1.1. These Conditions shall be incorporated into all contracts between Adcock Refrigeration and Air Conditioning Limited (Adcock) and the customer (Customer) for the supply to the Customer of Goods and/or Services. The Customer’s attention is particularly drawn to clause 14 (Limitation of Liability).
1.2. The following definitions and rules of interpretation apply:
1.2.1. Adcock Warranty Period: a period of 12 months from the date of delivery of the Goods in which a warranty supplied by Adcock in respect of the Goods and/or Services shall apply.
1.2.2. Application: has the meaning given to it in clause 11.3.: has the meaning given to it in clause 11.3.
1.2.3. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.2.4. Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 20.4.
1.2.5 Contract: the contract between Adcock and the Customer for the supply of Goods and/or Services which incorporates these Conditions and the Order.
1.2.6 Control: has the meaning given in section 1124 of the Corporation Tax Act 2020, and the expression change of Control shall be construed accordingly.
1.2.7 Delivery Location: has the meaning given to it in clause 4.1.
1.2.8 Force Majeure Event: has the meaning given to it in clause 19.1.
1.2.9 Goods and/or Services: respectively, products and materials supplied and/or services and works, including the Maintenance Services (as defined at clause 9.6), carried out by Adcock under the Contract as set out in Adcock's quotation.
1.2.10 Insolvency Event: has the meaning given in clause 17.3.2.
1.2.11 Order: the Customer's order for the supply of the Goods and/or Services as set out in the Customer's purchase order form, the Customer's written acceptance of Adcock's quotation or as otherwise agreed between the parties, as the case may be.
1.2.12 Price: the price payable by the Customer for the supply of the Goods and/or Services in accordance with clause 11.
2.1. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.2. The Order shall only be deemed accepted when Adcock has received satisfactory credit references in respect of the Customer and issues a written acceptance of the Order, at which point the Contract shall come into existence ("Commencement Date").
2.3. 2.3 Any samples, drawings, descriptive matter or advertising issued by Adcock and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Adcock's catalogues, brochures or other advertising materials are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by Adcock shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.1. The Goods are as described in Adcock’s quotation. Adcock reserves the right to modify the Goods to be supplied including if required by any applicable statutory or regulatory requirement. Adcock shall notify the Customer in any such event.
3.2. Particulars of dimensions, capacities, performance ratings, specifications, drawings and other data included in manufacturers' catalogues, price lists or other documents supplied by Adcock constitute only an approximate guide and shall not be of any contractual effect.
4.1. Adcock will deliver or arrange delivery of the Goods to the Customer or to the Customer's agent to the location set out in the Order or such other location as the parties may agree ("Delivery Location"). Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.2. Adcock shall use reasonable endeavours to deliver or arrange delivery of the Goods on the dates specified by the Customer or within a reasonable time thereof provided always that the time for delivery shall not be of the essence of the Contract. Adcock shall not be liable for any loss or damage whatsoever arising directly or indirectly from any failure to effect delivery within such periods. The Customer shall accept deliveries of Goods by instalments.
4.3. The Customer shall accept deliveries of Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.4. If Adcock fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Adcock shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Adcock with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.1. Adcock warrants that on delivery and if applicable in accordance with the Adcock Warranty period the Goods shall:
5.1.1. conform in all material respects with their description;
5.1.2. be free from material defects in design, material and workmanship;
5.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2. Subject to clause 5.3, Adcock shall, at its option, repair or replace any defective Goods, or refund the price of the defective Goods in full if:
5.2.1. the Customer gives notice in writing in accordance with the terms of the Adcock Warranty where applicable or otherwise within 28 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2. Adcock is given a reasonable opportunity of examining such Goods; and
5.2.3. the Customer (if asked to do so by Adcock ) returns such Goods to Adcock at Adcock’s cost.
5.3. Adcock shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
5.3.1. the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2. the defect arises because the Customer failed to follow Adcock's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3. the defect arises as a result of Adcock following any drawing, design or specification supplied by the Customer;
5.3.4. the Customer alters or repairs such Goods without the written consent of Adcock;
5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4. Except as provided in this clause, Adcock shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5. These Conditions shall apply to any repaired or replacement Goods supplied by Adcock.
6.1. Risk in the Goods shall pass to the Customer on completion of delivery of such Goods at the Delivery Location.
6.2. Title to the Goods shall pass to the Customer at the earlier of:
6.2.1. Adcock receiving payment in full (in cash or cleared funds) for the Goods supplied under the Contract; and
6.2.2. the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. hold the Goods in a fiduciary capacity as bailee of Adcock;
6.3.2 store the Goods for which it has not paid separately from all other goods held by the Customer so that they are clearly identifiable as the property of Adcock;
6.3.3 acknowledge and agree that if the Customer incorporates or allows the incorporation of the Goods into other goods or products in any way, legal and beneficial title to those other goods, both during the process of incorporation and thereafter shall vest forthwith in Adcock, and the Customer shall hold them in a fiduciary capacity as bailee for Adcock. If Adcock so requires the Customer shall observe the conditions regarding storage in clause 6.3.2 above as if such other goods were the Goods originally supplied. The parties agree that incorporation of the Goods into other goods or products in any way is not intended to extinguish Adcock's title to the Goods as provided for under these Conditions;
6.3.4 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.5 obtain an endorsement of Adcock's interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement, and on request allow Adcock to inspect the insurance policy;
6.3.6 notify Adcock immediately if it becomes subject to an Insolvency Event;
6.3.7 give Adcock such information relating to the Goods as Adcock may require from time to time; and
6.3.8 permit or procure permission for Adcock, its agents and authorised representatives to enter the premises of the Customer or of any third party where the Goods are stored in order to inspect whether the Customer is in compliance with this clause 6.3 and/or recover the Goods.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Adcock receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as Adcock's agent; and
6.4.2 title to the Goods shall pass from Adcock to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer, on receipt of notice from Adcock or on the happening of any of the events set out under clause 17.3 below, then without limiting any other right or remedy Adcock may have, Adcock may at any time:
6.5.1 require the Customer to deliver up all Goods in its possession which have no tbeen resold, or irrevocably incorporated into another product; and
6.5.2 if the Customer fails to do promptly, have the right without notice during normal business hours to enter upon the land or buildings of the Customer or any subsequent purchaser of the Customer or third party where the Goods are stored in order to take possession of the Goods.
7.1. Adcock will not accept any responsibility whatsoever for loss, damage, discrepancy or shortfall to the Goods in transit if carried by a carrier nominated or requested by the Customer or by a carrier who is the servant or agent of the Customer. Claims shall be made immediately by the Customer to the carrier.
7.2. Save as provided above, Adcock will repair, or at its option, replace free of charge, any part of the Goods lost or damaged in transit provided that Adcock and the carrier are given notice of such loss or damage within the time required by the carrier's conditions of carriage or, where deliveries are made by Adcock's own transport, within three days of the receipt of the Goods or of the day upon which the Goods should have arrived had they not been lost and provided that any damaged Goods or part thereof are returned carriage paid by the Customer to Adcock.
8.1. Goods shall be deemed to have been accepted by the Customer on delivery unless the Customer shall notify Adcock in writing of non-acceptance of the Goods within three days of delivery.
8.2. Completion of and acceptance of the Services by the Customer (which the Customer shall not be entitled unreasonably to refuse) shall be evidenced either by (i) the signature of a certificate of hand-over by an authorised representative of Adcock and by the Customer or its representative; or (ii) Adcock otherwise notifying the Customer on completion of the Services. In respect of clause 8.2(ii), the Customer has three (3) days from the date of such Adcock notification in which to reject completion of the Services in writing ("Rejection Period"). Completion of the Services shall be deemed to be accepted by Adcock automatically on expiry of the Rejection Period if the Customer does not reject completion of the Services in writing during the Rejection Period.
9.1. The Services shall be as identified in the quotation. Adcock reserves the right to amend any specification for the Services if necessary including to comply with any applicable law or regulatory requirement. Adcock shall notify the Customer in any such event.
9.2. Adcock warrants to the Customer that the Services will be provided using reasonable skill and care. Adcock shall use all reasonable endeavours to meet any performance dates for the Services agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3. Adcock shall not be liable for any delay in performing the Services that is caused by a Force Majeure Event or the Customer's failure to provide Adcock with adequate delivery instructions or any other instructions that are relevant to the performance of the Services.
9.4. In order that Adcock can carry out the Services the Customer shall provide access to the relevant premises or site and ensure at all times that the working environment is acceptable to the health and safety of Adcock's employees, agents and subcontractors. The Customer shall indemnify Adcock against all costs, claims, liabilities and expenses incurred by Adcock arising from or in connection with any personal injury to or death of any of its employees, agents or subcontractors which is occasioned directly or indirectly by any act or omission (whether negligent or not) on the part of the Customer, its agents or employees.
9.5. Adcock shall have the right to refuse to perform its obligations under the Contract where to do otherwise would bring Adcock's employees, agents or sub-contractors into contact with any hazardous substances not previously informed of to Adcock or where any hazardous substance was not reasonably apparent from any inspection that Adcock has made ahead of Adcock issuing its quotation for the Goods and/or Services.
9.6. In the event of Adcock being called to undertake emergency Services due to; the improper operation of an installation, the failure to accept and/or implement recommendations relating to the operation and performance of an installation, the effect on an installation of natural events such as flooding, lightning, the result of events such as war, invasion, terrorism, strikes, civil commotion, due to the result of any matter beyond the control of Adcock or as otherwise requested by the Customer, Adcock shall charge the Customer at the Adcock charge out rate for such a Service current at the date of the call out.
9.7 Maintenance Services. Where the Contract is for Adcock to undertake Services relating to the maintenance of an installation ("Maintenance Services"), the following additional provisions shall apply:
9.7.1 unless agreed in writing otherwise, or in the case of emergency call outs, Maintenance Services will be performed during the hours of 8.00 and 17.00, Monday to Friday;
9.7.2 the stopping and starting of an installation shall not be included as part of the Maintenance Services, or the opening and closing of valves, dampers or regulators installed to protect equipment against damage, or the defrosting of evaporators or for obtaining the proper operation of the installation;
9.7.3 Adcock will make recommendations in regard to such matters as repairs, refrigerants and supplies for the proper and efficient operation and performance of an installation. If the Customer fails to accept and/or implement such recommendations then Adcock will not be responsible for any failures in performance or inefficiencies in operation;
9.7.4 Adcock shall not be liable for the day to day operation of the installation or for the cost of removing or reinstating of any part of any structure in which the installation is contained or to which it is attached or otherwise held and which is necessary to incur in order to undertake the Services, and to the extent that it is necessary for Adcock itself to incur such cost in order to fulfil its obligations under the Contract, the Customer shall be liable for Adcock's reasonable costs in addition to the payment of sums otherwise due from the Customer for the provision of the Maintenance Services;
9.7.5 the price agreed in the Contract for the Maintenance Services will be based on the types and rates of cost to Adcock of undertaking such Services. Adcock reserves the right to be paid a reasonable variation in the Contract price where the costs to Adcock of undertaking the Maintenance Services increase ahead of completion of the Contract. Any such variation shall be payable in addition to the Contract price and shall be due following notification by Adcock to the Customer of the details that apply; and
9.7.6 notwithstanding any other provision in the Contract, in the case of Maintenance Services the Contract shall remain in effect for one year from the date of the Contract and shall continue from year to year thereafter unless terminated by the giving of 30 days' notice in writing by one party to the other of the intention to terminate and which notice period must expire ahead of each yearly anniversary. In the event of termination, the provisions of clause 18 shall apply.
10.1. The Customer shall:
10.1.1. ensure that the terms of the Order are complete and accurate;
10.1.2. co-operate with Adcock in all matters relating to the Goods and/or Services;
10.1.3. provide Adcock, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Adcock to supply the Goods and/or Services;
10.1.4. prepare the Customer's premises for the supply of the Services if required by Adcock;;
10.1.5. provide Adcock with such information and materials as Adcock may reasonably require in order to supply the Goods and/or Services, and ensure that such information is complete and accurate in all material respects;
10.2. If Adcock's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
10.2.1. without limiting or affecting any other right or remedy available to it, Adcock shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Adcock's performance of any of its obligations;
10.2.2. Adcock shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Adcock's failure or delay to perform any of its obligations as set out in this clause 11.2; and
10.2.3. the Customer shall reimburse Adcock on written demand for any costs or losses sustained or incurred by Adcock arising directly or indirectly from the Customer Default.
11.1. The Price for the Goods and/or Services shall be the price as agreed in the Order. The Price is exclusive of:
11.1.1 amounts in respect of value added tax ("VAT") and all other applicable taxes and duties, which the Customer shall pay to Adcock at the prevailing rate; and
11.1.2 the costs and charges of packaging, insurance and transport of the Goods, which the Customer shall pay to Adcock.
11.2 Adcock may require payments to be made by instalments on the basis of a percentage of the total Price or as otherwise agreed in writing with the Customer.
11.3 Payments shall become due to Adcock on the date of receipt by the Customer of Adcock's application for payment ("Application"). Each Application shall set out the amount that Adcock considers to be due and the basis upon which that amount has been calculated.
11.4 No later than 5 days after each amount becomes due, the Customer shall notify Adcock of the sum that the Customer considers to have been due at the payment due date in respect of the amount of the relevant Application and the basis upon which that amount has been calculated.
11.5 The final date for payment by the Customer shall be 30 days after the relevant amount becomes due.
11.6 Unless the Customer has served a notice under clause 11.7, it shall pay Adcock the sum referred to in the Customer's notice under clause 11.4 (or if the Customer has not served such a notice, then the sum referred to in Adcock's Application and in either case, payment shall be made without deductions) (together referred to as "the Notified Sum") on or before the final date for payment of the relevant amount.
11.7 Not less than 7 days before the final date for payment, the Customer may give Adcock notice that it intends to pay less than the Notified Sum and any such notice shall specify the sum that the Customer considers to be due on the date the notice is served and the basis upon which that sum is calculated. The Customer must pay at least the sum so notified and without deduction.
11.8 Adcock reserves the right to charge interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998 and it is agreed that the rights provided under the said Act shall apply after any judgement or binding determination as well as before.
11.9 If for any reason any payment of an amount due is not made by the final date for payment, Adcock shall be entitled to:
11.9.1 be paid on an indemnity basis for any costs it incurs in recovering money due under the Contract (and the costs of recovering such costs) including its administrative costs and any costs incurred with lawyers or debt collection agencies and/or;
11.9.2 notwithstanding any previously agreed credit periods, be paid on all Applications already delivered to the Customer whether or not the final date for payment in each case has been reached and/or;
11.9.3 be paid a reasonable proportion in respect of Goods delivered or of Services undertaken but not yet due for payment as if such amounts were already due.
11.10 In the event of the Customer being in default of payment of any amount due to Adcock under the Contract then on giving the Customer 7 days' notice in writing specifying the grounds for so doing, Adcock may suspend performance of any or all of its obligations under the Contract. Adcock shall resume its obligations under the Contract within a reasonable time after receipt of any outstanding payment. Any suspension arising under this clause shall entitle Adcock to payment of its reasonable costs and expenses incurred as a result and the period of suspension shall be disregarded in computing any agreed date for completion of Adcock's obligations and Adcock shall not otherwise be liable to the Customer in regard to such suspension.
11.11 Adcock reserves the right to, by giving notice to the Customer at any time before delivery, increase the price to reflect any increase in the cost of the Goods and/or Services that is due to:
11.11.1 any factor beyond Adcock's control (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs) ;
11.11.2 any request by Adcock to change the delivery date(s), quantities or types of Goods and/or Services ordered; or
11.11.3 any delay caused by any instructions of the Customer or failure of the Customer to give Adcock adequate or accurate information or instructions.
11.12 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Adcock may at any time, without limiting any other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Adcock to the Customer.
12.1. All intellectual property rights in or arising out of or in connection with the Contract(other than intellectual property rights in any materials provided by the Customer) shall be owned by Adcock.
12.2. Subject to payment of all sums due to Adcock under the Contract, Adcock grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the materials (excluding materials provided by the Customer) for the purpose of receiving and using the Goods and Services in its business.
12.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 13.2.
12.4. The Customer grants Adcock a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Adcock for the purpose of performing its obligations under the Contract.
13.1 For the purposes of this Clause 13, the following definitions shall apply:
"Business Contact Data" means the business contact information of personnel engaged by either party to the Contract, specifically the name, business telephone number, business email address, business postal address and/or the job role or title of such personnel;
"Data Controller" has the meaning given to "controller" in the Data Protection Act 2018;
"Data Protection Laws" the Data Protection Act 2018, GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any relevant law implemented as a result of GDPR (each as amended, updated, superseded or re-enacted from time to time);
"Data Subject" has the meaning given in the Data Protection Act 2018 or (as applicable) the GDPR;
"GDPR" means the General Data Protection Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
"Information Requirements" means the information mandated to be supplied to Data Subjects in accordance with GDPR Article 13 and/or 14 (as applicable), at a time, in a format, and containing the content required under Data Protection Laws and the relevant Information Commissioner guidance issued by the Article 29 Working Party/EDPB and/or the UK Supervisory Authority;
"Personal Data" has the meaning given in the Data Protection Act 2018 or (as applicable) the GDPR;
"processing" has the meaning given in the Data Protection Act 2018 or (as applicable) the GDPR and "process" and "processed" have corresponding meanings;
"sub-processor" means a third party who processes Personal Data on a party's behalf.
Roles of the parties
13.2 The parties acknowledge and agree that for the purposes of the Contract:
13.2.1 each party is a Data Controller for the Personal Data it processes in connection with the Contract;
13.2.2 each party is responsible for its own compliance with Data Protection Laws with regards to its processing of Personal Data; and
13.2.3 the only Personal Data intended to be transferred between the parties under the Contract is Business Contact Data.
13.3 If a party (the "Disclosing Party") discloses Business Contact Data to the other party (the "Recipient Party"), the Disclosing Party shall:
13.3.1 ensure that the transmission is lawful; and
13.3.2 ensure that the appropriate Information Requirements have met in respect of the applicable Data Subjects.
13.4 The Recipient Party shall only process the Disclosing Party's Business Contact Data in compliance with Data Protection Laws and only to the extent necessary to achieve the purposes of effecting the Contract and performing its obligations under the Contract or for compliance with a legal obligation.
13.5 The Customer shall not disclose Adcock's Business Contact Data to third parties for the use of or purposes of third party marketing without the applicable Data Subject's express consent.
13.6 The parties shall only transfer Business Contact Data outside of the European Economic Area with an appropriate safeguarding mechanism in place under GDPR Chapter V (international transfers).
13.7 In the event that clause 13.2.3 becomes or will become inaccurate or incomplete before the expiry or termination of the Contract the parties agree to negotiate in good faith as soon as reasonably practicable contractual terms which will:
13.7.1 reflect the Personal Data being transmitted between the parties; and
13.7.2 ensure that the transmission and processing of such Personal Data complies with all applicable requirements under Data Protection Laws.
14.1. Nothing in these Conditions shall limit or exclude Adcock's liability for:
14.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2. fraud or fraudulent misrepresentation;
14.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
14.1.5. defective products under the Consumer Protection Act 1987.
14.2. Subject to clause 14.1, Adcock shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
14.2.1. loss of profits;
14.2.2. loss of sales or business;
14.2.3. loss of agreements or contracts;
14.2.4. loss of anticipated savings;
14.2.5. loss of use or corruption of software, data or information;
14.2.6. loss of or damage to goodwill; and
14.2.7. any indirect or consequential loss.
14.3. Subject to clause 14.1, Adcock's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the price to be paid under the Contract.
14.4. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.5. This clause shall survive termination of the Contract.
15.1 Adcock is under no obligation to provide a collateral warranty to any third party.
15.2 In circumstances where Adcock agrees to provide a collateral warranty, it will do so only where the following conditions are met:
15.2.1 the collateral warranty must be set out in writing;
15.2.2 prior to execution of the collateral warranty, the Customer must pay an additional sum equivalent to 1% of the Price for each collateral warranty; and
15.2.3 in any event, the collateral warranty must include clauses providing that Adcock: (1) owes no greater duty to the beneficiary that it owes to the Customer under the Contract; (2) may rely upon any limitation or defence arising from the Contract; and (3) shall have no liability after the expiry of six (6) years from the performance of Adcock's obligations under the Contract; and a net contribution clause.
If the Customer fails to comply with any of the terms of the Contract whether a condition or warranty express or implied or if any of the events set out in clause 17.2 occurs or if Adcock reasonably believes that they might occur and notifies the Customer accordingly, then, without limiting any other right or remedy, Adcock may suspend all further obligations under the Contract or under any other contract between the Customer and Adcock without incurring any liability to the Customer, and all outstanding sums shall become immediately due and Adcock may apply the rights under clause 18. In such an event Adcock will be discharged from further performance of the Contract (subject to the end of any period of suspension as applicable following the rectification of the terms of the Contract to Adcock’s reasonable satisfaction) and the Customer shall forthwith upon demand pay to Adcock all costs and expenses and overheads incurred in connection with the Contract together with any loss or profit and all sums due to Adcock hereunder.
17.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than one months' written notice.
17.2. If the Customer terminates the Contract under clause 17.1, it shall pay Adcock fair and reasonable compensation for any work in progress on the Services at the time of termination, including compensation for loss of anticipated profits and consequential loss.
17.3. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
17.3.1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
17.3.2. the other party is declared or becomes insolvent, applies for or has a moratorium declared in respect of any of its indebtedness, takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business (an "Insolvency Event");
17.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
17.3.4 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.4 Without affecting any other right or remedy available to it, Adcock may terminate the Contract with immediate effect by giving written notice to the Customer if:
17.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 14 Business Days after being given written notice to do so; or
17.4.2 there is a change of Control of the Customer.
18.1. On termination of the Contract:
18.1.1. the Customer shall immediately pay to Adcock all of Adcock's outstanding unpaid applications for payment and interest and, in respect of Services and Goods supplied but for which no application has been submitted, Adcock shall submit an application, which shall be payable by the Customer immediately on receipt;
18.1.2. the Customer shall return all Goods which have not been fully paid for. If the Customer fails to do so, then Adcock may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
18.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
18.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
19.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A "Force Majeure Event" means any event which hinders, delays or prevents performance of a party's obligations and which is either beyond that party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors or any law or any action taken by a government or public authority.
19.2 Adcock shall have no liability to the Customer in the event that a Covid-19 event delays or prevents Adcock from supplying the Goods and/or Services and Adcock may remove any affected Goods and/or Services from the scope of the Contract as a result of the Covid-19 event.
19.3 A "Covid-19 event" shall be limited to the following:
19.3.1 closure of Adcock's premises;
19.3.2 staff shortage due to any quarantining or self-isolation;
19.3.3 shortage of any electricity or other utility; and/or
19.3.4 embargo and/or any other trade restrictions.
provided that in each case the event occurs due to any mandatory measures introduced by a government and/or local or regulatory authority intended to prevent or delay the spread of Covid-19.
20.1. Assignment and other dealings. Adcock may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Adcock.
20.2. Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Contract or otherwise specified by either party to the other.
20.3. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next working day after transmission. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
20.4. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Adcock. The Customer shall not vary the Contract, the Goods or the Services except as directed in writing by Adcock or with Adcock's prior written consent.
20.5. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
20.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.7. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
20.8. Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.9. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
20.10. Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20.11. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
20.12. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
20.13 Disputes. Subject to either party's right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation.
20.14 Adjudication. Notwithstanding any other provision of the Contract either party may refer a dispute arising under the Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations, which Part shall take effect as if it was incorporated into this clause. The adjudicator shall be appointed by: The Royal Institute of Chartered Surveyors.