GENERAL TERMS AND CONDITIONS
The Conditions set out below shall apply to each order placed with the Company for the provision of Services (whether verbal or written) and shall be deemed incorporated into any contract formed by the acceptance of the order by the Company.
In these Conditions:
‘Company’ means SUMO Services Limited and where applicable its assigns and sub-contractors;
‘Conditions’ means these general terms and conditions and incorporates the Quotation and Work Instruction (and in the event of any conflict between them, these Conditions shall prevail);
‘Contract’ means the contract between the Company and the Customer under which the Services are to be supplied by the Company to the Customer incorporating these Conditions;
‘Customer’ means the person, firm or company with whom the Contract is made by the Company, whether directly, or, indirectly through an agent or other intermediary acting on behalf of, or whose actions are ratified by the Customer;
‘Document’ includes, in addition to any written documents, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data;
‘Final Completion’ means the date on which the last representative of the Company leaves the Site following completion of the Services in the case of a Utility Mark-Out Survey or the date of delivery of the drawings in the case of a survey which includes drawings;
‘Force Majeure’ includes war, strikes, weather and other factors beyond the control of the Company:
‘Input Material’ means any Documents or other materials, data or information provided by the Customer relating to the Services;
‘Output Material’ means any Documents or other materials, data or information provided by the Company relating to the Services;
‘Quotation’ means the quotation provided by the Company to the Customer detailing the price for the Services, the attached Work Instruction Form and these Conditions;
‘Services’ means all or any underground detection works, topographical surveys or other surveys and associated works as set out in the Quotation to be provided by the Company to the Customer under the terms of the Contract and any additional services to be provided under clause 3.3;
‘Site’ means the survey area as shown highlighted on the plan in the Quotation or as defined by the Customer on Site before commencement of the Services;
‘Topographical Survey’ means a survey of the topography of the Site as set out in the Quotation;
‘Utility Mark-Out & Record Drawing’ means a non-invasive utility survey of the Site including a drawing record as set out in the Quotation;
‘Utility Mark-out Survey’ means a non-invasive utility survey of the Site as set out in the Quotation;
‘Work Instruction’ means the work instruction attached to the Quotation which details the Services.
In these Conditions references to one gender shall include the others and to the singular shall include the plural and vice versa as the context requires.
2. THESE CONDITIONS
2.1 By placing an order for the provision of Services the Customer is deemed to accept these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 These Conditions as varied from time to time in accordance with Condition 2.3 shall govern and be incorporated in every Contract between the Company and the Customer. They shall prevail over any other terms or conditions contained or referred to in any order placed, or purported to be placed, by the Customer or in any other documentation submitted by the Customer or implied by trade custom, practice or any course of dealing.
2.3 The Contract cannot be cancelled and no variation of the Contract shall be binding or effective unless agreed in writing between an authorised representative of the Company and the Customer subject to Condition 2.4.
2.4 Where additional services are performed by the Company at the Customer’s request whilst on Site, the Customer agrees that the performance of such additional services will be subject to these Conditions and form part of the Contract notwithstanding the provisions of Condition 2.3 above.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. PROVISION OF THE SERVICES
3.1 The Customer shall at its own expense supply the Company with all necessary Input Material and other information relating to the Services within sufficient time to enable the Company to provide the Services in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material.
3.2 The Customer shall, at its own expense, ensure that the Site and access to it is clear and free from any obstacles prior to performance of the Services. The Company may take photographs of the Site and surrounding area prior to commencement of the Services and such photographs shall constitute conclusive evidence of the condition of the Site.
3.3 The Services shall be provided in accordance with the Contract. Where the Customer requests the Company to provide additional services to the Services, the Company reserves the right to refuse to perform such additional services in its absolute discretion. Where the Company agrees to provide such additional services, it reserves the right to charge the Customer for the additional services and such additional services shall be subject to these Conditions which the Customer acknowledges.
3.4 The Company may at any time, without notifying the Customer, make such changes to the Services which it considers necessary to comply with applicable safety or other statutory requirements, or where it would not materially affect the nature or quality of the Services.
3.5 Upon Final Completion of the Services, the Customer shall have seven (7) days, in the case of Services comprising a Utility Mark-Out Survey and, 30 days in the case of Services comprising a Utility Mark-Out & Record Drawing or a Topographical Survey, in which to notify the Company in writing of any problems with the Services. If the Company is not notified in writing of any problems within this time period, the Services performed shall be deemed accepted.
4. CONDITIONS AND WARRANTIES
4.1 The Company warrants that the Services shall be performed with reasonable skill and care according to industry standards, but the Customer accepts the limitations of the accuracy of underground detection technologies and acknowledges that the Services may not achieve 100% detection.
4.2 The Company shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from:-
4.2.1 any Input Material or instructions supplied by the Customer or Statutory Undertakers which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival; or
4.2.2 a failure by the Customer to clear the Site in accordance with Condition 3.2; or
4.2.3 any pipes, conduits, other media or any obstructions placed into the Site following the date of any survey forming part of the Services; or
4.2.4 any other fault of the Customer.
4.3 Any dates specified by the Company for delivery of the Services are an estimate only and time for delivery shall not be made of the essence by notice. If no dates are specified delivery will be within a reasonable time. Subject to these Conditions, the Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, any of the Company’s obligations in relation to the Services, nor shall such delay entitle the Customer to terminate or rescind this Contract unless such delay exceeds 60 days.
4.4 The Company shall not be liable for any breach of the warranty in Condition 4.1 unless the Customer has complied with the provisions of Condition 3.5.
5. LIMITATION OF LIABILITY
The Customer’s attention is in particular drawn to the provisions of Condition 5.4
5.1 The Company limits its liability under the Contract as it is unable to guarantee 100% detection and accuracy when carrying out the Services which the Customer has acknowledged. Therefore subject to Conditions 5.2 and 5.3, Conditions 5.4.1 and 5.4.2 set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement or act or omission (including negligence) arising under or in connection with the provision of the Services and/or the Contract.
5.2 All warranties conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Contract
5.3 Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
5.4 Subject to Conditions 5.2 and 5.3:-
5.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with this Contract and/or the Services shall be limited to the lower of the value of the Contract or £500,000; and
5.4.2 the Company shall not be liable to the Customer for any indirect, special or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise) costs, expenses or other claims or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the provision of the Services and/ or the Contract.
6. INTELLECTUAL PROPERTY
6.1 The property and any copyright or other intellectual property rights in any Input Material shall belong to the Customer.
6.2 The property and any copyright or other intellectual property rights in any Output Material shall, unless otherwise agreed, belong to the Company, subject only to the right of the Customer to use the Output Material for the purposes of utilising the Services.
7.1 The Customer’s purchase order, or the Customer’s acceptance of a Quotation from the Company, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by the Company other than by written acknowledgement issued and executed by the Company, when a contract for the supply and purchase of those Services on these Conditions will be established.
7.2 The Company's catalogues, brochures, leaflets or correspondence are not binding and reasonable variations may be made to the Services without notice and such variations shall be accepted as complying with the Contract.
7.3 The Company reserves the right to refuse to accept any order if the arrangements for payment or the Customer’s credit are unacceptable to the Company for whatever reason and where no credit arrangements are agreed the Company may require the Customer to pay in advance the entire price for the Services.
8.1 The Company reserves the right, on notice to the Customer at any time before delivery, to increase the price for Services to reflect any increase in cost to the Company which is due to any factor beyond its control (such as, foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), or any change in delivery dates, quantities or specifications for the Services requested by the Customer, or any delay caused by the Customer or failure of the Customer to give the Company adequate information or instructions.
8.2 The price for Services is exclusive of any applicable value added tax, which the Customer shall be liable to pay to the Company.
8.3 The price payable for Services shall be specified in the Quotation.
9.1 Payment for all Services shall be made within 30 days from the date of the Company's invoice.
9.2 Without prejudice to the Company’s right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998, interest shall be payable by the Customer to the Company at the rate of 4% APR above Royal Bank of Scotland prevailing base rate, per month or part of it on any sums outstanding from the due date for payment until payment in full is received whether before or after judgment.
10. FORCE MAJEURE
10.1 If performance of the Company’s obligations is delayed or hindered by a Force Majeure event it will as soon as reasonably practicable notify the Customer of the reasons for the delay or hindrance. Failure to give notice will not prevent the Company relying on Condition 10.2 and it will incur no liability for such failure.
10.2 The Company’s duty to perform shall be suspended whilst the Force Majeure event continues and the time for performance shall be extended by a period equal to the duration of the Force Majeure.
11.1 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so.
11.2 If the Customer, in the case of an individual, becomes insolvent, allows the occurrence of any grounds for the presentation of a petition for a Bankruptcy Order made under Part IX, Chapter 1, Insolvency Act 1986 (as may be amended) or shall have a petition for such an order presented against him, or, in the case of a company, becomes insolvent, has an Administrator, Administrative Receiver, or Receiver appointed over all or any part of its assets or they are otherwise possessed or it makes any arrangement with its creditors or goes into liquidation (otherwise than for the purposes of a reconstruction or amalgamation), the Company may cancel all Contracts immediately on written notice (without prejudice to any other right or remedy it may have). Where the Services have already been performed but not paid for, the price shall become immediately payable notwithstanding any other agreement or arrangement to the contrary.
12. ASSIGNMENT & SUB-CONTRACTING
12.1 The Company may assign or otherwise deal with the whole or any part of the Contract or the benefit or burden of it to any third party without the Customer’s consent.
12.2 The Customer may not assign or otherwise deal with the Contract or any part of it without the Company’s prior written consent.
12.3 The Company may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
13.1 Each right or remedy of the Company is without prejudice to any of its other rights or remedies.
13.2 If any provision of the Contract is found to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable by any court, or body of competent jurisdiction it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Nor shall any waiver by the Company of any breach of or any default by the Customer under the Contract be deemed to be a waiver of any subsequent breach or default and will not affect the other terms of the Contract.
13.4 The Contract shall be governed by and construed in accordance with English law and the English courts shall have exclusive jurisdiction.
13.5 Any notice or consent required to be given hereunder shall be in writing and sent by post or recorded delivery to the registered address of the party or the address set out in the Contract. Any notice sent by post shall be deemed to have been served 2 days after posting. In proving service it shall be sufficient to prove that a notice was properly addressed and stamped and put into the post. Any notice delivered by hand shall be deemed to have been served when physically delivered at the relevant address.
13.6 Save as expressly provided for in these Conditions no term of these Conditions or the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any third party.