1.1 The definitions and rules of interpretation in this condition apply in these conditions.
“Buyer” the person, firm or company who purchases the Goods or Services from the Company;
“Company” Fairport Construction Equipment Ltd of Blagden Street, Sheffield S25QS;
“Company’s Premises” Fairport Construction Equipment Ltd of Blagden Street, Sheffield S25QS;
“Contract” any contract between the Company and the Buyer for the sale and purchase of the Goods or Services, incorporating these conditions;
“Delivery Point” the place where delivery of the Goods is to take place under condition 4;
“Goods” any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
“Intellectual Property” means any and all patents (including rights in or to inventions), trade marks, service marks, rights in designs, trade, business or domain names, goodwill associated with the foregoing, copyright including rights in computer software and databases, topography rights (in each case whether registered or not and any applications for registration of any of the foregoing), database rights, rights in know how, trade secrets, and other confidential information, and any similar or analogous rights in any jurisdiction which may now or in the future subsist in any part of the world, and Intellectual Property Rights shall be construed accordingly;
“Services” any services agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Conditions do not affect the interpretation of these conditions.
2. Application of Terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by two directors of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods and/or Services subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer and/or the Services are commenced by the Company.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Cancellation by Buyer of any order for goods designed and manufactured to his particular and sole specification, rendering them unsaleable to others shall only take place with our written agreement whereupon the purchaser will be chargeable for costs incurred.
3. Description of Goods and/or Services
3.1 The quantity and description of the Goods and/or Services shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract and this is not a sale by sample.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s Premises.
4.2 The Buyer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods shall be deemed to have been delivered; and
4.5.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5. Non Delivery
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods;
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and at the Buyer’s expense keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
6.4.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or
6.4.2 (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.4.3 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.4.4 the Buyer encumbers or in any way charges any of the Goods.
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7. Intellectual Property
The Buyer acknowledges and agrees that all Intellectual Property in the Goods and Services shall remain the property of the Company (or its relevant licensors) and nothing in these terms shall operate to transfer or vest any such rights to the Buyer.
8. Company’s Obligations – Services
8.1 Completion of the Services shall take place at the Company’s Premises or such other premises nominated by the Company from time to time.
8.2 The Company shall use reasonable endeavours to provide the Services to the Buyer and to meet any performance dates specified in the written acknowledgement of the order but any such dates shall be estimates only and time shall not be of the essence.
9. Buyer’s Obligations – Services
9.1 The Buyer shall:
9.1.1 co-operate with the Company in all matters relating to the Services;
9.1.2 provide if necessary, for the Company, its agents, sub-contractors and employees, in a timely manner and at no charge, access to the Buyer’s premises, office accommodation, data and other facilities as requested by the Company;
9.1.3 provide in a timely manner, such information as the Company may request and ensure that it is accurate in all material respects;
9.1.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services in all cases before the date on which the Services are to start;
9.2 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer, its agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay.
9.3 The Buyer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Buyer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Buyer in writing.
The Company shall be entitled to exercise a lien over the property of the Buyer in the Company’s possession until payment is made in full in accordance with the Contract.
11.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be as per the Company’s written quotation or the Company’s price list at the time of placing the order.
11.2 The price for the Goods and/or Services shall be exclusive of any value added tax and carriage, such amounts the Buyer shall pay in addition when it is due to pay for the Goods.
12.1 Subject to condition 12.5 unless otherwise agreed by the Company that credit facilities apply, payment of the Goods and Services is due on or prior to collection / delivery of the said Goods or Services.
12.2 Subject to condition 12.5, where credit facilities have been granted payment of the price for the Goods or Services is due in pounds sterling within 30 days of the date of the invoice raised by the Company.
12.3 The Buyer shall have 7 days from the date of the invoice to raise a query in respect of the invoice.
12.4 Time for payment shall be of the essence.
12.5 No payment shall be deemed to have been received until the Company has received cleared funds.
12.6 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
12.7 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
12.8 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
13.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
13.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall:
13.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
13.2.2 be reasonably fit for purpose; and
13.2.3 be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
13.3 The Company shall not be liable for a breach of any of the warranties in condition 13.2 unless:
13.3.1 the Buyer gives written notice of the defect to the Company, and, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; If a products packaging is damaged then it must be recorded with the carrier prior to accepting delivery. If it is not recorded with the carrier then neither Company or the Carrier will be held liable for any damage that may be have occurred to the product.
13.3.2 The Company is given a reasonable opportunity after receiving the notice of examining such Goods.
13.4 The Company shall not be liable for a breach of any of the warranties in condition 13.2 if:
13.4.1 the Buyer makes any further use of such Goods after giving such notice; or
13.4.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
13.4.3 the Buyer alters or repairs such Goods without the written consent of the Company.
13.5 Subject to condition 13.3 and condition 13.4, if any of the Goods do not conform with any of the warranties in condition 13.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.The company will organise collection from the buyer’s premises and investigate the fault.
13.5.1 By way of written consent the company may also permit a repair agent to undertake a repair and free issue the necessary parts and reimburse the repair agent at an agreed hourly rate. All parts removed from the product during repair must be retained for inspection. The company will organise the collection of the parts from the buyers premises.
13.5.2 The Buyer must complete the companies warranty procedure form. If deemed necessary by the company to retrieve the goods for examination, the Company will organise at its own expense the retrieval of the goods.
13.5.3 If the warranty issue was deemed by the company as justified the Company will comply with clause 13.5 and where required return the goods to the buyers premises at its own expense.
13.5.4 If the warranty issue was deemed by the Company as not justified the buyer will be invoiced for collection, delivery and investigative costs.
13.6 If the Company complies with condition 13.5 it shall have no further liability for a breach of any of the warranties in condition 13.2 in respect of such Goods.
14. Limitation on Liability
The Buyer’s attention is specifically drawn to the provisions of this condition.
14.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1 any breach of these conditions;
14.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these conditions excludes or limits the liability of the Company:
14.3.1 for death or personal injury caused by the Company’s negligence; or
14.3.2 under section 2(3), Consumer Protection Act 1987; or
14.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
14.3.4 for fraud or fraudulent misrepresentation.
14.5 Subject to condition 14.2 and condition 14.3:
14.5.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price;
14.5.2 the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
14.5.3 no claim can be made in respect of the Goods or Services where legal proceedings have not been issued within 12 months from the date on which the Goods were delivered or the Services supplied.
15. Termination of Contract
15.1 If the Buyer becomes subject to any of the events listed in condition 15.2, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer.
15.2 For the purposes of condition 15.1, the relevant events are:
15.2.1 any of one or more of the events referred to in conditions 6.4.1 to 6.4.4 above;
15.2.2 the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
15.3.3 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
15.3 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Company and the Buyer if the Buyer becomes subject to any of the events listed in condition 15.2, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
15.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Buyer’s outstanding unpaid invoices and interest.
15.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
15.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
16.1 The Company may assign the Contract or any part of it to any person, firm or company.
16.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
17. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 56 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
18.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
18.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
18.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
18.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
18.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.6 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.7 No variation of the Contract or these conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
18.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
19.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
19.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
19.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
19.2 Communications shall be deemed to have been received:
19.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
19.2.2 if delivered by hand, on the day of delivery; or
19.2.3 if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
19.3 Communications addressed to the Company shall be marked for the attention of the Directors.
19.4 The customer accepts the full terms and conditions outlined when received directly in an email or in writing, or indirectly via reference to the website, once the approval has been given for the work to be started via a meeting, phone call, text or email this term fully apply.
FAIRPORT STANDARD CONDITIONS FOR SUPPLYING
In these conditions The “Company” means the issuing company named on the face of the Order form. The “Purchase Order” means the Company’s official numbered Purchase Order Form including all attachments thereto which together set out the requirements of the Company which supersedes and excludes all previous correspondence between the Company and the Supplier on the subject of the Purchase Order. The “Supplier” means the party to whom the Purchase Order is addressed. The “Contract” means the Purchase Order accepted by the Supplier. The “Contract Price” means the price or prices shown in the Purchase Order. “Goods” means the Articles or Materials to be supplied and / or services to be rendered and / or to be performed under the Contract. The “Main Contract” means any Specification, Conditions of Contract, Drawings etc. prepared for the Main Contract Works for which the Goods are required and may be inspected at the Company’s offices named in the Purchase Order (other than the rates or prices therein) and which form part of the Purchase Order except where they conflict with the terms of this Purchase Order which shall take precedence over those of the Main Contract. The “Engineer” means the Engineer, Architect, Supervising Officer, Main Contractor, or any other person appointed under the terms of the Main Contract.
a) All Goods shall be of the description and quality set out in the Purchase Order and in the absence of any such specification all goods shall be the best of their respective kind, complying with the appropriate BSS (if any) and shall in all cases be free from any defect in design, workmanship or materials and to the reasonable satisfaction of the Company and, if appropriate of the Engineer and fit for the purpose of the Main Contract, or other purpose as described in or to be inferred from the Purchase Order. b) The Supplier shall be responsible for and at his own expense shall correct any discrepancy, error or omission in drawings, designs, information, materials or workmanship supplied by him whether approved and / or accepted by the Company or not. c) Where required by the terms of this Purchase Order the Supplier at his own cost will provide installation and commissioning information, instruction and maintenance manuals. d) Where any documentation provided by the Supplier defines any performance characteristic of the goods, then the goods shall additionally meet any such definition. e) The Supplier must provide and supply to the Company, and, if the Company so requires to the Engineer, any particulars as the Company requires including any designs necessary under the Main Contract to enable the Company and other suppliers in connection with the Main Contract Works to achieve continuity of work in accordance with the Company’s requirements. Such particulars shall be provided to suit the programme or revised programme. f) As the Goods are of a description which it is in the course of the Supplier’s business to execute the Supplier undertakes and agrees with the Company, notwithstanding anything contained or implied herein or in any other document or obligation as between the Supplier and any other person i) that the Supplier will promptly inspect the Main Contract and all tender documents and specifications set out or referred to herein and / or in the Order Form and any instructions given to him, that if he finds therein any error or irregularity or departure from the best practice adopted in the trades relating to the Goods he will immediately give written notice thereof to the Company to enable the Company to issue intructions in regard thereto; ii) that when the Contract include the preparation of designs or the selection of materials and goods the Supplier has exercised and will exercise all proper skill and care in such preparation and selection, including but not limited to the satisfaction of any performance specification or requirement insofar as the same is included or referred to in the Contract or Main Contract; iii) that the designs, when required, workmanship, materials and goods used or supplied under the Contract will be of a quality and standard fit and proper for the purpose for which the Goods are required.
3. Price and Terms of Payment
a) The Company shall pay for the Goods at the price or prices set out in the Purchase Order or such price as shall be ascertained from the terms of the Purchase Order. b) The price is inclusive of all delivery costs unless otherwise stated in the Purchase Order. c) Any invoice rendered at a price or prices other than that set out in the Purchase Order shall not be payable unless such price has been previously notified to and accepted in writing by the Company by issue of a formal amendment to the Purchase Order. d) The Supplier is to submit invoices sent as directed in the Purchase Order. e) Payment will be made against invoices by the end of the calendar month following the month in which the Goods are delivered and invoices are received less any retentions noted in the Purchase Order unless the terms of the specific order vary. Provided always that corresponding monies have been included in a Certificate for payment due to the Company under the Main Contract and that the Company has received the monies so certified. f) Where required in the Purchase Order the Supplier shall provide the Company with a Bank Guarantee and / or a Parent Company Guarantee or Insured Bond at the Company’s discretion in respect of advance payments and / or performance which shall be in the form shown and forwarded to the Company within 28 days of the date of the Purchase Order. Failure to provide such a Guarantee or Bond shall entitle the Company to cancel the Purchase Order in accordance with Clause 5 hereof. g) The Supplier will notify the Company in writing of any event causing or likely to cause delay in delivery within two days of its occuring or becoming apparent. If such delay is caused by variation of for any reason (other than breach of the Main Contract by the Main Contractor) for which the Company could obtain an extension of time under the Main Contract the Company will (but not without prior written consent of the Engineer if the Company deems such consent to be necessary) grant a fair and reasonable extension of the period for completing delivery. h) The Company may issue written instructions requiring the Supplier to alter, amend, omit, add to, substitute or otherwise vary the Goods (hereinafter called “variations”) but no such variation will vitiate the Contract. Site representatives signatures will not be recognised as authorisation for variations without written official confirmation from the Company. Payment will not be made to the Supplier unless such instructions have been issued in accordance with the terms hereof. i) The Supplier shall not act upon an instruction or order for the variation of the Goods which is directly received by him from the Employer or the Engineer whether given verbally or in writing. If the Supplier shall receive any such direct instruction or order, he shall forthwith inform the Company’s site manager in charge of the Main Works thereof and shall supply him with a copy of such direct instruction or order, if given in writing. The Supplier shall only act upon such instruction or order as directed in writing by the Company, but the Company shall give its directions thereon with all reasonable speed. j) i) All authorised variations of the Goods shall be valued in the manner provided by this clause and the value thereof shall be added to or deducted from the sum or sums specified in the Purchase Order hereto as the case may require. ii) The value of all authorised variations shall be ascertained by reference to the rates and prices (if any), specified in this Contract for the like or analogous work, but if there are no such rates and prices, or if they are not applicable, then such value shall be such as is fair and reasonable in all the circumstances. iii) Save where the contrary is expressly stated in any bill of quantities forming part of this Contract, no quantity stated therein shall be taken to define or limit the extent of any work to be done by the Supplier in the execution and completion of the Contract, but any difference between the quantity so billed and the actual quantity executed shall be ascertained by measurement, valued under this clause as if it were an authorised variation and the necessary addition to or deduction from the sum specified in the Order Form hereto shall be made accordingly.
4. Delivery and Title
a) It is of the essence of the Purchase Order that delivery is made at the place and the time specified in the Purchase Order. If no place and / or time is specified delivery is to be made at such place and / or at such time as shall be notified in writing by the Company to the Supplier and it is the responsibility of the Supplier to liaise with the Company to ensure that the Company’s requirements are complied with. b) The ownership of the Goods and the risk of loss or damage thereto shall pass from the Supplier to the Company on completion of the delivery at the delivery address or, if the delivery is made by instalments, upon completion of delivery as aforesaid of each instalment. For the purposes of this clause completion of delivery shall be deemed to have taken place when the Company acknowledges completion of delivery in writing. Such acknowledgement shall not relieve the Supplier of his obligations under the terms of the Purchase Order. c) Where payment is made in advance of delivery, then all Goods in respect of which such payment is made shall immediately vest in the Company but risk of loss and damage shall remain with the Supplier until completion of delivery as aforesaid.
a) If the Supplier fails to comply with any of the terms of the Purchase Order then, without prejudice to any other rights and remedies which may be available to the Company, the Company may take any one or more of the following actions: i) Return the Goods to the Supplier at the Supplier’s expense. ii) Require the Supplier at the Supplier’s expense to repair and / or replace the Goods so that they comply with the requirements of the Purchase Order. iii) Repair and / or replace the Goods from other sources at the Supplier’s expense. iv) By notice in writing to the Supplier and without incurring any obligation to make further payment to the Supplier cancel the Purchase Order or any part of it. b) If the Supplier fails to execute the Contract in accordance with his obligations he will pay or allow to the Company any loss of damage suffered or incurred by the Company and caused by such failure, including (but not limited to and without prejudice to the generality of the foregoing) any damages which may be payable under the Main Contract, additional labour charges whether by way of overtime or otherwise, hire or rent of plant or equipment and payments to suppliers, specialists or other sub-contractors.
c) Without prejudice to any other rights and remedies which the Company may possess, the Company will be entitled to deduct from or set off against money (including any retention money) payable by the Company to the Supplier or any other company being part of a group of companies of which the Supplier is a member any sum or sums bona fide claimed by the Company to be due from the Supplier to the Company arising out of the provisions of this Sub-Contract or any other contract between the Company or any other company being part of a group of companies of which the Company is a member and the Supplier (but not exceeding in all a fair estimate of the value of claims in respect of breach of such provisions). If any such sum or sums shall exceed the amount of money which would otherwise become due to the Supplier in accordance with the Contract, the Supplier shall pay such excess to the Company on demand. The Supplier will not assign, charge or in any way dispose of his interest in any money to be become due to him under the Contract without the prior written consent of the Company. d) All Goods rejected will lie at the Supplier’s expense and risk.
6. Inspection and Testing
a) The Supplier shall at no cost to the Company carry out all such tests and operate such quality control procedures as may be necessary for ensuring that all Goods comply with Clause 2 hereof. b) The Company may specify what inspections, tests and procedures should be carried out by the Supplier at the Supplier’s cost in order to demonstrate compliance with Clause 2 hereof. c) The Company and parties authorised by the Company shall at all reasonable times have access to the premises of the Supplier and his sub-contractors and suppliers in order to monitor progress, carry out inspections and witness tests. d) The exercise of the foregoing rights and obligations shall not relieve the Supplier from his obligations under the terms of the Purchase Order.
a) Where the Supplier is required to submit drawings, specifications, samples or any other item for the Company’s approval such approval when given will not relieve the Supplier of any of his responsibilities or obligations under the terms of this Purchase Order. b) Where the Company does not give approval the Supplier shall take all necessary steps to rectify the situation and re-submit the matter for the Company’s approval. c) The Supplier will be responsible for any delay caused by his failure to obtain the Company’s approval.
8. Free Issue Items
Where the Contract requires the Company to provide the Supplier with goods or materials to be incorporated in the Goods the Supplier shall inspect such goods or materials forthwith upon receipt and shall immediately notify the Company in writing of any defect, fault, damage or shortcoming. The Company will not accept responsibility for any such defect, fault, damage or shortcoming notified to it at a later date, the responsibility for which shall be the Supplier’s and will be dealt with under the terms of Clause 9 herein.
All defects, shrinkages or other faults in the Goods will be made good by the Supplier at his own expense immediately upon the receipt of instructions from the Company to do so. If as a result of any defects, shrinkages, or other faults in the Goods, or any damage occasioned by the Supplier to any part of the Main Contract Works the Company or any other supplier or sub-contractor carries out any additional work the Supplier will pay or allow to the Company the cost of execution of such work but such payment or allowance will be without prejudice to the liability of the Supplier in respect of any damages (whether consequential or otherwise) arising out of the failure by the Supplier to comply with his obligations.
10. Property Rights
The Supplier shall indemnify and keep indemnified the Company against all costs, losses and expenses howsoever incurred by the Company through any infringement of any patent, copyright or trademark or any like property right arising out of the supply of the Goods.
The Supplier shall not sub-let or assign all or any part of this supply without first receiving the written consent of the Company.
The Supplier will indemnify the Company against any loss or damage including any claim made by any third party and any associated costs where there has been injury or damage to any persons or property arising out of the performance or failure to perform the requirements of the Purchase Order. The Company shall have the benefit of any insurances which the Supplier may carry in respect of such claims. 13. Right of Cancellation
a) The Company may cancel the whole or any part of the Purchase Order and shall pay to the Supplier the cost of work executed by the Supplier up to the date of cancellation. b) In the event of the Supplier being a limited company, commencing to be wound up for any purpose other than reconstruction; or becoming bankrupt or insolvent or compounding with his creditors, the Company reserves the right to cancel the Purchase Order. c) Cancellation under Sub-Clauses a) or b) above shall be without prejudice to any rights that have accrued or may accrue thereafter to the Company under the terms of the Contract.
14. Health and Safety
a) The Supplier is to comply with the duties imposed on it by the Health and Safety at Work etc. Act 1974 and in particular reference to Section 6 and any amendment thereto as it may apply to the Goods. b) Where the Goods comprise machinery or equipment the Supplier is responsible for ensuring that it complies on delivery with all legislation then current including those governing contractor’s plant and road vehicles.
15. Hazardous Substances
a) Where any substance being supplied under the Purchase Order is hazardous to health as defined in the Health and Safety Regulations No. 1657 dated 1988, Regulations 2 (a) to (e) (inclusive), the Supplier shall separately identify any such substance upon delivery to the Company. The Supplier shall also supply guidance notes on the safe handling and usage of all such substances supplied under the Purchase Order at the time of delivery to the Company. b) If the total quantity of such substances covered by the Purchase Order is to be delivered in several consignments, each consignment is to be accompanied by the information required in this clause.
16. Packing etc.
The cost of packages or crates is included in the Contract Price but the package or crates will at the written request of the Supplier if practicable, be returned by the Company to the Supplier at the Supplier’s risk and expense.
All drawings supplied by the Company for the purpose of this Contract remain the property of the Company and must not be copied or used for any other purpose whatsoever without the prior consent of the Company in writing. All such drawings supplied must be returned to the Company immediately upon completion of the Contract.
No advertisement relating to the Contract is to be made without the prior written approval of the Company.
The Purchase Order shall constitute an offer on the part of the Company subject to these Conditions except that where any statement or provision endorsed on the Purchase Order is inconsistent with any of these Conditions the endorsement shall prevail. The offer hereby made shall be accepted by the Supplier either in writing or by the actual execution of part or all of the Contract. Acceptance in writing shall only be valid upon receipt by the Company. After acceptance by the Supplier the terms of the Contract thereby concluded shall be deemed to be as set out in the Purchase Order and these Conditions and in any document incorporated in the Contract thereby. No other terms and Condtions or variations shall be applicable unless expressly agreed to in writing by an officer of the Company. Provided always that these Standard Conditions shall take precedence over the Main Contract.
20. Proper Law
This Contract shall be governed by and construed with English Law and the parties agree to submit to the jurisdiction of the English courts.