GENERAL TERMS & CONDITIONS OF CONTRACT FOR SUPPLY AND INSTALLATION
1. Definitions
5inco: 5inco ltd Knotgrass Way, Hunts Grove, Hardwicke, Gloucester GL2 4DY or any subsequent address
Client: the person or organisation named as such in the proposal
Completion: the completion of the works, as referred to in Condition 13
Contract: the agreement between 5inco and the client regarding the execution of the works, i.e. the proposal, order form and these conditions
Contract price: the sum stated in the proposal as the price payable to 5inco for the execution of the works.
Cost: all expenses and costs incurred, including overhead and financing charges, as well as an allowance for profit
Date for completion: the date agreed on between 5inco and the client for completion of the works.
Order form: the unconditional written acceptance by the client, with reference to the works set out in the proposal.
Plant: the equipment and goods to be provided by 5inco, either directly or through others, in accordance with the proposal
Proposal: the 5inco proposal or quotation, with an appendix of the conditions
Please note the difference between an appendix and an annexure as given below.
if the attachment is critical to the validity of the agreement, the attachment should be referred to as an appendix.
if the attachment contains information that can be changed by a party to the agreement without affecting the validity of the agreement or without the need to vary an agreement, then the attachment should be referred to as an annexure.
Services: the plant and/or services to be provided by 5inco, either directly or through others, in accordance with the proposal
Specification: the specifications, performance details or description of any services as set out in the proposal, or as subsequently set out in further agreements in writing between 5inco and the client
Work: all work to be done by 5inco under the contract.
Every proposal or any variation after the initial quotation will be subject to these conditions of contract. These conditions of contract will prevail over any conditions of purchase of the client, unless otherwise accepted in writing by 5inco. No variation shall be valid, unless committed to writing and signed by both parties.
2. Acceptance of Proposal
The terms of the proposal are open for acceptance by the client within the stipulated time or, if no time is stipulated, within 30 days from the date of the proposal. Acceptance of this proposal, either through the order form, or through other written acceptance, is deemed to signify acceptance of 5inco’s offer embodied in the proposal and acceptance of these conditions of contract. Any verbal acceptance will be of no effect, until confirmed in writing, which may be by letter or email. Any terms and/or conditions contained, or implied in any order or other written acceptance shall be of no effect, unless specifically agreed to in writing by 5inco.
3. Information
3.1 The proposal is based on information supplied by the client to 5inco. If the information is found to be inadequate, 5inco will not accept liability and the client will reimburse 5inco for any extra costs, as necessary.
3.2 It will be the responsibility of the client to obtain any licences, permits, consents or approvals necessary for 5inco to provide the services to the client. Nothing in these conditions of contract will absolve 5inco of its duties and responsibilities under the law, with regard to health and safety.
4. Price
4.1 If the price to 5inco of performing its obligations under the contract is increased, or reduced, due to legislation being enforced after the date of the proposal, the amount of such increase or reduction shall be added to, or deducted from the contract price, where appropriate.
4.2 The proposal is based on taxes payable on the date of the proposal. If changes occur to the tax payable, after the date of the proposal, the price shall be adjusted accordingly.
4.3 If 5inco is delayed, or work is disrupted by the client or others, the additional costs of such delay or disruption will be added to the price for the provision of services.
4.4 The price excludes any grant which may be available.
4.5 Following the placement of an order by the client and acknowledgement thereof by 5inco, the client has seven days from the date of acknowledgement to cancel the order without penalty.
5. Risk and Ownership
5.1 Risk in any plant delivered as part of the services shall pass to the client on the date of delivery of such plant to the site or other agreed delivery point.
5.2 Notwithstanding delivery and passing of risk in the plant, ownership of the plant shall not pass to the client until 5inco has received payment for such plant, in accordance with the payment terms set out in the proposal.
5.3 Until the title passes, the client shall hold any plant supplied under this contract for 5inco, and shall mark them in such a way that they can at all times be identified as being in the ownership of 5inco.
6. Warranty
6.1 5inco shall be responsible for making good by repair or replacement at its expense any defect in any part of the works which may appear, or occur prior to the expiry of the period of 12 months after completion and which arise from any defective materials, workmanship or design. 5inco’s obligations under this condition shall not apply to any defects caused by designs or specifications supplied by the client or by builds, structures, foundations, access ways or work, equipment or material provided by the client, nor to any damage to any part of the work, as a consequence.
6.2 Except as expressed in this condition (and subject always to Condition 15.2), neither 5inco nor its subcontractors, servants or agents shall be liable, whether in contract, in tort (including, but not limited to negligence) or by reason of breach of statutory duty or otherwise, in respect of defects in or damage to the works or any part thereof, or for any damage or loss of whatever kind attributable to such defects or damage, or any work done or service or advice rendered in connection with it.
6.3 5inco shall have no liability, in relation to a defect which is not notified to 5inco within fourteen (14) days of the client discovering, or reasonably being expected to discover the same, nor during any period in which an invoice should have been paid, but was not paid.
6.4 In the event that 5inco is called to a site to attend to a defect which is found to be outside 5inco’s liability, the costs incurred will be reimbursed to 5inco on a day-work basis determined by 5inco.
6.5 In the event of a valid warranty claim by the client, 5inco shall be entitled (at 5inco’s discretion) to either repair, or replace the defective part of the services free of charge and 5inco shall have no further liability to the client, in respect of consequential loss.
7. Indemnity and Insurance
5inco will maintain an appropriate level of insurance to meet its legal liability for injury to its own personnel or third parties, or damage caused to the property of others in the course of the work under the services to be provided.
8. Liability of 5inco
8.1 5inco shall not be liable for any indirect or consequential losses arising from the provision of services, including, without limitation, any delays, loss of use or loss of profits.
8.2 The liability of 5inco shall be limited to a second performance of services, as far as possible, to the extent necessary to remedy any material performance deficiencies, provided that the client gives written notice of the deficiencies as provided for in Clause 6.1 above.
8.3 5inco accepts no liability for any effect that drilling, grouting, trenching or other ground works may have on foundations, services or structures, and the client should arrange for their other contractors to advise on the potential impact of such works, and approve the position and construction of such works.
8.4 5inco shall be reliant on information provided by the client, its architects, engineers and other contractors, and no liability is accepted by 5inco for the adequacy or correctness of such information. In the event that basic design information is not provided by the client and 5inco derives its own figures for the purpose of fulfilling the provisions of the proposal, the client shall be responsible for approval of such figures, prior to the production of the final specification or any subsequent variation.
9. Client’s Obligations
9.1 Where the performance of services includes the installation or commissioning of equipment at a site, the following services shall be provided to 5inco, free of charge:
(a) Off-loading, dry storage and protection of equipment and materials
(b) Protection of partially complete and complete installations
(c) Provision of holes, chases and slots in structures, as required, and subsequent repair, including redecoration
(d) Free and adequate water supply adjacent to the point of use
(e) Free and adequate temporary electrical power and lighting at the point of use
(f) Washing and toilet facilities
(g) Electrical and plumbing connections, and the work of other trades, including necessary attendance during commissioning
(h) Central point on site for general rubbish to be deposited, for clearance off site by others
9.2 Where the client is responsible for the provision of services by its own personnel or by others to assist 5inco, the client shall make every reasonable effort to ensure the prompt and efficient performance of such services. In the event of the anticipated services being unavailable, or delayed for whatever reason, the client and 5inco shall agree on remedial action and the cost involved, which shall be added to the contract price.
9.3 The client shall obtain all the consent, wayleaves and approvals, in accordance with the regulations and by‐laws of any local or other authority, which are applicable to the completion of the installation.
9.4 In the event that the client is in breach of any of their obligations, the additional cost reasonably incurred by 5inco as a result shall be added to the contract price.
10. Obligations of 5inco
10.1 5inco will supply the plant and complete the works as described in the proposal. 5inco reserves the right to make changes, in relation to the specifications of any materials and equipment forming part of the plant which are required to conform to any legal requirements, or which do not materially affect the quality or performance of the plant.
10.2 5inco accepts no liability for failure to attain any potential performance figures, unless such figures are agreed upon and set out in full in the proposal, and specifically guaranteed therein.
10.3 Without prejudice to Conditions 10.1 and 10.2, 5inco undertakes to exercise all reasonable skill and care in the design, manufacture and installation of the plant, as well as in carrying out the works. All other warranties implied by statute or common law are hereby excluded.
11. Suspension of Work, Delivery or Installation
11.1 The client or its representative may at any time instruct 5inco to suspend the progress of the installation.
11.2 If, due to any delay or failure on the part of the client, or any cause for which the client or some other contractor employed by them is responsible, 5inco is prevented from either:
(a) Delivering to the site any plant which is ready for delivery at the stipulated time for delivery, or
(b) Installing any plant which has been delivered to the site, then the client’s representative shall be deemed to have given instructions to suspend the progress of the works to the extent that progress is dependent on the delivery or installation of such plant.
11.3 In the event of any delay or failure on the part of the client, or any cause for which the client or some other contractor employed by them is responsible, any cost incurred by 5inco shall be added to the contract price.
12. Variations
12.1 The client must notify 5inco, in writing only, of any additions, modifications or omissions to the schedule of works set out in the proposal. As soon as possible after having received any such instruction, 5inco shall notify the client of any addition to or deduction from the contract price.
12.2 In cases where the plant is already manufactured, or in the course of manufacture, or any work done or drawings made require alteration, 5inco shall be entitled to be paid the cost of such alterations.
13. Completion
13.1 When the works are complete, 5inco shall notify the client, and 5inco shall be deemed to have completed the works on the date so notified.
13.2 5inco shall rectify, or complete any outstanding items of work of which 5inco has been notified by the client within fourteen (14) days after the date of completion. In the event that 5inco fails to so rectify or complete within a reasonable period, the client may arrange for the outstanding work to be done and the reasonable cost thereof shall be deducted from the contract price.
13.3 If, by reason of any variation ordered, pursuant to Condition 12, or any act or omission on the part of the client, or any industrial dispute, or circumstances beyond the reasonable control of 5inco arising after the acceptance of the proposal, 5inco shall have been delayed in the completion of the works, whether such delay occurs before or after the date for completion, the date for completion shall be extended by such time as may be reasonable, provided that 5inco shall, as soon as reasonably practicable, have given to the client’s representative a notice of its claim for an extension of time.
14. Payment
14.1 Payments shall be made to 5inco, in accordance with the stage payments set out in the proposal. An invoice for the deposit will be raised when the client’s signed order form is received
14.2 Unless otherwise expressly stated in the proposal, all figures and sums are VAT exclusive, and VAT will be added to all invoices, in accordance with the law and prevailing rate at the time. Payment is due on the date of the invoice.
14.3 Unless otherwise stated in the proposal, the final date for payment of an amount due in an invoice shall be fourteen (14) days from the date of receipt of 5inco’s invoice by the client.
14.4 If the client fails to pay the amount, or any part thereof, due to 5inco by the final date for payment, the client shall pay to 5inco, in addition, simple interest thereon for the period until such payment is made. Payment of such interest shall be treated as a debt due to 5inco by the client. The rate of interest shall be eight per cent (7%) over the base rate of the Bank of England which is current at the final date for payment. Any payment of simple interest under this condition shall not, under any circumstances, be construed as a waiver by 5inco of its right to proper payment of the principal amounts due.
14.5 Without prejudice to any other rights and remedies which 5inco may possess: if the client fails to pay 5inco in full by the final date for payment of any invoice, and such failure shall continue for seven (7) days after 5inco has given the client written notice of its intention to suspend performance of its obligations under this contract and the ground or grounds on which it is intended to suspend performance, then 5inco may suspend performance of its obligations under the contract, until payment is made in full.
15. Accidents, Damage and Insurance
15.1 The client shall at all times be responsible for the care of the works on the site.
15.2 Except as mentioned hereafter, the client shall be liable for and shall indemnify 5inco against all claims, in respect of personal injury or death, and in respect of loss or damage to any property which arises out of or in consequence of the execution of the works while the client has responsibility for the care thereof; and against all demands, costs, charges and expenses arising in this connection. The client shall not be liable, under this condition, for, and 5inco shall indemnify him from and against, any claims, in relation to death or personal injury and loss of or damage to property to the extent that the same is caused by the negligence of 5inco.
15.3 5inco will maintain insurance cover for those commercial risks and at such levels of cover that it deems appropriate. In particular, it will maintain an appropriate level of insurance to meet its legal liability for injury to its own personnel, and injury to third parties.
15.4 The client shall, for the benefit of himself and 5inco, insure and keep insured the full value of the works and the cost of professional fees against loss or damage to the works, and loss and damage to any property, including without limitation, the property of the client arising out of the execution of the works. The interest of 5inco shall be noted on the policy or policies taken out by the client, pursuant to this condition, and the client shall, whenever requested by 5inco, produce a copy of such insurance policy or policies. Without prejudice to the rights of 5inco, if the client fails to insure, in accordance with this condition, 5inco shall be entitled to effect such insurance as it considers appropriate, and the cost thereof shall be added to the contract price.
16. Limitations of Liability
16.1 5inco shall not be liable to the client by way of indemnity or by reason of any breach of the contract or of statutory duty or by reason of tort (including, but not limited to negligence), for any loss of profit, loss of use, loss of production, loss of contracts or for any financial or economic loss or for any indirect or consequential damage whatsoever that may be suffered by the client.
16.2 Subject to Condition 15.2, the liability of 5inco to the client under any circumstances shall be limited to the contract price.
16.3 5inco shall have no liability to the client (a) for. or in respect of, or in consequence of any loss of or damage to the client’s property, howsoever caused, which shall occur after the expiration of the period of 12 months after completion; and (b) in relation to defects in the works, unless it has first been given the opportunity to make good defects, pursuant to Condition 6.1.
16.4 5inco’s liability, in respect of any design of the works, is limited to the exercising of reasonable skill, care and diligence to be expected of a designer experienced in carrying out design works of a similar size, scope and complexity to the design of those works.
17. Force Majeure
17.1 Force majeure: any circumstances beyond the reasonable control of either of the parties.
17.2 If either party is prevented from, or delayed in, performing any of their obligations under the contract by force majeure, they may notify the other party of the circumstances constituting the force majeure, and of the performance obligations, which are thereby delayed or prevented. The party giving the notice shall thereupon be excused from the performance or punctual performance, as the case may be, of such obligations for as long as the circumstances of prevention or delay may continue.
17.3 Notwithstanding that 5inco may have been granted, under Condition 13.3, an extension of the date for completion of the works, if, by virtue of Condition 17.2, either party shall be excused the performance of any obligation for a continuous period of sixty (60) days, then either party may at any time thereafter, and provided that such performance or punctual performance is still excused, with seven (7) days’ notice to the other, terminate the contract.
17.4 If the contract is terminated under Condition 17.2, the client shall pay to 5inco:
(a) The cost of materials or goods reasonably ordered for the works or for use in connection with the works, which have been delivered to 5inco or of which 5inco is legally liable to accept delivery
(b) The amount of any other expenditure which, in the circumstances, was reasonably incurred by 5inco in the expectation of completing the whole of the works
(c) The reasonable cost of removal of 5inco’s equipment and the return thereof to 5inco’s works in the United Kingdom or to any other destination at no greater cost.
18. Termination
18.1 In the event of the client:
(a) Failing to pay 5inco by the final date for payment the amount due, under any invoice of 5inco; or
(b) Suspending or being deemed to have given instructions to suspend the progress of the works, pursuant to Condition 11.1, and such suspension having continued for more than sixty (60) days, 5inco shall be entitled, without prejudice to any other rights or remedies under the contract, to terminate the contract by giving seven (7) days’ notice to the client’s representative.
18.2 In the event of either party (the insolvent party) making a composition or arrangement with their creditors, becoming bankrupt or (being a company) making a proposal for a voluntary arrangement for a composition of debts or scheme of arrangement to be approved, in accordance with the Companies Act 1985, or the Insolvency Act 1986 (as the case may be), or any amendment or re‐enactment thereof, or having a provisional liquidator appointed, or having a winding-up order made, or passing a resolution for voluntary winding up (except for the purposes of amalgamation or reconstruction), under the Insolvency Act 1986 or any amendment or re‐enactment thereof, or having an administrator or an administrative receiver appointed , then the other party shall be entitled to terminate the contract by giving seven (7) days’ notice to the insolvent party.
18.3 In the event of termination under Condition 18.1, or in the event of 5inco giving notice under Condition 18.2, the contract price (including, for the avoidance of doubt, any additions or deductions which may properly be made thereto under the contract) shall be payable forthwith to 5inco by the client, save that 5inco will give credit to the client for sums already paid by the client under the contract.
19. Assignment and Subcontracting
5inco may employ any contractor it considers suitably qualified to perform any of 5inco’s obligations under this contract, but such action shall in no way reduce the responsibility of 5inco to complete the works, in accordance with this contract.
20. Entire Agreement and Precedence of Documents
20.1 These conditions, as well as the proposal and letter of acceptance, constitute the entire agreement between 5inco and the client, in relation to the subject matter of this contract. Any other representations, whether written or oral, which would otherwise be implied (by law or otherwise), do not form part of this contract. Any previous agreement, whether written or oral, between the parties, in relation to the subject matter of this contract, is superseded.
20.2 In the event of any conflict or inconsistency between the documents forming the contract, the order of precedence shall be (a) the proposal; (b) these conditions; and (c) the letter of acceptance.
20.3 In the event that the client proffers his own conditions, such conditions shall be disregarded, and only these conditions shall apply.
21. Applicable Law
In all respects, the contract shall be governed by and interpreted in accordance with the laws of England, and English law shall govern the procedure of any arbitration.