Interpretation
Definitions
Acceptance: means (i) in respect of Services, acceptance of the Services by the Customer which shall occur upon the presentation by RPL of a handover sheet to the Customer, and (ii) in respect of Goods, acceptance of the Services by the Customer which shall occur upon the presentation by RPL of a signed delivery note to the Customer. In each case ‘Acceptance’
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.4
Contract: the contract between RPL and the Customer for the sale and purchase of the Goods and Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and Services from RPL.
Deliverables: the deliverables set out in the Order produced by RPL for the Customer’s sole use in connection with the specific project agreed between the Customer and RPL.
Delivery Location: has the meaning given in clause 4.3.
Design Services: any Services pertaining to the design, planning, or the like of a specific project as agreed between the Customer and RPL.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings that is agreed in writing by the Customer and RPL.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form, the Customer’s written acceptance of RPL’s quotation or in such other document as may be utilised by the parties from time to time.
RPL: Roof Profiles Limited (t/a Structural Timber Frame), a company incorporated in Scotland (SC078995) with its registered office at Argyll Court, The Castle Business Park, Stirling, Scotland, FK9 4TT.
Services: the services (or any part of them) set out in the Order (including any Design Services).
Service Specification: the description or specification for the Services provided in writing by RPL to the Customer.
Valuation Date: means the last Business Day in each calendar month until completion of the relevant Services under the Contract (or as otherwise agreed between the Customer and RPL).
Interpretation
- a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- b) A reference to a party includes its successors and permitted assigns.
- c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
- d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- e) A reference to writing or written includes email.
Basis of Contract
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
- The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Goods and/or Services Specification are complete and accurate.
- The Order shall only be deemed to be accepted when RPL issues a written acceptance of the Order, at which point the Contract shall come into existence.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
- Any samples, drawings, descriptive matter or advertising produced by RPL and any descriptions or illustrations contained in RPL’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or Services referred to in them. They shall not form part of the Contract nor have any contractual force.
A. SUPPY OF GOODS
Goods
RPL reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and RPL shall notify the Customer in any such event. Any cost increase incurred by RPL pursuant to it exercising its right under this clause shall be borne by the Customer.
Delivery
- RPL shall endeavour to ensure that each delivery of the Goods is accompanied by a delivery note that shows the Customer’s PO number and the type and quantity of the Goods.
- The Customer shall return to RPL: (i) any and all bearers used in the transportation of the Goods, and (ii) any other materials and/or packaging requested to be returned by RPL from time to time, within a reasonable period of time following delivery but in any event no later than 15 Business Days following delivery. Any other materials and/or packaging not falling within (i) and (ii) shall be the sole responsibility of the Customer. In the event the Customer fails to meet its obligation under this clause 4.2, RPL shall be entitled to charge the Customer for the non-returned materials.
- RPL shall deliver the Goods to the location set out in the Order (which may include RPL’s warehouse for collection) or such other location as the parties may agree (Delivery Location) at any time after RPL notifies the Customer that the Goods are ready.
- Delivery is completed when the Goods arrive at the Delivery Location. The Customer is required to sign the delivery note. Any failure to sign the delivery note shall, to the extent permitted by applicable laws, act as a waiver of the Customer’s rights in respect of a dispute as to the quality or fitness for purposes of the Goods.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. RPL shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, the Customer’s failure to provide RPL with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, or the Customer’s failure to fulfil its obligations under clause 4.7
- RPL may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- The Customer must prepare the Delivery Location so as to enable delivery to take place on the date specified in the Order (or on such other date as is notified by RPL to the Customer), including without limitation, discharging those responsibilities set out at clause 4.8. If the Customer causes any delivery delay, delivery fails because the Customer has not taken appropriate steps to prepare the Delivery Location in advance of delivery (including such steps as are notified to the Customer by RPL) or the Customer provides inaccurate details about the Delivery Location, RPL may (but shall not be obliged) to arrange for an alternative delivery date but any costs incurred in storing and/or insuring the Goods after such failed delivery shall be for the account of the Customer.
- If the Customer:(a) fails to take delivery at the agreed time of delivery (including on any re-arranged delivery date) at the Delivery Location; and/or(b) fails to prepare Delivery Location in accordance with clauses 4.7, 4.9(a) to 4.9(c) then RPL reserves the right to:(i) recover from the Customer any unpaid fees for the Goods and any additional costs incurred by RPL (including any wasted costs, materials, storage costs and any other charges and expenses) incurred by RPL as a result of the Customer failing to make the site ready for delivery;
(ii) cancel the Contract and sell the Goods (in their current or any altered form) to another customer upon the occurrence of such events; and
(iii) notify the Customer of an alternative delivery date (which the Customer acknowledges may be an extended period of time due to the significant lead time requirements for RPL in manufacturing the Goods). - The Customer acknowledges and agrees that:(a) the Customer is responsible for providing all necessary parking permit and access permissions in advance of delivery;(b) RPL has no responsibility for arranging, providing and/or meeting the requirements of any permissions, consents and/or authorisations obtained and/or needed by the Customer in order to take delivery and/or use the Goods at the Delivery Location or otherwise;(c) Customer must ensure that the site is easily accessible, free from any obstructions or dangers and take any other necessary precautions in respect of the site that may be required as to ensure that delivery can take place at the agreed time;(d) RPL is not (nor shall it be deemed to be) responsible for installing and/or commissioning the Goods at the Delivery Location (unless otherwise agreed between the parties); and(e) RPL shall not be responsible for any damage to lawns, flower beds, driveways, car parks or other areas whatsoever around the Delivery Location.
- Unless stated to the contrary in the Order, RPL shall deliver (or shall procure the delivery of) Goods to the Delivery Location in articulated lorries. It is the Customer’s responsibility to provide safe and sound access for the delivery vehicles. Should safe and sound access not be provided (such determination to be made by RPL acting reasonably) resulting in the delivery vehicle becoming stranded, all costs for recovery and/or damage to the vehicle will be charged to the Customer.
- Subject to clause 4.12 below, delivery will normally be by road transport to the nearest hard standing road surface suitable for vehicular access to the Delivery Location stated on the Order. The parties agree that RPL shall have no liability whatsoever arising out of or in connection with delivery where delivery is made by a third party haulage provider.
- RPL (or its third party haulage provider) shall be the sole judge as to the suitability of the roads leading to the Delivery Location. It is assumed that the unloading area is adjacent to the actual job site. If this is not the case and alternative arrangements are required, then additional charges may have to be made by the Customer. It is the Customer’s responsibility to offload the Goods at the Delivery Location and it is the Customer’s responsibility to store, stack and protect all Goods in accordance with relevant recommended practices.
- A maximum of two hours is scheduled for offloading the Goods and RPL reserves the right to charge any additional costs incurred should this time be exceeded.
- Without prejudice to clause 4.4, RPL shall have no liability to the Customer in respect of any loss or damage to any Goods whilst in transit nor in respect of any shortage in the quantity of such goods delivered unless, in the case of damage in transit or shortage in quantities, notice is given by the Customer to RPL within 72 hours of receipt of the damaged Goods and confirmed in writing within a further 48 hours.
- The Customer fully indemnifies RPL on demand in respect of any claims, costs or expenses, losses or demands incurred by RPL arising out of or in connection with damage to, or damage caused by, any third party delivery vehicles where such damage is caused or contributed to by the Customer’s negligence or breach of its obligations under these Conditions.
Risk and Title
- The risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location.
- Title to the Goods shall not pass to the Customer until RPL receives payment in full (in cash or cleared funds) for the Goods and any other goods that RPL has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
- Until title to the Goods has passed to the Customer, the Customer shall:(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as RPL’s property;(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;(d) notify RPL immediately if it becomes subject to any of the events listed in clause 13.1(a) to clause 13.1(c); and(e) give RPL such information as RPL may reasonably require from time to time relating to:(i) the Goods; and
(ii) the ongoing financial position of the Customer. - Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before RPL receives payment for the Goods. However, if the Customer resells the Goods before that time:(a) it does so as principal and not as RPL’s agent; and(b) title to the Goods shall pass from RPL to the Customer immediately before the time at which resale by the Customer occurs.
- At any time before title to the Goods passes to the Customer, RPL may:(a) by notice in writing, terminate the Customer’s right under clause 5.4 to resell the Goods or use them in the ordinary course of its business; and(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Warranty
- RPL warrants that on delivery the Goods shall:(a) conform in all material respects with their description (save for where any Goods are manufactured by RPL to the design or specification provided by the Customer ); and(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
- Subject to clause 6.3, if:(a) the Customer gives notice in writing to RPL within 3 Business Days following delivery that some or all of the Goods do not comply with the warranty set out in clause 6.1;(b) RPL is given a reasonable opportunity of examining such Goods; and(c) the Customer (if asked to do so by RPL) returns such Goods to RPL’s place of business at the Customer’s cost,then RPL shall, at its option replace or repair the defective Goods, or refund the price of the defective Goods.
- RPL shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 if:(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;(b) the defect arises because the Customer failed to follow RPL’s oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same;(c) the defect arises as a result of RPL following any drawing, design or specification supplied or requested by the Customer;(d) the Customer alters or repairs such Goods without the written consent of RPL;(e) the Customer uses the Goods or any part of the Goods before Acceptance. The Customer shall indemnify RPL against any and all liability that may be incurred by RPL as a result of the Customer breach of this sub-clause;(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this clause 6, RPL shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in 6.1.
- These Conditions shall apply to any repaired or replacement Goods supplied by RPL.
- The Customer fully indemnifies RPL on demand in respect of any claims, costs or expenses, losses or demands incurred by RPL arising out of or in connection with any third party intellectual property infringement claims resulting from RPL’s use of any design or specification provided by the Customer (including any specification incorporated into the Goods Specification).
Price
- The price of the Goods shall be the price set out in the Order.
- RPL may at its sole discretion, by giving notice to the Customer, increase or decrease the price of the Goods to reflect any fluctuation in the cost of the Goods (or their manufacture) that is due to:(a) any factor beyond RPL’s control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs). Any such increase RPL is entitled to make in accordance with this clause 7.2(a) shall be done no more than once every 90 days (save for where the increase in RPL’s costs of purchasing and/or manufacturing the Goods increases by 5% or more in any given period, in which case RPL shall be entitled to increase the price of the Goods on more than one occasion within such 90 day period);(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or(c) any delay caused by any instructions of the Customer or failure of the Customer to give RPL adequate or accurate information or instructions.
- The price of the Goods, unless otherwise stated by RPL, includes the costs and charges of packaging, insurance and transport of the Goods.
- RPL may invoice the Customer for the Goods on or at any time after the completion of delivery.
- Unless otherwise agreed between the parties, the Customer shall pay each invoice submitted by RPL for the Goods:(a) within 30 days of the end of the same month as the invoice is dated; and(b) in full and in cleared funds to a bank account nominated in writing by RPL, and time for payment shall be of the essence of the Contract.
- If the Customer fails to make a payment due to RPL under the Contract by the due date, then, without limiting RPL’s remedies under clause 13, RPL shall be entitled to charge the Customer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
- Notwithstanding any other provision of the Contract RPL may at its discretion require advance payment for Goods which if supplied could cause the Customer’s credit limit with RPL to be exceeded. In all cases, credit, if offered by RPL at all, will only be offered by RPL subject to such security or trading references and guarantees as RPL in its absolute discretion may require.
- Any materials which do not form part of the usual stocks maintained by RPL in its ordinary course of business, which are purchased by RPL to meet any specific requirements of the Customer, cannot be accepted for return by RPL.
B. SUPPLY OF SERVICES
Services
- RPL shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
- RPL shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order and/or Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- RPL reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and RPL shall notify the Customer in any such event. Any cost increase incurred by RPL pursuant to it exercising its right under this clause 8.3 shall be borne by the Customer.
- RPL warrants to the Customer that the Services will be provided using reasonable care and skill.
- During the period of 12 months from and including the date of Acceptance, (the Defects Period) in the event that:(a) the Customer gives notice in writing to RPL as soon as reasonably possible within the Defects Period that some or all of the Deliverables produced as part of the Services (and for the avoidance of doubt not where RPL are supplying on a ‘supply of Goods only’ basis) contain defects due solely to any workmanship carried out by RPL during the course of providing the Services which is not due to ordinary wear and tear or to improper use or care by any other party other than RPL (the parties agree that nothing in this clause 8.5(a) shall entitle the Customer to any contractual remedy in addition to that provided under clause 6.2, where any defect relates solely to the supply of Goods and not Deliverables provided as part of Services); and(b) RPL is given an opportunity to examine such Deliverables within a reasonable period following the receipt of notice given by the Customer in accordance with clause 8.5(a) above,RPL shall, at its option, replace or repair the defective Deliverables.
Customer’s obligations
- The Customer shall:(a) ensure that the terms of the Order and any information it provides in the Service Specification are complete and accurate;(b) co-operate with RPL in all matters relating to the Services;(c) provide RPL, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by RPL to provide the Services;(d) provide RPL with such information and materials as RPL may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;(e) prepare (to RPL’s satisfaction) the Customer’s premises for the supply of the Services – including by ensuring that any foundation works at the Delivery Location or such other site as the Services are to be performed are completed and fit for purpose in accordance with the dimensions and specifications contained in the relevant plans, drawings and specifications at least five Business Days prior to the commencement of the Services;(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services at least 5 Business Days before the date on which the Services are to start;(g) comply with all applicable laws, including health and safety laws;(h) keep all materials, equipment, documents and other property of RPL(RPL Materials) at the Customer’s premises in safe custody at its own risk, maintain the RPL Materials in good condition until returned to RPL, and not dispose of or use the RPL Materials other than in accordance with RPL’s written instructions or authorisation; and(i) comply with any additional obligations as set out in the Service Specification.
- If RPL’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):(a) without limiting or affecting any other right or remedy available to it, RPL shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays RPL’s performance of any of its obligations;(b) RPL shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from RPL’s failure or delay to perform any of its obligations as set out in this clause 9.2; and(c) the Customer shall reimburse RPL on written demand for any costs or losses sustained or incurred by RPL arising directly or indirectly from the Customer Default.
Charges and payment for Services
- The charges for Services shall be calculated as follows (unless otherwise agreed between the parties in writing):(a) where the Order includes a separate fee for Design Services, RPL will issue an invoice to the Customer after the Design Services commence. Payment of the relevant fee for such Design Services (or, if provided in instalments, each instalment), shall become due and payable 30 days from the date of the relevant invoice;(b) where the Contract is for any other Services other than Design Services, the fee (or if clause 10.1(a) above applies, the balance of the fee due following any necessary reductions of the fees paid for the Design Services), shall be due as instalments. On each Valuation Date, RPL shall provide to the Customer an invoice for a sum equivalent to the value of the Services provided on and following the previous Valuation Date until the then current date. The due date for payment of each invoice shall be the date of receipt by the Customer. The final date for payment of each invoice shall be 30 days from the due date. Before paying less than the amount specified in the invoice the Customer shall give notice to RPL no later than five days before the final date for payment of the monies concerned specifying the sum that the Customer considers to be due on the date such notice is served and the basis on which that sum is calculated.
- RPL reserves the right to increase the charges for the Services on an annual basis with effect from each anniversary of the commencement of the Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the commencement of the Contract and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
- RPL shall be entitled to charge the Customer for any additional fees arising as a result of any amendments to the Service Specification.
Intellectual property rights
- All Intellectual Property Rights in the Goods or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by RPL.
- So far as it is permitted under applicable laws or any commercial contract to which RPL is a party, RPL grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, non-exclusive, licence to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables.
- The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
- The Customer grants RPL a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to RPL for the term of the Contract for the purpose of providing the Services to the Customer.
C. PROVISION OF GOODS AND SERVICES
Liability
- The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:(a) death or personal injury caused by negligence;(b) fraud or fraudulent misrepresentation; or(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
- Subject to clause 12.2 and 12.4, RPL’s total liability to the Customer whether in contract or in tort or in negligence or for breach of statutory duty or otherwise shall not exceed the price paid by the Customer for the Goods and/or Services under the Contract.
- Subject to clause 12.2, RPL’s total liability to the Customer whether in contract or in tort or in negligence or for breach of statutory duty or otherwise arising out of or in connection with Design Services, shall not exceed the price paid by the Customer for the those specific Design Services.
- Subject to clause 12.2, RPL shall not be liable whatsoever for the following types of loss:(a) loss of profits;(b) loss of sales or business;(c) loss of agreements or contracts;(d) loss of anticipated savings;(e) loss of use or corruption of software, data or information;(f) wasted costs;(g) loss of or damage to goodwill; and(h) indirect or consequential loss.
- Subject to clause 12.2, either before or after delivery of the Goods to the Customer, RPL shall not be liable for any loss and/or damage whatsoever caused by or arising from the use of any Goods once incorporated into any land or structure of the Customer or that of any third party.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- RPL is not responsible for any of the Deliverables, the Goods, the Services and/or the project in relation to which they are provided complying with the Building Act 1984, the Building Regulations 2010 or any re-enactment thereof and RPL shall have no liability to the Customer in relation to the same.
- These Conditions state the full extent of RPL’s obligations and liabilities in respect of the provision of the Goods, Design Services and/or Services. The parties agree that any condition, warranty representation or other term concerning the provision of the Goods, Design Services and/or Services which might otherwise be implied into or incorporated in the Contract, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by applicable laws.
- This clause 12 shall survive termination of the Contract.
Termination and Suspension
- Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other if:(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;(b) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or(c) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- RPL may terminate the Contract in the event that the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five days of being notified in writing to do so.
- Without limiting its other rights or remedies, RPL may suspend provision of the Goods and Services under the Contract or any other contract between the Customer and RPL if the Customer becomes subject to any of the events listed in clause 13.1(a) to clause 13.1(c), or RPL reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
- Without limiting its other rights or remedies, RPL may terminate or suspend provision of the Goods and Services under the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract by the final date for payment required by this Contract.
- On termination of the Contract for any reason the Customer shall:(a) immediately pay to RPL all of RPL’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, RPL shall submit an invoice, which shall be payable by the Customer immediately on receipt; and(b) return all of the RPL Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then RPL 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 the Contract.
- Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, 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.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
Force majeure
- Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for eight weeks, the party not affected may terminate the Contract immediately on written notice to the affected party.
Additional Customer responsibilities
- Unless otherwise agreed between the parties, the Customer shall ensure that the following hardware is maintained and made available for use by RPL at all times and at no cost to RPL during delivery of the Goods and during the provision of the Services and in accordance with all applicable laws and regulations:(a) any hoisting, craneage, forklifts or plant requirements of any kind required for the unloading, distribution or erection of any structure, together with skilled and qualified operatives as appropriate unless specifically agreed otherwise in an Order;(b) labour and plant for unloading, checking and distribution of any Goods;(c) scaffolding and any other item necessary for access or roof edge protection and which may be required to be altered during the progress of the Services. Any external scaffolding must be erected prior to the delivery of the Goods;(d) fall/arrest, soft landing systems, nets, harnesses and the like and which may be required to be moved as and when necessary for the execution of the Services;(e) suitable hard standing and clear access to all sides of the structure to permit access and for cranes and the like to operate and free from obstruction such as overhead cables, power lines, trees and other similar obstructions;(f) 110-volt power supply adjacent to the works and all temporary lighting;(g) messing, canteen, first-aid and welfare facilities including drying facilities;(h) secure, lock fast container for tools and sundry materials;(i) skips or the like placed immediately adjacent to and at the same level as the working area for the removal of rubbish and debris off site including tipping charges;(j) protection of the works provided as part of the Services where taken over by other trades or contractors or where RPL has left the site;(k) provision of security (including security personnel) to safeguard the plant, equipment, the Goods and RPL Materials; and(l) telephone and fax facilities.
General
- Assignment and other dealings(a) RPL may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of RPL.
- Confidentiality(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business (including that in respect of RPL’s manufacturing of the Goods), affairs, customers, clients or suppliers of the other party, except as permitted by clause 16.2(b)(b) Each party may disclose the other party’s confidential information:(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 16.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract. - Entire agreement(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Variation No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Set-off All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- VAT 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 RPL to the Customer, the Customer shall, on receipt of a valid VAT invoice from RPL, pay to RPL 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.
- Notices(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order.(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.9(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. - Frustration If the Contract becomes impossible to perform or is otherwise frustrated by the acts or omissions of the Customer or its employees or agents, the Customer shall be liable to pay RPL all reasonable costs, expenses, overheads and all loss of profit which RPL, its suppliers or sub-contractors incur as a result of such frustration or impossibility of performance.
- Third party rights(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Governing Law and Jurisdiction(a) The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.(b) Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
- AdjudicationEither party has the right at any time to refer any dispute arising under the Contract to adjudication. The adjudication shall be conducted in accordance with the current edition of the Scheme for Construction Contracts (England and Wales) Regulations 1998.
Addendum to Terms and Conditions/Working Arrangements
Pursuant to the Equality Act 2010, Roof Profiles are committed to tackling sexual harassment and victimisation in our business and taking steps to prevent it.The company’s Sexual Harassment & Victimisation Policy details what we mean by those terms, how we approach complaints of sexual harassment, potential sanctions for perpetrators, and harassment by third parties, which extends to all suppliers and contractors working within our business.All third-party suppliers and contractors are expected to put in place, and maintain, preventative steps and measures to educate their employees and ensure they conduct themselves properly when interacting with an employee of Roof Profiles.Any reports of sexual harassment towards an employee of the company will be investigated, and formal action will be taken should such harassment or conduct be proven. All third-party suppliers and contractors are expected to co-operate with any investigation into an allegation of sexual harassment.