Ipsum group standard terms and conditions of sale
Each Contract sets out the entire terms and conditions on which Customer has agreed to purchase (and/or hire) Goods and/or Services from Supplier and apply to the exclusion of any other terms and conditions including any which Customer may purport to apply, whether through use of standard form documents or otherwise.
Customer’s attention is drawn in particular to Clause 11 which details how Supplier limits its liability.
1. Definitions and interpretation
1.1 In these Conditions the following words have the following meanings: (a) Anti-Bribery and Corruption Requirements means all Applicable Laws relating to anti-bribery and anti-corruption including the Bribery Act 2010; (b) Applicable Law means all statutes, laws, statutory instruments, bye-laws enactments, orders, rules, regulations or other similar instruments having the force of law in the territory where the Goods are delivered and/or Services are performed; (c) Charges means the charges payable by Customer for Goods and/or Services as detailed in the applicable Quotation and subject to adjustment from time to time as detailed in that Quotation and/or in accordance with these Conditions; (d) Conditions means these terms and conditions; (e) Confidential Information means, subject to Clause 5, all information relating to a party’s business products and services (including operations, plans, market opportunities, customers, know-how (including designs, processes of production and technology), trade secrets and software) and/or any personal data disclosed to the other party (whether by or on the behalf of the other party) whether in writing, orally or by any other medium; (f) Contract means a contract between Customer and Supplier for the sale and purchase (or hire) of Goods and/or Services (as applicable) made subject to and incorporating these Conditions which has come into force following the acceptance of an Order by Supplier in accordance with Clause 2.4; (g) Customer means the entity which places an Order which is accepted by Supplier in accordance with Clause 2.4; (h) Force Majeure means any event or circumstance beyond the reasonable control of Supplier (whether or not in existence and whether or not foreseeable as at the date any Order is accepted by Supplier in accordance with Clause 2.4) including any act of God, war, riot, terrorism, explosion, illness, epidemic or pandemic (including Covid-19 and all variants thereof), general market shortages of labour, materials or equipment which are not specific only to Supplier, abnormal, extreme or unusual weather conditions, loss of utilities, fire, flood, strike, lock out or industrial dispute and/or governmental or regulatory authority action; (i) Goods means the goods (if any) as detailed in the applicable Quotation which results in an Order being placed by Customer and accepted by Supplier in accordance with Clause 2.4 as the same may then be amended in accordance with these Conditions; (j) Guarantee Period means, as applicable and unless but only to the extent that another guarantee period has been agreed by Supplier in writing: (i) the twelve month period following the date of delivery of any Goods to Customer or its nominee (or if applicable under Clause 4.3, the date of first attempted delivery); or (ii) the twelve month period following the date of performance of any Services; (k) Hazardous Materials means any substance or material which could adversely affect the health and safety of any persons or the environment including asbestos, creosote, polychlorinated biphenyls (PCB) and oil; (l) Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) 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 together with all rights of action, powers and benefits arising from ownership of any such rights, including the right to sue for damages and other remedies in relation to all causes of action arising before, on or after the date of these Conditions; (m) Ipsum Group means Ipsum Group Limited (Company Number 10566393) together with any of its subsidiaries or holding companies from time to time and any subsidiaries of any holding company from time to time (in all cases whether or not in existence as at the date any Order is accepted by Supplier in accordance with Clause 2.4); (n) NERS means Lloyds Register National Electricity Registration Scheme; (o) Order means Customer’s order for any Goods or Services submitted in response to a Quotation. Orders may be given by Customer verbally, in writing, using a Customer provided purchase order or other similar form (but excluding for the avoidance of doubt any terms and conditions which Customer may have purported to apply in any such purchase order or other similar form) or via Supplier’s website (where such website provides order submission functionality); (p) Quotation means a written quotation issued by Supplier (which may be given via email) setting out Supplier’s quotation for the provision of the Goods and/or Services to Customer including the Charges for those Goods and/or Services; (q) Services means the services (if any) as detailed in the applicable Quotation which results in an Order being placed by Customer and accepted by Supplier in accordance with Clause 2.4 as the same may then be amended in accordance with these Conditions; (r) Specification means any specification for Goods or Services as provided by Supplier in a Quotation which results in an Order being placed by Customer and accepted by Supplier in accordance with Clause 2.4 (or where no such specification is provided for in a Quotation, Supplier’s most recent published standard specification for the Goods or Services in question as at the date of acceptance of the Order in question); (s) Supplier means the relevant member of the Ipsum Group as detailed in Clause 2.5; and (t) Relevant Anti-Slavery Requirements means all Applicable Laws relating to the prevention of modern slavery and human trafficking including the Modern Slavery Act 2015.
1.2 In these Conditions and each Contract: (a) headings are for convenience and shall not affect construction or interpretation; (b) references to Clauses are to the Clauses of these Conditions; (c) words denoting the singular shall include the plural and vice versa; (d) words denoting any gender shall include all genders; (e) any reference to any law, statute, statutory provision, statutory instrument, directive, subordinate legislation, code of practice or guideline shall be construed as a reference to the same as may be amended, consolidated, modified, extended, re-enacted or replaced from time to time; (f) use of words such as “include”, “including” and “in particular” shall not limit the generality of any preceding or following words which are not intended to be exhaustive; and (g) any reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 save a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of: (i) another person (or its nominee), whether by way of security or in connection with the taking of security, or (ii) as a nominee.
1.3 If there is any inconsistency or contradiction between any of these Conditions and any other document making up any Contract (and in particular, any inconsistency or contradiction between any of these Conditions and any provision of a Quotation) then such inconsistency or contradiction shall be resolved as the Supplier (at its discretion) may direct.
2. Basis of contract
2.1 These Conditions apply to and are incorporated into each Contract by reference to the exclusion of any other terms that Customer seeks to impose or incorporate (including through use of any standard form documents including requests for proposal or order forms), or which otherwise are implied by trade, custom, practice or course of dealing and Customer hereby waives any right to rely upon any such other terms. Without prejudice to the generality of the foregoing, where Supplier is acting as a sub-contractor of Customer, Supplier is deemed not to have notice of the terms and conditions of any prime contract entered into by Customer and no terms and conditions of any such prime contract shall be deemed incorporated into the applicable Contract unless and then only to the extent specifically accepted by Supplier in advance in writing.
2.2 Any Quotation issued by Supplier is not an offer which is capable of acceptance by Customer. A binding Contract shall only come into force if and when Supplier subsequently accepts an Order in accordance with Clause 4. Any Quotation may be withdrawn or varied by Supplier without liability on notice (which may be given verbally, via email or in writing) at any-time prior to Order acceptance in accordance with Clause 2.4 and in any event any Quotation shall automatically lapse 30 days after the date of issue (or on the expiry of any alternative validity period as may be specified in the Quotation in question).
2.3 Each Order constitutes an offer by Customer to purchase the Goods or Services in question subject to these Conditions.
2.4 An Order shall be deemed accepted by Supplier and a Contract shall come into force if and on the earliest of: (a) Supplier issuing a written acceptance of the Order (which may be provided via email); (b) Supplier commencing: (i) provision of the applicable Services; and/or (ii) delivery of any applicable Goods; and (c) Supplier placing an order with its suppliers for any applicable Goods or commencing manufacture of those Goods (as applicable).
2.5 Supplier shall be the member of Ipsum Group named in the applicable Quotation.
2.6 Once an Order has been accepted by Supplier in accordance with Clause 4 then unless and only to the extent as may be specifically provided for otherwise in these Conditions and/or under the Contract in question, that Contract may not be cancelled, postponed or varied by Customer other than with the prior written consent of Supplier (given at Supplier’s discretion).
3. Goods and services
3.1 Supplier will ensure that Goods and/or Services shall: (a) correspond with any Specification in all material respects (and after the acceptance of an Order Supplier shall not make any substitution of Goods or change to any Specification which might reasonably be considered as likely to have a material adverse impact on Customer without the written consent of Customer (save where any such substitution or change is reasonably required as a direct result of any change in Applicable Law where the consent of Customer shall not be required but Supplier shall use its reasonable endeavours to notify Customer of any such substitution or changes as soon as is reasonably possible) but Supplier may make other substitutions or changes which are not reasonably likely to have any material adverse impact on Customer without the need for consent from Customer); (b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by Supplier; (c) in the case of Goods, be free from defects in design, material and workmanship and remain so for the Guarantee Period (subject to Clause 7); (d) in the case of Services be performed using reasonable skill, care and diligence by suitably skilled, qualified and experienced personnel who hold such qualifications, accreditations and certifications (if any) as may be required to enable them to perform the Services in question in accordance with Applicable Law; (e) in the case of electrical installations and electrical design work, comply with the standards required by NERS and where applicable, the adopting licensed network operator’s published engineering standards; and (f) comply with all Applicable Laws (subject to Clauses 7.1(g) and 8.1) including the Electricity at Work Regulations 1989 (if applicable).
3.2 Supplier shall, subject to compliance by Customer with Clauses 1(g) and 8.1, ensure that it has, maintains and complies with all licences, permissions, authorisations, consents and permits that it needs under any Applicable Law to lawfully carry out its obligations under each Contract.
3.3 Any samples, drawings, descriptive matter or advertising issued by Supplier, and any descriptions or illustrations provided on Supplier’s website or contained in Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of any Contract nor have any contractual force unless and only to the extent provided for in any Specification or Quotation which results in an Order being placed by Customer and accepted by Supplier in accordance with Clause 4.
3.4 In view of the commitments given by Supplier under Clause 1 as to the compliance of any: (a) Services with any Specification, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from any Contract; and (b) Goods with any Specification, the terms implied by sections 13 – 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from any Contract.
3.5 Customer shall: (a) conduct a thorough visual inspection of any Goods on delivery and shall notify Supplier in writing of shortage and/or damage to their packaging or other apparent failure of the Goods to comply with Clause 1 on delivery within seven days of the date of delivery (and should no such notification be provided by Customer by the expiry of such seven day period then Customer shall be deemed to have accepted the Goods in question and that the correct quantity has been delivered); and/or (b) notify the Supplier in writing of any failure of any Goods and/or Services to comply with Clause 3.1 which arises after the date of delivery or performance (as applicable) but before the expiry of the applicable Guarantee Period within seven days of the date of which the Customer first became aware (or ought reasonably to have become aware) of the failure in question.
3.6 If Customer makes any claim under Clause 5 which Supplier (acting reasonably and in good faith) considers valid the Supplier shall (at its discretion and subject to Clause 3.7) as soon as reasonably practicable either: (a) repair or replace the Goods (or the affected part of the Goods) and/or reperform the applicable Services; or (b) refund to Customer the Charges and any other amounts actually paid by it to Supplier for the Goods or Services in question. Any repaired or replacement Goods and/or re-performed Services shall be subject to Clause 3.1 for the remainder of the original Guarantee Period which applied for the Goods and/or Services in question. Compliance by Supplier with the foregoing represents Customer’s sole and exclusive remedy and Supplier’s only liability in respect of any failure of any Goods and/or Services to comply with Clause 3.1.
3.7 Supplier shall have no liability or responsibility to Customer (whether under any Contract or otherwise) in respect of any failure of any Goods and/or Services to comply with Clause 1: (a) which is not notified by Customer to Supplier in writing within the time period required under Clause 3.5; (b) if Customer fails to provide Supplier with reasonable support and assistance (including access) to enable Supplier to investigate the alleged failure in question; (c) if Customer makes any further use of, or sells on the Goods after becoming aware of the alleged failure; (d) which is attributable to any failure by Customer to follow Supplier’s and/or any manufacturer’s oral or written instructions as to the storage, commissioning, installation, handling, use and maintenance of the Goods and/or any failure by Customer to follow good trade practice regarding the same; (e) which is attributable to Supplier having followed any drawing, design, specification and/or instructions provided by or on behalf of Customer; (f) if Customer alters or repairs the Goods and/or any equipment in respect of which Services are being provided (or permits any third party to do so) without the written consent and approval of Supplier; (g) where any failure of the Goods arises as a result of fair wear and tear, wilful damage, negligence, or abnormal or incorrect storage or working conditions; and/or (h) where any Goods and/or Services differ from their Specification as a result of changes made to ensure that the Goods comply with any Applicable Law.
3.8 Customer shall reimburse Supplier on demand for any reasonable additional costs or expenses sustained or incurred by Supplier in investigating any claim by Customer under Clause 5 which is subsequently found to be invalid for any reason.
4. Delivery/performance
4.1 Supplier shall, subject to Clauses 4: (a) use its reasonable endeavours to deliver Goods and/or perform Services (as applicable) on the date(s) and during the time periods specified in the Contract but time of delivery/performance shall not be of the essence; and (b) deliver Goods and/or perform Services (as applicable) to or at the location as set out in the Contract.
4.2 Supplier may (at its discretion) deliver Goods and/or perform Services in separate instalments. Any failure or delay by Supplier to deliver or perform any such instalment shall not entitle Customer to terminate delivery or performance of any subsequent instalment.
4.3 If Customer fails to take delivery of any Goods when delivery is first attempted by Supplier then: (a) for the purposes of Clauses 1 and 10.5 and the definition of the “Guarantee Period”, those Goods shall be deemed to have been delivered to Customer upon the first delivery attempt; and (b) Customer shall reimburse Supplier on demand for any reasonable additional costs or expenses sustained or incurred by Supplier in storing the Goods in question and attempting redelivery to Customer.
4.4 Supplier may without liability suspend or decline to deliver any Goods and/or perform any Services if: (a) Customer is unable or unwilling for any reason to provide at the request of Supplier any certification or other documentation (including any risk assessment) which it is the responsibility of Customer under Clause 1(g) or 8.1 to obtain and maintain; and/or (b) Supplier (acting reasonably and in good faith) assesses that delivery of those Goods and/or performance of those Services at the applicable location would be or may become: (i) unsafe (and in particular, create an unacceptable risk to personal safety); and/or (ii) result in any breach of Applicable Law, in either case where resulting from or reasonably attributable to any fact, matter or circumstance not the direct responsibility of Suppler under the Contract in question (regardless of whether or not such fact, matter of circumstance is the responsibility of Customer and whether or not constituting Force Majeure). The Charges shall continue to accrue and be payable by Customer in the event of any suspension by Supplier under this Clause 4.4.
5. Reliance on reports etc.
5.1 Where the Services include the provision of any advice, recommendation or assessment by Supplier for Customer then any such advice, recommendation or assessment given by or on the behalf of Supplier verbally shall be provided in good faith but for initial discussion and planning purposes only. Customer shall not be permitted to place any reliance on any such verbal advice, recommendation or assessment unless and until it has subsequently been confirmed by Supplier in writing.
6. Service limitations and variations
6.1 Supplier’s obligation under each Contract is limited to delivering and performing the Goods and/or Services only as provided for under the Contract in question. Supplier shall not be under any obligation to provide any additional or varied Goods and/or Services unless and only to the extent that Supplier agrees to do so in writing (in which case the definition of Goods and/or Services shall be deemed amended accordingly and any varied Charges shall be as specified by Supplier).
6.2 Without prejudice to the generality of Clause 1, unless and only to the extent specifically provided for otherwise in any Contract or agreed to by Supplier in writing, the following are specifically excluded from the scope of any Services: (a) any requirement for remedial works or repairs which are identified by Supplier during the course of providing any Services where the work or repair in question is outside of the scope of Services under the Contract in question; (b) civil construction works and making good; (c) excavating through rock, concrete, or other hard materials; (d) trench routes through surfaced footways; (e) uncovering of or securing access to buried or inaccessible manholes; (f) clearance of any obstructions which prevent or restrict Supplier from performing Services (including concrete which obstructs access to pipelines or sewers); (g) isolation of power supplies including from any local distribution network operator; (h) disposing of excavated materials; (i) working with, handling and/or disposing of any Hazardous Materials; (j) all structural reinforcements required to support or accommodate any Goods or works; and (k) installation of any new temporary builders electrical supply or reinforcement/upgrading of any existing temporary builders electrical supply.
6.3 If any individuals whom Supplier engages in connection with the performance of the Services agree to undertake any additional or varied services prior to or without written confirmation from Supplier under Clause 1 then, subject to Clause 11.1, such additional or varied services are provided on an “as is” basis and Supplier excludes any liability in respect of those additional or varied services to the fullest extent lawfully permitted but reserves the right to levy additional Charges on Customer for the performance of any such additional or varied services.
7. Customer obligations
7.1 In addition and without prejudice to its obligations specified elsewhere in these Conditions and any Contract Customer shall: (a) co-operate with Supplier in all matters relating to the Goods and Services as reasonably requested by Supplier from time to time and, if requested by Supplier, shall appoint a representative who shall be available at all reasonable times to liaise and coordinate with Supplier the supply of Goods and performance of Services; (b) provide Supplier (and/or procure for Supplier), its employees, agents, consultants and subcontractors with access to any site, location, premises and other facilities as reasonably required by Supplier in connection with the delivery of Goods and performance of Services including the provision of water and energy supply, working areas, hygiene facilities and secure storage areas; (c) provide at the delivery point for any Goods adequate and appropriate equipment and personnel to offload those Goods from the delivery vehicles; (d) provide Supplier with such information, drawings, plans and materials as Supplier may reasonably require in order to supply the Services, and ensure that such information, drawing, plans and materials are complete and accurate in all material respects; (e) prepare in good working order any site, location, premises or other facilities or equipment relevant to the performance of the Services as required under any Applicable Law, the terms of any Contract and otherwise as necessary to enable the supply of the Services and delivery/installation of any Goods; (f) safely dispose in accordance with all Applicable Laws of any Hazardous Materials which are encountered or identified during the performance of the Services; and (g) obtain and maintain all necessary licences, permissions and consents (including any required easements and wayleaves) which may be required for the performance of the Services at any site, location, premises and other facilities before the date on which the Services are to start (save only to the extent that obtaining and maintain any such licences, permissions and/or consents is specifically stated to be the responsibility of Supplier under the Contract in question).
7.2 If applicable, Customer will: (a) be responsible for all “Client” obligations under the Construction, Design and Management Regulations 2015; and (b) prepare a Site Waste Management Plan under the Site Waste Management Plans Regulations 2008 in relation to the disposal of all waste produced in connection with the Services being undertaken by Supplier.
7.3 If Supplier’s performance of any of its obligations under any Contract is prevented or delayed by any act or omission by Customer or failure by Customer to perform any relevant obligation (Customer Default): (a) Supplier may suspend without liability further deliveries of Goods and/or performance of Services until Customer remedies the Customer Default and rely on that Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Supplier’s performance of any of its obligations (and/or would require Supplier to incur additional cost or expense which Customer has not agreed in writing to reimburse Supplier for); (b) Supplier shall not be liable for any costs or losses sustained or incurred by Customer arising directly or indirectly from Supplier’s failure or delay to perform any such of its obligations; and (c) Customer shall reimburse Supplier on demand for any losses and/or reasonable additional costs or expenses sustained or incurred by Supplier arising directly from the Customer Default.
8. Health and safety arrangements
8.1 Supplier shall only be responsible for compliance with Applicable Laws relating to health and safety (including the Health and Safety at Work, etc. Act 1974 and the Management of Health and Safety at Work Regulations 1999) to the extent that they relate directly to: (a) the Services provided by Supplier; and/or (b) otherwise to matters within the direct control of Supplier. Subject to the foregoing, Customer shall otherwise retain full responsibility for ensuring compliance with all such Applicable Laws at any site, location, premises or other facility at which any Goods are to be delivered or Services are to be performed by Supplier.
8.2 Whilst working at any Customer site, location, premises or other facility Supplier and its personnel will comply with any reasonable and lawful site health and safety policies and procedures provided those are notified to Supplier in advance in writing.
8.3 Without prejudice to any other obligations under these Conditions, each party shall provide to the other such reasonable co-operation as may be requested to assist with the discharge by the other party of its duties under Applicable Laws relating to health and safety.
9. Title and risk
9.1 Risk of loss or damage occurring to any Goods (whether supplied for sale to Customer or on hire) shall pass from Supplier to Customer on delivery of the Goods in question to Customer or Customer’s nominated delivery contact for those Goods (as applicable).
9.2 Ownership of any Goods supplied for sale to Customer shall not pass from Supplier to Customer unless and until Supplier has received from Customer in full in cleared funds payment of the Charges of those Goods but Supplier may recover payment for those Goods from Customer notwithstanding that ownership has not yet passed to Customer.
9.3 Unless and until title to any Goods has passed to Customer (or until Supplier has recovered the Goods in question from Customer), Customer shall: (a) hold those Goods on a fiduciary basis as Supplier’s bailee; (b) store those Goods separately from any other items held by Customer so that they remain readily identifiable as Supplier’s property; (c) not remove, deface or obscure any markings on the Goods or their packaging which identifies the Goods as Supplier’s property; and (d) maintain those Goods in a safe and satisfactory condition and keep them insured against all usual risks for their full price but, Customer may resell on an arm’s length basis or use any Goods in the ordinary course of its business.
9.4 Without prejudice to the generality of Clause 3, if requested by Supplier Customer will procure that any landlord of any location where Goods may be delivered or stored provides a written acknowledgement for the benefit of Supplier that: (a) unless and until ownership of those Goods has passed to Customer, those Goods remain the property of Supplier and the landlord will not exercise any charge or lien over those Goods; and (b) Supplier may enter that location to recover those Goods in accordance with its right to do so under the Contract.
9.5 Customer’s right of possession of any Goods in respect of which title has not passed to it shall immediately end if Customer suffers any event as detailed in Clause 3(b) and Customer shall notify Supplier immediately should it suffer any such event and shall also inform any receiver, manager, administrative receiver or similar who may be appointed with respect to any assets of Customer that those Goods belong to Supplier and are not assets belonging to Customer.
9.6 Customer shall allow Supplier or its authorised representatives on request access any premises where any Goods in respect of which title has not passed to Customer may be stored (or in the case of any premises not under the control of Customer, shall procure that such access is granted for Supplier or its authorised representatives) for the purposes of inspecting those Goods and verifying the compliance by Customer with its obligations under Clause 3 and/or where Customer’s right of possession of those goods has ended, for the purposes of recovering those Goods.
10. Charges and payment
10.1 Unless and only to the extent that the Charges for any Services are stated in the applicable Quotation to be calculated on another basis, the Charges for the Services shall be calculated on a time spent basis as follows: (a) the Charges shall be calculated in accordance with Supplier’s daily fee rates as set out in the applicable Quotation; (b) the daily fee rates for each individual are calculated on the basis of the working day as detailed in the applicable Quotation; (c) if any individual is required for any reason to work outside of the hours provided for a working day in the applicable Quotation (other than to remedy a material breach of a Contract by Supplier) Supplier may charge overtime at the rate provided for in that Quotation (but for the avoidance of doubt no discount shall be applied to that daily fee if any individual is required to work for less than those full daily hours); (d) that daily fee shall accrue and be payable by Customer during any period that Service provision may be suspended by Supplier under its rights to do so pursuant to these Conditions; and (e) any overall estimate for any element of the Services which is provided by Supplier is given by Supplier in good faith but does not constitute any guarantee that those Services will be delivered within that estimate and/or for any fixed price.
10.2 Unless and only to the extent that any Quotation provides that: (a) Charges are stated on an expenses included basis, in addition to the Charges Supplier may charge Customer for any travel, accommodation and subsistence expenses reasonably and properly incurred by the individuals whom Supplier engages in connection with the performance of Services; and (b) Charges for any Goods are inclusive of delivery charges, in addition to the Charges for those Goods Supplier may charge Customer for all costs incurred by Supplier in packing, insuring and transporting those Goods for delivery to Customer including any applicable import/export charges or levies.
10.3 The Charges are stated inclusive of the costs of: (a) equipping any individuals whom Supplier engages in connection with the performance of the Services with any personal protective equipment necessary to enable the Services to be performed in accordance with the requirements of Clauses 1 and 8.1; and (b) of any other materials and equipment which it is stated in the applicable Quotation or Specification will be maintained or provided by Supplier. Supplier may charge Customer for any other materials or equipment reasonably required to provide the Services at Supplier’s current list price from time to time or, where no list price is available, the direct cots to Supplier of procuring the materials or equipment in question plus Supplier’s usual profit margin for such materials or equipment.
10.4 In addition to any Charges adjustment mechanism as may be provided for under any Contract, Supplier may increase any Charges from time to time on notice to Customer to the extent reasonably required to reflect any increase after the date of the applicable Contract to Supplier’s cost of performing the Services and/or supplying the Goods including as a result of: (a) increases in any taxes or duties; foreign exchange fluctuations; increases in labour costs, costs of materials or other manufacturing costs; and/or increases in or imposition of any import/export charges or levies; (b) ground or other conditions not reasonably foreseeable by Supplier as at the date of the Contract including unforeseen apparatus or cable configurations/joins; and (c) errors or omissions in any information relied upon by Supplier which has been provided by or on the behalf of Customer or by any third party (including any utility company or network operator). Where applicable, Supplier may also increase any Charges from time to time on notice to Customer the extent reasonably required to reflect any increase after the date of the applicable Contract to Supplier’s cost of performing the Services and/or supplying the Goods and/or any losses incurred by Supplier as a result of any changes made to the initially agreed import capacity and/or generation/export capacity of any electricity distribution network to be adopted by an independent network operator as part of any Services.
10.5 Unless and only to the extent that another invoicing frequency is stated in the applicable Quotation, Supplier may invoice Customer for the Charges for: (a) any Goods at any-time on or after delivery of the Goods in question to Customer or Customer’s nominated delivery contact for those Goods (as applicable and subject to Clause 3); and (b) any Services (and any expenses or other amounts which may fall due under a Contract) monthly in arrears.
10.6 Customer must notify Supplier in writing within 15 days of receipt of any invoice if Customer (acting reasonably and in good faith) considers that the invoice in question has been incorrectly calculated or otherwise disputes that invoice and such notice must set out in reasonable detail the grounds on which Customer contends that invoice has been incorrectly calculated or is disputed. If no notice is given by Customer by the expiry of such 15-day-period then Customer shall be deemed to have unconditionally accepted that the invoice in question has been correctly calculated and is due for payment by Customer.
10.7 The Charges and any other amounts which may become payable under any Contract are stated exclusive of VAT which shall be payable in addition by the party making payment at the applicable rate from time to time in force subject to the provisions of a valid VAT receipt by the party receiving the payment in question.
10.8 Unless and only to the extent that any alternative payment terms are provided for in any Contract, Customer shall pay all correctly submitted invoices (and any other amounts due to Supplier under any Contract) in full cleared funds within 30 days of receipt by electronic transfer into such bank account as nominated by Supplier in writing from time to time. All such payments shall be made by Customer without set-off, deduction or withholding on any account.
10.9 If Customer fails to pay any sum due from it under any Contract (including the Charges) by the due date for payment then Supplier may: (a) charge interest on such amount together with the cost of recovery in each case, in accordance with the Late Payment of Commercial Debt (Interest) Act 1998; and/or (b) suspend without liability further provision of Services and/or delivery of Goods if Customer fails to make all such overdue payments to Supplier within 5 days of receipt of a written demand to do so from Supplier (which may be provided via email).
11. Limitation of liability: Customer's attention is drawn in particular to the provisions of this clause
11.1 Neither party seeks to limit or exclude in any way its liability for: (a) death or personal injury caused by negligence; (b) for fraud or fraudulent misrepresentation; (c) in respect of any breach of any condition implied under section 12 of the Sale of Goods Act 1979; and/or section 2 of the Supply of Goods and Services Act 1982; and/or (d) for any other matter or liability which cannot be lawfully limited or excluded. Each provision of these Conditions and of each Contract shall be read as subject to this Clause 1 and no provision of these Conditions or any Contract is intended to nor shall be interpreted as seeking to limit or exclude any of the foregoing types of liability.
11.2 Customer does not seek to limit or exclude in any way its liability to pay the Charges and any other amounts due to Supplier under or in connection with any Contract (including, if applicable, interest thereon calculated in accordance with Clause 9(a) in accordance with the terms of the applicable Contract.
11.3 Subject to Clauses 1 and 11.2 neither party shall have any liability arising under or in connection with any Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise for: (a) loss of business; (b) loss of use; (c) loss of profit; (d) loss of anticipated profit; (e) loss of contracts; (f) loss of revenues; (g) loss or damage to goodwill or brand or damage to reputation; (h) loss of anticipated savings; (i) site shut-down costs; and/or (j) any consequential, special or indirect loss or damage in any case, regardless of whether or not the party in question was aware or had been made aware (or ought reasonably to have been aware) at the time the Contract in question came into force of the risk that such loss or damage might occur.
11.4 Subject to Clause 1, Supplier shall not have any liability arising under or in connection with any Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise to the extent any loss or damage is attributable to: (a) errors or omissions in any information relied upon by Supplier which has been provided by or on the behalf of Customer or by any third party (including any utility company or network operator); and/or (b) any facts, circumstances or issues which it would not be reasonably possible for Supplier to identify during the course of performing Services (including, in the case of CCTV inspections of pipelines, the condition of the exterior of those pipelines and of the surrounding ground).
11.5 Subject to Clauses 1, 11.3 and 11.4, the aggregate liability of Supplier arising under or in connection with each Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise shall be limited to the value of the Charges paid and payable by Customer under that Contract.
11.6 Supplier shall not be liable for any failure or delay in complying with its obligations under any Contract where such delay or failure is reasonably attributable to an event of Force Majeure. Supplier shall notify Customer as soon as reasonably practicable of any such failure or delay and use its reasonable endeavours to overcome the impact of the event of Force Majeure as soon as is reasonably possible and to recommence full performance of any affected Contract in accordance with its terms as soon as is reasonably possible. Customer shall not unreasonably withhold or delay its agreement to any reasonable variation to the terms of any Contract which Supplier may propose to assist with mitigating the impact of any event of Force Majeure.
12. Intellectual property rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any materials provided by Customer) including in any reports, method statements and assessments produced by Supplier for Customer shall be owned by Supplier or its third-party licensors (collectively Supplier Intellectual Property Rights).
12.2 Subject to the payment of the Charges by Customer in accordance with these Conditions, Supplier grants to Customer, or shall procure the direct grant to Customer of, a paid-up, worldwide, non-exclusive, royalty-free, perpetual and personal licence to use and copy any Supplier Intellectual Property Rights solely for the purpose of receiving and using the applicable Goods and/or Services but in the case of Services limited always to the purposes for which any report, method statement or assessment was provided. Without prejudice to the limits of the foregoing licence, Supplier shall not be liable for any loss, cost, damage or expense suffered or incurred by Customer as a result of Customer re-using or relying on any report, method statement or assessment in connection with any matter unrelated to the receipt and use of the original Services to which that report, method statement or assessment relates and/or for any purposes other than those for which the report, method statement or assessment in question was provided.
13. Confidentiality and publicity
13.1 Each party shall maintain in confidence any Confidential Information of the other party and shall not use or disclose that Confidential Information other than as necessary to perform its obligations under a Contract or as otherwise authorised under these Conditions.
13.2 Without prejudice to any specific or additional obligations set out in any Contract, each party shall as a minimum apply the same degree of care and security to the Confidential Information of the other party as it applies to its own Confidential Information.
13.3 Each party shall be entitled to disclose the Confidential Information of the other party to such of the other members of its corporate group, its employees, authorised sub-contractors, agents, representatives, professional advisors, potential purchasers, investors or funders who have a need to know the same for the purposes of the implementation and operation of a Contract and/or the exercise of that party’s rights under a Contract (or, in the case of potential purchasers, investors or funders for the purposes of carrying out due diligence on the business of the party in question) but not otherwise or further.
13.4 Each party shall be liable for the acts or omissions of any person to whom it discloses any Confidential Information of the other party (regardless of whether or not the disclosure in question was authorised under Clause 3) and, prior to the disclosure of any Confidential Information of the other party to any such person, the disclosing party shall first make that person aware of their duties of confidentiality in respect of the Confidential Information of the other party to be disclosed to them.
13.5 The provisions of this Clause 13 shall apply throughout the term of any Contract and thereafter without limit in time but shall cease to apply in respect of any Confidential Information of a party which: (a) is or becomes public knowledge or enters the public domain other than as result of any breach by the other party of its obligations under this Clause 13 or a as a result of breach by any third party who owes a duty of confidence to the other party in respect of the Confidential Information in question; (b) is lawfully in the possession of the other party without restriction on disclosure prior to the date of its disclosure under this Agreement; (c) is independently developed by the other party without reference to any Confidential Information of the first party; (d) is provided to the other party by a third party who lawfully acquired it and is under no obligation further restricting its disclosure; and/or (e) the other party is required or requested to disclose pursuant to any legal, judicial, arbitral and/or regulatory action or proceeding by any competent authority in any competent jurisdiction (including the police and/or the Health and Safety Executive), and/or under the rules of any applicable stock exchange provided that where permitted, prior to any such disclosure that other party shall provide the first party with notice of the request to disclosure its Confidential Information and shall provide the first party with the opportunity to object to that disclosure and shall provide the first party with such reasonable support and assistance as it may request to assist it making its objection provided that the first party reimburses it for any costs and expenses reasonably and properly incurred by it in providing any such support and assistance.
13.6 Save only to the extent reasonably required to enable each party to comply with its obligations under a Contract and/or to exercise any of its rights under a Contract, neither party shall make any announcement concerning any Contract nor otherwise publicise the existence of any Contract without the prior written consent of the other party and then, only using such form of words as approved by that other party.
14. Term and termination
14.1 Each Contract shall come into force on the date of acceptance by Supplier of the applicable Order in accordance with Clause 4 but if Supplier has performed any Services and/or delivered any Goods prior to that date then such Contract shall apply with retrospective effect on and from the date on which Supplier first performed any Services and/or delivered any Goods.
14.2 Subject at all times to any earlier termination in accordance with these Conditions or the terms of the applicable Contract, each Contract shall remain in force for the term as detailed in the Contract in question or, where no term is provided for under any Contract, until Supplier has performed all Services and delivered all Goods under that Contract and all Charges and other sums due from Customer to Supplier under that Contract have been paid by Customer to Supplier in full.
14.3 Either party may terminate at its discretion a Contract by giving written notice to the other party if that other party: (a) commits any material breach of that Contract and either that material breach is: (i) not capable of remedy; or (ii) capable of remedy, but the defaulting party fails to remedy it within 30 days of receiving a written notice from the first party containing particulars of the material breach in question and requiring it to be remedied; (b) becomes bankrupt or goes into liquidation (whether voluntary or compulsory), becomes insolvent, is dissolved, compounds with its creditors or has a receiver, administrative receiver or administrator appointed over the whole or any part of its assets or a petition is presented, or a meeting is convened for the purpose of considering a resolution, for the making of an administrative order, the winding-up, bankruptcy or dissolution of that party or that party suffers any similar process in any jurisdiction outside of England and Wales; or (c) ceases or threatens to cease carrying on its business, operations or activities.
14.4 Any failure by Customer to pay on-time and in full the Charges and any other sums due from it to Supplier under any Contract shall for the purposes of Clause 3(a) be considered a material breach by Customer of the applicable Contract which is capable of remedy.
14.5 Termination or expiry of any Contract on whatever basis shall be without prejudice to any rights or obligations of either party which have accrued prior to the date of termination and shall not affect the continuing in or coming into force of any provision of that Contract or these Conditions which, whether expressly or by implication, is to continue in or come into force following expiry or termination.
15. Non-solicitation
15.1 Customer shall not (except with the prior written consent of Supplier given at Supplier’s discretion) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of or engagement by Supplier of any person employed or engaged by Supplier in the provision of Services at any time during the term of the applicable Contract or for a further period of six months after the date of termination or expiry of that Contract other than by means of a general advertising campaign open to all comers and not specifically targeted at any of the staff of Supplier.
16. Anti-bribery and corruption measures etc.
16.1 Supplier shall in respect of the performance of each Contract comply with all applicable Anti-Bribery and Corruption Requirements and all Relevant Anti-Slavery Requirements.
16.2 Without prejudice to the generality of Clause 1, Supplier shall in respect of the performance of each Contract: (a) not engage in any activity, practice or conduct which would constitute any breach of or any offence under any applicable Anti-Bribery and Corruption Requirements; (b) have and shall maintain in place adequate procedures to prevent the commission of bribery or corruption as required under the Bribery Act 2010; (c) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK; and (d) not do, or omit to do, any act that will cause or lead Customer to be in breach of any of the Relevant Anti-Slavery Requirements.
17. Supplier group companies
17.1 Customer acknowledges that each Contract is entered into between it and the Ipsum Group entity as provided for under Clause 5. Accordingly, no other member of the Ipsum Group shall have any liability to Customer in connection with that Contract, whether under that Contract, these Conditions or otherwise. Each member of the Ipsum Group shall be entitled to directly enforce and rely on the benefit of this Clause 17.1 but the consent of any such member of the Ipsum Group shall not be required to any amendment to any Contract (no matter how fundamental) nor for the exercise of any right of termination which may be available under or in respect of any Contract.
17.2 Save only as provided for otherwise under Clause 1, a person who is not a party to a Contract shall have no right to enforce any term of that Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. General
18.1 Any notices to be served on either party by the other shall be in writing and sent by pre-paid registered post to the registered office address of the other party or such other address as is notified in writing by that party from time to time. Such notice shall be deemed to have been received by the addressee 72 hours after posting provided applicable evidence of posting is retained and produced on request.
18.2 The parties are with respect to each other independent contractors and nothing in these Conditions or any Contract and no actions taken by the parties under any these Conditions or any Contract shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.
18.3 Each Contract represents the entire agreement between the parties relating to the supply of the Goods or Services in question and supersedes all previous presentations made and/or agreements, negotiations and discussions between the parties relating to the same. Neither party may rely on any warranty or representation given by the other unless and to the extent set out in or incorporated into a Contract.
18.4 Save only to the extent as may be specifically provided for otherwise under these Conditions, no variation or amendment of any Contract shall be binding unless made in writing and signed by or on the behalf of the Customer and by the Commercial Director or a statutory director of the Supplier
18.5 Customer may not assign or transfer any of its rights and/or obligations under any Contract nor sub-contract the performance of any of its obligations without the prior written consent of Supplier (at the discretion of Supplier). Supplier may assign or transfer any or all of its rights and/or obligations under any Contract.
18.6 Supplier may sub-contract the performance of any of its obligations under any Contract without the prior written consent of Customer but shall at all times remain primarily liable to Customer for the acts and omissions of any of its sub-contractors as if those were the acts or omissions of Supplier itself under the applicable Contact.
18.7 If any provision of these Conditions or of any Contract is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.
18.8 Save only to the extent specifically provided for otherwise in these Conditions: (a) failure to exercise or delay in exercising any right or remedy under or in connection with these Conditions or any Contract shall not be regarded as a waiver of such right or remedy, or a waiver of other rights or remedies; and (b) no single or partial exercise of any right or remedy under these Conditions or any Contract shall prevent any further exercise of the right or remedy or any other right or remedy which may be available whether under these Conditions, any Contract and/or as a matter of general law.
18.9 These Conditions, each Contract and any dispute or claim arising out of or in connection these Conditions, any Contract or their respective subject matter or formation (including any non-contractual disputes or claims) shall be governed by English law and save in respect of the enforcement of any judgment, the parties agree to submit to the exclusive jurisdiction of the English courts.