Ivor King (C.E.C.) Limited – Terms and Conditions

 

1)     These terms and conditions shall apply in respect of the provision of the goods and services set out in our confirmation of order (respectively “the Goods” and “the Services” and together “the Installation”) (as may be more particularly set out in the specifications, plans, drawing and other documentation attached to our confirmation of order or referred to herein) and to any other goods and services we supply to you.

2)     These terms and conditions together with the description of the Goods, Services or Installation set out in our confirmation of order and any specifications, plans, drawing and other documentation attached thereto or referred to therein (together the “Contract Documentation”) shall constitute the entire agreement between us, shall prevail over your own terms and conditions and shall not be varied unless agreed in writing.

3)     These terms and conditions apply to circumstances where you purchase Goods only from us, where Goods are hired to you, where we are supplying an Installation to you in accordance with designs supplied by us or where we are supplying an Installation to you pursuant to designs and specifications provided by you. Where you hire equipment from us, equipment will be hired in accordance with the Construction Plant-hire Association terms and conditions which are available on request.

4)     You agree that in entering into the agreement between us you shall not rely on any statement contained in any brochure, price list or sales literature or any other representation or understanding (whether oral or in writing) which is not included or referred to in the Contract Documentation. For the avoidance of doubt however you may rely on any quote given to you during the period of 30 days prior to you placing an order with us.

5)     No order submitted by you shall be accepted or deemed to have been accepted by us unless we have confirmed it in writing setting out the details of the Goods, Services or Installation including where relevant the Services commencement date and any relevant project milestones (unless the same are set out in any other relevant Contract Documentation).

6)     The price payable in respect of the Goods will be as set out in our confirmation of order (the “Goods Price”) and is EX WORKS INCOTERMS 2000. The price payable in respect of the Services is also set out in our confirmation of order (the “Services Price”) and the Goods Price and the Services Price (together the “Price”) shall be exclusive of all duties and taxes of whatsoever nature including VAT. Where indicated by us, the Price is an estimate subject to re-measurement on completion of the works at the rates given in the bill of quantities.

7)     Where our agreement with you includes or relates only to the sale or hire of Goods, we shall invoice you for the Goods Price on or at anytime after delivery of the Goods.

8)     Where our agreement with you involves the supply of Services, the Services Price shall be invoiced by us in accordance with our confirmation of order. Where our confirmation of order refers to instalment dates or project milestones, we shall invoice you on or after such date or milestone for the charges then due.

9)     All invoices submitted by us to you shall be payable within 30 days from the end of the month of the date of the invoice (“the Due Date”) without deduction or set-off. Where relevant, you shall pay our reasonable charges for delivery to the delivery address in addition to the Goods Price.

10)  We may increase the Price to reflect any reasonable increase in our costs which is beyond our control (such as the cost of materials or labour required in the Installation) or which is caused by any change to estimated delivery dates, quantities or specifications of the Goods and/or Services requested by you or any delay caused by you.

11)  In the event that we provide Goods and Services to you beyond those specifically set out in the confirmation of order then we shall be entitled to increase the Price in proportion to our rates applied in calculating the Service Price and in respect of additional goods, in accordance with our price list at the time of sale to you. If you fail to return hired Goods to us on the date specified in the confirmation of order then we shall be entitled to invoice you for the cost of replacement goods or the cost of hire for the Goods whichever is the higher.

12)  If you do not pay the Price in full and in cleared funds by the Due Date then, in addition to our other rights, we shall be entitled to cancel the agreement between us and/or suspend the further provision of Goods or Services to you and/or charge you interest on the outstanding amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

13)  Any dates given for delivery of the Goods and the provision of the Services are estimates only and we shall not be liable to you for any reasonable delay in such delivery or provision however that delay is caused.

14)  You shall collect the Goods from our premises at Haunchwood Park Industrial Estate, Galley Common, Nuneaton, Warwickshire CV10 9PD within 3 business days of us notifying you that these are ready unless we confirm in our confirmation of order that we shall deliver the Goods to you in which case the Goods shall be delivered to you at the location specified in our confirmation of order on or around the date set out therein.

15)  Each delivery of Goods or separate stage for the provision of Services shall constitute a separate contract and our failure to deliver or provide any one or more of such instalments in accordance with the Contract Documentation or any claim by you in respect of any one or more instalments shall not entitle you to terminate the agreement between us as a whole.

16)  If you fail to take or accept delivery of the Goods when the Goods are delivered to you or, where delivery is EX WORKS INCOTERMS 2000 fail to collect the Goods within 3 business days of us notifying you that the Goods are ready, then delivery of the Goods shall be deemed to have been completed on our arrival at the delivery place or our notification to you and we shall store the Goods until delivery takes place, and be entitled to charge you for all related storage and delivery costs and expenses (including insurance).

17)  If we fail to deliver the Goods as a result of which we are deemed by any competent authority to be liable to you, our liability shall be limited to the cost to you of the cheapest available replacement goods less the Goods Price.

18)  You agree to inspect and test the Goods prior to the commencement of the installation (whether the installation is being completed by us or otherwise) and your right to reject the Goods and/or the Installation will be lost 30 days after we complete the installation or earlier if you alter, attempt to repair or damage the Goods, or if you fail to store the Goods in accordance with our instructions. If you reject the Goods/Installation within 30 days of completion, you must notify us immediately by telephone or fax and we will have the right to either repair or replace certain of the Goods incorporated in the installation within a reasonable time at our sole discretion.

19)  You will ensure that at the date of the commencement of the Installation you have adequate public liability insurance and all other relevant insurances for the site of the Installation. This insurance must cover any injury suffered by our employees whilst providing the Services on your premises. You will further ensure that all relevant planning permissions, consents and other regulatory requirements are complied with.

20)  You will allow our employees and agents such access to the site of the Installation as necessary (and in any event between 7.30 – 18:00 Monday to Friday) to allow us to carry out the Installation.  You will also allow our employees and agents access to such utilities including without limitation water and electricity supplies as is necessary to allow us to carry out the Installation.

21)  Where we are providing Services or an Installation you will be responsible for providing the following in relation to the site where relevant in accordance with the instructions provided by us to you:

  • a secure and      safe environment and exclusion zone for the Installation (including      dealing with all necessary health and safety requirements);
  • a suitable and      level piling platform typically 500mm thick type 6F2 and to all areas      where the piling equipment needs to operate from and/or Working Platform Certificate;
  • all setting out      of the piles line, offset points for line and level including the checking      thereof;
  • all site      preparation works, including identifying, monitoring, removing and      disposing of any hazardous materials in accordance with all applicable      laws, before and during the Installation;
  • the      implementation of all necessary transport and transport diversion      measures;
  • the removal and      disposal of waste from the site of the Installation (for which you shall      bear all related costs);
  • access ramps adequate      for carrying our plant, lorries and ancillary equipment in a fully rigged      condition, should it be required that piling takes place from different      levels. These will not be steeper than 1 in 10 for our piling machines;
  • suitable storage      space for piles to contract requirements at the same level as the piling      area, in a position to allow off-loading by our rigs within 10 metres of      the final pile position; and
  • accurate      location and marking at ground level of any underground or overhead      services, which shall be adequately protected or diverted/removed.

22)  If the performance of our obligations is prevented or delayed by any act or omission caused by you, your agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.

23)  Risk of damage to or loss of the Goods shall pass to you at the time of delivery or when we have tendered delivery.

24)  The Goods shall remain our property in the case of hire indefinitely or in the case of sale until you have paid in cleared funds all sums owing to us in full both in respect of the Goods themselves and in respect of any other account or debt howsoever arising.

25)  Until all sums owing to us have been paid in full and in cleared funds or, in the case of hire at all times, you shall properly store the Goods on our behalf as our bailee, protect and insure the Goods against loss or damage and in the event of a relevant claim shall hold the proceeds of such insurance on our behalf as our trustees. The Goods must be stored separately and properly identified as belonging to us.

26)  Whether you hire or buy the Goods if you have not paid in cleared funds any invoice by the Due Date, or if a receiver, administrator or liquidator is appointed in respect of your business, your right to possession of the Goods shall end and we shall be entitled to terminate the agreement and you shall at your expense make the Goods available to us and allow us to repossess them.

27)  You hereby grant us, our agents and employees to the fullest extent possible an irrevocable licence to enter at any time any premises where the Goods are stored to enable us to repossess or inspect them.

28)  Elements of the installation processes, designs or procedures may be protected by Patent and/or trade mark registration and represent material and valuable copyright, know-how, goodwill and other intellectual property rights owned or where appropriate used on licence by us (“IPR”).

29)  You may use the IPR only as strictly necessary by way of incorporation of the Installation into any ongoing project or as otherwise approved by us in writing. You acknowledge that you have no other rights in respect of the IPR. You shall do nothing which may in any way prejudice our rights in the IPR or which may bring in to question the validity of their registration.  You will not copy, modify or alter any designs or specifications prepared by us and you shall not share our designs with any other third party without our prior written consent.

30)  You shall keep all details relating to the IPR and our business dealings (including for the avoidance of doubt our designs), employees and other customers strictly confidential.

31)  Provided that the total Goods Price/Price for the Goods/Installation has been paid in full and in cleared funds on or before the Due Date, we guarantee the Goods against defects in materials and workmanship to the extent only that they are the subject of a guarantee or warranty from the manufacturer of the Goods and to the extent we can enforce such guarantee or warranty against that manufacturer of the Goods. No other warranty, guarantee or other term relating to the supply and manufacture of the Goods is given and if implied by statute, common law or otherwise is excluded to the fullest extent permitted by law.

32)  Any claim made by you in respect of any guarantee given under clause 31 must be notified to us within 7 days of the date of delivery or if any relevant defect or failure would not have been apparent on reasonable inspection of the component products, within 7 days after discovery of that defect or failure.   If you fail to comply with the provisions of this clause we shall have no liability to you in respect of the relevant defect or failure under the terms of any guarantee.

33)  Except in respect of death or personal injury caused by our negligence we shall not be liable to you by reason of any representation (unless fraudulent) or any implied warranty, condition or other term or any duty at common law or under these terms and conditions for any liquidated damages or penalty you incur as a result of any agreement with a third party for the Goods, Services  or Installation supplied by us or for any loss of profit or any indirect or consequential loss, damage, costs or expenses which arise out of or in connection with the supply of Goods, Services or Installation by us to you.

34)  We warrant that we will use all due skill and care in providing you with the Services, in accordance with the Contract Documentation. Other than as expressly provided for in these terms and conditions no warranty, guarantee or other term relating to the provision of the Services whether implied by statute, common law or otherwise is given.

35)  We accept no responsibility and shall have no liability to you in the event of:

  1. a.               damage caused by your employees or third parties;
  2. b.            refusal of piles short of the required embedment level when driven, due   to obstructions or any other cause. We will drive the piles to required level or refusal whichever occurs first and refusal is considered to be 10 blows per 25mm.
    1. c.               defects in the structure of the site of the Installation;
    2. d.               unsuitability of, defects in or damage to goods or materials provided by you;
    3. e.               failure by you to comply with these terms and conditions; or
    4. any event beyond our control.

36)  Events beyond our control shall mean any circumstance which prevent us from performing our obligations to you including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our employees or the employees of any other relevant 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, failure of suppliers or subcontractors or the actions of main contractors, accident, breakdown of plant or machinery, fire, flood, tidal change, snow, frost, high winds, storm, contamination, collapse of surrounding structures and epidemics.

37)  Except in respect of death or personal injury our entire liability in respect of the agreement between us shall not exceed the amount of the limit of our professional indemnity insurance at the relevant time.

38)  Where the Installation design and specifications included in the Contract Documentation have been prepared and provided by you, we shall not be liable for any defect in the Goods, Services or Installation (as the case may be) caused by any defect in the Contract Documentation. In such circumstances and notwithstanding any other provision of these terms and conditions we only warrant that the Installation will conform to the Contract Documentation and all other warranties are excluded to the fullest extent permissible by law. You shall indemnify us against any damages, losses, costs or expenses we incur in respect of any claim brought against us by a third party for any loss, injury or damage caused by the Installation in any way connected with the performance of our obligations pursuant to and in accordance with the Contract Documentation where such loss, injury or damage does not arise as a result of our negligence.

39)  We shall be entitled to terminate our agreement with you in the event that you breach your obligations under our agreement with you, if you become unable to pay your debts as and when they fall due, if you commence negotiations with your creditors or if any resolution is considered or passed for your winding up. If we terminate our agreement with you, you will immediately pay to us the Price (or such portion of the Price due and owing at the date of termination).

40)  We reserve the right to assign or sub-contract any or all of the rights any obligations under these terms and conditions without your further consent to such assignment or sub-contract.

41)  The Contracts (Rights of Third Parties) Act 1999 shall not apply to the agreement between us.

42)  We may waive any of our rights under these terms and conditions without prejudice to any other rights under them or under other contracts.

43)  If any provision of these terms and conditions (whether in part or in whole) is held by a Court or jurisdiction to be illegal, or unenforceable the remaining provisions of the Contract shall remain in full force and effect. These terms and conditions shall be governed by the laws of England.