TERMS OF BUSINESS FOR THE SUPPLY OF SERVICES
Conditions: these terms of business;
Contract: the contract between the Supplier and the Customer for the supply of the Services and the Goods (if any);
Customer: the person, firm or company with whom the Supplier contracts to provide the Services and the Goods (if any);
Delivery Point: the place where delivery of the Goods or installation of the Equipment is to take place under Condition 3.1;
Equipment: any equipment to be provided on hire to the Customer as part of the Services;
Goods: any goods identified in the Proposal and agreed by the Supplier to be sold to the Customer;
Materials: any documents, materials, data or information in any form (including computer programs, data, reports, specifications and drafts) provided by the Supplier in connection with a Contract;
Proposal: any estimate, quotation, proposal, offer or similar document put forward by the Supplier (prior to starting the Services) that describes the Services, the Equipment and the Goods (if any);
Services: the services provided or to be provided by the Supplier to the Customer which may include the installation and hire of Equipment;
Supplier: Secure Empty Property Limited, a company registered in England and Wales with company number 7930767 whose registered office is at C/O Baker Tilly, Bluebell House, Brian Johnson Way, Preston, Lancashire, PR2 5PE
1.1 In these Conditions the following words have the following meanings:
2.1 These Conditions shall apply to the Contract, to the Services and to the Goods (if any) to the exclusion of all other terms and conditions and shall prevail over all inconsistent terms that the Customer seeks to apply to the Contract.
2.3 No order for Services or Goods placed by the Customer shall be deemed to be accepted by the Supplier until it has received an order from the Customer (oral or written) and has either issued an acknowledgement of order or has started to perform the Services (including the installation of any Equipment) or delivered the Goods (if any).
2.4 Each Proposal is valid for a period of ninety days only from its date (or such longer period as it may state), although the Supplier may withdraw a Proposal at any time before it is accepted.
2.5 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services, Equipment or Goods described in them. They will not form part of the Contract.
2.6 The Contract constitutes the entire agreement and understanding between the parties.
2.7 The Customer acknowledges that it has not relied on, and shall have no remedy in respect of, any statement, promise, warranty or representation (whether made innocently or negligently) made or given by or on behalf of the Supplier which is not expressly set out in the Contract. An action for breach of contract is the only remedy for any statement, promise, warranty or representation set out in the Contract (whether made innocently or negligently). Nothing in this Condition 2.7 shall limit or exclude liability for fraud.
3.2 Time for performance of the Services (including any response times set out in the Proposal) and delivery of the Goods shall not be of the essence and, unless agreed otherwise by the Supplier in writing, any specific dates stated by the Supplier shall be estimates only and time for delivery or performance shall not be made of the essence by notice. If no dates are specified, delivery and performance will be within a reasonable time.
3.3 Under each Contract, the period for the provision of the Services shall, unless the parties agree or the Proposal stated otherwise, commence on installation of the Equipment at the premises stipulated in the Proposal and shall terminate on the expiry date set out in the Proposal or earlier in accordance with these Conditions.
3.4 Subject to the other provisions of these Conditions the Supplier will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in performing the Services or the delivery of the Goods (if any) (even if caused by the Supplier’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
3.5 If the Supplier has agreed to sell Goods to the Customer and the Customer will not accept delivery of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, at the Supplier’s option, either:
- risk in the Goods will pass to the Customer (including for loss or damage caused by the Supplier’s negligence); and
- the Goods will be deemed to have been delivered; and
- the Supplier may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance); or
3.5.2 the Supplier may terminate the Contract with immediate effect and recover from the Customer any loss suffered and cost or expenses incurred (including storage costs) as a result of the Customer’s refusal or failure.
3.6 The Supplier may deliver the Goods (if any) or install the Equipment by instalments and each instalment shall be treated as a separate Contract so that failure to deliver or defect in one or more instalment shall not entitle the Customer to reject the Services or the other instalments.
3.7 Any liability of the Supplier for non-delivery of the Goods (if any) or Equipment shall be limited to replacing the Goods or installing alternate Equipment within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for any such Goods or Equipment.
4.1 The Goods (if any) and the Equipment are at the risk of the Customer from the time of delivery and/or installation.
4.2 Ownership of the Goods (if any) shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
4.2.1 the Goods; and
4.2.2 all other sums which are or which become due to the Supplier from the Customer on any account.
4.3 Until ownership of the Goods (if any) has passed to the Customer and at all times in relation to the Equipment and save to the extent the Equipment or Goods have been installed in the Customer’s premises by the Supplier in the performance of the Services, the Customer shall (and shall ensure that its employees, agents and representatives shall):
4.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
4.3.2 store the Goods and the Equipment (at no cost to the Supplier) separately from all other goods or property of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
4.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods and/or the Equipment;
4.3.4 maintain the Goods and the Equipment in satisfactory condition insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request the Customer shall produce the policy of insurance to the Supplier; and
4.3.5 hold the proceeds of the insurance referred to in Condition 4.3.4 on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
4.4 The Customer’s right to possession of the Goods (if any) shall terminate immediately if:
4.4.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
4.4.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between the Supplier and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
4.4.3 the Customer encumbers or in any way charges any of the Goods.
4.5 The Supplier shall be entitled to recover payment for the Goods (if any) notwithstanding that ownership of any of the Goods has not passed from the Supplier.
4.6 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods and/or Equipment are or may be stored or installed in order to inspect them, or, where the Customer’s right to possession or the Contract has terminated, to recover them.
5.1 Unless otherwise agreed by the Supplier in writing, the Supplier’s charges for the Services (the “Charges”) are as set out in the Proposal or if no Proposal is issued, are as agreed with the Supplier when the Customer’s order is accepted. If no charges are stated in the Proposal or no Charges are agreed the Supplier’s then current standard rates (the “Standard Rates”) shall apply.
5.2 Details of the Standard Rates are available upon request. The Standard Rates are subject to alteration without notice to the Customer.
5.3 The Supplier may increase the Charges if they are based on inaccurate or incomplete information supplied by or on behalf of the Customer.
5.4 In any event, the Supplier reserves the right to increase the Charges at any time to take account of any increase in its costs of performing the Services including (but not limited to) increases in sub-contractor charges, employment costs or overheads, but it shall give the Customer notice of any such increase.
5.5 If the Supplier provides additional Services or the scope of the Service increases or changes (including the number of properties in relation to which the Services are provided, the number of windows/openings at such properties, the number of visits to be made to such properties and/or requests to provide the Services on a public holiday or within unusual timescales) the Supplier may charge for such additional services at the current Standard Rates.
5.7 In addition to the Charges the Customer shall pay the Supplier the full amount of any disbursement (including VAT) incurred by the Supplier or its employees in the performance of the Services, including (but not limited to) travel expenses; hotel expenses; the costs of telephone calls and facsimile transmissions.
5.8 Any estimate of disbursements given shall constitute a non-binding estimate only and notwithstanding that an estimate may have been given, the Customer shall pay the full amount of all disbursements incurred by the Supplier in the performance of the Services.
6.1 Unless the Supplier agrees otherwise in writing the Charges shall be paid in pounds Sterling within 30 days of the date of the relevant invoice for the Services covered by the Contract, subject to Condition 6.4.
6.2 Should the Supplier have reasonable concerns as to the creditworthiness of the Customer it may adjust the credit terms applicable to the Customer and may impose credit limits on the Customer which, if reached, allow the Supplier to suspend the Services and/or delivery of the Goods (if any) or terminate the Contract.
6.3 No payment shall be deemed to have been received until the Supplier has received that sum in full cleared funds.
6.4 All sums payable to the Supplier under the Contract shall become due immediately on its termination, without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.6 Time for payment shall be of the essence of the Contract.
6.7 Without prejudice to any other rights or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
6.7.1 suspend performance of the Services (which could include entering the premises and retrieving the Equipment) and/or delivery of the Goods until payment has been made in full; and
6.7.2 the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
6.8 The Supplier may, without prejudice to any other right it may have, set-off any liability of the Customer to the Supplier against liability of the Supplier to the Customer.
7.1 The Supplier shall perform the Services using reasonable care and skill.
7.2 The Supplier warrants that (subject to the other provisions of these Conditions) upon delivery, the Goods (if any) and the Equipment will:
7.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
7.2.2 be reasonably fit for securing any window/opening to which it is attached against intrusion by an unauthorised third party; and
7.2.3 be reasonably fit for any particular purpose for which the Goods (if any) are being bought or Equipment is being hired if the Customer had made known that purpose to the Supplier in writing and the Supplier has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of the Supplier.
7.3 The Customer acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this contract, other than expressly set out in the Contract. The Customer must examine the Goods (if any) and the Equipment and inform the Supplier of any defects in or shortages in quantity of Goods (if any) and the Equipment within 72 hours of delivery or installation.
7.4 If the Customer considers that the Supplier has provided sub-standard, defective or negligent Services, Equipment or Goods it will immediately inform the Supplier, who will investigate, and, if the Customer is proven to be correct, the Supplier shall, as it determines, provide remedial Services or replacement Goods or Equipment or shall issue a credit note to the Customer for the Services, Equipment or Goods concerned. This Condition 7.4 sets out the Supplier’s sole liability for defective Goods or Equipment installed or Services, subject to Condition 9.3.
7.5 If notification of a claim is not made within 72 hours of the date the Services are completed or any Goods are delivered, they shall be deemed to be in all respects in accordance with the Contract. The Supplier shall, in any event be discharged from all liability unless proceedings are brought within twelve months of the date on which Services, Equipment or the Goods are provided.
7.6 The Supplier shall not be liable for a breach of any of the warranties in Condition 7.2 if:
7.6.1 the Customer makes any further use of such Goods or Equipment after giving notice of a claim pursuant to Condition 7.4; or
7.6.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or Equipment or (if there are none) good trade practice; or
7.6.3 the Customer alters or repairs such Goods or Equipment without the written consent of the Supplier.
7.7 Subject to Conditions 7.5 and 7.6 if any of the Goods or Equipment do not conform with any of the warranties in Condition 7.2 the Supplier shall at its option repair or replace such Goods or Equipment (or the defective part) or refund the price of such Goods or Equipment at the pro rata Contract rate provided that, if the Supplier so requests, the Customer shall, at the Customer’s expense, return the Goods or Equipment or the part of such Goods or Equipment which is defective to the Supplier.
7.8 If the Supplier complies with Condition 7.7 it shall have no further liability for a breach of any of the warranties in Condition 7.2 in respect of such Goods or Equipment.
8 CUSTOMER’S OBLIGATIONS
8.1 The Supplier’s obligation to provide the Services and the Goods (if any) is conditional upon the Customer providing to the Supplier:
8.1.1 access to and copies of all documentation, information and materials which may at any time be necessary or desirable for the purpose of performing the Services and/or delivering the Goods (the Customer shall obtain and maintain any licences or consents required by the Supplier in relation to the use of such documentation, information and materials);
8.1.2 access to personnel and to premises in each case to such extent and at such time and for such purposes as the Supplier shall specify; and
8.1.3 generally such assistance and co-operation as shall be necessary or expedient for the proper performance of the Services and/or delivery of the Goods (including compliance with its obligations set out in this Condition 8).
8.2 Without prejudice to Condition 4.3 the Customer shall (and shall ensure that its employees, agents and representatives shall):
- not assign, sell, pledge, let, encumber or part possession with the Equipment, which shall at all times remain the property of the Supplier;
- not move, dismantle, relocate, remove, take down or interfere with the Equipment at any time without the prior written consent of the Supplier;
- take reasonable care of the Equipment and keep it clean;
- notify the Supplier if the Equipment is lost, stolen or damaged.
8.3 Where access to premises is provided by the Customer, the Customer shall:
8.3.1 ensure that it provides a safe and suitable environment for the Supplier’s personnel and agents;
8.3.2 comply with all relevant laws and regulations from time to time (including, without limitation, health and safety laws) in relation to the use by the Supplier’s personnel and agents of the premises; and
8.3.3 inform the Supplier of all health and safety rules and regulations that apply to the premises (or any part of it).
8.3.4 inform the supplier if they need to force entry the company ‘SEP’ shall not be liable for consequences of forced entry including damage to a property door or glass
8.4 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by an act or omission of the Customer, its agents, sub-contractors or employees the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer as a consequence and the Supplier shall still be allowed to be paid as though it were performing normally.
8.5 The Customer shall neither itself nor through any of its associates, solicit, directly or indirectly, any employee of the Supplier with whom it has had contact in connection with the Contract and if it does it shall indemnify the Supplier against any costs the Supplier incurs as a consequence.
9.1 The following provisions of this Condition 9 set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer for any breach of these Conditions and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Supplier for:
9.3.1 death or personal injury caused by the Supplier’s negligence, or the negligence of its employers, agents or sub-contractors;
9.3.2 fraud or fraudulent misrepresentation; or
9.3.3 any other liability which cannot be legally excluded or limited.
(The Customer’s attention is drawn to the provisions of Condition 9.4)
9.4.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of each Contract shall be limited to the total Charges paid under the Contract during the 12 months prior to the claim arising; and
9.4.2 the Supplier shall not be liable to the Customer for any indirect or consequential loss or damage nor for any loss of profit, loss of business or depletion of goodwill howsoever caused which arises out of or in connection with the Contract.
9.5 Without prejudice to Condition 13, the Customer accepts that the Supplier has no responsibility whatsoever for:
9.5.1 the use to which Materials are put, that being entirely a matter for the Customer and not something that the Supplier has influence over ‘including double glazed window removal tightness or fit cracking of glazing units’ or, in many cases, awareness of; or if the property has double glazed windows that require deglazing to fit security screens we bring to your attention that the units can be difficult in some cases to remove and re-install because of tightness of fit and beading type. Although our installation teams are trained and careful in the removal and installation of glazing units we cannot be held responsible if a glazing unit cracks
9.5.2 any failure of the alarm system caused by a network failure, which is not something that the Supplier has control over or responsibility for.
9.5.3 Where a response service to activations is part of the service by the company or a third party we may provide an average response to arrive at a property ‘activation time’. Whilst we will always endeavour to achieve the stated time this is an estimate, traffic and weather conditions can vary as can the location of the guard actually attending a property no liability can be accepted for losses incurred through failure to meet the average response time.
10.1 For the purpose of this Condition 10 intellectual property rights include, without limit, copyright, patent rights, utility models, rights to inventions, domain names, rights in computer software, service marks, trademarks, rights in goodwill or rights to sue for passing off, design rights, database rights, know how, trade secrets, technical information, confidential process information, trade and business names, proprietary information and all similar rights whether registered or not and all rights to apply for such registrations which subsist now or in the future in any part of the world (“Intellectual Property Rights”).
10.2 All Intellectual Property Rights in the Services, the Goods, the Equipment, and the Materials belong to the Supplier. The Supplier shall not unreasonably refuse any request from the Customer for a licence to be granted to it to make reasonable use during the term of the Contract `of the Materials, the Goods, the Equipment, and Services (provided the scope of the licence is limited to the Customer’s internal purposes and is non-exclusive).
11.1 Each party shall, and shall procure that its employees shall, keep secret and confidential all business and trade secrets, know-how, specifications, processes, initiatives, methods of doing business, price lists and other confidential information and material disclosed by or obtained from the other (“Confidential Information”). Each party undertakes not to disclose the other’s Confidential Information to any third party other than its responsible employees to whom disclosure is in good faith necessary for the proper performance of their duties in connection with the Contract.
11.2 The obligations of confidentiality under Condition 11.1, shall not apply to any information or material which: (a) was known to the recipient before its receipt from the disclosing party; or (b) is lawfully in the public domain other than by reason of breach; or must be disclosed by law; or (c) the Supplier receives from the Customer, if the Supplier becomes entitled to terminate the Contract under Condition 12.1.
11.3 The obligations of confidentiality under Condition 11.1, shall not prevent the Supplier using, exchanging and commercially exploiting the data and results that it obtains in connection with its services to compile databases of results for itself and third parties provided that in doing so it does not disclose the identity of the Customer.
12.1 Without prejudice to any other rights and remedies which the Supplier may have against the Customer, the Supplier may by notice in writing terminate the Contract wholly or in part or suspend the provision of the Services (which could include entering the premises and retrieving the Equipment) or delivery of the Goods if the Customer is in breach of any of its obligations under the Contract or any other contract or account with the Supplier or if any distress or execution shall be levied on its property or assets or if it makes or offers to make any arrangement or composition with its creditors or commits any act of bankruptcy or if any bankruptcy petition is presented against it or if any resolution or petition to wind it up is passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of its business, property or assets is appointed (or any steps are taken to appoint an administrator, administrative receiver or receiver).
12.2 The Customer or the Supplier may terminate the Contract by serving not less than forty five days’ written notice on the other party.
12.3 On termination, without prejudice to its other rights and remedies, the Supplier shall be entitled to enter the premises and recover the Equipment.
The Supplier shall not be liable if it is delayed in or prevented from performing its obligations due to circumstances outside its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, failures in utility supply, supplier failures, systems interruption, power surges, network unavailability, equipment failures, virus attack and any comparable circumstances.
14.1 To give notice under the Contract a letter must be delivered personally or sent by pre-paid first class post to the registered office address and normal business address of the recipient. A notice delivered by hand is served when delivered; a notice sent by post is served once 48 hours after posting have elapsed.
14.2 Nothing in the Contract shall create an agency, partnership or employment relationship.
14.3 The Customer may not assign or sub-contract the Contract or any part of it without the prior written consent of the Supplier. The Supplier may assign and sub-contract its rights and obligations under the Contract or any part of it to any person, firm or company.
14.4 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
14.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable 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.
14.8 The formation, existence, construction, performance, validity and all aspects of the Contract including the legal relationships established by the Contract shall be governed by the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
SECURE EMPTY PROPERTY LIMITED
Integrity House, Unit 14 Three Point Business Park
Charles Lane, Haslingden,
Lancashire, BB4 5EH
TEL: 0330 088 1973Download Terms & Conditions
Live in Occupancy ‘Guardian’ Services
Definitions and Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Additional Costs: any charges payable by the Owner in respect of such additional services the Owner requests SEP or representatives to undertake, as specified in the Letter;
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Charges: the charges payable by the Owner for the supply of the Services in accordance with clause 6, which shall include if applicable Management Fee, the Intake Fee, the Start Up Fees, the Additional Costs and any other charges which become payable by the Owner to SEP under this Contract;
Commencement Date: has the meaning set out in clause 2.2;
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8;
Contract: the contract between SEP and the Owner for the supply of Services in accordance with these Conditions (such Contract comprising the Letter and the Conditions);
Emergency Repairs: any urgent maintenance or urgent repair which in the reasonable opinion of SEP are required to the Property to prevent a security issue, to protect the health and safety of any person including the Live In Occupier(s) or to prevent material loss or damage to the Property;
Facilities: the facilities installed in the Property to enable the Live In Occupiers to occupy the Property, as specified in the Letter;
Initial Inspection: the assessment of the Property to be carried out by SEP or its representative in accordance with clause 8;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, 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 in any part of the world;
Letter: the Owner’s request for Services to which the Conditions are annexed;
Live In Occupier(s): the person(s) placed in the Property by SEP and its representatives for the Purpose;
Management Fee: the weekly fee for the provision of the Live In Occupier ‘Guardian’ Services, as specified in the Letter;
SEP: Secure Empty Property Limited registered in England and Wales with company number 7930767;
SEP Materials: has the meaning set out in clause 4.1(k);
Owner: the person or firm who purchases Services from SEP;
Property: the property specified in the e-mail, verbally or by letter in respect of which SEP and its representative’s will provide the Services;
Purpose: the provision by means of the Services of property protection services (which shall include the day to day security of the Property, deterring trespassers, and preventing security breaches and other damage to the Property);
Services: the Live In Occupier services supplied by SEP to the Owner whereby SEP places Live In Occupier(s) in the Property solely for the Purpose;
Start Up Fees: the charge for the installation and/or removal of any Facilities as specified in the Letter;
Term: the term of this Contract which shall begin on the Commencement Date and continue until terminated in accordance with clause 13.
1.1 Interpretation. In these Conditions, the following rules apply:
(a) a person includes a natural person, body corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2 Basis of contract
2.1 Confirmation by e-mail, letter or verbally and confirmed by e-mail constitutes an offer by the Owner to purchase the Services from SEP in accordance with the Conditions.
2.2 The offer shall only be deemed to be accepted when SEP acknowledges the e–mail, letter or verbally but confirmed by e-mail at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 SEP and its representatives shall be the sole provider of Live In Occupier Services to the Owner in respect of the Property throughout the Term.
2.4 The Contract is conditional upon SEP and its representatives being satisfied upon completing the Initial Inspection that the Property is suitable for occupation by the Live In Occupiers.
2.5 The Contract constitutes the entire agreement between the parties. The Owner acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SEP which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by SEP, and any descriptions or illustrations contained in SEP’s brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between SEP and the Owner for the supply of the Services.
2.6 These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Owner seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 Any quotation given by SEP shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3 Supply of Services
3.1 SEP shall supply the Services to the Owner in accordance with the Contract in all material respects.
3.2 SEP shall use all reasonable endeavours to meet any performance dates specified in the Letter, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 SEP shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and SEP shall promptly notify the Owner in any such event.
3.4 SEP warrants to the Owner that the Services will be provided using reasonable care and skill.
4 Owner’s obligations
4.1 The Owner shall:
(a) ensure that any information it provides is complete and accurate;
(b) if reasonably required by SEP, provide such plans or specifications of the Property which are reasonably necessary for the provision of the Services;
(c) ensure that the Property is vacant by the date that the Live In Occupiers are due to occupy the Property (as notified to the Owner by SEP at least 48 hours in advance of such date);
(d) co-operate with SEP in all matters relating to the Services (which shall include allowing SEP and it’s representatives to access the Property for the Purpose at any time during the Term without notice);
(e) promptly following confirmation of services to begin the occupancy, make the property keys available to to SEP and advise SEP of any security passes, alarm codes or similar security systems applicable to the Property;
(f) provide SEP with reasonable notice if the owner or it’s representatives wishes to access the Property (which shall not be less than 24 hours in advance);
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start including obtaining any necessary planning consents regarding the use of the Property for the Purpose;
(h) be responsible for all costs of utilities, rates, taxes and other expenses relating to the Property whether arising out of the provision of the Services or otherwise;
(i) maintain adequate policies of insurance against any loss or damage to the Property or its contents (including any property belonging to SEP or the Live In Occupier which is located at the Property), or to third parties present at the Property. The Owner shall ensure that its insurer of the Property shall waive any right of subrogation it may have against SEP and/or the Live In Occupier(s). It shall be the responsibility of the Owner to notify its insurers of the presence of the Live In Occupier(s) and to ensure that any policies of insurance are not invalidated by the provision of the Services by SEP or the presence of the Live In Occupier(s). SEP shall not be liable for any consequences of the Owner failing to comply with such obligations and the Owner shall indemnify SEP against any losses suffered or claims brought against it in relation to any loss or damage to the Property or the death or injury of any persons present at the Property;
(j) provide SEP on request with copies of the insurance policies;
(k) keep and maintain all materials, equipment, documents and other property of SEP (SEP Materials) at the Property in safe custody at its own risk, maintain SEP Materials in good condition until returned to SEP, and not dispose of or use SEP Materials other than in accordance with SEP written instructions or authorisation;
(l) (subject to clause 5.1(b) and clause 7) remain responsible for the safety, and the maintenance and repair of the Property in a condition suitable for occupation by the Live In Occupiers. Where the Owner carries out any repair or maintenance work to the Property it shall minimise disruption to the Live In Occupier(s) and make good any damage caused to the Property. Any disruption to utilities or other services to the Property shall be for the minimum period necessary to carry out the relevant repair or maintenance;
(m) remedy any defects to the Property notified to it by SEP as soon as reasonably practicable;
(n) be responsible for ensuring that the Property complies with all relevant applicable law as well as the requirements of any local authority;
(o) allow SEP to install such signage in accordance with applicable law as the Owner shall reasonably approve in and around the Property.
4.2 The Owner hereby authorises SEP to enter into licences with the Live In Occupier(s) to occupy the Property solely for the Purpose.
4.3 If SEP performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Owner or failure by the Owner to perform any relevant obligation (Owner Default):
(a) SEP shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Owner remedies the Owner Default to the reasonable satisfaction of SEP, and to rely on the Owner Default to relieve it from the performance of any of its obligations to the extent the Owner Default prevents or delays SEP performance of any of its obligations;
(b) SEP shall not be liable for any costs, losses or damages sustained or incurred by the Owner arising directly or indirectly from SEP failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Owner shall reimburse SEP on written demand for any costs, losses or damages sustained or incurred by SEP arising directly or indirectly from the Owner Default.
5 SEP’s Obligations
5.1 SEP shall:
(a) recruit up to the maximum number of Live In Occupiers specified in the Letter and carry out such background checks as it considers appropriate before placing such Live In Occupiers in the Property;
(b) carry out any additional repair and maintenance services as specified in, and subject to, the provisions of the Letter;
(c) if specified in the Letter, change or install locks at the Property at the Owner’s cost prior to the occupation by the Live In Occupier and on expiry of the Term (if applicable);
(d) where a change of locks (or other entry system) is required during the Term, provide the Owner with a copy of the new keys or other entry device as soon as practicable;
(e) provide the Live in Occupier(s) (at its own cost) with a fire extinguisher, smoke alarm and fire blanket;
(f) maintain insurances in the following minimum levels of cover:
(i) public and products liability insurance of £5,000,000; and
(ii) professional indemnity insurance of £100,000;
(g) allocate areas of the property for the Live in Occupier(s) to occupy and ensure that a replacement occupier is available to occupy the Property if the live in Occupiers are away from the property for a period exceeding 24 hours;
(h) (unless the Owner notifies SEP otherwise), notify the local police and neighbours of the presence of the Live In Occupier(s);
(i) ensure that the Live In Occupier(s) meet the cost of any Council Tax which is payable as a result of the provision of the Services;
(j) carry out a monthly inspection of the Property and its perimeters to ensure that no Emergency Repairs are required and that the Live In Occupiers are complying with the terms of their licence(s). Such inspection shall include taking the meter readings at the Property and noting any damage or repairs required to the Property. SEP shall provide the results of such inspection to the Owner by the Owner’s chosen method of communication;
(k) enter into licences with the Live In Occupier(s) and shall ensure the Live In Occupiers comply with the terms of such licence. SEP shall not have authority to and shall not at any time purport to grant to the Live In Occupier or any third party any tenancy or other right in the Property;
(l) not at any time occupy the Property itself;
(m) not alter the Property or allow the Live In Occupier to alter the Property without the prior consent of the Owner (unless expressly permitted under the Letter).
6 Charges and payment
6.1 The Owner shall pay the Charges specified in the confirmation e-mail, letter or verbally confirmed via e-mail.
6.2 SEP shall invoice the Owner for the agreed charges monthly in arrears provided that in relation to the initial 8 week minimum term SEP shall submit an invoice for the Charges payable therefor on the date that the first Live In Occupier commences occupation of the Property. Such initial invoice shall cover only any agreed charges which may include dependant on the property type the Intake Fee, the Start Up Fees and the relevant weekly Management Fee and Additional Costs for such 8 week period.
6.3 SEP shall review its Charges on an annual basis, beginning on the first anniversary of the Commencement Date. The parties shall meet in good faith to discuss any proposed increase in such Charges and if agreement cannot be reached between the parties, any such increase will be limited to a percentage equal to the percentage rate of increase (if any) of the last figure of the general index of retail prices published by the Office of National Statistics (Index) prior to the first anniversary of the Commencement Date or any subsequent anniversary of such date over the figure of the Index published on or immediately prior to the Commencement Date (taking into account any previous increase hereunder). Any such increase shall take effect from the relevant anniversary of the Commencement Date.
6.4 The Owner shall pay each invoice submitted by SEP:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by SEP, and
time for payment shall be of the essence of the Contract.
6.5 All amounts payable by the Owner under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by SEP to the Owner, the Owner shall, on receipt of a valid VAT invoice from SEP, pay to SEP such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.6 Without limiting any other right or remedy of SEP, if the Owner fails to make any payment due to SEP under the Contract by the due date for payment (Due Date), SEP shall have the right to charge interest on the overdue amount at the rate of three per cent per annum above the base lending rate of Nat West Bank plc accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.7 The Owner shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Owner shall not be entitled to assert any credit, set-off or counterclaim against SEP in order to justify withholding payment of any such amount in whole or in part. SEP may, without limiting its other rights or remedies, set off any amount owing to it by the Owner against any amount payable by SEP to the property Owner.
6.8 If the Owner disputes any invoice or other statement of monies due, it shall immediately notify SEP in writing. The parties shall negotiate in good faith to attempt to resolve the dispute within 10 Business Days. SEP shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date SEP obligations to provide the Services shall not be affected by any payment dispute.
7 Emergency Repairs
7.1 SEP shall carry out any Emergency Repairs or essential maintenance required to the Property as specified in the Letter. The Owner authorises SEP to use its discretion in deciding what constitutes an Emergency Repair or essential maintenance work and shall reimburse SEP any cost it incurs in carrying out such work, up to the maximum monthly authorised spend specified in the Letter. SEP shall include such amounts in the monthly invoice submitted in accordance with clause 6.2.
7.2 SEP shall use its reasonable endeavours (but shall be under no obligation) to obtain the consent of the Owner before carrying out or procuring any repairs under this clause 7 where reasonably practicable.
8 Initial Inspection
8.1 This contract is conditional upon SEP and its representatives being satisfied as a result of its Initial Inspection that the Property is fit for occupation by the Live In Occupiers. If SEP is not satisfied with the results of the Initial Inspection, it shall promptly notify the Owner and SEP shall either:
(a) provide the Owner with a quote for SEP to procure the carrying out of such work as is required to rectify the Property to SEP reasonable satisfaction, and SEP shall perform (or procure the performance of) such rectification work on terms to be agreed in writing with the Owner; or
(b) terminate the Contract forthwith.
8.2 The Initial Inspection shall be limited to the health and safety and fire issues which are apparent from a visible inspection of the Property and SEP shall not be liable for any costs, loss, damages, or expenses suffered by the Owner, any Live In Occupier or third party due to any defect in the Property or other health and safety issue which would not have been visible on a reasonable visual inspection of the Property. The Owner shall indemnify SEP against any loss, damages, costs or expenses it may suffer as a result of such defects or health and safety issues (including any third party claim which may be brought against SEP in relation to the same).
9.1 The Owner appoints SEP as its agent for the purpose of procuring the Facilities if needed and confirmed by the owner, which shall include negotiating and entering into any agreement with a supplier for the purchase of the Facilities on the Owner’s behalf.
9.2 SEP shall, if agreed in the Letter, install the Facilities at the Property and make good any damage caused by such installation.
9.3 SEP shall, if requested by the Owner, remove such Facilities from the Property at the expiry of the Term and make good any damage caused by such removal. SEP shall dispose of the Facilities as agreed with the Owner.
10 Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by SEP.
10.2 All SEP Materials are the exclusive property of SEP.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
12 Limitation of liability: THE OWNER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 Subject to clause 12.1:
(a) neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contract, business or goodwill or for any indirect or consequential loss or damage whatsoever arising under or in connection with the Contract;
(b) and subject to clause 4.1(i), SEP and its representatives will be responsible for damage to the Property to the extent that such damage is directly caused by the negligence of SEP or of any person for whose acts it is responsible provided that the liability of SEP in respect of loss or damage to the Property shall be limited to the lower of the direct costs of replacement or repair of the Property or the sum of £5,000,000 per incident or series of incidents arising out of the one event;
(c) SEP’s total liability to the Owner in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed a sum which is equivalent to 6 months’ total charges for that property; and
(d) the Owner’s total liability to SEP in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed a sum which is equal to 4 weeks’ total charges for that property.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) any corporate action, legal proceedings or other procedure or step is taken in relation to the appointment of a liquidator other than in respect of a solvent liquidation of a party that has previously been approved by the other party, administrator, administrative receiver, receiver or other similar officer in respect of a party or any of its assets;
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(b) to clause 13.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, SEP may terminate the Contract with immediate effect by giving written notice to the Owner if the Owner fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party the period of written notice specified in the Letter, such notice to expire no sooner than the expiry of the initial 8 week minimum term.
13.4 Without limiting its other rights or remedies, SEP shall have the right to suspend provision of the Services under the Contract or any other contract between the Owner and SEP if the Owner becomes subject to any of the events listed in clause 13.1(b)) to clause 13.1(l), or SEP reasonably believes that the Owner is about to become subject to any of them, or if the Owner fails to pay any amount due under this Contract on the due date for payment.
14 Consequences of termination
On termination of the Contract for any reason:
(a) the Owner shall immediately pay to SEP all of SEP outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SEP shall submit an invoice, which shall be payable by the Owner immediately on receipt;
(b) the Owner shall return all of SEP Materials;
(c) SEP shall serve notice on the Live In Occupier(s) to terminate their licence to occupy the Property and ensure that any Live In Occupier has vacated the Property by the expiry of the Term;
(d) if the Live In Occupiers fail to vacate the Property by the expiry of the Term, SEP shall take reasonable steps to remove the Live In Occupiers from the Property (which shall include serving eviction notice(s) where required and taking court proceedings against the Live In Occupier(s) to evict the Live In Occupier(s) SEP shall meet the costs of such legal proceedings);
(e) provided that SEP has complied with clause 14(c) and 14(d), SEP shall not be in breach of contract and this agreement shall remain in force until the date that the Live In Occupier vacates the Property;
(f) SEP shall make good the Property to the reasonable satisfaction of the Owner by the Monday morning following the expiry of the notice period;
(g) SEP shall return the keys to the Property (including any spare keys obtained by or on behalf of the Live In Occupiers) to the Owner;
(h) SEP shall (if requested to do so by the Owner and invoice) remove any Facilities which have been installed in the Property and SEP shall charge and the Owner shall immediately pay the amount agreed with the Owner for such removal;
(i) Remove any signage which SEP has placed in or around the Property and make good any damage caused by such removal;
(j) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(k) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of SEP including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SEP or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event continues for more than 4 weeks, the party unaffected by the Force Majeure Event shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the other.
15.2 Assignment and subcontracting:
(a) SEP may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Owner shall not, without the prior written consent of SEP (which shall not be unreasonably withheld or delayed), assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(c) Notwithstanding clauses 15(a) and 15(b) above, either party shall be entitled to assign the contract by way of security over the cash flow receivable by that to any bank which provides the party with financial facilities.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax or e-mail to the other party’s fax or e-mail address (as applicable) as specified in the Letter. SEP’s preferred method of communication is verbally and by e-mail.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax or e-mail, at the time of transmission.
(c) This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract, which shall include the Live In Occupiers, shall not have any rights under or in connection with it.
15.8 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by both parties.
15.9 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.