The customer’s attention is drawn in particular to the provisions of clause 16.
In these terms and conditions the rules of interpretation set out in clause 27 shall apply.
2. Basis of contract.
2.1 These terms and conditions (Conditions) (as amended in accordance with clause 22) 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.
2.2 The Order Form constitutes an offer by the Customer to purchase the Equipment and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order Form and any applicable Specification submitted by the Customer are complete and accurate.
2.3 In the event of a subsequent order of additional Equipment and/or Services, without the Customer completing an Order Form, then these terms and conditions shall apply to such orders.
2.4 In the event of any conflict between these Conditions and Direct Debit mandate form then the following shall apply, in the following order: Direct Debit mandate and these Conditions.
2.5 The Order Form shall be deemed to be accepted when signed by the Customer and, the earlier of, Thirsty Work:
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 Any samples, drawings or advertising produced by Thirsty Work and any illustrations contained in Thirsty Work’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.
Supply of Equipment Conditions.
3. Equipment & Installation Equipment.
3.1 The Equipment shall be as described in Thirsty Work’s catalogue. The Equipment shall be fit for the purpose set out in any corresponding Specification. Equipment cannot be adapted by Thirsty Work, or used for any purpose other than its intended Specification, and Thirsty Work cannot be held liable for any liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Customer as a result of the Equipment being used other than intended Specification, or modified or adapted by the Customer.
3.2 Where the Equipment requires installation at the location set out in the Order Form (Customer’s Location) and this work is being carried out by Thirsty Work as part of the Services (Installation Services), then the Order Form shall set out any equipment required by Thirsty Work to carry out the Installation Services (Installation Equipment).
3.3 Thirsty Work reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Thirsty Work shall notify the Customer in any such event.
4.1 Thirsty Work shall ensure that:
4.2 Thirsty Work shall deliver the Equipment to the Customer’s Location on the delivery date set out in the Order Form, or if no such date can be agreed at the point the Contract comes into existence (due to Equipment being subject to purchase or manufacturing) at such date and at such time as Thirsty Work shall agree with the Customer in writing.
4.3 Delivery of the Equipment is completed on the completion of unloading of the Equipment at the Customer’s Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If Thirsty Work fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. Thirsty Work shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a an event, circumstance or cause beyond a party’s reasonable control (Force Majeure Event) or the Customer’s failure to provide Thirsty Work with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
4.5 If the Customer fails to take delivery of the Equipment on the dates set out in the Order Form, or as subsequently agreed between the Customer and Thirsty Work in accordance with clause 4.2 then, except where such failure or delay is caused by a Force Majeure Event or Thirsty Work’s failure to comply with its obligations under the Contract in respect of the Equipment, Thirsty Work shall store the Equipment until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If ten days, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business (Business Days), after the day on which Thirsty Work notified the Customer that the Equipment were ready for delivery the Customer has not taken actual delivery of them, Thirsty Work may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.
4.7 Thirsty Work may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Thirsty Work warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period) the Equipment shall:
5.2 Subject to clause 12.2, if:
Thirsty Work shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full.
6. Title and risk.
6.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
6.2 Title to the Equipment shall not pass to the Customer until Thirsty Work receives payment in full (in cash or cleared funds) for the Equipment and any other Equipment that Thirsty Work has supplied to the Customer in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums.
6.3 Until title to the Equipment has passed to the Customer, the Customer shall:
6.4 Subject to clause 6.5, the Customer may use the Equipment in the ordinary course of its business (but not otherwise) before Thirsty Work receives payment for the Equipment. However, if the Customer resells the Equipment before that time:
6.5 At any time before title to the Equipment passes to the Customer, Thirsty Work may:
7. Inspection of the Equipment.
7.1 Where Thirsty Work are to provide, in accordance with the Services set out in the Order Form, servicing or maintenance of the Customer’s Equipment (Customer Equipment Inspection Services) then the provisions of this clause 7 shall apply.
7.2 Inspection. On such date as is set out in the Order Form, or subsequently agreed between the Customer and Thirsty Work, and upon payment by the Customer of the fees chargeable by Thirsty Work for such inspection services (Inspection Fee), Thirsty Work shall carry out an inspection of the Customer’s Equipment to determine whether or not, at the time of inspection, Thirsty Work are agreeable to providing their Maintenance Services.
7.3 Thirsty Work may provide a quotation in accordance with clause 7.2 to the Customer for the work and parts required to repair or maintain the Equipment.
7.4 Acceptance of quotation. If the Customer accepts the quotation referred to in clause 7.3, Thirsty Work shall carry out the work in accordance with the quotation, to the standard set out in clause 15. Upon completion of the work it shall submit its invoice for the work and upon payment of such invoice.
7.5 Thirsty Work shall be under no obligation to provide any Maintenance Services (as defined below) in respect of the Customer’s Equipment that has either (a) not been repaired or maintained in accordance with this clause 7, or (b) where the Customer’s Equipment fails or continue to fails and is not, at any time and at the discretion of Thirsty Work, economically viable to provide any such Maintenance Services on.
8. Term for Maintenance Services.
8.1 The Maintenance Services shall be provided from the maintenance start date set out in the Order Form (Maintenance Start Date) for a period as specified in the Order Form or as agreed between Thirsty Work and Customer (Initial Term) and shall automatically renew for the period as detailed in the Order Form (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 3 months before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be. The Initial Term together with all Extended Terms being referred to herein as the “Term”.
8.2 Thirsty Work may cease to supply any Maintenance Services if at any time the Equipment and/or Customer’s Equipment is subject to any of the Excluded Causes set out in clause 11.
9. Thirsty Work’s obligations.
9.1 Supply of Services. During the Term, Thirsty Work shall supply the Services to the Customer. The Services shall be provided in respect of the Equipment and/or the Customer’s Equipment, and as set out in the Order Form.
9.2 Thirsty Work’s representative. A representative of Thirsty Work shall attend the Customer’s Location at such frequency as is reasonably determined by Thirsty Work (and set out in the Order Form) to (a) test that the Equipment and/or Customer’s Equipment (as applicable) is suitable, (b) make any adjustments as may be required, acting in its reasonable discretion, and (c) replacing any Consumables that require replacing (Routine Maintenance). Thirsty Work’s representative shall perform the Routine Maintenance during the period from 9.00 am to 5.00 pm on any Business Day (Business Hours) at such times as may be agreed in advance between the Customer and Thirsty Work from time to time.
9.3 Equipment malfunction. If Thirsty Work’s representative discovers that the Equipment and/or Customer’s Equipment is defective or is malfunctioning or has failed during the course of the Routine Maintenance the representative will use all reasonable endeavours to repair it during that visit at the Location. If that is not reasonably practicable (or it is not reasonably practicable to do so during Business Hours) Thirsty Work’s representative may either arrange for a further visit to the Location within Business Hours to complete the repair, or arrange for the removal of the Equipment (or part of the Equipment, if applicable) for repair off-site providing a quotation in accordance with clause 7.3 and carrying out works, if required by the Customer, in accordance with clause 7.4.
9.4 Corrective Maintenance. On the Customer informing Thirsty Work that the Equipment is defective or is malfunctioning or has failed, Thirsty Work shall, provided that the Customer makes such notification as soon as it becomes aware of the same in accordance with clause 12.1(b), use all reasonable endeavours to ensure that one of its representatives shall:
9.5 Emergency Maintenance. On the Customer informing Thirsty Work that the Equipment is defective or is malfunctioning or has failed and requires repair outside of Business Hours, Thirsty Work shall, provided that the Customer makes such notification as soon as it becomes aware of the same in accordance with clause 12.1(b)use all reasonable endeavours to ensure that one of its representatives shall:
9.6 Further site visits or repair off-site. Where it is not reasonably practicable for Thirsty Work’s representative to complete Corrective Maintenance or Emergency Maintenance at the Customer’s Location on their first visit Thirsty Work’s representative shall either arrange for a further visit to the Customer’s Location within Business Hours to complete the repair, or arrange for the removal of the Equipment and/or Customer’s Equipment (or part of the equipment, if applicable) for repair off-site.
9.7 Liability for delay if Customer refuses off-site repair. Thirsty Work shall not be liable for any delay in providing Maintenance Services if in Thirsty Work’s reasonable opinion it needs to remove the Equipment and/or Customer’s Equipment (or part of the equipment, if applicable) for repair off-site and the Customer refuses this request.
10. Spare Parts & Consumables.
10.1 Supply of Spare Parts and Consumables. Thirsty Work may supply and fit such spare components and subassemblies (Spare Parts) and non-durable items used in the operation of the Equipment and/or Customer’s Equipment (Consumables) as part of the provision of the Maintenance Services.
10.2 Where the Order Form includes a Spare Parts & Consumables package, such Spare Parts and Consumables will be provided within this package charge and no extra charge will be made. Where the Customer does not purchase a Spare Parts & Consumables package, then Thirsty Work shall invoice for all Spare Parts and Consumables that are required by it in performance of the Maintenance Services. Thirsty Work shall not be required to obtain the Customer’s prior consent to any Spare Parts and Consumables that are supplied for a cost of less than £150.00 + VAT, but shall obtain consent for any Spare Parts and Consumables that are in excess of this amount, unless otherwise agreed.
10.3 The Spare Parts & Consumables package is subject to small components and subassemblies and shall not cover any Spare Parts that cost in excess of £75 + VAT, which are charged in addition.
10.4 Quality of Spare Parts and Consumables and transfer of title in Spare Parts and Consumables. All Spare Parts shall be either new, or reconditioned or reassembled Spare Parts which are equivalent to new Spare Parts in performance. All Consumables shall be new. Thirsty Work will transfer to the Customer, with full title guarantee and free from all third party rights, all the Spare Parts and Consumables that it provides to the Customer, and the Spare Parts and Consumables shall become part of the Equipment and/or Customer’s Equipment upon their installation.
11. Excluded maintenance.
11.1 No obligation to perform Excluded Maintenance. Thirsty Work is not obliged to perform any Maintenance Services required to restore any defect or malfunctioning or failure in the Equipment where the defect or malfunctioning or failure results from or is caused by any of the Excluded Causes (Excluded Maintenance).
11.2 For the purposes of clause 11.1, “Excluded Causes” shall include:
11.3 Additional Services Charges. Where Thirsty Work is performing or has performed the Maintenance Services in circumstances where any of the Excluded Causes applies , Thirsty Work may charge, and the Customer shall pay, additional service charges in respect of that work (including to the Equipment and/or Customer’s Equipment and any utility infrastructure of the Customer to allow for the operatio of the Equipment and/or Customer Equipment) calculated on the basis of Thirsty Work’s then applicable rates.
11.4 Investigation charges. If on investigation Thirsty Work reasonably determines that any defect in or malfunctioning of the Equipment and/or Customer’s Equipment is the result of an Excluded Cause, the Customer shall pay additional services charges in respect of the time incurred by Thirsty Work in making the investigation and determining the cause of the defect in or malfunctioning of the Equipment and/or Customer’s Equipment.
Use of Equipment & Customer’s Equipment.
12. Proper Use of the Equipment.
12.1 The Customer shall at all times during the Term:
12.2 Thirsty Work shall not be liable for the Equipment and/or Customer’s Equipment failure to comply with the warranty set out in clause 5.1 if:
12.3 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
12.4 These Conditions shall apply to any repaired or replacement Equipment and/or Customer’s Equipment supplied by Thirsty Work.
13. Customer’s obligations.
13.1 Access to Equipment. The Customer shall ensure that Thirsty Work’s representatives have full and free access to the Customer’s Location and to the Equipment and/or Customer’s Equipment and to a power supply and other facilities necessary to operate the Equipment to enable Thirsty Work to perform its obligations under this agreement.
13.2 Provision of information to Thirsty Work. The Customer shall provide Thirsty Work with such information concerning the Equipment and/or Customer’s Equipment, its application, use, location and environment as Thirsty Work may reasonably request to enable it to perform its obligations under this agreement.
13.3 Malfunction reports. The Customer shall report that the Equipment and/or Customer’s Equipment is defective or malfunctioning or has failed either in writing or by telephone, or in such manner as Thirsty Work may reasonably require from time to time.
13.4 Safety. The Customer shall take all such steps as may be necessary to ensure the safety of any of Thirsty Work’s representatives when attending the Customer’s Location, including providing to the representative any health & safety procedures to follow when at the Customer’s Location.
13.5 Customer Services manager. The Customer shall appoint a manager for the Services. That person shall have authority to contractually bind the Customer on all matters relating to the Services. The Customer may replace that person from time to time where reasonably necessary in the interests of the Customer’s business.
13.6 Delay due to Customer. If Thirsty Work’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Thirsty Work shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
14. Charges and payment.
14.1 Equipment Price: The price of the Equipment shall be the price set out in the Order Form, or, if no price is quoted, the price set out in Thirsty Work’s published price list in force as at the date of delivery.
14.2 Thirsty Work may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Equipment to reflect any increase in the cost of the Equipment that is due to:
14.3 Maintenance Charges. In consideration of the performance of the Maintenance Services the Customer shall pay to Thirsty Work the charges for the Services set out in the Order Form (Maintenance Charges).
14.4 Thirsty Work may increase the Maintenance Charges on an annual basis and shall give notice to the Customer of any proposed increase. Where the Customer does not agree to the new charges for the subsequent year then Thirsty Work may continue to charge the Maintenance Charges applicable to the preceding year, or terminate the agreement (notwithstanding that the Initial Term, or an Extended Term, has not yet expired).
14.5 Time and materials. Where any charges are calculated on a time and materials basis:
14.6 Monthly invoices. Thirsty Work shall invoice the Customer at the end of each month for Maintenance Services.
14.7 Payment timing. The Customer shall pay each invoice submitted to it by Thirsty Work within 30 days of receipt to a bank account nominated in writing by Thirsty Work from time to time. Where the Customer is paying for the Equipment, Installation Equipment, Installation Services and or the Customer Equipment Inspection Services, then payment will be required by Thirsty Work before any such Equipment, Installation Equipment, Installation Services and or the Customer Equipment Inspection Services are supplied.
14.8 Failure to pay. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Thirsty Work any sum due under this agreement on the due date:
14.9 Tax and set-off. All sums payable to Thirsty Work under this agreement:
15. Warranties. Each party warrants that:
15.1 it has full capacity and authority to enter into and to perform this agreement;
15.2 this agreement is executed by a duly authorised representative of that party;
15.3 there are no actions, suits or proceedings or regulatory investigations pending or, to that party’s knowledge, threatened against or affecting that party before any court or administrative body or arbitration tribunal that might affect the ability of that party to meet and carry out its obligations under this agreement; and
15.4 once duly executed, this agreement will constitute legal, valid and binding obligations.
15.5 Quality of Services and Spare Parts and Consumables.
Thirsty Work warrants on an ongoing basis that: