Terms & Conditions of Service
1.1 In this Agreement the following terms shall have the following meanings:-
“Adjudication Rules” shall mean the Rules described in the Scheme for Construction Operations referred to in the Housing Grants Construction and Regeneration Act, 1996 as amended by the Local Democracy, Economic Development and Construction Act, 2009.
“Client” shall mean the party with whom the Service Agreement is made.
“Conditions of Sale, 2015” shall mean East Coast Controls Ltd’s Conditions of Sale, 2015, a copy of which shall be provided to the Client upon request.
“ECCL” shall mean East Coast Controls Ltd and its subsidiary companies as defined in section 154 of the Companies Act, 1948 and shall include its successors and assigns.
“Insolvent” shall have the meaning described in Section 113 of the Housing Grants, Construction and Regeneration Act, 1996.
“Quotation” shall mean the Quotation submitted by East Coast Controls Ltd to carry out the Maintenance Services.
“Service Charge” shall mean the agreed sum to be paid by the Client for the Maintenance Services.
The “Commencement Date” shall mean as detailed in the Appendix hereto.
The “Conditions” shall mean East Coast Controls Ltd’s Conditions of Service, 2021.
The “Documents” shall mean all drawings, calculations, specifications and other information supplied by the Client to ECCL whether in writing or in a form capable of being used by a computer.
The “Equipment” means the Equipment described in the Schedule hereto but shall not include the Excluded Equipment.
The “Excluded Equipment” shall mean the Equipment described in the Schedule hereto excluded from this Agreement.
The “Maintenance Services” shall mean as described in the Appendix hereto
The “Service Agreement” shall mean these Conditions, the Quotation and the Schedules hereto.
The “Site” shall mean the location of the equipment covered by the Service Agreement.
2. Maintenance Services
2.1 The Service Agreement shall be accepted by the Client upon the Client signing the Service Agreement or upon the Client allowing ECCL access on site to commence the Maintenance Services whichever is the sooner (the Commencement Date)
2.2 ECCL will provide the Client with such services as are detailed within the Service Agreement. Unless confirmed by ECCL in writing, no additions to or modifications to the Service Agreement or any alternative terms supplied by the Client shall be recognised or form part of the Service Agreement.
2.3 In the event of any discrepancy between the schedules and any other part of the Service Agreement the Schedules shall prevail.
3. Charges and Payment
3.1 If the service charge is payable annually the first payment shall become due and shall be paid on the date the Service Agreement is entered into. Subsequent payments shall become due and shall be paid on each anniversary of the Service Agreement.
3.2 If the service charge is payable quarterly the first payment shall become due and shall be paid on the date the Service Agreement is entered into. Subsequent payments shall become due and be paid every three calendar months following the date the Service Agreement was entered into.
3.3. Any other services provided to the Client shall be charged to the Client in addition to the service charge and shall become due within 5 days of the date of ECCL’s application/invoice and paid within 25 days of the date when payment becomes due (the ‘final date’).
3.4 The Client shall issue a notice to ECCL within 5 days of any due date detailing the sum due and payable by the final date of payment, together with the basis of calculation. Where the Client fails to issue such a notice within the prescribed timescales the sum due shall be the sum invoiced/applied for and the application/invoice shall be construed as a default notice.
3.5 Where ECCL have not issued an application/invoice and the Client has failed to issue the notice prescribed by clause 3.4 hereof, or ECCL does not accept the sum stated to be due in any such notice, then ECCL shall issue a Default Notice stating the sum ECCL considers to be due and the basis of its calculation. The sum due shall thereupon become the sum stated by ECCL within the Default Notice, subject to clause 3.6. Where a Default Notice has been issued the final date of payment shall be extended by the period between the date that the Client should have or did issue the payment notice referred to in clause 3.4 and the date of the Default Notice.
3.6 If the Client disagrees with the sum that ECCL considers to be due as detailed in the Default Notice pursuant to clause 3.5 he shall be entitled to issue a Pay Less Notice. This notice shall be issued no later than 5 days prior to the final date of payment and shall state the sum to be paid and the basis of calculation and must also state any sums to be withheld, quantified in detail and with reasonable accuracy and the ground or grounds for such withholding and, if there is more than one ground, the sum attributable to each ground. Any right to withhold any sums is subject to the Client having incurred such sums prior to the date of the notice and being due to any act, omission, neglect or default of ECCL. If the Client fails to issue a timely Pay Less Notice within the prescribed timescales or if the notice fails to fully identify the basis on which the sum due is calculated, he will pay the sum otherwise due by the final date of payment.
3.7 Without affecting ECCL’s other rights and remedies, if the Client fails to pay ECCL the sum due in full by the final date of payment as required by these conditions and the failure continues for 7 days after ECCL has given notice to the Client of his intention to suspend all or part of his obligations under this contract and the ground or grounds on which it is intended to suspend performance, ECCL may suspend all or part of such performance until payment is made in full. Where ECCL have suspended all or part of its performance pursuant to this clause, ECCL shall be entitled to an extension of time and reimbursement of all reasonable costs incurred and any such suspension period shall be treated as an act, omission, neglect or default of the Client under clause 7.
3.8 All equipment or spare parts supplied under or in addition to the Service Agreement shall be governed by East Coast Controls Ltd’s Conditions of Sale, 2015.
3.9 All payments shall be paid without any set-off or deduction or abatement.
3.10 The service charge shall be reviewed annually and may be adjusted on each anniversary of the commencement of the Service Agreement. Such adjusted services charge shall be notified to the Client 3 months before each anniversary of the commencement of the Service Agreement.
4. The Clients Obligations
4.1 To facilitate ECCL’s provision of the Maintenance Services the Client shall: -
a) Keep and operate the equipment in good condition and ensure that only competent trained employees are allowed to operate it; and
b) Use the equipment in a suitable environment with proper power supplies and in accordance with instructions and advice of the equipment manufacturer and ECCL; and
c) Not move the equipment or make any addition modification or adjustment to it without ECCL’s prior written consent; and
d) Maintain and make available to ECCL, records of the operation, maintenance and any malfunction of the equipment; and
e) Provide at such times as ECCL reasonably requires and at no cost to ECCL all documentation, software, materials and services necessary for the maintenance and testing of the equipment, access to the equipment, use of the Client’s workshop and repair facilities and the co- operation of the Clients personnel in diagnosing and overcoming any malfunction of the equipment; and
f) Ensure that ECCL representatives shall have full and free access to the equipment and to the records of its use kept by the Client to enable ECCL to perform its duties.
4.2 ECCL will consent to the equipment being moved provided;
a) ECCL is consulted; and
b) ECCL is allowed to inspect during re-commissioning; and
c) ECCL is allowed to inspect during repositioning and if appropriate be involved in the re-commissioning of the equipment; and
d) ECCL is paid its normal hourly rate for the time spent in connection with this Clause.
4.3 The Client hereby grants ECCL an irrevocable royalty free license to use the documents for all purposes connected with or arising out of the Service Agreement and the right to grant sub- licenses.
4.4 The Client shall indemnify ECCL in respect of any claims made against ECCL for infringement of intellectual property rights arising out of or in connection with the Service Agreement including without limitation, claims for breach of copyright, trademark, design right, or passing off made by any person against ECCL in connection with the documents and the equipment.
5.1 No relaxation, forbearance, delay or indulgence by ECCL in enforcing any of the terms of this Service Agreement shall prejudice ECCL rights to insist upon the strict compliance with the terms of this Service Agreement nor shall the same constitute a waiver or estoppel.
6. Limitation of East Coast Controls Ltd’s Liability
6.1 ECCL shall use its reasonable endeavours to keep the Equipment in efficient operating condition.
6.2 Provided ECCL shall have complied with Clause 6.1 and notwithstanding any other provision of the Service Agreement, maximum liability for loss, damage or expense for any matter arising out of or in connection with the Maintenance Services shall not exceed the Service Charge including any contractual liability (including but not limited to any implied contractual terms, statutory or otherwise) tort (including but not limited to negligence, trespass and nuisance) or breach of statutory duty, but excluding any liability for consequential loss or damage howsoever caused. Notwithstanding the foregoing nothing in this Clause shall be taken as excluding liability for death or personal injury resulting from negligence by ECCL.
6.3 Without prejudice to any other terms of the Service Agreement, if in ECCL’s reasonable opinion the Equipment is affected by any defects or malfunction in any other Equipment plant or machinery (including but not limited to the Excluded Equipment), the Client shall indemnify ECCL for all loss and expense arising out of any such defects and/or malfunctions for investigating the said defects and/or malfunctions and the sum of such loss and expense shall be added to the price and deemed to be a due debt.
7. Force Majeure
7.1 If ECCL are prevented or restricted from carrying out the Maintenance Services due to any reason or circumstance beyond the control of ECCL (the “Delay”) the performance of the Maintenance Services shall be suspended for the period of the Delay and the Client shall not be entitled to make any claim whatsoever against ECCL in respect of the Delay, provided ECCL shall use all reasonable endeavours to keep the Delay to a minimum.
7.2 If ECCL are delayed or disrupted from carrying out the Maintenance Services due to any act, omission, neglect or default of the Client (including any delay referred to in clause 7.1 above), ECCL shall be entitled to an extension of time for the carrying out of the Maintenance Services and to be reimbursed any loss and/or expense suffered or incurred by ECCL pursuant thereto.
8. Commencement and Term of Agreement
8.1 The Service Agreement shall come into effect on the Commencement Date and remain in force until it is terminated by not less than 60 days written notice ending on the anniversary of the Commencement Date by either party to the other.
9. Termination on Default
9.1 ECCL may by written notice terminate the Service Agreement without liability for compensation or damages if:
a) The Client fails to pay the service charge in accordance with the Service Agreement or (without limitation to the foregoing) commits a breach of the Service Agreement; or
b) The Client becomes Insolvent.
10.1 The Client may not assign any part of the Service Agreement without the prior written consent of ECCL.
11.1 If any dispute or difference arises out of or in connection with the Service Agreement either ECCL or the Client may give notice in writing (the “Notice to Refer”) requiring the dispute or difference to be referred to an Adjudicator who shall be appointed and act in accordance with the Adjudication Rules.
The Notice to refer may be given at any time save that the Notice to Refer issued by the Client must be addressed to the Managing Director, East Coast Controls Ltd at the address detailed in ECCL’s Offer.
11.2 The Adjudication Rules shall form part of the Service Agreement.
11.3 The parties to any Adjudication shall pay their own costs and the Adjudicator shall be empowered to determine which party will pay his costs based upon the outcome of the Adjudication.
11.4 The Adjudicator shall be entitled to correct clerical or typographical errors arising by accident or omission within 5 days of issuing his decision to the parties.
12.1 The Law of Scotland shall be applicable to this Service Agreement and all matters arising out of or in connection with the Service Agreement and subject to Clause 11.1 hereof the parties hereby submit to the exclusive jurisdiction of the Courts of Scotland.
13. Exclusion of Third Party Rights
Notwithstanding any other term, this Agreement confers a benefit only the Client and ECCL and only the Client and ECCL may enforce its terms.