Terms and conditions

DEFINITIONS

1. "Agreement" means these Terms together with the terms of any Order;
2. "Customer" means the organization or person who purchases Goods and/or services from QCEL;
3. "Goods" means the goods or equipment set out in the Order;
4. "Order" means a statement of work, quotation, order of costs or other similar written document issued by QCEL recording or describing the Goods and services to be supplied by QCEL;
5. "QCEL" means QCEL Catering Equipment Limited.

SAFETY FIRST

All equipment supplied and/or installed by or on behalf of QCEL may be commissioned only if all services (i.e. gas, electric, water) are connected and conform to all current applicable laws, regulations and legislation. It is the sole responsibility of the Customer to establish this and if in doubt, to contact the supplier of such services.

All installation and commissioning shall be undertaken only by contractors holding the relevant (e.g. CORGI) qualifications. The Customer will not use any equipment until authorized by the qualified contractor and shall immediately deal with, procure or otherwise comply with any requirement or request of the contractor. .

All suitable and necessary services and connections of the correct specification and capacity to include water supplies electrical power points, sockets, gas supply taps, connectors, waste, air conditioning or ventilation (Site Services) shall be provided by the Customer prior to delivery and/or use of any equipment supplied by QCEL. QCEL will not make any modifications to the Site Services. If in doubt the Customer must consult a suitably qualified contractor.

QCEL will provide technical specification details relating to any equipment it is to supply only on written request.

QCEL will not and do not advise on technical matters relating to any Site Services.

GENERAL

1. These Terms apply to all contracts for the supply of Goods and services by QCEL to the Customer unless varied in writing by any Order. No variation to these Terms is binding unless agreed in writing between the Customer and a duly authorized representative of QCEL.
2. Before the commencement of the services or the supply of Goods QCEL shall submit to the Customer an Order which shall specify the Goods and services to be supplied and the price payable. The Customer shall notify QCEL immediately if the Customer does not agree with the contents of the Order. All Orders shall be subject to these Terms.

PRICE AND PAYMENT

1. The price for the supply of Goods and/or services shall be as set out in the Order. Unless otherwise agreed in writing QCEL shall invoice in advance against the agreed Order prior the supply, delivery of any Goods or commencement of any services.
2. Invoiced amounts shall be due and payable on delivery of any invoice unless otherwise agreed in writing without any set off or other deductions whatsoever.
3. QCEL shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 4.00% per annum above the base rate from time to time of Lloyds Bank plc subject to a minimum rate of 8% p.a.
4. Where the Goods or services to be supplied are supplied in the UK any fluctuations in labour, materials and other costs, prices may be subject to alteration without notice and QCEL reserves the right to invoice or amend any invoice at the prices ruling at the date of dispatch or provision of the services. If the same is caused by a Brexit Trigger Event then the provisions of clause 14 shall apply.
5. If a Customer places an order (which is confirmed in an Order) and pays any agreed deposit but fails to pay the balance payable when due QCEL shall be entitled in its discretion and without prejudice to any other remedy it may have, to cancel that or any other Order without liability to the Customer and to retain the whole of the deposit on account of its costs, losses and expenses.

SPECIFICATION OF THE GOODS

1. All Goods shall conform only to the specification contained in the Order and not otherwise. For the avoidance of doubt no description, specification, sample or illustration contained in any product pamphlet, catalogue or other sales or marketing literature of QCEL or of any of its suppliers shall apply and no representation or written or oral correspondence or statement in respect thereof shall form part of this Agreement.
2. The design of any Goods to be supplied may be subject to variation at any time without notice.

DELIVERY

1. The date of delivery of any Goods or services specified by QCEL is approximate only. Time for delivery shall not be of the essence and QCEL shall not be liable for any loss, costs, damages, charges or expenses of the Customer caused directly or indirectly by any delay in the delivery of the Goods or services.
2. All risk in any Goods shall pass to the Customer upon delivery.
3. Orders are accepted strictly subject to QCEL's ability to secure parts materials or products from any relevant third party.
4. Orders instructing dispatch in consignments with a net invoiced value exclusive of VAT of £1500 and over are dispatched carriage paid to destinations within the mainland United Kingdom. Carriage is charged at cost to destinations in Ireland, Northern Ireland, the Isle of Wight, Channel Islands, Isle of Man and the Scottish Isles. Orders to an invoiced value below £1500 are subject to a carriage charge at cost to all destinations. Costs of carriage resulting from special instructions, eg Red Star, Air Freight, Special Messenger, etc, will be chargeable.

TITLE

1. Title in any Goods shall not pass to the Customer until the QCEL has been paid in full for the Goods. QCEL will only pass such title as it may have and shall notify the Customer of any title held or claimed by third parties of which it is aware. The Customer is specifically prohibited from parting with or purporting to confer title upon any third party until QCEL has been paid in full or during any period of credit that QCEL may agree.
2. Until title to the Goods has passed to the Customer, the Customer shall:
   1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as QCEL's property;
   2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
   3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on QCEL's behalf from the date of delivery;
   4. notify QCEL immediately if it becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.5; and
   5. give QCEL such information relating to the Goods as the Supplier may require from time to time.
3. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.5, then, without limiting any other right or remedy QCEL may have:
   1. the Customer's right to use the Goods in the ordinary course of its business ceases immediately; and
   2. QCEL may at any time:
      1. require the Customer to deliver up all Goods in its possession; and
      2. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

CUSTOMER'S OBLIGATIONS

1. To enable QCEL to perform its obligations under this Agreement the Customer shall:
   1. Co-operate with QCEL and do all things necessary to afford unfettered access to any premises;
   2. Provide QCEL with any information reasonably required by QCEL;
   3. obtain all necessary permissions and consents which may be required before the commencement of the services; or delivery of any Goods and do all things necessary to configure any premises or the fixtures fittings and other equipment therein to allow the efficient and safe use of any Goods supplied and
   4. comply with such other requirements as may be set out in the Order or otherwise agreed between the parties.
   5. Do all things necessary to permit the installation and safe use of any Goods or equipment supplied by QCEL
2. The Customer shall be liable to compensate QCEL for any expenses incurred by QCEL as a result of the Customer's failure to comply with Clause 7.1.
3. Without prejudice to any other rights or remedies to which QCEL may be entitled, in the event that the Customer unlawfully terminates or cancels the Goods and services agreed to in the Order, the Customer shall be required to pay to the QCEL as agreed damages and not as a penalty the full amount of any third party costs to which QCEL has committed and in respect of cancellations on less than five working days' written notice the full price for the Goods and services contracted for as set out in the Order, and the Customer agrees this is a genuine pre-estimate of QCEL's losses in such a case. For the avoidance of doubt, the Customer's failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of an Order for Goods and services and will be subject to the payment of the damages set out in this Clause.
4. In the event that the Customer or any third party, not being a sub-contractor of QCEL, shall omit or commit anything which prevents or delays QCEL from undertaking or complying with any of its obligations under this Agreement, then QCEL shall notify the Customer as soon as possible and:
   1. If applicable, the timetable for the project will be modified as necessary; and
   2. QCEL shall be entitled to claim for additional costs.

ALTERATIONS TO THE ORDER

1. The parties may at any time mutually agree upon and execute amendments to any Order. Any alterations in the scope of Goods and/or services to be supplied under this Agreement shall be set out in the revised Order, which shall reflect the changed or varied Goods and/or services and price and any other terms agreed between the parties.
2. The Customer may at any time request alterations to the Order by notice in writing to QCEL. On receipt of the request for alterations QCEL shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
3. Where QCEL gives written notice to the Customer agreeing to perform any alterations to an Order on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise QCEL by notice in writing whether or not it wishes the alterations to proceed.
4. Except as provided for in clause 3.4, where QCEL gives written notice to the Customer agreeing to perform alterations to an Order on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Order shall be amended to reflect such alterations and thereafter QCEL shall perform this Agreement upon the basis of such amended terms.

WARRANTY

1. QCEL warrants that any services performed under this Agreement shall be performed using reasonable skill and care, and will conform to generally accepted industry standards and practices in the United Kingdom.
2. Except as may be precluded by law or as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the Goods and services to be supplied by QCEL. No liability will be accepted by QCEL for Goods or services which the Customer claims are defective unless a written claim is made within fourteen days of the date of delivery of the Goods or completion of the services.
3. QCEL shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for:
   1. any indirect or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by its negligence, employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or the services or their use or resale by the Customer, except as expressly provided in these Terms; and/or
   2. any sum exceeding the value of Goods or services to be supplied; and QCEL's total liability shall be limited to the price of the Goods or services payable by the Customer as provided for in clause 11 or as provided for in clause 9.4.
4. All Goods QCEL supplies are inspected before leaving the works and everything possible is done to ensure first class material and workmanship. Goods are subject to QCEL's standard guarantee and any found to be defective will be repaired, credited or replaced without charge, under the terms of QCEL's standard guarantee, provided written notice is given to QCEL within the period stipulated in the guarantee . In no case will QCEL be liable for repairs made without its knowledge or sanction, or for indirect damage, or any consequential loss or expenses incurred by the Customer.

INDEMNIFICATION

The Customer shall fully indemnify QCEL against all claims, costs and expenses which QCEL may incur and which arise, directly or indirectly, from the Customer's breach of any of its obligations under this Agreement,

LIMITATION OF LIABILITY

1. Subject to the provisions of clause 9, except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of QCEL to the Customer in respect of any claim whatsoever or for breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
2. Without in any way limiting the provisions of clause 9.3.1, in no event shall QCEL be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or QCEL had been made aware of the possibility of the Customer incurring such a loss.

TERMINATION/RETURNS

1. Either party may terminate this Agreement forthwith by notice in writing to the other if:
   1. the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
   2. the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
   3. the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
   4. the other party ceases to carry on its business or substantially the whole of its business; or
   5. the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
2. No Goods may be returned without QCEL's consent having been previously obtained in writing and any such returned equipment shall be credited at the invoiced price less a handling charge of 25% thereof, provided that after inspection at QCEL such equipment is found to be in an unused and undamaged condition. In the event of use or damage, QCEL shall compute a reconditioning charge which will be deducted from the otherwise applicable credit.
3. QCEL reserves the right to refuse countermands or cancellations, which cannot be accepted in the case of Goods in process of manufacture or ready for despatch. Cancellation can only be accepted subject to a cancellation charge amounting to a 25% of the nett invoice price on standard products and 75% on special products (ie those not shown on the published price lists).
4. In no circumstances shall QCEL be required to accept the return of any Goods obtained or manufactured to the Customers specific/bespoke design or requirements.

FORCE MAJEURE

Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. This clause 13 shall not apply to any Brexit Triger Event.

BREXIT

1. Right to renegotiate or terminate. If the Goods or services to be supplied under this Agreement are to be supplied to a country which is outside the UK and within the EU, this clause 14 shall apply. If at any time after a Brexit Trigger Event occurs which has an Adverse Impact on QCEL, QCEL may:
   1. require the Customer to negotiate an amendment to this Agreement to alleviate the Adverse Impact, in accordance with clause 14.5; and
   2. if renegotiation fails, terminate this agreement in accordance with clause 14.6.
2. Brexit. Brexit means the UK ceasing to be a member state of the European Union, regardless of which countries comprise the UK at that date.
3. Brexit Trigger Events. A Brexit Trigger Event means any of the following events if solely caused by Brexit:
   1. Change in Law: a change in the Law or a new requirement to comply with any existing Law or existing Law ceasing to apply to QCEL. For these purposes, Law means any legal provision a party must comply with including any law, stature, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, enforceable EU right within the meaning of section 2 of the European Communities Act 1972, bye-law, regulation, order, mandatory guidance or code of practice, judgment of a court of law, or requirement of any regulatory body, whether in the UK or elsewhere;
   2. Trade tariff: in any jurisdiction, the imposition of, or a change to, a duty, tax or levy imposed on imports or exports of the Goods supplied by QCEL or any raw materials or components used by QCEL's supplier to manufacture the Goods supplied by QCEL or any products into which they are to be incorporated or in conjunction with which they are to be commercially exploited provided that such a change or imposition is not applied equally in respect of the whole of the EU for so long as the UK remains a member of the EU;
   3. Licence or consent: in any jurisdiction, the loss of, a change to or the imposition of a new requirement for any licence or consent required by QCEL to perform the Agreement or to commercially exploit the products supplied by QCEL;
   4. Currency Fluctuation: a change of more than 2% to the rate of exchange of sterling against the euro, since the price for the Goods and services to be supplied was last agreed. The rate of exchange for these purposes shall be the daily spot exchange rate published by the Bank of England.
4. Adverse Impact. An Adverse Impact means any one of the following:
   1. a substantial adverse impact on QCEL's ability to perform the Agreement in accordance with its terms and the Law;
   2. an increase in the costs incurred by QCEL in performing the agreement of at least [NUMBER]% since the price for the Goods and services to be supplied by QCEL were agreed.
5. Renegotiation. QCEL may initiate a negotiation under Clause 14.1(a) by a notice (Brexit Notice) giving reasonable details of the relevant Brexit Trigger Event and Adverse Impact. QCEL may, at any time, serve a new Brexit Notice, but cannot serve more than one Brexit Notice for the same impact. On delivery of a Brexit Notice:
   1. the parties shall meet within 5 days of the date of the Brexit Notice and as reasonably necessary thereafter to discuss in good faith amendments to this agreement;
   2. QCEL shall promptly comply with all reasonable requests made by the Customer for additional information and documents relating to the Adverse Impact suffered and the Brexit Trigger Event relied on, always provided that information so disclosed shall be QCEL's confidential information for the purposes of this Agreement; and
   3. any amendments to this Agreement shall be recorded in writing, signed by the parties.
6. Termination. If the parties fail to agree a variation in accordance with Clause 14.5 within 14 days of the date of the Brexit Notice, QCEL may terminate this agreement by giving the Customer written notice and may not give notice to terminate under this clause more than 25 days from the date of the relevant Brexit Notice.
7. Performance after a Brexit Notice. After delivery of a Brexit Notice, until this agreement is varied under Clause 14.5 or terminated, the parties shall, unless prohibited by law, continue to comply with the terms of this agreement but the supply of any Goods or services shall be suspended until variation or termination.
8. Overlap with other rights and obligations. Save as expressly provided in this clause 14, neither a Brexit Trigger Event nor an Adverse Impact shall terminate or alter (or give any party a right to terminate or alter) this Agreement, or invalidate any of its terms or discharge or excuse performance under it. If there is an inconsistency between the provisions of this clause and any other provision of this agreement, the provisions of this clause shall prevail.

INDEPENDENT CONTRACTORS

QCEL and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. QCEL may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve QCEL of its obligations under this Agreement or any applicable Order.

ASSIGNMENT

The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of QCEL.

SEVERABILITY

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

WAIVER

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

NOTICES

Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

ENTIRE AGREEMENT

This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.

NO THIRD PARTIES

Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.

GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.