1 We will not accept the delivery of any materials or goods which are not included on our official order form unless our consent to the delivery has been granted in writing.
Subject to any variation agreed in writing by both parties, these conditions are the only conditions upon which we are prepared to deal with you and they shall govern the Contract to the entire exclusion of all other terms or conditions.
No terms or conditions endorsed upon, delivered with or contained in your quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and you waive any right which you otherwise might have to rely on such terms and conditions.
Each Order for goods by us from you shall be deemed to be an offer by us to buy goods subject to these conditions and no Order shall be accepted until you either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accept the offer.
2 All goods supplied or work carried out must conform to the specification or specifications mentioned on our order. Where no specifications are mentioned the goods or work are to be the best of their kind. We reserve the right to reject any goods or work which do not fulfil this condition and any goods or work so rejected will be at your risk and expense.
3 i) Goods to be sent carriage paid unless otherwise agreed in writing.
ii) The goods to remain at your risk until actually delivered and signed for by a representative of our company at the address specified
4 If delivery is not made by the date specified on the order, we reserve the right to cancel the whole or any part of the order and to debit you with any additional cost incurred by us as a result of such cancellation.
The goods ordered under this Contract shall remain at your risk until delivery to us is complete (including offloading and stacking) when ownership of the goods shall pass to us.
Time for delivery shall be of the essence of this Contract.
TRANSFER OF ORDER
5 You shall not, without our consent in writing, assign or transfer the order or any part of it to any other person or company and shall not, without consent as aforesaid, sub-let the order or any part thereof other than materials, minor details or for any part of the goods of which the makers are named in the order or specification. Any such consent shall not relieve you of any of your obligations under these conditions of purchase.
ADVICE NOTES, INVOICES
6 Advice notes and invoices as requested on the face of our Purchase Order must be sent to us on the same day as goods are despatched. A copy of the Advice note and, or Packing note to be sent with the goods.
The full Order Number must be quoted on all invoices, Advice notes and Correspondence. Separate invoices must be issued against each individual order number.
7 Statements must be submitted by the 3rd day of each month.
8 All goods are subject to our inspection and test and where stipulated, to our clients inspection and tests either at your works or after delivery. Appropriate Test Certificates to be provided when requested. Any goods failing to pass inspection and test may be rejected.
DEFECTIVE DESIGN, DAMAGE OR INJURY
9 You shall keep us indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by us as a result of or in connection with:
i) defective workmanship, quality or materials;
ii) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the goods; and
iii) any claim made against us in respect of any liability, loss, damage, injury, cost or expense sustained by our employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by you.
VARIATIONS OF CONDITIONS
10 These conditions will not be varied except in so far as expressly agreed to by us in writing.
11 An acknowledgement of receipt of this order is requested.
TERMS OF PAYMENT
12 Unless otherwise stated in the order payment will be made within 45 days from the end of the month in which the invoice is received by ourselves subject to our right to query any item of the invoice in which event the time for payment shall be 45 days after agreement of the invoice in writing to the supplier.
INSTALLATION AND OPERATING MANUALS / TECHNICAL SUBMITTALS
13 Installation and Operating Manuals (in duplicate) and details of equipment delivered to site must be provided upon delivery and in the format described and specified. Technical submittal of equipment to be provided is to be in electronic form (I.e. DVD/CD-ROM) and be submitted to F.C.S. Ductwork Limited as requested to enable timeous approval.
14 The Supplier shall as soon as reasonably practicable repair or replace all goods which are or become defective during the period of 12 months from installation or 18 months from delivery whichever shall be the shorter where such defects occur under proper usage and are due to faulty design. Supplier’s erroneous instructions as to use or erroneous use of data, or inadequate or faulty materials or workmanship, or any other breach of Suppliers warranties, excess or implied. Repairs and replacements shall themselves be subject to the foregoing obligations for a period of 12 months from the latest of the dates of delivery re-installation or passing of tests (if any) whichever is appropriate after repair or replacement.
You warrant to us that any goods supplied to us under this Contract shall comply with all applicable laws and health and safety requirements, as amended and in force from time to time.
15 If the Supplier fails to execute the order within the delivery or programme period then the supplier shall pay or allow to ourselves by way of liquidated or ascertained damages an amount which will be the same as that to which we ourself is subject to in our contract with our client. The amount of liquidated damages to be applied will be stated in the purchase order.
16 Except where stated otherwise in the order the supplier shall protect any item or part that might deteriorate during transportation or offsite storage.
17 Should it appear to us that :
i)The order is not being executed by the supplier in accordance with or as specified in the order; or
ii)The supplier has not made sufficient progress to ensure the delivery of the goods by the time stated in the order or that such time has already expired; or
iii) The supplier has refused to carry out the reasonable instruction from ourselves for the execution of the order then we may give to the supplier seven days notice specifying the default and requiring the supplier to make it good notwithstanding that the delivery period has not yet expired and would not have done so at the expiration of the notice given hereunder. If the supplier fails to make good his defaults within the time specified in the notice, or, if no time specified within reasonable time, we may terminate the contract in whole or in part and perform himself or through another such of the order as the supplier has failed to perform or make such modifications, substitutions or additions to the order as we consider necessary to ensure the satisfactory execution thereof we shall not be liable for any loss suffered by the supplier as a result of our actions under this condition and shall be indemnified by the supplier against any loss or damage incurred as a result of the suppliers breach here under.
18 If the supplier becomes insolvent or (being a company) makes an agreement with its creditors or has a Receiver appointed or commences to be wound up (other than for purposes of amalgamation or reconstruction) we may without prejudice to any of his other rights terminate the order forthwith by notice to the supplier or to any person in whom the order may have become vested. Any materials held in the Suppliers works at the time that the Supplier becomes so insolvent, makes an arrangement with his creditors, has a Receiver appointed or commences to be wound up, that have already been paid for by ourselves as a part payment of the order, shall be deemed to be our property and shall not be held to be part of the assets of the Supplier. These materials shall be released to us on demand.
19 We may terminate the order, in whole or in part by written notice to the Supplier at any time without assigning any reason but specifying that the termination is pursuant to this condition. In such event, the total order price shall be adjusted so that the supplier shall be paid on a quantum merit basis provided that such adjustment shall not exceed the total order price nor allow any amount for anticipated profit for performance not rendered or consequential loss or damage and provided that the Suppliers written claim for adjustment is received within 30 days of the effective date of termination. We shall have no liability for payment or any other compensation howsoever arising except as expressly stated herein. This provision shall not be deemed to limit or otherwise affect our right to cancel this order under any other clause.
Upon receipt of the termination notice under this contract the Supplier shall stop work to the extent specified in the notice and take such other action as may be necessary or as we may direct for the transfer, protection, minimise the cost of termination to our company.
20 In the event that either party is rendered unable, wholly or in part by circumstances beyond its reasonable control including any form of Government intervention, Acts of God, wars, rebellion, insurrection, strikes and lockouts, (exceeding strikes, lockouts or other industrial disputes or actions amongst employees of the supplier) to carry out its obligations under the order, other than its obligations to make payments of amounts due for work already performed, then such order may be suspended or if delivery cannot be made within a reasonable time after the due date, the order may be cancelled by either party giving notice in writing to the other. We shall not be liable to the supplier for any costs or claims whatsoever in respect of such suspension or the goods so cancelled.
INTELLECTUAL PROPERTY RIGHTS
21 Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by us to you or not so supplied but used by you specifically in the manufacture of the goods under this Contract shall at all times be and remain our exclusive property, but shall be held by you in safe custody at your own risk and maintained and kept in good condition by you until returned to us and shall not be disposed of other than in accordance with our written instructions, nor shall such items be used otherwise than as authorised by us in writing.
22 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us or our agents and any other confidential information concerning our business or its products which you may obtain and you shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to us and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind you.
23 i) Each right or remedy which we have under the Contract is without prejudice to any other right or remedy which we may have whether under the Contract or not.
ii) 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.
iii) Failure or delay by us in enforcing or partially enforcing any provision of the Contract shall not be construedas a waiver of any of its rights under the Contract.
iv) Any waiver by us of any breach of, or any default under, any provision of the Contract by you shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
v) 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.
vi) The order shall be construed and governed in all respects by English Law and shall be deemed to have been made in England and both parties agree to submit to the exclusive jurisdiction of the English Courts.
THE FOLLOWING APPLY TO SUB SUB-CONTRACT ORDERS ONLY
CONDITIONS OF SUB SUB CONTRACT
24 Where the supply of the materials, goods or work specified on this order is in the nature of a sub sub-contract under a Main Contract to which we are parties, by your acceptance of this order you agree ;
i) To accept all the conditions of our Main Contract so far as the same relates to your Contract with us. The conditions of the said Main Contract are deemed to be embodied herein and to be binding on you.
ii) To indemnify us against all and any liability which we may incur under any upkeep, guarantee or penalty clauses, whether liquidated or otherwise under the provision of the said Main Contract.
VARIATIONS, FLUCTUATIONS, LOSS AND/OR EXPENSE
25 If the sub-sub contractor is entitled to or should allow the sub-contractor amounts in respect of variations, fluctuations or loss and/or expense which themselves should properly be taken into account in the certification of amounts due to or to be allowed by the sub-contractor, then such amounts shall only become due upon issue of the certificate which so takes them into account.
STATUS OF SUB-CONTRACT
26 Any payments made by us to you are only for the goods which are the subject of the Order. Under no circumstances shall we, nor our customers and clients, be liable to you in respect of any payments which you yourself are liable for in respect of employees, contractors, agents, representatives or other workers engaged by you.
27 Contract: the Order and your acceptance of the Order.
Order: our written instruction to supply goods, incorporating these conditions.
Us, our or we: FCS Ductwork Limited (company registration number: 02880120), whose registered office is at
Park House, 15-19 Greenhill Crescent, Watford Business Park, Watford, Hertfordshire WD1 8QU.
You, your or Supplier: the person, firm or company who accepts our Order.
A reference to a 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.
A reference to one gender includes a reference to the other gender.
Condition headings do not affect the interpretation of these Conditions.