TERMS AND CONDITIONS
ACS Facades Ltd – Conditions of Contract
CONDITIONS OF CONTRACT governing all Contracts for the sale or supply of Goods and/or the provision of Design Services by ACS Facades Limited (“the Company”).
“Buyer” means the person entering into a Contract with the Company as more particularly described in the Quotation Order.
“Contract” means the contract between the Company and the Buyer for the Services which is governed by the Quotation Order, (including the Exclusions and Assumptions) and these Conditions of Contract.
“Contract Price” means the sum specified in the Quotation Order (or such other sum which shall become payable under the Contract) (exclusive of VAT) for provision of the Services.
“Goods” means any goods (or replacements) supplied by or to be supplied by the Company to the Buyer as more particularly described in the Quotation Order.
“Delivery Date” means, where the Services include the delivery of Goods, the date(s) as stated in the Quotation Order by which the Company shall deliver the Goods to the Buyer or such other date as is agreed or determined by the Company in accordance with this Conditions of Contract.
“Design” means the details, drawings, calculations and/or specifications of materials, goods and workmanship prepared by the Company for the Design Services in accordance with Condition 4 below.
“Design Services” means those design services provided or to be provided by the Company for the Buyer as more particularly described in the Quotation Order.
“IP Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered relating to the Goods or the Design.
“Quotation Order” means the quotation to which these Conditions of Contract are attached.
“Project” means the project as described in the Quotation Order.
“Services” means those Goods and/or Design Services provided by the Company pursuant to the Contract as more particularly described in the Quotation Order.
“Site” means the site for the Project as described in the Quotation Order.
These Conditions of Contract shall apply to the Contract except as varied by an express agreement in writing and signed by an authorised person on behalf of the Company.
The headings are for convenience only and shall not affect the construction of these Conditions of Contract. References to the provision of any statute or legislation shall be construed as reference to such statute or legislation as amended, consolidated or re-enacted (without substantial amendment) from time to time.
- FORMATION AND PARTIES
- The Company shall provide the Services to the Buyer in accordance with the Contract.
- The Buyer shall not assign the benefit of the Contract without the Company’s prior written consent.
- Subject to Condition 1(d) below the Contract cannot be terminated by the Buyer without express written consent of an authorised person on behalf of the Company.
- If the Company agrees to termination by the Buyer, the Buyer shall indemnify the Company in full against all expenses incurred or losses suffered by the Company as a result of such termination less such scrap or residual value as determined by the Company.
- The Company’s employees are not authorised to make any representations concerning the Services.
- Prices quoted are in accordance with the Company’s current price list and are exclusive of Value Added Tax (VAT).
- The Company may at its discretion vary the Contract Price by any amount attributable as a result of a change in or insufficiency of the Buyers instructions. Such amount is to be determined by the Company.
- BUYER’S DESIGNS AND DRAWINGS
- The Buyer shall remain responsible for all designs, drawings, details, calculations, reports, specifications or instructions of any type issued by the Buyer in connection with the Services and/or the Contract or any part thereof (the “Buyer’s Design“).
- The Company and any person authorised by it is granted an irrevocable, non-exclusive, non-terminable, royalty-free licence (such licence carrying the right to grant sub-licences) to copy and use the Buyer’s Design for all purposes relating to the Services and/or the Contract.
- The Buyer shall indemnify and keep indemnified the Company against all claims, proceedings, damages, costs and expenses suffered or incurred by the Company howsoever arising due to any error in or omission from the Buyer’s Design and/or because of any infringement of or being held to infringe any patent, copyright, registered design, design right or other third party right arising out of the Company’s use of the Buyer’s Design in providing the Services.
- APPROVAL OF THE DESIGN
- Where the Company is to provide Design Services, the Company’s liability to the Buyer (or any third party) shall be limited to the Design Services only. The Company shall have no liability or responsibility for any other element of any design interacting with the Design. In particular the Company is entitled to assume that any primary structure to which the Goods are to be fitted has been designed to take the subsequent loads applied by or supported by the Goods.
- Where the Company is to provide Design Services, the Buyer shall submit the Buyer’s Design (and any other relevant design and/or information) required by the Company to provide the Design and/or Design Services. Following the delivery of all of the Buyer’s Design (and any other relevant design and/or information) to the Company, the Company shall formulate the Design which shall be submitted by the Company to the Buyer for approval. It is the responsibility of the Buyer to satisfy itself that the designs are suitable for its purposes.
- Where approval is required pursuant to Condition 4(b), the Company shall not commence the Services (including the manufacture of Goods (except as permitted under Condition 4(g) below)) until approval of the Design has been received in writing by the Company from the Buyer.
- If the Buyer does not issue its approval in accordance with Condition 4(b) within 14 days from the date of submission of the Design (or its alterations where Condition 5 below applies) the Design is deemed to be approved by the Buyer.
- Any approval given pursuant to this Condition 4 by the Buyer’s appointed architect or engineer for the relevant project shall be deemed to constitute approval on behalf of the Buyer.
- Notwithstanding any other provision within this Condition 4, where the Buyer:
- issues an instruction to proceed with the manufacture of the Goods;
- issues an instruction to incorporate comments (where the comments are incorporated into the Design);
- issues a notification of no comment;
- does not provide any detrimental written comments; and
- requests delivery of the Goods
it shall be deemed to constitute approval by the Buyer pursuant to Condition 4(b).
- Where the Buyer’s requirements are such that the manufacture of Goods must commence prior to receipt of the Buyer’s Design and/or Buyer’s approval in accordance with Condition 4(b), then prior to the commencement of such manufacture, the Buyer must provide written authorisation that the Company may proceed to manufacture the Goods and the Buyer shall be deemed to accept responsibility for the cost of any subsequent alterations to the Design Services, such costs being added to the total value of the Payment.
- The Company shall not be liable for any loss of time and/or expense incurred as a result of the implementation of this approval procedure.
- ADDITIONAL SERVICES
- Prior to receipt of approval of the Design by the Company in accordance with Condition 4(b), the Buyer may request in writing, alterations to the Design Services (including the Design) and/or or additional Goods to be provided.
- If in the Company’s reasonable opinion, such alteration and/or addition would impact on either the Services or the Project as a whole, the Company shall be entitled to reject the Buyer’s request to make said alteration to the Design Services and/or supply the additional of Goods requested.
- Upon receipt of such request under Condition 5(a), the Company may within a reasonable time thereafter, provide the Buyer with a quotation setting out:
- the cost of undertaking the alteration and/or addition (including without limitation the cost of carrying out any work which is required as a result of both the requested alteration and any changes in any statutory requirements);
- a statement describing the effect which the implementation of the alteration and/or addition will have on the Services.
- If the Buyer wishes to accept the quotation, he shall confirm his acceptance of the quotation in writing within 3 days receipt of the quotation and the Company shall make the alterations to the Design and/or commence manufacture of the additional Goods as soon as reasonably practicable thereafter. The cost of such alteration and/or addition shall be added to the total value of the Payment.
- If the Buyer does not wish to accept the quotation, he shall inform the Company in writing of his intention not to proceed with the alteration and/or addition, but the Buyer shall, at the Company’s option, be liable for the costs associated with the quotation.
- INTELLECTUAL PROPERTY
- All IP Rights shall remain the absolute property of the Company.
- The Buyer shall:
- upon request by the Company; or
- immediately upon the Buyer deciding not to engage the Company to carry out the Services or the Buyer cancelling a Quotation Order in accordance with Condition 1(c) and 1(d)
as soon as possible (and in any event no later than 5 days from the relevant date above) return to the Company all the Designs, associated documents and information and any copies thereof in the Buyer’s (or its agents) possession, custody and/or control.
- DELIVERY OF GOODS
- Time of the delivery is not of the essence in the Contract.
- The Buyer enters into the Contract on the full understanding that the Delivery Date is an estimate only and may be subject to change.
- The Company shall use its reasonable endeavours to deliver the Goods by the Delivery Date, but may suspend or delay delivery of the Goods on reasonable notice.
- The Company may at its sole discretion deliver the Goods by instalment. Lateness of delivery of any instalment of and/or non – delivery of any instalment of the Goods shall not constitute a breach of Contract and shall not entitle the Buyer to cancel any subsequent instalments or refuse to accept delivery of such instalment(s) or otherwise treat the Contract as repudiated.
- The Company shall not be liable for any loss howsoever arising in the event of late or non-delivery of Goods and/or any instalment due to any occurrence whatsoever beyond its control and the Buyer shall not be entitled to refuse to accept late delivery of the Goods or treat late delivery as a breach of the Contract.
- The Goods shall be deemed delivered and the Buyer shall take the risk of and become responsible for the loss or damage of the Goods following the earlier of: –
- the Company handing the Goods to the Buyer or its agent at the Company’s premises; or
- the Goods being delivered at the Buyer’s premises or the Site; or
- on the eighth day following notification that the Goods are ready for despatch or collection.
- If the Buyer has failed to collect the Goods on the expiry of the seventh day following notification of readiness for despatch in accordance with Condition 7(f)(iii), the Company shall be entitled to treat the Contract as repudiated by the Buyer and so may elect to accept such repudiation and terminate the Contract anytime thereafter.
- Unless the Contract is terminated by the Company under Condition 7(f)(iii), the Company may: –
- either store the Goods itself at its own premises; or
- have them stored by a third party on such terms as it in its absolute discretion the Company sees fit
and the cost associated with such storage (including transportation costs) will be added to the total value of the Payment.
- If the Company elects to treat the Contract as repudiated under Condition 7(f)(iii) it shall be entitled to sell the Goods and retain the proceeds of such sale and the Buyer shall not be entitled to make a claim for loss or damages however so arising as a result.
- The Buyer warrants that if an import licence or other authorisation is required for the importation of the Goods into the country of destination, such license or authorisation has been obtained or will be obtained (at the Buyer’s cost, and for the avoidance of doubt, at no cost to the Company) within a reasonable period of time prior to shipment.
- Unless otherwise agreed in writing: –
- all export orders will be delivered by FOB INCOTERMS 2000 at a British port to be notified by the Company; and
- carriage charges shall be as detailed in the Quotation Order.
- Where the Goods are wall ties and there is a deviation of 10% or less in the quantity of those goods delivered from that stated in the Quotation Order, the Buyer shall not be entitled to reject the Goods delivered or to claim damages from the Company and the Buyer shall accept the Goods delivered and pay the Company at the rate stipulated in the Quotation Order or otherwise make a pro rata adjustment to the total Contract Price.
- LOSS OR DAMAGE OF GOODS IN TRANSIT
- The Company shall not be liable for loss or damage of the Goods in transit unless: –
- the loss or damage to the Goods occurs prior to delivery at the agreed delivery location
and either of the following has occurred: –
- the damage or loss is reported to the Company in writing within 3 days of delivery at the agreed delivery location; or
- in the case of a total loss or damage of the Goods, non-delivery of the Goods is notified by the Buyer to the Company in writing within 7 days after despatch of the Goods.
- INSPECTION OF GOODS
- The Buyer shall inspect the Goods immediately upon receipt (unless inspection cannot be carried out by the Buyer and the delivery note is marked “not examined”) and shall, subject to Condition 9(b) below, be deemed to have accepted the condition of the Goods as delivered.
- The Company shall only be liable for any defects and/or shortages of the Goods (except for such Goods with material defects which are discovered pursuant to Condition 10) discovered on reasonable inspection carried out on delivery of the Goods.
- Where the Company (on assessment of the condition of the Goods) accepts the defects and/or shortages notified under Condition 9(b) above, the Company shall remedy those defects and/or shortages as soon as reasonably practicable but the Company shall not be liable for any other loss whatsoever arising from such shortage.
- The Company’s liability for those accepted defects and/or shortages notified under Condition 9(b) above shall in all circumstances be limited to (at the Company’s option):
- the repair or replacement of the Goods in question or
- crediting the Buyer with the value as stated in the Quotation Order.
- The Company’s liability for any defective Goods is limited in all circumstances to (at the Company’s option):
- delivery of replacements or
- crediting or refunding the invoice value paid by the Buyer for the defective Goods only
and the Buyer shall accept such remedies as fulfilment of the Company’s obligations under the Contract.
- Notwithstanding any other provision in this Contract, the Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling or processing of the Goods by the Buyer.
- If within 3 days following delivery of the Goods a material defect in the Goods is discovered and such defect has arisen from faulty materials used or workmanship carried out by the Company (other than defects arising from compliance with specific instructions, drawings and/or specifications issued by the Buyer), the Buyer shall within 7 days following the discovery of said defect:
- notify the Company in writing of the defect (with full particularisation of the issues); and
- return the Goods to the Company (at the Buyer’s own cost and risk)
then the Company shall either (at the Company’s option):
- remedy the defect by repair; or
- replace the defect (provided that the Company shall be entitled to collect all the defective Goods in question where upon the same shall become the absolute property of the Company); or
- either credit the Buyer’s account with the Company or
refund to the Buyer the purchase price paid for the defective Goods.
- The warranty at Condition 10(a) does not extend to parts, materials or components forming part of the Goods, which are not of the Company’s manufacture. In respect of such items, the Buyer shall be entitled only to the benefit of any manufacturer’s warranty or guarantee, which the Company is able to obtain and pass to the Buyer.
- INFORMATION AND INSTRUCTIONS
- Written information and instructions are available from the Company concerning the Goods and their use and the conditions necessary to ensure that they are dealt with so as to be safe and without risk to health. Should the Buyer not possess such information or instructions, they should immediately obtain them from the Company.
- RETENTION OF TITLE
- Until the Company has received payment in full, in cash or cleared funds of all sums owed to it on any account by the Buyer (whether arising out of this or any other contract between the Parties), legal and beneficial title to the Goods shall remain vested in the Company (the “Retained Goods”).
- The Company may, at any time on giving prior written notice, enter the Buyers premises for the purpose of inspecting the Retained Goods and identifying them as the Company’s property and the Buyer irrevocably authorises the Company to enter upon its premises for that purpose.
- The Retained Goods: –
- are held by the Buyer as fiduciary for the Company and the Buyer shall not pledge or in any way charge by way of security for indebtedness, any retained Goods;
- shall be at the Buyer’s risk, insured by the Buyer from the date of delivery at its own expense for their full replacement value against all usual risks;
- shall be kept safe in good condition and stored separately by the Buyer and clearly identifiable as the Company’s property and with all identifying marks intact and legible;
- may (subject to Condition (d) below), be used or sold by the Buyer in the ordinary course of business on the basis that the Buyer shall hold the proceeds of sale in trust for the Company absolutely.
- At the Company’s election, the Buyers powers of use and sale of the Retained Goods shall terminate forthwith on notice by the Company or automatically upon the occurrence of any of the events specified in below (“the Events”):
- if the Buyer is in default in the performance of any or all of its obligations under this Contract or any other contract with the Company;
- if the Company has reasonable doubts as to the ability or willingness of the Buyer to pay any sum to due to the Company;
- if the Buyer causes a meeting of or makes any arrangement or
- composition with its creditors;
- if the Buyer becomes insolvent or bankrupt (as defined by section 113 of the Housing Grants, Construction and Regeneration Act 1996) or appears to be unable to pay a debt or to have no reasonable prospect of paying a debt (within the meaning of sections 123 or 268 of the Insolvency Act 1986);
- if there is presented a petition for the winding up of the Buyer or for the appointment of an Administrator of its undertakings;
- Upon suspension and revocation or determination of the Buyer’s power of sale and use under this Condition 12, the Buyer shall place all the Retained Goods in its possession or under its control at the Company’s disposal and shall be deemed irrevocably to authorise the Company to enter upon any of the Buyers premises, with our without vehicles, for the purpose of removing such Retained Goods.
(g) Repossession of the Retained Goods by the Company in accordance with this Condition 12 shall be without prejudice to all or any of the Company’s other rights against the Buyer under the Contract.
- Time for making payment shall be of the essence of the Contract.
- In consideration of the Company’s performance of the Services, the Buyer shall pay the Company:
- the Contract Price;
- any additional amounts payable pursuant to the terms of the Contract
- Following deemed delivery of the Goods (in accordance with Condition 7(f)), the Company may issue an invoice to the Buyer for Payment.
- The due date for the Payment shall be 5 days after the issue of an invoice by the Company to the Buyer pursuant to condition 13(c);
- No later than 5 days after the due date, the Buyer shall give a written notice to the Company specifying the sum that the Buyer considers to be or have been due at the due date and the basis on which that sum is calculated (the “Payment Notice“).
- If the Buyer fails to give a Payment notice in accordance with Condition 13(e) then:
- where an invoice has been issued, the invoice will be treated as the Payment Notice; or
- where the Company has not issued an invoice, the Company may at any time after the 5 day period referred to in Condition 13(e) give a notice to the Buyer stating the sum the Company considers to be or have been due at the due date and the basis on which that sum has been calculated
(the “Default Payment Notice“).
- The final date for payment of the sum due shall be 25 days after the due date (unless otherwise agreed by the Company in writing).
- If the Buyer intends to pay less than the sum stated as due at the due date, not later than 5 days before the final date for payment, the Buyer shall give the Company written notice of its intention to pay less than as stated in the Payment Notice and the basis on which that lesser sum is calculated (the “Pay Less Notice“).
- In the event that the Buyer does not pay the Company any sum properly due, the Buyer shall pay interest on such overdue sum at a rate of 5% per annum above the official base rate of the Bank of England and shall be calculated and accrue on a day to day basis from the date on which the payment fell due until payment
- No discount or allowance will be made to the sum payable unless specifically stated by the Company in writing.
- In the event of the Buyer failing to pay any sum properly due to the Company by the final date for payment, the Company shall be entitled to suspend their Services (including delivery of any Goods) until payment in respect thereof has been received in full.
- The Company reserves the right at any time at its discretion to demand security for payment before progressing a Quotation Order for the Services.
- VAT will be charged at the rate ruling at the time of despatch of the Goods or, if different, the basic tax point (as defined in regulations governing VAT from time to time in force).
14 LIMITATION OF LIABILITY
- The Services are to be supplied strictly on the understanding that the Buyer has satisfied itself of their suitability for the Buyers intended purpose.
- The Company shall in the provision of the Services exercise the standard of reasonable skill and care reasonably to be expected of a suitably qualified and experienced person undertaking services and other duties similar to those performed or to be performed under this Contract.
- Notwithstanding any other condition in the Contract, the Company’s liability under or in connection with the Contract shall be limited to the Contract Price.
- For the avoidance of doubt, where the Company undertakes to carry out work or provide services of any kind on premises other than the Services, it shall be under no liability whatsoever for any loss or damage occasioned to the Buyer, its contractors, servants, employees, invitees or otherwise arising from any cause connected in any way with the execution of such works or provision of such services, and the Buyer shall indemnify the Company against any claim by any third party under any statute or at common law.
- No action or proceedings for any breach by the Company of its obligations under this Contract shall be commenced against the Company after the expiry of 12 years from the date of the completion of the Services under the Contract.
- Nothing in this Condition 14 attempts to exclude or limit the Company’s liability for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation or any other liability or loss forbidden by English Law.
- The Buyer shall indemnify and keep indemnified the Company against all
claims, proceedings, damages, costs and expenses suffered or incurred arising out of defects in the Goods (including, without limitation, all liability incurred under the Consumer Protection Act 1987, the Supply of Goods and Services Act 1982 and the Sale of Goods Act 1979) to the extent caused or contributed to by any act or omission of the Buyer, its servants, agents or persons under its control; or
- Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Condition 15(b).
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Condition 15; and
- as may be required by law.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- FORCE MAJEURE
- The Company shall not be liable to the Buyer if they are unable to carry out any provision of the Contract for any reason beyond its control including (but without limitation) an act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, lock out, strike, stoppage or other action by employees or third parties in contemplation of furtherance of any dispute or owing to any inability to procure parts or materials required for the performance of the Contract.
- The Company shall notify the Buyer as soon as reasonably practicable after any of the circumstances set out at Condition 16(a) arise. During the continuance of such a contingency, the Company may in its absolute discretion, withhold, reduce or suspend performance of its contractual obligations, so far as prevented or hindered by such contingency, without liability to the Buyer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction or suspension.
- Should such circumstance detailed at condition 16(a) continue for more than three months either party may (subject to the Company repaying to the Buyer any advanced payments made for undelivered Goods and the Buyer paying for Goods delivered) terminate the Contract without further liability to the other.
- Without prejudice to any of the Company’s other rights or remedies, the Company shall be entitled upon the happening of any of the Events detailed in Condition 12, to terminate the Contract or (in its absolute discretion) suspend further deliveries under this Contract with the Buyer, without liability.
- Where termination pursuant to Condition 17(a) above occurs but the Services have not been paid for, the price of such Services shall become immediately due and payable as a debt, notwithstanding any previous agreement to the contrary.
- For the avoidance of doubt, upon termination of the Contract in accordance with Condition 17(a), the Buyer shall return all Designs, associated documents and information which is the property of the Company and any copies thereof which are in the Buyer’s possession, custody and/or control.
- NO WAIVER
- No waiver of the Company’s rights under the Contract shall be effective unless made in writing and signed by a Director of the Company.
- A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of a Company’s rights in relation to different circumstances or the recurrence of similar circumstances.
- Any notices under these conditions shall be given in writing and sent or transmitted by any means (electronic or otherwise) to the address of the named individual as stated in the Quotation Order or to such address as the Company and the Buyer from time to time notify each other and shall be deemed served in the case of postal notice, on the expiry of 48 hours from the time of posting and in case of facsimile transmissions on the expiry of 1 hour from completion of transmission by the sender.
- CONSTRUCTION AND JURISDICTION
- English Law shall govern the construction and operation of the Contract and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts. Each of these conditions and each Condition hereof shall be construed as a separate condition. Should any provision be found to be invalid or unenforceable or an unreasonable restriction of the Company’s liability then such provision shall apply with such modification as may be necessary to make it valid and effective.
- MANUFACTURING TOLERANCES
- Unless agreed prior to order, the Company will manufacture to its published manufacturing tolerances. Details of these can be supplied upon request.