Terms and Conditions of Sale
The customer's attention is drawn in particular to the provisions of 9
Supply Only Terms & Conditions of Sale
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.7.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier and who is in contract with the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) to be supplied by the Supplier to the Customer as set out in the Sales Order Acknowledgement.
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 Goods, as set out either in the Customer's written acceptance of the Supplier's quotation or verbal acceptance of the Supplier's quotation given to the Supplier.
Sales Order Acknowledgement: written acceptance by the Supplier of the Customer's Order on the Supplier's Sales Order Acknowledgement form
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: Forza Doors Limited (registered in England and Wales with company number 0711289).
Supplier Materials: all materials, equipment, documents and other property of the Supplier.
1.2 Construction. In these Conditions, the following rules apply:
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Sales Order Acknowledgement and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues the Sales Order Acknowledgement to the Customer, at which point the Contract shall come into existence.
2.4 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.
2.5 Any samples, drawings, descriptive matter, survey, advice, representation, forecast, schedule or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's website or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 calendar days from its date of issue.
3.1 The Goods are described in the Supplier's brochures or website as modified by the Sales Order Acknowledgement.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer including but not limited to designs, drawings, specifications or samples provided by the Customer to the Supplier, 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 professional costs and expenses) suffered or incurred by the Supplier in connection with any claim including but not limited to claims 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 Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend, alter, modify or improve the design or the Specification if required by any applicable statutory or regulatory requirements or to meet current production requirements.
4. Delivery and unloading
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), any relevant instructions (if any); and
4.2 The Supplier shall deliver the Goods to the location set out in the Sales Order Acknowledgement or such other location as the parties may agree (Delivery Location) 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 Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery 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 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 or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three 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 the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including but not limited to insurance).
4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise 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. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 The Customer is solely responsible for unloading the Goods at the Delivery Location. All Goods will be unloaded immediately on arrival at the Delivery Location, otherwise waiting time will be charged. Any damage caused on unloading is the sole responsibility of the Customer.
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) subject to clause 3.3, conform with the Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period and within 7 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1. Such notice must give full details of the issues the Customer has with the goods;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods within a reasonable time.
5.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer or any users of the Goods failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of carelessness, improper treatment, fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(g) The Customer has not paid the Supplier in accordance with clauses 7.6 and 7.7.
5.4 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 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.7 The Supplier shall not be liable in respect of any defect which may occur in any previously existing system to which the Goods may be connected unless and to the extent that such defect is directly caused by a defect in the Goods for which the Supplier would be liable under this clause.
5.8 The Supplier will charge for any visits to site caused by the Customer or any user's failure to properly maintain the Goods or use the Goods in accordance with normal practice.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery as defined in clause 4.3.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied 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:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and 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. Without further notice to the Customer, the Supplier may then resell all or any of the Goods using such terms and conditions as the Supplier may in its discretion determine.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Sales Order Acknowledgement.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, other manufacturing or delivery costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
Such costs include, but are not limited to storage costs.
7.3 The price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced electronically to the Customer, but exclusive of unloading.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). 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 Goods.
7.5 The Supplier may invoice the Customer via email for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds in the currency stated on the invoice within 30 calendar days of the month end in which delivery takes place. If no currency is specified, the default currency is pounds sterling. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank Plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8 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 at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.9 All fire rated products are delivered with a unique numbered tamper evident label attached to each door together with a fire certificate. When payment has been made in full in accordance with this clause 7.6 and any applicable interest under clause 7.7, the Supplier will then include any fire rated products as part of the Supplier's fire certification scheme. In the event that payment is not made in full in accordance with clauses 7.6 and 7.7 then the fire rated products will be excluded from the company's fire certificate scheme.
7.10 The customer agrees to indemnify the supplier in respect of any fees, costs, disbursements or expenses incurred (including court fees and the cost of legal representation) arising from overdue payment by the customer or any other breach by the customer of these terms and conditions.
8. Customer's insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due. In respect of Goods ordered, but not yet delivered, whether in manufacture or not, the Customer shall pay the Supplier for all amounts (including but not limited to labour, plant, materials, overheads, charges, expenses and loss of profit) reasonably incurred by the Supplier in fulfilling the Order. Such amounts shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; and
(m) the Customer becomes insolvent within the meaning of section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment thereof.
8.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.4 If relevant event 8.2(a) occurs, then no further deliveries will be made until payment is made in full, including interest in accordance with clause 7.7.
9. Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £2,500 or the amount stated in the Sales Order Acknowledgement, whichever is the greater.
9.3 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.
9.4 This clause 9 shall survive termination of the Contract.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11. Intellectual property rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Goods shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Goods, 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.
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 12 shall survive termination of the Contract.
13.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2 Cancellation. Under no circumstances may the Customer amend or cancel an Order by written or verbal notice to the Supplier. If the Customer purports to amend or cancel an Order and the Supplier agrees to accept the amendment or cancellation, the Customer shall pay the Supplier for all amounts (including but not limited to labour, plant, materials, overheads, charges, expenses and loss of profit) reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the amendment or cancellation. The Customer shall pay such amendment or cancellation fees within 7 days of the date of invoice.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail to the email address stated on the Sales Order Acknowledgment.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.3(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.5 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.6 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.7 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
13.8 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), 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.
Annex A. 14. ADDITIONAL CONDITIONS - SUPPLY AND INSTALL
Where the works involve supply and installation, the following Additional Conditions apply in addition to the “Forza Doors Terms and Conditions” and in the event of any discrepancy, these Additional Conditions take precedence over the conditions above
THE CUSTOMER’S ATTENTION IS SPECIFICALLY DRAWN TO CLAUSES 21 AND 22 – LIMITATION OF LIABILITY
Annex A. 14. Additional Definitions
Unless the context otherwise requires or the Agreement or these Conditions specifically provide otherwise, the following words and phrases, where they appear in capitalised form in the Agreement or these Conditions, shall have the meanings stated below:
CDM Regulations: the Construction (Design and Management) Regulations 2015, as they apply to the works.
Additional Conditions: these clauses 14 to 27 of these Additional Conditions.
Blinds and Control Cables: means venetian blinds, control cables and knobs supplied and installed by the Supplier into single or double glazed timber screens.
Contract Documents: the Supplier’s quotation and any documents referred to therein, these Conditions of Contract and in addition the Supplier’s Order Acknowledgement.
Contract Works: the works briefly described in the Supplier’s quotation and Supplier’s Order Acknowledgement, as varied (where applicable) under clause 19.
Decorative Film: means a film to be applied to the Installed Goods that provides a decorative pattern to the surface of the glass that is greater than the requirements of the use of permanent manifestation to make glazing apparent as documented in Approved Document K 5.2 section 7.4 (2013).
End User: The ultimate consumer of the Installed Goods on the Site.
Installed Goods: materials and goods supplied and installed by the Supplier which will be permanently part of the Contract Works.
Order Acknowledgement: Written acceptance by the Contractor of the Client’s written order on the Contractor’s Order Acknowledgement form.
Others: the Client and those working on the project for the Client and End User including Contractors, consultants, advisors and suppliers.
Site: the place where the Installed Goods are to be finally located.
Annex B. 15. Supplier’s Obligations
15.1 The Supplier shall carry out and complete the Contract Works in accordance with GGF tolerances for laminate glass, Forza Technical Note 1 and the Contract Documents, with due diligence and in a good and workmanlike manner. Where there is any discrepancy between these documents, the GGF tolerances and Forza’s Technical Note 1 takes precedence.
15.2 The Supplier shall provide all labour, materials and plant required to carry out and complete the Contract Works during normal working hours (between 8am and 5pm on Business Days) except for the attendances set out in the Contract Documents which the Customer shall provide free of charge to the Supplier. Work carried out outside of these hours will be treated as a variation under clause 19 and will be subject to additional costs.
15.3 The Supplier may subcontract any of the Contract Works.
15.4 The Supplier shall comply with, and give all notices required by, any statute, any statutory instrument, rule or order or any regulation or bye-law applicable to the Contract Works (including the CDM Regulations). Any payable fees and charges in respect of the Contract Works shall be paid by the Customer.
15.5 Unless stated within the Contract, the Supplier has no maintenance obligations beyond the period set out in Clause 21.1. At the end of the warranty period the Supplier may offer specific terms for future maintenance of the Installed Goods.
15.6 Where any design is completed by the Supplier, then the Supplier shall in respect of any inadequacy in the design have the like liability to the Customer, whether under statute or otherwise, as would an appropriate professional designer holding himself out as competent to take on work for such design who acting independently under a separate contract with the Customer, had supplied such design for the works to be carried out and completed by a Supplier who is not the supplier of the design.
15.7 Prior to installation, the Supplier will measure the glass sheet sizes to be installed in the structural openings of the framework that the Customer has installed. If there are any errors/changes in the framework that will prevent the correct installation of glass and create an incorrect /unsafe finished product or any non-standard or unforeseen applications, the Supplier will advise the Customer within the Supplier’s "Installation Assessment Procedure”. The Supplier will advise the Customer of any changes to the Price in the Quotation as a result of any errors / changes / non-standard or unforeseen applications.
15.8 Should the Supplier be required, for any reason, to measure glass sizes prior to installation of timber framework or fixing locations an instruction in writing must be issued by the Customer before the Supplier is obliged to carry out the survey. This will be treated as a variation under clause 19. The Supplier is unable to accept responsibility for the accuracy of glass sizes, fit of glass or any resultant additional cost when such an instruction is issued by the Customer.
15.9 In accordance with GGF guidelines and accepted industry wide tolerances fully installed, clean toughened and laminate glass should be assessed by viewing at a distance of not less than 3 metres in natural daylight and not in direct sunlight.
Annex C. 16. Customer’s Obligations
16.1 The Customer shall comply with the CDM Regulations, shall provide sufficient access to the Site for the Supplier to perform its obligations under this Contract and shall in no way hinder or prevent the Supplier, whether by act or omission, from performing such obligations.
16.2 The Customer must provide the Supplier with all the information stipulated in the tender or quotation and any other information requested by the Supplier. If this information is not provided the Supplier may at its option, cancel the Contract or claim a suitable extension of the Contract period and charge the Customer any additional costs resulting from such extension.
16.3 The Supplier does not accept responsibility for compliance with statutory regulations (including but not limited to planning permission, building regulations etc) or local by-laws or for the fulfilment of any special requirements binding upon the Customer. When the Installed Goods are supplied for use in conjunction with equipment and/or structures which are not supplied by the Supplier, the Customer shall be solely responsible for ensuring that such equipment and/or structures are in all respects suitable and adequate for the purpose, and are properly installed. The Supplier shall not be liable for any adaption of the completed installation to suit the Customer’s own circumstances.
16.4 Where the Customer requires special safety precautions when Suppliers are working on site ie provision of temporary traffic control system, flagmen, banksmen, warning lamps etc., such requirements shall be provided free of charge by the Customer.
16.5 If installation is prevented, delayed, impeded or otherwise rendered more expensive by any act or omission of the Customer (including but not limited to Others employed by the Customer) or any other third party including failure to advise the Supplier of special local conditions, the Customer shall pay such extra charges as the Supplier shall reasonably require. Any alteration by the Customer in design, quantities or specifications may also involve adjustment to the price. Such work shall be carried out only against written instructions given to the Supplier by the Customer in accordance with clause 18.1.
16.6 Where the Customer provides any tackle or apparatus for use by the Supplier, the Customer is fully responsible for its use and the Customer indemnifies the Supplier against all liabilities for damages, costs and expenses arising out of the death of or personal injury to any persons or damage to any property howsoever caused provided that this indemnity shall not apply to liabilities arising from the negligence of the Supplier or its servants or agents.
16.7 Should the Customer fail to provide installation conditions as set out elsewhere in these conditions, including but not limited to clause 28, the Supplier shall advise the Customer’s representative of the issues by email. After the issue of such email, the Supplier shall, without incurring any liability to the Supplier, be entitled to immediately suspend all or any part of the installation. If the relevant issues are not resolved by the Customer within 7 calendar days, the Supplier shall have the right to cancel its obligation to install the Installed Goods and to be paid the full supply and installation of the glass.
16.8 The Customer’s own labour must fit all head, base and wall abutment timber products, regardless of whether the timber has been supplied by the Supplier. The timber products must be level and plumb, and be set out according to the project drawings and in accordance with the manufacturer’s method of build, with building and safety regulations and is fitted to surfaces and substructure suitable for the loads of the products supplied and installed by the Supplier.
Annex D. 17. Commencement and Completion
17.1 The Customer must give a written notice to the Supplier confirming the actual start date. Unless otherwise stated in the quotation, such notice must be given a minimum of two weeks in advance of the actual start date.
17.2 The Supplier shall deliver the Installed Goods to Site as stated in the Order Acknowledgement and shall complete the Contract Works in a reasonable period, unless a period for completion is stated in the Supplier’s quotation.
17.3 Times or dates for delivery or performance (including installation) are estimates only and, unless otherwise expressly stated in the Supplier’s Order Acknowledgement, time is not of the essence. The Supplier will use reasonable endeavours to deliver or perform by the time or date quoted. With the exception of liability under clause 22, the Supplier will not be liable under any circumstances for any loss claimed to have arisen from any delay in delivery or performance. No delay shall entitle the Customer to cancel or repudiate the Contract
17.4 If the agreed delivery schedule is altered, this shall be treated as a variation and additional costs per clause 19.5 will be paid.
17.5 When installation of part or all of the Contract Works has been completed, the Installed Goods will be commissioned by the Supplier and handover documentation will be prepared. The date when the handover documentation is given to the Customer is the date when practical completion is deemed to have been achieved by the Supplier for part or all of the Contract Works (“Supplier’s Practical Completion”). Should the Customer wish to witness the commissioning of the Installed Goods, the Customer needs to inform the Supplier in writing within two weeks of the Contract Works starting on site. Installation is deemed to be complete if either the Installed Goods have been used by the Customer or have been commissioned, notwithstanding minor omissions or defects which do not materially affect such use.
17.6 Blinds and control cables supplied and installed by the Supplier will be fitted in accordance with manufacturer’s instructions. All moving mechanisms will be tested and presented in full working order at time of our completed installation. This Supplier is not responsible for the maintenance of blinds and control cables post Supplier’s Practical Completion.
17.7 The addition of a Decorative Film may reduce the safety aspects of the Installed Goods, therefore the Supplier advises that a Clear Safety Film should also be applied to the Installed Goods in addition to the decorative film.
17.8 Unless stated elsewhere in the Contract, the Supplier has included for one visit to site.
Annex E. 18. Customer’s Instructions
18.1 The Customer may issue written instructions. The Supplier shall only be obliged to follow Customer instructions where the price and time implications have been agreed in accordance with clause 19.1 and which are issued before the date of Supplier’s Practical Completion for the whole of the Contract Works.
Annex F. 19. Variations and Claims
19.1 Where the Customer wishes to instruct a variation to the Contract Works (“Variation”), then the Customer shall issue a request for a quotation, the Supplier shall price the additional works, and only when the price has been agreed, the Customer shall issue a written instruction to the Supplier to proceed with the works and confirming the agreed price. The Supplier reserves the right to refuse to complete any additional works instructed by the Customer until the price for the varied works has been agreed.
19.2 In the event that the Supplier unilaterally waives its right to refuse to complete any additional work until the price for the varied works is agreed, then such Variation or instruction shall be valued on a fair and reasonable basis, with reference, where available and relevant, to rates and prices in the Contract Documents
19.3 The Supplier shall in addition be paid a fair and reasonable amount for any direct loss and/or expense incurred by the Supplier due to the regular progress of the Contract Works being affected by compliance with any Variation or for any other reasons beyond the control of the Supplier including but not limited to Force Majeure.
19.4 If the Customer fails to provide any items required by these Conditions, the Supplier may in its discretion and at its sole option provide the items required and charge the cost incurred plus 25% to the Customer.
19.5 If despatch of the Installed Goods is delayed due to any failure or default of the Customer the Supplier shall be entitled to arrange for storage of the Installed Goods on the Customer’s behalf and all charges for storage, transport, loading and unloading, insurance and demurrage will be payable by the Customer. The due date for payment for such costs will be as stipulated in Clause 23 of these Conditions.
Annex G. 20. Extension of time
20.1 If the Supplier is delayed in completing the Contract Works by the ordering of any Variation of the Contract Works or for other reasons beyond the control of the Supplier, the Supplier shall inform the Customer in writing. The Customer shall make such extension of time (if any) as is reasonable.
20.2 The Supplier shall use reasonable endeavours to prevent or minimise any delay in the progress of the whole or any part of the Contract Works.
Annex H. 21. Limitation of Liability
The Customer’s attention is specifically drawn to this clause 21
21.1 The Supplier shall only be liable to make good any defects in the Contract Works which stem from his faulty selection of unsuitable or inadequate materials or from faulty materials or bad workmanship. If this is proved to be the case, then the Supplier undertakes, at its discretion, either to replace or repair the Installed Goods or any part or parts thereof. Provided that the Supplier receives written Notice of any defect within twelve months from the date of Supplier’s Practical Completion per clause 17.5 or within fifteen months of the date when the Customer was first advised that the Installed Goods was ready for despatch, whichever is the earlier;
21.2 The Supplier shall not be liable in respect of any defect which may occur in any previously existing system to which the Contract Works may be connected unless and to the extent that such defect is directly caused by a defect in the Contract Works for which the Supplier would be liable under this clause.
21.3 Save as is provided by this clause, the Supplier shall not be liable for any direct loss or damage as consequence of any defect in the Contract Works save to the extent that such defect is caused by the negligence of the Supplier, his servants or agents. Subject to clause 21.9, the Supplier’s liability for any direct claim arising under the Contract shall be limited to that proportion of recoverable direct loss as would be just and equitable to require the Supplier to pay in regard to the extent of the Supplier’s responsibility for the same on the assumption that:
(3.a) All Others directly or indirectly involved with the works under the Contract have provided contractual undertakings on terms no less onerous than those set out herein.
(3.b) All the parties referred to in this clause have paid to the Customer such sum as it would be just and equitable for them to pay having regard to the extent of their liability for the direct loss incurred by the Customer.
21.4 The Supplier is not liable for damage to the Customer’s property during installation by the Supplier.
21.5 For the avoidance of doubt, any condition or warranty implied by law shall cease to apply after the expiry of the period stated in Clause 21.1 above.
21.6 The Supplier will require a reasonable period of time to carry out any repairs or replacements.
21.7 The Supplier will charge for any additional visits to Site caused either by the Customer / End Users failure to properly maintain the Installed Goods or where the Customer fails to provide the services necessary on site for the Supplier to fulfil its obligations hereunder. The rate for such abortive visits is £500 plus vat unless a different figure is stated in the Supplier’s quotation or Supplier’s Order Acknowledgement.
21.8 The Customer shall indemnify and hold the Supplier and its offices, directors, employees and agents harmless against any claims, demands, liability, direct loss and/or damages including legal fees, arising from:
(3.a) any misrepresentation and/or breach by the Customer of the warranties contained in Clause 21; and/or
(3.b) without prejudice to the foregoing any breach by the Customer of any of these Conditions.
21.9 Save as provided by clause 21.10 below, the Supplier’s total liability in respect of all losses arising under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed twice the initial Contract Price or £50,000, whichever is the higher.
Exclusion of liability for spontaneous breakage of glass caused by nickel sulfide (NiS) inclusions
21.10 The presence of nickel sulfide (NiS) inclusions may cause toughened glass to spontaneously break after installation. This is a rare but naturally occurring phenomenon in the float glass manufacturing process. The risk of toughened glass spontaneously breaking due to the presence of critical NiS can be reduced (but not eliminated) by subjecting the glass to heat soaking treatment. The Supplier shall not be liable for any costs howsoever incurred by the Customer or by any End User in respect of any issue arising from spontaneous breakage of toughened glass (whether heat treated or not) as a result of NiS.
Annex I. 22. Limitation of liability for liquidated damages
The Customer’s attention is specifically drawn to this clause 22
22. In addition to the Supplier’s liability under clause 21, in the event that completion of the Contract Works is delayed solely by the Supplier, the Supplier’s liability for liquidated damages is limited to 0.5% of the nett price of the Contract Price each week or part thereof until completion of the work up to a maximum of 2.5% of the nett price of the Contract Price which shall be the sole remedy for such delays.
Annex J. 23. Payment
23.1 The due dates for interim payments to the Supplier shall be the last calendar day of each calendar month. The Supplier may issue an application for payment or invoice before or on the due date by email or by post. Such application for payment or invoice is a payee notice as defined by s110B(4) of the Housing Grants, Construction and Regeneration Act 1996 as amended.
23.2 Where payment is paid late by the Customer, the Supplier may enforce its statutory rights. In addition, any costs incurred by the Supplier will be charged to the Customer including but not limited to the costs of bounced cheques and time spent by the Supplier’s employees.
Annex K. 24. Suspension
24.1 If the Customer fails to pay the sum due to the Supplier under this Contract or under any other contract with the Supplier by the final date for payment, then the Supplier may give a written notice of his intention to suspend the performance of any or all of its obligations under this Contract. If the Customer’s failure to make payment continues for three calendar days after the giving of such notice, then the Supplier may suspend such performance until payment of the full outstanding amount is received as cleared funds under this Contract and under any other contract between the Customer and the Supplier.
24.2 Where the Supplier exercises its right of suspension under clause 24.1, it shall be entitled to a reasonable amount in respect of costs and expenses reasonably incurred by him as a result of the exercise of the right.
Annex L. 25. Insurance
25.1 The Customer shall insure in the joint names of the Customer and the Supplier the whole and every part of the Installed Goods and the Supplier's equipment including hired plant from the date the Installed Goods and/or the Supplier’s equipment arrive on Site to Supplier Practical Completion or installation at full replacement value against all loss or damage from any cause whatsoever.
25.2 The Customer shall indemnify the Supplier against all losses, liabilities, claims, costs or expenses arising from damage or injury to persons or property, which may arise out of or in conjunction with the execution of the Contract, provided that this indemnity shall not apply to liabilities arising from negligence of the Supplier or its servants or agents.
25.3 The Customer agrees upon demand to indemnify the Supplier against all losses, damage, injury, costs and expenses of whatever nature suffered by the Supplier arising out of claims under the Consumer Protection Act 1987 and against all losses, damage, injury, costs and expenses of whatever nature suffered by the Supplier to the extent that the same are caused by or related to:
(a) drawings or specifications given to the Supplier by the Customer in respect of Installed Goods produced by the Supplier for the Customer, or
(b) defective materials or products supplied by the Customer to the Supplier and incorporated by the Supplier in Installed Goods produced by the Supplier for the Customer, or
(c) the improper incorporation, assembling, use, processing, storage or handling of Installed Goods by the Customer.
25.4 The Supplier’s public liability insurance currently provides cover for up to a limit of £1,000,000 per single incident. If additional cover is required a price surcharge will be levied.
Annex M. 26. Bribery Act 2010
26.1 Either party will be entitled to terminate this contract immediately if the other party commits, or has committed, an offence under the Bribery Act 2010. In the event of a breach of this clause, the party in breach shall pay to the other party any loss cost or expense reasonably incurred which results from the termination.
Annex N. 27. Facilities, Services & Attendances
Unless shown below as being provided by the Supplier, all such items are to be provided by the Customer at his cost.
|Item||Customer to provide||Supplier to provide|
|A||Site specific induction / training||
|B||Method statements and Risk Assessments provided prior to commencement||
|C||Unimpeded and suitable vehicular access for the Supplier to deliver adjacent to the point of installation must be available.||
|D||Completion of a structural survey to ensure stability of the openings prior to installation by the Supplier||
|E||Fully prepared openings and that surfaces are built to the Supplier’s detailed sizes. Floor levels to be true and horizontal to +/- 5mm and vertical walls are to be plumb to +/- 5mm||
|F||Live and tested power supply for each product defined in the Contract Works located within one metre of each entrance.||
|G||Safe, clean, dry environment appropriately heated for the construction of the Installed Goods. This includes no wet / dust generating trades on the floor where the Installed Goods are to be installed. Further that the Site meets the British Standard codes of practice for safe working in occupied and unoccupied buildings||
|H||Cutting in of floor spring boxes into floors of all types and finishes||
|I||Specialist Lifting Equipment||
|J||Provision of goods lift to each floor above or below ground floor||
|K||Unloading and distribution on site, from a lift on upper or basement floors, to within 50 metres of the place of installation with no obstructions impeding the remaining 50 metres||
|L||Shared toilets & mess room, shared first aid, shared drying room||
|M||Space for materials / plant / hutting||
|N||110V electricity outlet(s) to within 15m of working area – delays to progress to be charged at day work rates||
|O||Electrical adaptors, leads etc||
|R||Scaffolding, towers and working platforms and powered access including but not limited to scissor lifts unless otherwise stated in the Contract||
|S||Clear working area and hardstandings to permit use of scaffolding by the Supplier||
|T||Rubbish skips (located at designated point on site) and disposal of waste to comply with all regulations||
|U||Plant, small tools and tackle||
|V||The finished floor in and around the installation site with a tolerance across the diameter +/- 5mm||
|W||Setting out including provision of all levels datums and gridlines||
|X||Dealing with asbestos||
|Y||Restriction of access to the site whilst the Supplier is installing the works to ensure safety to non-Supplier personnel. Note that this may include but is not limited to hoarding, hereas fencing etc||
|Z||Protection of all surrounding equipment, floors, furnishings etc during installation||
|AA||Protection and responsibility of the Supplier’s works until Supplier’s Practical Completion unless otherwise stated in the Order Acknowledgement||
|AB||Protection and responsibility of the Supplier’s works after Supplier’s Practical Completion||
|AE||Cleaning of Contract Works immediately after Supplier’s Practical Completion under site condition lighting excluding removal of protective tape||
|AF||Final clean under end user lighting including removal of protective tape||
|AG||Maintenance after Supplier’s Practical Completion||