Terms and Conditions of Sale

  1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.

Commencement Date: has the meaning set out in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.

Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer: the person, firm, company or organisation who purchases the Goods and/or Services from the Supplier.

Deliverables: the deliverables (if any) set out in the Specification.

Delivery Location: has the meaning set out in clause 4.1.

Force Majeure Event: has the meaning given to it in clause 15.1.

Goods: the goods (or any part of them) set out in the Order.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: The Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form or the Customer's written, email or verbal acceptance of the Supplier's quotation as the case may be.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Specification: any specification for the Goods and/or Services, including any relevant descriptions, designs, plans or drawings, that is agreed in writing (including by email) by the Customer and the Supplier and confirmed in writing (including by email) by the Supplier as being agreed.

Supplier: the partnership trading as A & S Landscape whose principal office is at March Way, Battlefield Enterprise Park, Shrewsbury SY1 3JE.   

Supplier Materials: has the meaning set out in clause 8.1(h).

1.2 Construction. In these Conditions, the following rules apply:

(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) a reference to a party includes its personal representatives, successors or permitted assigns;

(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted.

A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e) a reference to writing or written includes faxes and e-mails.

  1. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.

2.2 Not Used

2.3 The Contract constitutes the entire agreement between the parties. These Conditions shall form part of the Supply agreement. Unless expressly accepted in writing by a Director of the Supplier, no alternative to or qualification of these terms and conditions shall be deemed to apply to the Supply agreement whether contained in any of the Purchaser’s written or printed documents or otherwise. For the avoidance of doubt, the provisions of these terms shall prevail.

2.4 Material samples submitted for approval by the Supplier show substance and general character only. Colour, size, thickness or shape cannot be guaranteed. Drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. Technical information quoted is based on information generally distributed by manufacturers and the Supplier cannot warrant its accuracy.

They shall not form part of the Contract or any other contract between the Customer and the Supplier for the supply of Goods and/or Services.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by the Supplier shall constitute an offer, and is only valid for a period of 4 weeks from its date.

2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

  1. GOODS

3.1 The goods and/or the services to be provided shall be fit for their intended purpose and shall comply at all times with statutory and regulatory requirements.

  1. DELIVERY OF GOODS AND SERVICES

4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

4.2 Complete delivery shall be effected once the goods are delivered to the delivery location. Payment shall be in accordance with the payment provisions contained within the quotation

4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods or provision of Services that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 If the Supplier entirely fails in its obligation to deliver the Goods, its liability shall be limited to the monetary value of the supply contract. The supplier shall not be liable for (but not limited to) indirect or consequential losses, loss of use, loss of revenue or anticipated profits. The customer is liable for providing the Supplier with adequate delivery instructions and no loss to the customer for the failure to do so is accepted.

4.5 If the Customer fails to accept or take delivery of the Goods within 10 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 11th Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses.

4.6 If 45 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. 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.

  1. QUALITY OF GOODS

5.1 Warranties on Goods and Services are given in accordance with the Supply of Goods and Services Act 1982 (“The Act”). The Supplier warrants that on delivery, the Goods shall:

(a) conform in all material respects with their description and any applicable Specification;

(b) be free from material defects in design, material and workmanship; and

(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing during the period allowed under The Act,  that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) the Supplier is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, abnormal working conditions, or extreme weather conditions;

(f) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.

  1. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on delivery.

6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

(a) the Goods; and

(b) any other goods that the Supplier has supplied to the Customer.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Supplier's bailee;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1(b) to clause 13.1 (l); and

(e) give the Supplier such information relating to the Goods and allow the Supplier access to premises where the Goods are located as the Supplier may require from time to time.

6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, and without limiting any other right or remedy the Supplier may have, the Supplier

may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are located in order to recover them and such rights or remedies shall apply regardless of whether the Goods have been incorporated into or attached to or form part of any other goods, materials or structures.

  1. SUPPLY OF SERVICES

7.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.

7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

7.5 Unless specifically agreed by the Supplier and Customer in writing, any price quoted or agreed for the Goods and Services:

(a) does not include any provision for reinstatement of surrounding areas.

(b) assumes normal conditions beneath ground and does not take into account any excavation through unforeseen material, which if required will be charged in addition;

(c) does not include locating services situated within areas where excavation works are to be carried out, which if required will be charged in addition;

(d) does not include the alteration or redirection of any services that may be present, which if required will be charged in addition;

(e) does not include for structural calculations to be presented in any specific format, which if required will be charged in addition;

(f) does not include any reinstatement to playground markings, equipment or surfaces, which if required will be charged in addition.

7.6 Where preparation works are to be carried out by third parties and on inspection by the Supplier are not satisfactory, the Supplier reserves the right to raise abortive charges and/or contra-charge the Customer for hire of equipment, materials and labour to rectify the area to make good and enable installation.

7.7 Where a lead time has been quoted for the provision of Services, this is accurate at the time of quoting and the period will commence at the point of design approval.   

7.8 The Customer shall be responsible for providing accurate details in respect of colours for all finishes

7.9 Where the Supplier has suggested a colour or colour match it is in good faith and no liability will be accepted by the Supplier for any discrepancy.

7.10 Where advice has been given by a representative of the Supplier relating to planning permission it is given in good faith but without liability and the Customer is responsible for seeking its own professional advice in relation to planning or related matters.

7.11 Unless specifically agreed by the Supplier and Customer in writing, no guarantee is given that the Supplier's or sub-contractor staff on site will conform to any specific accreditation, training or industry standards.

7.12 The Customer will make available appropriate welfare facilities to the Supplier's or sub-contractor staff on site.

7.13 Unless specifically agreed by the supplier and customer in writing, Tarmac surface reinstatement will be with a cold repair product or concrete surface

7.14 Steel products that have been hot dipped galvanised before painting may have some runs/lumps beneath the surface.

7.15 Whilst the Motiva canopy system is designed as watertight, some seepage through the joints after heavy rains or melting snow may be evident.

7.16 Where a canopy is located against a wall, no flashing will be supplied unless expressly requested and agreed between the Supplier and Customer in writing.

7.17 The Goods are not designed for and no accreditation, verbal or written statement will imply that any Goods comprising a roofing product could be walked on.

  1. CUSTOMER'S OBLIGATIONS

8.1 The Customer shall:

(a) ensure that the terms of the Order and the information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

(d) access referred to in clause 8.1 (c) above shall be available from 8.00am until 5.00pm and if the Supplier is not able to gain such access, or the Supplier is otherwise unable to perform the Services due to the Customer’s fault or due to any of the matters referred to in clause 7, then additional charges shall apply as follows:

(i) from 9.00am at a rate of £75 per hour until work can commence;

(ii) a charge of £500 per day if a site visit is fully aborted.

(iii) return visits will need to be arranged between the supplier and the customer and will depend entirely upon the availability of the supplier’s labour and materials

(e) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(f) prepare the Customer's premises for the supply of the Services;

(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(h) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's

written instructions or authorisation;

(i) indemnify the Supplier against all liabilities, costs or claims arising out of damage caused above, below, on or around the location where the Goods are to be installed or erected or Services provided, where such damage arises due to the failure of the Customer to inform the Supplier of the location of drains, pipes, cables or other services;

(i) indemnify the Supplier against all liabilities, costs or claims arising out of the improper or inappropriate use of the Goods, including any Goods comprising a roofing product being walked on; and

(k) ensure that no Goods comprising a roofing product are walked on (including the provision of relevant signage and warning materials prohibiting such walking).

8.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and

(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

  1. CHARGES AND PAYMENT

9.1 The price for the Goods and Services shall be the price set out in the Supplier's quotation for the Goods and Services or published price list as at the date of delivery.

9.2 The Supplier reserves the right to:

(a) increase the price of the Goods and Services, by giving notice to the Customer at any time before delivery of the Goods or performance of the Services, to reflect any increase in the cost of the Goods or Services that is due to:

(i) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, services to be provided, or the Specification; or

(ii) any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services beyond the period in the quotation for its acceptance

9.3 Unless otherwise agreed in writing payment shall be in accordance with the terms set out in the quotation.

9.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier

such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.5 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 5 per cent per annum above the then current Bank of England's base lending

rate or, if higher, the then current rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1988.

Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

9.6 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. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

9.7 O&M manuals will not be submitted until payment is received in full.

  1. INTELLECTUAL PROPERTY RIGHTS

10.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and Services shall be owned by the Supplier.

10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

10.3 All Supplier Materials are the exclusive property of the Supplier.

  1. CONFIDENTIALITY

11.1 A party (Receiving Party) 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 the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.

11.2 No part of any drawing supplied by the Supplier to the Customer at any stage prior to or during or after the Contract may be copied, reproduced, scanned or stored in any electronic database or made available to any third party whether in whole or in part by any form or by any means.

  1. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

(e) defective products under the Consumer Protection Act 1987.

12.2 Subject to clause 12.1:

(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;

(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances

exceed the higher of: (i) the price of the Goods and Services; and (ii) £50,000; and

(c) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, in respect of any loss or liability arising by reference to Goods comprising a roofing product being walked on.

12.3 In the event that the limitation on liability set out in cause 12.2 is found by any court, tribunal or administrative body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable or unreasonable then subject to clause 12.1, the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Contract, the provision of Goods or the Services shall be limited to the amount that the Supplier is able to recover from time to time in accordance with the Supplier's liability insurance effected by the Supplier, a copy of which policy shall be provided to the Customer on request.

12.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

12.5 This clause 12 shall survive termination of the Contract.

  1. TERMINATION

13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable)

fails to remedy that breach within 45 days after receipt of notice in writing of the breach;

(b) the other party 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 other party 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 other party with one or more other companies or the solvent reconstruction of that other party;

(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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party (being an individual) is the subject of a bankruptcy petition or order;

(f) a creditor or encumbrancer of the other party 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 other party (being a company);

(h) a floating charge holder over the assets of the other party (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 other party or a receiver is appointed over the assets of the other party;

(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(b) to clause13.1(j) (inclusive);

(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

(l) the other party (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.

13.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:

(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or

(b) the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

  1. CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services or Goods supplied or costs incurred by the Supplier but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

(c) the accrued rights and remedies of the parties 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; and

(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

  1. FORCE MAJEURE

15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier 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, inclement weather conditions or default of suppliers

  1. FORCE MAJEURE

15.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the

Supplier 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, inclement weather conditions or default of suppliers or subcontractors.

15.2 The Supplier 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.

15.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 24 weeks, either party shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the other.

  1. GENERAL

16.1 Assignment and subcontracting.

(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.2 Notices.

(a) Any Notice or legal documents required to be given by the parties under or in connection with this contract will be validly served if given in writing and delivered personally, sent by Registered Post or Recorded Delivery or delivered by commercial courier to the companies’ registered office or last known trading address. It is a condition precedent for valid service that proof of service is obtained”

(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

16.3 Severance.

(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

16.4 Third parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.

16.5 Variation. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.

16.6 Governing law and jurisdiction. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England

and Wales.

 

  1. Disputes

(a) The Sub-Contractor and Contractor agree that either party may refer a dispute to adjudication at any time, following the rules and procedures of the Scheme for Construction Contracts Part 1 (the Scheme). The Decision of the Adjudicator shall be binding on the parties until the dispute is finally resolved through agreement or by Arbitration under the CIMAR rules

(b) Save in the circumstances provided for below, the parties shall each bear their own legal costs and other expenses incurred in the adjudication.

(c) Where the referring party is awarded in the aggregate a sum more than 50% of the amount claimed, the non-referring party shall reimburse the referring party’s legal costs and other expenses which the referring party incurred in the adjudication process

(d) The adjudicator shall decide how his fee and reasonable expenses are to be apportioned between the parties

(e) The adjudicator shall be permitted to correct his decision so as to remove clerical or typographical errors arising by accident or omission