Terms of Service:
Supply of Services (other than Tank Installation)
Merkland Tank Limited: Terms and Conditions for the Supply of Services
(other than Tank Installation)
The Customer’s attention is particularly drawn to the provisions of clause 7 (Limitation of liability).
1. Definitions and interpretation
The following definitions apply in these Conditions:
Additional Charges: the additional charges payable by the Customer pursuant to clause 4.2(d).
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 2.
Deliverables: the tank inspection report or interceptors’ report produced by the Supplier for the Customer but only where relevant to the particular Services being provided under the Contract.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form or, if there is no such purchase order form, comprised in the Customer’s acceptance by email or telephone of the Quotation.
Scope of Works: the description or specification of the Services contained in or referred to in the Quotation.
Services: the services , including the Deliverables where relevant, supplied by the Supplier to the Customer as set out in the Scope of Works.
Supplier: Merkland Tank Limited, a company registered in Scotland with registered number SC282068.
Supplier Equipment: has the meaning set out in clause 1(g).
Quotation: the Supplier’s final written quotation to the Customer for the Services which shall be relevant to these Conditions notwithstanding that, from the face of it, its validity has expired.
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 the Supplier issues written acknowledgment of the Order (which may be by email) or the Supplier commences the Services at the Customer’s site (whichever is earlier) at which point and on which date the Contract shall come into existence. The Services will commence on the date agreed between the parties.
2.3 Any photographs, descriptive matter or advertising issued by the Supplier, and any photographs, descriptions or illustrations contained in the Supplier’s brochures or on its website, 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.
2.4 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 law, trade custom, practice or course of dealing.
3. Supply of Services and Services’ Warranty
3.1 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quotation or the Order or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.2 The Supplier reserves the right to amend the Scope of Works 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 the Supplier shall notify the Customer in any such event.
3.3 The Supplier warrants to the Customer that it will perform the Services (excluding any waste carriage or waste disposal services) with reasonable skill and care, in a good and workmanlike manner and in accordance with the Scope of Works in all material respects. In the event the Services do not conform to this warranty, Supplier’s sole liability and Customer’s exclusive remedy in any cause of action alleging breach of this warranty or any claim related to a defect in Services provided by Supplier is expressly limited to the re-performance of such Services or a refund of the amount paid for the non-conforming Services, at Supplier’s option. In any event, Supplier’s liability for non-conforming Services will not exceed the cost of the non-conforming Services.
3.4 Claims made under the warranty in clause 3.3 must be notified to Supplier prior to the point of acceptance by the Customer of the Services by signing an acceptance form (whether in hard copy or on the Supplier’s tablet) or equivalent on site. Failure so to notify a breach of this warranty or any other defect in Services prior to the point of acceptance shall mean that the Seller shall have no liability for them. The Customer shall be deemed to have accepted the Services if a relevant Customer representative is given the opportunity to sign the acceptance form or equivalent but declines to do so and, notwithstanding this, permits the Supplier’s operative to leave site without notifying a breach of warranty or defect in Services to the Supplier.
3.5 Acceptance or deemed acceptance of the Services pursuant to clause 3.4 shall not be affected by the Deliverables being produced by the Supplier for the Customer after the Supplier’s engineer has left site.
3.6 Where the Services comprise waste carriage and/or waste disposal services, the Supplier warrants to the Customer that:
(a) it will only provide waste carriage services for so long as it continues to be a SEPA-licensed waste carrier (or equivalent) and will do so in accordance with all applicable laws and regulations; and
(b) it will only use such third-party waste disposal sites as hold appropriate SEPA waste disposal licences (or equivalent) but otherwise shall have no liability for the failure by such third parties to carry out the waste disposal services in accordance with applicable laws and regulations.
3.7 The Supplier shall not be liable for defective Services pursuant to clause 3.3 or clause 3.6(a) if the defect arises as a result of Customer Default.
3.8 Except as provided in clause 3.3 and clause 3.6 above, Supplier makes no other warranty, express or implied, including but not limited to any warranty of merchantability or fitness for any particular purpose, and the Supplier shall have no other warranty liability to the Customer.
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides for the Scope of Works are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services including allowing the Supplier to perform the Services on the agreed start date continuously without Customer imposed downtime;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information as the Supplier may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services as set out in the Scope of Works and/or the Quotation;
(f) 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;
(g) grant the Supplier any authorisation it may request from the Customer to have Supplier owned or hired plant and equipment delivered to and stored at the site and to have Supplier vehicles parked there, all as necessary for the performance of the Services (such plant, equipment and vehicles being Supplier Equipment).
(h) keep all Supplier Equipment at the Customer’s site in safe custody at its own risk, maintain the Supplier Equipment in good condition while it is at site, and not dispose of or use the Supplier Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations or conditions noted in the Quotation.
4.2 If the Supplier’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):
(a) without limiting or affecting any other right or remedy available to it, the Supplier 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 the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 2;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default including but not limited to additional third-party plant or equipment hire costs and additional sub-contractor charges; and
(d) where any additional hours or days are expended by Supplier operatives at site or Supplier plant or equipment remains at site for additional hours or days due to Customer Default, the Customer shall pay the Supplier the Additional Charges, calculated as set out in clause 5.2, for those additional hours or days as well as the Charges.
5.1 The Charges for the Services shall be as set out in the Quotation.
5.2 Additional Charges shall be calculated as follows:
(a) the Additional Charges in respect of Supplier operatives and/or Supplier plant or equipment shall be calculated in accordance with the Supplier’s daily fee rate or hourly rate, as relevant, specified in the Quotation or any agreed Schedule of Rates, failing which its prevailing daily fee rate or hourly rate;
(b) the operatives’ day is 7.00 am to 3.30 pm Monday to Thursday and 7.00 am to 2.30 pm on Friday;
(c) the Supplier shall be entitled to charge the hourly overtime rate specified in the Quotation or any agreed Schedule of Rates, failing which its prevailing hourly overtime rate for any additional hours worked outside the hours referred to in clause 2(b).
5.3 The Supplier reserves the right to charge the Customer an additional charge where the nature of the materials on which the Services are being performed does not conform to the Scope of Works. Where possible, the Supplier shall notify the Customer as soon as reasonably possible of becoming aware of the situation and agree a new Scope of Works and Charges with the Customer. However, where this is not possible (for example material required by law or regulation to be disposed of or treated urgently), Supplier shall proceed with the Services in such manner as it thinks fit and shall charge such additional amount as is reasonable in Supplier’s sole discretion.
5.4 Unless agreed otherwise in the Order, the Supplier shall invoice the Customer on acceptance or deemed acceptance of the Services pursuant to clause 4.
5.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.6 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 the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
5.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 8, 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 7 will accrue each day at 4% a year above Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8 Once the Contract comes into existence, it may not be cancelled or terminated by the Customer other than in accordance with clause 8 unless the Supplier agrees in writing to the cancellation or termination. If the Supplier agrees, all costs and expenses already incurred by the Supplier shall be payable by the Customer plus a 10% handling charge.
5.9 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. Intellectual property rights
6.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2 Where relevant, the Supplier grants to the Customer a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Deliverables to maintain the assets on which the Services have been performed.
7. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
7.1 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence).
7.2 Nothing in this clause 7 shall limit the Customer’s payment obligations under the Contract.
7.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 11B of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.4 Subject to clause 3 and 7.5, the Supplier’s total liability to the Customer shall not exceed the total Charges payable to the Supplier under the relevant Contract.
7.5 Subject to clause 7.3, the Supplier’s total liability to the Customer for any damage to the Customer’s property caused by the Supplier or its operatives shall not exceed the amount of any insurance policy of the Supplier which is available to meet the claim.
7.6 Subject to clause 3, the Supplier shall have no liability for the following types of loss which are hereby wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
7.7 The Supplier has given commitments as to compliance of the Services with the relevant Scope of Works in clause 3. In view of these commitments, the terms implied by sections 11C, 11D and 11E of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.8 This clause 7 shall survive termination of the Contract.
8.1 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:
(a) 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 fourteen days of that party being notified in writing to do so;
(b) 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) 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
(d) 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.
8.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause1(b) to clause 8.1(d) (both inclusive), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
9. Consequences of termination
9.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall return all of the Supplier Equipment and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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.
9.2 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.
9.3 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.
10.1 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.
10.2 Assignation and other dealings
(a) The Supplier may at any time assign, transfer, 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.
(b) The Customer shall not assign, transfer, 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 the Supplier.
10.3 Confidentiality
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, 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, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement
(a) 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.
(b) 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 any innocent or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraudulent misrepresentation.
10.5 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).
10.6 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.
10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract is deleted under this clause 10.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.8 Notices
(a) 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).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; or
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting.
(c) This clause 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.
10.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
10.10 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 Scotland.
10.11 Jurisdiction. Each party irrevocably agrees that the Scottish courts 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.