These terms and conditions of supply will govern all the purchases of Systems (as defined below) by the Customer, and the installation by SERVIAN SECURITY & GATE AUTOMATION LTD of such Systems.
- Definitions and interpretation
1.1 In these Terms:
“Business Day” means any day (other than a Saturday or Sunday) when banks are generally open for normal business in London;
“Business Hours” means the hours of 9.00 am to 5.00 pm on any Business Day;
“Contract” means a order for the supply and installation of a System agreed between the parties and governed by these Terms;
“Customer” means the person, firm or company specified in the Quotation as SERVIAN SECURITY & GATE AUTOMATION LTD’s customer for the supply and installation of the System;
“Force Majeure Event” means any event which is beyond the reasonable control of the affected party (including power failures, industrial disputes affecting any third party, governmental regulations, fires, floods, disasters, civil riots, terrorist attacks or wars);
“Premises” means the installation address specified in the Quotation;
“Price” means the price payable in respect of the System (as specified in a Quotation, and as varied in accordance with Clause 2.5);
“Quotation” means the quotation for the supply and installation of a System sent by SERVIAN SECURITY & GATE AUTOMATION LTD to the Customer (whether sent by email or post) to which these Terms are annexed (which will include details of the Customer, the System, the Price, any deposit, the
target installation date(s), addresses for contractual notices, and the Premises);
“SERVIAN SECURITY & GATE AUTOMATION LTD” means Solar Vehicle Access Ltd, (T/A South West Automation Systems) a company incorporated in England and Wales (registration number 04028026) having its registered office at 2 Primrose Way, Locks Heath, Southampton SO31 6WX
“System” means the access system(s) and/or access system component(s) which the Customer agrees to buy from SERVIAN SECURITY & GATE AUTOMATION LTD under the Contract; and
“Terms” means these terms and conditions of supply.
1.2 A reference in these Terms to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Headings do not affect the interpretation of these Terms.
1.4 References to Clauses are (unless otherwise provided) references to the clauses of these Terms.
1.5 The ejusdem generis rule does not apply to the interpretation of these Terms, and accordingly the interpretation of general words in these Terms will not be restricted by words indicating a particular class or particular examples.
- Contracts
2.1 These Terms and the relevant Quotation contain the only conditions upon which SERVIAN SECURITY & GATE AUTOMATION LTD will deal with the Customer in relation to the supply and installation of Systems, and they govern all Contracts to the exclusion of all other terms. The Customer waives any right
it might otherwise have to rely upon such other terms.
2.2 Each Quotation submitted by SERVIAN SECURITY & GATE AUTOMATION LTD to the Customer will be deemed to be an offer to supply and install a System subject to these Terms.
2.3 In order for the Contract to come into force the Customer must send to SERVIAN SECURITY & GATE AUTOMATION LTD its written agreement to the Quotation and these Terms (together with payment of any deposit specified in the Quotation in accordance with Clause 6.2) by the earlier of:
(a) 7 days after the date of the invoice; and
(b) 7 days before the target date for delivery and installation of the System;
and in the event that the Customer fails to send its written agreement (and payment of any deposit) by the time specified above, then no Contract will come into force unless the Customer subsequently sends its written agreement (and payment of any
deposit) to SERVIAN SECURITY & GATE AUTOMATION LTD and SERVIAN SECURITY & GATE AUTOMATION LTD confirms the Contract in writing or by delivering the System to the Customer.
2.4 SERVIAN SECURITY & GATE AUTOMATION LTD may cancel the Contract in so far as it relates to a particular System, by giving to the Customer written notice of cancellation at any time before delivery of the System, if:
(a) SERVIAN SECURITY & GATE AUTOMATION LTD’s contracted supplier of the System does not deliver the System on time, or delivers the wrong System, or delivers a System that is not of a satisfactory quality; or
(b) a Force Majeure Event prevents the delivery and/or installation of the System under the Contract on any agreed date by SERVIAN SECURITY & GATE AUTOMATION LTD.
2.5 SERVIAN SECURITY & GATE AUTOMATION LTD may increase the Price of a System under the Contract, by giving to the Customer reasonable written notice of the increase at any time before delivery of the System, to the extent that there is a material increase in the cost to SERVIAN SECURITY & GATE AUTOMATION LTD of obtaining or delivering
the System.
- Installation of System
3.1 Systems will be delivered to and installed during Business Hours at the Premises on the target installation date(s) specified in the Quotation or within a reasonable period following such date(s).
3.2 SERVIAN SECURITY & GATE AUTOMATION LTD will use reasonable endeavours to deliver and install the System within in accordance with the target date(s) specified in the Quotation (unless exceptional circumstances apply, in which case SERVIAN SECURITY & GATE AUTOMATION LTD will notify the Customer of the expected delivery and
installation date(s) as soon as practicable).
3.3 The date and time of delivery and installation of the System will not be of the essence of any Contract.
3.4 In the event that the Customer requests that SERVIAN SECURITY & GATE AUTOMATION LTD delay the delivery and installation of a System, and SERVIAN SECURITY & GATE AUTOMATION LTD agrees to do so, SERVIAN SECURITY & GATE AUTOMATION LTD may charge the Customer for all SERVIAN SECURITY & GATE AUTOMATION LTD’s costs and expenses (including storage costs) relating to such delay.
- Risk and title
4.1 Risk in the System will pass from SERVIAN SECURITY & GATE AUTOMATION LTD to the Customer upon the completion of the installation of the System.
4.2 Subject to any valid retention of title by SERVIAN SECURITY & GATE AUTOMATION LTD’s supplier, title to the System (both legal and equitable) will pass from SERVIAN SECURITY & GATE AUTOMATION LTD to the Customer upon the later of:
(a) completion of installation; and
(b) receipt by SERVIAN SECURITY & GATE AUTOMATION LTD of all amounts due from the Customer to SERVIAN SECURITY & GATE AUTOMATION LTD.
4.3 Until title to the System has passed to the Customer:
(a) the Customer will possess the System as fiduciary agent and bailee of SERVIAN SECURITY & GATE AUTOMATION LTD;
(b) the Customer will:
(i) ensure that the System remains clearly identifiable as belonging to SERVIAN SECURITY & GATE AUTOMATION LTD;
(ii) not destroy, deface or obscure any identifying mark on the System;
(iii) ensure that no charge, lien or other encumbrance is created over the System; and
(iv) deliver up the System to SERVIAN SECURITY & GATE AUTOMATION LTD upon demand.
4.4 SERVIAN SECURITY & GATE AUTOMATION LTD may maintain an action for the Price of the System notwithstanding that title to them has not passed to Customer.
- Customer obligations
5.1 The Customer warrants that it will be able to accept delivery and installation of the System in accordance with the provisions of the Contract.
5.2 The Customer will inspect the System immediately following installation and will be deemed to have accepted the System, together with any defects which should have been reasonably apparent upon such inspection, if it does not with 5 days of delivery notify
SERVIAN SECURITY & GATE AUTOMATION LTD of such defects.
5.3 The Customer will:
(a) cooperate with SERVIAN SECURITY & GATE AUTOMATION LTD in all matters relating to the supply and installation of the System;
(b) provide for SERVIAN SECURITY & GATE AUTOMATION LTD, its subcontractors and employees, in a timely manner, access to the Premises as required by SERVIAN SECURITY & GATE AUTOMATION LTD;
(c) be responsible for maintaining the Premises in good order for the supply and installation of the System, and in accordance with all applicable laws;
(d) inform SERVIAN SECURITY & GATE AUTOMATION LTD of all health and safety rules and regulations and any reasonable security requirements that apply at the Premises; and
(e) advise SERVIAN SECURITY & GATE AUTOMATION LTD immediately of any changes in circumstances that may affect the supply and installation of the System in any way.
5.4 If the performance of any of SERVIAN SECURITY & GATE AUTOMATION LTD’s obligations under these Terms is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, SERVIAN SECURITY & GATE AUTOMATION LTD will not be liable for any costs, charges or losses sustained or incurred as a
consequence.
- Price and payment
6.1 The Customer will pay to SERVIAN SECURITY & GATE AUTOMATION LTD the Price in accordance with this Clause 6.
6.2 At the time of the issue of a Quotation, SERVIAN SECURITY & GATE AUTOMATION LTD will also issue an invoice to the Customer for payment of any deposit specified in the Quotation, and the Customer will pay such invoice in cleared funds by the earlier of:
(a) 7 days after the date of the invoice; and
(b) 7 days before the target date for delivery and installation of the System; and if the Customer fails to do so no Contract will come into force save as specified in Clause 2.3.
6.3 On or after the date of installation of the System, SERVIAN SECURITY & GATE AUTOMATION LTD will issue an invoice to the Customer for payment of the balance of the Price and the Customer will pay the invoice by such time as may be specified in the Quotation (and if no time is specified in the
Quotation, immediately following the presentation of the invoice).
6.4 All Prices quoted by SERVIAN SECURITY & GATE AUTOMATION LTD are exclusive of any applicable value added taxes or sales taxes (unless the context requires otherwise) which must be paid by the Customer.
6.5 If the Customer fails to pay any amount payable by it under the Contract, SERVIAN SECURITY & GATE AUTOMATION LTD will be entitled to charge the Customer:
(a) the entire costs of collection (including legal expenses) on an indemnity basis; and
(b) interest on the overdue amount, and such interest will be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the higher of:
(i) the rate of 8% per annum above the base rate for the time being of Lloyds Bank (which will accrue on a daily basis and be compounded quarterly); and
(ii) any applicable statutory rate.
6.6 All payments must be made in the currency specified on the invoice by cheque or such other method as SERVIAN SECURITY & GATE AUTOMATION LTD may agree from time to time.
6.7 The Customer has no right of set off under the Contract or under the law generally in respect of any claims or amounts owed under or in relation to the Contract.
6.8 If the Customer fails to fulfil any payment obligation under or relating to the Contract, SERVIAN SECURITY & GATE AUTOMATION LTD will be entitled (without prejudice to its other rights) to:
(a) postpone the fulfilment of its obligations to the Customer under any Contract;
(b) demand immediate payment for any amounts which are due or may become due under any Contract; and/or
(c) demand security for the Customer’s payment obligations under any or all Contracts.
6.9 The dates for payment of the Charges will be of the essence of the Contract.
- Force Majeure
7.1 Where a Force Majeure Event gives rise to a failure or delay in SERVIAN SECURITY & GATE AUTOMATION LTD performing its obligations under the Contract (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
7.2 If SERVIAN SECURITY & GATE AUTOMATION LTD becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Contract, it will forthwith notify the Customer forthwith.
7.3 SERVIAN SECURITY & GATE AUTOMATION LTD will take reasonable steps to mitigate the effects of any such Force Majeure Event.
- Warranties
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform the Contract.
8.2 SERVIAN SECURITY & GATE AUTOMATION LTD warrants that the System will:
(a) at the time of completion of the installation, conform in all material respects to any specification of the System issued by SERVIAN SECURITY & GATE AUTOMATION LTD to the Customer; and
(b) at the time of completion of the installation and for a period of 12 months thereafter, be free from material defects in materials and workmanship.
8.3 For the avoidance of doubt:
(a) the warranties in Clause 8.2 do not cover any defect in the System arising from fair wear and tear, wilful damage, accident, acts of nature, negligence by the Customer or a third party, use otherwise than in accordance with the manufacturer’s or SERVIAN SECURITY & GATE AUTOMATION LTD’s
instructions or recommendations, or any alteration carried out by the Customer or any third party; and
(b) Clause 8.2(a) will not apply where there have been changes to the specification of System that do not materially affect the quality or appearance of the System, and in such circumstances the Customer will have no right to refuse to accept or to reject the
System for that reason.
8.4 These Terms set out the full extent of SERVIAN SECURITY & GATE AUTOMATION LTD’s obligations and liabilities under the Contract. To the maximum extent permitted by applicable law and subject to Clause 11.1, all conditions, warranties or other terms concerning the System which might otherwise be
implied into the Contract are expressly excluded.
- Warranty claims
9.1 All defects and suspected defects in the System must be reported to SERVIAN SECURITY & GATE AUTOMATION LTD within 24 hours of the defect being identified.
9.2 Where SERVIAN SECURITY & GATE AUTOMATION LTD asks to inspect the System, the Customer will promptly allow SERVIAN SECURITY & GATE AUTOMATION LTD (and SERVIAN SECURITY & GATE AUTOMATION LTD’s supplier where relevant) to do so.
9.3 SERVIAN SECURITY & GATE AUTOMATION LTD shall replace or repair any System components reported by the Customer to be defective in accordance with Clause 9.1, and found by SERVIAN SECURITY & GATE AUTOMATION LTD to be in breach of the warranties in Clause 8.2.
9.4 In the event that the Customer reports a defect and SERVIAN SECURITY & GATE AUTOMATION LTD subsequently establishes that the defect arose out of use by the Customer of the System contrary to these Terms, then a call-out charge of £140.00 plus VAT will be payable by the Customer, in addition to
any charges in respect of the repair of the System.
- Indemnity
The Customer will indemnify and keep indemnified SERVIAN SECURITY & GATE AUTOMATION LTD against all losses and liabilities incurred by SERVIAN SECURITY & GATE AUTOMATION LTD and all legal costs and other expenses incurred by SERVIAN SECURITY & GATE AUTOMATION LTD in connection with any demand, action, arbitration or other proceedings arising directly or indirectly, or
as a result of, or in connection with, a breach of any of the Customer’s obligations under the Contract.
- Liability
11.1 Nothing in any Contract will operate to exclude or limit either party’s liability for death or personal injury caused by its negligence, fraud, or any other liability which cannot be excluded or limited under applicable law; and if the Customer is a consumer, nothing in
any Contract will affect the Customer’s statutory rights as a consumer.
11.2 Subject to Clause 11.1, SERVIAN SECURITY & GATE AUTOMATION LTD’s liability rising out of or in connection with the Contract or any collateral contract, whether in contract or tort (including negligence) or otherwise will be subject to the following limitations:
(a) SERVIAN SECURITY & GATE AUTOMATION LTD will not be liable to the Customer for any loss of profit, anticipated profits, revenues, anticipated savings, data, goodwill or business opportunity, or for any indirect or consequential loss or damage;
(b) SERVIAN SECURITY & GATE AUTOMATION LTD will not be liable to the Customer for any losses arising out of a Force Majeure Event; and
(c) SERVIAN SECURITY & GATE AUTOMATION LTD’s aggregate liability will in no circumstances exceed the total Price paid (or, if greater, payable) by the Customer to SERVIAN SECURITY & GATE AUTOMATION LTD under the Contract.
- Contract cancellation
12.1 Either party may cancel the Contract immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under the Agreement which is not remediable, or commits any material breach of its obligations under the Agreement which is remediable but which that party fails to remedy within 30 days
of receiving a notice requiring it to do so; or
(b) that other party ceases to trade; or
(c) that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(d) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating
to such an appointment are filed with any court; or
(e) the ability of that other party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to
them in satisfaction of those sums; or
(f) any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or
(g) that other party (being an individual) dies, becomes incapable of managing his or her own affairs by reason of mental or physical illness or incapacity, becomes a patient under any mental health legislation, or is the subject of a bankruptcy petition or
order.
12.2 SERVIAN SECURITY & GATE AUTOMATION LTD may cancel the Contract immediately at any time by written notice to the Customer if the Customer fails to make any payment by the due date for payment.
12.3 Upon the proper cancellation of the Contract by SERVIAN SECURITY & GATE AUTOMATION LTD under Clause 2.4 or by the Customer under Clause 12.1:
(a) SERVIAN SECURITY & GATE AUTOMATION LTD will cease to have any obligation to deliver and install the System (and may recover the System to the extent that it has been delivered and installed); and
(b) the Customer will cease to have an obligation to pay for the System (and will be entitled to a refund of any amounts previously paid in respect of the System).
12.4 Upon the cancellation of the Contract by SERVIAN SECURITY & GATE AUTOMATION LTD under Clause 12.1 or 12.2:
(a) SERVIAN SECURITY & GATE AUTOMATION LTD will cease to have any obligation to deliver and install the System; and
(b) the Customer will continue to have an obligation where applicable to pay the Price (irrespective of whether or not the System has been delivered and/or installed, and without prejudice to any right SERVIAN SECURITY & GATE AUTOMATION LTD may have to recover a System which has been
delivered), provided that SERVIAN SECURITY & GATE AUTOMATION LTD will use reasonable endeavours to sell any undelivered or recovered System to a third party, and will refund to the Customer or release the Customer from a liability to pay any amount realised by SERVIAN SECURITY & GATE AUTOMATION LTD from any such sale (less
expenses incurred in securing the sale).
12.5 Upon the cancellation of the Contract all the provisions of the Contract will cease to have effect, except that Clauses 1, 4, 5.4, 6.5, 6.7, 8, 9, 10, 11, 12.3, 12.5, and 13.3 to 13.10 will survive termination and continue to have effect in accordance with their terms
or otherwise indefinitely.
- General
13.1 A notice given under the Contract will be delivered personally, sent by pre-paid first class post, or sent by fax or email, for the attention of the person, and to the address, fax number or email address given in the Quotation (or as notified by one party to the
other in accordance with this Clause).
13.2 A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) in the case of pre-paid first class post, 48 hours from the time of posting;
(c) in the case of fax or email, at the time of transmission (providing the sender retains documentary evidence of the transmission); or
(d) if deemed receipt under the previous paragraphs of this Clause 13.2 is not within Business Hours, when Business Hours next begin.
13.3 SERVIAN SECURITY & GATE AUTOMATION LTD may assign or transfer any of its rights or obligations under the Contract to any successor to all or a substantial part of its business from time to time. Save as aforesaid.
13.4 Subject to Clause 11.1:
(a) these Terms and the Quotation will constitute the entire agreement between the parties in relation to the subject matter of the Contract, and will supersede all previous agreements in respect of that subject matter;
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract; and
(c) neither party will have any liability other than pursuant to the express provisions of the Contract.
13.5 The Contract is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person. The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under the Contract is not
subject to the consent of any person who is not a party to the Contract.
13.6 The Customer undertakes that it will not, without SERVIAN SECURITY & GATE AUTOMATION LTD’s prior written consent, either during or within 6 months after the date of effective termination of the Contract engage, employ or otherwise solicit for employment any person who, during the relevant period,
was an employee or contractor of SERVIAN SECURITY & GATE AUTOMATION LTD.
13.7 Any variation of the Contract will be agreed in writing by or on behalf of both parties.
13.8 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver will be implied by taking or failing to take any other action.
13.9 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be
valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
13.10 The Contract will be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.
Version dated 1st January 2018