Terms & Conditions

LOWTON INFRASTRUCTURE GROUP LIMITED TERMS AND CONDITIONS OF SUPPLY

AGREED TERMS

• Definitions and Interpretation
  • In these Conditions, except where the context otherwise requires, the following definitions apply:
• Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force;
• Business Day: a day other than a Saturday, Sunday or public holiday in England when the banks in London are open for business;

Change of Control: occurs if a person who Controls any body corporate ceases to do so or if another person acquires Control of it;

• Charges: the charges set out in the Order, calculated in accordance with the Rate Card and payable in accordance with clause 5;
• Conditions: these terms and conditions as amended from time to time in accordance with clause 9;
• Confidential Information:
  • the existence and terms of the Contract;
  • information concerning the business, Intellectual Property Rights, finances, affairs, customers, clients or suppliers of the other party; and
  • any information that is identified as being of a confidential or proprietary nature or that would be regarded as confidential by a reasonable business person;

Contract: the contract between LIG and the Customer for the supply of Services in accordance with these Conditions;

• Control: in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person:
  • by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or
  • as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate;

Customer: the company identified in the Order;

Data Protection Legislation: means in each case to the extent applicable to the parties and as amended or updated from time to time: (i) the retained EU law version of GDPR as it forms part of the law of England and Wales, by virtue of the European (Withdrawal) Act 2018, as modified by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019; (ii) the Data Protection Act 2018 (the “DPA”); (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (iv) any other applicable data protection and privacy laws;

• Force Majeure Event: any event or circumstances outside the reasonable control of either party affecting its ability to perform any of its obligations under the Contract including an act of God, fire, flood, severe weather, epidemic or pandemic, war, revolution, acts of terrorism, riot or civil commotion, trade embargo, labour or trade disputes, strikes or lock-outs or other industrial action, interruption of utility service, non-performance of, or disruption caused by any suppliers, subcontractors or other contractors, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery, road congestion, road accidents, vehicle breakdown or any other similar transport issue;
• GDPR: means the General Data Protection Regulation ((EU) 2016/679);
• Goods: means any of the Customer’s hardware and/or other goods that are moved, transported, stored or handled by LIG for the Customer as part of the Services as set out in the Order;
• Insolvency Event: means the other party:
  • enters into liquidation or a winding up petition is presented against the company or a resolution is passed for the voluntary winding up of the company;
  • enters into administration or any steps are taken to place the company into administration such as the filing at court of a an administration application or a notice of intention to place the company into administration;
  • proposes to make any voluntary arrangements with its creditors;
  • has a receiver, liquidator, administrator, nominee, supervisor, trustee or an individual with a similar role appointed over any of its assets; or
  • suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
• Intellectual Property Rights: any current and future intellectual property rights and interests including patents, utility models, designs, design rights, copyright (including rights in software), decryption rights, database rights, trade marks, rights pursuant to passing off, service marks, business and trade names, domain names, know-how, topography rights, inventions, rights in Confidential Information (including technical and commercial trade secrets) and image rights, and rights of a similar or corresponding character in any part of the world, in each case whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world;
• LIG: Lowton Infrastructure Group Limited, a company incorporated and registered in England and Wales with company number 12422985 and having its registered address at 77 Newton Road, Lowton, Warrington, England, WA3 2AP;
• LIG Personnel: any and all employees, sub-contractors, agents or representatives of LIG who provide the Services;
• Order: the Customer’s order requesting the provision of Services, as set out in the Customer’s order form;
• Rate Card: LIG’s standard prices for the Services, as notified to the Customer from time to time;
• Road Closure: means the closing of a road or roads on or near to the Site for the purposes of LIG providing the Services;

Service(s): the services to be provided by LIG to the Customer as set out in the Order, and any other services agreed between the parties in writing; and

Site: the location at which the Services are to be provided as further detailed in the Order.

• If there is any conflict or inconsistency between any of the provisions of these Conditions and the provisions of the Order, the provisions of these Conditions shall prevail. Any change to these Conditions as part of the Order will only be valid if expressly approved in writing by an authorised representative of LIG.
• A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time.
• Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
• A reference to writing or written includes email.

• Basis of Contract
  • The Order constitutes an offer by the Customer to purchase Services from LIG in accordance with these Conditions.
  • The Order shall be deemed to be accepted on the earlier of:
    • LIG issuing written acceptance of the Order; or
    • any act by LIG consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (“Commencement Date”).

• These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

• The Services
  • LIG shall:
    • use reasonable endeavours to supply the Services to the Customer in accordance with these Conditions and the Order in all material respects;
    • provide the Services with reasonable care and skill;
    • where agreed in the Order, obtain any required consents (at the Customer’s cost);
    • use reasonable endeavours to comply with any dates specified for commencement, performance or completion of the Services (or any part of them), but time shall not be of the essence of the Contract and LIG shall inform the Customer if it is unable for whatever reason to comply with any estimates; and
    • supply the Services in accordance with all Applicable Laws with which it is bound to comply (including the Health and Safety at Work etc. Act 1974).
  • LIG is entitled to amend the Order if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and LIG shall notify the Customer in any such event.
  • Any variation to the Services shall be agreed between the parties in writing.
• Customer’s Obligations
  • The Customer shall:
    • provide all assistance and cooperation which LIG may reasonably require;
    • provide all information necessary for the performance of the Services including details of the Site, the condition of the ground and any underground spaces, utility pipes or cables, end-customer information and any changes to the Site and the Goods (including any special requirements relating to the movement, storage and/or handling of the Goods);
    • provide LIG Personnel with unrestricted access to all necessary areas of the Site and other facilities as reasonably required by LIG, and ensure that the Site is clear (including nearby public highways and access roads where necessary) of all vehicles, obstacles and personnel not directly involved with the Services and, for that purpose, shall be responsible for setting up barricades, tapes or cones which are required by LIG (at LIG’s sole discretion) to perform the Services;
    • be responsible for any Road Closure (irrespective of whether LIG has arranged such Road Closure on behalf of the Customer);
    • do all acts which LIG may reasonably request to enable LIG to comply with its obligations and responsibilities under the Contract;
    • comply with Applicable Laws with which it is bound to comply (including the Health and Safety at Work etc. Act 1974);
    • obtain and shall maintain all necessary licences, consents, wayleaves, approvals and permissions necessary for LIG to perform its obligations under the Contract;
    • ensure that a duly authorised representative of the Customer is present at the Site upon delivery of the Goods. LIG shall give reasonable notice to the Customer if delivery of the Goods will occur prior to the Services;
    • be responsible for the provision of safe working conditions and practises for all LIG Personnel who are providing the Services at, and in the vicinity of, the Site;
    • ensure that all Goods are of satisfactory quality, fit for purpose and compliant with all Applicable Laws to enable LIG Personnel to perform the Services safely; and
    • immediately inform LIG in writing of any health and safety hazards which arise at the Site which may affect LIG’s performance of the Services.
  • The Customer warrants that:
    • it is the owner, or the relevant owner’s authorised agent, of any Goods and that all Goods are in good working order, comply with all Applicable Laws and relevant standards and are suitable for the purposes for which they are to be used as part of the Services; and
    • it is entitled to instruct LIG to collect, move, transport and deliver the Goods to the Site for LIG to be able to provide the Services to the Customer.
  • If LIG’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, it shall not be deemed to be in breach of the Contract and will not be liable to the Customer as a result of such prevention or delay.
• Charges and Payment
  • In consideration of the provision of Services, the Customer shall pay to LIG the Charges as calculated and agreed in each Order.
  • Unless otherwise agreed in the Order, LIG shall invoice the Customer when the Services are complete.
  • The Customer shall pay each invoice issued to it by LIG within 30 days of the date of such invoice, in full and in cleared funds in pounds sterling, by electronic transfer to the bank account nominated by LIG from time to time.
  • All Charges are exclusive of VAT which shall be payable by the Customer to LIG in addition at the rate prescribed by law from time to time.
  • Without prejudice to any other right or remedy that LIG may have, if the Customer fails to pay LIG on the due date for payment LIG may:
    • suspend the Services without any liability to the Customer until such time as any overdue amount has been paid; and/or
    • charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.2 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
  • If there is an increase in the cost of raw materials, LIG is entitled to pass on such increases to the Customer. The parties shall renegotiate the Charges for all existing Orders then in place.
• Intellectual Property Rights
  • All Intellectual Property Rights belonging to a party prior to the formation of the Contract will remain vested in that party.
  • All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by LIG.
• Confidentiality
  • Neither party shall at any time disclose to any person any Confidential Information except as permitted by clause 2.
  • Each party may disclose the other party’s Confidential Information:
    • to its employees, officers, representatives, contractors, collaborators, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract provided that they are subject to confidentiality obligations at least as strict as those set out in this clause 7. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 7;
    • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
    • on prior written consent from the other party.
  • Neither party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
  • The obligations set out in clauses 1 to 7.3 do not apply to any Confidential Information which:
    • at the date of disclosure to the receiving party is publicly available or which, at any time after that date, becomes publicly available (other than by breach of the Contract); or
    • at the date of disclosure to the receiving party was already in their possession free from any obligation of confidentiality, as evidenced by the receiving party’s written records; or
    • comes into the possession of the receiving party from a third party without any obligation of confidentiality; or
    • was or is independently developed without the use of Confidential Information.
  • Data Protection
    • This clause 8 is in addition to and does not replace a party’s obligations under the Data Protection Legislation. The terms “Personal Data”, “Processes” and “Processing” have the meanings prescribed in the Data Protection Legislation.
    • Each party shall comply with the Data Protection Legislation.
    • Where LIG Processes Personal Data relating to company personnel of the Customer in the provision of the Services, such Processing will be carried out in accordance with LIG’s privacy policy.
  • Limitation of Liability
    • Nothing in this clause 9 shall limit the Customer’s payment obligations under these Conditions.
    • Nothing in these Conditions limits or excludes any liability which cannot legally be limited or excluded, including liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; and breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 2, neither party shall under any circumstances whatsoever be liable, whether or not arising in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.

Subject to clauses 9.2, 9.3 and 9.5, each party’s total liability, whether or not arising in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with the performance or contemplated performance of these Conditions or the Order shall in all circumstances be limited to the Charges paid or payable by the Customer.

• The Customer shall indemnify LIG from and against any and all liabilities, costs, expenses, fines, penalties, reasonable legal costs, damages and losses suffered or incurred by LIG arising out of or in connection with the Customer’s breach, negligent performance or non-performance of these Conditions or the Order.

• Termination
  • Either party shall be entitled to terminate the Contract immediately upon giving notice to the other if:
    • the other party commits a material breach of the Contract and such material breach is:
      • not capable of remedy; or
      • capable of remedy, and the breaching party fails to remedy the breach within 20 Business Days after receipt of notice giving full particulars of the breach and requiring it to be remedied.
    • the other party ceases to trade, is unable to pay its debts or suffers an Insolvency Event;
    • there is a Change of Control of the other party; or
    • a Force Majeure Event continues for a period of 60 days or more.
  • Subject to clause 11.2.1, the Customer shall be entitled to terminate the Contract by providing notice in writing to LIG, provided that such termination occurs at least 12 weeks prior to the start date specified in the Order.
• Consequences of Termination
  • The termination of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
  • On termination of the Contract for any reason whatsoever:
    • in respect of Services that have been received but have not been invoiced, including any services carried out in anticipation of the Services and in relation to Orders that are partially complete, LIG shall submit an invoice, which shall be payable immediately on receipt;
    • any clause which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect; and
    • each of the parties shall immediately return to the other party (or, if the other party so requests by notice in writing, destroy) all of the other party’s property in its possession at the date of termination, including all of its Confidential Information, together with all copies of such Confidential Information, and shall make no further use of such Confidential Information.
  • Dispute Resolution
    • If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (“Dispute”), then the parties shall follow the procedure set out in this clause:
      • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute;
      • if the parties are for any reason unable to resolve the Dispute within 10 Business Days (or such longer period as they agree), the parties may elect (but will not be obliged) to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 10 Business Days after the date of the ADR notice.
    • General
      • Force Majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under the Contract arising from any Force Majeure Event, provided that it notifies the other party of the Force Majeure Event and the extent of any resulting delay or prevention and resumes performance of its obligations as soon as reasonably possible following the end of the Force Majeure Event.
      • Notices required to be given under the Contract shall be deemed to have been duly received:
        • if delivered personally, when left at the registered address of the relevant party or otherwise the address notified by the recipient to the other party in writing;
        • if sent by pre-paid first class post or recorded delivery, at 9.00am on the second day (excluding weekends and public holidays) after posting;
        • if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
        • if sent by email (to the email address notified to each party from time to time), when a formal response is received from the other party.
      • Neither party shall make any press announcements or publicise the Contract in any way without the other party’s prior written consent.
      • Anti-Bribery, Modern Slavery and Criminal Finances Act. Each party shall comply with the Bribery Act 2010, the Modern Slavery Act 2015 and the Criminal Finances Act 2017 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010, the Modern Slavery Act 2015 or the Criminal Finances Act 2017.
      • Assignment and Sub-Contracting. LIG is entitled to assign, subcontract, transfer, mortgage, declare a trust of or deal in any other manner with any or all of its rights and responsibilities under the Contract. The Customer shall not at any time assign, subcontract, transfer, mortgage, declare a trust of or deal in any other manner with any or all of its rights and responsibilities under the Contract without the prior written consent of LIG.
      • Further Assurance. At any time, each party shall sign all documents and do or cause to be done all further acts and things as that party so requiring may reasonably require to give full effect to the terms of the Contract.
      • Entire Agreement. The Contract contains all the terms which the parties have agreed with respect to its subject matter and supersedes all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to enter into the Contract by a statement or promise which it does not contain. All warranties, conditions and other terms (whether express or implied) which are not set out in the Contract are (to the fullest extent permitted by law) excluded from the Contract.
      • Third Party Rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999 no person who is not a party to the Contract shall have any right to enjoy the benefit or enforce any of the terms of the Contract.
      • No variation of the Contract shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
      • Failure to exercise (or to fully exercise), or any delay in exercising, any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy under the Contract or by law.
      • If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from the Contract in so far as the Contract relates to that jurisdiction and the validity and enforceability of that provision in other jurisdictions and the other provisions of the Contract shall not be affected or impaired.
      • Governing Law and Jurisdiction. The Contract shall be governed by English Law. The parties agree to submit to the exclusive jurisdiction of the English Courts in relation to any proceedings relating to any dispute or claim (including non-contractual disputes or claims) save that claims relating to intellectual property rights and for injunctive relief for breach of confidence may be sought in any competent jurisdiction.