1.
Interpretation
1.1
The following definitions and rules of
interpretation in this clause apply in these terms and conditions.
Aquatic Impact:
Aquatic Impact Limited a company incorporated in England and Wales under number
06043365 whose registered office is at 8 Kingfishers, Orton Wistow,
Peterborough, PE2 6YH.
Customer:
the person, firm or company named in the Quotation.
Contract:
any contract between Aquatic Impact and the Customer in relation to the Project,
incorporating these terms and conditions.
Goods:
The Hire Goods and the Sale Goods.
Project:
the project to be undertaken by Aquatic Impact as further detailed in the
Project Plan.
Hire Goods:
any goods to be hired by the Customer.
Hire Period:
the period or periods specified in the Project Plan during which the Customer
has agreed to hire the Hire Goods.
Installation:
installation of the Project pursuant to clause 9.
Quotation:
the document to which these terms and conditions are attached.
Premises:
the Customers’ premises where Installation of the Project shall be undertaken by
Aquatic Impact, as further detailed in the Quotation.
Project Plan:
the plan of the project to be agreed by the Customer and Aquatic Impact in
accordance with clause 4.
Sale Goods:
any goods to be purchased by the Customer.
Security Interest:
means any mortgage, pledge, lien, charge, assignment, hypothecation or security
interest or any other agreement or arrangement having the effect of conferring
security.
Deposit:
the non-refundable deposit specified in the Quotation and payable by the
Customer Pursuant to clause 4.1.
1.2
A reference to a law is a reference to it as it is
in force for the time being taking account of any amendment, extension,
application or re-enactment and includes any subordinate legislation for the
time being in force made under it.
1.3
Words in the singular include the plural and in the
plural include the singular.
1.4
A reference to one gender includes a reference to
the other gender.
1.5
Clause headings do not affect the interpretation of
these terms and conditions.
2.1
The Quotation is given by Aquatic Impact on the
basis that no Contract shall come into existence except in accordance with
clause REF "a317670" \h \w 2.2.
Any quotation is valid for a period of 30 days from its date, provided that
Aquatic Impact has not previously withdrawn it.
2.2.1
signing the Quotation and delivering it to Aquatic
Impact; or
2.2.2
issuing a purchase order to Aquatic Impact;
2.2.3
accepting the quotation in writing (whether by
e-mail or otherwise).
2.3
Following acceptance of the Quotation by the
Customer in accordance with clause 2.2, a Contract for the provision of the
Project on these terms and conditions will be established.
2.4
The Contract shall be on these terms and conditions
to the exclusion of all other terms and conditions (including any terms or
conditions which the Customer purports to apply under any purchase order,
confirmation of order, specification or other document).
2.5
No terms or conditions endorsed on, delivered with
or contained in the Customer's purchase order, confirmation of order,
specification or other document shall form part of the Contract simply as a
result of such document being referred to in the Contract.
3
The Project
3.2
The specification and description of the Project
shall be as set out in the Project Plan.
3.3
All samples, drawings, descriptive matter,
specifications and advertising issued by Aquatic Impact and any descriptions or
illustrations contained in Aquatic Impact's catalogues or brochures are issued
or published for the sole purpose of giving an approximate idea of the items
described in them. They shall not form part of the Contract.
4
Deposit
4.2
Upon acceptance of the Quotation by the Customer in
accordance with clause 2.2, the Customer shall pay the Deposit to Aquatic
Impact.
4.3
The Customer acknowledges that the Deposit is
non-refundable.
4.4
Aquatic Impact shall not be under any obligation to
prepare the Project Plan until the Customer has paid the Deposit in cleared
funds.
5.2
The Project Plan shall be agreed in the following
manner:
5.2.1
Following payment of the Deposit by the Customer in
accordance with clause 4.1 Aquatic Impact shall, as soon as reasonably
practicable, provide the Customer with a draft Project Plan; and
5.3
Once the Project Plan has been agreed and signed in
accordance with condition REF "a499253" \h \w 5.2.2,
no amendment shall be made to it except in accordance with clause 6.
6.2
If either party wishes to change the scope or
execution of the Project, it shall submit details of the requested change to the
other in writing.
6.3
If either party requests a change to the scope or
execution of the Project, Aquatic Impact shall, within a reasonable time,
provide a written estimate to the Customer of:
6.2.1
the likely time required to implement the change;
6.2.2
any variations to Aquatic Impact's charges arising
from the change;
6.2.3
the likely effect of the change on the Project
Plan; and
6.2.4
any other impact of the change on the terms of the
Contract.
6.3
Aquatic Impact may, from time to time and without
notice, change the Project 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. If Aquatic Impact requests a
change to the scope of the Services for any other reason, the Customer shall not
unreasonably withhold or delay consent to it.
6.4
If the Customer wishes Aquatic Impact to proceed
with the change, Aquatic Impact has no obligation to do so unless and until the
parties have agreed in writing on the necessary variations to its charges, the
Project Plan and any other relevant terms of the Contract to take account of the
change.
7.2
Aquatic Impact shall use reasonable endeavours to
complete the Project in accordance in all material respects with the Project
Plan.
7.3
Aquatic Impact shall use reasonable endeavours to
meet any performance dates specified in the Project Plan, but any such dates
shall be estimates only and time shall not be of the essence of the Contract.
8.2.1
co-operate with Aquatic Impact in all matters
relating to the Project;
8.2.2
provide, for Aquatic Impact, its agents,
sub-contractors and employees, in a timely manner and at no charge, access to
the Premises, as requested by Aquatic Impact;
8.2.3
provide, in a timely manner, such information as
Aquatic Impact may request and ensure that it is accurate in all material
respects;
8.2.6
obtain and maintain all necessary licences and
consents and comply with all relevant legislation in relation to the Project and
the Customers use of the Project.
8.3
If Aquatic Impacts performance of its obligations
under the Contract is prevented or delayed by any act or omission of the
Customer, its agents, sub-contractors or employees, Aquatic Impact 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.
8.4
The Customer shall be liable to pay to Aquatic
Impact, on demand, all reasonable costs, charges or losses sustained or incurred
by Aquatic Impact (including any direct, indirect or consequential losses, loss
of profit and loss of reputation, loss or damage to property and those arising
from injury to or death of any person and loss of opportunity to deploy
resources elsewhere) arising directly or indirectly from the Customer's fraud,
negligence, failure to perform or delay in the performance of any of its
obligations under the Contract, subject to Aquatic Impact confirming such costs,
charges and losses to the Customer in writing.
9
installation & completion
9.3
Subject to clause 9.4,
Aquatic Impact shall use its reasonable endeavours to ensure that Installation
and Completion of the Project take place in accordance with any time table set
out in the Project Plan.
9.5
Subject to the other provisions of these terms and
conditions Aquatic Impact shall not be liable for any direct, indirect or
consequential loss (all three of which terms include, without limitation, pure
economic loss, loss of profits, loss of business, depletion of goodwill and
similar loss), costs, damages, charges or expenses caused directly or indirectly
by any delay in Installation and Completion (even if caused by Aquatic Impact's
negligence), nor shall any delay entitle the Customer to terminate or rescind
the Contract.
10.2
The Goods (whether they are Hired Goods or Sale
Goods) are at the absolute risk of the Customer from the time of delivery.
10.3
If for any reason the Customer fails to accept
delivery of any of the Goods when they are ready for delivery, or Aquatic Impact
is unable to deliver the Goods on time because the Customer has not provided
appropriate instructions, documents, licences or authorisations:
10.2.2
the Goods shall be deemed to have been delivered;
and
10.3
The Customer's right to possession or use of any
Goods (whether they are Hire Goods or Sale Goods) shall terminate immediately
if:
10.3.1
the Customer has a bankruptcy order made against
him or makes an arrangement or composition with his creditors, or otherwise
takes the benefit of any statutory provision for the time being in force for the
relief of insolvent debtors, or (being a body corporate) convenes a meeting of
creditors (whether formal or informal), or enters into liquidation (whether
voluntary or compulsory) except a solvent voluntary liquidation for the purpose
only of reconstruction or amalgamation, or has a receiver and/or manager,
administrator or administrative receiver appointed of its undertaking or any
part thereof, or documents are filed with the court for the appointment of an
administrator of the Customer or notice of intention to appoint an administrator
is given by the Customer or its directors or by a qualifying floating charge
holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986),
or a resolution is passed or a petition presented to any court for the
winding-up of the Customer or for the granting of an administration order in
respect of the Customer, or any proceedings are commenced relating to the
insolvency or possible insolvency of the Customer; or
10.3.2
the Customer suffers or allows any execution,
whether legal or equitable, to be levied on his/its property or obtained against
him/it, or fails to observe or perform any of his/its obligations under the
Contract or any other contract between Aquatic Impact and the Customer, or is
unable to pay its debts within the meaning of section 123 of the Insolvency Act
1986 or the Customer ceases to trade; or
10.3.3
any event similar to those listed in clauses 10.1.1
and 10.1.2 occurs in respect of the Customer in any jurisdiction.
10.3.4
the Customer encumbers or in any way charges any of
the Goods.
10.4
The Customer grants Aquatic Impact, its agents and
employees an irrevocable licence at any time to enter any premises where the
Goods are or may be stored in order to inspect them, or, where the Customer's
right to possession has terminated, to recover them.
10.5
Where Aquatic Impact is unable to determine whether
any Goods are the goods in respect of which the Customer's right to possession
has terminated, the Customer shall be deemed to have sold all goods of the kind
sold by Aquatic Impact to the Customer in the order in which they were invoiced
to the Customer.
10.6
On termination of the Contract, howsoever caused,
Aquatic Impact's (but not the Customer's) rights contained in this clause REF
_Ref158789086 \r \h 10
shall remain in effect.
11
Sale Goods
11.3.1
the Project; and
11.3.2
all other sums which are or which become due to
Aquatic Impact from the Customer on any account.
11.2.1
hold the Sale Goods on a fiduciary basis as Aquatic
Impact's bailee;
11.2.2
store the Sale Goods (at no cost to Aquatic Impact)
separately from all other goods of the Customer or any third party in such a way
that they remain readily identifiable as Aquatic Impact's property;
11.2.3
not destroy, deface or obscure any identifying mark
or packaging on or relating to the Sale Goods; and
11.2.4
maintain the Sale Goods in satisfactory condition
and keep them insured on Aquatic Impact's behalf for their full price against
all risks to the reasonable satisfaction of Aquatic Impact. On request the
Customer shall produce the policy of insurance to Aquatic Impact.
11.3
The Customer shall not resell the Sale Goods before
ownership has passed to it in accordance with clause 11.3
12
Hire Goods
12.2
Aquatic Impact shall hire the Hire Goods to the
Customer and the Customer shall hire the Hire Goods from Aquatic Impact for the
duration of the Hire Period.
12.3
Ownership of any Hire Goods shall not pass to the
Customer, and shall remain the absolute property of Aquatic Impact Limited at
all times.
12.4
The Customer shall:
12.3.1
maintain the Hire Goods in satisfactory condition
and keep them insured on Aquatic Impact's behalf for their full price against
all risks to the reasonable satisfaction of Aquatic Impact. On request the
Customer shall produce the policy of insurance to Aquatic Impact.
12.3.2
procure that the Hire Goods are employed, used or
operated:
12.3.2.1
in a skilful, careful and proper manner;
12.3.2.2
only for the purposes for which they were designed;
and
12.3.2.3
in accordance with and subject to all instructions
issued by Aquatic Impact or the manufacturer of the Hire Goods; and
12.3.2.4
in accordance with and subject to all applicable
laws and regulations.
12.4
The Customer shall maintain the Hire Goods in a
good, safe and serviceable condition and state of repair (fair wear and tear
excepted) strictly to the standard and at the service intervals recommended by
their manufacturer.
12.5
The Customer shall not make additions, alterations
or modifications to, or remove any part of, any Hire Goods.
12.6
The Customer shall permit Aquatic Impact or its
representatives at all reasonable times to inspect the Hire Goods and shall
afford all necessary access, assistance and proper facilities for such
inspections. For this purpose the Customer authorises or shall procure that
Aquatic Impact and its representatives are authorised to enter into the Premises
or any other land or premises at which the Hire Goods or any of them may from
time to time be located.
12.7
The Hire Goods shall be kept at the Premises and
shall not be taken outside the United Kingdom without the prior written consent
of Aquatic Impact.
12.8
The Customer shall have no right, title or interest
in or to any part of the Hire Goods except the right to hire them in accordance
with the Contract.
12.9
The Customer shall not attempt or hold itself out
as having any power to sell, charge or otherwise encumber or to sell or
otherwise dispose of any of the Hire Goods or any interest in any of them.
12.10
The Customer shall not create, incur or suffer to
exist any Security Interest in respect of any item of Hire Goods.
12.11
The Customer shall not, sub-let or, voluntarily
part with the possession or operational control of the Hire Goods.
12.12
The Customer shall take or procure the taking of
all necessary steps to safeguard Aquatic Impact’s rights in respect of the Hire
Goods and shall not do or permit to be done anything that jeopardises the rights
of Aquatic Impact in the Hire Goods or deliberately omit to do anything that
would prevent those rights from being jeopardised.
12.13
The Customer shall prevent the Hire Goods being
removed from its possession and to the confiscation, distress, execution,
impounding, forfeiture, requisition for title or seizure of any of them.
12.14
The Customer shall immediately procure the release
from confiscation, distress, execution, impounding, forfeiture, requisition for
title or seizure of any of the Hire Goods.
12.15
The Customer shall make clear to third parties that
title to the Hire Goods is held by Aquatic Impact in circumstances and on
occasions where Aquatic Impacts ownership of the Hire Goods may be relevant.
12.17
On the termination or expiry of the Hire Period,
the Customer shall no longer be in possession of the Hire Goods with the consent
of Aquatic Impact and Aquatic Impact shall be entitled to retake possession of
the Hire Goods if they are not returned in accordance with clause 12.16.
12.18
Aquatic Impact may put into force and exercise all
its rights and entitlements at law and may enter upon any land or premises
belonging to, or in the occupation or under the control of, the Customer where
any item of Hire Goods is located for the purposes of retaking possession of the
Hire Goods.
13.3
Unless otherwise agreed by Aquatic Impact in
writing, the price for undertaking the Project shall be the price set out in the
Project Plan.
14.3
Subject to clause 14.7,
payment of the price for the project is due in pounds sterling in accordance
with the Project Plan.
14.4
Aquatic Impact shall be entitled to recover payment
for the Project notwithstanding that ownership of any of the Sale Goods has not
passed from Aquatic Impact in accordance with clause 11.1.
14.8
The Customer shall make all payments due under the
Contract in full without any deduction whether by way of set-off, counterclaim,
discount, abatement or otherwise unless the Customer has a valid court order
requiring an amount equal to such deduction to be paid by Aquatic Impact to the
Customer.
14.9
If the Customer fails to pay Aquatic Impact any sum
due pursuant to the Contract, the Customer shall be liable to pay interest to
Aquatic Impact on such sum from the due date for payment at the annual rate of
8% above the base lending rate from time to time of HSBC Bank PLC, accruing on a
daily basis until payment is made, whether before or after any judgement.
15
Quality
15.2.2
Aquatic Impact shall be under no liability in
respect of any defect arising from fair wear and tear, wilful damage,
negligence, abnormal working conditions, failure to follow Aquatic Impact’s or
the manufacturer’s instructions, misuse or alteration or repair of the Project
or any of the Goods without Aquatic Impacts written approval;
15.2.3
Aquatic Impact shall be under no liability if the
total price for the Project has not been paid by the due date for payment;
15.2.4
The warranty does not extend to parts, materials or
Goods not manufactured by Aquatic Impact in respect of which the Customer shall
only be entitled to the benefit of any such warranty or guarantee as is given by
the manufacturer to Aquatic Impact.
15.3.1
the Customer gives notice of the defect to Aquatic
Impact within a reasonable time of the time when the Customer discovers or ought
to have discovered the defect; and
15.3.2
Aquatic Impact is given a reasonable opportunity
after receiving the notice of examining the Project or the relevant Goods.
15.5
If Aquatic Impact complies with clause 15.4
it shall have no further liability for a breach of the warranty in clause 15.1
in respect of such defect.
16
Limitation of liability
16.3.1
for death or personal injury caused by Aquatic
Impact's negligence; or
16.3.2
under section 2(3), Consumer Protection Act 1987;
or
16.3.3
for any matter which it would be illegal for
Aquatic Impact to exclude or attempt to exclude its liability; or
16.3.4
for fraud or fraudulent misrepresentation.
16.4.1
Aquatic Impact'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 Contract price;
and
16.4.2
Aquatic Impact shall not be liable to the Customer
for any pure economic loss, loss of profit, loss of business, depletion of
goodwill or otherwise, in each case whether direct, indirect or consequential,
or any claims for consequential compensation whatsoever (howsoever caused) which
arise out of or in connection with the Contract.
17
TERMINATION
17.2.1
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
17.2.2
an order is made or a resolution is passed for the
winding up of the other party, or circumstances arise which entitle a court of
competent jurisdiction to make a winding-up order of the other party; or
17.2.3
an order is made for the appointment of an
administrator to manage the affairs, business and property of the other party,
or documents are filed with a court of competent jurisdiction for the
appointment of an administrator of the other party, or notice of intention to
appoint an administrator is given by the other party or its directors or by a
qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to
the Insolvency Act 1986); or
17.2.4
a receiver is appointed of any of the other party's
assets or undertaking, or circumstances arise which entitle a court of competent
jurisdiction or a creditor to appoint a receiver or manager of the other party,
or if any other person takes possession of or sells the other party's assets; or
17.2.5
the other party makes any arrangement or
composition with its creditors, or makes an application to a court of competent
jurisdiction for the protection of its creditors in any way; or
17.2.6
the other party ceases, or threatens to cease, to
trade; or
17.2.7
the other party takes or suffers any similar or
analogous action in any jurisdiction in consequence of debt.
17.3.1
the Customer shall immediately pay to Aquatic
Impact all of Aquatic Impact's outstanding unpaid invoices and interest and, in
respect of work undertaken but for which no invoice has been submitted, Aquatic
Impact may submit an invoice, which shall be payable immediately on receipt;
17.3.2
the Customer shall, return all Hire Goods and any
Sale Goods in respect of which ownership has not passed to the Customer. If the
Customer fails to do so, then Aquatic Impact may enter the Customer's premises
and take possession of them. Until they have been returned or repossessed, they
shall remain at the absolute risk of the Customer.
the accrued
rights of the parties as at termination and the continuation of any provision
expressly stated to survive or implicitly surviving termination, shall not be
affected.
18
general
18.2
Aquatic Impact may assign the Contract or any part
of it to any person, firm or company.
18.3
The Customer shall not be entitled to assign the
Contract or any part of it without the prior written consent of Aquatic Impact.
18.4
Aquatic Impact reserves the right to defer the date
of delivery or to cancel the Contract (without liability to the Customer) if it
is prevented from or delayed in the carrying on of its business due to
circumstances beyond the reasonable control of Aquatic Impact including, without
limitation, acts of God, governmental actions, war or national emergency, acts
of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic,
lock-outs, strikes or other labour disputes (whether or not relating to either
party's workforce), or restraints or delays affecting carriers or inability or
delay in obtaining supplies of adequate or suitable materials.
18.5
Each right or remedy of Aquatic Impact under the
Contract is without prejudice to any other right or remedy of Aquatic Impact
whether under the Contract or not.
18.6
If any provision of the Contract is found by any
court, tribunal or administrative body of competent jurisdiction to be wholly or
partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall
to the extent of such illegality, invalidity, voidness, voidability,
unenforceability or unreasonableness be deemed severable and the remaining
provisions of the Contract and the remainder of such provision shall continue in
full force and effect.
18.7
Failure or delay by Aquatic Impact in enforcing or
partially enforcing any provision of the Contract shall not be construed as a
waiver of any of its rights under the Contract.
18.8
Any waiver by Aquatic Impact of any breach of, or
any default under, any provision of the Contract by the Customer shall not be
deemed a waiver of any subsequent breach or default and shall in no way affect
the other terms of the Contract.
18.9
The parties to the Contract do not intend that any
term of the Contract shall be enforceable by virtue of the Contracts (Rights of
Third Parties) Act 1999 by any person that is not a party to it.
18.10
The formation, existence, construction,
performance, validity and all aspects of the Contract shall be governed by
English law and the parties submit to the exclusive jurisdiction of the English
courts.
18.11
All communications between the parties about the
Contract shall be in writing and delivered by hand or sent by pre-paid first
class post or sent by fax:
18.11.1
(in case of communications to Aquatic Impact) to
its registered office or such changed address as shall be notified to the
Customer by Aquatic Impact; or
18.11.2
(in the case of the communications to the Customer)
to the registered office of the addressee (if it is a company) or (in any other
case) to any address of the Customer set out in any document which forms part of
the Contract or such other address as shall be notified to Aquatic Impact by the
Customer.
18.12
Communications shall be deemed to have been
received:
18.12.1
if sent by pre-paid first class post, two days
(excluding Saturdays, Sundays and bank and public holidays) after posting
(exclusive of the day of posting); or
18.12.2
if delivered by hand, on the day of delivery; or
18.12.3
if sent by fax on a working day prior to 4.00 pm,
at the time of transmission and otherwise on the next working day.