MODULAR SCREENS LIMITED TERMS OF PURCHASE
1.1. In these terms:
“We”, “us” and “ours” refers to
“Your”, “your”, “yours” and “yourselves” refer to the person, firm or company (whether correctly named in the order or not) accepting the order to supply goods and/or services;
MODULAR SCREENS LIMITED’S TERMS OF BUSINESS
1.1 In these conditions the following definitions apply:
“Contract” means these terms of business, any documents referred to herein and all other arrangements made between us in writing.
“Force majeure event” means any acts, events, omissions or accidents beyond the reasonable control of the party relying on the event.
“Goods” means the goods, materials or components as more particularly detailed in the order or any part of these and include instalments of them.
“Order” means the written order form submitted by you to us.
“Site” means the building or part of a building to which goods are to be supplied and/or at which work is to be executed under the contract.
“we”, “us”, “our” and “ourselves” refers to Modular Screens Limited (CRN 11268372) whose registered office is at 15 Whiting St, Bury Saint Edmunds IP33 1NX; and “you” and “your” refer to the person, firm or company for whom we are supplying goods or executing work, or to your agent.
“Work” includes all work done under the contract by us for you, whether on or off the site, unless the context otherwise allows, as more particularly detailed in the order.
“Practical Completion” means the date on which in our opinion the Works are complete save for minor defects, and minor items to complete or improve, but neither of which physically affect your or your client’s use of the goods nor work to a material extent.
2. VALIDITY OF THESE CONDITIONS
2.1 We only operate on the terms of the contract, unless otherwise agreed in writing. By placing an order or by asking us to supply goods or execute work, you agree that the terms of the contract will apply and will prevail over all other conditions, including any conditions referred to in your purchase order, unless two of our directors specifically confirm otherwise in writing.
2.2 If any term of the contract is found to be unenforceable, the other terms will still apply.
2.3 The headings in the contract are for convenience only and do not affect its construction or interpretation.
2.4 We may enforce the contract if you do not fulfil your obligations under the contract, even if we have not enforced them on the occasion of a previous breach.
3. OUR QUOTATION
3.1 Any quotation we give is a conditional offer subject to the terms of the contract and is valid for 90 days from its date of issue unless we amend or withdraw it before the expiry of that period.
3.2 The issue by us of a quotation does not oblige us to accept any order.
3.3 No oral representation made prior to the contract will be a term of the contract unless confirmed by us in writing. Our advertising material shall not form any part of the contract.
4. THE CONTRACT
4.1 Your order must be in accordance with our quotation. You agree to leave to our decision any detail not specified in our quotation.
4.2 Your order shall be deemed to be an offer to purchase the goods or procure the work from us. A contract between you and us shall only be made when we issue a written acknowledgement of your order, whether you place your order by word of mouth or in writing.
4.3 You must check our order acknowledgement and advise any discrepancy within 24 hours of its issue, after which time the details will be deemed agreed.
4.4 We reserve the right to make reasonable amendments to descriptions or specifications of goods and/or work; if we do so we will allow you 48 hours to rescind the contract, failing which the amendments will be deemed to be incorporated in the contract.
4.5 No oral representation will be a term of the contract unless confirmed by us in writing.
5. OUR OBLIGATIONS
5.1 Unless we notify you otherwise, we are responsible for procuring all necessary goods, including where appropriate delivery, unloading and installation at the site, and for supplying all labour, fixings, tools, ladders, trestles and anything else specified in our quotation.
5.2 We will leave the site in a reasonably clean condition on completion of work.
5.3 We are responsible for disposal of waste, off-cuts and wrapping materials unless otherwise agreed.
6. YOUR RESPONSIBILITIES
6.1 Unless we agree otherwise in writing, you are responsible for obtaining any required consents for carrying out the work, including (but not limited to)planning permission, landlord’s approval, building control, listed building consent, conservation area approval, fire certification and for serving any notices and paying any fees for any such consents.
6.2 You are responsible to ensure before the work commences that any recent cement or plasterwork at the site is thoroughly dried out and that the site is externally weatherproof. We are not responsible for any damage or defect to our work or goods arising from dampness, excessive temperature (hot or cold), settlement, shrinkage, leaching, corrosion or other chemical action, or to any other factor over which we have no control.
6.3 You must give us unimpeded access to the site at all times during normal working hours from Monday to Friday for delivering goods, carrying out the work and matters incidental to the performance of the contract in a logical continuous sequence without interruption.
6.4 You must provide at your expense toilet and washing facilities, effective heating, ventilation, lighting and power and where appropriate use of the lift at all times during the period of the work on the site.
6.5 You must make adequate secure on-site storage available for goods waiting fixing and for plant, equipment and loose tools, or be liable for any loss or damage unless due to any act or default on our part.
6.6 You are responsible for ensuring that the goods are suitable and fit for your purpose.
6.7 You are responsible for ensuring that the goods are properly used at all times and that anybody that uses the goods is properly instructed in how to use them correctly and safely, and that they read any instructions supplied
6.8 You are responsible for compliance with all appropriate regulations and codes.
6.9 You warrant that the site is free of asbestos except as disclosed in writing to us prior to contract.
7.1 Quoted prices do not include value added tax, which will be added to our invoice. Unless we agree specifically otherwise in writing the quoted price does not include the amount of any government or local authority fees for consents, or any provision for the cost of service such as heating, lighting, power and water; and you will reimburse us for any expenditure we reasonably incur on such items.
7.2 We may amend the quotation by the amount of any specific increase in costs between the dates of quotation and delivery.
7.3 We reserve the right to amend any quotation or invoice which contains an accidental typing, arithmetical or similar error or omission, at whatever stage it is discovered, and you agree to pay us the corrected amount.
7.4 If, at your request or with your approval, we agree to carry out work outside our normal working hours of 8 am to 5 pm on Monday to Friday, then you agree to pay the additional cost of such overtime working at our normal rates which can be found in the quotation or will be supplied on request.
7.5 If the work involves dismantling or re-fitting of partitions, lighting or glazing, we will take due care but you agree to pay the cost of obtaining replacements of any goods that in our reasonable opinion are not re-usable.
7.6 If when quoting we have not anticipated any need for plant or scaffolding (e.g. if we have quoted from drawings) but in the event we consider plant or scaffolding necessary for safe working, then the cost of providing and erecting it will be extra.
7.7 We reserve the right to amend the price if measured dimensions differ from those allowed in the contract, whether specified or scaled from drawings.
7.8 Unless specifically stated otherwise in our quotation, the price does not account for any alterations to existing building services, nor for cutting or shelving to avoid obstructions such as radiators, pipes, joists, and you will pay extra at our normal rates which can be found in the quotation or will be supplied on request for any such work which is necessary in order to carry out the work.
7.9 Quotations are given on the basis that the building is soundly constructed and capable of being altered in the manner proposed in the quotation and without any other work of any kind whatsoever being necessary. If any further work is required in addition to the Works, then this will be charged for at our normal rates which can be found in our quotation or will be supplied on request and added to the price quoted for the Works.
7.10 If the goods specified in the order are not available or not available within a time period sufficient to allow us to comply with any estimated delivery times, and you agree that alternative goods may be substituted, then the price will be adjusted by the difference in cost.
8. PAYMENT TERMS
8.1 Credit accounts are available for regular customers at our discretion and subject to satisfactory credit checks and references. Any credit account is subject to ongoing review and closure if our terms are not adhered to or if your credit position changes. If we have agreed to let you have credit, you must pay every invoice no later than the due date stated on the invoice. Unless alternative payment phasing has been fully agreed in writing, our default payment terms will apply, which are:
8.1.1 The due dates and the amount payable shall be as follows:
a. Date of acceptance of quote: 40% of the contract sum.
b. Date of Practical Completion: 57.5% of the contract sum together with the value of any variations undertaken by us.
c. Date of completion of snagging: 2.5% of the contract sum.
8.1.2 The final date for payment shall be 7 days from the due date.
8.1.3 We shall invoice you for the applicable amounts as set out above. No later than 5 days after the due date you will send us a written notice of the amount you intend to pay and the basis on which the sum was calculated (Payment Notice).
8.1.4 No later than one day before the final date for payment you may give written notice of your intention to pay less than the amount specified in the Payment Notice (hereinafter referred to as a Pay Less Notice). Such Pay Less Notice shall specify the sum you consider due to us and the basis on which it is calculated. Where a Pay Less Notice is given the payment to be made on the final date for payment shall not be less than stated as due in that Notice.
8.1.5 Where you fail to give us a Payment Notice in accordance with clause 8.1.3, you shall not be entitled to issue another Payment Notice and the amount stated upon our invoice shall be due and paid by you on the final date for payment.
8.2 At or immediately before Practical Completion, you and we shall examine the Works and prepare a list of snagging items requiring finishing, improving or re-working. This list will be signed by you and us as conclusive of patent works outstanding at this time. The snagging items will be undertaken within a period (often two weeks) set by us. The date when snagging has in our opinion been completed will be the due date for the invoice referred to at clause 8.1.1 c above. Any defects coming to notice after preparation of the snagging list shall be dealt with under clause 17.1
8.3 If we have not agreed to let you have a credit account you must pay for goods and work at the time of the order.
8.4 For the avoidance of doubt, the time for payment is of the essence of the contract.
8.5 Whether you have a credit account or not, the production period will not commence until payment of the deposit is received.
8.6 If any payment due to us under the contract is not made in accordance with the payment terms of the contract, we reserve the right to charge interest on overdue amounts at the rate currently specified under the Late Payment of Commercial Debts (Interest) Act 1988. Charging interest will not affect any other rights we may have, including that we may (without incurring any liability whatsoever) delay carrying out any further work or supplying any further goods until all due payments are received; and/or that we may without notice treat the contract as repudiated by you and recover from you our resulting losses (including loss of profit) and expenses.
8.7 If you fail to make payment within the above or other agreed terms, or commit any other breach of this contract or if any distress or execution shall be levied upon your own goods or if you offer to make any arrangement with your creditors or if any petition in bankruptcy is made against you, or if you are unable to pay your debts as they fall due or if being a limited company any resolution or petition to wind you up (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented, or if a receiver, administrative receiver or manager shall be appointed over the whole or any part of your business or assets, or if any petition for the appointment of an administrator is presented against you, or you suffer any analogous matters or proceedings under foreign law, then all sums outstanding in respect of the goods and/or work shall immediately become payable; and without prejudice to any other rights or remedies available to us, You agree to pay us interest on the outstanding amount at the rate of one percent per month or part month; and/or that we may following 7 days’ written notice of our intention to suspend, (without incurring any liability) suspend carrying out any further work or supplying any further goods until all due payments are received; and/or that We may forthwith treat the contract as repudiated by you and recover from you our resulting cost, loss (including loss of profit) and expenses.
8.8 Any period during which performance is suspended in accordance with clause 8.6 shall entitle us to an extension of time to the completion date, together with recovery of all loss and expense incurred as a consequence of the suspension.
8.9 If the date for delivery and/or installation is significantly delayed, we may charge for storage of the goods at our normal rates, and may raise the invoice for the goods which would otherwise be raised on installation.
8.10 You may not make any set off or deduct any contra-claim or any discount of any kind from the amount of our invoices.
9. PERSONAL GUARANTEES
9.1 If you are an individual/sole trader trading as a business, you personally guarantee to be responsible for any amount not paid in full to us on the due dates and agree to be subject to this contract by way of a personal guarantee.
9.2 If you are a limited liability company and/or a public limited company, the director/s of your company personally guarantee to be responsible for any amount not paid in full to us on the due dates and agree to be subject to this contract by way of a personal guarantee.
9.3 If you are a partnership or a limited liability partnership, the partners of your partnership personally guarantee to be responsible for any amount not paid in full to us on the due dates and agree to be subject to this contract by way of a personal guarantee.
10. PASSING OF RISK
10.1 The risk in goods delivered to the site shall pass to you as soon as they enter the site.
10.2 The risk in work done on site shall pass on completion of each separate section of the work. Sections of work are more particularly detailed in the order acknowledgment.
10.3 On delivery of goods or completion of work you must sign our, or the carrier’s, delivery document after inspecting the goods. If for whatever reason no endorsement of specific damage is recorded, this shall be conclusive proof of the goods being received in good condition. For goods delivered by carrier, we will not be liable for loss or damage in transit unless it is notified to the carrier and ourselves in the manner and within the time limits required by the carrier. Where we deliver goods ourselves, we require separate written notification to reach us within 3 days of arrival in the case of damage or partial loss, or within 7 days of intended arrival or receipt of invoice (whichever is the later) in the case of total loss.
10.4 You must allow us access to the goods if we need to inspect, test, repair, service or repossess them, and for this purpose you must allow us at reasonable times and after giving reasonable notice to enter any premises where we reasonably believe the goods are.
11. PASSING OF TITLE
11.1 Work done and goods supplied remain our title and property legally, beneficially and equitably until full payment for them and full payment of any other monies you owe us has been made in cash or cleared funds. You agree that this is so, even though risk has passed to you and you may have taken delivery.
11.2 Provided your payments to us are made in accordance with the terms of the contract, we authorise you to sell the goods and/or work in good faith to your customers in the normal course of trade. This right shall however cease if any of your payments to us is overdue or you enter into bankruptcy, liquidation, administration, receivership or an individual or corporate voluntary arrangement.
11.3 If you sell the goods and/or work prior to paying us the full price, you will hold the proceeds of sale on trust for us as bailee, will make your customer aware of these conditions, and will assign to us your claims against your customer. We may enter the site and detach (if necessary) and recover such goods and/or materials if any of the matters described in clause 8.5 has occurred. You hereby grant us, our agents and employees an irrevocable licence to enter any premises where the goods are stored in order to repossess them or to inspect them at any time.
12. CONTRACT PERIOD AND DELAYS
12.1 We will do our best to comply with your wishes regarding dates of starting and finishing work. However, any periods given (eg for ordering goods and/or for carrying out work) are estimates only and we will not be liable in any way if these or subsequently agreed periods or dates are exceeded, for any reason. Time is not of the essence of the contract in respect of delivery. You agree that you will not claim to have incurred any costs or expenses or loss in the event of delay in fulfillment of the contract, unless a value of liquidated ascertained damages has been agreed prior to formation of the contract.
12.2 Although the contract is formed when we issue our acknowledgement of your order, the estimated contract period as set out in the order acknowledgement will not commence until we have received payment of any deposit required.
12.3 If we cannot deliver goods or commence work on an agreed date because you request us not to, or because the site is not ready, or because of any default on your part, or if there is any interruption to the continuity of our work in a logical sequence, then you agree to recompense us as in 12.4.
12.4 Compensation is to comprise:
12.4.1 any direct costs, including abortive journeys, fitter’s labour, waiting time, additional handling, storage and transport costs, etc. (provided that in the case of fitter’s labour costs, no charge will be raised if 7 days notice of the postponement is given), and overhead costs, which it is hereby agreed between the parties will be calculated on the basis of the Emden formula on the basis of 25% Overhead and Profit for the period of the delay; and
12.4.2 two percent of the contract price per week or part thereof of the delay by way of liquidated damages to compensate us for our indirect costs (consequential losses) resulting from the delay, and
12.4.3 We will be allowed a reasonable time in which to complete the work and the contract completion date will be extended accordingly
13. VARIATIONS TO CONTRACT
13.1 You must confirm in writing any desired variation to the order, the specification of the goods or work. We reserve the right to refuse to incorporate such variation and any variation will only be incorporated into the contract when we issue a written acknowledgement of the variation.
13.2 You will pay any extra costs at our normal rates, which are set out in the quotation or will be supplied on request, for altered or additional work or goods, for example but not limited to when you ask for quantities, specification or delivery dates to be varied. For variations whilst work is in progress, these additional charges include any loss or expense due to any interruption to the regular progress of the work, and (if extra project duration is involved) pro rata additional management and preliminary costs.
14.1 Any specification, layout, design, drawing or other particulars prepared by us remain our property and must be returned to us on request. They are our copyright and must not be used or disclosed to any third party without our permission.
14.2 If we base drawings, costings or designs on information you supply, we will not be liable for any resultant loss or damage if the information is incorrect.
14.3 All measurements in our quotation and any accompanying schedules or drawings are approximate, and you should not use them for any purpose. Colours, material fabrics, glazing and other treatments and appearances will be the nearest commercially available to that selected or offered. We reserve the right to change the materials used either to take advantage of technical developments, improvements or modifications which we consider desirable or to take account of the availability of materials or to enable compliance with relevant health and safety or statutory requirements.
14.4 Our obligations and liability for design work undertaken will be limited (whether under statute or otherwise) to that of an architect or other appropriate professional designer holding themselves out as competent to undertake such design.
15.1 The breach of any warranty gives you no right to cancel the contract.
15.2 Any request by you to cancel the contract must be in writing. You agree that if you cancel you will indemnify us against any losses (including loss of overhead and profit) and any additional cost arising.
15.3 We may cancel the contract and claim from you any losses, costs or expenses at our normal rates if your payments to us are in arrears, or if you commit any serious breach of these conditions, or if you become insolvent, or if any act indicating your insolvency has taken place.
15.4 In the event of a force majeure event, we may amend, suspend or cancel the contract, wholly or in part, if circumstances beyond our control prevent or delay fulfilment of the contract.
16. INDEMNITY AND LIMITATION OF LIABILITY
16.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of us to you in respect of any claim whatsoever for breach of these terms or the contract, whether or not arising out of negligence, shall be limited to the price paid or payable by you under the contract to which the claim relates.
16.2 In no event shall we be liable to you for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or we had been made aware of the possibility of you incurring such a loss.
16.3 In addition to and without prejudice to the generality of the foregoing terms and conditions, you will indemnify us against all loss including consequential loss, costs, claims, expenses and demands or other liability whatsoever resulting directly or indirectly at any time from the negligence or any wrongful act or omission on the part of you, your employees, subcontractors or agents.
16.4 You shall duly indemnify us against all actions, claims, demands, costs charges and expenses arising from or incurred by reason of any infringement of alleged infringement of letters, patent registered design, trademark, trade name or copyright by the use or sale of any goods/work supplied to you and against all costs and damages for which we may become liable in any such action.
16.5 In the event that we are prevented from delivering the goods or carrying out the work by an event outside of our control including a force majeure event or failure by you to prepare the site you will indemnify and compensate us in respect of any direct costs, including abortive journeys, fitter’s labour, waiting time, additional handling, storage and transport costs (provided that in the case of fitter’s labour costs, no charge will be raised if 7 days notice of the postponement is given).
17. GUARANTEE AND WARRANTIES
17.1 We guarantee to you that the goods and/or work will be free from defect in normal use for a period of one year from completion of delivery/installation. You must notify us within 14 days of any defect arising. This guarantee does not cover damage through accident, misuse or neglect, and it will be void if anyone other than us or our agent has repaired or modified the goods/work. If you notify us that a defect has arisen, you must allow us to examine the goods/work. If in our reasonable opinion the goods or work are defective then we may, at our option replace or repair them.
17.2 We give no guarantee or warranty as to the fitness of any goods or work for your purposes.
17.3 Wood is a natural product subject to variation in colour and grain from sample to sample. We cannot guarantee that goods will match any sample provided and are not liable for differences.
17.4 The colour of wood may vary over time due to the action of UV light. New goods may not therefore match previously supplied goods or samples.
17.5 All warranties, conditions or terms not explicitly given in this contract relating to fitness the supply of goods and/or provision of services, whether express or implied by statute or common law or otherwise, are excluded to the fullest extent permitted by law.
18.1 We may sub-contract or assign the whole or any part or parts of the performance of the contract.
18.2 This contract shall be construed and governed by English law and the English courts shall have exclusive jurisdiction of any dispute that arises under it.
18.3 Any notice under these conditions shall be in writing and may be delivered either by hand or by fax or by first-class post to the address last notified in writing to the other party. Notice shall be deemed given if by hand or fax on delivery, and if by post at 10am on the third working day after the day of posting.
18.4 Wherever possible any disagreement under this contract shall be resolved by amicable negotiation. If this fails, you and we agree to accept the award of an adjudicator appointed by the Royal Institution of Chartered Surveyors as binding. The adjudication procedure applicable for resolving disputes under or arising from this contract shall be as detailed within the Scheme for Construction Contracts (1998). You or we may refer a dispute to Arbitration in accordance with the current issue of the JCT 2005 edition of the Construction Industry Model Arbitration Rules (CIMAR), such Arbitrator being nominated by the RICS.
18.5 The contract shall not confer on any Third Party any benefit or any right to enforce any term of this contract.
(c) November 2018 Modular Screens Limited