TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES BY DARSDALE CONTRACTS LIMITED
The definitions and rules of interpretation in this condition apply in these terms and conditions ;
1.1.2 Terms defined in the Particulars (if any) attached to these terms and conditions have the same meaning in these conditions and the Particulars form part of the agreement between the Customer and the Supplier;
Contract: the Customer’s purchase order and the Supplier’s acceptance of it, or the Customer’s acceptance of a quotation for Services by the Supplier under condition 2.2;
Customer: the person, firm or company who purchases Services from the Supplier;
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services;
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form;
(a) access to electricity from standard approved sockets;
(b) access to a water supply;
(c) the right to leave the Supplier’s tools and materials at the Premises at times when the Supplier is not performing the Services;
(d) use of the Customer’s toilet and washing facilities;
(e) sufficient work space;
Fees: the amounts payable by the Customer to the Supplier for the performance of the Services by the Supplier for the Customer agreed between the parties
In-put Material: all Documents, information and materials provided by the Customer relating to the Services;
Parties: the Supplier and the Customer and “party” shall mean either of them.
Premises: the land and/or premises and location(s) where the Supplier shall perform the Services; and
Services: the services to be provided by the Supplier under the Contract, together with any other services which the Supplier provides, or agrees to provide, to the Customer;
Specification: the specific Services to be provided under this Agreement, the time estimates for the provision of them, and the Fee(s) orrates to be paid, as agreed between the Parties under clause 7;
Supplier: the name of the person firm or company who provides the Services
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer;
VAT: value added tax lawfully chargeable for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 A reference to writing or written includes faxes but not e-mail.
1.6 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to conditions are to the conditions contained herein
- APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Customer, or implied by trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:
(a) by a written acknowledgement issued and executed by the Supplier; or
(b) (if earlier) by the Supplier starting to provide the Services,
when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
- COMMENCEMENT AND DURATION
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the Commencement Date.
3.2 If the Contract is not for a specified period or service or the supply of Services continues after the period expires, subject to condition 10, the provisions of this condition 3.2 shall apply. The Contract shall continue until it is terminated by one of the parties giving to the other not less than three months’ notice, such notice to expire three months after it is given or upon such later date as may be specified in that notice.
3.3 The Supplier shall subject to the other terms of these conditions provide the Services for such time as is necessary to perform the tasks set out in the order form or Specification or as agreed by the Parties to this Agreement.
- SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to manage and/or provide the Services, and to deliver the Services to the Customer, in accordance in all material respects with the Specification.
4.2 The Services shall be performed by the employees or agents the Supplier may choose as most appropriate to carry out the Services.
4.3 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Particulars, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.4 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at the Premises and that have been communicated to it by the Customer under condition 5.1(e) provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4.5 The Supplier shall provide all tools and equipment which are required for the Services, except any listed in the Specification as to be provided by the Customer.
4.6 The Supplier shall operate in accordance with accepted and proper methods of good practice where applicable.
4.7 If performing duties on the Premises, the Supplier shall have particular regard to any public rights of way across the land and users of these rights of way and the rights granted by the Customer from time to time to third parties to come on the Premises.
4.8 The Supplier shall supply the Services for the Fees.
4.9 The Supplier shall only carry out any operations on the Premises if weather and/or ground conditions permit them to be undertaken without causing undue/significant damage to the land or vegetation, unless instructed otherwise by the Customer
- CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Premises and the Facilities and other facilities as required by the Supplier;
(c) provide to the Supplier, in a timely manner, such input Material and other information including the Specification as the Supplier may require and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant part of the Premises for the supply of the Services
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Premises and inform the Supplier if the public or children have access to the Premises. The Customer shall inform the Supplier of any wind farm railway or similar items on the Premises or in close proximity to them which may relate to or affect the Premises or the provision of the Services and of any sporting rights that may be exercised while this Agreement is in force ;
(f) ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements.
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, in all cases before the date on which the Services are to start;
(h) not without the Supplier’s previous written consent use the Supplier’s equipment and if permitted to do so keep and maintain the Supplier’s Equipment in good condition and report any defects in accordance with the Supplier’s instructions and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
(i) ensure that the Customer’s staff and agents co-operate with and assist the Supplier.
(j) Before the Supplier commences any of the Services, the Customer shall inform the Supplier of any dangers or hazards, whether hidden or not, buried pipes, cables or other objects which the Supplier is likely to encounter during the performance of the Services and any plant, fixtures, fittings, equipment, or other items which are fragile or vulnerable to damage and which the Supplier is likely to encounter during the performance of the Services and supply field maps for any land to be worked by the Supplier (if applicable) and full details of any Environmental Stewardship Schemes, Sites of Special Scientific Interest, Management Agreements, Cross Compliance requirements for the purposes of the Single Farm Payment Scheme and any other amenity environmental of similar agreements restrictions or conditions that relate to or affect the Premises or the supply of the Services. If any have not been disclosed before a Contract between the Customer and the Supplier is signed or provision of the Services commences and this affects the cost of performing the Services the Supplier shall be entitled to increase the Fees to recover the additional cost. The Customer acknowledges and agrees that, while the Supplier will take the utmost care to avoid damage to such items and to observe such agreements, the Supplier cannot guarantee the same.
(k) The Customer shall be responsible for the care of all plants and livestock at all times after they have been planted or the Services have been performed.
(l) The Customer shall not materially alter any part of the Premises which are to be the subject of the Services from the way they were when visited by the Supplier or described by the Customer to the Supplier. The Customer acknowledges and agrees that if any such alteration is made, then the amount of Services, any Specification and/or the Fees may need to be changed if, in the reasonable opinion of the Supplier, the Services need to be increased.
(m) The Customer acknowledges and agrees that any new items supplied by the Supplier are ordered from third parties with which the Supplier has only a contractual relationship [except as stated in the Specification or an order form]. Therefore time shall not be essence for:
(i) the ordering of new items by the Supplier; or
(ii) the delivery of new items, including any dates for delivery provided by third parties or the Supplier.
(n) The Supplier shall use reasonable endeavours to complete the Services by or the dates specified in the Specification or the dates set out in the order form or the dates agreed by the Parties. Time shall not be of the essence for:
(i) any dates or times when Services are due to be performed;
(ii) the length of time that any Service will take to perform as stated in the Specification on the Order Form, or as agreed by the Parties; or
(iii) any date or time by which the Services will be completed as stated in the Specification on the Order Form or as agreed by the Parties.
- USE OF SUB-CONTRACTORS
6.1 The Supplier is permitted to use other persons to provide some or all of the Services.
6.2 The Supplier shall be responsible for the work of a sub-contractor to the same standard as agreed by the Parties.
6.3 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 6 months after the last date of supply of the Services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as a senior employee of the Supplier in the provision of the Services.
- CHARGES AND PAYMENT
7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Fees as set out in the Particulars (if any) or agreed between the Customer and the Supplier whether they shall be on a time and materials basis, a fixed price basis, acreage basis or whole contract basis or a combination of these. Condition 7.2 shall apply if the Supplier provides Services on a time and materials basis. Condition 7.3 shall apply if the Supplier provides Services for a fixed price. The remainder of this condition 7 shall apply in any case.
7.2 Where Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, as notified to the Customer and as amended from time to time by the Supplier giving not less than one month’s written notice to the Customer ;
(b) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate, where applicable; and
(c) subject to any express terms agreed in writing the Supplier shall invoice the Customer monthly or on conclusion of the supply of Services if sooner in arrears for its charges for time, expenses and materials (together with VAT where appropriate) calculated as provided in this condition 7.2.
7.3 Where Services are provided for a fixed price and for a fixed period, the total price for the Services shall be the amount set out in the Particulars (if any) or if none agreed between the Customer and the Supplier. The total price shall be paid to the Supplier (without deduction or set-off) on the date agreed between the Customer and the Supplier
7.4 Any fixed price and daily rate excludes VAT, which the Supplier shall add to its invoices at the appropriate rate.
7.5 Save as otherwise agreed in writing the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt
7.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of The Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
(b) suspend all Services until payment has been made in full; and
(c) require the Customer to pay in advance for any further services which have not yet been performed.
7.7 Time for payment shall be of the essence of the Contract.
7.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 7.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7.10 The Parties acknowledge and agree that provision of the Services is subject to weather conditions, which may affect the Supplier’s ability to meet any deadlines set out in this agreement or otherwise agreed by the Parties without limitation. Any such deadlines may be extended in any of the following circumstances:
7.10.1 there is inclement weather, especially when there is moderate or heavy rain, when the ground is frozen or almost frozen, the ground is too hard or there is high wind;
7.10.2 any delivery of goods or plants is delayed or prevented because those goods or plants, having been of necessity grown, cultivated and/or stored outdoors, have been damaged or destroyed by adverse weather conditions;
In any such case, any applicable deadline shall automatically be extended up to the date when:
7.10.3 it is possible for the Supplier to continue to provide the Services; and/or
7.10.4 it is possible for the Supplier or the Customer as the case may be to supply goods to replace those which have been destroyed or damaged.
- CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
8.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
8.2 The Customer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
8.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 8.
8.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including the Supplier’s Equipment) shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer who shall report any default to the Supplier until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
- LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
9.1 This condition 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
9.4 Subject to condition 9.2 and condition 9.3
(a) the Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the sum of £1,000,000.00 (one million pounds)or the figure for liability insurance specified from time to time by the National Association of Agricultural Contractors if that is different.
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than three months written notice or immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR(being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or issued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.1(d) to condition 10.1 (i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
10.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, within a reasonable time, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of it Until it has been returned or repossessed, the Customer shall be solely responsible for its safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
10.4 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 7;
(b) condition 8;
(c) condition 9;
(d) condition 11; and
(e) condition 20.
- FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors or disease whether of livestock, crop, plants or affecting the Premises.
12.1 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. The Supplier may, from time to time and subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer at least 7 days’ notice of any change.
12.2 Subject to condition 12.1, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- ENTIRE AGREEMENT
15.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
15.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract.
15.3 Nothing in this condition shall limit or exclude any liability for fraud.
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any manner with all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
16.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
- PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
- RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party at its last known address for correspondence or as otherwise specified by the relevant party by notice in writing to the other party.
19.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address of the other party or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
19.3 This condition 19 shall not apply to the service of any documents in any proceedings or in any legal action.
19.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
- GOVERNING LAW AND JURISDICTION
20.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims)