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terms

HAG Ltd – Standard Conditions of Sale In Respect Of Goods/Works/Services

 

Application of Terms

These Conditions together with all of the terms and qualifications set out in the Company’s Tender/Quotation form the entire contract between us to the exclusion of all other terms and conditions.

Any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document are similarly excluded.

All orders for Goods/Works/Services shall be deemed to be an offer by the Client to purchase pursuant to these conditions.

Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.

 

Definitions

“Agreement” – Means the entire agreement between the parties which includes these Conditions together with all of the terms and qualifications set out in the Company’s Tender/Quotation.

“Client” – Means the legal entity with whom the Company has entered into the Agreement for the Goods/Works/Services.

“Company” – Means HAG Ltd.

“Conditions” – Means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company.

“Delivery Date” – Means the date specified by the Company when the goods are to be delivered to or collected by or on behalf of the Client.

“Goods” – Means the articles and or equipment which the Client has contracted to buy from the Company.

“Services” – Means the services (including provision of labour) which the Client has contracted to buy from the Company.

“Price” – Means the price for the goods excluding UK Value Added Tax and any applicable local taxes or withholding tax.

“Works” – Means any installation work which the Client has contracted to buy from the Company.

 

Third Parties

Nothing in this contract confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

The Company reserves the right to employ such sub-consultants, sub-contractors and specialists as it deems necessary to undertake its contractual obligations.

 

Client’s Obligations

The Client shall supply to the Company, promptly and free of charge:

a) any instructions, decisions, consents and approvals; and

b) any relevant data and information in the possession of the Client or any of his agents, consultants or contractors which the Company    may require in order to fulfill its obligations under the Agreement.

The Client is responsible for complying with all legal requirements in respect of the use of any Goods/Works/Services and for deciding that the Goods/Works/Services are what is required to meet the purpose for which it is being supplied.

The Client warrants that it has the right to have the Goods/Works/Services performed and has obtained all the necessary licenses and approvals. The Client shall indemnify and hold harmless the Company from and against all consequences of any failure in this respect.

The Client shall arrange all necessary rights of access to and use of the Client’s facilities which the Company may require in order to fulfill its obligations under the Agreement.

The Client shall indemnify and hold harmless the Company against any liability for any claim for injury, death, loss or damage wholly, partly, directly or indirectly arising out of any breach of this agreement, breach of statutory duty or negligence.

The Client shall indemnify and hold harmless the Company against any liability for any claim for injury, death, loss or damage wholly, partly, directly or indirectly arising out of or in connection with any hazardous substance including asbestos which anyone working for or under the direction of the Company is exposed to as a result of any action or negligence of the Client or any of his agents, consultants or contractors

 

Confidentiality

Each Party shall maintain the confidentiality of any confidential documents and other information received from the other Party. Neither Party shall release or disclose such documents or information, nor permit release or disclosure, without the express instruction or prior permission of the other Party or as obliged to do so by law or by the rules of a recognised security exchange.

Any reports, conceptual studies designs and the like are prepared by the Company exclusively for the Client on a confidential basis and are not to be relied on or disclosed to any third party without the written consent of the Company.

 

Copyright and Ownership of Documents

All rights to any intellectual property acquired or developed in connection with this Agreement (whether or not registered or capable of registration) including but not limited to designs, trade marks, patents and copyright in all drawings, reports, calculations, computer data and other documents provided by the Company in connection with the Agreement shall remain the property of the Company.

The Company may with the consent of the Client, which consent shall not be unreasonably withheld or delayed, publish alone or in conjunction with any other person articles, photographs or other illustrations relating to the appointment and/or the Goods/Works/Services undertaken by the Company.

 

Technical Specification

Any technical specifications in relation to the Goods/Works/Services are approximate unless we say otherwise, and we reserve the right to change the technical specifications so long as any changes do not substantially affect what we have agreed to supply or the cost or quality thereof.

 

Design and Design Liability

In so far as the Goods/Works/Services have been designed by the Company (including any further design required because of any variation or change to the Goods/Works/Services) the Company shall have in respect of any defect or deficiency in such design the like liability whether under statute or otherwise as would an Architect or Engineer, or as the case may be, other appropriate professional designer.

Should the Client require, for an additional fee, the Company would be prepared to consider entering into warranties with funders, purchasers or tenants of any land, or development for which the Goods/Works/Services have been provided, provided always that such warranties are in a form acceptable to the Company and grant no greater benefits to the beneficiary than those available to the Client under this Agreement.

 

Delivery of Goods/Works/Services

Unless otherwise set out in our Quotation any price quoted by the Company is ex-works and does not include packaging and delivery charges.

The Company will decide how equipment will be packaged and any special packing requested by the Client will charged at the appropriate rate.

In the case of Goods shipped the Client must inform us promptly of any damage incurred during transit.

The risk in any equipment we sell to you shall pass to you immediately the equipment leaves our premises except when we have agreed to deliver the goods when risk shall pass to you when the equipment is delivered to the address advised to us.

The Company shall exercise reasonable skill care and diligence in the provision of the Goods/Works/Services hereunder and shall use reasonable endeavours to deliver/install/perform them in accordance with any programme or delivery dates agreed with the Client, but these shall be regarded as approximate and time shall not be of the essence of the contract.

If by reason of any agreed variation or of any act or omission on the part of the Client or their servants or agents, or any other matter, the Company is delayed in the performance of the Goods/Works/Services, the Client shall grant the Company from time to time in writing either prospectively or retrospectively such extension of the Date for Delivery and/or Completion as may be reasonable.

The Company shall have no liability for any failure or delay in the provision of the Goods/Works/Services or any part thereof resulting from any condition or circumstances affecting such provision.

The Client shall make all necessary arrangements to take delivery of the Goods/Works/Services whenever they are tendered for delivery.

The Company may deliver the Goods/Works/Services by separate consignments or stages.

The Client shall indemnify and hold harmless the Company against any failure to make the necessary arrangements to accept delivery of the Goods/Works/Services at the agreed times and in the event that the Company has agreed to or is obliged to store anything as a result of any delay to the delivery of the Goods/Works/Services the Company will be entitled to be paid all reasonable storage costs which shall be paid in full priory to any delivery in respect of those Goods/Works/Services.

 

Returns

No return or replacement will be considered without the prior written authorisation of the Company.

If the Client returns equipment without prior written authorisation, the Company will notify the Client that it shall be collected at the Client’s expense. The Company will hold any such equipment for one month from the date of notice after which it will be disposed of without any liability to the Client.

Unless we have expressly agreed to provide a credit or replacement, whether under the warranty or otherwise, the exchange of returned equipment for credit and/or replacement is entirely at our discretion, regardless of whether prior authorisation for the return has been granted.

 

Site Operations

Unless otherwise set out in our Quotation our obligations do not include installation commissioning or testing.

When installation is included and unless otherwise agreed in writing the Company has and/or shall be deemed to have based the Price on:

The Client shall be responsible for complying with any regulations which may apply to any structures not supplied by us to be used in conjunction with the Goods/Works/Services.

Where the Company’s personnel are required to visit the site or sites to in order to fulfill its obligations, such personnel shall then be regarded as the Client’s visitor. The Company shall not be deemed to have assumed the role of occupier or otherwise to have assumed control or responsibility for the site or the personnel on it.

The Client shall notify any other party on the site of the presence of the Company’s personnel; and of the extent (if any) to which the Company is authorised to direct and/or supervise their work; and that the presence (or otherwise) of the Company’s personnel does not relieve them of their responsibilities including safety and their obligations under their respective contracts and agreements.

The Company shall take reasonable precautions and use reasonable endeavours to minimise damage to property, including utilities and other sub-surface obstructions. If, notwithstanding such precautions and endeavours, any such property is damaged, the cost of rectification and all other losses shall be borne by the Client.

The Client shall be responsible for doing all that is necessary in order enable the Company to execute the Goods/Works/Services in such a manner and at such times so that they are properly and fully integrated with the work of the Client, or as the case may be the Employer or the Main Contractor and/or their respective subcontractors and suppliers and in a manner which will not restrict or prohibit the completion of the Goods/Works/Services by the Company.

In the event of the Company being delayed or being required to move, alter re-align or re-test any works as a consequence of any failure by the Client to comply with this Clause, the Client shall indemnify the Company against any costs, losses, claims or expenses reasonably incurred by the Company as a result.

The Client shall make available on the Site for use by the Company for the purposes of the Goods/Works/Services such supplies of electricity, water, gas, air and other services as may be reasonably required and at no cost to the Company.

The Goods/Works/Services will be deemed to be ready for use even if there are minor matters outstanding providing they do not materially affect the use of the Goods/Works/Services.

In regard to any tests or commissioning on Site, the Client shall, provide free of charge such, electricity, and personnel, apparatus, and instruments as may be required and as may reasonably be requested by the Company to enable them to be carried out effectively.

The Client shall provide all of the above at such dates and times as agreed with the Contractor and so as to enable the Company to meet its obligations in accordance with the Agreement.

The Client shall indemnify the Company against any failure by the Client to provide all that is necessary to enable the Company to carry out its obligations, on the dates and times agreed, and in the event of any such failure, the Goods/Works/Services shall be deemed to have passed the performance tests for all the purposes of the contract.

From time to time the Company may need to leave plant and equipment (whether hired or owned by the Company) for collection later by the hirer or appropriate transport, in such instances the Client shall be responsible for and shall indemnify the Company against any loss or damage to the plant and equipment whilst it is awaiting collection.

 

Instructions and Variations

The Client may issue any reasonable Client’s Instruction in writing to the Company in regard to the Goods/Works/Services including the ordering of any variation thereto and any oral instruction given to the Company shall have no contractual effect unless and until confirmed by the Client in writing.

The Company shall not be obliged to act upon any written instructions but shall, provide the Client with a written quotation for implementing any variation resulting from the instruction with a view to agreeing the amount payable for the variation in advance.

Variations to the Goods/Works/Services shall be valued and determined where appropriate by reference to the rates and prices specified in the Agreement for similar or analogous work. If there are no such rates or prices or if in the opinion of the Company they are not applicable then the Company shall be entitled to such sum as is fair and reasonable in all the circumstances.

In the event that compliance with a Client’s instruction will require the Company to amend the date for performance of the Goods/Works/Services, then the Company will advise the Client accordingly with a view to agreeing a revised date for performance.

In the event that the Parties cannot agree the valuation of any variation or any revised date for delivery which would be required in order to accommodate any variation, then the Company shall be entitled to perform the Goods/Works/Services in accordance with the original Agreement and the Client’s instruction shall be of no contractual effect; save that the Company shall be entitled to recover the reasonable cost of preparing the written quotation from the Client.

 

Title and Risk 

The Goods/Works/Services shall be at the Client’s risk as from delivery.

Notwithstanding any delivery having been made, property in the Goods/Works/Services shall not pass from the Company until:

  1. The Client shall have paid the price plus VAT and/or any other taxes in full and
  2. No other sums whatsoever shall be due from the Client to the Company.

Until property in the Goods/Works/Services passes to the Client, the Client shall hold the Goods/Works/Services as bailee for the Company. The Client shall store the Goods/Works/Services separate from all other Goods in its possession and in a proper manner and in conditions, which adequately protect and preserve them. All such Goods/Works/Services shall be marked in such a way that they are clearly identified as the Company’s property.

Notwithstanding that the Goods/Works/Services or any of them remain the property of the Company the Client may sell or use the Goods/Works/Services in the ordinary course of the Client’s business at full market value for the account of the Company. Any such sale or dealing shall be a sale or use of the Company’s property by the Client on the Client’s behalf and the Client shall deal as Principal when making such sales or dealings.

Until property in the Goods/Works/Services passes from the Company the entire proceeds of any sale or otherwise shall be held in trust for the Company and shall not be mixed with other money or paid into any over-drawn bank account and shall be at all material times identified as the Company’s money.

The Company shall be entitled to recover the price plus VAT and/or any other taxes notwithstanding the property in any of the Goods/Services/Works has not passed from the Company.

Until such time as property in the Goods/Works/Services passes from the Company, the Client shall upon request deliver up such of the Goods/Works/Services as have not ceased to be in existence or returned to the Company. If the Client fails to do so the Client hereby grants an irrevocable license (or the local equivalent thereof) to the Company in order to enable the Company to enter upon any premises owned, occupied or controlled by the Client where the Goods/Works/Services are situated and repossess same.

 

Payment

The Company reserves the right at its sole discretion to ask for advance payment(s) before undertaking any site surveys or design work or commencing any other activity in respect of the Goods/Works/Services. Where the Company requires advance payment(s) these shall be agreed on a case-by-case basis and in the event of cancellation such advance payments will only be refundable to the extent that the advance payment exceeds the costs incurred by the Company and the loss of contribution that would otherwise have been earned had the cancellation not occurred.

The Company reserves the right at its sole discretion to require interim payments irrespective of whether or not it has requested advance payment(s).

The Company shall raise invoices on dates or at times that have been agreed with the Client or if not so agreed at the absolute discretion of the Company (unless other alternative mechanisms are otherwise agreed in writing with the Client) and the Client shall pay the Company the amounts stated on the invoice including UK VAT and/or any other taxes where applicable.

The Due Date and Final Date for Payment for the purposes of the Act shall be determined as follows:

Any sums remaining unpaid at the expiry of such period of 30 days shall bear interest thereafter calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the relevant reference rate plus the statutory rate of compensation.

The Client may not withhold any payment after the Final Date for Payment of any sum due under this Agreement unless it gives not later than 7 days before such Final Date, a notice specifying:

  1. the sum that the Client considers to be due on the date the notice is served, and
  2. the basis on which that sum is calculate, and
  3. the grounds for paying less than the invoice amount, and
  4. if there is more than one ground each ground and the amount attributable to it

If any item or part of an item on an invoice is disputed or subject to question by the Client, the payment by the Client of the remainder of that invoice shall not be withheld.

If the performance of the Goods/Services/Works (including any part thereof which is subcontracted) is affected by any act, omission or default of the Client, its servants or agents, or due to any other reason  the amount of any loss and/or expense thereby caused to the Company (whether suffered or incurred by the Company or by other sub-contractors employed by the Company on the Goods/Services/Works from whom claims under similar provisions in the relevant sub-contracts have been or are likely to be received by the Company) shall be notified to the Client and added to the amounts due to the Company.

 

Suspension

Without prejudice to any other rights and remedies which the Company may possess, if the Client shall fail to make any payment under the Agreement and no effective notice to withhold payment has been given, the Company shall give to the Client 7 days’ notice stating the Company’s intention to suspend the performance of their obligations under this Agreement. The notice shall state the ground or grounds upon which it is intended to suspend performance.

The Company may suspend the further execution of its obligations until such payment is made in full, and suspension under this clause shall not be deemed a failure on the part of the Company. The Company shall resume performance of its obligations within 15 working days following payment by the Client and on a date to be determined by the Company at its sole discretion.

If the Company exercises its right to suspend its obligations, then the Company shall be entitled to have the time for completion of its obligations extended by the addition of a period equivalent to any period of suspension and the Client shall not be entitled to make any claim whatsoever against the Company for damages, loss and expense, demobilisation, remobilisation or any other consequential costs incurred as a result of the suspension.

In the event that the Company exercises its right to suspend its obligations then the Company shall be entitled to recover from the Client all damages, loss and expense, demobilisation, remobilisation or any other consequential costs incurred as a result of the suspension.

In the event that the Company exercises its right to suspend its obligations then the Client shall take all necessary measures in relation to the protection safety and maintenance of the Goods/Works/Services during the suspension at no cost to the Company.

 

Assignment

The Client shall not assign or otherwise transfer any obligation or benefit under this Agreement without the prior written consent of the Company which consent shall not be unreasonably withheld or delayed.

 

Liability and Warranties

If any defects are found in new equipment manufactured by the Company during the period of one year calculated from the day on which risk passes to the Client and those defects are caused by faulty materials or workmanship the Company will either repair or replace that equipment at the Company’s absolute discretion.

This warranty does not cover fair wear and tear and will only apply if the equipment has been used in accordance with the Company’s instructions, good engineering practice and has been correctly installed and maintained.

This warranty will not apply if the Client fails to inform us within a reasonable period of discovering the fault, and/or allows the equipment to continue to be used or allows anyone to attempt to repair it without our express consent.

Unless agreed otherwise any repair or replacement undertaken by the Company shall be carried out during normal working hours which are between 08:00 and 17:00 – Monday to Friday.

For equipment used overseas the Company’s obligations are limited to the supply of replacement parts delivered free on board UK port.

The Company’s liability under this warranty shall in no event exceed the purchase price of the individual piece of equipment, and repair or replacement by the Company shall constitute an entire discharge of the Company’s liability.

The Client shall be responsible for providing at its expense all access, facilities and equipment (including without limitation lifting equipment) necessary to enable the Company to access equipment manufactured by us in order to provide any remedy, repair or replacement in respect of that equipment.

Except where the Client is dealing as a “Consumer” as defined in the Unfair Contract Terms Act 1977 Section 12, the warranties set out herewith are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law relating to fitness for purpose, merchantability or condition are, to the fullest extent permitted by law, excluded.

Notwithstanding anything to the contrary contained in this Agreement any liability whether in contract or in tort, in negligence, for breach of statutory duty or otherwise, for any claim for loss or damage wholly, partly, directly or indirectly arising out of or resulting from or associated in any way with any failure of the Goods/Services/Works or any breach of contract on our part including delay, is excluded and we will not be liable for

  1. i. any loss of profit
  2. ii. any loss of production

iii. any loss of contracts or opportunity

  1. iv. any direct or indirect costs or losses
  2. any indirect or consequential costs including liquidated damages.

In any event, notwithstanding anything to the contrary contained elsewhere herein the total liability in aggregate of the Company under or in connection with this Agreement, whether in contract or in tort, in negligence or for breach of statutory duty or otherwise shall be limited to 5% of the price paid or payable to us in accordance with this Agreement.

Nothing in these terms seeks to restrict our liability for death or personal injury.

The liability of the Company for any claim or claims arising out of or in connection with pollution and contamination is excluded.

Each part of this clause is to be read and construed separately such that if any part of this clause is found to be unreasonable the remaining parts will still remain in full force and effect

 

Expiry of Liability

No action or proceedings under or in connection with this Agreement whether in contract or in tort, in negligence or for breach of statutory duty or otherwise shall be commenced against the Company after the expiry of 6 years from the date of completion of the Goods/Works/Services or such earlier date as may be prescribed by law.

 

Termination

In the event of a breach of this Agreement by the Client the Company may at its absolute discretion give 14 days’ Notice of its intention to terminate its appointment setting out the acts or omissions of the Client relied upon as evidence of such breach.

If the Client does not, to the reasonable satisfaction of the Company, take expeditious steps to repair the breach during the notice period the Company may terminate its appointment forthwith by further Notice.

Termination of the Company’s appointment under this Agreement shall not prejudice or affect the accrued rights or claims of the Company.

 

Law

This contract shall be subject to the Housing Grants Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009 (the Act) and it shall be subject to English law.

All disputes or claims arising out of or relating to this contract may be resolved by adjudication in accordance with the Scheme for Construction Contracts and/or shall be resolved and be subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.