AES (SCOTLAND) LTD
2 Fidra Avenue, Burntisland, Fife, KY3 0AZ
In these conditions
1.1 “Company” means AES (SCOTLAND) LTD of 2 Fidra Avenue, Burntisland, Fife, KY3 0AZ
1.2 “Commencement Date” means any date agreed between the Company and the Customer under clause 8.1 or, where no such date is agreed, the date the Company commences the Works on Site.
1.3 “Completion Date” means any date agreed between the Company and the Customer under clause 8.2.
1.4 “Conditions” means these terms and conditions.
1.5 “Contract Price” means the price for the Works and Materials.
1.6 “Customer” means the purchaser of Works and Materials from the Company.
1.7 “Engineer’s Survey” means a visual inspection of the Site in accordance with clause 9 below.
1.8 “Materials” means the materials, goods, machinery and equipment to be supplied by the Company in carrying out the Works.
1.9 “Site” means the place for performance of the Works.
1.10 “Works” means the Materials or other security supply services or works to be supplied and/or carried out by the Company which may be more particularly described in the quotation and order acknowledgement.
2 FORMATION OF CONTRACT
2.1 Any order sent to or placed with the Company by the Customer (whether or not pursuant to a quotation) shall be deemed to be an offer by the Customer to buy the Works subject to these Conditions.
2.2 Any order sent to or placed with the Company by the Customer (whether or not pursuant to a quotation) shall be accepted by means of an order acknowledgement at the discretion of the Company and if so accepted shall be accepted on these Conditions.
2.3 No damages, compensation or expenses shall be payable by the Company to the Customer in the event that the Company exercises its discretion to refuse an order placed by the Customer.
2.4 Acceptance will be by way of a Company order acknowledgement and a contract shall not be formed until the Company’s acceptance is communicated in this form or until the Company commences the Works (if earlier).
2.5 Any contract between the Customer and the Company shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply).
2.6 The Customer acknowledges that in entering into the contract it has not relied on any statement, promise or representation made by the Company, its agents or employees save for any such representation made or confirmed by the Company in writing.
3 CONTRACT CANCELLATIONS AND RETURNS
3.1 This clause 3 shall not apply to orders placed in the course of business and shall only apply to orders placed by Customers who are consumers not acting in the course of business
3.1.1 The Customer shall be entitled to cancel an order for Materials within 7 working days of the date that the customer received the Materials, or within 7 working days of the date of the Company order acknowledgement, which ever is the later provided that the Materials have not been used or damaged by the Customer in whole or in part and are returned to the Company in their original packaging (in good and re-saleable condition), together with any instructions supplied with the Materials.
3.1.2 Unless the Materials were delivered to the Customer in error, or in a damaged or faulty condition, the costs of returning the Materials to the Company, together with the cost of insuring the Materials during transit shall be the responsibility of the Customer.
3.1.3 If Materials were delivered to the Customer by the Company in error, or in a faulty or damaged condition the Company shall refund or exchange the Materials and the cost of the collection of the erroneous, faulty or damaged Materials and the redelivery of replacements if applicable, shall be paid by the Company.
3.1.4 The Customer shall be entitled to cancel an order for services, within 7 working days from the day the Customer receives the Company’s order acknowledgement, unless the Works have commenced.
4 QUOTATIONS AND WORKS CARRIED OUT
4.1 Quotations are provided by the Company using information and prices for labour, Materials, and transport available at the date of issue of the quotation. The Company reserves the right to withdraw or amend any quotation at any time. All quotations are exclusive of VAT.
4.2 The quantity and description of any Materials supplied shall be as setout in the Company’s quotation or order acknowledgement. All samples, drawings,descriptive matter illustrations or advertising are issued for the sole purpose of giving an approximate idea of Materials, they shall not form part of the contract and this is not a sale by sample.
4.3 Unless agreed otherwise by the Company in writing the Contract Price assumes (where applicable) normal excavation of soil or clay where such works are appropriate. Where however the Company encounters physical conditions such as bedrock, tarmac, rock, brick or shale and or obstructions the Company shall be entitled to amend the Contract Price accordingly.
4.4 Where it is agreed that delivery shall take place other than at the Company’s place of business and unless agreed otherwise by the Company in writing the Contract Price allows for carriage of Materials and equipment within 10 metres of a metalled road. The Company shall at its sole discretion be entitled to amend the Contract Price accordingly for any carriage beyond 10 metres of a metalled road.
5 PRICE – PAYMENT
5.1 The Contract Price is stated exclusive of VAT which will be added to the Company’s interim or final application/invoices at the then current rate.
5.2 The Company is entitled to interim payments 1 month after the Commencement Date and subsequently on the same (or nearest) date in each following month.
5.3 The Company is entitled to submit a final application/invoice when it considers the Works are complete.
5.4 Interim and final applications/invoices shall be for a sum equal to the value of Works and Materials carried out and supplied (including unfixed Materials on Site) less the total of previous applications/invoices.
5.5 Interim and final applications/invoices are due on their respective dates.
5.6 Within 5 days of an interim or final application/invoice date the Customer shall;
5.6.1 confirm the sum payable is as stated in the application/invoice; or
5.6.2 set out an alternative sum payable providing details of the calculation of that sum.
5.7 The final date for payment of any interim or final application/invoice is 7 days after the due date.
5.8 Not less than 1 day before the final date for payment the Customer shall deliver to the Company in writing details of any ground for withholding payment from the Company and the sum to be withheld under each ground.
5.9 Interest on overdue applications/invoices will accrue on a daily basis from the final date for payment until payment at the rate of 8% above National Westminster Bank PLC’s base rate from time to time.
5.10 Where the Customer is a contractor under a building contract with an employer, all payments made by the employer to the Customer in respect of work performed or Materials or equipment supplied by the Company shall be held intrust by the Customer until paid to the Company. The Customer shall immediately upon receipt, pay such sums into a separate bank account held on trust for the Company.
5.11 The Customer shall not deduct from or set off against any sum due or payable to the Company under the contract and these Conditions any sum claimed or due from the Company to the Customer under any other contract, agreement or obligation between them.
5.12 If the Customer fails to make any payment by the final date for payment then without prejudice to any of the Company’s other rights the Company may;
5.12.1 suspend the Works; or
5.12.2 terminate the contract;
and in either case recover from Site any unfixed Materials and any fixed Materials the removal of which would cause only minor damage provided that the Company makes good any damage caused.
5.13 On termination under clause 5.12.2 the Company may submit a final invoice to be paid in accordance with clauses 5.4 to 5.8.
6.1 Unless otherwise agreed in writing by the Company, delivery of Materials shall take place at the Company’s place of business.
6.2 The Company shall use reasonable endeavours to meet requested dates for the delivery of Materials or equipment, but shall accept no liability for any loss or damage incurred by the Customer as a result of a delayed delivery.
6.3 A delivery time agreed or provided by the Company are given for information purposes and a delivery time is not of the essence of the contract.Where no dates are so specified delivery shall be within a reasonable time.
6.4 If for any reason the Customer fails to accept delivery of any of any Materials when they are ready for delivery, or the Company is unable to deliver Materials on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
6.4.1 risk in Materials shall pass to the Customer (including for loss or damage caused by the Company's negligence);
6.4.2 the Materials shall be deemed to have been delivered; and
6.4.3 the Company may store and insure the Materials until delivery, where upon the Customer shall be liable for all related costs and expenses (including,without limitation, storage and insurance).
6.5 The quantity of any Materials as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
7.1 The Company is not obliged to accept or make any variation to the Works and Materials and no variation will be binding on the Company unless accepted by it in writing.
7.2 Where a variation proposed by the Customer will affect the Contract Price the Company may provide a written variation quotation.
7.3 The Company may make acceptance by it of any proposed variation conditional upon an extension of the Completion Date.
7.4 If instructed by the Customer to proceed the Company will issue a variation acceptance and the Contract Price and Completion Date will be amended accordingly.
7.5 The Company reserves the right to make any variation in the Works or Materials necessary to confirm with any applicable safety, regulatory or statutory requirements.
8 TIME FOR PERFORMANCE
8.1 Unless specifically agreed by the Company in writing and confirmed in its order acknowledgement no Commencement Date, Completion Date or programmes requested by the Customer shall be binding on the Company.
8.2 Where the Company agrees to a Completion Date under clause 8.1 and it becomes apparent that the Works will not be completed by the Completion Date for reasons beyond the control of the Company, the Completion Date shall be extended by such time as is reasonable.
8.3 Where no Commencement Date is agreed under clause 8.1 the Customer shall nevertheless give to the Company written notice of commencement as follows;
8.3.1 7 working days where the contract does not include the supply of Materials;
8.3.2 (unless otherwise stated by the Company in writing) 3 weeks where the contract includes the supply of Materials.
9 ENGINEERS SURVEY
9.1 The purpose of the Engineers Survey is to confirm the suitability of the Materials and to discuss the preparatory work required by the Customer prior to the Commencement Date. No warranty or guarantee is given by the Company inrelation to completeness or accuracy of the Engineers Survey.
9.2 The Company shall carry out the Engineers Survey as soon as practicable.
9.3 The cost of the Engineers Survey, assuming it does not exceed one day isincluded in the Contract Price. If additional visits are required there will bean additional charge on a consultancy basis of £250 plus VAT per day.
9.4 The Customer shall draw to the Company’s attention all machinery andequipment in existence at the Site at the time of the Engineers Survey and atthe Commencement Date which may have an adverse effect on the performance ofthe Materials provided by the Company to the Customer.
9.5 The Company shall not be liable for any matters which cannot beidentified during the Engineers Survey, including, but not limited to groundconditions (including sub-soil or sub-surface conditions) and ground loop induction,which may be latent and which is not immediately apparent from the EngineersSurvey.
10 RISK AND TITLE
10.1 The Works including all Materials shall be at the Customer’s risk oncedelivered and the Customer shall on delivery effect a policy of insurance for the full replacement value of all Materials to include theft and damage byvandalism together with any other necessary policies of insurance for the Workswhether complete or incomplete.
10.2 The Customer shall indemnify the Company for all loses arising from the Customer’s failure to insure in accordance with clause 10.1 and the Customershall indemnify the Company for all loses arising from damage to or theft of Materials until payment is made in full.
10.3 Notwithstanding delivery and the passing of risk, property in and titleto Materials shall remain with the Company until the Company has receivedpayment of the full price of the Works including:
10.3.1 all Materials and/or services the subject of the contract; and
10.3.2 all other goods and/or services supplied by the Company to the Customerunder any contract whatsoever.
Payment of thefull price shall include, without limitation, the amount of any interest orother sum payable under the terms of this and all other contracts between the Company and the Customer.
10.4 Until property in and title to Materials passes to the Customer the Customer shall:
10.4.1 hold the Materials on a fiduciary basis as the Company's bailee;
10.4.2 store the Materials (at no cost to the Company) separately from allother goods or materials of the Customer or any third party in such a way thatthey remain readily identifiable as the Company's property;
10.4.3 not destroy, deface or obscure any identifying mark or packaging on orrelating to the Materials; and
10.4.4 maintain the Materials in satisfactory condition and keep them insuredon the Company's behalf for their full price against all risks to thereasonable satisfaction of the Company. On request the Customer shall producethe policy of insurance to the Company.
10.5 The Customer may not resell the Materials before ownership has passed toit.
11 CUSTOMER’S OBLIGATIONS
Unlessotherwise agreed by the Company in writing the Customer shall provide the Company free of charge with:
11.1.1 all scaffolding, lifts, ladders, hoists craneage;
11.1.2 all concrete foundations, builders work, civil work includingunderground ducts works;
11.1.3 suitable temporary protection from the Works;
11.1.4 suitable connections to mains electricity and water supplies
necessary to carry out the Works; and
11.1.5 a designated waste collection point adjacent to the Works fromwhich the Customer will remove from Site all rubbish, surplus excavatedmaterial and waste.
11.2 The Customer is responsible for providing clear access at all reasonabletimes to all parts of the Site necessary to enable the Company to carry out andproceed regularly with the Works.
11.3 The Customer shall provide to the Company a scale plan of the Siteaccurately identifying the setting out of the Works together with anyunderground services, conduits or other obstacles. The Customer is responsiblefor the accuracy and completeness of such plan.
11.4 The Customer is responsible for ensuring that all preparatory andconcurrent works necessary for the commencement and continuation of the Worksincluding clearing, grading and levelling are carried out and completed so asto enable the Company to proceed regularly with the Works.
11.5 The Customer is responsible for providing adequate insurance against thetheft or damage of any plant or equipment brought to Site by the Company foruse in connection with the Works and will indemnify the Company against suchtheft or damage.
11.6 The Customer is responsible for the reinstatement of finishes to tarmac,block paving or quality surfaces after the completion of the Works by the Company
11.7 The Customer is responsible for obtaining any necessary approvals,permissions or consents (including planning consent) for the carrying out ofthe Works.
11.8 The Customer will pay to the Company a reasonable sum for any additionalWorks, Materials, plant/equipment costs, time or travel costs incurred by the Company as a consequence of the Customer’s breach of any part of clause 11 orclause 8.3.
11.9 Sums payable under clause 11.8 shall be included in the Company’sinterim/final invoices and paid in addition to the Contract Price in accordancewith clause 5.
12 CUSTOMER’S SPECIFICATIONSAND QUALITY
12.1 Where the Company is not the manufacturer of any Materials supplied aspart of the Works, the Company shall endeavour to transfer to the Customer thebenefit of any warranty or guarantee given to the Company.
12.2 The Company warrants that (subject to the other provisions of theseconditions) on delivery the Materials shall be of satisfactory quality withinthe meaning of the Sale of Goods Act 1979.
12.3 The Company shall not be liable for a breach of the warranty in clause12.2 unless:
12.3.1 the Customer gives written notice of the defect to the Company withinseven days of the time when the Customer discovers or ought to have discoveredthe defect; or
12.3.2 the Customer makes any further use of such Materials after giving suchnotice; or
12.3.3 the defect arises because the Customer failed to follow the Company'soral or written instructions as to the storage, installation, commissioning,use or maintenance of the Materials or (if there are none) good trade practice;or
12.3.4 the Customer alters or repairs such Materials without the writtenconsent of the Company.
12.4 Subject to clause 12.3, if any of the Materials do not conform with thewarranty in clause 12.2 the Company shall at its option repair or replace suchMaterials (or the defective part) or refund the price of such Materials at thepro rata Contract Price rate provided that, if the Company so requests, the Customer shall, at the Customers’ expense, return the Materials or the part ofsuch Materials which is defective to the Company.
12.5 If the Company complies with clause 12.4 it shall have no furtherliability for a breach of the warranty in clause 12.2 in respect of suchMaterials.
12.6 The Company will not be responsible for defects in, or delay in carryingout, the Works or in the quality, quantity or fitness for purpose of any Materials supplied which arise from the Company’s reliance on any drawings,specifications, calculations, method statements or particulars supplied by the Customer.
12.7 Where any errors or omissions in any drawings, specifications,calculations, method statements or particulars supplied by the Customer cause:
12.7.1 the quantity or quality of Materials to be less than required tocomplete the Works the supply of any additional Materials shall be a variationsubject to the provisions of clause 7;
12.7.2 the quantity of Materials to be greater than required to complete theWorks the Company may at its discretion issue a credit note for such sums as itsees fit in respect of the excess quantity.
13 LIMITATION OF LIABILITY
13.1 The Company’s liability under the contract and these Conditions, exceptfor liability in respect of death or personal injury caused by the negligenceof the Company, its employees, servants or agents is limited to the reasonablecost of remedying or rectifying any defects in the Works and shall in no eventexceed the sum of £1,000 (one thousand pounds).
13.2 Except as provided by clause 13.1 the Company excludes all liability to the Customer for any loss or damage, whether direct, indirect, consequential oreconomic suffered or incurred by the Customer arising under or in connectionwith the contract, these Conditions or the carrying out of the Works.
13.3 The Company does not accept liability for any colour or markingvariations contained in and between natural products included in the Materials.
13.4 The Company does not accept any liability for:
13.4.1 any damage to surrounding foliage whilst carrying out the Works.
13.4.2 any damage to tarmac, block paving or quality surfaces that need to beremoved in order to carry out the Works.
13.4.3 the cost and consequences of striking below ground services or conduitsunless their location has been specifically identified to the Company by the Customer before the date of commencement on Site in accordance with clause11.3.
13.4.4 Interference caused by high voltage cables or EMF interference of withany cables installed by the Company.
13.4.5 Failure of the Works or any Materials to connect to or incorporatewithin the Customer’s existing systems save where such connection andincorporation has been specifically agreed in advance between the Customer andthe Company.
13.4.6 Failure of IT or computer equipment or non conformity of such equipmentwith the Customer’s systems.
14 INSOLVENCY OF CUSTOMER
14.1 If the Customer has a has a winding up or bankruptcy petition issued orfilled against it or becomes bankrupt; makes a proposal for a composition insatisfaction of his debts or a scheme of arrangement of his affairs; makes orproposes any arrangement with its creditors; has a proposal for a voluntaryarrangement for a composition of debts or scheme of arrangement approved in accordancewith the Insolvency Act 1986; a notice of intention to appoint an administratoror administrative receiver is filed; has an application made under theInsolvency Act 1986 for the appointment of an administrator; has a winding uporder made against it; passes a resolution for voluntary winding up; hasappointed a receiver or manager of its business; has possession taken by or onbehalf of any creditor of any property the subject of a charge or in the caseof a partnership) any partner is the subject of an individual arrangement orany other event or proceedings referred to in this clause; is the subject ofany analogous arrangement, event or proceedings in any other jurisdiction orthe Company suspects any of the above is imminent without prejudice to anyother right of remedy available to it the Customer’s right to possession of the Materials shall terminate immediately and the Company shall be entitled to:
14.1.1 terminate the contract;
14.1.2 suspend the Works;
14.1.3 recover payment for the Works including Materials notwithstanding thatownership of any of the Materials has not passed from the Company;
and in anycase recover from Site any unfixed Materials and any Materials fixed to theSite the removal of which would cause only minor damage to the Site provided thatthe Company makes good the damage caused.
14.2 The Customer grants the Company, its agents and employees an irrevocablelicence at any time to enter any premises where the Materials are or may bestored in order to inspect them, or, where the Customer’s right to possessionhas terminated, to recover them.
15.1 The Company shall be entitled by written notice to the Customer toterminate the contract in the event that the Company is prevented or hinderedfrom performing the Works due to unforeseen commercial or physicalcircumstances.
15.2 Following such termination the Company shall be entitled to be paid afair and reasonable proportion of the Contract Price commensurate with theperformance of the contract up to the date of termination. The Company shallnot be responsible to the Customer for loss or damage either in contract ortort or otherwise sustained by the Customer as a result of the terminationincluding (but not limited to) such losses or damages arising in relation toloss of profit or consequential breach of contract or liability otherwiseincurred by the Customer.
16 DISPUTE RESOLUTION
16.1 The Company or the Customer may refer any dispute arising out of or inconnection with this contract to adjudication and the rules applicable to anyadjudication shall be those in the Scheme for Construction contracts (Englandand Wales) Regulations 1998 or any re-enactment or amendment thereof.
16.2 The adjudicator nominating body for the purpose of adjudication shall bethe Royal Institution of Chartered Surveyors.
17.1 The contract and these Conditions shall be governed by the law of Scotland.
17.2 No waiver by the Company of any breach of contract or these Conditionsby the Customer shall be considered as a waiver of any subsequent breach ofcontract or these Conditions by the Customer.
17.3 The Company shall be entitled to sub-contract or assign all or any partof the Works, without the consent of the Customer.
17.4 The illegality, invalidity or unenforceability of any clause in these Conditions shall not affect the legality, validity or enforceability of theremainder.
17.5 It is not intended that any party shall acquire any right pursuant to the contracts (Rights of Third Parties) Act 1999 as a consequence of thiscontract.
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