Unless expressly accepted in writing by Pruce Newman Pipework Limited no addition to or alteration or modification of these Conditions shall form part of any Contract between the Company and the Supplier.
This order shall not be binding upon Pruce Newman Pipework Ltd (“the Company”) unless and until full acknowledgement of the goods or service, together with these conditions, is received by us from the Supplier. Receipt by us of your compliant acknowledgement shall constitute a contract (“the Contract”) between you (“the Supplier” or “the Seller”) and us, based on the terms and conditions stated in this order.
Unless expressly accepted in writing, we shall not be liable for any orders or amendments thereto other than those issued or confirmed on our official printed order or amendment forms, signed by an authorised employee on our behalf.
The goods must be packed in such a manner as to ensure their safe transit and delivered carriage paid in accordance with our instructions. Unless specifically determined by you, all packaging materials will be disposed of as we see fit and at no cost to us.
Time shall be of the essence as to the delivery date of the goods supplied and in the event of late delivery the Company reserves the right to reject the goods and to rescind the contract. You are bound to notify us immediately of any apprehended delay or postponement of delivery or completion of the Contract.
In the event of industrial dispute, fire, explosion, accident or other incident to cause stoppage or major interference to the goods or works before or during despatch or completion, any due payments will be suspended by us at our discretion and option until such time that the circumstances become controllable.
The legal title in the goods shall pass to the Company when the goods have been delivered to the Company.
The Seller warrants that it has a satisfactory Quality Assurance system and complies with one of the following alternatives, specified by this contract.
Full compliance with BS EN ISO 9001:2008 or 2015, including traceability
Full compliance with BS EN ISO 9001: 2008 or 2015 or other 3rd party approved system.
Has a documented material control and inspection system, (subject to audit by the Company).
Any appropriate documentation, associated with such procedures, will be supplied by the Seller to the Company, on request.
If any goods do not comply with the Order, including specification, quantity, quality or description, the Company shall be entitled to reject those goods or any part of them at any time after delivery. Any acceptance of such goods by the Company shall be without prejudice to any rights the Company may have against the Supplier. The Company shall be entitled to return the rejected goods, carriage forward, to the Supplier at the risk of the Supplier.
Before despatching goods you shall carefully inspect and test them for compliance with the Contract and when requested provide us with certificates as we may require.
Our, or our customer’s, inspector, agent or representative shall be entitled, on our authority, inspect the goods or works at any reasonable time prior to delivery. Any such inspection will not relieve you of any responsibility under the Contract.
No part of the Contract is to be sub-contracted or assigned except as is customary in the trade. In any event we must be notified of any such intention or practice.
Payments made by us to you may be delayed if you fail to ensure our order reference appears on all documentation including invoices, acknowledgements, delivery and advice notes. Payment will be held back if this any part of this Contract is in dispute.
Payment terms are based on net monthly account plus a maximum 30 days. Other options including prompt payment discounts may be negotiated. Other terms may be specifically agreed with our Accountant. We will forfeit no prompt payment discount if you fail to comply with any matter of this Contract.
You shall keep us indemnified against loss and expense suffered by us that results during or after proper use of the goods or works directly or indirectly from defective goods, materials, workmanship or design. In addition you will immediately replace or repair at our option, free of charge, any goods in which defects appear within reasonable period from date of delivery taking account of date put to use.
You shall keep us indemnified against any damage to any property and against any claims for injury or death to any person caused by your negligence or any act or omission of your employees, sub-contractors or agents in the execution of the Contract or by the supply by you of defective goods
In the event that a Purchase Order is confirmed by fax or email or any other such technology, the content of these conditions will be deemed to be valid. A copy of these terms is lodged with your sales department.
Where a purchase requires test reports as part of the service/product delivery; eg: for NDT, lifting equipment inspection, calibration, etc.; the report must be made available within 7 days of the work (testing / inspection / calibration, etc.) being completed.
Standard Conditions of Contract
The quotation constitutes an invitation by Pruce Newman Pipework Limited (hereinafter called the Company) to the Customer to place an Order with the Company to purchase the Services upon the terms and conditions hereinafter set out. The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
Unless expressly accepted in writing by the Company no addition to, alteration, or modification of these conditions shall form part of any Contract between the Company and the Customer.
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 Company which is not set out in the Contract.
In the event of any conflict between the terms of these Conditions and the specific conditions within the quotation the terms of the quotation shall prevail.
Unless otherwise stated by the detailed terms of the quotation, any quotation given by the Company shall not constitute an offer, and is valid for a period of 30 days from its date of issue.
The Company shall invoice the Customer on completion of the Services or by application or as set out in the quotation and payment shall be due within 30 days from the date of invoice.
Subject to Condition 4 the price for the Services shall be the price set out in the quotation or otherwise agreed in writing between the Company and the Customer.
The Customer shall pay each invoice submitted by the Company in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.
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 Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of 5 per cent per annum above the then current National Westminster Bank Plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
If default is made in any payment due then the Company may suspend or abandon the Services and remove unfixed material, tools and other equipment from the Customer’s site.
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
PRICE VARIATION AND SPECIFICATION
The price set out in the quotation is based on the prices of materials, labour and transport ruling at the date of quotation and the Company reserves the right to amend the quoted price to meet any variation in these prices due to any increases imposed upon or agreed to by the Company, unless otherwise stated in the quotation.
The Company may make additional charges in the following circumstances:
in the event any variation to a Contract requiring additional work or daywork or additional Deliverables is requested or required;
in the event any variation to a Contract is required as a result of a deficiency in the Specification;
should the Company be delayed in performance of the Services at any time due to the failure of the Customer to grant access to or the availability of the plant, or site, or other equipment or supplies, or as a result of the failure of the Customer to give adequate or accurate information or instructions in respect of the Services;
if the Customer fails to give the Company adequate access in accordance with Condition 7(a) iii including all reasonable additional expenses occasioned by the delay or failure, including (but not limited to) additional employee wages, travel expenses and staff lodgings.
The Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies such issues.
The Company reserves the right to increase its standard hourly charge rates for the Services, provided that such charges cannot be increased more than once in any 12 month period. The Company will give the Customer written notice of any such increase two months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Company in writing within two weeks of the date of the Company’s notice and the Company shall have the right without limiting its other rights or remedies to terminate the Contract by giving six weeks’ written notice to the Customer.
The price included in the quotation assumes that the Company will have free and easy access to the site, have continuity of work, that all work will be carried out during the Company’s normal working hours and that the supply of electricity and any other utilities required will be made available to the Company as a free issue and the Company reserve the right to make additional charges to the Customer in the event that this is not the case.
The Company shall have the right to make any changes to the Specification 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 Company shall notify the Customer in any such event.
RISK AND TITLE
Full and complete title to Deliverables used in the provision of the Services shall remain with the Company until payment in full of the price therefore and all other amounts due from the Customer. If the Company uses any materials supplied by the Customer such materials shall remain at the risk of the Customer at all times.
If before title to the Deliverables passes to the Customer the Customer becomes subject to any of the events listed in Condition 11 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Deliverables have not been irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Deliverables and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Deliverables or materials are stored in order to recover them.
All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Company.
WARRANTIES AND GUARANTEE
The Company shall supply the Services to the Customer in accordance with the Specification in all material respects.
The Company shall use all reasonable endeavours to meet any performance dates specified in the quotation or Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
Except as set out in these Conditions, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
The Company will, at its option, refund the cost of or repeat or rectify the provision of any Services repair or replace any Deliverables failing to comply with the warranties at 6 (a) to (c) , providing such defect is brought to the attention of the Company within three months of the completion of the supply of the Services provided nevertheless that:-
the Company is given a reasonable opportunity of examining such defects;
the Company accepts no responsibility for fault or failure of any material not of its own manufacture, so far as it is reasonable to do so, but shall use its reasonable endeavours pass on to its Customers such guarantee and warranty period as it is entitled from the manufacturer.
The Company shall not be liable for the Services including the Deliverables’ failure to comply with the warranties at Condition 6 (a) to (c) if:
the Customer makes any further use of such Deliverables after giving a notice in accordance with Condition 6(e);
the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or (if there are none) good trade practice;
the defect arises as a result of the Company following any drawing, design or Specification supplied by the Customer;
the Customer alters or repairs such Deliverables without the written consent of the Company;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
the Deliverables differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
the Customer failed to comply with is obligations under Condition 7(d) and did not invite the Company to be present when the system to which the Services relate was commissioned or tested.
The Company accepts no responsibility for the design of the works in terms of specification or final process performance of the system which incorporates the Deliverables and to which the Services relate. The Company is under no obligation to verify that any Specification provided by the Customer is fit for the purpose intended and offers no warranty in respect of this.
The Customer shall:
ensure that the terms of the Order and (if submitted by the Customer) the Specification are complete and accurate;
co-operate with the Company in all matters relating to the Services;
provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services, which for the avoidance of doubt shall be for a minimum of a nine and a half hour working day, plus employee changeover time;
maintain a high standard of safe working practices at the site where the Services are to be performed;
provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
comply with all laws, direction and regulations whether of the Government or of any Local or other lawful authority, applicable to the site at which the Services are to be supplied or the Specification.
For all installations requiring such access the Customer warrants clear, unobstructed, adequate access from the highway.
If it is not possible to test the Services and Deliverables at the time of installation then the Customer must invite the Company on reasonable notice and during normal business hours, to have a representative present when the system is tested or commissioned.
In the event that the Company is not able to complete the delivery of the Services without interruption as a result of the action or request of the Customer or otherwise the Company and the Customer shall arrange a time convenient for both parties for the Services to be resumed and completed. The Company shall be under no obligation to recommence the work immediately upon the request of the Customer.
The Customer shall indemnify and keep the Company fully and effectively indemnified against all costs (including legal costs), damages, claims, demands, expenses and liabilities of whatever nature:
incurred or sustained by the Company as a result of any breach by the Customer of its obligations at Condition 7 above; and
arising out of or in connection with any claim that the use by the Company of any Specification information or materials provided by the Customer infringes the intellectual property or other rights of any third party.
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 Condition 10 shall survive termination of the Contract.
LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude the Company’s liability for: i) death or personal injury caused by its negligence, ii) or the negligence of its employees, agents or subcontractors iii) fraud or fraudulent misrepresentation; or iv) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Subject to Condition 10 (a):
the Company 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
the Company’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 5 % of the total Contract price, including materials.
The Customer shall give the Company at least thirty days (following notification of the default) in which (if remediable) to remedy any default under the Contract and shall provide the Company with such reasonable access and assistance (at the Company’s cost) to enable it to do so.
This Condition 10 shall survive termination of the Contract.
If the Customer (or the Company reasonably believes that the Customer is about to) :
fails to make pay any amount due under this Contract on the due date for payment;
enters into a deed of arrangement or becomes bankrupt or compounds with the Customer’s creditors; or
has a receiving order made against it; or
suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; or
(being a Company) an order is made or a resolution is passed for the winding up of the Customer; or
if a receiver or administrator is appointed of any of the Customer’s assets or undertaking; or
if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or administrator or which entitle a Court to make a winding up order; or
if the Customer takes or suffers any similar action in consequence of debt; or
being an individual dies or becomes incapacitated; or
ceases or threatens to cease to carry on its business; or
commits any breach of this or any other Contract between the Company and the Customer;
the Company may without prejudice to any of its other rights suspend the supply of Services and/or suspend further provision of Services under the Contract or any other contract between the Customer and the Company and/or determine the right of the Customer and by notice in writing to the Customer determine the Contract and/or any other contract between the Customer and the Company.
CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
the Customer shall return all of the Company Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract. The right shall subsist notwithstanding the termination of the Contract for any reason and is without prejudice to any other rights of the Company;
the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
clauses which expressly or by implication have effect after termination shall continue in full force and effect.
On termination of the Contract by the Customer prior to the expiry of any agreed term or by the Company in accordance with Condition 11 the Customer shall immediately pay all Charges which would have been payable under the Contract should it not have been terminated early.
Neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the provision of the Services or (in the case of the Customer) in the receipt of the Services at any time during the Contract or for a further period of 6 months after the Contract has been fulfilled other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
If either the Company or the Customer commits any breach of condition 13 (a), the breaching party shall, on demand, pay to the claiming party a sum equal to one year’s basic salary or the annual charge that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.
This Condition shall survive termination of the Contract.
For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Company’s subcontractors due to a Force Majeure Event.
The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
If the Force Majeure Event prevents the Company from providing any of the Services for more than 12 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
Assignment and subcontracting:
The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Notices: Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its last known address, or sent by fax to the other party’s main fax number or to an email address notified for the purpose. Notices sent by post shall be deemed to have been given two days after despatch and notices delivered personally or sent by facsimile transmission on the date of the delivery/transmission or despatch or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed or if by email upon receipt of an acknowledgement of such email. This Condition 14 (c) shall not apply to the service of any proceedings or other documents in any legal action.
Waiver and cumulative remedies: A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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. Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
Severance: If a court or any other 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. 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.
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.
Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it 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.
“Charges” means the charges payable under the Contract, including without limitation, the price set out in the quotation or agreed between the parties and any variation to the price or additional charges due under Condition 4.
“Conditions” these terms and conditions as amended from time to time in accordance with Condition 1(c)
“Contract” the contract between the Company and the Customer for the supply of Services in accordance with these Conditions and the terms contained within the quotation.
“Deliverables” the deliverables set out in the Order and the materials purchased and used by the Company in the provision of the Services.
“Order” the Customer’s order for the supply of Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Company’s quotation, or overleaf, as the case may be.
“Services” the services, including the Deliverables, supplied by the Company to the Customer as set out in the Specification.
“Specification” the description or specification for the Services that is agreed in writing by the Customer and the Company or contained within the quotation.
In these Conditions a reference to a party includes its personal representatives, successors or permitted assigns.