"Annual Maintenance Charge" is the sum paid by the Customer in respect to the Works for each Annual Maintenance Period.
"the Conditions" The Terms and Conditions of WEMCo herein contained relating to the Works, "the Contract" The Contract between the Customer and WEMCo relating to the Works and which comprises the Contract Form, the Conditions and documents expressly incorporated therein and the Service Schedule(s) and Plant Register(s).
"the Contract Form" The order form or other document if any which specifies the name of the Customer, the Maintenance Period ,and other details relating to the Contract.
"the Customer" The person or association or firm or company entering into this Contract with WEMCo, including any agent or representative thereof
"the Equipment" The plant and equipment of the Customer as specified in the Plant Register(s). "Final Date for Payment" is 30 days after the Payment Due Date (as defined in clause 7.3) "the Maintenance Period" The period of time during which WEMCO are to carry out the Works, "the Annual Maintenance Period" The first and each subsequent year of the Maintenance Period. "Plant Register(s)" - this sets out full details of the plant and equipment of the customer which is to be the subject of the Works.
"WEMCo" The member of the WEMCo Group entering into this Contract with the Customer its successors and assigns.
"WEMCo Group" (as defined in Section 736 of the Companies Act 1985) from time to time
"the Service Schedule(s)" Any Service Schedule(s) attached to the Contract Form which set out, inter alia, details of the Works.
"Works" The maintenance and service works to be carried out by WEMCo in respect of the Equipment, as set out in the Service Schedules.
2. STANDARD OF EQUIPMENT
- The Equipment must be functional to the reasonable satisfaction of WEMCo within the parameters of the original design, specification and usage, and the Equipment (including its installation) and the building in which the Equipment is installed must comply with the latest safety regulations. Otherwise WEMCO may immediately upon becoming aware of the state of the Equipment (including its Installation) or the building in its absolute discretion terminate the Contract in whole or in part and on termination WEMCO shall be released from its obligations under the Contract and shall be entitled to retain all monies already paid by the Customer to WEMCO and upon presentation of an invoice in accordance with clause 7 to receive payment of any sum WEMCO would be entitled to claim under the Contract as at the date of termination.
- All additions or modifications to the Equipment reasonably considered by WEMCO to be necessary to maintain the Equipment in satisfactory working order are chargeable extras and are not included within the Works. All such work will be carried out in accordance with and subject to WEMCo’s Standard Terms and Conditions of Sale and Installation.
- The Customer Must:
- inform WEMCO of all material facts relating to the condition and standard of the Equipment (including its installation) and the building in which the Equipment is installed of which the Customer is aware or reasonably should be aware from the Customer's knowledge of the Equipment, (including it's installation) or the building in which the Equipment is installed
- make freely available to WEMCO drawings and operating manuals of a standard sufficient to satisfy the current requirements of the Health and Safety Executive as to information needed by plant operators both during and after the Maintenance Period
- keep such drawings and operating manuals in a safe place at all times until six years after the end of the Maintenance Period;
- ensure that WEMCo staff or representatives have full and free access to the site and the Equipment during normal working hours;
- take all such steps as may be necessary to ensure the safety of WEMCo’s staff or representatives who visit any premises of the Customer.
2.4 If WEMCO reports to the Customer any defect or possible defect in the Equipment or its installation or the
building in which the Equipment is installed or in any part or individual item of the said Equipment, or its
installation or building and the Customer fails to take the appropriate action immediately then WEMCO shall
have no liability whatsoever for the consequences of the Customer's failure to act. If WEMCO considers in its
absolute discretion that the defect or possible defect could represent a danger to any person or is a breach
of any rule legislation or obligation of any type whatsoever then WEMCO may in its absolute discretion and at
its election immediately either terminate the entire Contract or where the Works involve the maintenance
of several items of Equipment or more than one building, terminate performance of only that part of the
Contract which deals with the defective or possibly defective Equipment, (including its installation) or
building. On termination WEMCO shall be released from its obligations under the Contract and shall be entitled
to retain all monies already paid by the Customer to WEMCO and upon presentation of an invoice in
compliance with clause 7 to receive any sum WEMCO would be entitled to claim as at the time of termination.
3. MAINTENANCE VISITS
- The period of time between each maintenance visit included within the Works and as stated by WEMCO in the [Service Schedule(s)] is approximate only. WEMCO will use reasonable endeavours to adhere to the dates or periods given but shall not be responsible for any inability or failure to make visits on the dates or at the intervals arranged.
- WEMCO undertake to carry out the Works in accordance with the details set out in the Service Schedule(s) but shall not be responsible for failure of any part of the Equipment due to fair wear and tear, faulty materials, inherent latent defects, or obsolescence or due to deterioration due to lack of maintenance before the Contract was signed, or due to the Customer operating the Equipment in an inappropriate manner and/or not in accordance with the manufacturer's recommendations.
- The Customer shall allow WEMCO access to the Equipment in order to carry out the Works during normal working hours
4. ADDITIONAL SERVICE CALLS OR EMERGENCY CALLS
4.1 Any service calls or emergency calls made or modification work done at the Customer's request which is not included in the Works, whether deemed by WEMCO to be necessary or not, shall be governed by the Conditions and shall be chargeable extra unless attributable to the negligence of WEMCO.
5. LIMITATION OF LIABILITY
5.1 This Clause is without prejudice to any other exclusions or limitations of liability provided for in these Conditions
5.1.1 Because the potential losses which the Customer might suffer as a result of any breach of Contract by WEMCO are more readily ascertainable by the Customer and because such losses could be wholly disproportionate to the contract price and so that WEMCO can keep the contract price as low as reasonably possible, the parties agree that WEMCo’s liability be limited in accordance with the following provisions. For the avoidance of doubt it is agreed that these limitation/exclusion provisions apply to claims no matter howsoever arising whether arising in contract or in tort or misrepresentation or in breach of statutory duty or otherwise regardless of any act or neglect omission or commission. It is further agreed that the limitations and exclusions of liability shall ensure for the benefit of WEMCO its Directors, officers, servants or agents
- The terms of the Contract together represent the entire agreement between the parties in relation to the Works and supersede any previous agreement (whether written or oral) between the parties in relation to the Works. Accordingly, all other terms, conditions, representations, warranties and other statements which would otherwise be implied (by law or otherwise) shall not form part of the Contract.
- WEMCO is not liable:
a) in contract in respect of any representation, warranty or other statement being false, inaccurate or incomplete; or
b)in equity, tort or under the Misrepresentation Act 1967 in respect of any representation, warranty or other statement (whether or not contained in the Contract) being false, inaccurate or incomplete; unless in any case it was made fraudulently.
5.1.4 Each party acknowledges that in entering into this Contract it places no reliance on any
representation, warranty or other statement relating to the Works. In particular, the Customer
acknowledges that it places no reliance upon, inter alia, any sales literature, quotation, price list or other
document issued by WEMCO to the Customer.
Carrying out of the Works
5.2 WEMCO shall have no liability whatsoever (howsoever arising) in relation to any loss suffered by the Customer or any third party arising from the carrying out of the Works except in so far as the same was caused by any act(s) of negligence of WEMCO its servants or agents.
5.3.1 WEMCo’s total liability under this Contract whether arising in contract, tort or otherwise shall (except in
the case of personal injury or death due to WEMCo’s negligence) in no circumstances exceed the sum of
£5,000,000 or the Annual Maintenance Charge, whichever is smaller (subject to clause 5.3.2 below) save
that this limitation shall not apply to death or bodily injury caused by WEMCo’s negligence.
5.3.2 Notwithstanding any other provision of the Contract, in no event, whether as a result of breach of
contract, warranty, tort (including negligence), strict liability, indemnity, or otherwise, shall WEMCO be liable
for loss of profit or revenues, loss of use of any Equipment or any associate equipment, cost of capital,
cost of substitute equipment, facilities, claims of Customer's customers for such damages, or for any
special, consequential, incidental or indirect damages.
5.3.3 WEMCO shall not be responsible for ensuring that or ascertaining whether the software
or other data processing systems (or product or equipment dependent upon or containing parts which rely upon similar technology) which form part of the Equipment is able to process all date data accurately and without error so that neither it's performance nor functionality will be affected by dates prior to, during and/or after the year 2000.
Provision of Advice
- In calculating the contract price account has been taken of the fact that in entering into this Contract WEMCO does not undertake to give advice on the installation, or the Equipment or the use, suitability or functioning of either or to give any professional advice whatsoever on any matter in any way connected with this Contract and any advice recommendation or representation which may be given or made by or on behalf of WEMCO (whether orally or in writing) is, except where agreed, given free of charge.
- WEMCO shall have no liability whatsoever (howsoever arising) in relation to any loss suffered by the Customer or any third party arising from any such advice.
- WEMCO reserves the right to increase the prices charged to the Customer for the Works and such price increases shall apply with immediate effect from the date they are communicated to the Customer
- Unless otherwise indicated prices are exclusive of Value Added Tax
- The invoices are strictly net and shall be paid in full without any deduction or withholding whatsoever by the Customer by the Final Date for Payment. Unless otherwise agreed, the Annual Maintenance Charge shall be invoiced by WEMCO and paid in full prior to the commencement of the applicable Annual Maintenance Period.
- Each invoice is subject to the addition of appropriate VAT which shall be paid by the Customer
- Payment of the sums claimed in the invoice including for additional calls and extra work shall become due on the date of the invoice (the "Payment Due Date"). Invoices may be delivered by hand or by mail and shall be presumed to be received on the next working day following the date of the invoice.
- Within not later than five days after the Payment Due Date , the Customer shall give a Notice to WEMCO specifying the amount (if any) of the payment made or proposed to be made in respect of the invoice and the basis on which that amount was calculated ("Notice of Payment").
If the Customer fails to serve a Notice of Payment within the time limit specified, the Customer shall be deemed to have acknowledged that the sum claimed in the invoice is the proper and correct sum due under the Contract and to which WEMCO is entitled to payment in accordance with the Contract.
- If notwithstanding clause 7.1 the Customer intends to withhold payment in whole or in part of the sum claimed in the invoice until after the Final Date for Payment then no later than the date on which the Notice of Payment is due to be served in accordance with clause 7.4, the Customer must serve on WEMCO a notice (the Notice of Intention to Withhold Payment) specifying the amount proposed to be withheld and the ground for withholding payment, or, if there is more than one ground, each ground and the amount attributable to it.
- If the Customer fails to pay any sum due in full by the Final Date for Payment then without prejudice to any other right or remedy WEMCO may have: *
- If the Customer has failed to serve a valid Notice of Intention to Withhold Payment in accordance with clause 7.5, and has failed to pay the lesser of the full amount stated as due for payment in the invoice or the full amount stated as due for payment in the Notice of Payment (in either case plus VAT) then irrespective of whether WEMCO is in fact entitled to claim such sum under the Contract, WEMCO may (without prejudice to any other right or remedy) suspend performance of its obligations under the Contract by first giving at least seven days' notice of intention to suspend, stating the ground(s) on which it is intended to suspend performance. The right to suspend performance shall cease when the Customer makes payment in full of the sum due. Any period during which performance is suspended shall be disregarded in computing the time taken by WEMCO or other third party to complete any work directly or indirectly affected by the exercise of the right of suspension. If a contractual time limit is set by reference to a date rather than a period, the date shall be adjusted accordingly; alternatively,
- WEMCO shall be entitled to treat such failure as a repudiation of the whole Contract by the Customer, cease performing its obligations under the Contract and recover damages for breach of Contract; alternatively,
- WEMCO may by giving 7 days notice in writing terminate the Contract. On termination under this sub clause, WEMCO shall present an invoice for any sums which is entitled to claim under the contract and the Customer shall pay the same in accordance with sub-clause 7.1.
- In the event of termination, determination or suspension, WEMCO shall be entitled to payment of any additional expenditure which is the consequence of the suspension or of resuming work after a period of suspension of the result of premature termination and on termination shall have the right to enter upon the Customer's premises in order to remove there from all items of equipment and materials which belong to WEMCO. For the avoidance of any doubt, all goods materials equipment including any spare parts for which the Customer has not paid WEMCO in full shall remain the property of WEMCo.
- WEMCO shall not be responsible for any damage or loss which results from any failure to carry out the Works or emergency visits or calls or additional calls or extra work during a period of suspension in accordance with this clause. If payment of any sum due under the Contract is not received in full by the Final Date for Payment, the Customer shall pay interest on the unpaid amount at the rate of 2% per month (equivalent to an annual rate of 26.82%) from the Final Date for Payment, or at the election of WEMCO as from the Payment Due Date.
- No claim by the Customer in respect of the carrying out by WEMCO of the Works shall entitle the Customer to withhold payment of the whole or any part of the price payable in respect of the Works.
8. INSTALLATION OF ITEMS OF EQUIPMENT
8.1 If the Customer requests WEMCO to make any additions or modifications to the Equipment not included in the Works then such work shall be subject to WEMCo’s separate Standard Terms and Conditions of Sale and Installation.
- The Customer shall inspect and test the Works immediately upon the completion of the Works by WEMCO and shall within 14 (fourteen) days of such completion give notice in writing to WEMCO if it is alleged that the Works are not in accordance with the Contract and WEMCo shall be entitled to carry out remedial works to rectify such defects and provided such claim is made within 14 days (but not otherwise) WEMCo shall rectify any defects or defaults notified and shall do so at its own cost unless such defect or default is due to use made of the Equipment by the Customer or the default of the Customer and/or as a result of any of the matters set out in clause 3.2 hereof in which case it shall be treated as extra work. Any claim outside the 14 (fourteen) days will not be accepted.
- If the Customer shall fail to give notice as required in 9.1 above then the Works shall be deemed to be in all respects in accordance with the Contract and the Customer shall be deemed to have irrevocably and unconditionally accepted the Works as being completely satisfactory and WEMCo’s liability in respect of the Works shall come to an end
10. FORCE MAJEURE
- If either party's performance of its obligations under the Contract is affected by an event of Force Majeure (defined herein as any circumstances beyond its reasonable control including without limitation any strike lockout or other industrial action) it shall promptly notify the other party of the nature and extent and consequences of the event of Force Majeure..
- Notwithstanding any of the provisions in this Contract neither party shall be deemed to be in breach of this Contract or otherwise be liable to the other for any prolonged delay in performance or the non performance of any of its obligations under this Contract to the extent that the prolonged delay or non performance is due to an event of Force Majeure of which it has notified the other party and if necessary the time for performance of that obligation shall be extended accordingly.
- If either party claims Force Majeure and is accordingly relieved under 10.2 from performing any of its obligations under this agreement for a continuous period in excess of three months or for any aggregate period in any year in excess of ninety (90) days then the other party may notwithstanding any of the provisions of this Contract terminate this Contract by giving to the party which has claimed Force Majeure not less than 14 days written notice.
- Notwithstanding the above, an event of Force Majeure shall not excuse or apply to the Customer's obligations to make payment in accordance with the Contract.
- This Contract shall commence on the date stated in the Contract Form, or if no date is stated therein then on the date the Contract Form was received from the Customer, and shall continue in full force and effect for one year from the date of commencement (the Anniversary Date) and thereafter from year to year or for such other period as may be stated in the Service Schedule(s) unless terminated in accordance with this Clause 11 or Clause 7.
- The Contract can be terminated by the Customer only if the Customer gives at least one month's notice in writing to WEMCO expiring on the yearly Anniversary Date of the Contract. Following issue of such Notice, WEMCO shall be entitled to present an invoice for all works completed up to the date of termination which shall be paid in full in accordance with sub-clause 7.1 and sub-clause 7.6.4 shall apply.
- Notwithstanding its other rights of termination under the Contract and/or at common law, this Contract can be terminated by WEMCO giving at least one month's notice in writing to the Customer at any time.. Following issue of such Notice, WEMCO shall be entitled to present an invoice for all works completed up to the date of termination which shall be paid in full in accordance with clause 7.1 and sub-clause 7.6.4 shall apply.
- Without Prejudice to 11.3 above if
- the Customer shall cease or threaten to cease to carry on business or shall make any voluntary arrangement with its creditors or become subject to an administration order or (being an individual or a firm) becomes bankrupt or (being a company) goes into liquidation (other than for the purpose of and followed by a reconstruction or amalgamation) or an encumbrancer takes possession or a receiver shall be appointed of the whole or any part of the undertaking or assets of the Customer or WEMCO reasonably apprehends that any of the events mentioned in this sub-clause is about to occur and notifies the Customer accordingly or
- the Customer fails to comply with its obligations under this Contract (subject to clause 7 which deals with default in payment) or
- the Customer fails to implement any of WEMCo’s reasonable recommendations concerning the safety in use of the Equipment; then without prejudice to any other right or remedy available to WEMCO:
- WEMCO shall be entitled to terminate the Contract forthwith by a notice to the Customer or may by notice given to the Customer suspend the Works or any part of the Works without any liability to the Customer; and
- in respect of any Works carried out but not yet paid for the price shall become immediately due and payable notwithstanding any provision in the Contract or previous agreement or arrangement to the contrary; and
- WEMCO shall be entitled to treat the Contract as repudiated and recover damages for breach of contract.
12. NO WAIVER
WEMCo’s failure to insist upon a strict performance of any provision of these Conditions shall not be deemed to be a waiver of its rights and remedies or any subsequent default by the Customer in the performance or compliance with any of the terms of these Conditions