CHRIS BRAMMALL LIMITED
Terms & Conditions of Business - Rev E 3.4.17
REV A (5.2.1-3 ‘Payment’)
REV B (5.2.2-4 &5.4.4 ‘Payment’ and 1.1 ‘Definitions’)
REV C (4.2 ‘Price’)
REV D (5.4.3 ‘Payment’)
REV E (15.1 ‘Health & Safety/CDM)
1.1 In these Terms the following words and phrases shall have the following meaning unless the context indicates otherwise:
“Buyer” means any person or company who purchases Goods and Services from the Seller;
“Completion Payment” means a payment of 30% of the Price [OR the percentage specified on the Quote]. payable on completion of the manufacture of the Goods;
“Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods and/or the provision of the Services and which incorporates the Terms and the Quote;
“Deposit” means a payment of 30% of the Price [OR the percentage specified on the Quote]. payable before the manufacture of the Goods commences;
“Goods” means the goods which the Seller is to supply;
“Installation Payment” means a payment of 10% of the Price [OR the percentage specified on the Quote]. payable prior to the installation of the Goods and supply of the Services;
“Midway Payment” means a payment of 30% of the Price [OR the percentage specified on the Quote]. payable midway through the manufacture of the Goods;
“Order” means any request by the Buyer for the Seller to provide Goods and/or Services;
“Price” means the price in pounds sterling payable by the Buyer to the Seller in respect of the Goods and/or Services;
“Quote” means a statement of work, quotation or other similar document describing the Goods and/or Services offered to the Buyer;
“Seller” means Chris Brammall Limited, company registration number 04433707, whose registered office is Low Mill Business Park Morecambe Road Ulverston Cumbria LA12 9EE;
“Services” means the services to be performed in accordance with the Contract;
“Terms” means the Seller’s standard terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing between the parties.
1.2 Headings contained in these Terms are for reference purposes only and shall not affect their interpretation.
1.3 Any reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended from time to time.
2. OFFER AND ACCEPTANCE
2.1 The Company reserves the right to withdraw or amend a Quote at any time until acceptance pursuant to clause 2.2.
2.2 Unless previously withdrawn or otherwise agreed in writing the Quote is open for acceptance for a period of 30 days commencing on the date of the Quote or the date on which any amendments were notified to the Buyer.
2.3 By placing an Order and/or accepting a Quote the Buyer is deemed to accept these Terms which shall govern the Contract to the exclusion of any other terms.
2.4 In the absence of a signed Quote/Order form, any instruction or agreement for the Company to provide the Goods and/or Services shall be deemed to be an unconditional acceptance of these Terms by the Buyer.
2.5 When placing an Order the Buyer must provide sufficient and adequate information or instructions to enable the Seller to provide the Goods and/or the Services without delay.
2.6 No employee of the Seller has authority to make any warranty, statement or promise concerning the Goods, including any representation as to the life or wear of the Goods, except in writing signed by a director of the Seller and the Buyer agrees that it is not entering into the Contract in reliance on any such warranty, statement or promise (save that nothing in these terms affects the liability of either party for fraudulent misrepresentation).
3. SPECIFICATIONS AND SUPPLY OF GOODS AND/OR SERVICES
3.1 The Seller reserves the right to make any changes in the specification of the Goods and/or Services which may be required to conform with any applicable safety or other statutory requirements or which do not materially reduce the quality (or performance where appropriate) of the Goods and/or the Services.
3.2 The Seller reserves the right to decline to fulfil any Order made by a Buyer for the Goods and/or the Services.
3.3 The Seller shall use its reasonable endeavours to ensure that the Goods will correspond with their specification at the time of delivery and shall be free from defects and that the Services shall be provided to a standard commensurate with the Seller’s position as a manufacturer and fitter of sculptural metal work.
3.4 The Buyer shall provide the Seller with such information as the Seller shall reasonably require in order to supply the Goods and/or the Services in accordance with the Terms.
3.5 The Buyer will obtain any necessary permissions, licences or consents necessary to enable the Seller to supply the Goods and/or Services. The cost of this shall be the sole responsibility of the Buyer.
3.6 The Buyer will comply with all other requirements set out in the Quote including providing foundations, access, groundworks, main contractor attendance in order to enable the Seller to supply the Goods and/or Services.
3.7 The Seller will endeavour to supply the Goods and/or Services within the time estimated in the Quote however this is an estimate only and will not be binding on the Seller. If no time estimate has been given, the Goods and/or Services will be supplied within a reasonable time. Time for performance of supplying the Goods and/or Services will not be of the essence unless previously agreed by the parties in writing.
3.8 The Seller shall not be liable for any delays in supplying Goods and/or Services which arise from any cause beyond the Seller’s reasonable control or any inaccurate instructions from the Buyer and shall further be entitled to refuse to provide the Goods and/or Services without penalty if the Seller is unable to due to major faults or defects in the Buyer’s premises.
3.9 The Goods and/Services will be supplied at the address provided by the Buyer or where the address is not within the United Kingdom F.O.B in a United Kingdom Port.
4.1 The Price shall be the price as expressly quoted by the Seller in the Quote as amended pursuant to clause 2.3. The Price may vary from the figure in the Quote where the Buyer has requested changes to their specification or it has been otherwise necessary to amend the specification in accordance with clause 3.1 of these Terms.
4.2 The Seller reserves the right to increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller and/or any change in dates or specifications requested by the Buyer or any failure by the Buyer to give the Seller adequate information or instructions. Including storage in the event of a delay, revised date, cancellation of goods/services by the Buyer or similar events beyond the control of the Seller
4.3 All sums payable under this Contract unless otherwise stated are exclusive of VAT and other duties or taxes unless otherwise agreed in writing between the parties.
5.1 All payments shall be made in sterling by way of cash, cheque or credit card as specified in the Quote or as agreed between the parties in writing.
5.2 Unless otherwise agreed in writing payment for the Goods and/or Services will be as set out below:
5.2.1 A Deposit will be payable by the Buyer to the Seller [EITHER within 30 days of the date of the Seller’s invoice to the Buyer in respect of the same] [OR by the date specified in the Quote].
5.2.2 A Midway Payment will be payable by the Buyer to the Seller [EITHER within 30 days of the date of the Seller’s invoice to the Buyer in respect of the same][OR by the date specified in the Quote].
5.2.3 A final Midway Payment will be payable by the Buyer to the Seller [EITHER within 30 days of the date of the Seller’s invoice to the Buyer in respect of the same][OR by the date specified in the Quote] [OR no later than 10 days prior to the date specified in the Quote for the supply of the Goods and/or Services].
5.2.4 A Completion Payment will be payable by the Buyer to the Seller [EITHER within 30 days of the date of the Seller’s invoice to the Buyer in respect of the same][OR by the date specified in the Quote ].
5.3 The time for payment shall be of the essence.
5.4 If the Buyer fails to make payment in accordance with clause 5.2 and/or the Quote then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 terminate the Contract or suspend any further procurement of material, production of drawings, fabrication, manufacture or other operations connected with the supply of Goods and/or Services to the Buyer; and
5.4.2 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 2% above the Bank of England base rate from time to time per calendar month on a compound basis until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest); and
5.4.3 suspend, revoke or amend any credit terms including transfer of the outstanding debt to third party recovery agents.
5.4.4 in the event of the deposit not being received at the time stated during pre award communications the Seller has the right to amend subsequent drawing/procurement/fabrication/delivery times over and above any programs previously communicated.
5.5 The Buyer shall pay the Price without any deduction whether by set off, counterclaim or otherwise. The Seller shall have the right of set off.
5.6 The Seller shall not be liable for any costs incurred due to, associated with or arising from the Buyer’s failure to make payment on time. These shall be the Buyer’s responsibility.
6. CANCELLATION AND RETURNS
6.1 The Buyer may without penalty cancel the Contract at any time in the seven days after accepting a Quote pursuant to clause 2 by giving written notice to the Seller.
6.2 Subject to clause 6.1 and also to clause 6.3, any claim by the Buyer that any of the Goods and/or Service are damaged, defective or do not meet the Buyer’s specification shall be notified to the Seller within seven days from the date of supply, failing which the Buyer shall not be entitled to reject the Goods, the Seller shall have no liability to the Buyer and the Buyer shall be bound to pay the Price in full.
6.3 Where a defect was not reasonably apparent on inspection of the Goods and/or Services, the Buyer shall have twenty eight days from the date of supply to notify the Seller, although in all other respects the provisions of clause 6.2 shall continue to apply.
6.4 Where a valid claim in respect of any of the Goods and/or Services is made pursuant to clause 6.2 or 6.3, the Seller may either replace the Goods and/or rectify the Services provided free of charge or refund the Price (or a proportionate part of the Price) in which case the Seller shall have no further liability to the Buyer. The Seller will not replace the Goods or refund the Price where it reasonably believes that the Buyer has tampered with or not maintained the Goods properly.
7.1 Either party may, at any time, by notice in writing terminate this Contract forthwith if the other party is in default and if:
7.1.1 the default is material and is capable of remedy and the other party shall have failed to remedy such default within seven days of receiving written notice from the other party specifying the default and requiring its remedy; and/or
7.1.2 the default is material and is not capable of remedy; and/or
7.1.3 if the other party ceases to carry on its business; and/or
7.1.4 if a receiver, administrator or similar officer is appointed over all or any part of the assets or undertaking of the other party and is not discharged within fifteen days of such appointment; and/or
7.1.5 if the other party makes an assignment for the benefit of, or a composition with, its creditors, or another arrangement of similar import; and/or
7.1.6 if the other party shall go into liquidation or bankruptcy otherwise than for the purposes of a bona fide amalgamation or reconstruction.
7.2 Any rights to terminate the Contract shall be without prejudice to the rights of the other party.
8. TERMINATION CONSEQUENCES
In the event of the Contract being determined whether by passage of time, notice, breach or otherwise:
8.1 The Buyer shall immediately pay to the Seller:
8.1.1 all arrears of payments and any other sums due to the Seller, and
8.1.2 all other monies irrevocably paid by the Seller in connection with the Contract.
8.2 Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of the Contract and the determination of the Contract shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under the Contract notwithstanding that the other may have exercised one or more of the rights and remedies against it.
8.3 Any right or remedy to which either party is or may become entitled under this Contract or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this Contract or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
9. TITLE AND RISK
9.1 Risk of damage to or loss of the Goods or any materials used in the provision of the Services shall pass to the Buyer upon the supply of the Goods and/or Services (including installation where applicable). Where Goods are to be collected by the Buyer rather than delivered to the Buyer, risk of damage to or loss of the Goods shall be deemed to be the time that the Seller notifies the Buyer that the Goods are ready for collection.
9.2 Notwithstanding delivery or the passing of risk in the Goods, title to the Goods (or any part of them) shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price and all other amounts due to the Seller by the Buyer howsoever arising.
9.3 Notwithstanding that title to any such materials shall not have passed to the Buyer and without prejudice to any other rights available to it, an action for the Price can be maintained by the Seller at any time after the due date for payment.
9.4 Until such time as title in the Goods passes to the Buyer, the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, may enter on to any premises of the Buyer or third party where the Goods are stored and repossess the Goods.
10.1 Save as expressly provided for in the Terms and except where the Goods are supplied to a person dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.2 The Seller shall have no liability to the Buyer in respect of damaged or defective Goods where such damage has been sustained in transit after delivery of such materials to the Buyer or its agents.
10.3 The Seller does not exclude or restrict liability for death or personal injury resulting from its own negligence.
10.4 Subject to Clause 10.3, the Sellers’s liability for any breach of the terms of this Contract or otherwise will be limited to the aggregate value of the Goods supplied to the Buyer under the Contract in the twelve month period immediately preceding the breach.
10.5 Where the Buyer purchases Goods in the course of a business, the Buyer will indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with any claim paid or agreed to be paid by the Seller as a consequence of the Consumer Protection Act 1987.
10.6 Where the Buyer purchases Goods in the course of a business, the Buyer shall indemnify the Seller against any liabilities for any claim (including, but not limited to, liability for damages, costs and interest howsoever arising) arising from any action of the Seller undertaken in order to comply with the Buyer’s requirements in supplying the Goods.
11 INTELLECTUAL PROPERTY
11.1 The Seller shall retain any and all intellectual property rights, including copyright, in all documents, papers, data and reports which are prepared by or on behalf of the Seller for the Buyer in the course of supplying the Goods and/or providing the Services.
11.2 The parties agree not to cause or permit anything which may damage or endanger the intellectual property rights of the other party or that party’s title to it or assist or allow others to do so.
11.3 The Buyer will indemnify the Seller against all damages, penalties and costs to which the Seller may be liable as a result of work done in accordance with the Buyer’s specification which involves the infringement of any patents or registered designs
Except in so far as such matters are properly in, or come into, the public domain, the parties agree to keep secret and confidential all matters contained in or arising from the Contract and not to disclose any such confidential information to any person unless otherwise expressly provided by the Contract, or unless he is ordered to do so by a court of competent jurisdiction.
13. FORCE MAJEURE
If the performance of the Contract or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected (upon giving prompt notice to the other party) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use all reasonable endeavours to avoid or remove the causes of non-performance and shall continue performance of its obligations under the Contract whenever such causes are removed or diminished.
14.1 The Contract is personal to the Buyer and may not be assigned to any third party without the written consent of the Seller.
14.2 The Seller reserves the right to assign the Contract and to sub-contract all or any of its obligations.
14.3 No variation or amendment of these Terms or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both parties.
14.4 Any demand or notice given under the Contract shall be in writing and may
be served personally, by registered or recorded delivery mail, by facsimile transmission (confirmed by post), or by any other means which any party specifies by notice to the others and each party’s address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the others.
14.5 A notice shall be deemed to have been served if it was served in person, at the time of service, if it was served by post, 24 hours after it was posted, and if it was served by facsimile transmission, at the time of transmission.
14.6 If any provision of the Contract is rendered void by any legislation to which it is subject or the final decision of any court having jurisdiction the Contract shall be rendered void to that extent and no further; and the remainder of the Contract shall constitute the agreement of the parties.
14.7 The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
14.8 The law applicable to the Contract shall be English law and the parties consent to the exclusive jurisdiction of the English courts.
15 Health & Safety/Construction Design Management (CDM)
15.1 In the event of the Seller being appointed as a Principal Contractor, Sub Contractor or any variations thereof the Buyer (or parties acting on their behalf eg Principal Contractor, Principal Designer etc…) under CDM is required “to satisfy themselves that those who will carry out the work have the skills, knowledge…….., to carry out the work in a way that secures health and safety” and ensure that “A contractor who employs workers or manages workers under their control must ensure that appropriate supervision is provided…..”
As such the Seller will provide a baseline competency level of CSCS (Green) Labourer Cards for all staff and management on site in addition to which all tradesmen in charge of an installation on site will be qualified to CITB Site Supervisors Safety Training Scheme (SSSTS).
In the event that site rules exceed the above CSCS Green Card/SSSTS then the duty to assess the level of competency/supervision required will lie with the Buyer (or parties acting on their behalf as above).