The following terms and conditions apply to the supply of services and the sale of goods to you (‘the Customer’) by APS Projects Ltd (‘the Supplier’).
1.1 In these Conditions the following definitions apply:
Business Day means a day other than Saturday, Sunday and public holidays;
Conditions means the terms and conditions set out in this document;
Contract means the agreement between the Supplier and the Customer for the supply of services and or the sale of Goods incorporating these Conditions;
Delivery Location means the address for delivery of the Services and or Goods as set out in the Order or the Supplier’s quotation (as applicable);
Force Majeure means an event or sequence of events beyond the Supplier’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster or general weather conditions; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption, delay or failure of supplies to the Supplier of power, fuel, water, transport, equipment, workmen or telecommunications service, or material required by or for performance of the Contract;
Goods means any goods to be supplied by the Supplier to the Customer with the Services;
Order means the Customer’s order for the Goods and/or Services from the Supplier;
Services means the services supplied to the Customer by the Supplier as set out in the Order or the Supplier’s quotation;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods and/or Services.
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.4 clause headings do not affect their interpretation;
1.2.5 general words are not limited by example;
1.2.6 references to any legislation will be construed as a reference to that provision as amended, reenacted or extended at the relevant time; and
1.2.7 references to ‘writing’ includes faxes but not emails.
2 Application of these terms and conditions
2.1 These Conditions apply and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.3 No variation of these Conditions or to an Order, or to a quotation from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Supplier.
2.4 Each Order by the Customer to the Supplier will be deemed to be an offer to purchase Services and or Goods subject to the Conditions.
2.5 An Order will be accepted by the Supplier only when it confirms so to the Customer at its sole discretion. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion. If the Supplier accepts an Order by confirming the same to the Customer, then there will be a binding agreement in place between the Supplier and the Customer for the supply of the relevant Goods and or Services to the Customer. No Order which has been accepted by the Supplier shall be cancelled by the Customer except with the written agreement of the Supplier.
2.7 The Supplier’s employees or agents are not authorised to make any representations concerning the Services or Goods unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed but nothing in these Conditions affects either party’s liability for fraudulent misrepresentation.
2.8 The Customer shall be responsible to the Supplier for ensuring the accuracy of any Order and giving the Supplier such information as may be necessary for the Supplier to perform the Contract in accordance with the Conditions.
2.9 The Supplier may at any time on giving written notice to the Customer make changes to the Services which are necessary to comply with any applicable safety or other statutory requirements.
3 Quotations and Price
3.1 Any quotation by the Supplier for the provision of Goods and/or Services will be deemed to be:
3.1.1 an invitation to treat (and shall not be an offer) by the Supplier to supply Services and/or Goods on and subject to the Conditions; and
3.1.2 will be will be valid for 28 days only from the date of issue (unless otherwise stated on the quotation); and
3.1.3 subject to re-measurement on completion of the performance of the Services.
3.2 Quotations include anticipated transport, travel and subsistence costs but do not include: –
3.2.1 electricity required for the supply of Services which the Customer is required to supply at its own cost;
3.2.2 unloading, hoisting, storage or distribution of materials to storage which the Customer is required to do at its own cost;
3.2.3 scaffolding and platforms required for the performance of the Services which will be provided by the Customer at its own cost;
3.2.4 the cost of any caretakers or porters who are to provide access to the Delivery Location which the Customer shall arrange at its own cost
3.3 Quotations are not binding on the Supplier and the Customer acknowledges that the Supplier may need to make charges in addition to the charges set out in its quotation. This can occur for a number of reasons, including (but not limited to) if: –
3.3.1 the Customer requests additional or different Goods and or Services (and the Supplier has agreed to make such changes or additions);
3.3.2 additional or different Goods and or Services are necessary in the opinion of the Supplier to comply with applicable health and safety or statutory requirements (and the Supplier has agreed to such changes);
3.3.3 additional or different Goods and or Services are necessary in the opinion of the Supplier as a result of incorrect or misleading information provided to the Supplier;
3.3.4 it becomes apparent to the Supplier that the amount of Goods and or Services or the type of Goods and or Services needed to satisfy the Customer’s request(s) is different to what was notified when the quotation was provided;
3.3.5 there has been change, for example to the Delivery Location, Equipment, other goods, equipment, items or premises which affect the supply of the Goods and or Services;
3.3.6 the structure to which Goods are to be fixed are not suitable for that purpose in the opinion of the Supplier;
3.3.7 the supply of the Goods and or Services are interrupted (other than at the fault of the Supplier). The Supplier will inform the Customer in advance of any such additional cost where possible.
3.4 Subject to clause 3.3 the price for the Services and the Goods (‘the Price’) will be as set out in the Supplier’s quotation or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.
3.5 The Price does not include VAT. VAT will be charged by the Supplier at the then-applicable rate.
3.6 Where the Contract is for the supply of Goods only, the Price is payable in full in cleared funds before Goods will be despatched to the Customer.
3.7 Unless otherwise agreed in writing (and subject to clause 10.3), the Price is payable in full in cleared funds within 30 days of the date of the Supplier’s invoice without any deduction or set-off (other than as required by law). Time for payment of the Price is of the essence.
3.8 The Supplier shall be entitled to charge the Customer storage charges at a rate of 2.5% per month of the Contract price if the Supplier is required to hold Goods (or other materials relating to the supply of Goods and or Services under the Contract) for more than 30 days after the estimated delivery date.
3.9 The Supplier reserves the right to claim statutory interest at 8% above the Bank of England interest rate in force on the date that any payment to it from the Customer becomes overdue and at any subsequent rate where the reference rate changes and the debt remains unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as may be amended from time to time.
3.10 Without prejudice to or limiting any other rights that the Supplier may have, where any sums due to the Supplier are not paid in full in cleared funds by the date due the Supplier may:
(a) suspend or cancel the delivery or supply of Goods and/or Services to the Customer;
(b) terminate all and any Contracts with the Customer on giving written notice.
3.11 If any deposit is paid to the Supplier in respect of the Goods and or Services then such deposit will not be refunded to the Customer. The Supplier will not pay interest on any deposit held.
4.1 The Services will be supplied at and the Goods will be delivered to the Delivery Location.
4.2 Goods supplied will be deemed delivered on arrival of the Goods at the Delivery Location.
4.3 Where the Contract includes Services as well as Goods, delivery of Goods and performance of Services will not commence until such time as the Supplier receives from the Customer written approval of its workings, drawings and any specifications.
4.4 Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
4.5 The Supplier will use its reasonable endeavors to meet estimated delivery dates and dates provided for the performance of the Services but such dates are approximate only, and time of delivery of Goods and time for performance of Services is not of the essence.
4.6 The Supplier will not be liable for any delay in or failure of delivery of the Goods or any delay in or failure of the supply of Services caused by:
4.6.1 the Customer’s failure to:
(i) make the Delivery Location (or other location, equipment or items necessary for the delivery of the Goods and or Services) available, (ii) prepare the Delivery Location in accordance with the Supplier’s instructions as required for the provision of the Goods and or Services or (iii) provide the Supplier with adequate instructions, for delivery or otherwise relating to the Goods or Services or (iv) any delay or failure by any third party to supply goods or services to the Customer; or
4.6.2 an event of Force Majeure; or
4.6.3 the Customer requesting additional or alternative Goods and or Services which is agreed by the Supplier; and the Supplier shall have the right to extend all agreed execution programs as a result of any such failure, event or request.
4.7 The Supplier reserves the right to delay delivery of Goods and or performance of Services in the event that the Delivery Location (or such other location it is necessary to attend) is not (in the reasonable opinion of the Supplier) suitable for delivery of the Goods or performance of the Services. Without prejudice to the generality of the foregoing the Supplier may delay delivery of Goods and or performance of Services if: –
4.7.1 the Delivery Location is not sealed and watertight;
4.7.2 the heating is not working at the Delivery Location;
4.7.3 wet trades have not completed their works or the Delivery Location is not fully dry;
4.7.4 plaster is not thoroughly dry;
4.7.5 clear working areas are not available; or
4.7.6 safe storage is not available near to the Delivery Location.
4.8 If, 10 Business Days after the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. If such Goods are resold or otherwise disposed of, the Supplier will:
4.8.1 invoice the Customer for reasonable storage charges and costs of resale; and
4.8.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the price paid by the Customer for the Goods.
5 Goods, Title and risk
5.1 The Supplier shall have the right to substitute for Goods specified in the Contract for other goods or materials provided such substitutes are of no less strength and have substantially the same quality and appearance as the Goods specified in the Contract.
5.2 The Customer acknowledges that some Goods supplied by the Supplier are fragile and require delicate handling.
5.3 The Customer must notify the Supplier within 2 Business Days of delivery if any Goods are found to be damaged or faulty. The Customer shall provide such evidence of alleged damage or fault as the Supplier may reasonably request. The Supplier may at its discretion replace or refund the price of damaged or faulty Goods. If the Supplier requests that such Goods are returned to it then the Customer will return such Goods in their original packaging.
5.4 If the Customer discovers within 2 Business Days of delivery of the Goods that they have ordered Goods of the wrong specification then the Supplier may at its discretion allow the return of such Goods and supply alternative Goods to the Customer provided that: –
5.4.1 such alternative Goods being available;
5.4.2 the price of the alternative Goods being agreed by the Customer;
5.4.3 the Customer bearing the cost of returning the Goods to the Supplier; and
5.4.4 the Customer paying an administration charge of up to 20% of the value of the Goods being returned;
5.4.5 Goods made to the Customer’s specification cannot be returned. The risk in the Goods returned to the Supplier under this clause 5.4 remains with the Customer until such Goods have arrived at the Supplier’s premises and the Supplier reserves the right to charge the Customer for Goods found damaged on arrival. Such Goods are to be returned to the Supplier in their original packaging.
5.5 Risk in the Goods will pass to the Customer on arrival of the Goods at the Delivery Location. Unless otherwise agreed in writing the Customer will unload the Goods at its own cost and risk.
5.6 Title to the Goods will not pass to the Customer until the Supplier has received payment in full and cleared funds for all charges due in respect of the relevant Contract under which the Goods are supplied.
5.7 Until title to the Goods has passed to the Customer, the Customer will:
a. hold the Goods as bailee for the Supplier;
b. store the Goods separately from all other material in the Customer’s possession;
c. take all reasonable care of the Goods and keep them in reasonable and saleable condition;
d. insure the Goods: (i) with a reputable insurer (ii) from the time and date of delivery (iii) against all risks (iv) for an amount at least equal to the Price;
e. ensure that the Goods are labeled and clearly identifiable as belonging to the Supplier;
f. not remove or alter any mark on or packaging of the Goods;
g. inform the Supplier as soon as possible if it becomes subject to any of the events set out in clause 10.1;
h. provide the Supplier such information concerning the Goods as the Supplier may request from time to time.
5.8 If, at any time before title to the Goods has passed to the Customer, the Customer has, or the Supplier reasonably believes the Customer is likely to, become subject to any of the events specified in clause 10.1, the Supplier will be entitled to:
5.8.1 repossess all or any of the Goods and to take possession of all or any goods incorporating Goods; and
5.8.2 require the Customer at the Customer’s expense to redeliver the Goods to the Supplier and if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them with such transport as may be necessary or instruct agents to do so.
5.9 The Customer warrants that it is not at the time of entering into the Contract insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
6 Supplier’s obligations
6.1 The Supplier will carry out the Services with reasonable care and skill. Subject to clause 6.3 if any defect is discovered in the Supplier’s workmanship within 6 months of performance of the Services, then provided that: –
6.1.1 the Customer informs the Supplier of such alleged defect promptly and in any event within 2 Business Days of discovery; and
6.1.2 the Customer provides the Supplier with such access to the Delivery Location and alleged defect as the Supplier may request; the Supplier shall inspect such alleged defect and if in the reasonable opinion the alleged defect is due to a defect in the workmanship of the Supplier then the Supplier shall carry out such further Services as may be reasonably necessary to rectify such defect. Following such repair, the Supplier shall have no further liability to the Customer.
6.2 For the avoidance of doubt the warranty in Clause 6.1 does not extend to Goods not manufactured by the Supplier. The Supplier excludes all warranty and guarantee in respect of Goods to the fullest extent permitted by law.
6.3 The Supplier will not be liable for any defects arising:
6.3.1 where such defect arises by reason of fair wear and tear or could be expected to arise in the normal course, wilful damage, negligence, or abnormal working or environmental or natural conditions;
6.3.2 where such defect arises from any drawing, design, information, data, requirement or specification supplied by the Customer or by a third party on the Customer’s behalf;
6.3.3 if the Supplier has notified the Customer of the possibility of defect arising as a result of the Customer’s instructions, requirements or Order;
6.3.4 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions as to storage, installation, fitting, commissioning, use, maintenance or after-care;
6.3.5 where the defect is due to any act or omission of the Customer or any third party;
6.3.6 where the Customer or any third party repairs or alters any Services and or Goods without the Supplier’s prior written agreement;
6.3.7 if the total price due to the Supplier under the Contract has not been paid by the due date for payment;
6.3.8 if the Customer is otherwise in breach of its obligations under the Contract.
6.4 Subject as expressly provided in these Conditions, and except where the Goods and or Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
6.5 The Customer acknowledges that it does enter into the Contract in reliance on any representation, warranty or other provision except as expressly provided in these Conditions. Nothing in these Conditions excludes any liability for fraud.
6.6 The benefit of this clause 6 is not assignable by the Customer to any third party without the written consent of the Supplier.
6.7 The Supplier will perform the Services in accordance with acceptable standards common within the UK Partitioning Industry. If the Customer requires any other standard of Services, then such standards must be provided in writing to the Supplier with the Customer’s Order.
7 Customer’s Obligations
7.1 The Customer will at its own cost and expense:
7.1.1 place all Orders on the terms of the Conditions and ensure that their contents are complete and accurate;
7.1.2 ensure that each part of any specification or other information which it provides is complete and accurate and contains all information the Supplier may require;
7.1.3 co-operate fully with the Supplier in relation to delivery or collection of the Goods and performance of the Services and comply with such instructions that the Supplier may issue during the provision of the Goods and or Services;
7.1.4 ensure that the Delivery Location (and such other location attended in the provision of the Goods or Services) and equipment that it is to supply for the provision of the Goods and or Services is available and accessible at the estimated time for delivery of the Goods and or performance of the Services and ensure that the Delivery Location (and such other location attended in the provision of the Goods or Services) and equipment that it is to supply is available and accessible for inspections as may be requested by the Supplier prior to the provision of the Goods and or Services;
7.1.5 be responsible for the security of the Delivery Location and its own property and equipment;
7.1.6 take all such steps as may be necessary to ensure and preserve the health and safety of the Supplier, its employees and sub-contractors on any site that may be attended by them in connection with the provision of the Services and or Goods and ensure that the Delivery Location (and such other location attended in the provision of the Goods or Services) and equipment supplied by the Customer is safe and compliant with all relevant health and safety laws and regulations;
7.1.7 provide the Supplier with such information as it reasonably requires (including but not limited to information as to any asbestos or other materials that may cause harm present at the Delivery Location or any other location attended in the provision of the Goods and or Services);
7.1.8 provide the Supplier with such health and safety information that may apply to the Delivery Location or any other site it attends in the provision of the Goods or Services;
7.1.9 protect its own property and belongings (including but not limited to its carpets, furniture, partitions, decoration, lifts, staircases, floors, windows) during the delivery of the Goods and or performances of the Services;
7.1.10 ensure that there is a constant and safe supply of electricity at the Delivery Location (or such other location as may be necessary) sufficient for the delivery of the Goods and or performance of the Services;
7.1.11 ensure that appropriate welfare facilities (including but not limited to toilet facilities) are available to the Supplier’s employees, agents and sub-contractors during the provision of the Goods and or Services;
7.1.12 supply such scaffolding and platforms as the Supplier may request for the delivery of the Goods and or performance of the Services;
7.1.13 ensure that all necessary permissions, consents, licenses and approvals are obtained in relation to the performance of the Services (including but not limited to planning permission, building regulation approval and landlord’s consents); and the Supplier will not be responsible or liable to the Customer for any failure of the Customer to comply with its obligations.
7.2 Where the Supplier is to provide Services under the Contract, it is recommended that the Customer seek building regulations prior to commencement of the Services. The Supplier shall not be responsible or liable for any delay or failure of the Customer to do so.
8.1 The Supplier does not limit or exclude its liability:
8.1.1 for death or personal injury caused by its (or its employees) negligence; or
8.1.2 for breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982;
8.1.3 for defective products under the Consumer Protection Act 1987; or
8.1.4 for fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1 the Supplier’s total aggregate liability in respect of all claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with the Contract shall in no event exceed the amount of the Supplier’s charges for the Goods and Services and under the Contract in connection with which such claim is made.
8.3 Subject to clause 8.1 the Supplier shall not be liable for: –
8.3.1 any indirect, special or consequential loss or damage, or
8.3.2 any loss of profit, turnover, business opportunity or damage to goodwill (whether direct or indirect), howsoever arising.
8.4 Without prejudice to the generality of the foregoing, the Supplier shall not be responsible or liable for: –
8.4.1 any breach by the Customer of the Contract (including but not limited to these Conditions);
8.4.2 any act or omission of the Customer or any third party;
8.4.3 goods or services supplied to the Customer by any third party;
8.4.4 the cost of repairing any pre-existing faults or damage to any site that we discover in the course of the provision of the Goods or Services;
8.4.5 claims arising from or connected to Goods supplied by us but nominated or selected by the Customer or another third party where the Supplier has expressed doubts to the Customer in respect of such Goods availability, suitability, quality or performance;
8.4.6 damages or breakages to glass or glazing where the Services involve the removal or alteration of such glass or glazing; or
8.4.7 the failure of the Customer or any third party to follow the Supplier’s instructions as to storage, installation, fitting, commissioning, use, maintenance or after-care.
9 Force Majeure
9.1 The Supplier will not be liable if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that it promptly notifies the Customer of the Force Majeure event and its expected duration.
10.1 The Contract may be terminated forthwith at any time by the Supplier giving written notice to the Customer if:
10.1.1 the Customer commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 10 days of written notice to do so;
10.1.2 the Customer suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
10.1.3 the Customer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
10.1.4 the Customer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the Customer, or a winding-up order is made in relation to the Customer, other than solely in relation to a solvent amalgamation or reconstruction;
10.1.5 a receiver or administrative receiver may be or is appointed in relation to the Customer or any of its assets;
10.1.6 any creditor of the Customer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Customer’s assets, and such attachment or process is not discharged within 14 days;
10.1.7 the Customer takes or suffers any action similar to any of the above in any jurisdiction;
10.1.8 there is a material change in the management, ownership or control of the Customer;
10.1.9 the Customer suspends trading, ceases to carry on business, or threatens to do either;
10.1.10 the Customer, (being an individual) dies or ceases to be capable of managing his own affairs or there is a petition issued for his bankruptcy.
10.2 In addition to its rights under clause 10.1 the Supplier may suspend or terminate any Contract with the Customer at any time by giving written notice to the Customer if: –
10.2.1 the Customer has failed to pay any amount due under the Contract on the due date;
10.2.2 in the opinion of the Supplier there is risk to health and safety at the Delivery Location (or any other location attended in the provision of the Goods and or Services).
10.3 On termination of the Contract for any reason:
10.3.1 the Customer will immediately pay all invoices of the Supplier then outstanding and not disputed in good faith;
10.3.2 the Supplier will, within 30 Business Days, invoice the Customer for all Goods and Services delivered or collected or provided but not yet invoiced and the Customer will pay such invoice within 5 Business Days of the date of such invoice (unless the invoice is disputed in good faith);
10.3.3 Customer will within 5 Business Days return all materials, equipment and other property of the Supplier then in its possession or control; if it fails to do so, the Supplier may enter onto any premises owned by or under the control of the Customer and take possession of them;
10.3.4 the accrued rights and liabilities of the parties will not be affected; and
10.3.5 any clause which expressly or by implication are to survive termination will do so.
11.1 No set-off
All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless the Customer is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Supplier such additional amount as will ensure that the Supplier is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of these Conditions or the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the
Conditions and the Contract and the remaining provisions of the Conditions and the Contract will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out in the Order.
They may be given, and will be deemed received:
11.4.1 by first-class post: two Business Days after posting;
11.4.2 by hand: on delivery;
11.4.3 by fax: one Business Day after the fax transmission was sent.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
11.6 Rights of Third Parties
This Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The terms of the Conditions prevail over those of the Order.
11.8 Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
11.9 Succession and Assignment
This Contract will bind and benefit each party’s successors and personal representatives. The Customer may not assign any of its rights or obligations under this Agreement. For the avoidance of doubt the Supplier may engage sub-contractors to provide the Services or any part thereof.
11.10 Governing Law & Jurisdiction
This Contract will be governed by the laws of England and disputes will be submitted to the exclusive jurisdiction of the courts of England.