Terms of Business.
Application and entire agreement
- 1. These Terms and Conditions apply to the provision of the services detailed in our quotation (Services) by Amalgamated Facilities Management Ltd (we or us) to the organisation or person buying the services (you).
- 2. You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us.
- 3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 4. A ‘business day’ means any day other than a Saturday, Sunday or bank holiday.
- 5. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
- 6. Words imparting the singular number shall include the plural and vice-versa.
- 7. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification, in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
- 8. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation. However, time shall not be of the essence in the performance of our obligations.
- 9. All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
- 10. You must obtain any permissions, consents, licences or otherwise that we need and must give us access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.
- 11. If you do not comply with Clause 10, we can terminate the Services and seek to recover any outstanding fees.
- 12. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your Obligations).
- 13. The fees (Fees) for the Services are set out in the quotation and are on a time and materials basis.
- 14. In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials not specified in our quotation required for the provision of the Services.
- 15. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our current applicable rates in effect at the time of performance or such other rate as may be agreed between us. The provisions of clause 14 also apply to these additional services.
- 16. The Fees are inclusive of any (GST and other) taxes or levies which are imposed or charged by any competent authority.
Cancellation and Amendment
- 17. We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, within a period of (60) days from the date of the quotation, (unless the quotation has been withdrawn).
- 18. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation.
- 19. If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.
- 20. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party’s control), we have to make any changes in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.
- 21. We will invoice you for payment of the Fees either:
- a. When we have completed the Services; or
- b. On the invoice dates set out in the quotation.
- 22. You must pay the Fees due within 30 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us.
- 23. Time for payment will be of the essence of the Contract.
- 24. Without limiting any right of remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 5% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
- 25. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with you.
- 26. Receipts for payment will be issued by us only at your request.
- 27. All payments must be made in Sterling unless otherwise agreed in writing between us.
Sub-Contracting and Assignment
- 28. We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.
- 29. You must not, without prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Condition.
- 30. We can terminate the provision of the Services immediately if you:
- a. Commit a material breach of your obligations under these Terms and Conditions; or
- b. Fail to make payment of any amount due under the Contract on the date due for payment; or
- c. Are, or become, or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
- d. Convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder, a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
- 31. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
Liability and Indemnity
- 32. Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this clause.
- 33. The total amount of our liability is limited to the total Fees payable by you under the Contract.
- 34. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for:
- a. Any indirect, special or consequential loss, damage, costs, or expenses; or
- b. Any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or
- c. Any failure to perform any of our obligations if such delay or failure is due to any cause beyond our control; or
- d. Any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or
- e. Any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.
35. You must indemnify us against all damages, personal injury, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including belonging to third parties) caused by you or your agents or employees.
36. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
- 37. Confidential information means all information (however recorded or preserved) held by [COUNTERPARTY] in its office or business, including but not limited to any information that would be regarded as confidential by a reasonable business person relating to:
- (i) the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the [COUNTERPARTY] (or of any member of the group of companies to which [COUNTERPARTY belongs or any client thereof]; and
- (ii) the operations, processes, product information, know-how, designs, trade secrets or software of [COUNTERPARTY] (or of any member of the group of companies to which [COUNTERPARTY] belongs);
Representatives means, in relation to a party, its employees, officers, representatives and advisers.
- 1.2 The provisions of this clause shall not apply to any Confidential Information that:
- (a) is or becomes generally available to the public (other than as a result of its disclosure by AFM or its Representatives in breach of this clause);
- (b) was available to AFM on a non-confidential basis before disclosure by the disclosing party;
- (c) was, is or becomes available to AFM on a non-confidential basis from a person who, to AFM's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to AFM.
- 1.3 AFM shall keep [COUNTERPARTY'S] Confidential Information confidential and shall not use or disclose such Confidential Information in whole or in part to any third party.
- 1.4 AFM may disclose the [COUNTERPARTY'S] Confidential Information to those of its Representatives who need to know such Confidential Information for the purposes of providing AFM's services to [COUNTERPARTY], provided that:
- (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
- (b) it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to this agreement,
- and at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this clause 37.
- 1.5 AFM may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives [COUNTERPARTY] as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 1.5, it takes into account the reasonable requests of [COUNTERPARTY] in relation to the content of such disclosure.
- 1.6 The provisions of this clause 1 shall continue to apply after termination of this agreement.
Circumstances beyond a party’s control
- 38. Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, we may terminate or cancel the Services to be carried out under these Terms and Conditions.
- 39. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
- 40. Notices shall be deemed to have been duly given:
- a. When delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
- b. When sent, if transmitted by fax or email and a successful transmission report or return receipt is generated:
- c. On the fifth business day following mailing, if mailed by national ordinary mail; or
- d. On the tenth business day following mailing, if mailed by airmail.
- 41. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
- 42. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other right or remedy nor stop further exercise of any right or remedy.
- 43. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which shall remain valid and enforceable).
Law and Jurisdiction
- 44. These Terms and Conditions are governed by and interpreted (based on the jurisdiction of the works) according to Guernsey / Jersey law. All disputes arising under these Terms and Conditions are subject to the exclusive jurisdiction of the Guernsey / Jersey courts.