Maintenance Terms & Conditions

SOLAR VEHICLE ACCESS LTD T/A South West Automation Systems

Terms and Conditions of Residential System Maintenance

These terms and conditions of Residential System maintenance will govern all purchases of Services (as defined below) by the Customer from SVA.

1. Definitions and interpretation

1.1 In these Terms:

“Additional Charges” means the charges (if any) payable by the Customer to SVA in respect of Additional Services and in respect of any Replacements;

“Additional Services” means any services (other than the Basic Services) provided by SVA to the Customer in relation to the System;

“Annual Charge” means the annual charge payable by the Customer to SVA in respect of the Basic Services, as set out in the Quotation;

“Basic Services” means the attendance to site to carry out a scheduled service of the system along with providing telephone support for the purpose of investigating and diagnosing defects in the System, subject to the Limitations (and excluding for the avoidance of doubt the supply of Replacements & additional site attendances if required);

“Business Day” means any day (other than a Saturday or Sunday) when banks are generally open for normal business in London;

“Business Hours” means the hours of 9.00 am to 5.00 pm on any Business Day;

“Charges” means the Annual Charge and the Additional Charges;

“Contract” means the contract between the parties for the provision of the Services governed by these Terms;

“Customer” means the person, firm or company specified as SVA’s customer for Services in the Quotation;

“Force Majeure Event” means any event which is beyond the reasonable control of the affected party (including power failures, industrial disputes affecting any third party, governmental regulations, fires, floods, disasters, civil riots, terrorist attacks or wars);

“Limitations” means the limitations on the Basic Services set out in the Quotation;

“Premises” means the installation address specified in the Quotation;

“Quotation” means the quotation for the provision of the Services sent by SVA to the Customer (whether sent by email, fax or post) to which these Terms are annexed (which will include details of the Customer, the Annual Charge, the Premises, the System, the Limitations, addresses for contractual notices, and the Start Date);

“Replacements” means replacement Systems and System components supplied by SVA to the Customer under these Terms;

“SVA” means Solar Vehicle Access Ltd, a company incorporated in England and Wales (registration number 06030908) having its registered office at; Unit 8a Cardrew Industrial Estate, Cardrew Way, Redruth Cornwall TR15 1SS, Trading as South West Automation Systems

“Services” means the Basic Services and the Additional Services;

“Start Date” means the date specified as such in the Quotation;

“Systems” means the access system(s) and/or access system component(s) which the Customer agrees will be maintained by SVA under the Contract as specified in a Quotation;

“Terms” means these terms and conditions of maintenance; and

“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period) starting on the Start Date or on any anniversary of the Start Date.

1.2 A reference in these Terms to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Headings do not affect the interpretation of these Terms.

1.4 References to Clauses are (unless otherwise provided) references to the clauses of these Terms.

1.5 The ejusdem generis rule does not apply to the interpretation of these Terms, and accordingly the interpretation of general words in these Terms will not be restricted by words indicating a particular class or particular examples.

2. Contracting

2.1 These Terms contain the only terms and conditions upon which SVA will deal with the Customer in relation to the provision of maintenance services and component replacements in connection with Systems, and they govern all such services and replacements to the exclusion of all other terms.

2.2 In order for the Contract to come into force between the parties, SVA must send a Quotation to the Customer, and the Customer must submit its written agreement to the Quotation and these Terms within 14 days following the date of issue of the Quotation.

3. Orders for Additional Services and Replacements

3.1 The Customer may at any time during the term of the Contract submit to SVA a request for Additional Services and/or Replacements in writing or by telephone.

3.2 SVA may accept such a request either by expressly agreeing to it or by performing the relevant Additional Services and/or supplying the relevant Replacements.

4. Services

4.1 SVA will provide the Basic Services, and Additional Services agreed under Clause 3, to the Customer during Business Hours.

4.2 SVA will use reasonable endeavours to respond promptly to issues raised by the Customer, taking into account the severity of the issue.

4.3 Notwithstanding anything else in these Terms, SVA’s sole obligation in respect of the Services is to use reasonable endeavours to deal with issues raised by the Customer, and SVA does not warrant that any particular result will be achieved through the Services.

4.4 SVA will have no obligation under the Contract or otherwise to provide Services in respect of any fault or defect which, in the reasonable opinion of SVA, has arisen out of or as a result of:

(a) telecommunications or electrical services or systems external to the System;

(b) transportation, relocation, repair, modification, adjustment or reconfiguration of the System performed by any person other than SVA (except in accordance with SVA’s express instructions);

(d) any failure to maintain the System in appropriate environmental conditions;

(e) the improper operation of the System during high winds; or

(f) any other cause (except fair wear and tear) which is not due to the default of SVA.

4.5 If on investigation SVA reasonably determines that that any defect in the System falls within the provisions of Clause 4.4, the Customer will be liable to pay all costs incurred by SVA in investigating the matter as if that work formed part of the Additional Services.

4.6 SVA may subcontract the provision of the Services or a part of the Services in its sole discretion.

5. Customer’s obligations

5.1 The Customer will:

(a) cooperate with SVA in all matters relating to the Services (including providing a full and adequate description of any issues with the System);

(b) provide for SVA, its subcontractors and employees, in a timely manner, access to the Premises and the System as required by SVA;

(c) be responsible for maintaining the Premises and System in good order for the supply of Services, and in accordance with all applicable laws;

(d) inform SVA of all health and safety rules and regulations and any reasonable security requirements that apply at the Premises; and

(e) advise SVA immediately of any changes in circumstances that may affect the provision of Services in any way.

5.2 If the performance of any of SVA’s obligations under these Terms is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, SVA will not be liable for any costs, charges or losses sustained or incurred as a consequence.

5.3 The Customer will and will ensure that all persons who have access to the System will:

(a) use the System strictly in accordance with the manufacturer’s instructions and SVA’s guidance from time to time;

(b) maintain the System in appropriate environmental conditions, in accordance with the manufacturer’s and SVA’s guidance; and

6. Supply of Replacements

All Replacements will be supplied subject to SVA’s standard Terms and Conditions of Supply from time to time (which will be supplied by SVA to the Customer in advance of any agreement to supply Replacements).

7. Charges and payment

7.1 SVA may invoice the Customer:

(a) for the first Annual Charges, on or after the Start Date;

(b) for the second and any subsequent Annual Charge, not more than 40 days before any anniversary of the Start Date; and

(b) for the Additional Charges, at any time after the provision of the relevant Additional Services or the installation of the relevant Replacements.

7.2 The Customer will pay invoiced Charges to SVA in cleared funds within 30 days of the date of SVA’s invoice.

7.3 Additional Charges in respect of Additional Services will be at SVA’s applicable hourly rate from time to time. Additional Charges in respect of Replacements will be at SVA’s standard list price from time to time or at such other price as SVA may notify to the Customer in advance of the agreement to supply the Replacements.

7.4 The dates for payment of the Charges will be of the essence of the Contract.

7.5 All Charges quoted by SVA are exclusive of any applicable value added taxes or sales taxes (unless the context requires otherwise) which must be paid by the Customer.

7.6 If the Customer fails to pay any amount payable by it under these Terms, SVA will be entitled to charge the Customer:

(a) the entire costs of collection (including legal expenses) on an indemnity basis; and

(b) interest on the overdue amount, and such interest will be payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the higher of:

(i) the rate of 8% per annum above the base rate for the time being of HSBC Bank Plc (which will accrue on a daily basis and be compounded quarterly); and

(ii) any applicable statutory rate.

7.7 At the end of each Year during the term of the Contract, SVA may increase the Annual Charge by giving at least 60 days’ notice of the increase to the Customer.

7.8 All payments must be made in the currency specified on the invoice by cheque or such other method as SVA may agree from time to time.

7.9 The Customer has no right of set off under the Contract or under the law generally in respect of any claims or amounts owed under or in relation to the Contract.

7.10 If the Customer fails to fulfil any payment obligation under or relating to the Contract, SVA will be entitled (without prejudice to its other rights) to:

(a) postpone the fulfilment of its obligations to the Customer under any Contract;

(b) demand immediate payment for any amounts which are due or may become due under any Contract; and/or

8. Force Majeure

8.1 Where a Force Majeure Event gives rise to a failure or delay in SVA performing its obligations under the Contract (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

8.2 If SVA becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Contract, it will forthwith notify the Customer forthwith.

8.3 SVA will take reasonable steps to mitigate the effects of any such Force Majeure Event.

9. Warranties and indemnity

9.1 Each of the parties warrants to the other that it has full power and authority to enter into these Terms and perform its obligations under these Terms.

9.2 SVA warrants that it will perform the Services with reasonable care and skill.

9.3 These Terms set out the full extent of SVA’s obligations and liabilities under the Contract. To the maximum extent permitted by applicable law and subject to Clause 10.1, all conditions, warranties or other terms concerning the Services which might otherwise be implied into the Contract are expressly excluded.

9.4 The Customer will indemnify and keep indemnified SVA against all losses and liabilities incurred by SVA and all legal costs and other expenses incurred by SVA in connection with any demand, action, arbitration or other proceedings arising directly or indirectly, or as a result of, or in connection with, a breach of any of the Customer’s obligations under the Contract.

10. Limitation of liability

10.1 Nothing in any Contract will operate to exclude or limit either party’s liability for death or personal injury caused by its negligence, fraud, or any other liability which cannot be excluded or limited under applicable law; and if the Customer is a consumer, nothing in any Contract will affect the Customer’s statutory rights as a consumer.

10.2 Subject to Clause 10.1, SVA’s liability to the Customer in respect of any matter arising out of or in connection with these Terms or any collateral contract, whether in contract or tort (including negligence) or otherwise, will be limited as follows:

(a) SVA will not be liable to the Customer for any loss of profit, anticipated profits, revenues, anticipated savings, data, goodwill or business opportunity, or for any indirect or consequential loss or damage;

(b) SVA will not be liable to the Customer for any losses arising out of a Force Majeure Event;

(c) SVA’s liability to the Customer in respect of claims based any event or series of related events will not exceed the total Charges paid (or, if greater, payable) by the Customer to SVA under the Contract in the preceding 12 month period.

11. Termination

11.1 Either party may terminate the Contract immediately at any time by written notice to the other party if:

(a) that other party commits any material breach of its obligations under the Contract which is not remediable, or commits any material breach of its obligations under the Contract which is remediable but which that party fails to remedy within 30 days of receiving a notice requiring it to do so; or

(b) that other party ceases to trade; or

(c) that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or

(d) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or

(e) the ability of that other party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(f) any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or

(g) that other party (being an individual) dies, becomes incapable of managing his or her own affairs by reason of mental or physical illness or incapacity, becomes a patient under any mental health legislation, or is the subject of a bankruptcy petition or order.

11.2 SVA may terminate the Contract immediately at any time by written notice to the Customer if the Customer fails to make any payment by the due date for payment.

11.3 SVA may terminate the Contract immediately at any time by written notice to the Customer if SVA becomes unable to properly perform its obligations under the Contract:

(a) by virtue of the unavailability of replacement System or components for System; or

(b) because SVA ceases to support or to be able to support the relevant System or any element thereof (for any reason).

11.4 Either party may terminate the Contract by giving to the other at least 40 days’ written notice of termination expiring on any anniversary of the Start Date.

12. Consequences of termination

12.1 Termination of the Contract will not affect the accrued rights of the parties under these Terms as at the date of termination (including for the avoidance of doubt SVA’s accrued rights to invoice for and receive payment of the Charges).

12.2 On termination of the Contract, all provisions of these Terms will cease to have effect, except that Clauses 1, 5.2, 7.6, 7.9, 9, 10, 12, and 13.3 to 13.9 will survive termination and continue to have effect in accordance with their terms or otherwise indefinitely.

12.3 On termination of the Contract by the Customer pursuant to Clause 11.1, or by SVA pursuant to Clause 11.3:

(a) the Customer will be entitled to a (pro-rated) refund of any element(s) of the Charges paid to SVA in respect of the provision of Services during any period after the date of effective termination of the Contract (and SVA will calculate the amount of such refund using any reasonable methodology); and

(b) the Customer will be released from any obligation to pay such element(s) of the Charges.

12.4 Save as provided in Clause 12.3, the Customer will not be entitled to a refund of any Charges on termination of the Contract, and will not be released from any obligation to pay the Charges to SVA in respect of any Services performed or invoices issued.

13. General

13.1 A notice given under the Contract will be delivered personally, sent by pre-paid first class post, or sent by fax or email, for the attention of the person, and to the address, fax number or email address given in the Quotation (or as notified by one party to the other in accordance with this Clause).

13.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) in the case of pre-paid first class post, 48 hours from the time of posting;

(c) in the case of fax or email, at the time of transmission (providing the sender retains documentary evidence of the transmission); or

(d) if deemed receipt under the previous paragraphs of this Clause 13.2 is not within Business Hours, when Business Hours next begin.

13.3 SVA may assign or transfer any of its rights or obligations under the Contract to any member of its group of companies or to any successor to all or a substantial part of its business from time to time. Save as aforesaid, neither party may assign or transfer any of its rights or obligations under the Contract, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

13.4 Subject to Clause 10.1:

(a) these Terms and the Quotation will constitute the entire agreement between the parties in relation to the subject matter of the Contract, and will supersede all previous agreements in respect of that subject matter;

(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract; and

13.5 The Contract is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person. The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under the Contract is not subject to the consent of any person who is not a party to the Contract.

13.6 The Customer undertakes that it will not, without SVA’s prior written consent, either during or within 6 months after the date of effective termination of the Contract engage, employ or otherwise solicit for employment any person who, during the relevant period, was an employee or contractor of SVA.

13.7 Any variation of the Contract will be agreed in writing by or on behalf of both parties.

13.8 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver will be implied by taking or failing to take any other action.

13.9 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will 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 will apply with whatever modification is necessary to give effect to the commercial intention of the parties.

13.10 The Contract will be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.