Interpretation
1.1 DEFINITIONS
Agreement the Agreement between the Supplier and the Customer
for the Maintenance of the Units in accordance with these
Conditions.
Business Day a day (other than a Saturday, Sunday or public holiday)
when banks in London are open for business.
Commencement Date the date which is 7 days after the date on
which the Customer signs this contract or, if later, the date on which
the Contract commences as set out in the Order
Conditions the terms and conditions set out in this document, as amended
from time to time in accordance with Condition 11.5.
Contract the contract between the Supplier and the Customer for the
Rental of the Units in accordance with these conditions.
Customer the person, partnership, unincorporated association,
company or other organisation named in the Order.
Deposit a deposit charged for each bottle purchased, which will be
refunded when returned, provided the bottle remains undamaged.
For the avoidance of doubt there are no deposits in relation to
hydration packs.
Extension Period the extension period of this Maintenance agreement
is 12 months.
Force Majeure Event an event or circumstance beyond a party’s
reasonable control.
Rental the rental of units in accordance with section 3.
Initial Period the relevant period for the Rental of Units as set out in the
Order.
Order the Customer’s order for purchase of the Units, as set out in the
Customer’s purchase order form or the Customer’s written
acceptance of the Supplier’s quotation, as the case may be.
Payments the sums payable by the Customer as defined in
Condition 5.1 and set out in the Order or as varied under Condition
5.2.
Specification any specification for the Units, including any related
plans and drawings, that is agreed in writing by the Customer and
the Supplier.
Standard Payment Terms 30 days from invoice date unless otherwise
stated.
Supplementary Charges the charges set out in Conditions 5.3 to 5.6.
Supplier Culligan (UK) Limited (registered in England and Wales with
company number 02418453).
Units any water cooler machines and associated goods and
equipment (or any substitute for such items) to which this Contract
applies.
1.2 Interpretation
1.2.1 a reference to a statute or statutory provision is a reference to
such statute or 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.
1.2.2 any phrase introduced by the terms including, include, or any
similar expression shall be construed as illustrative and shall not
limit the sense of the words preceding those terms.
1.2.3 unless the context requires otherwise, words in the singular shall
include the plural and, in the plural, shall include the singular.
1.2.4 a reference to writing or written includes emails.
2 Basis of contract
2.1 The terms of Contract shall consist of the Order and these Conditions
to the exclusion of any other terms that the Customer seeks to impose
or incorporate, or which are implied by trade, custom, practice or
course of dealing. Neither these Conditions nor the Order shall be
modified without the written agreement of the Supplier.
3 Rental of Units
3.1 The Contract shall commence on the Commencement Date and,
unless terminated earlier in accordance with Condition 8, shall
continue for the Initial Period and then shall automatically extend for
consecutive 12 month periods unless the contract is terminated in
accordance with the conditions set out in Clause 8.3.
3.2 The Supplier shall rent the Units to the Customer (Rental) subject to
the Contract.
3.3 The Supplier shall perform its obligations with reasonable care and
skill.
3.4 The Supplier shall carry out routine periodic servicing of the Rental
Units as set out in the Order which shall include:
3.4.1 replenishment of any consumables and bottles;
3.4.2 exchange of any Rental Units if applicable but for the
avoidance of doubt the Supplier shall not be obliged to
exchange the Units where, in the Supplier’s reasonable
opinion, malicious damage has occurred; and
3.4.3 non-routine maintenance or repairs shall be carried out in
accordance with Condition 4 below.
3.5 For the period of any Rental, the Customer shall:
3.5.1 ensure the Units remain readily identifiable as the
Supplier’s property;
3.5.2 not remove, deface or obscure any identifying mark or
packaging on or relating to the Units;
3.5.3 maintain the Units in satisfactory condition and keep them
insured against all risks for their full value from the date of
delivery;
3.5.4 notify the Supplier immediately if it becomes subject to
any of the events listed in Condition 8.1; and
3.5.5 give the Supplier such information relating to the Units as
the Supplier may require from time to time.
3.6 The Supplier may replace the Rental Units from time to time with
substitute goods of a substantially similar standard and
specification to the Units.
4 Non-routine repair and maintenance
4.1 Upon any fault occurring with the Units or if the Units become a
health and safety hazard:
4.1.1 the Customer shall notify the Supplier as soon as possible
and take such steps as are reasonably necessary to
mitigate the effect of such fault or hazard; and
4.1.2 subject to Condition 6.2, the Supplier shall, as soon as
reasonably practicable, take all proper steps to correct
the fault at its own cost by repairing or replacing all or
part of the Units.
4.2 The Payments include the provision of non-routine repairs
required as a result of a malfunction or component failure but
do not include the repair of any faults in the Units arising from or
in connection with:
4.2.1 misuse, vandalism, incorrect environmental conditions
(including, without limitation, incorrect temperature
levels), mains electrical surges or failures; or
4.2.2 any other accidental, negligent or wilful damage for
which Supplementary Charges will be payable.
5 Prices, supplementary charges and other charges
5.1 Where the Customer’s total monthly payment in respect of
Maintenance (Price) is less than £20 per month, the Price shall
be payable by the Customer on receipt of the Supplier’s invoice
which shall be issued annually in advance without deduction,
counterclaim or set-off.
5.2 The Supplier may vary the Prices as follows:
5.2.1 at any time where performance of its obligations under the
Contract become more difficult and/or costly as a result of
new laws or regulations or a change in existing laws or
regulations, including those which result in increases in
National Insurance contributions and other staff costs;
5.2.2 to take account of an increase in the Supplier’s operating
costs including (without limitation) increases in fuel prices.
Supplementary charges
5.3 The Supplier reserves the right to recharge to the customer, any
unforeseen costs incurred by the Supplier, beyond the Supplier’s
control.
5.4 Supplementary Charges and other charges referred to in this
Condition 5 are payable at the rates current at the time that the
relevant services are provided, or costs incurred and Standard
Payment Terms shall apply.
5.5 All Payments are subject to the addition of VAT at the prevailing
rate which shall be additionally payable by the Customer in full.
6 Customer’s obligations
6.1 The Customer shall notify the Supplier of any material changes to
their details including address and invoicing details.
6.2 The Customer agrees and covenants with the Supplier as follows:
6.2.1 to allow the Supplier and its agents full, convenient and
safe access to the Units during such hours as may be
necessary to perform its obligations under the Contract;
6.2.2 not to interfere with the Units (including but not limited to
attempting to repair, adjust or modify the Units);
6.2.3 to care for and operate the Units in accordance with all
relevant instructions;
6.2.4 not to connect the Units (other than with the Supplier’s
prior written consent) to any other equipment;
6.2.5 where the type of Unit supplied allows the Customer to fill
containers with water supplied by the Customer.
Terms and Conditions Rental Agreement
Customer shall be wholly responsible for the quality of the
water and the cleanliness of the containers used.
6.2.6 to promptly carry out such action to the Units as may be
advised by the Supplier from time to time;
6.2.7 to take all reasonable steps to eliminate any cause of a
fault as set out in Condition 6.2; and
6.2.8 to notify the Supplier immediately of any loss or damage
to the Units and/or the bottles.
6.3 Where the Units supplied under the Contract are manufactured
or customised to the Customer’s own specifications or
requirements, the Customer acknowledges that:
6.3.1 the Units are required for the purposes of a business
carried on by the Customer;
6.3.2 the Units were selected by the Customer and acquired at
its request by the Supplier from its supplier for the purposes
of the Contract; and
6.3.3 the Supplier’s supplier is not the agent of the Supplier
unless this is required by law.
7 Data
7.1 For the purposes of this Condition 7, the following terms shall
have the meaning defined in the Data Protection Legislation:
Controller, Processor, Data Subject, Personal Data, Personal Data
Breach, processing and appropriate technical and
organisational measures.
7.2 Both parties will comply with all applicable requirements of the
Data Protection Legislation. This Condition 7 is in addition to, and
does not relieve, remove or replace, a party’s obligations or
rights under the Data Protection Legislation. In this Condition 7
Applicable Laws means (for so long as and to the extent that
they apply to the Provider) the law of the European Union, the
law of any member state of the European Union and/or
Domestic UK Law; and Domestic UK Law means the UK Data
Protection Legislation and any other law that applies in the UK.
7.3 The parties acknowledge that for the purposes of the Data
Protection Legislation, the Customer is the Controller and the
Provider is the Processor.
7.4 Without prejudice to the generality of Condition 7.2, the
Customer will ensure that it has all necessary appropriate
consents and notices in place to enable lawful collection of the
Personal Data by the Provider on behalf of the Customer for the
duration and purposes of the Contract.
7.5 Without prejudice to the generality of Condition 7.2, the Provider
shall, in relation to any Personal Data processed in connection
with the performance by the Provider of its obligations under the
Contract:
7.5.1 process that Personal Data only on the documented
written instructions of the Customer unless the Provider is
required by Applicable Laws to otherwise process that
Personal Data. Where the Provider is relying on Applicable
Laws as the basis for processing Personal Data, the Provider
shall promptly notify the Customer of this before performing
the processing required by the Applicable Laws unless
those Applicable Laws prohibit the Provider from so
notifying the Customer;
7.5.2 ensure that it has in place appropriate technical and
organisational measures, reviewed and approved by the
Customer, to protect against unauthorised or unlawful
processing of Personal Data and against accidental loss or
destruction of, or damage to, Personal Data, appropriate
to the harm that might result from the unauthorised or
unlawful processing or accidental loss, destruction or
damage and the nature of the data to be protected,
having regard to the state of technological development
and the cost of implementing any measures (those
measures may include, where appropriate,
pseudonymising and encrypting Personal Data, ensuring
confidentiality, integrity, availability and resilience of its
systems and services, ensuring that availability of and
access to Personal Data can be restored in a timely
manner after an incident, and regularly assessing and
evaluating the effectiveness of the technical and
organisational measures adopted by it);
7.5.3 ensure that all personnel who have access to and/or
process Personal Data are obliged to keep the Personal
Data confidential; and
7.5.4 not transfer any Personal Data outside of the European
Economic Area unless the prior written consent of the
Customer has been obtained and the following
conditions are fulfilled:
(a) the Customer or the Provider has provided
appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and
effective legal remedies;
(c) the Provider complies with its obligations under
the Data Protection Legislation by providing an
adequate level of protection to any Personal
Data that is transferred; and
(d) the Provider complies with reasonable instructions
notified to it in advance by the Customer with
respect to the processing of the Personal Data;
7.5.5 assist the Customer, at the Customer’s cost, in responding to
any request from a Data Subject and in ensuring compliance
with its obligations under the Data Protection Legislation with
respect to security, breach notifications, impact assessments
and consultations with supervisory authorities or regulators;
7.5.6 notify the Customer without undue delay on becoming
aware of a Personal Data Breach;
7.5.7 at the written direction of the Customer, delete or return
Personal Data and copies thereof to the Customer on
termination of the agreement unless required by Applicable
Law to store the Personal Data; and
7.5.8 maintain complete and accurate records and information
to demonstrate its compliance with Condition 7.
7.6 The Customer does not consent to the Provider appointing any thirdparty processor of Personal Data under the Contract.
7.7 Either party may, at any time on not less than 30 days’ notice, revise
this Condition 7 by replacing it with any applicable controller to
processor standard clauses or similar terms forming part of an
applicable certification scheme (which shall apply when replaced
by attachment to the Contract).
8 Termination
8.1 Without limiting its other rights or remedies, the Supplier may
terminate this Contract with immediate effect by giving written
notice:
8.1.1 if the Customer breaches any condition of the Contract;
8.1.2 if the Customer fails to pay any amount due under the
Contract on the due date for payment;
8.1.3 in the event of the Customer’s abandonment of the Units
and/or Bottles;
8.1.4 in the event of the Customer becoming bankrupt or insolvent
or, being a company, making an assignment for the benefit of
its creditors or ceasing to do business as a going concern or
entering into liquidation, whether compulsory or voluntary, or
having a receiver appointed or taking or suffering any similar
action in consequences of debt; or
8.1.5 the Customer’s financial position deteriorates to such an extent
that in the Supplier’s opinion the Customer’s capability to
adequately fulfil its obligations under the Contract has been
placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may suspend
provision of the Services under the Contract or any other contract
between the Customer and the Supplier if the Customer becomes
subject to any of the events listed in Conditions 8 to 8.1.5, or the
Supplier reasonably believes that the Customer is about to become
subject to any of them, or if the Customer fails to pay any amount due
under this Contract on the due date for payment.
8.3 The Maintenance of the Units pursuant to this Contract will start on the
date of the Contract and shall continue for the Initial Period. The
Customer may terminate the Contract by giving a minimum of 90
days’ notice prior to the expiry of the Initial Period or subsequent
Extension Period. Failure to give such notice in accordance with this
Condition 8.3 shall mean the Contract shall be renewed for a further
12 months.
8.4 On termination of the Contract for any reason:
8.4.1 the Customer shall, without prejudice to the Supplier’s other
rights and remedies, pay to the Supplier on demand any and
all Payments and other sums payable under the Contract up to
the date of termination;
8.4.2 at the Supplier’s discretion, pay a cancellation charge
commensurate with the Supplier’s costs incurred up to the date
of termination plus the Supplier’s loss of profit;
8.4.3 the rental of units shall cease and the Customer shall
immediately make the Units available for collection by the
Supplier in good working order and condition (fair wear and
tear excepted), in default of which the Supplier shall be entitled
to charge Payments from the date of termination to the date
on which Units are collected.
8.5 In the event that:
8.5.1 the Customer seeks to terminate the Maintenance of one or
more of the Units or the Contract in its entirety, otherwise than
in accordance with the notice requirements in Condition 8.3;
or
Terms and Conditions Rental Agreement
8.5.2 any of the circumstances in Condition 8.1 occur and as a
result the Supplier elects to terminate the Contract, the
Customer shall pay to the Supplier, in addition to the sums
payable under Condition 8.4, the following sums by way of
liquidated damages:
(a) the charges which would have become payable if
the notice requirements in Condition 8.3 were
complied with; and
(b) a fee up to £175.00 per Unit at the Supplier’s
reasonable discretion to cover the costs of
administration and collection of the Units and bottles.
8.6 Termination of the Contract shall not affect any of the parties’ rights
and remedies that have accrued as at termination, including the
right to claim damages in respect of any breach of this Contract
that existed at or before the date of termination.
8.7 The Supplier will retain the title of the Units and, upon termination, will
retain the right to enter Customer premises and remove the units.
8.8 Any provision of the Contract that expressly or by implication is
intended to come into or continue in force on or after termination
shall remain in full force and effect.
9 Limitation of liability
9.1 Subject to Condition 9.2, all conditions, warranties and
representations, whether express or implied and whether arising by
reason of statute, common law or otherwise relating to the quality of
the Units, their suitability or fitness for purpose and their conformity
with description or sample are expressly excluded from the Contract
to the fullest extent permitted by law. In particular, any published
pictures or descriptions of the Units are for indication purposes only
and actual products supplied may differ from such pictures or
descriptions.
9.2 Nothing in these Conditions shall limit or exclude the Supplier’s liability
for:
9.2.1 death or personal injury caused by its negligence, or the
negligence of its employees, agents or subcontractors (as
applicable);
9.2.2 fraud or fraudulent misrepresentation;
9.2.3 breach of the terms implied by section 12 of the Sale of Goods
Act 1979; or
9.2.4 any matter in respect of which it would be unlawful for the
Supplier to exclude or restrict liability.
9.3 Subject to Condition 9.1:
9.3.1 the Supplier shall under no circumstances whatsoever be liable to
the Customer, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, for any loss of profit, or any
indirect, consequential or special loss or damage arising under or
in connection with the Contract;
9.3.2 the Supplier’s liability for loss or damage to property including
fixtures and fittings caused by an act or omission of the Supplier
or its agents, employees or sub-contractors shall not exceed
£1,000,000 per incident; and
9.3.3 the Supplier’s total liability to the Customer in any 12-month period
caused by an act or omission of the Supplier or its agents,
employees or sub-contractors 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 in no circumstances exceed the total payments
paid to the Supplier in such 12-month period;
9.4 The Customer shall indemnify the Supplier against any or all of the
following:
9.4.1 any loss or damage to the Units, howsoever arising
9.4.2 any and all damage, loss, liability or expenses which the Supplier
may suffer or incur as a result of a claim by a third party; and
9.4.3 all costs and expenses (including without limitation enquiry
agents, debt collection agents and legal costs on a full indemnity
basis) incurred or sustained by the Supplier in enforcing any of the
terms of this Contract.
10 Notices
10.1 Any notice required or permitted to be given under the Contract shall
be deemed to have been validly given if served personally upon that
party or if sent by first class pre-paid post or other next working day
delivery service or sent by email to the address of that party as stated
in the Contract, its last known address or its registered office.
10.2 A notice or other information sent by first class pre-paid post shall be
deemed to have been received by the other party within 48 hours
after the date of posting. Any notice or other information sent by
email shall be deemed to have been received by the other party at
the time that it was transmitted.
11 General
11.1 If the Customer’s own systems require it, the Customer shall provide a
correct purchase order number at the time of placing the Order.
11.2 The Supplier (but not the Customer) may at any time assign, novate,
subcontract or deal in any other manner with all or any of its rights or
obligations under the Contract (in whole or in part) to any other
party without the consent of the Customer.
11.3 The person or persons who sign the Contract on behalf of the
Customer warrant that they have the appropriate and necessary
authority to do so and to bind the Customer to the terms set out
herein. Where two or more persons are stated to be the Customer,
each of those persons shall be jointly and severally liable for
performance of the Customer’s obligations under the Contract.
11.4 Acceptance of this agreement can be via manual signature,
electronic signature or verbally recorded and the Customer confirms
that the method of acceptance which it has used to enter into this
Contract is valid and binding on it.
11.5 This Contract constitutes the entire agreement between the parties
and may only be modified by agreement in writing, such variation to
be signed by the parties (or their authorised representatives). If any
part of it shall, for any reason, be found or held illegal, invalid or
unenforceable, this shall not affect the remainder of its terms which
shall survive and be construed as if the illegal, invalid or
unenforceable part had not been contained in the Contract.
11.6 No one other than a party to this Contract and their permitted
assignees shall have any right to enforce any of its terms.
11.7 No failure or delay by the Supplier to exercise any right or remedy
provided under the Contract or by law shall constitute a waiver of
that or any other right or remedy, nor shall it prevent or restrict the
further exercise of that or any other right or remedy. No single or
partial exercise of such right or remedy shall prevent or restrict the
further exercise of that or any other right or remedy.
11.8 The parties agree that it is not practical to obtain signatures for all
services performed and so the Customer accepts that the Supplier’s
computerised records of the services provided under the Contract
will be adequate proof of the fact that those services have been
delivered.
11.9 The Contract, and any dispute or claim (including non-contractual
disputes or claims) arising out of or in connection with it or its subject
matter or formation, shall be governed by and construed in
accordance with the law of England and Wales. Each party
irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with
this Contract or its subject matter or formation.
11.10 If at any point the Supplier undergoes a change of legal entity, this
contract and all conditions within, will transfer to the new legal
entity.
