MDL INSULATIONS LTD
STANDARD TERMS AND CONDITIONS
The SELLER means MDL INSULATIONS LTD.
The PURCHASER means the person, company or other legal entity to whom the SELLER supplies the goods and services or whose order for the GOODS or SERVICES is accepted by the SELLER.
The PRICE means the total value specified in the SELLER’s quotation or tender.
The Goods or SERVICES means all the work and all of the services to be performed together with the equipment and material which are the subject matter of the CONTRACT.
The CONTRACT means the agreement between the SELLER and the PURCHASER for the sale and purchase of the GOODS and SERVICES.
The SPECIFICATION means the detailed description of the WORK or SERVICES to be provided by the SELLER which the SELLER and PURCHASER agree comprises, subject to these Terms and Conditions which take precedence thereto, the scope of its responsibility concerning merchantability, fitness for purpose, size, weight or any other attribute of the GOODS or SERVICES whatsoever.
“Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the PURCHASER and the SELLER.
“Quotation” means the SELLER’s written quotation or tender.
2. Establishment of Contract
2.1 Any contract arising between the parties shall only be formed by the SELLER’s acceptance of the PURCHASER’s order. Such contract shall be conditional upon the availability of productive capacity and materials, mutual agreement of programme confirmed in writing at the time of contract and the PURCHASER’s creditworthiness being approved by the SELLER. Each order for GOODS or SERVICES by the PURCHASER shall be deemed to be an offer by the PURCHASER to purchase GOODS or SERVICES subject to these conditions.
2.2 The CONTRACT shall be governed by these Conditions and any documents made a part of the CONTRACT by specific reference in the quotation or tender of the SELLER or any of the foregoing documents. For the avoidance of doubt, any terms and conditions of the PURCHASER which conflict with these Conditions shall be null and void. Acceptance of delivery of the GOODS or the supply of SERVICES shall be conclusive evidence that the PURCHASER accepts that the SELLER’s conditions apply.
2.3 The SELLER reserves the right to sub-let the contract or use the services of sub-contractors for any part or parts of the contract and sub-contractors or sub-lessees being bound by the same conditions as the SELLER.
2.4 No servant or agent of the SELLER has any authority to make any representation or give any warranty in relation to the materials, design or work carried out, or to agree to any variation of or in addition to these Conditions unless such representation, warranty, variation or addition is expressed in writing and signed on behalf of the SELLER by a director (or other authorised person).
2.5 If and so far as the work has been necessarily commenced in advance of the agreed programme in order to provide in accordance with the normal process time for the provisional delivery dates the PURCHASER shall be liable to accept delivery of that work at the times and in the quantities as indicated and pay therefore in accordance with the rates and prices set out in the SELLER’s quotation and the terms hereof.
2.6 Quotations by the SELLER shall be open for acceptance by the PURCHASER within 28 days from the date of quotation (unless otherwise agreed in writing by the SELLER). All quotations are made on the basis that no contract will come into existence until a written acknowledgement of order is issued by the SELLER and the SELLER has confirmed its approval and acceptance of the Customer’s credit. The SELLER reserves the right to continuously review the PURCHASER’s credit. Any PURCHASER without an approved credit account with the SELLER is required to pay for goods in full prior to delivery/collection.
3. Scope of Supply
3.1 Only the GOODS and SERVICES expressly stated in the SELLER’s quotation are included in the prices shown.
4. Specification and Drawings
4.1 All descriptive material, drawings and particulars of weights, finishes and dimensions contained in the SELLER’s quotation are intended merely to present a general idea of the GOODS or SERVICES and none of these shall form part of the CONTRACT and this is not a sale by sample; nor shall the SELLER be liable for any misrepresentation or inaccuracy therein unless and to the extent such representation or accuracy comprised part of the SELLER’s scope of work, GOODS or SERVICES to be provided as set out in the SPECIFICATION.
4.2 The PURCHASER shall accept the GOODS or SERVICES as satisfactory fulfilment of the CONTRACT notwithstanding variations (which do not affect their quality) which are reasonable or attributed to any change in construction techniques or design within the limitations which are imposed by availability of materials and components and by production techniques.
4.3 No responsibility is accepted by the SELLER for the accuracy of correctness of any information supplied by the PURCHASER (and the PURCHASER confirms that the information is accurate and suitable). The PURCHASER shall be responsible for checking and approving any drawings provided by the SELLER to ensure they satisfy the needs of the PURCHASER.
4.4 In any case where the SELLER’s design is subject to approval by Government Departments, Local Authorities, Consulting Engineers or similar bodies or persons, the SELLER’s quotation is subject to variation or withdrawal in the event of modification of the design being required as a result of consideration by any such body or persons.
4.5 Any plans, drawings or technical documents prepared by the SELLER and submitted to the PURCHASER prior or subsequent to the formation of the contract shall remain the property of the SELLER and shall be returned to the SELLER on request. The PURCHASER shall not without the SELLER’s written consent copy the said plans, drawings or technical documents or any part of them to others or allow others to use or copy them, nor will the PURCHASER use or allow any third party to use the said plans, drawings or technical documents other than in connection with the installation of the GOODS.
5. Deliveries and Collection
5.1 The period for collection or delivery shall commence from the date of the SELLER’s acknowledgement referred to in clause 2.6 or from the date of receipt by the SELLER of all necessary information, drawings and a fully phased programme to enable the SELLER to properly commence the work, whichever is the later. Any information received thereafter may result in the collection or delivery date proposed being amended and any revision to a previously agreed programme will be subject to renegotiation, having due regard to the SELLER’s other business commitments at the time. The time of commencement of design work is to be at the SELLER’s option having regard for the delivery period quoted, the extent of the design work required and the drawing approval period. The possession of design information provided by the PURCHASER does not necessarily imply acceptance of its adequacy. The adequacy of design information can only be assessed at the design and detailing stage. Inadequate information may affect delivery dates. A period of seven days for approval of the SELLER’s working drawings by the PURCHASER has been allowed. Any delay in approval over and above this may result in amendment of the collection or delivery date(s).
5.2 Unless specified in the SELLER’s quotation, where delivery dates have been agreed, confirmation is required from the PURCHASER that either they or their agent will be ready to receive the SELLER’s products.
5.3 Unless otherwise stated, the SELLER’s quotation is based upon goods being delivered during normal working hours on the SELLER’s normal working days (ie: 7.00am to 5.00pm Monday to Friday excluding Bank Holidays and works shutdown periods). The PURCHASER shall pay an additional charge for delivery outside these limits. Deliveries for specific times of day cannot be guaranteed and the SELLER shall accept delivery at any time during normal working hours.
5.4 Whilst the SELLER shall make reasonable efforts to maintain delivery schedules, the SELLER shall not be liable for any loss or damage, direct, indirect or consequential whether foreseeable or unforeseeable due to any delay in delivery and the date for delivery may not be made of the essence by notice. Due to manufacturing, loading and haulage constraints the sequence of goods supplied on delivery can only be at the SELLER’s option.
5.5 Delivery of the GOODS will be made as near to the site stated in the CONTRACT as, in the opinion of the SELLER or its haulier, safe hard access permits. It is the PURCHASER’s responsibility to ensure that there is suitable access for the heaviest legally permitted articulated vehicles.
5.6 The PURCHASER shall not be entitled to claim in respect of short delivery or goods damaged in transit unless the delivery ticket is suitably endorsed by the PURCHASER or his agent and verbal notification is made to the SELLER’s office within 24 hours of delivery and separate written confirmation is received by the SELLER within 7 working days of delivery.
5.7 If the SELLER so agrees the GOODS may be collected from the SELLER’s production works by the PURCHASER and in such event, when the PURCHASER is notified that the GOODS are ready for collection at the SELLER’s works, the PURCHASER shall collect them without delay.
5.8 Any consignments of product in quantities which represent part-loads may be delivered in conjunction with deliveries to other sites and programming of dates and times may be affected by this.
5.9 The SELLER may make delivery by instalments. Each separate instalment shall be invoiced and paid for in accordance with this CONTRACT. Failure by the SELLER to deliver any one or more (but not all) instalments in accordance with this CONTRACT or any claim by the PURCHASER in respect of any one or more (but not all) instalments shall not entitle the PURCHASER to treat this CONTRACT as repudiated. Failure by the PURCHASER to pay for any one or more instalments in accordance with this CONTRACT shall entitle the SELLER (without prejudice to its other rights and remedies). to suspend further deliveries of GOODS under any other contract between the SELLER and the PURCHASER pending payment by the PURCHASER; and or to treat this CONTRACT as repudiated by the PURCHASER.
5.10 The PURCHASER shall not be entitled to nor shall it refuse to accept the GOODS on the grounds of delay in delivery.
7. Variation, Cancellation and Suspension
7.1 Should the SELLER incur any costs or losses as a consequence of a variation and/or cancellation and/or suspension of work due to PURCHASER’s Instructions or lack of instructions, such extra costs or losses shall be added to the contract price and paid for in accordance with provisions of condition 8.
7.2 If for any reason the PURCHASER is unable to or will not accept delivery of the GOODS or collect the GOODS at the time when they are due and ready for delivery or collection, the SELLER shall be entitled at his option to invoice and be paid for the GOODS as if delivered or collected, and/or so long as storage facilities permit, store the GOODS until actual delivery or collection (at the PURCHASER’s risk and cost).
8. Prices and Terms of Payment
8.1 Payment shall be made within the agreed period stated in the CONTRACT commencing from the date of the SELLER’s application/invoice provided that before delivery or collection occurs the SELLER will require adequate security for payment from the PURCHASER before being obliged to make delivery or allow collection. The SELLER may suspend deliveries or take such action as is considered suitable to protect the interests of the SELLER without incurring any liability to the PURCHASER whatsoever. Time for payment shall be of the essence.
8.2 Should the PURCHASER default in payment on the due date for any sum, for whatsoever reason, then without prejudice to any other right which the SELLER may have the SELLER shall be entitled to be paid interest at a rate of 3% above the base rate of the SELLER’s bank (calculated on a day to day basis on any outstanding balance) to run from the date on which such amount was due until receipt by the SELLER of the full amount due (whether before or after any judgement). The SELLER shall also have the right to suspend further deliveries and services forthwith or to determine the contract, without prejudice to the right of payment for deliveries or collections already made and payment for the work carried out on the suspended items, and for damages, in addition to any statutory rights it may have.
8.3 The PRICE and all prices referred to herein exclude Value Added Taxes, or any other tax or duty which is or may be levied or charged. The amount of such taxes or duties calculated at the rate prevailing at the appropriate time will be added to such prices and shall be payable by the PURCHASER to the SELLER.
8.4 Goods held in stock beyond the programmed collection or delivery date shall be paid for as if collection or delivery had been made at the due time. For the purpose of the passing of risk in such goods, such goods shall also be deemed collected or delivered at the due time.
8.5 Unless otherwise agreed in writing, any order and/or call off that necessitates deliveries in consignments which cause part loads, that have not been included for, will result in additional charges being made.
8.6 Payment shall be made in full.
8.7 The PURCHASER’s obligation to pay on the due date is absolute.
8.8 No deductions or set-offs from payments shall be allowed without prior notification at least five days before payment is due giving reasons for such set-off or deduction, and the SELLER’s written agreement.
9. Defects and Liability
9.1 The GOODS and SERVICES must be handled and stored by the PURCHASER in the manner recommended from time to time by the SELLER.
9.2 The SELLER shall not be liable for defects arising from the PURCHASER’s methods of erection, installation or maintenance nor alterations to the GOODS and SERVICES carried out without the SELLER’s written consent nor from repairs carried out improperly nor from deterioration or inadequate protection while being stored by the PURCHASER during and after construction.
10. Force Majeure
10.1 The SELLER shall not be liable for any delay in performing its obligations or for any loss, damages or costs to the extent that the delay, loss, damages or costs is caused by a ‘force majeure’ event as set out below. In addition, should a force majeure event occur, the SELLER shall not be liable to take alternative measures which will result in increased costs, charges or expenses to the SELLER. Force majeure events shall be acts of God, acts of civil or military authorities, war, fire, tempest, lock-outs, industrial disputes, strikes, accidents, breakdowns of plant and equipment, inclement weather, national emergency, riot, civil disturbance, explosion, inability to obtain adequate material, fuel, parts, labour or plant and circumstances beyond the SELLER’s reasonable control.
10.2 The date for performance of the contractual obligation which has been delayed by the force majeure event shall be deemed suspended only for a period equal to the delay caused by such event. If the delay caused by the force majeure event extends for a continuous period of 28 days after the date on which the force majeure event begins either the SELLER or the PURCHASER may, while such force majeure event continues, the termination date without incurring any liability to the other. Once a notice to terminate has been validly given, this Contract will terminate on the termination date set out in the notice.
10.3 Should any instance of force majeure cause the contract to be determined, the SELLER shall be entitled to payment for all work executed under the contract up to the date of termination, plus the costs of any obligations with third parties reasonably undertaken prior to the termination in anticipation of the contract continuing. The SELLER shall not be liable for any loss, damages or costs of the PURCHASER resulting from such a termination.
11. Property and Risk
11.1 Until payment in full has been received for this CONTRACT, property in the goods supplied by the SELLER shall remain the property of the SELLER. The SELLER may enter any premises occupied by the PURCHASER and re-take possession of the goods forthwith upon the PURCHASER becoming bankrupt, going into liquidation, administration or receivership or failing to make payment in accordance with this CONTRACT. Until payment in full has been received by the SELLER, the PURCHASER shall have possession of the GOODS as bailee only and the PURCHASER shall account to the SELLER for all proceeds of sale or other disposition of the GOODS. The PURCHASER shall not attach the GOODS to any land without prior written consent of the SELLER. If any of the GOODS are incorporated into a product property or chattel of the PURCHASER before payment has been made, the property in such property, product or chattel shall be and remain with the SELLER until such payment has been made. If the Goods are incorporated as aforesaid into something belonging to someone other than the
PURCHASER, then the property in such property, product or chattel shall be deemed to be owned by the SELLER in common with that other person.
11.2 Notwithstanding the foregoing, the risk of loss or damage to the GOODS (from whatsoever cause arising) shall be borne by the PURCHASER from the time of actual delivery or collection, or at the time when the GOODS are due for delivery or collection, whichever occurs first.
12.1 In the event of a dispute arising between the SELLER and the PURCHASER regarding the interpretation of these conditions the dispute may be referred to an adjudicator and the decision of such adjudicator shall be binding on both parties.
All communications between parties under this CONTRACT shall be in writing (when receipt shall be deemed on the date of delivery, or the next working day when outside office hours).
14. Rights of Third Parties
Nothing in the CONTRACT shall confer or purport to confer on any third party any benefit or any right to enforce any conditions of the CONTRACT.
15. Law of the Contract
The Proper law of the Contract shall be English law and the parties to the CONTRACT submit to the non-exclusive jurisdiction of the Courts of England & Wales.
If any part of the CONTRACT is held to be unenforcable the remainder of the CONTRACT shall not be affected.