TERMS AND CONDITIONS
- Definitions
The SELLER means S and B Eps Limited (registered no. 01646418). Address Dudley, Cramlington, Tyne and Wear, NE23 7PY.
The CUSTOMER or PURCHASER means the person, firm, company or other legal entity to whom the SELLER supplies the goods and services or whose order for
the GOODS and / or SERVICES is accepted by the SELLER.
The PRICE or COST means the total value specified in the SELLER’s quotation or tender.
The GOODS / EQUIPMENT and / or SERVICES mean all the work and all 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 (S and B EPS Limited) and the CUSTOMER / PURCHASER for the sale and purchase of the GOODS and / or SERVICES.
The SPECIFICATION means the detailed description of the GOODS and / 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 the SELLER’s responsibility concerning merchantability, fitness for purpose, size, weight or any other attribute of the GOODS and / or SERVICES whatsoever.
“CONDITIONS” means the Standard Terms and Conditions of sale set out in this document, any notes and / or clarifications made in the SELLERS quotation or referred to therein and includes any special terms and conditions agreed in writing between the PURCHASER / CUSTOMER and the SELLER.
“QUOTATION” or “TENDER” means the SELLER’s written quotation or tender.
“PARTY” shall mean the PURCHASER / CUSTOMER or the SELLER, as this may be.
- Prices and Contracts
2.1 Any contract arising between the parties shall only be formed by the SELLER’s acceptance of the CUSTOMER’s order. Such contract shall be conditional upon the availability of productive capacity, labour, plant and materials, agreement of programme confirmed in writing at the time of contract or order placed and the CUSTOMER’s creditworthiness being approved by the SELLER. Each order for GOODS and / or SERVICES by the CUSTOMER shall be deemed to be an offer by the CUSTOMER to purchase GOODS and / 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 SELLERS QUOTATION. 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 and / or the supply of the SERVICES shall be conclusive evidence that the CUSTOMER accepts that the SELLER’s CONDITIONS apply.
2.3 No agent or distributor of the SELLER has any authority to make any representation or give any warranty in relation to the materials, work carried out, or to agree to any variation of or addition to these CONDITIONS unless such representation, warranty, or addition is expressed in writing and signed on behalf of the SELLER by an authorised personnel in the company at Director level or above .
2.4 If and so far as the GOODS and / or SERVICES have been necessarily commenced in advance of the agreed programme having regard to normal process time, the CUSTOMER shall be liable to accept delivery of the GOODS and / or SERVICES at the times and in the quantities as indicated in the agreed programme and pay therefore in accordance with the rates and PRICES set out in the SELLER’s QUOTATION and these CONDITIONS unless otherwise agreed by both parties.
2.5 The SELLER reserves the right to sub-let the CONTRACT in whole or in part or use the services of sub-contractors for any part or parts of the CONTRACT, ensuring the materials and supply are manufactured and obtain the correct quality approval.
2.6 Unless expressly stated in the SELLER’s QUOTATION to the contrary, the SELLERS QUOTATION shall be open for acceptance by the CUSTOMER for 30 days from the date of QUOTATON (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 CUSTOMERS credit. The SELLER reserves the right to continuously review the CUSTOMER’s credit rating and facility. CUSTOMERS without an approved credit account with the SELLER is required to pay for goods in full a minimum of 5 working days prior to delivery or collection of goods.
- Specifications
3.1 All materials, drawings and dimensions contained in the SELLER’s QUOTATION are intended only to present a general description of the GOODS 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 and / or SERVICES to be provided as set out in the SPECIFICATION.
3.2 The GOODS must be handled and stored by the CUSTOMER in the manner recommended by the
SELLER.
3.3 In any case where the SELLER’s design is subject to approval by the PURCHASER / CUSTOMER, Architect’s, Civil engineering design, Consulting and other design Engineers or similar bodies or persons, the SELLER’s quotation is subject to variation or withdrawal in the event of modification of the design or calculations being required because of consideration by any such body.
3.4 No responsibility is accepted by the SELLER for the accuracy or correctness of any information supplied by the (and the CUSTOMER / PURCHASER confirms that the information is accurate and suitable). The CUSTOMER shall be responsible for checking and approving any drawings or calculations provided by the SELLER to ensure they satisfy the needs of the CUSTOMER. The SELLER has no liability for GOODS and / or SERVICES that have had designs / drawings / calculations checked and / or approved that are subsequently found to not meet the needs of the CUSTOMER.
- Supply and inspection
4.1 If the Customer desires to inspect the equipment or goods before delivery, such inspection must be made at the SELLER’s work or place of storage. If upon inspection the EQUIPMENT or GOOD’s is approved on or behalf of the CUSTOMER shall approval shall constitute final acceptance. If no inspection is made the Customer shall be deemed for all purposes as 4.2.
4.2 To have accepted the EQUIPMENT or GOODS when delivered and to have approved the GOOD’s or EQUIPMENT.
4.3 Only the GOODS / EQUIPMENT expressly stated in the SELLER’s QUOTATION are included in the PRICE shown in the SELLERS QUOTATION.
4.4 If the GOODS are found to be out of specification as in design, tolerance, material grade etc, we reserve the right to visit the place of destination and replace GOODS that are out of tolerance and specification within 96 hrs of site visit. The SELLER shall not be liable for any direct, indirect or consequential loss or costs of the CUSTOMER prior to this time scale.
- Deliveries and Collection
5.1 The period for delivery or collection shall start from the date of the SELLER’s acknowledgement referred to in section 2, or from the date of receipt by the SELLER of all necessary information, drawings and relevant documentation. Any information received thereafter may result in the delivery / collection 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.
5.2 Unless expressly stated in the SELLER’s QUOTATION to the contrary, the SELLER’s QUOTATION is based upon units being delivered during normal working hours on the SELLER’s normal working days (8.00am to 5.00pm Monday to Friday excluding Bank Holidays and works shutdown periods i.e. Christmas period). The CUSTOMER shall pay additional charges for delivery outside these periods as set out in the SELLER’s QUOTATION or agreed prior to delivery by QUOTATION. Deliveries for specific times of day are not guaranteed by the SELLER and the PURCHASER shall accept delivery at any time during normal working hours.
5.3 Unless expressly stated in the SELLER’s QUOTATION to the contrary, the SELLER’s QUOTATION is based upon material being delivered on standard 45ft curtain sided articulated vehicles. If site constraints prevent the delivery as the foregoing, additional charges will apply as subsequently advised by the SELLER. Such extra charges shall be added to the PRICE and paid for in accordance with provisions of section 7 of these CONDITIONS.
5.4 Unless expressly stated in the SELLERS QUOTATION a period of Ten working days for the CUSTOMER to approve the SELLER’s working drawings has been allowed. Any delay in approval over and above this may result in amendment of the collection or delivery date(s).
5.5 Unless expressly stated in the SELLER’s QUOTATION to the contrary, where programme dates have been agreed, ten days’ notice in writing is required confirming the CUSTOMER will be ready to receive the SELLER’s products. Revised programme requirements shall not be considered as accepted until confirmed by the SELLER in writing
5.6 Whilst the SELLER shall make reasonable efforts to maintain delivery schedules or programmes, 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 and the need to ensure the safe transit of goods, the sequence of goods supplied on delivery is not guaranteed and can only be at the SELLER’s option.
5.7 Delivery of the GOODS will be made as near to the site stated in the QUOTATION as, in the opinion of the SELLER or the haulier, safe hard access. It is the CUSTOMERS responsibility to ensure that there is safe, suitable access for the articulated vehicles.
5.8 The CUSTOMER shall not be entitled to, nor shall it refuse to accept the GOODS and / or SERVICES on the grounds of delay in delivery.
5.9 Where the CUSTOMER is responsible for unloading (as part of the GOODS and / or SERVICES), an allowance of up to two hours per load from time of arrival on site is made for the CUSTOMER to unload the SELLER’s vehicles. The SELLER reserves the right to charge the CUSTOMER for any additional time taken as set out in the SELLER’s QUOTATION or documents referred to therein based on excess hourly charge.
5.10 The CUSTOMER shall not be entitled to claim in respect of short delivery or goods damaged in transit unless the appropriate delivery note is suitably endorsed by the CUSTOMER / PURCHASER or his agent and verbal notification is made to the SELLER’s office within 8 hours of delivery. Notwithstanding the foregoing, the SELLER has no liability to the CUSTOMER in respect of short delivery or goods damaged in transit unless conclusive contemporary evidence is provided by the CUSTOMER to the SELLER.
5.11 To ensure haulage efficiencies, any consignments of product in quantities which represent part-loads may be delivered in conjunction with deliveries of other sites / projects. Delivery dates and times may be affected by this.
- Cancellation and Goods on Hold
6.1 Should the SELLER incur any direct or indirect / consequential cost, loss or expense arising from a cancellation and / or goods on hold due to the CUSTOMERS actions, lack of action, instructions or lack of instructions, such extra cost, loss or expense shall or can be added to the PRICE and paid for in accordance with PRICE and terms of payment section in these terms and conditions.
6.2 If for any reason the CUSTOMER is unable to or will not accept delivery of the GOODS and / or SERVICES or collect the GOODS and / or SERVICES at the time when they are due and ready for delivery or collection, the SELLER shall be entitled at his option to apply for / invoice for the GOODS / and or SERVICES and be paid by the CUSTOMER as if delivered or collected. In such circumstances the SELLER shall so long as storage facilities permit, store the GOODS and / or SERVICES until actual delivery or collection (at the CUSTOMERS’s risk and cost).
6.3 Should the SELLER be required to undertake works on a re-work or daywork basis, the SELLER’s and CUSTOMER will come to an agreed cost for the works to be completed at the time such work is undertaken shall apply.
- Prices and Terms of Payment
7.1 Approved accounts will be subject to a trade limit, either agreed upon the placing of an Order or as previously agreed. Non-approved accounts will be strictly on a pro forma basis. Payment shall be made by the CUSTOMER / PURCHASER to the SELLER in accordance with the payment provisions stated in the CONTRACT. In the absence of any other written agreement, payment terms in respect of approved accounts will be 30 days from the date of the SELLER’s invoice.
7.2 Should the CUSTOMER default in payment 20 days after the due date for any sum, or any reason, then without prejudice to any other right which the SELLER may possess, the SELLER shall be entitled to be paid interest at a rate of 5% above the Bank of England Base Rate (calculated on a day to day basis on any outstanding balance) to run from the date on which such amount was due for payment until receipt (cleared funds) by the SELLER of the full amount due (whether before or after any judgement). Unless otherwise agreed between the SELLER and the CUSTOMER.
7.3 The CUSTOMERS obligation to pay on the due date is absolute.
7.4 in addition to any statutory rights the SELLER may have and without prejudice to the right to payment for deliveries or collections already made and payment for the work carried out on suspended items, the SELLER shall also have the right to suspend further deliveries in respect of the GOODS and / or SERVICES forthwith or to determine the CONTRACT, and for damages. Should the SELLER incur any direct or indirect, loss or expense arising from such suspension, such extra cost, loss or expense shall be added to the PRICE and paid for in accordance with provisions of section 7. In the event of the SELLER suspending its works arising from the CUSTOMER / PURCHASER default in payment, the SELLER shall not be liable for any direct or indirect / consequential cost, loss or expense, liquidated and ascertained damages etc arising from such suspension.
7.5 Goods held in stock beyond the programmed collection, or delivery date shall be paid for as if collection, delivery had been made at the due time. For the passing of risk in such goods, such goods shall also be deemed collected, delivered at the due date. Furthermore, goods held in stock beyond collection, delivery dates shall be subject to a storage charge amounting to £120 per load per week.
7.6 All goods shall remain the property of the SELLER until full payment (cleared funds) for them has been received by the SELLER.
7.7 the SELLER may suspend deliveries of GOODS and / or SERVICES or take such action as (at the SELLER’s sole discretion) is considered suitable to protect the interests of the SELLER without incurring any liability to the PURCHASER whatsoever.
7.8 The SELLERS QUOTATION is exclusive of Value Added Tax or any other tax or duty which is or may be levied or charged. To the extent that the supply of GOODS and / or SERVICES is subject to such taxes, the amount prevailing shall be added to amounts due under the CONTRACT.
7.9 Unless expressly stated in the SELLER’s QUOTATION, any order and / or call off that necessitate deliveries in consignments which result in part loads that have not been included for in the SELLER’s QUOTATION, will result in additional charges being made.
7.10 The CUSTOMER / PURCHASER shall save, indemnify and hold harmless the SELLER from the PURCHASERS own direct, indirect or consequential loss, whether foreseeable at the start of the CONTRACT. Consequential loss shall mean consequential or indirect loss including deferral of production, loss of product, loss of use, loss of revenue, loss of profit or anticipated profit (if any), funding and financing costs etc.
8 Price Period
8.1 The PRICE(s) set out within the SELLER’s QUOTATION are valid for the period stated. Unless otherwise agreed, the SELLER reserves the right to apply an immediate price increase to all GOODS and / or SERVICES supplied beyond this period. In the absence of any other agreement.
9 Force Majeure
9.1 The SELLER shall not be liable in any way for any delay in performing its obligations or for any direct, indirect or consequential loss, expense, damages or costs to the extent that the delay, loss, expense, 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, 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.
9.2 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 and for payment for the work carried out on suspended item(s) 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 direct, indirect or consequential loss, expense damages or costs of the CUSTOMER resulting from such a termination.
9.3 The date for performance of the SELLER’s contractual obligation(s) which has been delayed by a force majeure event shall be deemed suspended for a period equal to the delay caused by such event plus a reasonable period sufficient to allow the SELLER to re-plan and remobilise its resources. If the delay caused by the force majeure event extends for a continuous period of 30 days after the date on which the force majeure event begins either the SELLER or the CUSTOMER may, while such force majeure event continues, terminate the CONTRACT by written notice to the other specifying the termination date, without incurring any liability to the other. Once a notice to terminate has been validly given, the CONTRACT will terminate on the termination date set out in the notice. Prejudice the SELLER’s right to payment for GOODS and / or SERVICES already delivered and / or undertaken or for payment for the work carried out on suspended item(s) including storage.
10 Site Delivery
10.1 The SELLER must be provided with all facilities under the relevant Health Welfare and Safety Regulations, along with adequate off-loading facilities to ensure Health and Safety regulations.
11 Defects and Liability
11.1 The SELLER shall not be liable for defects arising from the CUSTOMERS methods of installation or alterations to the GOODS and / or 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 CUSTOMER during or after installation. Storage information for goods can be supplied from the seller.
12 Property and Risk
12.1 Until payment in full has been received for the CONTRACT, property in the goods supplied by the SELLER shall remain with the SELLER. The SELLER may enter any premises and re-take possession of the goods forthwith upon the CUSTOMER / PURCHASER becoming bankrupt, going into liquidation, administration or receivership or failing to make payment in accordance with the CONTRACT. Until payment in full has been received by the SELLER, the CUSTOMER 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.
13 Disputes
13.1 In the event of a dispute arising between the SELLER and the CUSTOMER in respect of the CONTRACT the dispute may be referred to an Adjudicator and the decision of such Adjudicator shall be binding on both parties.
14 Notices
14.1 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).
15 Rights of Third Parties
15.1 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.
16 Law
16.1 The 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 unenforceable the remainder of the CONTRACT shall not be affected. The CONTRACT is made at the company’s premises in Dudley, Cramlington, Tyne and Wear NE23 7PY, United Kingdom.
17 Termination
17.1 The SELLER shall be entitled to terminate the CONTRACT by written notice forthwith if the CUSTOMER / PURCHASER defaults in making payment of any part of the PRICE when such payment falls due.
17.2 Either PARTY shall be entitled to terminate the CONTRACT forthwith should the other PARTY;
In the case of an individual or any partner in a partnership becoming bankrupt or insolvent or being adjudicated
bankrupt or insolvent by a court of competent jurisdiction; or Suffer the appointment of a liquidator, administrative receiver, other receiver or manager or administrator appointed over the whole or a substantial part of its assets or undertaking or if it makes a composition with its creditors; or Issue a notice proposing that it be wound up or passes a resolution for its winding up; or Cease to carry on all or substantially all of its business or be unable to pay its debts as they fall due.