1.1 Words and phrases commencing with capital letters are defined as below:
Agreement The entirety of this contract as detailed and defined in the Contract Documents.
Client The person or entity who has entered into this supply contract with the Supplier
Client Specification The information provided by the Client which specifies and details the Client’s design and/or performance requirements for the Equipment it wishes to procure from the Supplier as shown or described in the documents detailed in Schedule One.
Conditions All of the conditions numbered 1 to 10 and the attached Schedules contained in this document.
Contract Documents The Client Specification, the Quotation, the Contract Particulars and the Conditions.
Contract Particulars The schedule annexed to this Agreement as Schedule Two which summarises the matters agreed and forming part of the Contract Documents.
Contract Sum The sum of money to be paid to the Supplier as consideration as set out in the Contract Particulars as may be adjusted in accordance with the Conditions.
Defects Correction Period The period of time following the delivery of the Equipment during which the Supplier shall rectify and defects in its workmanship or materials.
Equipment All of the plant and equipment to be provided by the Supplier as described and/or detailed in the Quotation.
Quotation The document issued by the Supplier in response to the Client Specification which provides details of the Equipment offered by the Supplier as annexed to this Agreement at Schedule Three.
Site The location where the Equipment is to be delivered/installed as the case may be as detailed in the Contract Particulars.
Supplier Ability Projects Limited
Variation Any alteration or modification of the design and/or the quality and/or the quantity of the Equipment and/or the area or access to the Site and/or the manner or sequence in which the Supplier intends to supply the Equipment or undertake any Site Works which are specifically instructed by the Client pursuant to Clause 5 of the Conditions or otherwise deemed necessary by the Supplier for the performance of the Contract.
2. Design and manufacture of the Equipment
2.1 The Supplier has studied the Client Specification and using the reasonable skill and care to be expected of the reasonably competent manufacturer of heating and ventilation equipment the Supplier has assessed the Client’s requirements and deduced what plant and equipment it manufactures which most appropriately meets those requirements, the said Equipment being identified in the Supplier’s Quotation.
2.2 Without prejudice to clause 2.1 above, the Supplier is not responsible nor liable for any shortcomings, defects, mistakes or errors howsoever arising and of whatsoever nature as may be contained in the Client Specification nor for any dimensions identified therein. Further, save for any defects in workmanship, the Supplier shall not be liable to the Client for any allegation or complaint that the Equipment does not meet the Client Specification in respect of its design.
2.3 The Supplier has identified the design criteria it has worked to with respect to NR Guide Calculations in the Quotation. The Client has full responsibility to assess the criteria and assumptions and ensure that they meet its requirements, and /or ask the Supplier to make a site visit to take measurements.
2.4 The Client shall comply with and give all notices required by any law or regulation or bye-law of any local authority which has any jurisdiction with regard to the installation of the Equipment on the Site which shall include but not be limited to obtaining any necessary consents from the Local Authority Building Control and/or Planning Departments and/or Landlord’s Consent as may be necessary before the installation of the Equipment is commenced. It is the Client’s responsibility to make any and all arrangements to ensure that the use and performance of the Equipment is in full compliance with all relevant legislation, regulations and standards including the obtaining of all necessary licences, permits or other consents which may be required.
2.5 Following receipt of a written order from the Client accepting the Supplier’s Quotation the Supplier shall issue an Order Acknowledgement which will confirm the Equipment to be manufactured, the delivery location and the Contract Sum, plus any other provisions of the Contract for Site works. Unless the Client expressly identifies in writing any issues of concern or matters of non-compliance within seven days from receipt of the Order Acknowledgement then the Supplier will commence its work pursuant to the agreement between the parties and the Contract will then have formed. If the Client confirms within the seven day period that the Equipment does not meet the Client Specification then the parties shall meet and/or communicate forthwith to resolve the issue by negotiation and a revised Quotation may then be issued.
2.6 If the Supplier has quoted for the fitting of free issue controls provided by the Client, then such controls must fully comply with the specific requirements for the same as detailed in the Quotation. If the controls supplied do not comply with the said specific requirements detailed in the Quotation, then additional costs may be charged and delivery delays may occur.
2.7 The Supplier shall carry out and complete the manufacture of the Equipment in a proper and workmanlike manner and in accordance with the Contract Documents, using materials and workmanship meeting the quality and standards therein specified and as implied by law, and for that purpose shall complete as far as is necessary the design of the Equipment including the selection of any specifications for any kinds and standards of the materials and goods and workmanship to be used in the construction of the Equipment so far as not described or stated in the Client Specification.
2.8 The Supplier reserves the right to amend the prices and rates quoted to meet any variations due to any causes beyond its reasonable control such as changes in legislation, Government Orders, regulations, pandemics, changes in the National Agreement covering wages and conditions in the relevant industry occurring between the date of its Quotation and the completion of the contract. The Supplier also reserves the right to review and increase its prices if delivery and/or installation is delayed through no fault of the Supplier. The Supplier shall notify the Client as soon as is reasonably practical if it intends to amend its prices pursuant to this clause.
3. Delivery of the Equipment
3.1 Where the Contract Particulars state that the Client shall collect the Equipment:
3.1.1 The Supplier shall notify the Client of the date upon which the Equipment (or instalment of Equipment if the Quotation confirms delivery is to be by instalments) is ready for collection;
3.1.2 The Client shall at its cost arrange for collection of the Equipment to be effected no later than one (1) week from the notified date and the Client shall inform the Supplier of the date of collection no later than 3 working days in advance of the same;
3.1.3 The Client shall provide such labour and/or plant as may be necessary to load the Equipment;
3.1.4 The Client shall inspect and accept the Equipment before taking collection of the same and the Client shall be fully responsible for any damage or loss howsoever caused to the Equipment by the loading and/or transport and/or unloading of the Equipment as the case may be.
3.2 Where the Contract Particulars state that the Supplier shall deliver the Equipment to the Site or to such other address in the UK as the case may be:
3.2.1 The Supplier shall contact the Client no later than three days before the date upon which he wishes to effect delivery and the Client and the Supplier shall agree the date of delivery;
3.2.2 The Supplier shall arrange for the loading and transport of the Equipment at the designated delivery address and the Supplier shall be responsible for any damage or loss howsoever caused to the Equipment by the loading and/or transport of the Equipment at the designated address as the case may be.
3.2.3 Save where the Supplier has expressly included for unloading the Equipment in the Quotation the Client shall be responsible for the prompt unloading of the equipment at the delivery address and the Client shall provide all necessary labour and plant to effect such unloading in a safe and responsible manner.
3.2.4 The Client shall inspect and accept the Equipment within 48 hours of delivery. Any short deliveries or damage in transit must be reported to the carriers forthwith and confirmed to the Supplier in writing within 48 hours of the delivery.
3.3 The Client shall be responsible for the safe and proper storage of the Equipment at the Site or other designated address as the case may be, and for any distribution, stacking, hoisting or further transport as may be necessary. The Supplier shall not be responsible for any damage or loss howsoever caused to the Equipment following collection by the Client or delivery by the Supplier caused by or arising from the storage, stacking, distribution, hoisting or further transport of the Equipment before installation at the Site.
3.4 If the Client does not collect the Equipment on the agreed date of collection or if the Supplier is unable to deliver the Equipment to the designated address for any reason within the control of the Client, then the Client shall be liable to the Supplier for any additional transport costs and/or storage costs as may be reasonably so incurred by the Supplier.
3.5 The Equipment shall not be released to the Client for collection or delivery as the case may be until: 3.5.1 As stated in the Contract Particulars the Client has paid in full the value of any pro-forma invoice issued by the Supplier requiring payment before delivery or collection; or 3.5.2 As stated in the Contract Particulars the Client has applied for and been granted suitable credit terms with the Supplier. 3.6 Unless otherwise stated all goods supplied by the Supplier are sold ex works. Risk (but not property) in the goods shall pass to the Client on delivery by the Supplier or collection by the Client or its agent as the case may be. All goods on Site or delivered elsewhere, as the case may be, whether fixed or unfixed shall be at the Client’s sole risk and in the event of damage, destruction or theft the Supplier shall be entitled to full payment therefor together with the cost of replacing any such goods and/or reinstating or restoring any work damaged, destroyed or lost.
4. Site Works
4.1 The Quotation may identify site support services and/or the site installation of various control equipment either as an option or as expressly included in the proposed Agreement. Where the Supplier is engaged to provide any site support services or to install control equipment or to attend site to inspect and advise as a Variation (collectively or individually “Site Works”) then the following conditions apply:
4.1.1 The Client shall grant to the Supplier a non-exclusive licence to enter and occupy the Site for such periods as may be reasonably necessary to enable the Supplier to undertake any Site Works;
4.1.2 The Client shall use its best endeavours to provide the Supplier with free and unhindered possession of those parts of the Site in which Site Works are to be undertaken and to maintain such free and unhindered possession of those parts of the Site for the duration of the Site Works;
4.1.3 The Client shall provide free of charge any necessary access equipment and electricity, water and safe storage as may be necessary to enable the Supplier to undertake the Site Works;
4.1.4 The Supplier shall maintain those areas of the Site in which Site Works is undertaken in a clean and tidy condition, placing any debris and/or excess materials arising from the Site Works in skips or removal vehicles to be provided at no charge by the Client;
4.1.5 Any price for Site Works included in the Quotation or as otherwise may be subsequently agreed is based on the assumption that the work can be carried out in one continuous visit to site and in the duration(s) identified for the said Site Works in the Quotation and during normal working hours without interruption and does not include any allowance for additional time and/or weekend and/or out of hours working, all of which (if required) will be chargeable as an extra.
5. Instructions and Variations
5.1 The Client may issue instructions to the Supplier. Such instructions must be made be in writing and where not in writing such are not valid instructions until they are confirmed in writing by the Client.
5.2 Any such instruction can include the ordering of any reasonable Variation to the Equipment. No Variation instruction issued by the Client or subsequently sanctioned by it shall vitiate this Contract.
5.3 The Supplier shall comply with any reasonable instructions as soon as is reasonably practicable. Insofar as the Supplier considers an instruction to be unreasonable then it shall notify the Client in writing immediately upon receipt of said instruction and if the Parties cannot reach agreement then the matter shall constitute a dispute.
5.4 The Client may issue instructions requiring a Variation. It is intended that the Parties will agree and record the valuation of any such Variation and/or instruction in advance and whereso that agreed value shall be added or omitted from the Contract Sum as the case may be. Where the value is not so agreed in advance then the Variation shall be valued in accordance with the following rules and the Contract Sum shall be adjusted accordingly:
5.4.1 For Equipment of a similar character to that forming the Works the valuation shall be consistent with the relevant prices in this Agreement taking due allowance of any change in the specification or performance requirements of the Equipment; or
5.4.2 Where the Equipment is not of a similar character to that contained within the Agreement, then the Equipment shall be valued on a fair and reasonable basis;
5.5 Following receipt of an instruction including an instruction to perform Variations for which the value has not been agreed in advance, and insofar as compliance with said instruction entitles the Supplier to additional payment then the value shall be added to the Contract Sum and paid in the next payment instalment or Final Payment as the case may be.
5.6 The Supplier reserves the right to levy an additional charge should the information supplied by the Client on which its Quotation was based be discovered to be incorrect and/or incomplete. Where the scope nature extent and/or programme of the works to be undertaken and/or supplied by the Supplier has been changed from what was originally agreed by the Supplier then the Supplier shall be entitled to review the contract and revise the terms on which it is prepared to proceed, if at all. Should the Supplier decline to proceed with such amended scope nature extent and/or programme then the Supplier shall be paid in full for all work done and/or goods supplied at the contract price or (if greater) such price as shall be fair and reasonable and the Supplier shall have no further liability to the Client thereafter.
6. Commencement and Completion
6.1 Lead times vary and are dependent on many factors. Prior to placing the order the Supplier’s sales office will advise the current lead times. Manufacturing cannot be planned until all of the manufacturing details and all free issue items (if required) have been received. Therefore, any dates or lead times provided before this remain as estimates only and are subject to change.
6.2 Subject to clause 6.1 above, the Supplier shall use all reasonable endeavours to commence the manufacture of the Equipment on the date stated in the Contract Particulars, or such other date as may be agreed by the Parties and the Supplier shall use its reasonable endeavours to diligently carry out and achieve completion of the manufacture of the Equipment on or before the date for completion stated in the Contract Particulars.
6.3 The Supplier does not accept any liability for delays howsoever arising. Time shall not be of the essence for delivery. Where the execution of the contract by the Supplier has been materially affected by any act, omission or default by the Client or anyone for whom the Client is responsible such as subcontractor(s) then the Supplier reserves the right to recover any loss or expense suffered or incurred thereby.
6.4 The Client shall provide a schedule to the Supplier within 14 days from the end of the Defects Correction Period which shall identify any defects in the Equipment and insofar as such are due to the default of the Supplier, and/or materials it supplied and/or its workmanship then such shall be forthwith remedied by the Supplier without charge but subject to reasonable access being provided. Insofar as any such defects are not due to defaults of the Supplier and/or defects in materials it supplied and/or its workmanship then the said remedial works will be undertaken by the Supplier and paid for as a Variation instructed by the Client in accordance with the Conditions.
6.5 Without prejudice to the above clause 6.4 the Supplier guarantees the work done and goods supplied against defects in materials and workmanship for a period of twenty-four months from the date of supply. This guarantee to repair or supply a suitable replacement for any goods found to be defective is conditional on the goods being properly handled, stored, commissioned, used, serviced and maintained. The Supplier accepts no liability whatsoever for any loss of profit or consequential or indirect loss howsoever arising.
7.1 Where credit terms have been agreed in writing between the Supplier and the Client and there is a sufficient credit balance to cover the cost of the Equipment then payment by the Client shall be by made in accordance with clause 7.3 below. In all other instances payment shall be made in accordance with clause 7.2 below.
7.2 Where there is no credit term agreed or an insufficient credit balance remaining then the following conditions shall apply:
7.2.1 The Supplier will issue to the Client a pro-forma invoice, which document shall be the Payment Notice, which shall describe the Equipment ready for collection/delivery and/or the Site Works to be performed and the amount to be paid in respect of the same, and the due date will be the date of the said invoice.
7.2.2 The final date for payment shall be 7 days after the due date.
7.2.3 No Equipment shall be delivered to or collected by the Client until payment in full in cleared funds has been received by the Supplier in respect of any pro-forma invoice issued pursuant to clause 7.2.1.
7.3 Where there is a sufficient credit term and/or credit balance remaining then the following conditions shall apply:
7.3.1 The Supplier shall issue an invoice (OR application for payment) following collection/delivery of the Equipment and/or performance of Site Works which document shall be the Payment Notice, which shall describe the Equipment collected or delivered and/or the Site Works performed and the amount to be paid in respect of the same, and the due date will be the date of the said invoice.
7.3.2 The Client shall pay the sum identified in the Payment Notice on or before the final date for payment which shall be 28 days after the due date. Following receipt of payment, the Supplier shall issue a VAT tax invoice for the values paid.
7.4 Each payment due shall be paid on or before the final date for payment. In the event that the Client considers that he is entitled to pay less than the sum due then the Client must issue to the Supplier a written Pay Less Notice identifying the amount to be deducted and the reason for so doing, and this Pay Less Notice must be received by the Supplier no later than five days before the final date for payment.
7.5 In the event that the Supplier is entitled to any additional payments arising under or in accordance with the Conditions then such are to be added to the Contract Sum and included in the next Payment Notice to be issued.
7.6 The Supplier shall retain title to all Equipment delivered to the site, whether or not incorporated into the Site until payment for the same is received in full by the Supplier.
7.7 Should the Client fail to make any payment due by the final date for payment then the Client shall pay to the Supplier Statutory interest and compensation and the reasonable costs incurred by the Supplier in obtaining the payments due pursuant to the Late Payment of Commercial Debts (Interest) Act until such payment is made, such sum being immediately due to the Supplier as a debt. Payment of interest due as above shall not be construed as a waiver by the Supplier of his right to proper payment in accordance with the Conditions.
7.8 Without prejudice to the above if the Client fails to make any payments due by the final date for payment, then the Supplier may issue to the Client a written notice specifying his intent to suspend performance of his obligations under the Contract and after 7 days from the date of the said notice the Supplier may at any time thereafter suspend such performance until payment is made in full. The Client shall pay the Supplier’s reasonable costs associated with any suspension and re-commencement which sums shall be added to the Contract Sum.
7.9 The Parties are entitled to agree to make part deliveries of the Equipment. Insofar as the Parties agree to deliver or collect the Equipment in part deliveries then the instalment payments are to be calculated in accordance with the sums identified for the various parts in the Quotation and if there are no such sums identified for the parts to be delivered then the Supplier shall advise the Client as to the value of each part delivery requested.
8.1 The maximum liability of the Supplier arising from any defects in the selection of materials, manufacture of the Equipment and/or performance of Site Works which cause or contribute to damage to property caused by its negligence or defective workmanship or that of its servants or agents shall be limited to the value of the Contract Sum in aggregate.
8.2 The Client shall indemnify the Supplier against any liability, loss, claim or proceedings arising out of the design and/or installation of the Equipment from any other cause. The Client warrants that all equipment, facilities and materials supplied or made available for use by the Supplier are suitable for the purpose required, are safe to use and conform with all legislation, regulations and standards particularly those relating to Health and Safety at Work.
9.1 Any notices given under this section shall be in writing and made by special delivery to the address of the parties as detailed in the Contract Particulars.
9.2 If the Supplier shall remain in default of any of the following circumstances 14 days after receipt of a notice from the Client specifying such default and requiring the Supplier to remedy the same then the Client may by further written notice to the Supplier forthwith terminate the Supplier’s employment under this Contract: 9.2.1 Without reasonable cause the Supplier wholly or substantially suspends the carrying out of the manufacture of the Equipment; or 9.2.2 If the Supplier becomes insolvent as defined by section 113 of the Housing Grants, Construction and Regeneration Act 1996.
9.3 If the Client remains in default in any of the following circumstances 14 days after receipt of a formal notice from the Supplier specifying such default and requiring the Client to remedy the same then the Supplier may by written notice to the Client forthwith terminate its employment under this Contract: 9.3.1 The Client does not pay by the final date for payment any amounts due to the Supplier; and/or 9.3.2 The Client fails to provide and maintain reasonable access for the Supplier to the Site for the performance of any Site Works; and/or 9.3.3 If the Client becomes insolvent as defined by section 113 of the Housing Grants, Construction and Regeneration Act 1996.
9.4 In the event of the termination of the employment of the Supplier pursuant to clauses 9.2 or 9.3 the following provisions shall apply:
9.4.1 The Supplier shall forthwith cease work on the manufacture and/or performance of Site Works as the case may be. If termination occurs during the performance of Site Work then the Supplier shall with all reasonable speed and in such a manner as to prevent any risk of injury remove from the Site all of its materials goods and belongings and shall leave the Site in a clean, tidy and safe condition.
9.4.2 Within 2 months from the date of termination the Supplier shall provide to the Client an account with all necessary supporting documentation and such account shall detail those sums due to the Supplier for Equipment manufactured in part or full, whether supplied or not and/or the value of any Site Works undertaken including any additional sums as may be due under and in accordance with this Agreement and any reasonable direct costs incurred by the Supplier in its demobilisation from the site (the “Termination Application”). The Termination Application shall be the Final Payment Notice and the due date shall be the date of service of the said Application
9.4.3 In the event of a termination pursuant to clause 9.3 then the Supplier is entitled to be paid damages for the loss of profit suffered as a consequence of the said termination, and such sum shall be added to the Termination Application.
9.4.4 The Termination Application shall account for all monies already paid and shall show a balance due either to the Supplier or to the Client as the case may be. The due date for monies shown to be due in the Termination Application shall be the date of the said application.
9.4.5 The final date for payment for the Final Payment Notice shall be 28 days after the due date for the same.
9.4.6 The Client may only withhold payment from any sums due to the Supplier pursuant to this clause 9.4 after provision of a written notice (a “Pay Less Notice”) in which it details its intention to pay less than the sum otherwise due and giving reasons for the same. This Pay Less Notice is only valid if provided to the Supplier not later than 7 days before the final date for payment failing which all sums due shall be paid in full.
9.4.7 In the event that payment is not made by the Client to the Supplier or by the Supplier to the Client by the final date for payment of sums due following termination pursuant to clause 9.4 then the payer shall pay simple interest to the payee to be calculated at 8% above the then current Bank of England base rate. Payment of interest due as above shall not be construed as a waiver by the payee of his right to proper payment in accordance with the Conditions.
9.4.8 For the avoidance of doubt, the provisions of this clause 9.4 shall be the full and sole extent of entitlement to payment and/or additional monies to which the payee is entitled in the event of determination or termination of the Supplier’s employment.
9.5 Any notice of termination issued in accordance with the Conditions shall not be given by either party unreasonably or vexatiously. The provisions of this clause 10 are without prejudice to any other rights or remedies which the Client and/or the Supplier may possess.
10. General Items
10.1 Any dispute or difference as to any matter or thing arising under this Agreement or in connection with the same arising between the Parties during the progress of the works or after completion, abandonment or determination shall be determined by legal proceedings under the jurisdiction of English law and in the Courts of England and Wales.
10.2 Without prejudice to clause 10.1 either Party may at any time refer any dispute or difference arising from and/or in connection with this Agreement to adjudication. The adjudicator nominating body shall be the Technology and Construction Solicitors Association and the adjudication shall be undertaken in accordance with the provisions of The Scheme for Construction Contracts (England and Wales) Regulations 1998.
10.3 This Agreement constitutes an entire agreement between the Parties with regard to the works and supercedes and replaces all prior communications, agreements, representations, draft documents, warranties and agreements of whatsoever nature, whether oral or written between the Parties.
10.4 Notwithstanding any other provision of this Agreement, nothing in this Agreement or these Conditions confers or purports to confer any rights on any person who is not a party to it.
10.5 In the event that the Supplier or the Client waives any breach of any of the Conditions such waiver shall not be construed as a waiver of any subsequent breach, waiver of the same or any other term or condition of this Agreement.
10.6 Neither the Client nor the Supplier shall be entitled to assign the Agreement without the prior consent of the other Party, and the Party wishing to make such an assignment shall provide to the other Party details of the proposed assignment for the purposes of obtaining such consent 7 days before the commencement of any assignment. Such consent shall not to be unreasonably withheld or delayed. This clause shall not however prevent or impede the Supplier from sub-contracting any or all of obligations under this Contract which it shall be entitled to do entirely at its discretion.
10.7 The Supplier maintains and asserts ownership and copyright on all drawings, prototypes, mock-ups, designs and literature or parts thereof prepared by or on its behalf and all of these documents information or data shall not be reproduced, sold or dealt with in any manner whatsoever without the prior written consent of the Supplier.