer unreasonably fails to pay any amount due under this Contract on the due date for payment.

13.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:

• the Customer fails to pay any amount due under this Contract on the due date for payment; or
• the Customer becomes subject to any of the events listed in clause 13.1 (b), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

14. CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

• the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
• the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier 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 and remedies of the parties as at termination shall not be affected, 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
• clauses which expressly or by implication have effect after termination shall continue in full force and effect.

14.1 Assignment and subcontracting:

• The Supplier may at any time assign, transfer, 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. The validity and enforceability of this Contract will not be affected or amended by any such assignment or subcontracting.
• The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.2 Notices:

• Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number, or if to a consumer sent or delivered to that consumer’s last known address.
• Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
• This clause 14.2 shall not apply to the service of any proceedings or other documents in any legal action. For the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.

14.3 Waiver and cumulative remedies:

• A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
• Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

14.4 Severance:

• If a court finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
• If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

14.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

14.6 Entire agreement:

• 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.
• 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 misrepresentation] based on any statement in the Contract.
• Nothing in this clause shall limit or exclude any liability for fraud.

14.7 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by both parties.

14.8 Governing law and jurisdiction: The Contract, 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, and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.