Supply of Services Agreement
a. Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
b. Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 5;
c. Customer: the person or firm who purchases Services from the Supplier;
d. Conditions: these terms and conditions as amended from time to time in accordance with Clause 12.2;
e. Contract: the contract between the Supplier and the Customer for the supply of Services;
f. Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998;
g. GDPR: General Data Protection Regulation ((EU) 2016/679);
h. Order: the Customer’s order for Services as set out in the Work Request Form;
i. Service Acceptance Form: the form to be signed by the Customer to indicate approval that a Service has been completed.
j. Services: the services supplied by the Supplier to the Customer as set out in the Work Request Form;
k. Supplier: Nu-Brite Limited, registered in England with company number 06798285;
l. Work Request Form: the form to be completed by either party detailing the Services requested by the Customer, delivery schedules and the Charges.
a. 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.
b. 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.
c. A reference to writing or written includes fax [and email
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with this Contract. The Order shall be deemed to be accepted when the Customer communicates acceptance of the Order at which point the Contract comes into effect (Commencement Date).
2.2 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.
3. SUPPLY OF SERVICES
3.1 The Supplier shall use its reasonable endeavours to supply the Services in accordance with this Contract.
3.2 The Supplier shall use reasonable endeavours to provide the Services from the date specified in the Contract but the Customer accepts that any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of the Contract.
3.3 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Work Request Form, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of the Contract. If no performance dates are so specified, the Supplier shall perform the Services within a reasonable time.
3.4 The Supplier shall use reasonable endeavours to observe, all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under Clause 4.1(e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER OBLIGATIONS
4.1 The Customer shall:
a. co-operate with the Supplier in all matters relating to the Services;
b. ensure that the Customer’s premises, development homes and/or show homes are in a fit state as required by the Supplier for the Services to be carried out. The Supplier reserves the right to refuse to provide a Service, and to charge the Customer at a rate of £60.00 per hour for any attendance at the Customer’s premises, where the Supplier deems the Customer’s premises, development homes and/or show homes to not be in a fit state;
c. provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, waste disposal areas, development homes, office accommodation, data and other facilities as required by the Supplier or any of them, and where requested by any of them, with the tools, keys, codes, permissions, instructions, maps, plans and processes required to gain access to the same. The Customer shall also inform the Supplier immediately of any changes implemented by the Customer regarding how the Supplier, its agents, subcontractors, consultants and employees, access the Customer’s premises, development homes, show homes, office accommodation, data and other facilities;
d. provide, in a timely manner, such information as requested by the Supplier for the delivery of the Services, and ensure that it is accurate in all material respects. The Supplier reserves the right to refuse to provide a Service, and to charge the Customer at a rate of £60.00 per hour for any attendance at the Customer’s premises, where the information provided by the Customer is inaccurate;
e. inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises or development homes;
f. keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier’s Equipment) in good condition from time to time and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;
g. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment and the use of the Customer’s equipment in relation to the Supplier’s Equipment, in all cases before the date on which the Services are to start;
h. upon completion of the Services (as recorded by the Supplier), complete a Service Acceptance Form (via the Supplier’s on-line Customer App or Portal, or as otherwise instructed by the Supplier) and return it to the Supplier within 24 hours of the time of completion (as recorded by the Supplier) of the Service. During the 24 hour period the Customer may raise a service dispute with the Supplier, and the Supplier shall immediately investigate the dispute. If the Supplier, at its discretion, agrees that the dispute raised requires rectification, the Supplier shall perform the rectification and resubmit the Service Acceptance Form. If the Supplier, following investigation, disagrees with a dispute, it shall provide its reasons for disagreement and the Supplier’s decision shall be final and the Original Service Acceptance Form submitted to the Customer shall remain valid. In the event of the Customer’s failure to comply with this Clause 4.1(h), unless a valid dispute has been raised and the Supplier accepts that the dispute requires rectification, the Supplier reserves the right to require payment for the Services in accordance with Clause 5 (Charges and Payment) upon the lapse of 24 hours from the time of completion of the Service;
i. provide the Supplier with no less than 14 days’ written notice of any changes which are required to the cleaning schedule or window cleaning schedule (as previously agreed by the parties in a Work Request Form) which have the result of reducing the cleaning schedule or window cleaning schedule; and
j. provide the Supplier with no less than 2 Business Days’ written notice of any changes which are required to the cleaning schedule or window cleaning schedule (as previously agreed by the parties in a Work Request Form) which have the result of increasing the cleaning schedule or window cleaning schedule.
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 4.2; and
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.
5. CHARGES AND PAYMENT
5.1 In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with this Clause 5. The Charges shall be paid in pounds sterling, unless otherwise specified in the Contract.
5.2 Unless otherwise agreed, the Supplier shall invoice the Charges to the Customer on the final Business Day of the month in which the Service has been delivered.
5.3 The parties agree that the Supplier may review and increase the Charges, provided that such charges cannot be increased more than once in any 12-month period. The Supplier shall give the Customer written notice of any such increase 2 months before the proposed date of that increase.
5.4 The Customer shall reimburse to the Supplier, in addition to the Charges, the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably and properly incurred by the Supplier’s employees, subcontractors and agents in the provision of the Services. The Supplier shall submit its invoices for expenses to the Customer monthly in arrears.
5.5 The Customer shall pay each invoice which is properly due and submitted to it by the Supplier, within 28 days of receipt, to a bank account nominated in writing by the Supplier.
5.6 All amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable for the time being (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 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date:
a. the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
b. the Supplier may suspend all Services under the Contract until payment has been made in full.
5.8 All sums payable to the Supplier under this Contract shall become due immediately on its termination, despite any other provision. This paragraph 5.8 is without prejudice to any right to claim for interest under the law, or any such right under this Contract.
5.9 All amounts due under this 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 (The Customer is advised to read this Clause 6 carefully.)
6.1 Nothing in this Contract shall limit or exclude the Supplier’s or the Customer’s liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b. fraud or fraudulent misrepresentation; or
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
6.2 Subject to Clause 6.1, the Supplier 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 this Contract for loss of profits, loss of reputation, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill, loss of use or corruption of software, data or information and any indirect or consequential loss.
6.3 Subject to Clauses 6.1 and 6.2, the Supplier’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 total Charges paid under the Contract.
6.4 This Clause 6 shall survive termination of the Contract.
7. TERMINATION OF CONTRACT
7.1 Without affecting any other right or remedy available to it, the Supplier may terminate this Contract with immediate effect by giving notice to the Customer if:
a. the Customer fails to submit a completed Service Acceptance Form to the Supplier in accordance with paragraph 4.1(h);
b. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
c. the Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
d. the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
e. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
f. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
g. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
h. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company);
i. the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
j. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
k. the Customer (being an individual) is the subject of a bankruptcy petition or order;
l. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
m. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 7.1(e) to 8.1(m) (inclusive);
n. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
o. the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;
p. there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010);
7.2 For the purposes of clause 8.1.3, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Supplier would otherwise derive from:
a. a substantial portion of the Contract; or
b. any of the obligations set out in the following Clauses of the Contract: Clause 4, Clause 5.1, Clause 5.5;
over the term of the Contract. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
8. CONSEQUENCES OF TERMINATION
8.1 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;
b. the Customer shall return all of the Supplier Equipment. 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;
c. any rights, remedies, obligations or liabilities of the Supplier 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 shall not be affected; and
d. the following clauses shall continue in force: Clause 1 (Interpretation), Clause 6 (Limitation of liability), Clause 8 (Consequences of termination), Clause 11 (Confidentiality) and Clause 12.11 (Governing law and jurisdiction).
9. DATA PROTECTION
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of Clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of Clause 9.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
a. process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
b. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
d. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
ii. the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
iii. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
e. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f. notify the Customer without undue delay on becoming aware of a Personal Data breach;
g. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
h. maintain complete and accurate records and information to demonstrate its compliance with this Clause 9.
9.5 Either party may, at any time on not less than 30 days’ notice, revise this Clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
10. FORCE MAJEURE
10.1 Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. Where one party becomes aware of a force majeure event arising, that party shall immediately notify the other. If the period of delay or non-performance continues for more than 30 days, the party not affected may immediately terminate the affected Contract without liability by providing written notice to the other party.
11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five 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 11.2.
11.2 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 11; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.1 Conflict: If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
12.2 Variation: No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.3 Waiver: No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.4 Rights and remedies: Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
12.5 Severance: If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
12.6 Entire Agreement: This agreement 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. Each party acknowledges that in entering into this agreement 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
12.7 Assignment: The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
12.8 No partnership or agency: Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.9 Third party rights: This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
12.10 Notices: Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Contract. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
12.11 Governing Law and Jurisdiction: This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims.