The following defined words and phrases shall have the following meanings:
“Components and Parts”: All components and parts, as listed in the Contract, to be supplied and installed as part of the Repair Services.
“Contract”: The Contract entered into between KONE and the Customer regarding the provision of Repair Services including these Terms and Conditions Of Repair Services and any other the Appendices mentioned therein.
“Contract Start Date”: When the rights and obligations under the terms of the Contract become operational.
“Customer”: Any person, firm or company contracting the provision of Repair Services with KONE.
“Equipment”: The elevators, escalators and/or automatic and industrial doors listed in the Contract, and related components and parts, as the context may require.
Insolvency Event: (I) the inability of the Customer to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 (the “Act”);
(II) the issue of an application for an administration order or a notice of intention to appoint an administrator in relation to the Customer;
(III) the passing of a resolution or order for the Customer’s winding-up, dissolution, administration or reorganisation;
(IV) the making of any arrangement or any proposal for any arrangement with any of the Customer’s creditors; and
(VI) the appointment of a liquidator, receiver, administrator, supervisor or other similar officer in respect of any of the Customer’s assets.
“Normal Working Hours”: The time between 08:30 to 17:00 from Monday to Friday, excluding local bank holidays.
“Party” or “Parties”: The Customer and/or KONE, individually or collectively, as the context requires.
“Prices”: Consideration payable to KONE by the Customer for the performance of the Repair Services.
“Repair Services”: The repair services to be performed by KONE with respect to the Equipment, as set out in the Contract.
“Statutory Requirements”: All applicable statutory, regulatory and legislative requirements concerning the maintenance of elevators, escalators and/or automatic and industrial doors including without limitation all Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1992 and all other environmental, health and safety requirements, as the context may require.
“Third Party”: A person who is not a Party to this Contract.
These Terms and Conditions of Repair Services apply to all contracts for the Repair Services, unless otherwise expressly approved in writing by KONE. It is expressly acknowledged and agreed that any Term or Condition, whether contained in Purchase Orders, or otherwise issued by the Customer which:
i) Conflicts with or purports to vary or modify these terms and conditions, or;
ii) Is issued before, or after the date of these Terms and Conditions for Repair Services, shall have no effect whatsoever and will not be binding on KONE (including any which the Customer purport to apply).
Repair Services shall be conducted during Normal Working Hours. If not separately agreed in writing, any work conducted outside the Normal Working Hours is not included in the Prices and shall be invoiced separately.
3 Acceptance of the components and parts
Delivery on site of the Components and Parts necessary to perform the Repair Services by KONE shall be deemed to be conclusive evidence of acceptance of the Customer of those Components and Parts.
4 Variations to the repair service
Should the Repair Services be delayed or hindered, or otherwise varied from the terms of the Contract due to either: instructions (or lack of instructions) of the Customer; or requested modifications, or by any other cause not attributable to KONE or beyond KONE’s reasonable control including but not limited to misuse, negligence, theft, accident, vandalism, delays caused by any Party other than KONE, KONE shall be entitled:
- To contract for carriage of any Components and Parts or arrange for storage of the same with a forwarding agent or a warehouse at the risk and cost of the Customer;
- To increase the Prices by the amount of any extra costs or expenses incurred by KONE due to the delay; and
- To an extension of the delivery time and completion of the Repair Services, such extension to be equal to or longer than the period of delay.
5 Standards of design and manufacture
KONE warrants that the Components and Parts shall be manufactured in accordance with the latest Statutory Requirements and KONE's normal methods of design and manufacture, unless otherwise stated in writing. The foregoing warranty is exclusive and in lieu of all other warranties expressed or implied, including but not limited to any warranty of merchantability or of fitness for a particular purpose.
6 Customer’s obligations
The Customer shall provide a safe and adequate working environment for KONE personnel (including any subcontractors) and reasonable access to carry out the Repair Services , including reasonable vehicular access and parking to allow KONE engineers to carry on to site safety equipment and goods. The Customer shall be responsible for all wiring in the building structure including to the Equipment and power supply necessary for the proper functioning of the Equipment. The Customer shall be responsible for any power supply fluctuations or failures and any resulting damage to the Equipment, Components and Parts. The Customer shall comply with all applicable Statutory Requirements, and any applicable retroactive norms relating to the safety of existing Equipment. The Customer shall inform KONE about any and all hazardous substances and/or materials, including without limitation asbestos, associated with the Equipment and/or the premises in which the Equipment is located without any delay. The Customer shall obtain at the proper time all such permits and approvals as may be necessary for KONE to execute and complete the Repair Services. The Customer shall provide KONE with any information, instructions and guidance and shall give such approvals as are necessary or can reasonably be required to be given in order to permit KONE to execute and complete its obligations hereunder.
The Customer shall indemnify KONE against all liabilities, costs, expenses, damages and losses suffered or incurred by KONE arising out of or in connection with any breach of this Clause 6 by the Customer.
The Customer shall ensure that any information it provides to KONE is complete and accurate; and co-operate with KONE in all matters relating to the Repair Services. The Customer shall provide any further information when required by KONE.
In case the Customer fails to provide KONE a safe working environment and/or safe access as stated above, or if hazardous substances and/or materials are found in the Equipment and/or the premises in which the Equipment is located, or if the Customer fails to comply with any of its responsibilities under this Clause 6, KONE shall be entitled, without limiting its other rights and remedies, to suspend the Repair Services until the Customer has either remedied such failure, or removed or appropriately contained the hazardous substances and/or materials. KONE shall be entitled to recover all losses, costs and expenses incurred due to the suspension and/or resumption of Repair Services.
KONE shall not pay any charges related to supervision or any other similar term on site.
7 Price conditions
Prices quoted are exclusive of VAT, which, where necessary, will be charged at the appropriate rate.
If the payment of any sum due from the Customer is delayed, KONE shall be entitled to charge interest on such sum at the rate of eight per cent (8%) per annum above the base rate of the Bank of England for every day the payment is overdue. KONE shall also be at liberty, without prejudice to other remedies, to suspend the provision of Repair Services upon the expiry of seven (7) days written notice to suspend and until the overdue payments (with interest) have been received by KONE in full. KONE shall be entitled to recover all costs and expenses incurred due to the suspension and/or resumption of Repair Services.
9 Intellectual property rights
KONE shall retain title and ownership of all the Intellectual Property Rights relating (whether directly or indirectly) to any materials provided by KONE under or in relation to this Contract, including but not limited to spare parts, components, drawings, manuals, technical documentation, software, firmware or other intellectual property provided by KONE in the course of and in connection with performance of the Repair Services, including any technical information collected by KONE via remote monitoring system. The Customer shall not use or copy any software, firmware (whether in form of source code, object code or any ot her form), drawings, technical documentation or other technical information supplied by or on behalf of KONE for any purposes other than those directly related to the Contract or to the use and maintenance of the Equipment or allow any third parties to do the same. The Customer shall not in any form copy, modify or reverse engineer the software, firmware, parts or components fitted or supplied by KONE, or give access to the software for such use for any third party.
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 10 shall survive termination of the Contract.
11 Transfer of property
Risk of damage or loss in Parts and Components supplied by KONE under the Contract and/or a separate order related to the Contract shall pass to the Customer upon delivery of the same to the Customer. The title to such Parts and Components shall only pass to the Customer upon KONE’s receipt of the full associated payment.
KONE shall, at its own cost, replace Parts and Components supplied by it under the Contract and/or a separate order related to the Contract, which show defects in design, materials or workmanship for a period of one (1) year after the date on which the respective Part or Component has been installed on the Equipment by KONE. This warranty shall be exclusive of normal wear and tear and any repairs, replacement of Parts or Components, or work upon the Equipment necessary because of improper or negligent use, theft, accident, vandalism or tampering of the Equipment, or alterations to the Equipment by any other Party than KONE.
KONE’s liability to the Customer for any defects in design, materials or workmanship relating to Parts and Components shall be limited to the replacement of spare Parts or Components as set out in this Clause. All Parts and Components fitted by KONE, whether without additional charge under the Contract or subject to a separate order in relation to the Contract by the Customer, will be original Parts or Components unless unavailable. If original Parts or Components are not available, the Parts or Components fitted will be of equal or similar functionality and quality. The title in all Parts and/or Components removed from the Equipment by KONE under and/or in relation to the Contract shall pass to KONE upon their removal.
Unless otherwise agreed, KONE does not issue structural comments or computations other than the information contained in standard catalogues of such equipment provided within this offer. Any specifications, drawings and particulars submitted with the quotation are only approximate and the descriptions and illustrations contained in the suppliers catalogues are intended merely to present a general idea of the goods therein and none of these form part of the Contract when specified.
12 Limitation of liability
KONE’s liability for any and all delays attributable to KONE is limited to a maximum total of 1% of the Contract sum per week of delay to the practical completion of the Works capped at 10% of the Contract sum, levied pro-rata for incomplete Work. This clause constitutes the Contractor’s sole and exclusive remedy for KONE ’s delay in meeting any agreed completion date of the Repair Services. KONE shall not be held responsible for any delay when the Customer has contributed directly or indirectly in any proportion to the delay in the Repair Services.
KONE is entitled to extension of time to its time for completion and recovery of loss and expense (including disruption costs) incurred due to delay beyond its reasonable control, delay caused by others, any new law, regulation or trade agreement and/or any change to any current law, regulation or trade agreement, including but not limited to in relation to taxes, custom duties or tariffs.
KONE shall under no circumstances be liable for any indirect, consequential, incidental, special, or punitive damages or loss of profit, loss of use, loss of contracts, loss of business, loss of Customers, loss of good will, the contractual liabilities of others which may be suffered by the other party relating to KONE’s performance of Repair Services or arising under or in connection with the Contract.
In addition, KONE makes no warranties, whether express, implied, statutory, or collateral, including but not limited to, the warranty of merchantable standards and the warranty of fitness for a particular purpose, except those warranties expressly made in the Contract, which are in lieu of any and all other warranties. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982, to the fullest extent permitted by law, excluded from the Contract.
To the fullest extent allowed by applicable laws KONE shall in no case be liable for any:
i) repairs, replacement of Parts or Components, or work upon or damage to the Equipment including the Repair Services due to or related made to misuse of the Equipment, negligence, theft, accident, vandalism or tampering of the Equipment, or due to repairs, alterations, or adjustments to the Equipment by anyone other than a KONE employee, save in respect that such repairs, replacement or work of parts, components or elements arise due to proven defects in design, materials or workmanship caused directly by KONE.
ii) failure by the Customer to carry out any work or make any repairs, replacements or upgrades recommended by KONE or required by Statutory Requirements, including work required by reason of the Equipment not being in a safe and satisfactory condition on the Contract Start Date or thereafter or which otherwise falls outside the scope of the Repair Services;
iii) KONE being prevented from performing the Repair Services due to any failure by the Customer to satisfy any of its obligations under the Contract
iv) any loss, damage or injury which may be sustained either to persons or property due to the operation of, or any accident or failure relating to, the use of the Equipment, except to the extent that the said loss, damage or injury is a direct result of KONE’s own negligence or willful misconduct; and/or
v) responsibility for personal injury howsoever caused resulting from Equipment breakages or failures that occur which are not reported to KONE.
vi) for any damage arising out from the act, error, fault, neglect, misuse, improper operation/omission of the Customer, its servants, agents or any other person related directly or indirectly before, during or after the Repair Services.
KONE’s maximum annual aggregate liability under or in relation with this Repair Service, including any other Repair Service agreed by KONE with any Customer, shall in no event exceed an amount of £10,000.
KONE shall maintain in force Public & Employer's Liability Insurance with reputable insurance companies. The limit of the insurance shall be £5,000,000.
14 Force majeure
KONE shall not be liable for any failure to fulfil any obligation under the Contract to the extent that such fulfilment is prevented or delayed by circumstances beyond KONE’s reasonably control. Such circumstances shall include, but not be limited to, acts of God, acts of government, war, civil commotion, terrorism or threats of terrorism, material shortages, transportation delays, labour unrest or strike (including but not limited to any situation in connection with any sub-contractor that KONE may employ or KONE’s and/or Third Parties production facilities), malicious mischief, failure or surge of incoming power supply, fire, water, adverse climate conditions, natural disasters or accident.
KONE may, by issuing a Termination Notice to the Customer, immediately terminate this Contract at its entire discretion in the event that:
- The Customer fails to pay any amount of money due to KONE under this agreement such amount remains outstanding for a period of 14 days.
- In the event that the Repair Services are impacted by a Force Majeure event during a period of 60 days.
- The occurrence of an Insolvency Event.
- Breach of any material clause of this Contract, including but not limited to payment, confidentiality, intellectual property, Customer’s obligations, and such breach is not cure within 14 days from notification by KONE.
- In any other event that KONE deems reasonable at its entire discretion.
- In the event that the Customer engages with a Third Party for the provision of Repair Services without the prior written approval of KONE during the Term of the Agreement.
KONE shall be entitled to payment for all the works which have not been previously charged any other loss or consequential damage that KONE may suffer for such termination.
In the event of termination of this Contract for whatever reasons KONE may:
- Reclaim or retake all the materials of which have been delivered or have been not been paid. The charges that may arise in connection which such claim or retaking shall be borne by the Customer. The Customer will provide or arrange full access to enable the repossession or recovery of any Parts or Components
- Consider disregarded from any other obligations from this contract.
The termination of this Contract shall not limit any other rights and remedies that KONE may have in connection with this Contract.
The Contract constitutes the entire agreement between the Parties, and supersedes all prior negotiations, understandings, representations, and agreements between the Parties, if any. The Customer represents and warrants that in deciding to enter into the Contract, the Customer has not relied on any written or oral information supplied or statements, promises or representations made by or on behalf of KONE except those set forth in the Contract.
The Contract and the scope of the Repair Services may only be amended or varied by mutual agreement and a written instrument signed by duly authorised representatives of both Parties. None of the conditions of the Contract shall be considered waived by either Party unless given in writing by that Party. No such waiver shall be of any past or future default, breach or modification of any of the conditions of the Contract, unless expressly stipulated in such waiver.
A person who is not a party to the Contract may not enforce any of the Contract’s terms under the Contracts (Rights of Third Parties) Act 1999.
The Contract can be freely assigned by KONE to any other company within the KONE group without prior consent of the Customer. The Customer may assign with KONE’s prior written consent. KONE may use contractors to perform its obligations under this Contract.
The failure by either Party to exercise any right or remedy contained in this Contract shall not constitute a waiver of that right or remedy. None of the clauses contained in this Contract shall be considered waived by either Party unless given in writing by that Party.
17 Applicable law
The Contract will be governed by English Law where the Equipment is situated in England and by Scottish Law where the Equipment is situated in Scotland. The courts of England or Scotland, as the case may be, shall also have sole jurisdiction over any disputes between the Parties relating to the Contract.