UK TERMS OF BUSINESS
1. The Company is John Reid and Sons (Strucsteel) Ltd whose registered office is at 3 Reid Street, Christchurch, Dorset. BH23 2BT. The Client is the party to whom the Offer is made and for the avoidance of doubt the term Client includes any Party with whom we contract.
2. These Terms of Business are subject to the jurisdiction of the English Courts and the Law of England shall apply. Any party referred to in these terms but who is not a party to this contract shall have no right to enforce any of these terms. The Contracts (Rights of Third Parties) Act 1999 does not apply to this contract. Any offer made by the Company (the Offer) is made on the basis of these Terms of Business. No contract shall come into effect until the Offer has been accepted by the Client. For the avoidance of doubt, such acceptance shall be deemed to include inter alia payment of an initial payment by the Client or issue of correspondence by the Company confirming the Client’s verbal instruction to proceed. Any such contract shall be exclusively subject to these Terms of Business, save where these Terms are expressly amended in writing within the Offer, and shall specifically exclude any conditions contained within any invitation to tender or any conditions in the Client’s acceptance of the Offer. Any action taken by the Company on receipt of the Client’s acceptance of the Offer is undertaken expressly on this basis.
3. The Company undertakes to use reasonable skill and care in carrying out any design work and shall in respect of any inadequacy in such design have the like liability to the Client, whether under statute or otherwise as would an architect or, as the case may be other appropriate professional designer who acting independently under a separate contract has supplied such design for or in connection with works to be carried out and completed by a building contractor who Is not the supplier of the design. The Company’s design shall be based on the information supplied by the Client and the Company shall not be responsible for the adequacy of the Client’s design. Design carried out by the Company is based upon British Standards and is compliant with British Constructional Steelwork Association specifications. Where Foundation design is undertaken by the Company the Client retains responsibility for checking and achieving the necessary ground bearing capacity required by the proposed design.
4. Copyright in any documents, drawings, designs, specifications and the like (“documents”) produced by the Company or on behalf of the Company together with any amendment thereto shall remain vested in the Company. The Client shall have a royalty free licence to copy and use such documents for purposes related to the Contract. The Company shall not be liable for the use by the Client of any documents other than for the purpose originally intended.
5. Material quality certificates can be provided if requested at the time of acceptance. Further testing is not included in the Offer but can be arranged for an additional price and must be stipulated at the time of acceptance.
6. In some instances it is not possible to quote specifically in accordance with the Client’s specifications, the best technical alternative will be proposed by the Company in such circumstances. Responsibility for checking that any proposals, designs and interpretations presented by the Company satisfy the Client’s requirements rests solely with the Client.
a) An initial payment of 30% of the Contract Price shall be paid by the Client. The Company will raise an invoice for this sum which becomes due on the date of the invoice. The final date for payment of this sum is 7 calendar days from the due date. The Company is not obliged to commence works until this sum is paid in full.
b) Further interim payments shall become due during the works. Where works are of short duration an interim payment schedule will be set out in the Offer. For works of longer duration, interim payment periods shall be monthly and sums due shall be calculated by the Company based on the amount of work carried out during the month up and until the expiry of the defects liability period (if applicable) of this contract. Invoices for interim payments shall be raised by the Company and shall become due for payment on the date of the invoice. This invoice shall constitute a Payment Notice in accordance with Section 110A of the HGCRA (1996), provided that the invoice states the sum that the Company considers is due for payment and the basis on which that sum is calculated.
c) No later than 7 days before the final date for payment (as defined by S110 (1) (b) of the HGCRA) 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). The 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 amount to be paid on the final date for payment shall not be less than that stated as due in that notice.
d) In the absence of a Pay Less Notice in accordance with the above provisions the amount stated as due on a monthly interim invoice shall be due and paid by the Client on the final date for payment. The final date for payment of monthly interim invoices shall be 14 calendar days from the due date.
e) On completion of the works and making good of defects at the end of the defect liability period for the contract (if applicable) the Company shall raise a final invoice for payment. This final payment will become due for payment from the date of the invoice with the final date for payment 14 days thereafter. Should any further works (other than the making good of a defect in our work) be carried out by agreement by the parties during the defects liability period then payment for such work shall be invoiced and become due upon completion of the work. The final date for payment for these works shall be within 14 days of the due date.
f) Any invoice which remains outstanding after the final date for payment shall be subject to interest chargeable at the Bank of England base lending rate, plus 8%. The Company is not obliged to despatch goods to site until any sums due have been paid in full.
g) The Company’s prices exclude VAT and any other taxes unless expressly stated otherwise.
h) Nothing in the Contract shall entitle the Client to withhold payment from the Company on the grounds of third party payer insolvency, receivership, administration, et al, howsoever arising.
8. Variations and Delays
a) Should the Client wish to make any alterations to the works following acceptance of the Offer such alterations shall not vitiate the contract.
b) The Company will endeavour to accommodate all alterations requested by the Client, and shall be entitled to recover additional sums incurred as a result of such alterations. Where possible prices associated with any alterations, their impact on despatch and programme dates and the detailed payment arrangement shall all be agreed prior to the alterations being implemented.
c) In the absence of any agreement the Company shall be entitled to a fair valuation of additional works including payment of additional preliminary costs, overheads and profit or alternatively payment of the works on daywork based on the Company’s records of resources.
d) The Company shall be entitled to a fair and reasonable extension of time for any of the following Relevant Events which affect the completion date or dates for the works: Client changes or alterations to the works; instructions; deferment of possession of the site; any impediment, prevention or default whether by act or omission of the Client or his representatives; delays or works by a statutory undertaker and/or body; exceptionally adverse weather conditions; loss or damage due to force majeure (which includes but is not limited to war ,civil commotion, revolution, coup d’etat, government requisition, suspension of means of transport, loss of ship, strikes, lock outs, fire ,floods, storm, non – availability of materials, freight or transport), and changes in statute during the contract period.
e) To the extent that a Relevant Event affects the regular progress of the works the Company will be entitled to a fair and reasonable extension of time with recovery of any associated damages, including recovery of loss of opportunity for Overhead & Profit calculated in accordance with the Emden Formula, based on the contribution to overheads as demonstrated by the company accounts averaged for the previous 3 years.
f) The Company shall not be obliged to carry out alterations or additional works the nature of which differs from their normal scope of works and may refuse any additional works (acting reasonably).
9. Despatch date predictions and construction programmes will be estimated and presented with the Offer. The dates given in the quotation are provisional only. Any delay in the acceptance of the Offer, an instruction to proceed with the works, the provision of all necessary information, or payment of sums due beyond the dates quoted in the Offer is likely to impact upon despatch dates and programmes. Programmes are based upon the timely provision of information and Client approval of the Company’s designs within 7 calendar days of submission. Should the Company be delayed for any reason, whether expressly mentioned in these terms of business or not, beyond its control, it reserves the right to charge the Client additional sums for such delay. In the event that the Client is unable to take delivery on the predicted despatch date, the Company reserves the right to charge the Client additional sums for double handling. Storage charges will be made if despatch is not possible thirty days after the materials are ready for despatch. The Company, having given reasonable notice, reserves the right to dispose of materials to cover storage charges which are unpaid.
10. The Client is responsible for such access and secure storage on the site as required by the Company (including dry storage where this is required). The Client is responsible for the security of the site. Risk for the goods passes to the Client on delivery to the site. Legal title in the materials supplied by the Company shall remain with the Company and not pass to the Client until all sums due under the contract have been paid in full by the Client. If payment is not made in full, the Company or its agents may enter upon any premises where the Client has stored the goods (or the Company reasonably believes them to be stored) in order to repossess them. If payment is not made by the Client for the goods in accordance with the terms of the Contract the Company will be entitled to maintain an action for the price of the goods, and all losses incurred by the Company as a consequence of non – payment, notwithstanding that title in the goods has not passed.
11. Site conditions shall be maintained by the Client so that they are and remain at all times adequate, suitable and safe for the Company to carry out its works. Specific requirements shall be as detailed in the Offer and shall include a clear level site with ground suitable for safe operation of lifting equipment , adequate hardstanding for storage of steel, and provision of perimeter scaffolding (including adaptions as required by the Company). Where applicable, suitable access will also be provided for use of the company’s mobile access equipment. The decision as to whether the site is safe for operatives to carry out their works rests entirely with the Company. In the event that conditions are considered unsafe, the Company reserves the right to immediately suspend site activities until all necessary remedial action is taken by the Client to rectify the unsafe conditions. Where adequate, suitable and safe site conditions are not met, and completion is likely to be delayed the Company shall be entitled to recover all damages incurred as a result of any suspension, standing time, programme adjustments, delay or disruption etc. Adequate hard standing for the storage of the Company’s materials is to be provided free of charge.
12. Foundations for permanent and temporary works shall be constructed by others within the tolerances indicated on the Company’s drawings and it shall be the responsibility of the Client to ensure the correct levels and dimensions of footings, foundations and positions of holding down bolts. Datum levels are to be provided by the Client to the Company’s erection supervisor and gridlines are to be marked on foundations by the Client. The Offer excludes concreting and grouting and fixing to masonry.
13. Suitable parking on site for the Company’s vehicles and appropriate welfare, office and other general support facilities are to be provided by the Client free of charge unless otherwise expressly included within the Offer. The Client Is responsible for providing free of charge, suitable electricity and water supplies on site.
14. The Offer is based on the Company’s erectors being able to progress on site unhindered by either the Client, others working on the site, their materials or equipment. The Offer does not include for additional work to rectify damage to our materials caused by failure of other contractors or other contractor’s materials. Prices for repairing any damage to the Company’s works or materials caused by others, or costs and delays arising from any hindrance caused by others, will be chargeable to the Client based upon market rates. Retouching or cleaning down the finish on steelwork and cladding etc. is not included within the Offer and will be charged at additional cost. The Offer assumes unrestricted and uninterrupted site access and working hours. Notwithstanding the foregoing as works are completed these will be presented for inspection and handover to the client. Handover Certificates for completed areas will be issued to the Client who will then be responsible for protection of the works.
15. Cash retentions of sums due are not permitted. The Company may be prepared to provide a retention bond in terms acceptable to the Company. The provision of such a bond will be solely at the Company’s discretion. The price for providing any bond will be added to the prices in the Offer.
16. The Client shall indemnify the Company against any damage arising to existing property not forming part of this Contract whether on or adjacent to the working areas caused as a consequence of carrying out the works unless arising due to any negligence on the part of the Company.
17. The Company’s liability for loss and/or damage (including any consequential or indirect loss and/or damage) in the event of any breach of the contract shall be limited to the reasonable costs of repair renewal and/or reinstatement of any part or parts of the works undertaken by the Company, to the extent that the Client incurs such costs; and/or the Client is liable either directly or by way of financial contribution for such costs, but the Company shall not be liable for other losses incurred by the Client . If a fixed date for delivery or completion of the works has been agreed between the parties, the Company’s liability for all liquidated and unliquidated damages for late delivery or late completion of the works shall be limited to a maximum of 10% of the contract sum.
18. The Company shall issue a Completion/Handover Certificate for the works to the Client when completed. On completion the Client shall notify the Company in writing of any defects or of any failure to comply with the express terms of the Offer. On receipt of such notice the Company shall be afforded all reasonable access and opportunity to investigate and where applicable rectify the same. The Company’s liability for attending to any such notified defects or failures is limited to those which are notified in accordance with this provision within 12 months of completion of the Company’s work and rectification of these notified defects by the Company will be final and conclusive that the works have been undertaken by the Company in accordance with the terms of the contract. The Company shall not be liable for any claims from the Client or any third party for consequential loss or delay. The Company undertakes to use reasonable care to select competent suppliers. The Company shall not be liable for defects in materials supplied by others.
19. The Company reserves the right to suspend works in the event of a breach of any of these Terms of Business by the Client or his agent, having first given 7 calendar days notice in writing. The Company reserves the right to recover all sums including loss and expense and any loss of profit arising from any breach of these Terms of Business by the Client or his agent.
20. If either party to the contract shall have a Receiver or Administrator appointed or go into liquidation or have a receiving order made or make a composition with its creditors then the other party may terminate the contract forthwith on notice to the other party without prejudice to any other rights of either party. The employment of the Company under the contract may be terminated at will by the Company at any time, subject to giving the Client 7 calendar days notice in writing. The Company shall be entitled to be paid for all work completed, or in progress, and subsequently delivered to the Client which has been undertaken in accordance with the contract. Where contract rates are not applicable, the Company will be entitled to payment on a quantum meruit basis. Payment is to be made by the Client within 28 days of the Company submitting an account for payment. The Company shall not be liable for any loss to the Client (including any consequential or indirect loss) as a consequence of the termination of the contract or the Company’s Employment being terminated under the contract.
21. This contract shall for the purposes of the Housing, Grants, Construction and Regeneration Act 1996 be deemed to be a construction contract for construction operations. Either party may give notice of its intention to refer any dispute arising under, out of or in connection with this Contract to adjudication at any time in accordance with the Housing Grants, Construction and Regeneration Act 1996 and the scheme for Construction Contracts 1998 as subsequently amended by the Local Democracy, Economic Development and Construction Act 2009.
22. If any provision of these terms shall be prohibited by law or adjudged by a court to be unlawful, void or unenforceable, it shall to the extent required be severed from the terms of business and rendered ineffective if possible without modifying the remaining terms of contract and shall not in any way affect any other circumstances of or validity or enforceability of the terms of business. In the event of any such severance the parties hereto shall amend that provision in such reasonable manner as achieves the intentions of the parties hereto without illegality.
23. Any forbearance granted or failure by the Company to strictly enforce these terms of business shall not operate as a waiver of any such rights which the Company may at any time enforce.
24. Any reference to any statute, statutory instrument or secondary legislation in these Terms of Business shall include reference to any re-enactment, consolidation (whether modified or not) or amendment thereof as may be introduced from time to time.
JOHN REID & SONS (STRUCSTEEL) LTD • January 2014