- A contract between the parties shall only be formed when tek limited (‘tek’) accepts any order, instruction or letter of intent from the Buyer in writing. A written acceptance by tek limited shall constitute an unequivocal agreement by both parties to be bound by these Terms & Conditions of Sale.
- Any terms and conditions contained in any document provided by the Buyer shall not apply and shall be excluded unless specifically agreed in writing by tek.
- No variation shall be made to these Terms & Conditions of Sale unless expressly agreed by tek limited in writing
Terms & Conditions of sale
1. Format of the contract
2. Definitions
The following words and phrases shall have the meaning set out below unless the context requires otherwise:
[table id=55 /]
3. General Obligations of TEK limited
- TEK limited shall carry out and complete the Works in accordance with the Contract and in a proper and workmanlike manner.
- TEK limited shall supply Goods of a satisfactory quality.
- TEK limited shall, where required to do so, full comply with all applicable legislation relating to health and safety.
- Insofar as TEK limited is responsible for the design of the Works or any part thereof,TEK limited warrants that there has been exercised and will be exercised the skill and care reasonably to be expected of a duly qualified and experienced designer undertaking the design of works similar in scope and character to the Works or such part of the Works.
-
TEK limited may at its sole discretion use sub-contractors to complete the Works.
4. General Obligations of the Buyer
- The Buyer shall provide tek limited with an accurate Specification for the Goods and/or the Works. In the event that the Buyer’s Specification is inaccurate and such inaccuracy causes a delay to the completion of the Works, then tek limited shall be entitled to an extension of time under clause 12 and loss and/or expense under clause 11.
- The Buyer shall provide free of charge to tek limited all reasonable and necessary attendances and facilities to enable tek limited to unload and store the Goods and carry out and complete the Works on Site, in addition to providing those attendances and facilities set out in the Contract Documents.
- The Buyer shall provide tek limited with full access to the Site, as required by tek limited, and shall not hinder or prevent tek limited from carrying out the Works.
5. Contract Price
- The Contract Price is set out on the Quotation and/or the order acknowledgement and is exclusive of VAT which shall be due at the rate ruling on the date of the Buyer’s order.
- The Contract Price shall be adjusted to take into account any variations in any direct or indirect cost to tek limited since the date of the formation of the Contract and any variations instructed pursuant to clause 10.
- The Contract Price shall be due in full without the Buyer being entitled to exercise any set-off, lien, abatement or any other similar right or claim.
- The Buyer is not entitled to deduct any discount unless the same appears within the Contract Documents.
- The contract price as set out on the Quotation is held firm for 90 days from date of Quotation to final dispatch date ofgoods only.
6. Payment
- This clause 6 shall apply where the Contract constitutes a “construction contract” for the purposes of the Construction Act. Where the Contract is not classed as a “construction contract”, clause 6A shall apply.
- The Due Date for Payment shall be the 1st day of each calendar month following the month in which TEK limited commences the Works/begins supplying the Goods and at the end of each subsequent month thereafter until 1 month after the date of practical completion of the Works or the last date whenTEK limited supplies the Goods, whichever is the later.
- The Final Date for Payment for the Goods and/or the Works shall be no later than 21 days after the Due Date for Payment.
- Not later than 5 days after each Due Date for Payment, tek limited shall issue a notice to the Buyer specifying the sum TEK limited considers to be or have been due at the Due Date for Payment and the basis on which that sum is calculated (“Payee’s Notice”). The Buyer shall make payment of the sum specified in each Payee’s Notice on or before the relevant Final Date for Payment.
- If the Buyer wishes to pay less than the sum set out in any Payee’s Notice, the Buyer shall, not later than 5 days before the relevant Final Date for Payment, issue a written notice to tek limited specifying the sum the Buyer considers to be due at the date the notice is given and the basis on which that sum is calculated (“Pay Less Notice”).
- Retention monies shall be withheld at the rate specified in the Quotation. The Due Date for Payment of the first half of the retention shall be the date of practical completion of the Works. The Due Date for Payment of the second half of the retention shall be 12 months after the date of practical completion of the Works. The Final Date for Payment of each half of the retention shall be 15 days after the relevant Due Date for Payment. Not later than 5 days after each Due Date for Payment, TEK limited shall issue a Payee’s Notice in accordance with clause 6(iii).
- VAT, where applicable, will be added to the Contract Price.
- TEK limited will charge the Buyer interest and claim compensation on any late payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
6A. Payment – Contracts for the supply of Goods only
- This clause 6A shall apply where the Contract does not constitute a “construction contract” for the purposes of the Construction Act.
- Unless otherwise agreed between tek limited and the Buyer and specified on the invoices submitted by tek, the Buyer shall pay the Contract Price (or relevant portion thereof) within 30 days of the date of TEK’s invoice.
- VAT, where applicable, will be added to the Contract Price.
- TEK limited will charge the Buyer interest and claim compensation on any late payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
- The contract price as set out on the quotation is held firm for 90 days from date of quotation to final dispatch date of goods only.
7. Suspension of the Works
If any payment has not been received in full by tek limited by the relevant Final Date for Payment, then:
- TEK limited may serve on the Buyer a written notice of intention to suspend all further Works and performance of the Contract and shall be entitled 7 days after service of the notice to suspend the Works and the further performance of the Contract until payment in full has been received.
- The Buyer shall allow tek limited a reasonable period in which to re-commence the Works following payment and shall pay TEK’s reasonable costs and expenses of re-mobilisation in such event.
- The period of suspension shall not count as a period of delay for which TEK limited is liable.
8. Defects Liability Period
- The Buyer shall have no right or remedy against TEK limited in respect of any alleged defect, whether arising during the 12-month period referred to in clause 8(i) or otherwise, unless the Buyer has given written notice of the defect to TEK limited as soon as the alleged defect became apparent and provided tek limited with the opportunity to remedy the alleged defect in the first instance.
- TEK limited offers no warranty whatsoever that any Goods or workmanship will be suitable for any particular purpose or meet any particular Specification requirement, notwithstanding that such purpose or requirement may be known or made known to TEK.
9. Retention of Title
- The defects liability period shall be 12 months from the last date the Goods are supplied, and/or the Works are practically complete, whichever is the later. Any claim for defective Goods or workmanship, other than glass, which shall be notified forthwith in writing, shall be notified to TEK limited in writing within 14 days of the date of discovery and TEK limited may, at its own option, either repair or replace the defective Goods or perform again the workmanship complained of.
- All Goods supplied and all Goods delivered to Site for incorporation into the Works shall remain the property of TEK limited until payment in full has been received by TEK.
- In the event the Buyer fails to pay TEK limited in full for any Goods, either because the Buyer is Insolvent or for any other reason, TEK limited shall be entitled to require the Buyer to deliver up the Goods to TEK limited forthwith. If the Buyer fails to do, TEK limited shall be entitled to enter upon any premises where the Goods are stored and repossess them.
10. Variations
- The Buyer acknowledges that any variation to the Works which is instructed may have a time and cost implication.
- The value of all variations required by the Buyer shall be set out by TEK limited in a lump sum quotation which, if agreed, shall be added to the Contract Price. If not agreed, TEK limited will value the variation on a fair and reasonable basis which value will be added to the price.
11. Loss and/or Expense
If the regular progress of the Works is either prolonged and/or disrupted and/or otherwise materially affected by any act, omission or default on the part of the Buyer (including those for whom the Buyer is responsible) then TEK limited shall notify the Buyer in writing within a reasonable period of such matters and provide details of the direct loss and/or expense incurred by TEK. The direct loss and/or expense incurred by TEK limited shall be added to the Contract Price and shall be paid by the Buyer to TEK limited in the payment due to TEK limited immediately following the notification referred to herein.
12. Commencement, Completion & Extension of Time
- The Buyer shall specify in writing the date on which the Works are to commence.
- TEK limited and the Buyer shall agree date/dates by or period/periods within which the Works are to be completed. If no date(s) or period(s) for completion is agreed, TEK limited shall complete the Works within a reasonable time.
- In the absence of any instructions from the Buyer, TEK limited shall progress the Works in a sequence and manner which it thinks fit. It is the Buyer’s responsibility to ensure that it notifies TEK limited of the requirements of any programme for the Works, and any changes or revisions thereto.
- TEK limited shall confirm the date of practical completion of the Works to the Buyer in writing.
- If the preparation, performance or completion of the Works is delayed, disrupted or hindered by any event, circumstance or cause beyond TEK’s control then the period for the completion of the Works shall be extended by the same period of time as the period of delay, disruption or hindrance. In addition, if requested to re-mobilise its workforce following a period of delay to the Works, TEK limited shall be granted a further 10 days extension of time.
- TEK limited shall constantly use reasonable endeavours to prevent delay to the progress of the Works.
13. Termination
- Either party shall be entitled to terminate the Contract forthwith upon giving written notice if:a) the other party commits a material breach of any of the provisions of the Contract and fails to remedy the same within 14 days after receipt from the party not in breach of a written notice giving full particulars of the breach required to be remedied; or
b) the other party becomes Insolvent. - Where TEK limited terminates the Contract pursuant to clause 13(i), TEK limited shall be entitled to be paid the value of the Works and/or Goods carried out/supplied to date (less any sums already paid), its reasonable demobilisation costs and a sum in respect of loss of profit and overheads.
- Where the Buyer terminates the Contract pursuant to clause 13(i), TEK limited shall be entitled to be paid the value of the Works and/or Goods carried out/supplied to date (less any sums already paid).
- If the Buyer terminates the Contract for a reason not specified in clause 13(i), the Buyer shall pay TEK limited for the value of the Works and/or Goods carried out/supplied to date (less any sums already paid) and all damages, losses and expenses, including loss of profit and overheads, suffered or incurred by TEK.
14. Intellectual Property Rights
- All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the TEK limited.
- The buyer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Buyer’s use of any such Intellectual Property Rights is conditional on the Buyer obtaining a written licence from the relevant licensor on such terms will entitle the Buyer to licence such rights to the Buyer.
- All Buyer Materials including all tools dyes and patterns used in the manufacture of the Goods are the exclusive property of TEK limited even if the whole or part of the cost for such tools dyes or patterns have been charged to and paid for by the Buyer.
15. Confidentiality
- A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
This clause 13 shall survive termination of the Contract.
16. Insurance and Injury to Persons/Property
- TEK limited shall have no responsibility for loss or damage to the Works, the Site or Goods on Site. It shall be the Buyer’s responsibility to obtain a policy of insurance to cover such risks.
- TEK limited warrants that there is in force a policy of insurance to cover TEK’s liability in respect of personal injury, death and damage to property arising out of or in connection with the carrying out of the Works by TEK.
17. Liability
- TEK’s total liability to the Buyer in respect of all matters arising out of, under or in connection with the Contract, including (without limitation) any breach of tek’s obligations under the Contract, whether arising in contract, tort, statute, strict liability or otherwise, shall not exceed the Contract Price.
- TEK limited shall have no liability whatsoever to the Buyer arising out of, under or in connection with the Contract for loss of actual and/or anticipated profits and/or overheads, loss of contracts with any third party, liquidated damages payable to a third party by the Buyer, costs of attempted mitigation and indirect, special, incidental and/or consequential losses or damages.
- No claims or proceedings arising out of or in connection with the Contract and/or the Works and/or the Goods shall be brought against tek limited after the expiry of 6 years following the date of practical completion of the Works or the last date the Goods are supplied, whichever is the later.
- TEK’s liability in respect of death, injury to persons and damage to property shall be only to the extent that such death, injury or damage has been caused solely by the negligence or default of tek.
- Nothing in this clause 15 shall exclude or limit tek’s liability for death or personal injury caused by tek’s negligence or for any other matter in respect of which the law provides that liability may not be excluded or limited.
18. Delivery
- Delivery of Goods shall be ex works tek’s premises, unless otherwise agreed in writing.
- Time of delivery of the Goods is not of the essence of the Contract.
- From the time of despatch of the Goods from tek’s premises, the Goods shall be at the Buyers risk.
- Verbal notification must be made to tek’s offices for loss or damage, within 24 hours of delivery and separate written confirmation with supporting evidence must be received by tek within 3 working days of delivery.
19. Exporting Goods
- The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination, and into any country through which the Goods are transported, and for the payment of any duties on or in respect of the importation or transportation of the Goods.
- The Buyer shall be responsible for arranging for testing and inspection of the Goods at TEK’s premises before shipment. TEK limited shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which are made after shipment, or in respect of any damage during transit.
20. Notices
- Any Payee’s Notice or Pay Less Notice to be given in accordance with the Contract shall sent by first class post or email to the last known business address of the relevant party. Any other notice to be given under the Contract shall be sent by first class post or recorded delivery to the last known business address of the relevant party.
- Notices sent by first class post or recorded delivery shall be deemed to be received on the second working day after the date of posting. Notices sent by email shall be deemed to be received on the same working day that the email is sent. If the email is sent after 5:00pm or not on a working day, the notice shall be deemed to be received on the next working day.
21. Adjudication
If a dispute or difference arises under this contract which either party wishes to refer to adjudication, The Scheme for Construction Contracts (England & Wales) Regulations 1998 as amended shall apply.
22. Third Party Rights
Nothing in the Contract shall confer or purport to confer upon any third party any benefit or right against TEK limited or the Buyer, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
23. Entire Agreement
The Contract constitutes the entire agreement and understanding between the parties in relation to the Goods and/or the Works and supersedes all previous agreements between the parties relating to the Goods and/or the Works. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any written or oral statement, representation, misrepresentation, assurance or warranty (whether express or implied) other than as expressly set out in the Contract. Nothing in this clause 21 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
24. Force Majeure
- TEK limited shall have no liability or responsibility to the Buyer for any failure to fulfil its obligations under the Contract if such failure is caused by any occurrence beyond the responsibility and reasonable control of TEK, including any act of war, rebellion, revolution, military power or terrorism; radioactive contamination; fire and government restrictions (“Force Majeure Event”).
- If a Force Majeure Event continues for a period of 3 months, either party may determine the Contract by service of a written notice, in which case tek limited shall be entitled to be paid the value of the Goods provided and/or Works carried out to date (less any sums already paid).
- Each party shall bear its own costs and losses arising out of a Force Majeure Event.
25. Assignment
The Buyer shall not be entitled to assign the whole or any part of the Contract without the written consent of TEK. TEK limited may, without reducing its obligations under the Contract, assign or sub-let all or part of its rights and/or obligations under the Contract without the written consent of the Buyer.
26. Waiver
No failure or delay on the part of either party to exercise any right or remedy under the Contract shall be construed or operate as a waiver, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
25. Severance
If any provision of the Contract is held by a court or other competent tribunal to be invalid or unenforceable it shall be severable and shall be deemed omitted from the Contract to the extent necessary to prevent such invalidity or unenforceability and the remaining provisions shall continue to have full effect.
26. Law
The laws of England and Wales shall apply to the Contract.