Terms and Conditions
ECOSTEEL AND ASSOCIATED COMPANIES TERMS AND CONDITIONS FOR THE SALE OF GOODS & SERVICES
In this document the following words shall have the following meanings:
a. "Agreement" means these Terms and Conditions together with the terms of any applicable specifications.
b. "Customer" means the organisation or person who purchases goods and / or services from the Supplier.
c. "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property.
d. "Specification Document", supplied by the Customer means the detailed purchase order and all associated specification documents, fully detailing the goods and services to be provided by the Supplier.
e. “Price“ denotes the total value specified in the Supplier’s’ quotation
f. "Supplier" means Ecosteel Ltd.and any of Ecosteel’s associated companies , 6 Nairn Road, Deans Industrial Estate, Livingston EH54 8AY
a. Before the commencement of the provision of services and/or the manufacture of goods the Customer shall submit to the Supplier the Specification Document which shall specify the goods and/or services to be supplied and the price payable. The Supplier shall notify the Customer immediately if the Supplier does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
b. The Supplier shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
c. The Contract shall be governed by these Terms and Conditions and any documents made a part of the Contract by specific reference in the Supplier’s quotation. For the avoidance of doubt, any terms and conditions of the Customer which conflict with these terms and conditions shall be null and void. Acceptance of delivery of the goods and / or the supply of services shall be conclusive evidence that the Customer accepts that the Supplier’s terms and conditions apply.
3. PRICE AND PAYMENT
a. The price for the supply of goods and services are as set out in the Supplier’s Quote
Document. The Supplier shall invoice the Customer on delivery.
b. The price of goods and services is exclusive of packaging, delivery and insurance.
c. The price of goods and services is exclusive of VAT.
d. Invoiced amounts shall be due and payable once the goods have been delivered. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 4% per annum above the base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
4. SPECIFICATION OF THE GOODS & SERVICES
All goods and services shall be required only to conform to the specification in the Specification Document/s. No representation written or oral, correspondence or statement shall form part of the contract.
a. The date of delivery specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the contract and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
b. All risk in the goods shall pass to the Customer upon delivery.
c. Divisibility: Each delivery of goods and services pursuant to the Customer’s Purchase Order/ Contract is divisible. Each delivery made shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full and without deduction in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.
Title in the Goods shall not pass to the Customer until the Supplier has been paid in full for the Goods.
7. CUSTOMER`S OBLIGATIONS
i To enable the Supplier to perform its obligations under this Agreement the Customer shall:
a. fully co-operate with the Supplier.
b. provide the Supplier with any information reasonably required by the Supplier.
c. obtain all necessary permissions and consents which may be required before the commencement of the services.
d. comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
e. The Customer is responsible for ensuring that the Purchase Order and any Goods and/or Services Specifications are complete and accurate.
f. No responsibility is accepted by the Supplier for the accuracy or correctness of any information supplied by the Customer and the Customer confirms that the information is accurate and suitable.
ii The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 7.i
iii. Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Customer shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed and in respect of cancellations on lessthan ten working days’ written notice the full amount of the goods and services contracted for as set out in the Specification Document, and the Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and services and subject to the payment of the damages set out in this Clause.
iv. In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible and:
a. the Supplier shall have no liability in respect of any delay to the completion of any project;
b. if applicable, the timetable for the project will be modified accordingly;
c. the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
8. Scope of Supply
a. Only the Goods and/or Services stated in the Supplier’s Quotation are included in the Price shown in the Supplier’s Quotation. The Supplier will supply goods and services as per the Customer’s supplied specifications. The Customer warrants that the performance of the Services in accordance with the Services Specification Document is technically feasible and shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses, loss of profit, loss of reputation and allinterest, penalties and legal and other reasonable professional costs & expenses suffered or incurred by the Supplier if the Service Specification Document is not technically feasible.
b. The Customer will ensure that all Customer’s material supplied to the Supplier for the supply of goods and / or services is in good condition, of satisfactory quality and is fit for the purpose of the supply of the Goods and/or Services.
c. The Customer shall insure the Customer’s materials against any loss or damage however it is caused during the performance of services or the supply of the Goods or otherwise in connection with the Contract.
9. VARIATIONS TO THE SPECIFICATION DOCUMENT
a. The parties may at any time mutually agree upon and execute a revised Specification Document. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the revised Specification Document, which shall reflect the changed goods and/or services, price and any other terms agreed between the parties.
b. The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 10 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
c. Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
d. Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform this Agreement upon the basis of such amended.
10. QUALITY OF GOODS AND SERVICES
a. The Supplier warrants that goods delivered will conform in all respects to the Goods
Specification and all services supplied will conform to the Services Specification.
b. The Customer shall give in writing notice of the details of any Goods or Services that do not conform to the specification.
c. If the Customer does not give written notice of non-conforming goods or services, the Supplier will deem that the goods or services have been accepted.
d. The Supplier shall be given reasonable time and opportunity to examine non-conforming goods or services.
e. The Customer will transport non-conforming product back to the Supplier at the Supplier’s cost. The Supplier shall have the option to repair, replace or refund the price of non-confirming goods and/or services.
f. The Supplier will not be liable for any non-conforming goods or services when:
i· The Customer, after notifying the Supplier of non-conforming goods, makes any further use, installs, processes, alters or modifies the non-conforming goods.
ii· The Customer without written agreement of the Supplier, makes any further use of non-conforming goods, installs, processes, alters or modifies the non-conforming goods.
iii· The Supplier has followed drawings or specifications supplied by the Customer.
iv. If the defect in the non-conforming goods or services is caused by any modification, alteration, installation, commissioning, processing , fair wear & tear, abnormal storage, willful damage, negligence or working conditions for which the Supplier is not responsible.
v. The goods or services differ from the specifications to meet regulatory or statutory requirements.
vi. If the non-conformity in the goods or services is due to material/s supplied by theCustomer.
g. These Terms and Conditions apply to replaced or repaired goods and/or services.
The Customer shall indemnify the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any goods and/or services provided by the Supplier in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
12. LIMITATION OF LIABILITY
a. Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
b. The Supplier shall have no liability in the supply of services providing the Supplier has conformed with its duties to use reasonable skill & care and followed the Service Specification, whether in contract, tort, breach of statutory duty, misrepresentation or otherwise, in respect of any loss or damage caused by the Supplier, its employees, agents, consultants or sub-contractors to the Customer’s material during the performance of the services.
c. This recognises:
i. The Suppliers inability to accept the risk of the cost of replacing or repairing any Customer’s material in relation to which services are being performed.
ii. The difference in value between the Customer’s material and the price payable for the services.
iii. The risk of defects being identified or arising in the Customer’s material during the performance of the services.
iv. The Customer’s obligation to insure the material against loss or damage however caused which may occur during the performance of the services or the supply of the goods or otherwise in connection with the contract.
d. In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.
e. Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
a. the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so.
b. the other party commits a material breach of this Agreement which cannot be remedied under any circumstances.
c. the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect.
d. the other party ceases to carry on its business or substantially the whole of its business.
e. the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
14. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
15. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
16. INDEPENDENT CONTRACTORS
The Supplier and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the goods and/or services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Supplier.
18. SEVERABILITY If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email,
personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is
proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
21. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
22. THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
23. GOVERNING LAW AND JURISDICTION
The Proper law of the Contract shall be Scottish Law and the parties to the Contract submit to the non-exclusive jurisdiction of the Courts of Scotland. If any part of the Contract is held to be unenforceable the remainder of the Contract shall not be affected.