TERMS AND CONDITIONS
1.1 All terms defined on the Contract Front Page shall have the same meaning in these Conditions.
1.2 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banksin London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time inaccordance with clause 2.8.
Contract: the contract between the Supplier and the Customer for the supply ofGoods and/or Services in accordance with these Conditions.
Control: the ability to direct the affairs of another person, whether by virtue of theownership of shares, contract or otherwise and the expression change of control shall be construed accordingly
Deliverables: the deliverables set out in the Quotation at Annex 5.
Force Majeure Event: has the meaning given to it in clause 16.1(a).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans ordrawings and annexed to the Contract at Annex 2.
Intellectual Property Rights: all patents, rights to inventions, utility models,copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, being theCustomer's written acceptance of the Quotation.
Services: the services, including the Deliverables, supplied by the Supplier to theCustomer as set out in the Service Specification.
Service Specification: the description or specification for the Services and annexedto the Contract at Annex 3.
Supplier Materials: has the meaning set out in clause 8.1(g).
System: the filtration system comprising the Goods with the benefit of the Servicesto be located at the Delivery Location.
1.3 Construction. In these Conditions, the following rules apply:
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 The Quotation shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue, unless otherwise stated.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.8 A Contract once accepted cannot be varied or cancelled except with the consent of both parties in writing and then only on terms which would fully indemnify the Supplier against any loss caused, directly or indirectly by the variation or cancellation.
2.9 The Suppliers employees and agents are not authorised to make any representation concerning Goods or Services.
2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance or other document or information issued by the Supplier shall be subject to correction without liability on the part of the Supplier.
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the Delivery Location set out on the Contract Front Page at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of the unloading of the Goods' at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions or materials that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction or materials related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within five Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.7 If seven Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Supplier may dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. PERFORMANCE, QUALITY AND MAINTENANCE
5.1 Goods are designed for the performance specified in the Contract. Where the performance specified in the Contract is based upon information provided by the Customer, the Supplier is entitled to assume that this is accurate and trustworthy. It shall not be incumbent upon the Supplier to check or confirm this information, unless it is agreed in writing by the Supplier that it will do so. Failure to achieve the specified performance shall be notified to the Supplier in writing who shall be afforded a reasonable time and opportunity to investigate the cause of the failure, and to recommend remedial action to be taken.
5.2 The Supplier warrants that for a period of 12 months from the date of successful commissioning of the Goods provided that commissioning takes place within the timelines specified in the Project Plan set out in Annex 4, the Goods shall:
5.3 To the extent that the benefit of any warranties made by the manufacturer of the Goods can be assigned to the Customer, the Supplier shall, if requested by the Customer and at cost of the Customer, assign them to the Customer.
5.4 Subject to clause 5.10 the Supplier shall at its option, repair or replace the defective
Goods or refund the price of the defective Goods in full if:
5.5 Noise data in respect of motors, fan units and other components which are supplied to the Supplier and form part of the Goods is presented in good faith and comprises information given to the Supplier by suppliers of such components. The Supplier does not accept liability for any error or misdescription in such information.
5.6 Performance tests if required shall be carried out on site by or in the presence of the Supplier’s engineer. Such test shall be in accordance with a test procedure to be mutually agreed before the tests take place. Materials tests shall, where practicable, be made at the Supplier’s premises. All tests shall be at the cost of the Customer.
5.7 If any Goods or Services shall fail to pass any such test, then the Supplier shall either rectify the issue or replace the affected Goods and shall repeat the test until the affected Goods and/or Services shall pass the test to the reasonable satisfaction of the Customer.
5.8 Without prejudice to the warranty set out in clause 5.2, the useful life of the filters installed by the Supplier is largely dependent on the use to which the same are put and can be materially shortened by any misuse or overloading of the System. The Supplier shall not be liable for any deterioration in any filter unless:-
5.9 Notwithstanding the warranty set out in clause 5.2, in respect of fans, motors, bags, cages or other Goods not of the Supplier’s manufacture, the Supplier will give the Customer a guarantee equivalent to the guarantee (if any) which the Supplier has received from the suppliers of such Goods, but not so as to impose on the Supplier in respect of such Goods a liability greater than that assumed by the Supplier under the terms of the Contract.
5.10 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.2 if:
5.11 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2
5.12 This clause 5 shall survive the termination of the contract.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery to the Delivery Location. The Customer shall be responsible for insuring all of its property and that of its affiliates on or adjacent to the Delivery Location against all normal risks that would normally be insured against, bearing in mind the nature of the Customer’s business and the nature of the installation.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or in cleared funds) for the Goods and any other goods or Services that the Supplier has provided to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.4 If the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to it under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1(c) to clause 14.1(n), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.6 If before property in the Goods passes to the Customer and the Goods are altered or other goods become attached to the Goods or if any part of the Goods is replaced, such other goods or replacement parts shall accede to and form part of the Goods and such attachment and placement shall not affect the Supplier’s title as absolute owner of the Goods.
6.7 The Supplier may, in accordance with the provisions of the Companies Act 2006 register any charge created by these Conditions.
7. SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any specified performance dates for the Services specified in but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services, unless otherwise agreed in writing.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
for the purposes of this clause 8.2 a Customer Default shall include but not be limited to the Customer missing project timescales or milestones, including lack of readiness by the Customer to receive goods or services on site, inability of the Supplier (through no fault of its own) to interface with other supplier’s equipment or facilities, additional storage costs caused by retention of materials due to the fact that the Customer is not in a position to receive the same and delays in receiving information from the Customer which impacts on the ability of the Supplier to perform any of its obligations in respect of the Services.
9. PROJECT PLAN
9.1 Both parties shall perform their obligations under this agreement in accordance with the Project Plan.
10. CHARGES AND PAYMENT
10.1 The price for Goods shall be the price set out in the Quotation. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods unless otherwise stated.
10.2 All prices are ex works unless otherwise agreed and do not unless expressly stated include VAT or other sales tax which the Customer shall be liable to pay in addition.
10.3 Unless otherwise agreed in the Contract the charges for Services shall be on a time and materials basis and shall be calculated in accordance with the Supplier’s daily fee rates.
10.4 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the Supplier in connection with any Services and not otherwise provided for in the Quotation including but not limited to travelling expenses, hotel costs, subsistence and other associated expenses and for the cost of services provided by third parties and required for the performance of the Services and for the cost of any materials.
10.5 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
10.6 Payment shall be made by stage payments at the intervals in the amounts set out in the Contract. The Supplier shall invoice the Customer for each stage payment at the stages so specified or agreed and time for payment shall be of the essence of the Contract.
10.7 The Customer shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence
10.8 Notwithstanding the provisions of clause 10.7, payment shall become due to the Supplier immediately upon receipt by the Customer of payment for the Goods from any third party purchaser.
10.9 Credit terms may be granted (in the absolute discretion of the Supplier) subject to satisfactory trade references and the acceptance of each account by the insurance company underwriting the Supplier’s trade debtors. Unless otherwise stated, either in the Quotation or correspondence, terms of payment are in accordance with clause 10.
10.10 Payment should be made at the nominated branch of the Supplier’s bankers in the UK in sterling or at such other place and in such other currency as the Supplier may direct.
10.11 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.12 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to:
10.13 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
11.3 All Supplier Materials are the exclusive property of the Supplier.
11.4 Technical drawings, plans and specifications forming part of the Supplier Materials are supplied under the express condition that they are not reproduced nor communicated to any other person in whole or in part. None of the information contained in any such technical drawings, plans and specifications shall be used for any purpose other than in connection with this Contract without the written consent of the Supplier. This clause shall survive the termination of the contract.
12.1 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 which have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, together with any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain.
12.2 The Receiving Party may disclose the Disclosing Party’s confidential information:
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 This clause 12 shall apply during the contract and for a period of [five] years after completion of the Services or termination of the Contract.
13. LIMITATION OF LIABILITY
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
13.2 Subject to clause 13.1:
13.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.4 This clause 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies, the Supplier may terminate the
Contract with immediate effect by giving written notice to the Customer if:
14.2 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
15. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
16.1 Force majeure:
16.2 Assignment and subcontracting:
16.4 Waiver and cumulative remedies:
16.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.8 If any dispute arises in connection with the Contract, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 28 days of notice of the dispute, the mediator will be nominated by CEDR
16.9 Governing law and jurisdiction: This Contract, and any dispute or claim (including any non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
We were contracted to provide 2 small Ceramic filters suitable for a small volume but with a design maximum temperature of 600°C. In addition the filters will be handling a syngas which cannot be mixed with oxygen so an alternative to compressed air would need to be used for the ‘Cleanpulse’ cleaning of the 25 Ceramic element in each of these CPC78 filters. In addition dosing of small amounts of a re-agent is required so the client also opted for a ‘Cleandose’ 25kg bag skid. Find out more about Project CAD below.