- Introduction and interpretation
- These are the terms and conditions referred to in the attached Proposal. In these conditions ‘we’ means Novalux Energy Solutions Ltd and references to ‘us’ and ‘our’ are construed accordingly. ‘You’ means ‘the Client’ named in the Proposal and references to ‘your’ are to be construed accordingly. Where the definition is used the word or phrase in question is shown in italics – for example Proposal. The definitions used are as follows:
- ‘the Proposal’’ – the proposal to which these conditions are attached
- ‘the Contract’ – the contract made between the Client and us for which the Services are required
- ‘the Client’ – the individual or the organisation to whom the Proposal is addressed
- ‘the Services’ – the services the subject of the Proposal. Including the documents issued by Novalux Energy Solutions Ltd defining the services to be provided and the price payable for the services
- ‘Preliminary Services’ – authorisations for the installation of our systems on your property including but not limited to planning applications, DNO applications, structural surveys, site surveys and designs.
- “Goods” : all items supplied as part of the Service including all boiler system components
- “Price” : the price specified in the Proposal or subsequently agreed between the parties
- In these conditions
- Reference to a statute or statutory provision includes a reference to it as from time to time amended extended or re-enacted.
- Words denoting the singular number only include the plural and vice versa
- Unless the context otherwise requires reference to a clause is to a clause of these conditions
- The headings are inserted for convenience only and do not affect the interpretation of these conditions.
- These conditions shall apply to the contract for the Services described in our Proposal to the exclusion of all other terms and conditions including any terms or conditions which you may purport to apply under any quotation, form, invoice, order or other similar document.
- Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be of no effect unless agreed by us in writing.
- Price and Payment
- The price shall be as stated in the Proposal. All figures exclude VAT unless otherwise stated. Our payment terms are on receipt of invoice. On amounts due but not paid we reserve the right to charge interest at the statutory rate or 2% above the Barclays Bank plc base rate applicable at the time the payment was due whichever is the higher.
- We reserve the right to revise our Price if circumstances arise which will increase our costs. We will only incur these costs with your permission. Work will not proceed until additional work and costs have been agreed.
- No discounts on our Price shall be made nor retentions held against sums paid to us unless specifically agreed before an order is placed.
- Where we are asked to perform Preliminary Services we will not proceed to order Goods or carry out any further Services until we have written notice of approved authorisations for the Preliminary Services. Should the project not be able to continue due to a Preliminary Service not being authorised, the client will be charged as set out in the Proposal for the costs incurred for Preliminary Services and any remaining sums held by Novalux will be returned to the Client. This Contract will be terminated on receipt of a written refusal of Preliminary Services and no further invoices will be raised or Services performed.
- The Services and Programme
- The Services to be provided by us are defined in the Proposal. No materials will be ordered or allocated for the Services until an order is placed and we have received written authorisation for the Preliminary Services. We shall not be liable for any delay in any programme caused by your failure to place a confirmed order sufficiently early.
- The Proposal is based on facts known at the time of its preparation including information supplied by you. Subsequent information and/or changes in circumstances may mean that the services need to be redefined. An equitable adjustment shall be made to the Price and / or the programme if any change to the project causes a significant change in the Services, costs or the time for delivery of the Services.
- The estimated time for delivery of the Services is stated in the Proposal. The Client shall allow at least 12 weeks between placing an order and delivery of the Goods to site. Unless otherwise agreed time shall not be of the essence.
- All Services will conform to the agreed specifications and shall be performed with reasonable skill care and diligence in accordance with accepted professional standards of a competent contractor.
- Installation will be undertaken during normal working hours. e. Monday – Friday between 8.00 – 17.00 hours.
- Our contract with you does not cover changes to your electricity metering arrangements. We accept no liability whatsoever for unauthorised use of a grid connected electricity generating system or any delays to your programme caused by changes to your electricity metering.
- Our programme to complete the Service is as defined in our Proposal. In the event of inclement weather our installation programme will be extended by the number of days productivity lost without penalty.
- Delivery, Risk and Property
- Delivery shall be of the whole or such part of the Goods and at such time or times shall be directed by us. Unless otherwise agreed, risk in all Goods passes on delivery to site and you will be responsible for off-loading and the secure storage of the Goods.
- Whilst all reasonable steps will be taken to ensure that any quoted delivery date is adhered to, we will not be liable for delay in delivery arising from causes outside of our control. Liability for proven loss from delay in delivery arising from causes within our control shall in any event be limited to a maximum no greater than the contract price for the goods or services in question
- Our price is on an ex works basis.
- Title shall pass on the basis of the following;
- Legal and beneficial ownership of all goods sold by us shall remain vested in Novalux Energy Solutions Ltd until payment in full of the Services detailed in this proposal. Until such time you must keep those goods distinct from your own property, and must not purport to sell or otherwise transfer legal or beneficial ownership of them. Until ownership has transferred to you, you have full licence to make use of the goods in your business, but at any time at which payment of (i) the invoice relating to those goods and (ii) any other invoice is late for payment, or that you are subject to any form of insolvency or to any debt recovery action or occurrence (save for litigation defended by you and not yet the subject of a judgement), then we may without notice recover possession of the goods. For this purpose you hereby irrevocably licence Novalux Energy Solutions Ltd and its agents to enter upon your property (or the property where are goods are installed) and (as far as reasonably necessary) to disassemble any machinery. In addition you undertake to obtain equivalent licences for any third party on whose property the goods will be sited and agree to indemnify the failure to obtain such licences, or otherwise from Novalux Energy Solutions Ltd’s recovery of the goods in accordance with this clause.
- Upon delivery of our goods and during installation it is your responsibility to protect our works from damage howsoever caused, and you will be responsible from indemnifying us for the cost of rectifying any damage caused.
- Default and Insolvency
- If you commit an act of bankruptcy or enter into liquidation or have a provisional liquidator or a receiver or an administrative receiver appointed or enter into any arrangement or composition with your creditors then we may determine this contract at any time thereafter. In such an event, you hereby irrevocably licence Novalux Energy Solutions Ltd and its agent to enter upon your property (or the property where are goods are installed) and (as far as reasonably necessary) to disassemble any machinery. In addition you undertake to obtain equivalent licences for any third party on whose property the goods will be sited and agree to indemnify the failure to obtain such licences, or otherwise from Novalux Energy Solutions Ltd’s recovery of the goods in accordance with this clause.
- Indemnity and Insurance
- You shall hold and keep us fully indemnified from and against all actions, costs, claims, demands, and liability whatsoever in respect of any injury or damage to persons or property due to or arising out of the performance of the Services detailed in our proposal or any breach by you of these terms and conditions or any terms or obligations implied by law or any other relevant statutory provision as may be in force from time to time. You shall at all times have sufficient insurances in place and provide written evidence to us upon request.
- All warranties whether express or implied including without limitation warranties of fitness for purposes are expressly excluded.
- We shall not be liable to you for
- defects in the Goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or any act, neglect or default of the Client;
- other defects in the Goods;
- any costs incurred or losses suffered as a result of incorrect installation of the Goods by you in particular on supply only contracts.
- If we accept liability under these conditions our only obligation shall be at our option
- to make good any shortage or non-delivery;
- to replace or repair any Goods found to be damaged or defective;
- to re-perform any part of the Services;
- to refund to you the amount paid by you for the Goods which are the subject of a claim.
- We shall not be liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without our prior written approval. You shall indemnify us against each loss, liability, and cost arising out of such claims.
- Our aggregate liability to you, whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the Price of the Services as determined by the net price invoiced to you in respect of any occurrence or series of occurrences.
- We shall not be liable to you for
- any loss, damage or injury, direct or indirect, resulting from defects in design, materials or workmanship or otherwise caused howsoever arising (and whether or not caused by our negligence or the negligence of our employees or agents) other than liability for death or personal injury resulting from our negligence;
- any indirect or consequential loss or expenses suffered by you, howsoever caused, and including, without limitation, loss of anticipated profits, goodwill reputation, business receipts or contracts, or losses or expenses resulting from third party claims.
- Our prices are determined on the basis of the limits of liability set out in these conditions. You may by written notice to us request Novalux Energy Solutions Ltd to agree a higher limit of liability provided insurance cover can be obtained for such higher limit. We may effect insurance up to such limit and you shall pay on demand the amount of the premiums. You shall disclose such information as the insurers shall require and in no case shall you be entitled to recover from us more than the amount received from the insurers.
- Any additional warranty provided by us relating to the Services is stated in the Proposal. We will also pass on to you the benefit of any warranty given by the manufacturer of the Goods.
- Confidentiality and Non-Solicitation
- You shall treat all confidential information belonging to us as confidential and safeguard it accordingly; and shall not disclose any confidential information without our prior written consent.
- Neither party shall recruit or engage directly or indirectly whether as an employee or as a contractor or through any third party any personnel who have been connected with the delivery of the Services
- Intellectual Property Rights
- For the purposes of these terms “Intellectual Property” means any patent, rights to inventions, utility model, registered design, copyright and related right, database right, design right, topography right, trade mark, service mark, trade, business and domain name, right in goodwill or to sue for passing off, unfair competition right, right in computer software, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection whatsoever in any part of the world.
- Any and all of the Intellectual Property in the drawings, concepts or other materials that we may provide to you in connection with the Contract shall remain the exclusive property of the Novalux Energy Solutions Ltd and you shall not during or at any time after the expiry or termination of the contract in any way question or dispute the ownership of any such rights of Novalux Energy Solutions Ltd.
- You agree that any new Intellectual Property that arises in connection with the contract, or products belonging to us, shall be owned absolutely by Novalux Energy Solutions Ltd. You hereby assign to us with full title and guarantee all rights in and to any such new Intellectual Property for the full duration of such rights, wherever in the world enforceable, and shall procure such an assignment from any employee, consultant or any other party who is involved with the contract. You agree to execute (or procure that the employee, consultant or any other party it shall involve with the contract executes) all documents and assignments and do all such things as may be necessary to perfect our title to the new Intellectual Property or to register Novalux Energy Solutions Ltd as owner of all registerable rights
- Copyright in all outputs generated by Novalux Energy Solutions Ltd in connection with the Services (such as drawings and reports) shall remain vested in Novalux Energy Solutions Ltd but you shall have a licence to copy and use such outputs for any purpose solely related to the project for which the Services are performed. We shall not be liable for any use by you of any of the outputs for any purpose other than that for which the same were prepared and provided.
- No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Proposal.
- Force Majeure
- If Novalux Energy Solutions Ltd is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, but not limited to, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, we shall be entitled to give notice in writing to terminate the contract
- Contracts (Rights of Third Parties) Act
- No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Contract.
- Assignment of Liability
- You shall not assign or transfer the Contract from Novalux Energy Solutions Ltd or the benefit of this Contract to any third party except with our written consent.
- If any provision in the Contract shall in whole or in part be held to any extent to be unlawful or unenforceable under any enactment or rule of law, the remainder of the provisions shall stand in full force and effect.
- Any notification by either party to the other under the contract shall be in writing, delivered by first class post, by fax or e-mail to the other party at the address shown in the purchase order. All notices shall be deemed duly given on the day of posting or if sent by fax or e-mail immediately when the notice is transmitted.
- Proper Law
- This Contract shall be subject to and construed in accordance with English Law and the parties submit to the jurisdiction of the English Courts.