Issue No. 03 |
Date: December 2012
- INTERPRETATION (In these conditions)
COMPANY means Fercell Engineering Ltd registered number 1312104 whose Registered office is at Numeric House, 98 Station Road, Sidcup, Kent DA15 7BY;
CONDITIONS means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company, with Customer conditions modified or made null and void so far as they are contradictory to the Company terms;
CONTRACT means the contract in respect of the Works;
CUSTOMER means the person, firm or company entering into the Contract in respect of the Works with the Company;
GOODS means the goods (including any instalment of the Goods or any parts for them) which the Company is to supply in accordance with these Conditions;
PURPOSE means any purpose, which the Customer makes known to the Company, expressly or by implication, for which the Goods are being bought;
SERVICE means the installation refurbishment and commissioning of the Goods;
SPECIFICATIONS means the specifications for the Plant as agreed between the Company and the Customer;
WORKS means the supply of the Goods or the provision of the Service or either of them;
WRITING includes telex, cable, facsimile transmission, electronic mail and comparable means of communication;
(ii) Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
(iii) The headings in these Conditions are for convenience only and shall not affect their interpretation.
- BASIS OF THE SALE
(i) The Company shall sell and the Customer shall purchase the Goods and the Service in accordance with any written quotation of the Company which is accepted by the Customer, or any written order of the Customer which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Customer.
(ii) The Customer 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.
(iii) No modification or waiver of these Conditions shall be valid unless made in Writing expressly for the purpose and signed by the Customer and an authorised officer of the Company.
(iv) All of these Conditions shall apply to the supply of both Goods and the Service except where application to one or the other is specified.
- ORDERS AND SPECIFICATIONS
(i) No order submitted by the Customer shall be accepted or deemed to be accepted by the Company unless and until confirmed in Writing by the Company’s authorised representative at which point the Contract shall come into existence.
(ii) The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Works within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
(iii) The Company reserves the right to make any changes to the contract which is required to conform with any changes to applicable safety or other statutory or EU requirements or, where the Goods are to be supplied to the Company’s specification, which do not materially affect their quality or performance.
(iv) No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit and any other consequential losses), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Company as a result of cancellation.
(i) The price shall be the Company’s quoted price, all prices quoted are valid for 30 days or as expressly provided in the quotation, after which time it may be altered by the Company without giving notice to the Customer.
(ii) All prices are given by the Company including delivery and the charges for transport, packaging and insurance.
(iii) The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
(iv) The price agreed is based on the cost (in sterling) of all materials, labour, goods, services, transport at the date of the quotation and should these cost increase between that date and the date of despatch, the Company reserves the right to pass these increases onto the Customer.
- DRAWINGS AND OTHER DESCRIPTIVE MATTER
(i) All drawings and illustrations presented by the Company remain the property of the Company until completion of the contract and must be regarded as confidential.
(ii) All descriptive specifications, drawings, illustrations and particulars of weights and dimensions and other information submitted by the Company to the Customer are an indication only, and are intended merely to present a general idea of the Goods and the Works and none of these shall form part of the Contract.
- TERMS OF PAYMENT
(i) The Seller’s payment terms are 30% deposit with official order, 60% payment due on advice of delivery, prior to installation, with 10% balance due on completion of the mechanical installation unless as stated otherwise in the written quotation. All prices are exclusive of VAT or any similar taxes, levies or duties.
(ii) The Seller’s payment terms for purchase through finance are 20% deposit with official order and 80% balance due on advice of delivery.
(iii) The Company shall be entitled to invoice the Customer for the price less the retention set out in Part 1 of the Appendix at the time each payment instalment becomes due as set out in the Form of Contract..
(iv) The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
(v) If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
- a) suspend all or any further deliveries to the Customer made under that or any other contract with the Customer and in such event the Customer shall not be released from its obligations to the Company under that or any other contract
- b) cancel the Contract or any other contract with the Customer and claim damages from the Customer for breach of contract;
- c) appropriate any payment made by the Customer to such element of the Contract or any other contract between the Customer and the Company as the Company may think fit (notwithstanding any purported appropriation by the Customer);
- d) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 2 per cent per annum above Barclays Bank Plc’s base rate from time to time accruing daily, until payment in full is made.
(vi) The Company may without notice set off any sums from time to time owed by the Customer in or towards the satisfaction of all and any liabilities of the Customer to the Company whether or not under this Contract.
(vii) All Customer deposit payments made to the Company are non-refundable.
(viii) The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
(i) Delivery of the Goods shall be made by the Company delivering the Goods to the location set out in the order or such other location as the parties may agree at any time after the Company notifies the Customer that the Goods are ready.
(ii) Any dates quoted for delivery of the Goods or performance of the Service are an indication only and the Company shall not be liable for any delay in delivery of the Goods or performance of the Service howsoever caused. Time for delivery or performance of the Service shall not be of the essence unless previously agreed by the Company in Writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
(iii) If the Company fails to deliver the Goods or to perform the Service for any reason other than any cause beyond the Company’s fault, and the Company is accordingly liable to the Customer, the Company’s liability is limited to the cost to the Customer or the Company’s quoted price whichever is the lesser of similar Goods or Service to replace those not delivered or performed.
(iv) If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions within 28 days from the date that the Company notifies the Customer that it is in a position to deliver the Goods or the Customer requests a delivery date that is not within 14 days from the date that the Company notifies the Customer that it is in a position to deliver the Goods (otherwise than by reason of any cause beyond the Customer’s reasonable control) then, without prejudice to any other right or remedy available to the Company, the Company may store the Goods until actual delivery and charge the Customer for the reasonable cost of storage and protection, including insurance.
(v) If 28 days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them (save where any delay in delivery is caused by the Company), the Company may resell or otherwise dispose of part or all of the Goods and keep all proceeds of such sale.
(vi) All deliveries which have been signed for ‘received in good condition’ will not be accepted for claim.
(vii) The Company may deliver the Goods by instalments. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The customer shall provide suitable access to the site, proper foundations ready to receive the Goods, as and when delivered, labour for off-loading and storage and transport from storage to foundations, together with all necessary facilities and adequate assistance. The Service will take place during the Company’s normal working hours (09:00-16:00).
(i) Installation is based upon Customer provision and connection of all mains services (i.e. gas, water and electricity) as required.
(ii) The mounting of the electrical control panel, providing an HRC fused mains isolator (to protect mains cables) and all electrical wiring is the responsibility of the Company.
(iii) The Company must appoint an Approved N.I.E.E.I.C. Contractor to carry out the electrical installation in accordance with the current I.E.E. Wiring Regulations if necessary.
(iv) Installation of the equipment is based upon the work being effected in one uninterrupted period, during the course of a normal working week (Monday to Friday) with clear access being gained at all times throughout the installation.
(vi) The Company is responsible for the provision of any heavy/mechanical lifting equipment (i.e. cranes or fork lift trucks) and access equipment (i.e., access towers, roof crawler boards, scissor lifts and self propelled booms) which may be required. The Customer will reimburse the Company all the costs of providing such equipment All equipment provided must comply with the relevant regulations and must conform to local hazardous conditions and to effect safe installation.
(viii) Any building work i.e., cutting away, brickwork, roofing work, structural alterations and returning same to weatherproof condition is excluded.
(viii) The Company supplies and fits materials to provide exit closure, however the Company provides no guarantee to the seal integrity. Should the exit closure require a roofing contractor to weatherproof, this is the Customer’s responsibility.
(viiii) Any heat work (including welding) that may be required will be done at the Customer’s responsibility and all associated risks must be insured against by the Customer.
(x) Any surplus fittings or materials shall remain the property of the Company and are to be removed from site for return to the Company.
- PLANNING PERMISSION AND APPROVALS
(i) All necessary planning consents are the responsibility of the Customer and must be obtained from all authorities and property owners, prior to and before any works are carried out.
(ii) Planning consent must be sought for chimneys prior to installation (some local authorities may consider it to be permitted development).
(iii) A chimney height approval must also be obtained from the local Environmental Health Officer, as it is an offence under the Clean Air Act 1993 section 4(1) to install an appliance without prior notification to the local authority.
(iv) If the Customer’s VOC solvent consumption exceeds 5 tonnes per annum, it is the Customer’s responsibility to comply with emissions and ducting contained within the Environmental Protection Act (1990 Part 1).
(i) An initial LEV/COSHH assessment must be carried out and a fully certified report supplied after the final installation at the Customer’s cost (The Control of Substances Hazardous to Health (COSHH) is a Government Regulation (Health & Safety Work Act (1974) and must be carried out annually within every 14 months).
(ii) Performance tests if required shall be carried out on site by, or in the presence of the Company’s engineer at the Company’s cost. Such tests shall be in accordance with a test procedure to be mutually agreed before the tests take place.
(iii) Any other test whether at the Company’s works or not shall be at the Company’s cost.
- RISK AND PROPERTY
(i) Risk of damage to or loss of the Goods shall pass to the Customer on delivery.
(ii) Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods that the Company has supplied to the Customer in respect of which payment has become due.
(iii) Until such time as the property in the Goods passes to the Customer, the Customer shall not resell, charge, mortgage or create any encumbrance whatsoever over the Goods save only with the prior written consent of an officer of the Company and on terms that all monies owing by the Customer to the Company shall, without prejudice to any other right or remedy of the Company forthwith become due and payable. Until such time as the property in the Goods passes to the Customer, the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall have a fiduciary duty to the Company to account for the proceeds of sale.
(iv) The Customer while bailee of the Goods for the Company as aforesaid shall keep the Goods separate and apart from all other goods (save only for other goods supplied by the Company), shall keep them at all times clearly labelled as the Company’s property, and shall not howsoever attach or affix the Goods nor cause suffer or permit the Goods to be attached or affixed to any land or buildings or to any other plant, machinery or equipment, save only:
- if and to the minimum extent it is necessary so to do to enable the Customer to use the Goods for their ordinary purpose, and
b. in such a manner as enables them readily and easily to be detached and removed there from, and
- on terms that notwithstanding such attachment or affixation the Goods shall continue to be held by the Customer as bailee as aforesaid and shall not form or become part of the land or buildings or (as the case may be) the other plant, machinery or equipment to which they are attached or affixed.
(v) Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been re-sold), the Company shall be entitled at anytime to require the Customer to deliver up the Goods to the Company and in default of immediate compliance with such request the Company, its servants or agents shall be entitled to enter upon the premises of the Customer or any other land or buildings where the Goods are situated or reasonably suspected by the Company to be situated and to recover them.
- WARRANTIES AND LIABILITIES
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 13
(i) Subject to the Conditions set out below, the Company warrants that the Goods will:
- be free from defects in material and workmanship for a period of 12 months from the date of the Installation certificate or 18 months from the date of delivery whichever is the earliest;
- comply with the Specifications subject to any variations in accordance with these Conditions;
- be fit for the Purpose for a period of 2 years from delivery. d. be free from encumbrances and are sold with full title guarantee
(ii) The Company shall perform the Service with reasonable care and skill.
(iii) The above warranties are given by the Company subject to the following conditions:
- the Company shall be under no liability in respect of any defect or failure arising from any drawing, design or specification supplied by the Customer;
- the Company shall be under no liability in respect of any defect or failure arising from fair wear and tear, wilful damage or negligence by persons other than the Company, its agents, employees or sub contractors , abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Company’s approval;
- if the agreed price has not been paid by the due date for payment, the Company shall be under no liability under the above warranties, or any other warranty, condition or guarantee;
- the above warranties do not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
(iv) It is the responsibility of the Customer to ensure that all existing plant and components are suitable for the required application. The Company provides no guarantee for the operational effectiveness of its equipment, when used in conjunction with existing plant and components (e.g. fans, ducting, valves and control gear).
(v) Any claim by the Customer which is based on any defect in the quality or condition of the Goods, their failure to correspond with the specification or any failure to exercise reasonable care shall be notified to the Company within 3 working days from the date of delivery or installation. Where the defect or failure was not apparent on reasonable inspection or in the event that the Goods fail to be fit for purpose then the Customer shall inform the Company within 3 working days of being aware of the problem. If the Customer does not notify the Company in accordance with this condition the Customer shall not be entitled to reject the Goods, and the Company shall have no liability for the defect or failure, and the Customer shall be bound to pay the price.
(vi) Where any valid claim which is based on any defect in the quality or condition of the Goods, their failure to correspond with specification or be fit for the Purpose, or failure to exercise reasonable care and skill is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or re-perform the Service or, at the Company’s sole discretion, refund to the Customer the price (or a proportionate part of the price) but the Company shall have no further liability to the Customer.
(vii) Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply or installation of the Goods or their use or resale by the Customer and the entire liability of the Company under or in connection with the Contract shall not exceed the price payable under the Contract except as expressly provided in these Conditions.
(viii) The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due
to any cause beyond the Company’s reasonable control.
(i) A complaint does not entitle the Customer to cancel the order, or to retain payment due.
(i) Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;
(b) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that Customer with one or more other companies or the solvent reconstruction of that Customer;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of that Customer;
(e) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(h) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(j) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15(i)(b) to clause 15(i)(i) (inclusive);
(k) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
(ii) If the Contract is terminated in accordance with the provisions of this clause then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend any further deliveries or the provision of the Service under the Contract without any liability to the Customer, and if the goods have been delivered, but the price has not been paid, the prices shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, or the removal of the Goods supplied by the Company and returned to the Company’s premises by the Customer or the receiver.
(iii) the accrued rights and remedies of the Company as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
(i) The Company is a member of a group of companies and accordingly the Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
(ii) The Customer shall not be entitled to assign the whole or any part of its rights and/or obligations under the Contract without the prior written consent of the Company.
(iii) Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant on this provision to the party giving the notice. A notice shall be deemed to have been received, in the case of facsimile or electronic mail, upon transmission and, in the case of a letter, forty eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted. In proving service by facsimile transmission or electronic mail, it shall be necessary only to produce a report confirming uninterrupted transmission to the recipient.
(iv) No waiver by either party of any breach of the Contract by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
(v) The Company reserves the right to sub-contract the fulfilment of the order (including installation and service) or any part thereof.
(vi) Should the Customer’s instructions or lack of instructions suspend work, the contract price shall be increased to cover any resulting extra expense incurred by the Company. Should forwarding instructions be withheld when goods are ready for despatch, or the percentage stage payment on advise of delivery have been received, a suitable charge for storage and fire insurance will be made and the goods paid for in full as if despatched. Any charge for storage or demurrage after despatch must be paid by the Customer.
(vii) (a) For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Company from providing any of the Service and/or Goods for more than 4 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
(viii) A person who is not a party to the Contract shall not have any rights under or in connection with it.
(ix) The Contract shall be governed by the laws of England and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.