Terms and conditions – Commercial Customers

Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1       Definitions:

“APC”

APC Pest Control Limited registered in England and Wales with company number 09928997.

“APC Materials”

has the meaning set out in clause 4.1.8.

“Business Day”

a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Charges”

the charges payable by the Customer for the supply of the Services in accordance with clause 5.

“Commencement Date”

has the meaning given in clause 2.2.

“Conditions”

these terms and conditions as amended from time to time in accordance with clause 9.5.

“Contract”

the contract between APC and the Customer for the supply of Services in accordance with these Conditions.

“Control”

has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“Customer”

the person or firm who purchases Services from APC.

“Customer Default”

has the meaning set out in clause 4.2.

“Deliverables”

the deliverables set out in the Order produced by APC for the Customer.

“Initial Term”

the initial term of the Contract which shall be a period of 12 months, unless otherwise set out in the Specification or agreed between the parties.

“Order”

the Customer’s order for Services as set out in the Customer’s purchase order form or the Customer’s written acceptance of APC’s quotation, as the case may be.

“Services”

the services, including the Deliverables, supplied by APC to the Customer as set out in the Specification.

“Specification”

the description or specification of the Services provided in writing by APC to the Customer.

 

1.2       Interpretation:

1.2.1   A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.2   Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3    A reference to writing or written includes email but not fax.

2.         Basis of Contract

2.1       The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2       The Order shall only be deemed to be accepted when APC issues written acceptance of the Order at which point and on which date the Contract shall come into   existence (the “Commencement Date”).

2.3       Unless terminated earlier in accordance with clause 7 or this clause, the Contract shall continue for the Initial Term and shall automatically extend for a further   period of 3 months (an “Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other   party, not later than one month before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the   relevant Extended Term, as the case may be.

2.4       Any samples, drawings, descriptive matter or advertising issued by APC, and any descriptions or illustrations contained in APC’s website or marketing material,   are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have   any contractual force.

2.5       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 law, trade   custom, practice or course of dealing.

2.6       Any quotation given by APC shall not constitute an offer, and is only valid for a period of 3 months from its date of issue.

3.         Supply the services

3.1       APC shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2       APC shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

APC reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and APC shall notify the Customer in any such event.

3.4       APC warrants to the Customer that the Services will be provided using reasonable care and skill.

4.         Customer’s Obligation

4.1       The Customer shall:

4.1.1    ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

4.1.2    co-operate with APC in all matters relating to the Services;

4.1.3    provide APC, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as     reasonably required by APC;

4.1.4    provide APC with such information and materials as APC may reasonably require in order to supply the Services, and ensure that such information is complete   and accurate in all material respects;

4.1.5    prepare the Customer’s premises for the supply of the Services;

4.1.6    obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

4.1.7    comply with all applicable laws, including health and safety laws;

4.1.8   keep all materials, equipment, documents and other property of APC (the “APC Materials”) at the Customer’s premises in safe custody at its own risk, maintain   APC Materials in good condition until returned to APC, and not dispose of or use APC Materials other than in accordance with APC’s written instructions or   authorisation; 

4.1.9   ensure that any bait stations, traps or other equipment which are left at the Customer’s premises following a visit to such premises by APC shall not be accessed,   interfered with, vandalised or otherwise interrupted by the Customer, its employees, agents or sub-contractors, or any other third party present at the Customer’s   premises; and

4.1.10  comply with any additional obligations as set out in the Specification.

4.2      If APC’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”):

4.2.1    without limiting or affecting any other right or remedy available to it, APC 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 APC’s performance of any of its obligations;

4.2.2    APC shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from APC’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3    the Customer shall reimburse APC on written demand for any costs or losses sustained or incurred by APC arising directly or indirectly from the Customer       Default.

5.         Charges and Payment

5.1       The Charges for the Services shall be as set out in the Specification. If no Charges are set out in the Specification, the Charges shall be calculated on a time and materials basis in accordance with APC’s then current daily fee rates.

5.2     APC reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

5.3       Unless otherwise agreed between the parties, APC shall invoice the Customer quarterly in advance, with the invoice in respect of the first quarter to be raised on   the Commencement Date.

5.4       The Customer shall pay each invoice submitted by APC:

5.4.1    within 30 days of the date of the invoice or in accordance with any credit terms agreed by APC and confirmed in writing to the Customer; and

5.4.2    in full and in cleared funds to a bank account nominated in writing by APC, and time for payment shall be of the essence of the Contract.

5.5      All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by APC to the Customer, the Customer shall, on receipt of a valid VAT invoice from APC, pay to APC such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.6       If the Customer fails to make a payment due to APC under the Contract by the due date, then, without limiting APC’s remedies under clause 7, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 0%.

5.7       All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.         Limitation of Liability

6.1       Nothing in the Contract limits or excludes any liability which cannot legally be limited or excluded, including but not limited to liability for:

6.1.1    death or personal injury caused by negligence; and

6.1.2    fraud or fraudulent misrepresentation.

6.2       Subject to clause 6.1, APC’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 not exceed the aggregate amount of the Charges actually paid to APC under the Contract.

6.3     Subject to clause 6.1, APC shall not have any liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

6.3.1    loss of profits;

6.3.2    loss of sales or business;

6.3.3    loss of agreements or contracts;

6.3.4    loss of anticipated savings;

6.3.5    loss of use or corruption of software, data or information;

6.3.6    loss or damage of the Client’s or property or the Venue;

6.3.7    loss of or damage to goodwill; and/or

6.3.8    any indirect or consequential loss.

6.4       This clause 6 shall survive termination of the Contract.

7.         Termination

7.1       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:

7.1.1    the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

7.1.2    the other party 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;

7.1.3    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

7.1.4    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.

7.2       Without affecting any other right or remedy available to it, APC may terminate the Contract with immediate effect by giving written notice to the Customer if:

7.2.1    the Customer fails to pay any amount due under the Contract on the due date for payment; or 

7.2.2    there is a change of control of the Customer.

7,3     Without affecting any other right or remedy available to it, APC may suspend the supply of Services under the Contract or any other contract between the   Customer and APC if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the       events listed in clause 7.1.2 to clause 7.1.4, or APC reasonably believes that the Customer is about to become subject to any of them.

7.4      In the event that APC terminates the Contract in accordance with clause 7.2, or suspends the supply of the Services in accordance with clause 7.3, APC shall have no liability to the Customer in respect of any failure to perform any Services which were due to be performed after such termination or during any period of suspension (as the case may be).

8.         Consequences of Termination

8.1       On termination of the Contract:

8.1.1    the Customer shall immediately pay to APC all of APC’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, APC shall submit an invoice, which shall be payable by the Customer immediately on receipt;

8.1.2    the Customer shall return all of APC Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then APC 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 the Contract.

8.2       Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including   the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

8.3       Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

9.General

9.1       Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if   such delay or failure result from events, circumstances or causes beyond its reasonable control.

9.2       Assignment and other dealings.

9.2.1    APC 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.

9.2.2   The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, 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 APC.

9.3       Confidentiality.

9.3.1   Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or    suppliers of the other party, except as permitted by clause 9.3.2.

9.3.2    Each party may disclose the other party’s confidential information:

(a)       to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9.3; and

(b)        as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3.3    Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

9.4       Entire agreement.

9.4.1    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.

9.4.2    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 misstatement based on any statement in the Contract.

9.4.3    Nothing in this clause shall limit or exclude any liability for fraud.

9.5       Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

9.6       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 right or remedy. 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.

9.7      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 9.7 shall not affect the validity and enforceability of the rest of the Contract.

9.8       Notices.

9.8.1    Any notice 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 email to its main email address.

9.8.2    Any notice shall be deemed to have been received:

(a)        if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b)        if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and

(c)        if sent by email, at 9.00 am on the next Business Day after transmission.

9.8.3    This clause 9.8 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.

9.9      Third party rights. Unless it expressly states otherwise, 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.

9.10     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.

9.11     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.