Terms and Conditions
NSSE LTD: TERMS AND CONDITIONS OF THE PROVISION OF GOODS AND SERVICES
Last updated: 29 October 2018
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following expressions will have the following meanings;
“Business Day” means any day other than a Saturday or Sunday or a public or bank holiday in England and Wales;
“Confidential Information” means any information of a confidential nature and which is either designated as such or which ought reasonably to be considered to be confidential.
“Consumables” means those items that are consumed during and replaceable in the day to day operation of the Equipment which are the Customer's responsibility which may be provided as part of the Services at the request of the Customer for an additional cost to be agreed with NSSE and which may be more particularly detailed in the Contract;
“Contract” means any contract between NSSE and the Customer for the supply of Goods and/or Services;
“Customer” means the person(s), firm or company whose order for the Goods and/or Services is accepted by NSSE;
“Equipment” means the Customer’s equipment upon which Services are to be performed under the Maintenance Contract;
“Force Majeure” means any cause preventing NSSE from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of NSSE including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of NSSE or otherwise), protest, act of God, war, or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic, default of suppliers or unavailability of supplies or materials;
“Goods” means any items supplied to the Customer by NSSE pursuant to or in connection with a Purchase Order or instruction to supply;
“Maintenance Contract” means the contract between NSSE and the Customer for the Services required to maintain the Customer’s Equipment for the duration of the contract.
“Materials” means any component or spare part used by NSSE in providing the Services excluding any Consumables;
“NSSE” means the company which is the supplier of the Goods and/or Services named in the quote and/or order acknowledgement provided to the Customer together with any of its affiliated entities, subsidiaries or holding companies;
“Preventative Maintenance Services” means annual UPS servicing carried out pursuant to a Maintenance Contract.
“Price” means the price of the Goods and/or Services as specified in the quotation and/or Customer Purchase Order;
"Purchase Order” means the document setting out the Customer’s requirements for the Contract;
“Services” means any services provided for the Customer by NSSE pursuant to or in connection with a Purchase Order or instruction to supply;
“Site” means the location(s) where the Services are to be performed;
“Terms and Conditions” means the terms and conditions set out in this document together with any special terms agreed in writing between the Customer and NSSE which are expressly stated to vary or add to these terms and conditions.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2.1 Subject to any variation under Condition 2.5, each Contract will be deemed to incorporate these Terms and Conditions to the exclusion of all other terms and conditions regarding the Goods and/or Services provided under the Contract and all previous oral or written representations, including any terms or conditions which the Customer purports to apply under any Purchase Order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2 Each Purchase Order or other order or acceptance of a quotation for the Goods and/or Services will be deemed to be an offer by the Customer to purchase the Goods and/or Services upon these Terms and Conditions. The Contract is formed when the Customer’s order is accepted by NSSE by way of a written acknowledgement of order or by provision of the Goods and/or Services.
2.3 Any quotation is valid for a period of 30 days only from its date, provided NSSE has not previously withdrawn it.
2.4 Subject to Conditions 6.3 and 12.1, the Customer may not cancel the Contract.
2.5 Save as set out in the Contract, these Terms and Conditions may only be varied or amended in writing and signed by an authorised signatory of NSSE and an authorised signatory of the Customer.
3. PROVISION OF THE GOODS AND SERVICES
3.1 NSSE shall provide the Goods and/or Services to the Customer in accordance with the Contract.
3.2 NSSE may make changes to the Services or the manner in which they are provided which are required to conform to any applicable safety or other statutory or regulatory requirements.
4.1 The price for the Goods and/or Services will be the price set out in NSSE’s offer to the Customer at the date of the Contract in default of any specific price detailed in the Contract by NSSE to the Customer and is exclusive of any value added tax or other applicable sales tax or duty which will be added to the sum in question.
4.2 NSSE may increase the price of the Services following any request for changes in the provision of the Services made by the Customer and agreed by NSSE or to cover any extra expense as a result of the Customer’s instructions or lack of instructions, or to comply with any additional requirements requested by the Customer at a time after the date of the Contract.
5.1 NSSE may invoice the Customer for the Goods and/or Services on or at any time after performance of the Contract commences and subject to Condition 5.3, payment is due in pounds sterling within 30 days of the invoice date. Time for payment will be of the essence. No payment will be deemed to have been received until NSSE has confirmation of cleared funds.
5.2 All payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Customer is required by law to make any such deduction or withholding.
5.3 If any sum payable under the Contract is not paid when due then, without prejudice to NSSE’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgement, at 4% per annum over the base rate of the Bank of England from time to time and NSSE will be entitled to suspend performance of the Services until the outstanding amount has been received by NSSE from the Customer.
5.4 At its sole discretion NSSE may cancel or amend a credit limit previously agreed and granted to the Customer.
6. MAINTENANCE SERVICE CONTRACT
6.1 NSSE shall have the right to inspect the Equipment prior to acceptance and the commencement of a Maintenance Service Contract to ensure that no major defects exist. The inspection may at NSSE’s discretion, be chargeable. If NSSE identifies any remedial works for Consumable items such as battery and capacitor replacement, such works may be provided by NSSE for an additional charge at the time of the pre-contract inspection and during the term of the Contract.
6.2 A Maintenance Service Contract shall commence on the date agreed by both NSSE and the Customer and be valid for the term offered, providing payment has been received in full at the time of the proposed date of commencement.
6.3 The Customer shall provide NSSE with the required access to the Site and Equipment as is necessary to enable NSSE to perform the Services. In the event that special security clearance is required in order to gain access to the Site, the Customer shall inform NSSE immediately and undertake the necessary arrangements for access to be granted. NSSE will ensure that all NSSE personnel will comply with all applicable rules and regulations while attending at the Site.
6.4 NSSE shall use reasonable endeavours to carry out each of the Customer’s requests for the Services within the time agreed within the Contract and, if no time is agreed, then within a reasonable time, but the time of performance will not be of the essence. If, despite those endeavours, NSSE is unable for any reason to fulfil any performance on the specified date, NSSE will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will NSSE have any liability to the Customer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), howsoever caused (including as a result of negligence), by any delay or failure in performance except as set out in this condition. Any delay in performance will not entitle the Customer to cancel the order unless and until the Customer has given 14 days’ written notice to NSSE requiring the performance to be made and NSSE has not fulfilled the performance within that period. If the Customer cancels the order in accordance with this Condition 6.3 then:
6.4.1 NSSE will refund to the Customer any sums which the Customer has paid to NSSE in respect of that order or part of the order which has been cancelled less any costs incurred by NSSE in respect of Services already performed or prepared and;
6.4.2 The Customer will be under no liability to make any further payments under Condition 5.1 in respect of that order or part of the order which has been cancelled.
6.5 If the Customer fails to provide any instructions, documents, licences or authorisations or access to the Site required to enable the Services to be performed on time (except solely on account of NSSE’s default), the Services will be deemed to have been performed on the due date and NSSE will not be deemed to be in breach of its obligations under the Contract.
6.6 The Maintenance Contract may be terminated by the Customer prior to the date of expiration subject to 30 days written notice. The Customer may terminate the Maintenance Contract for any reason whatsoever and the following terms shall apply:
6.6.1 Where Preventative Maintenance Services have been performed as part of the Maintenance Contract prior to any written request to terminate the Contract, no monies shall become due to the Customer whatsoever.
6.6.2 Where there are between 3 and 11 months term left to run on the Maintenance Contract and the Preventative Maintenance Service has not been performed, NSSE shall at its discretion offer a partial refund based upon costs incurred up to the date of the termination request.
6.6.3 No monies will become due to the Customer in the event of the termination of the Maintenance Contract where 3 months or less remain on the Contract up to the date of expiry.
6.7 NSSE may agree to perform additional services at the Customer’s request (but shall not be obliged to do so) and if so agreed such additional services will be performed for such additional charges as may be agreed and will be covered by the terms of the Contract including these Terms and Conditions.
7. EXCLUDED SERVICES (MAINTENANCE SERVICE CONTRACT)
7.1 The following services are examples which are expressly excluded from the Preventative Maintenance Service works, including but not limited to:
7.1.1 servicing or replacing Equipment which is damaged or failing due to:
184.108.40.206 misuse, neglect, wilful damage or operation outside the specified limits set out in the relevant operations and maintenance manuals or warranty terms and conditions for the Equipment;
220.127.116.11 external causes including fire, lightning, water (including but not limited to water from a sprinkler installation), frost, flooding, explosion, earthquake, aircraft or articles dropped from aircraft or failure of room ventilation;
18.104.22.168 the Customer’s failure to report a known fault or malfunction;
22.214.171.124 repairs, adjustments or modifications to the Equipment not authorised by NSSE or any third party product introduced by the Customer which has not been authorised by NSSE;
126.96.36.199 the fluctuation, interruption or failure of systems at the Site not forming part of the Equipment, including but not limited to electrical supply (UPS excluded), water, refrigeration, chilled water or glycol systems, drains or system for heating or cooling;
7.1.2 replacing major items of Equipment which require replacement due to external causes or age related failure;
7.1.3 replacement of obsolete Equipment or spares;
7.1.4 scaffolding, building work or lifting heavy Equipment;
7.1.5 fitting spare parts or Consumable items not supplied by or on behalf of NSSE;
7.1.6 servicing, repairing or replacing equipment not included in the Equipment; or
7.1.7 repair or replacement of batteries or other Consumables after the expiry of their warranty period.
7.2 NSSE reserves the right to refuse any repair work to Equipment or components thereof which are considered unsafe, obsolete or contrary to any legislation. Should NSSE exercise such right it shall inform the Customer of the reasons for such refusal to repair and shall charge to the Customer any fees so far incurred.
8. RISK / OWNERSHIP
8.1 Risk or loss of damage to any Goods and/or Materials shall pass to the Customer upon the Goods and/or Materials being supplied, repaired or replaced by NSSE.
8.2 Where the Services include the supply of any Goods or otherwise involve the transfer of any property to the Customer, title of ownership shall not pass to the Customer until NSSE has received in full (in cleared funds) all sums due to it in respect of the supply of the specific Goods.
9. WARRANTIES / LIABILITY
Limitation of Liability
9.1 Condition 9 sets out the entire liability of NSSE (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
9.1.1 any breach of its contractual obligations under the Contract;
9.1.2 any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
Warranty for Services
9.2 NSSE warrants to the Customer that the Services:-
9.2.1 will be performed with reasonable skill and care in accordance with the Contract;
9.2.2 will be free from material defects in design, material and workmanship; and
9.2.3 will comply with all applicable statutory and regulatory requirements for supplying the Services in the United Kingdom including all legislation relating to health and safety at work.
Warranty for Materials
9.3 NSSE warrants to the Customer that the Materials will be free of any defects. NSSE will, free of charge: (i) within a period of 12 months from the date of the completion of the Services in respect of any new Materials supplied; and (ii) within a period of 12 months from the date of completion of the Services in respect of any Materials which have been repaired or refurbished which are proved to the reasonable satisfaction of NSSE to be damaged or defective due to defects in material, or workmanship or design (other than a design made, furnished or specified by the Customer), repair, or at its option replace, such Materials. This obligation will not apply where:
9.3.1 a defect in the Materials arises from fair wear and tear;
9.3.2 the Materials have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
9.3.3 the Materials have been improperly installed or connected by the Customer or another party instructed by the Customer without the authorisation of NSSE;
9.3.4 any maintenance requirements relating to the Materials have not been complied with;
9.3.5 any instructions as to storage of the Materials have not been complied with in all respects;
9.3.6 the Customer has failed to notify NSSE of any defect or suspected defect within 14 days of the completion of the Services where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Customer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 12 months from the date of purchase.
9.4 Any Materials which have been replaced will belong to NSSE. Any repaired or replacement Materials will be liable to repair or replacement under the terms specified in Condition 9.3 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Materials.
9.5 In the event of any breach of NSSE’s express obligations under Condition 9.2 above, the remedies of the Customer will be limited to the balance of the total price payable by the Customer for the provision of the Services minus the value of any Materials replaced under Condition 9.3.
9.6 In the event of any breach of NSSE’s express obligations under Condition 9.3 above, the remedies of the Customer will be limited to the repair or replacement of the relevant Materials at NSSE’s reasonable expense.
9.7 The remedies of the Customer set forth in the Contract are exclusive and are its sole remedies for any failure of NSSE to comply with its obligations here-under. Notwithstanding any provision in the Contract to the contrary, in no event shall NSSE be liable in contract, in tort (including negligence or strict liability) or otherwise for damage to property or equipment, loss of profits or revenue, loss of use, cost of capital, claims of customers of the Customer or any special, indirect, incidental or consequential damages whatsoever. The total cumulative liability of NSSE arising from or related to the Contract whether the claims are based in contract, in tort (including negligence or strict liability) or otherwise, shall not exceed the price of the Services on which such liability is based. The aforementioned exclusions shall only apply to the extent possible under mandatory applicable law. Particularly, nothing in the Contract shall limit NSSE’s liability for death or personal injury caused solely and directly by NSSE’s negligence or the negligence of NSSE’s employees.
9.8 NSSE hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
9.9 Each of NSSE’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in Condition 9 in that person’s own name and for that person’s own benefit.
10. HEALTH AND SAFETY
The Customer shall be responsible for observance by itself, its staff, its customers or any other third party and its subcontractors and notification with reasonable notice to NSSE of any legislation including without limitation, all applicable health and safety precautions necessary for the protection of the NSSE engineers who visit the Site in order for the Services to be performed and any other NSSE staff and subcontractors visiting the Site or its property, including all precautions required to be taken under any legislation.
11.1 Any date specified by NSSE for the delivery of Goods and/or Materials is intended to be an estimate only and time for delivery shall not be of the essence.
11.2 NSSE shall not be liable to the Customer for any direct, indirect or consequential loss (all three of which terms include without limitation), loss of profits, loss or orders, loss of production, loss of business, depletion of goodwill and similar losses, cost, damages, charges or expenses caused directly or indirectly by any delay in the delivery of Goods and/or Materials, nor shall any delay entitle the Customer to terminate or rescind the Contract unless any such delay exceeds 90 days.
11.3 Where Goods are delivered to the Customer under a Contract the Customer must inspect the Goods on delivery. Any shortfalls to the consignment or damage to either the packaging or the Goods are to be notified to NSSE immediately on delivery and prior to acceptance of the Goods. The authorised signatory in signing for the Goods, accepts the condition of the Goods. NSSE does not accept responsibility for any shortfall to the consignment or damage to any Goods unless notified at the time of delivery. NSSE shall not be liable for any loss or damage to Goods notified by the Customer at a later date and in particular marking any consignment of Goods “unexamined” or “unchecked” or similar wording shall not obviate the Customer’s obligation to inspect the Goods on delivery.
12. FORCE MAJEURE
12.1 NSSE will not be in breach of the Contract or otherwise be liable to the Customer in any manner whatsoever for any failure or delay or for the consequences of any failure or delay in performance of the Contract if it is due to any event of Force Majeure and will be entitled to a reasonable extension of time to perform such obligations so delayed.
12.2 If the Force Majeure in question continues for more than 3 months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
13.1 Either party may by notice in writing served on the other, terminate the Contract forthwith if the other party is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the defaulting party fails to remedy such breach within 14 days of service of a written notice from the non-defaulting party, specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with Condition 5.1 is a material breach of the terms of the Contract by the Customer which is not capable of remedy.
13.2 NSSE may, by notice in writing served on the Customer, terminate the Contract forthwith if the Customer should become bankrupt or insolvent or have entered into liquidation or into any arrangement with its creditors or take or suffer any similar actions in consequence of a debt; has any distraint, execution or other process levied or enforced on any of its property; ceases to trade; has a change in its senior management and/or control as defined by section 840 Income and Corporation Taxes Act 1988; if the equivalent of any of the above occurs to the Customer under the jurisdiction to which the Customer is subject; or NSSE reasonably believes that any of the above set of circumstances is about to occur.
13.3 NSSE will be entitled to suspend any performance otherwise due to occur following service of a notice specifying that an event of force majeure has occurred, until either the event of force majeure ends or the Contract terminates, whichever occurs first.
13.4 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Customer or NSSE accrued prior to termination and the conditions which expressly or implied have effect after termination will continue to be enforceable notwithstanding termination. All sums payable to NSSE under the Contract will become due immediately upon termination of the Contract.
14.1 Each party will keep confidential any and all Confidential Information that it may acquire concerning the other party. Neither party will use the Confidential Information for any purpose other than to perform its obligations under the Contract. The parties will ensure that their officers and employees comply with the provisions of this Condition 14.
14.2 The obligations on the parties set out in Condition 14.1 will not apply to any information which:
14.2.1 is publicly available or becomes publicly available through no act or omission of the receiving party; or
14.2.2 the receiving party is required to disclose by order of a court of competent jurisdiction.
15.1 Each right or remedy of NSSE under any Contract is without prejudice to any other right or remedy of NSSE under that or any other Contract. No failure or delay by NSSE to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
15.2 If any Condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
15.3 The Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without NSSE’s prior written consent.
15.4 Save as set out in Condition 9.9, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
Any notices given hereunder must be in writing and effected by first class pre-paid post, Special Delivery post or facsimile and (subject to proof that such notice was properly addressed and despatched), shall be deemed to be received; if delivered by first class post, after the date of posting; if delivered by Special Delivery, when delivery is certified as having taken place; if delivered by facsimile, at the time of transmission provided that, where in the case of transmission by facsimile, such transmission occurs either after 4.00 pm on a Business Day, or on a day other than a Business Day, service will be deemed to occur at 9.00 am on the next following business day (such times being local time at the address of the recipient).
17. GOVERNING LAW
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law and the parties hereby submit to the exclusive jurisdiction of the English courts.