Terms and Conditions
GENERAL TERMS & CONDITIONS OF CONTRACT FOR DESIGN, SUPPLY, CONSULTANCY, INSTALLATION AND OTHER WORKS CARRIED OUT FROM TIME TO TIME
|Rendesco||means Rendesco Limited of 14 Rodney Road, Cheltenham, GL50 1JJ, UK or any subsequent address.|
|Client||means the person or organization named as such in the Proposal.|
|Completion||means the completion of the Works as referred to in Condition 13.|
|Contract||means the agreement between Rendesco and the Client for the execution of the Works, being the Proposal, the Order Form, and these Conditions.|
|Contract Price||means the sum stated in the Proposal as the price payable to Rendesco for the execution of the Works.|
|Cost||means all expenses and costs incurred including overhead and financing charges together with an allowance for profit.|
|Date for Completion||means the date agreed between Rendesco and the Client as the date for completion of the Works.|
|Order Form||means the unconditional written acceptance by the Client with reference to the Works set out in the Proposal.|
|Plant||means the equipment and goods to be provided by Rendesco either directly or through others in accordance with the Proposal.|
|Proposal||means the Rendesco Proposal or Quotation to which these conditions are annexed.|
|Services||means the plant and/or services to be provided by Rendesco either directly or through others in accordance with the Proposal.|
|Specification||means the specifications, performance details or description of any Services as set out in the Proposal or as subsequently set out in further agreements in writing between Rendesco and the Client.|
|Works||means all work to be done by Rendesco under the Contract.|
Every Proposal, Estimate or any variation subsequent to the initial Quotation will be subject to these Conditions of Contract. These Conditions of Contract will prevail over any conditions of purchase of the Client unless otherwise accepted in writing by Rendesco. No variation shall be valid unless committed to writing and signed by both parties.
2 ACCEPTANCE OF PROPOSAL
The terms of the Proposal are open for acceptance by the Client within the time stated therein or, if none is stated, within 30 days from the date of the proposal. Acceptance of this Proposal either by the Order Form or by other written acceptance is deemed to signify acceptance of Rendesco’s offer embodied in the Proposal and acceptance of these Conditions of Contract. Any verbal acceptance will be of no effect until confirmed in writing, which may be by letter, facsimile or email. Any terms and/or conditions contained or implied in any order or other written acceptance shall be of no effect unless specifically agreed in writing by Rendesco.
3.1 The Proposal is based upon information supplied by the Client to Rendesco. In the event that information is found to be inadequate Rendesco will not accept liability and the Client will reimburse Rendesco for any extra costs as necessary.
3.2 The obtaining of any licences, permits, consents, or approvals necessary to enable Rendesco to provide the Services to the Client will be the responsibility of the Client. Nothing in these Conditions of Contract will absolve Rendesco of its duties and responsibilities under the law in regard to health and safety.
- If the price to Rendesco of performing its obligations under the Contract are increased or reduced by reason of the coming into force of legislation after the date of the Proposal, the amount of such increase or reduction shall be added to or deducted from the Contract Price as appropriate.
- The Proposal is based upon taxes payable at the date of the Proposal. If changes occur to the tax payable after the date of the Proposal, then the price shall be adjusted accordingly.
- If Rendesco is delayed, or has work disrupted by the Client or others, then the additional costs of such delay or disruption will be added to the price for the provision of Services.
- The price excludes any grant which may be available.
- Following the placement of an order by the client and the acknowledgement thereof by Rendesco the client has seven days from the date of acknowledgement in which to cancel the order without penalty
- RISK AND OWNERSHIP
- Risk in any Plant delivered as part of the Services shall pass to the Client on the date of the delivery of such Plant to the site or other agreed delivery point.
- Notwithstanding delivery and passing of risk in the Plant, ownership in the Plant shall not pass to the Client until Rendesco has received payment for such Plant in accordance with the payment terms set out in the Proposal.
- Until title passes, the Client shall hold any Plant supplied under this contract for Rendesco and shall mark them so that they can at all times be identified as being in the ownership of Rendesco.
- Rendesco shall be responsible for making good by repair or replacement at its expense any defect in any part of the Works which may appear or occur prior to the expiry of the period of 12 months after Completion and which arise from any defective materials, workmanship or design. Rendesco’s obligations under this Condition shall not apply to any defects caused by designs or specifications supplied buy the Client or by builds, structures, foundations, access ways or work, equipment or material provided by the Client, nor to any damage to any part of the Work in consequence thereof.
- Save as expressed in this Condition (and subject always to Condition 15.2), neither Rendesco nor its subcontractors, servants or agents shall be liable, whether in contract, in tort (including but not limited to negligence) or by reason of breach of statutory duty or otherwise, in respect of defects in or damage to the Works or any part thereof, or for any damage or loss of whatsoever kind attributable to such defects or damage or any work done or service or advice rendered in connection therewith.
- Rendesco shall have no liability in relation to a defect which is not notified to Rendesco within fourteen (14) days of the Client discovering, or could reasonably be expected to discover the same, nor during any period during which an invoice should have been paid but has not been paid.
- In the event that Rendesco is called to Site to attend a defect which is found to be outside of Rendesco’s liability, then the Costs incurred will be reimbursed to Rendesco on a day work basis determined by Rendesco.
- In the event of a valid warranty claim by the Client, Rendesco shall be entitled (at Rendesco’s discretion) either to repair or replace the defective part of the Services free of charge and Rendesco shall have no further liability to the Client in respect of consequential loss.
- INDEMNITY AND INSURANCE
Rendesco will maintain an appropriate level of insurance to meet its legal liability for injury to its own personnel, injury to third parties or damage caused to the property of others in the course of the work under the Services to be provided.
- LIABILITY OF RENDESCO
8.1 Rendesco shall not be liable for any indirect or consequential losses arising from the provision of Services, including without limitation any delays, loss of use or loss of profits.
- The liability of Rendesco shall be limited to the re-performance of the Services, in so far as it is possible, to the extent necessary to remedy any material performance deficiencies provided that the Client gives written notice of the deficiencies as provided in clause 6.1 above.
- Rendesco accepts no liability for any effect that drilling, grouting, trenching or other ground works may have on foundations, services or structures, and the Client should arrange for his other contractors to advise on the potential impact of such works and approve the position and construction of such works.
- Rendesco shall be reliant upon information provided by the Client, it’s Architects, Engineers and other contractors and no liability is accepted by Rendesco for the adequacy or correctness of such information. In the event that basic design information is not provided by the Client and Rendesco derives its own figures for the purposes of providing the Proposal, then the Client shall be responsible for approval of such figures prior to the production of the final Specification or any subsequent variation.
- CLIENT’S OBLIGATIONS
- Where the performance of the Services includes installation or commissioning of equipment at a site, the following services shall be provided to Rendesco free of charge:
- Off loading, dry storage and protection of equipment and materials.
- Protection of partially complete and complete installations.
- Provision of holes, chases and slots in structures as required and subsequent making good, including redecoration.
- Free and adequate water supply adjacent to the point of use.
- Free and adequate temporary electrical power and lighting at the point of use.
- Washing and toilet facilities.
- Electrical and plumbing connections and the work of other trades including necessary attendance during commissioning.
- Central point on site for general rubbish to be deposited, for clearance off site by others.
- Where the Client is responsible for the provision of services by its own personnel or by others to assist Rendesco, the Client shall take all reasonable actions to ensure the timely and efficient performance of such services. In the event of the anticipated services being unavailable or delayed for whatever cause, the Client and Rendesco shall agree upon remedial action and the cost thereof which shall be added to the Contract Price.
- The Client shall obtain all consents, wayleaves and approvals in connection with the regulations and by-laws of any local or other authority which are applicable to enable the completion of the installation.
- In the event that the Client is in breach of any of his obligations, then the additional cost reasonably incurred by Rendesco as a result shall be added to the Contract Price.
- OBLIGATIONS OF RENDESCO
- Rendesco will supply the Plant and complete the Works as described in the Proposal. Rendesco reserves the right to make changes in relation to the specifications of any materials and equipment forming part of the Plant which are required to conform to any legal requirements or which do not materially affect the quality or performance of the Plant.
- Rendesco accepts no liability for failure to attain any potential performance figures, unless such figures are agreed and set out in full in the Proposal and specifically guaranteed therein.
- Without prejudice to Conditions 10.1 and 10.2 Rendesco undertakes to exercise all reasonable skill and care in the design, manufacture and installation of the Plant and in carrying out the Works. All other warranties implied by statute or common law are hereby excluded.
- SUSPENSION OF WORK, DELIVERY OR INSTALLATION
- The Client or its representative may at any time instruct Rendesco to suspend the progress of the installation.
- If by reason of any delay or failure on the part of the Client, or from any cause for which the Client or some other contractor employed by him is responsible, Rendesco is prevented from either:
- Delivering to the Site any Plant which is ready for delivery at the time for delivery thereof: or
- Installing any Plant which has been delivered to the Site
then the Client’s representative shall be deemed to have given instructions to suspend the progress of the Works to the extent that progress is dependent on the delivery or installation of such Plant.
- In the event of any delay or fault on the part of the Client, or from any cause for which the Client or some other contractor employed by him is responsible, any cost incurred by Rendesco shall be added to the Contract Price.
- The Client must notify Rendesco of any additions, modifications or omissions to the schedule of works set out in the Proposal in writing only. As soon as possible after having received any such instruction, Rendesco shall notify the Client of any addition to or deduction from the Contract Price.
- In cases where Plant is already manufactured, or in the course of manufacture, or any work done or drawings made that require to be altered, Rendesco shall be entitled to be paid the Cost of such alterations.
- When the Works are complete, Rendesco shall notify the Client, and Rendesco shall be deemed to have completed the Works on the date so notified.
- Rendesco shall rectify or complete any outstanding items of work which have been notified within fourteen (14) days after the date of Completion by the Client. In the event that Rendesco fails to so rectify or complete within a reasonable period, the Client may arrange for the outstanding work to be done and the reasonable cost thereof shall be deducted from the Contract Price.
- If, by reason of any variation ordered pursuant to Condition 12 or of any act or omission on the part of the Client or of any industrial dispute or by reason of circumstances beyond the reasonable control of Rendesco arising after the acceptance of the Proposal, Rendesco shall have been delayed in the completion of the Works, whether such delay occurs before or after the Date for Completion, then provided that Rendesco shall as soon as reasonably practicable have given to the Client’s representative a notice of it’s claim for an extension of time, the Date for Completion shall be extended by such time as may be reasonable.
- Payments shall be made to Rendesco in accordance with the stage payments set out in the Proposal. An invoice for the deposit will be raised when the Client’s signed Order Form is received
- Unless otherwise expressly stated in the Proposal all figures and sums are VAT exclusive and VAT will be added to all invoices in accordance with the law and rate prevailing at the time. Payment is due on the date of the invoice.
- Unless otherwise stated in the Proposal, the final date for payment of an amount due in an invoice shall be fourteen (14) days from the date of receipt by the Client of Rendesco’s invoice.
- If the Client fails to pay the amount, or any part thereof, due to Rendesco by the final date for its payment the Client shall pay to Rendesco in addition simple interest thereon for the period until such payment is made. Payment of such interest shall be treated as a debt due to Rendesco by the Client. The rate of interest shall be eight per cent (8%) over the Base Rate of the Bank of England which is current at the final date for payment. Any payment of simple interest under this condition shall not in any circumstances be construed as a waiver by Rendesco of its right to proper payment of the principal amounts due.
- Without prejudice to any other rights and remedies which Rendesco may possess if the Client shall fail to pay Rendesco in full by the final date for payment of any invoice and such failure shall continue for seven (7) days after Rendesco has given the Client written notice of its intention to suspend performance of its obligations under this Contract and the ground or grounds in which it is intended to suspend performance, then Rendesco may suspend performance of its obligations under the Contract until payment in full is made.
- ACCIDENTS, DAMAGE AND INSURANCE
- The Client shall at all times be responsible for the care of the Works on the Site.
- Except as hereinafter mentioned the Client shall be liable for and shall indemnify Rendesco against all claims in respect of personal injury or death and in respect of loss or damage to any property which arises out of or in consequence of the execution of the Works whilst the Client has responsibility for the care thereof and against all demands, costs, charges and expenses arising in connection therewith. The Client shall not be liable under this Condition for, and Rendesco shall indemnify him from and against, any claims in relation to death or personal injury and loss of or damage to property to the extent that the same is caused by the negligence of Rendesco.
- Rendesco will maintain insurance cover for those commercial risks and at such levels of cover that it deems appropriate. In particular, it will maintain an appropriate level of insurance to meet its legal liability for injury to its own personnel, and injury to third parties.
- The Client shall, for the benefit of himself and Rendesco, insure and keep insured the full value of the Works and the cost of professional fees against loss or damage to the Works and loss and damage to any property including without limitation, the property of the Client arising out of the carrying out of the Works. The interest of Rendesco shall be noted on the policy or policies taken out by the Client pursuant to this Condition and the Client shall whenever requested by Rendesco produce a copy of such insurance policy or policies. Without prejudice to the rights of Rendesco, if the Client fails to insure in accordance with this Condition, Rendesco shall be entitled to effect such insurance as it considers appropriate, and the cost thereof shall be added to the Contract Price.
- LIMITATIONS OF LIABILITY
- Rendesco shall not be liable to the client by way of indemnity or by reason of any breach of the Contract or of statutory duty or by reason of tort (including but not limited to negligence) for any loss of profit, loss of use, loss of production, loss of contracts or for any financial or economic loss or for any indirect or consequential damage whatsoever that may be suffered by the Client.
- Subject to Condition 15.2, the liability of Rendesco to the Client under any circumstances shall be limited to the Contract Price.
- Rendesco shall have no liability to the Client (a) for or in respect or in consequence of any loss of or damage to the Client’s property howsoever caused which shall occur after the expiration of the period of 12 months after Completion; and (b) in relation to defects in the Works, unless it has first been given the opportunity to make good defects pursuant to Condition 6.1.
- Rendesco’s liability in respect of any design of the Works is limited to the exercising of the reasonable skill, care and diligence to be expected of a designer experienced in carrying out design works of a similar size, scope and complexity to the design of those works.
- FORCE MAJEURE
- Force Majeure means any circumstances beyond the reasonable control of either of the parties.
- If either party is prevented from, or delayed in, performing any of his obligations under the Contract by Force Majeure, then he may notify the other party of the circumstances constituting the Force Majeure and of the obligations performance of which is thereby delayed or prevented, and the party giving the notice shall thereupon be excused the performance or punctual performance, as the case may be, of such obligations for so long as the circumstances of prevention or delay may continue.
- Notwithstanding that Rendesco may have been granted under Condition 13.3 an extension of the Date for Completion of the Works, if by virtue of Condition 17.2 either party shall be excused the performance of any obligation for a continuous period of sixty (60) day, then either party may at any time thereafter, and provided that such performance or punctual performance is still excused, by seven (7) days notice to the other, terminate the Contract.
- If the Contract is terminated under Condition 17.3 the Client shall pay to Rendesco:
- the Cost of materials or goods reasonably ordered for the Works or for use in connection with the Works which have been delivered to Rendesco or of which Rendesco is legally liable to accept delivery;
- the amount of any other expenditure which in the circumstances was reasonably incurred by Rendesco in the expectation of completing the whole of the Works;
- the reasonable Cost of removal of Rendesco’s Equipment and the return thereof to Rendesco’s works in the United Kingdom or to any other destination at no greater Cost.
- In the event of the Client:
- failing to pay Rendesco by the final date for payment the amount due under any invoice of Rendesco; or
- suspending or being deemed to have given instructions to suspend the progress of the Works pursuant to Condition 11.1 and such suspension having continued for more than sixty (60) days
Rendesco shall be entitled without prejudice to any other rights or remedies under the Contract to terminate the Contract by giving seven (7) days notice to the Client’s representative.
- In the event of either party (the insolvent party) making a composition or arrangement with his creditors, becoming bankrupt or (being a company) making a proposal for a voluntary arrangement for a composition of debts or scheme of arrangement to be approved in accordance with the Companies Act 1985 or the Insolvency Act 1986 (as the case may be) or any amendment or re-enactment thereof, or having a provisional liquidator appointed, or having a winding up order made or passing a resolution for voluntary winding up (except for the purposes of amalgamation or reconstruction) under the Insolvency Act 1986 or any amendment or re-enactment thereof, or having an administrator or an administrative receiver appointed , then the other party shall be entitled to terminate the Contract by giving seven (7) days notice to the insolvent party.
- In the event of termination under Condition 18.1 or in the event of Rendesco giving notice under Condition 18.2, the Contract Price (including, for the avoidance of doubt any additions or deductions which may properly be made thereto under the Contract) shall be payable forthwith to Rendesco by the Client, save that Rendesco will give credit to the Client for sums already paid by the Client under the Contract.
- ASSIGNMENT AND SUBCONTRACTING
Rendesco may employ any contractor it considers suitably qualified to perform any of Rendesco’s obligations under this Contract, but such action shall in no way reduce the responsibility of Rendesco to complete the Works in accordance with this Contract.
- ENTIRE AGREEMENT AND PRECEDENCE OF DOCUMENTS
- These Conditions, together with the Proposal and Letter of Acceptance constitute the entire agreement between Rendesco and the Client in relation to the subject matter of this Contract. Any other representations, whether written or oral which would otherwise be implied (by law or otherwise) do not form part of this Contract. Any previous agreement, whether written or oral, between the parties in relation to the subject matter of this Contract is superseded.
- In the event of any conflict or inconsistency between the documents forming the Contract, the order of precedence shall be (a) the Proposal, (b) these Conditions, and (c) the Letter of Acceptance.
- In the event that the Client proffers his own conditions such conditions shall be disregarded and it shall be these Conditions which apply.
21 APPLICABLE LAW
The Contract shall in all respects be governed by and interpreted in accordance with the laws of England and English law shall govern the procedure of any arbitration.