KITCHEN HYGIENE CLEANING SERVICES LIMITED
TERMS AND CONDITIONS
STANDARD TERMS AND CONDITIONS OF BUSINESS FOR PROVISION OF SERVICES BY KHCS LTD
DEFINITIONS
In these Conditions:
“KHCS”
means Kitchen Hygiene Cleaning Services Limited.
“Customer”
means any party to whom a tender or quotation is addressed or whose order KHCS accepts;
“Contract”
means any contract between KHCS and the Customer for the supply of the Services and the purchase and sale of the Goods supplied under it, to which these terms and conditions shall apply;
“Goods”
means the goods (including any instalment of the goods or any parts for them) which KHCS is to supply to the Customer in accordance with these conditions;
"Services"
means the works and services (including any instalment or parts of them) which KHCS is to supply to the Customer in accordance with these conditions;
“Standard Contract”
means a Contract to perform agreed Services and/or deliver agreed Goods at agreed intervals over a period of not less than 12 calendar months;
“Special Contract”
means any Contract other than a Standard Contract.
1 GENERAL
1.1 All quotations and orders for the supply of Services and/or Goods are placed and accepted by KHCS with the Customer on the following terms and conditions (the “Conditions”) which contain the entire agreement between the parties relating to the subject matter of the Contract. All other Conditions are excluded from the Contract. Any order given the Customer whether or not in respect of a quotation by KHCS shall not be binding on KHCS until accepted in Writing by KHCS on these Conditions. The Customer and KHCS intend that their respective rights, obligations and liabilities as provided for in the Contract, shall be exhaustive of the rights, obligations, and liabilities of each of them to the other, arising out of, under, or in connection with the Contract or the performance of the Services, whether such rights, obligations, and liabilities arise in respect or in consequence of a breach of contract, or of statutory duty, or a tortuous or negligent act or omission which gives rise to a remedy at common law.
1.2 For Standard Contracts, all charges are quoted on the basis that the Contract will continue for a total period of at least one year and no deductions will be allowed in respect of statutory or other holidays. In any Contract KHCS will use reasonable endeavours to provide any specific requested number of operatives, but will not be under and liability for failing to do so.
1.3 All drawings, descriptive matter, specifications and advertising issued by KHCS and any descriptions or illustration (including references to hourly rates and numbers of staff referred to in those descriptions or illustrations) contained in KHCS’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods and/or services described in them. They will not form part of the Contract.
1.4 Save as otherwise provided in these Conditions, any notice to be given under these terms must be in writing or sent by hand, by pre-paid registered or recorded delivery post to the Customer at its last-known business address or in the case of KHCS to its registered office. If sent by hand, it shall be considered to have been received at the time of delivery and, if sent by registered or recorded delivery pre-paid post, it will be considered to have been received forty eight hours after posting.
1.5 If any statement or representation has been made to the Customer by KHCS its employees, servants or agents and the Customer wishes to rely on it, then the Customer must set this out in a document to be attached to or endorsed on the order. KHCS may confirm, reject or clarify the point and submit a new quotation.
2 QUOTATIONS AND ACCEPTANCE
2.1 Any quotation or order assumes the Customer will provide free of charge all necessary lights, power, hot water and other facilities which may be required to enable KHCS to carry out the Services and/or deliver the Goods as well as adequate secure and safe storage facilities for equipment used by KHCS. Where this is not so the Customer shall pay KHCS any additional cost it may incur.
2.2 Quotations may only be accepted within 60 days from the date of quotation and may be withdrawn by KHCS at any time within this period by written notice to the Customer.
2.3 In the absence of any express acceptance of these Conditions by the Customer the making of any progress payment or allowing KHCS staff to enter the site and commence the Services and/or deliver the Goods shall constitute acceptance of these Conditions by the Customer.
3 DETERMINATION/TUPE
3.1 This Contract shall commence on the date on which the Contract is made, or the date on which KHCS commences the supply of Goods and/or Services to the Customer, whichever is the earlier, and shall continue in force until terminated (the “Term”) by either party in accordance with the provisions of this Contract, or until KHCS and the Customer agree that KHCS shall cease the supply of Goods and/or Services under the Contract.
3.2 Either party may terminate a Standard Contract by giving to the other at least six months` written notice at any time on or after six months from the start of the Standard Contract.
3.3 All Contracts shall immediately terminate in the event of insolvency of KHCS which causes the same to cease trading. No claims or counter claims shall be made against KHCS as a result of the aforementioned. Any monies outstanding to KHCS shall not be withheld as a result of ‘immediate termination of Contract’.
3.4 In the case of Special Contracts, the Customer shall have no right to terminate after the start of the Services at and/or first delivery to the Customer`s premises by or on behalf of KHCS without reasonable prior written notice to KHCS. The Customer shall be liable for all costs and expenses, including a contribution to profits and overheads incurred by KHCS in preparation for and in part performance of the Services and/or delivery of the Goods. KHCS shall have the right to terminate any Special Contract by giving to the Customer reasonable prior written notice to terminate.
3.5 The Customer shall on termination of the Contract at KHCS’s option purchase for its fair market value (determined by an independent valuer to be agreed by the parties and in default of agreement, nominated on the application of either party by the President for the time being of The Law Society) any equipment (“Equipment”) owned by KHCS which is used by KHCS for the purpose of providing the Services.
3.6 Within 7 days of the date of termination, the Customer shall pay to KHCS in cleared funds all sums due in accordance with the above provision and upon receipt of cleared funds, KHCS shall transfer title to the Equipment to the Customer.
3.7 The Customer shall indemnify KHCS against any and all liabilities and/or obligations in relation to the Employees who are exclusively engaged by the Customer and or the previous Supplier in performance of the Services and/or delivery of the Goods to the Customer (the "Employees") and who transfer to KHCS under the Transfer Of Undertakings (Protection Of Employment) Regulations 1981 (TUPE), as amended, consolidated, extended or replaced from time to time, whether under TUPE, under a claim for breach of contract, loss of office, unfair dismissal, redundancy, loss of earnings, failure to inform under Regulation 10 of TUPE (and all damages, penalties, awards, legal costs, expenses and other liability incurred by KHCS) or otherwise , which relates to the period prior to KHCS providing the Service and on termination of this Agreement, howsoever arising, or any time thereafter.
4 INSOLVENCY
4.1 If the Customer or any holding company of the Customer or the client of the Customer who is the ultimate recipient of the Services becomes bankrupt or deemed to be unable to pay its debts for the purpose of section 123 of the Insolvency Act 1986, or shall compound with its creditors, or if a resolution shall be passed or proceedings shall be commenced for the administration or liquidation of the Customer (other than a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a receiver or manager is appointed of all or any of its assets or undertaking, KHCS will be entitled immediately to cancel any Contract in whole or in part by giving written notice to the Customer. This will not affect any other right or remedy available to KHCS.
5 CHARGES AND PAYMENT
5.1 All charges under this Contract are fixed save that in the event of a rise in wages or other costs of operation caused by changes in employment or other legislation (or interpretation of the same) or other external circumstances outside KHCS’ control, KHCS shall be entitled to an increase in the monthly charges for the Contract by giving one month’s notice to the Customer.
5.2 In the event of extensions, modifications or alterations taking place to the premises to be cleaned after submission of a quotation KHCS shall be entitled to review and increase or reduce the charges appropriately.
5.3 The terms of payment shall be as stated at the foot of any quotation. In the absence of such a term, payment will be due 30 days from the date of invoice.
5.4 Time for payment by the Customer will be of the essence and in the event of default by the Customer; KHCS shall be at liberty to cease work and to remove all materials, tools and equipment belonging to it by giving notice in writing to the Customer. Interest on any outstanding sums will be payable (both before and after judgement/arbitration award) to KHCS at the rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1998 and to recover all and any costs incurred by it (including costs, fees and disbursements of any outside agency and/or legal fees) in collecting any monies due. This will not affect any other right or remedy available to KHCS.
5.5 Any queries or disputes relating to the invoice must be submitted in writing to KHCS within 14 days from the date of invoice. After the expiry of 14 days the invoice will be considered to have been accepted without query or dispute and the full value of the invoice will be payable as provided in 5.4 above. Where any query is raised within 14 days of the date of the invoice, the Customer shall remain liable to pay any undisputed part of the invoice in accordance with these Conditions.
5.6 Where the Customer requests copies of documents that have previously been submitted to the Customer by KHCS, KHCS may require the Customer to pay its reasonable administration and copying fees incurred in supplying further copy documents.
5.7 The charges shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance for the Services and/or Goods, all of which amounts the Buyer will pay in addition when it is due to pay
5.8 All payments payable to KHCS under the Contract shall become due immediately upon termination of this Contract despite any other provision.
5.9 The Customer may not withhold payment or other amount due to KHCS by reason of any ‘right of setoff’ or counterclaim which you may have or allege to have or for any other reason whatsoever.
6 OBLIGATIONS OF KHCS
6.1 KHCS will:
[a] provide the Services and/or Goods in accordance with the requirements of the Contract;
and
[b] keep in force policies of insurance covering employer’s liability and public liability. Copies of the relevant certificates are available on written request by the Customer from KHCS.
7 OBLIGATIONS OF THE CUSTOMER: All Contracts
7.1 The Customer shall:
(a) Pay the contractual charges and other sums due in accordance with the terms of payment mentioned in clause 5 above and shall provide all necessary access and where practicable the facilities and accommodation referred to in clause 2.1 above.
(b) Take all reasonable precautions to ensure the safety of KHCS employees, servants or agents whilst such persons are carrying out the Services on and/or delivering the Goods to the Customer’s premises and in particular will: -
(i) Ensure that all electrical equipment on which or in the vicinity of which KHCS employees, servants or agents are at work, is safe, adequately maintained and switched off prior to any activity by such persons;
(ii) Comply with its duties under sections 3 and 4 of the Health & Safety at Work etc. Act 1974 as if it were the employer of KHCS’ employees, servants and agents;
(iii) Comply with all health and safety regulations and requirements in force.
(c) Unless otherwise agreed in writing by KHCS or effected by operation of the Transfer of Undertakings (Protection of Employment) Regulations 1991 (as amended)) not during the course of any Contract and for a period of 6 months after its termination offer or seek to offer employment or any contract for services to any person who at any time during the course of any Contract was engaged by KHCS to work at the Customer’s premises.
(d) Immediately communicate any special instructions to KHCS. Any specific complaint regarding KHCS’s performance under any Standard Contract must be communicated in writing within 5 days of the Services in question being carried out and/or Goods in question being delivered.
(e) Not claim ownership of any Equipment or materials used in the provisions of the Services and/or supply of Goods under any circumstances save in the case where KHCS specifically sells such Equipment or materials to the Customer.
8 CONTRACTS OTHER THAN “STANDARD CONTRACTS”
8.1 In the case of a Special Contract the Customer must inspect the Services and/or Goods immediately upon completion and/or delivery (as appropriate) and shall ensure that a duly authorised employee of the Customer is available to sign a satisfaction note or to inform KHCS of any reasonable and proper complaint which KHCS will then remedy. If the Customer fails to ensure that a duly authorised employee is available to sign the satisfaction note or to inform KHCS in writing of any reasonable and proper complaint, the performance of the Services and/or delivery of the Goods will be deemed to have been carried out to the satisfaction of the Customer.
9 GUARANTEE OF WORKS
9.1 Subject to these Conditions, sections 13 to 15 of the Supply of Goods and Services Act 1982 are to be implied into the Contract.
9.2 If the performance of the Services is such that it may (subject to these Conditions) entitle the Customer to claim damages or to repudiate the Contract the Customer shall not then do so but shall first ask and give KHCS reasonable time to rectify the alleged defective Services.
9.3 KHCS may at its option rectify the defective Services free of cost and within a reasonable time or repay the charges(s) of the item(s) of Services for which the complaint is made. If KHCS does rectify the Services or repays, the Customer shall be bound to accept the same and KHCS shall be under no further liability in respect of any loss or damage whatsoever arising from the initial performance of the defective Services or from the delay before the defective Services were rectified or the repayment is made and for the avoidance of any doubt clause 12 below shall apply.
10 SUPPLY OF GOODS
10.1 Where KHCS supplies Goods (whether or not as part of the Services) all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from these Conditions.
10.2 Any such Goods are at the risk of the Customer from the time of delivery.
10.3 Ownership of the Goods shall not pass to the Customer until KHCS has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to KHCS from the Customer on any account.
10.4 Until ownership of the Goods has passed to the Customer, the Customer must:
10.4.1 hold the Goods on a fiduciary basis as KHCS’s bailee:
10.4.2 store the Goods (at no cost to KHCS) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as KHCS’s property;
10.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
10.4.4 maintain the Goods in satisfactory condition and keep them insured on the KHCS’s behalf for their full price against all risks to the reasonable satisfaction of KHCS. On request the Customer shall produce the policy of insurance to KHCS; and
10.4.5 hold the proceeds of the insurance referred to in condition 11.3.4 on trust for KHCS and not mix them with any other money, nor pay the proceeds into an overdrawn bank account
10.4.6 not resell the Goods
11 LIABILITY
11.1 The following provisions set out KHCS’s entire liability (including any liability for the acts and omissions of its staff, employees, agents and/or sub-contractors) to the Customer including (but not limited to) any breach of its contractual obligations arising under the Contract; and any representation statement or tortuous act or omission including negligence arising under or in connection with the Contract (each an “Event of Default”).
11.2 KHCS’s liability to the Customer for fraudulent misrepresentation and for death or injury resulting from its own orthat of its employees’ negligence shall (save as provided in clause 12.8 below) not be limited or excluded.
11.3 Subject to Clause 11.2 above, the Customer acknowledges that KHCS shall not be liable to the Customer in respect of damage to the property of the Customer howsoever arising (and in particular which arises from the breaking or disintegration during provision of the Services by KHCS’ employees of any cracked, defective or broken part or fixtures and fittings of the property of the Customer) save where KHCS and or its employees are found to be negligent and where a court or tribunal of competent jurisdiction shall hold KHCS legally liable for the same.
11.4 Subject to the provisions of Clause 11.3 above KHCS’s entire liability under the Contract shall be limited (a) in the case of any liability in relation to any Goods to the cost of the Goods; (b) in the case of any liability in relation to Services to re-performing the Services (or if KHCS elects, to paying an amount equal to the cost of re-performing the Services); (c) any liability for damages shall be limited to total amount payable to KHCS under the Contract during a 12 month period or (if lower) an amount equal to £1,000,000 in aggregate.
11.5 Subject to Clause 11.2 above KHCS shall not be liable to the Customer in respect of any Event of Default for loss of actual or anticipated profits or savings, loss of contract, loss of business or economic loss, loss of goodwill, punitive, indirect, incidental or consequential damages, loss of income, loss of business opportunities or loss of, damage to or corruption of data or any type of punitive, special, indirect or consequential loss, damages due under penalty clauses, wasted expenditure or cost of mitigation (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if, in any such case, such loss was reasonably foreseeable or KHCS had been advised of the possibility of the Customer incurring the same.
11.6 Except in the case of an Event of Default arising under Clause 11.2 above KHCS shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of the same upon KHCS in accordance with these Conditions.
11.7 KHCS assumes no liability for any loss or damage suffered or incurred by the Customer resulting from a KHCS employee’s loss of entrusted key(s) other than the costs of reproducing the lost key(s).
11.8 Under no circumstances whatsoever shall KHCS be liable for the acts or neglect of its employees, servants or agents which fall outside the duties expressly assigned to them by KHCS. The Customer must not give instructions to or request Services and/or Goods to be supplied by KHCS other than to the person(s) duly appointed by KHCS to receive instructions from the Customer from time to time.
11.9 The Customer shall indemnify KHCS in respect of any loss or damage suffered by KHCS (including all costs and expenses, including if appropriate a contribution to lost profits and overheads incurred by KHCS) which arises: as a result of any breach or default by the Customer in its obligations under any Contract with KHCS; as a result of the Customer’s negligence; as a result of the performance by KHCS of its obligations under any Contract with the Customer; or as a result of the termination of any Contract between KHCS and the Customer, however it arises.
12 FORCE MAJEURE
12.1 KHCS shall not be responsible for any delay or failure to fulfil any of its obligations nor be liable for any loss or damage suffered or incurred by the Customer by reason of any delay in the performance of the contracted Services and/or delivery of the contracted Goods caused directly or indirectly by any Act of God, war, government or parliamentary restriction, import or export regulation, strike, lockout, shortage of labour, trade dispute, fire, flooding, act of terrorism, breakdown of plant or premises or other supplies or any other cause whatsoever beyond the control of KHCS or beyond the control of any supplier to or subcontractor of KHCS.
13 VARIATIONS
13.1 No variation to any Contract requested by the Customer shall be binding on KHCS unless agreed by KHCS and the Customer in writing. As part of such variation the charges shall be accordingly increased or decreased.
13.2 If KHCS agrees to any such variation, any dates quoted for completion of the Services and/or delivery of the Goods shall be extended accordingly.
14 CONFIDENTIALITY
14.1 The Customer shall keep confidential and not disclose to any third party any information which it has acquired from KHCS as a result of discussions, negotiations and other communications in connection with the provision of the Services and/or delivery of the Goods ("Confidential Information") and under no circumstance shall the Customer use any Confidential Information for commercial benefit either of the Customer and/or its subsidiaries or affiliates or any of its directors or senior management or any connected persons of any of its directors or senior management.
14.2 The provisions of clause 14.1 shall not apply to the whole or any part of the Confidential Information to the extent that it is trivial or obvious; already in the Customer’s possession other than as a result of a breach of this clause by the Customer; in the public domain, otherwise than as a result of a breach of this Clause by the Customer; or required to be disclosed by law or by lawful authority.
15 GENERAL
15.1 If any term of any Contract with KHCS (or any part) shall be nullified or made void by any statute, regulation or order or by the decision or order of any Court having jurisdiction, the remainder of the Contract shall remain in full force and effect.
15.2 The Customer shall not be entitled to assign or sub-contract any of its rights or obligations under any Contract without prior written consent of KHCS. KHCS may assign and subcontract its rights and obligations under any Contract without the consent of the Customer.
15.3 A person who is not a party to this Contract shall have no rights pursuant to the Contracts (Rights of Third Parties Act) 1999 (the “Act”) to enforce any term of the Contract. Any right or remedy of a third party which exists or is available apart from the Act is not affected.
15.4 Nothing in this Contract or in any antecedent negotiations or proposals is intended to or shall operate to create a partnership or joint venture of any kind between the parties or any of them, or to authorise either party to act as agent for the other, and neither party shall have 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).
15.5 The waiver by either party of a breach or default of any of the provisions of the Contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have under the Contract operate as a waiver of any breach or default by the other party.
16 DISPUTES AND GOVERNING LAW
16.1 In the event of any dispute arising between the parties in connection with the Contract which cannot be settled by negotiation, the parties will in good faith, seek to resolve that dispute through mediation. The mediator shall be agreed upon between the parties within 14 days of one party requesting mediation, failing which the mediator shall be appointed by the then President of the Law Society of England and Wales. Unless otherwise agreed the parties shall share equally the costs of the mediation. If the dispute is not resolved within [30] days, or one of the parties refuses to participate in mediation, the dispute may be referred to arbitration and shall be determined inaccordance with the Arbitration Act 1996 by a single arbitrator appointed by mutual agreement or where there is no mutual agreement within 14 days nominated on the application of either party by the President of the Chartered Institute of Arbitrators. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary to prevent irreparable damage.
16.2 This Contract will be governed by and construed in accordance with the laws of England and Wales and any disputes shall be subject to the non-exclusive jurisdiction of the Courts of England and Wales.