GENERAL
The following conditions issued by IBS Engineered Products Ltd (“the Seller”) apply to any contract of which these conditions form part to the exclusion of any conditions or order or purchase of the Buyer or any other standards, specifications, conditions or particulars of or adopted by the Buyer, unless expressly accepted in writing by the Seller as part of the contract.
“Goods” means IBS Flood Defence and Flow Control Equipment and/or the IBS K-SYSTEM, the “System”, and shall comprise of (but not limited to) the System design, finished or semi-finished materials, parts, spares, consumables etc. These conditions apply to installation, inspection, maintenance and any other services provided by the Seller, should they be required under the Contract, in the same way as they apply to Goods supplied by the Seller.
1. QUOTATIONS
Quotations do not constitute an offer by the Seller to supply the Goods or carry out the work referred to therein and no order placed in response to a quotation will be binding unless accepted by the Company in writing whereupon these conditions shall be deemed to be incorporated in the Contract. All such acceptances by the Company will be subject to availability of the necessary materials and to the Buyer being able to provide all necessary authorisations, approvals and or licences and the same remaining valid.
2. PRICE
2.1. The price quoted is for the design, where applicable, manufacture and supply of Goods as described in the Specification, including drawings; contract sum analysis, and tender clarifications should any be attached or incorporated within the quotation (“Price”). The quotation shall remain open for 60 (sixty) calendar days from the date of the quotation and shall then lapse (“Acceptance Period”). We reserve the right to provide a revised quotation after the expiry of the Acceptance Period.
2.2. The price stated in the contract is based on the cost to the Seller of materials, transport and labour at the date of acceptance of the order. If at the date of delivery of the Goods to the site there has been any increase in all or any of such costs, the price payable for the Goods may at the option of the Seller be increased accordingly; provided that any such increase shall have been notified to the Buyer as soon as it first became apparent.
2.3. Where the price for the Goods is varied in accordance with this condition the price as varied shall be binding on both parties and shall not give either party any option of cancellation.
2.4. There shall be added to the price for the Goods any Value Added Tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods (whether initially charged on or payable by the Seller or the Buyer).
2.5. The price includes packing and delivery to Site
2.6. All prices are quoted in pounds sterling unless otherwise specified and all payments must be made in pounds sterling unless otherwise expressly agreed.
2.7. The Price includes for all drawings and details prepared by IBS Engineered Products or their agents that are reasonably required in order for the works to be progressed. Excessive additional design work and drawings issued, occasioned by changes to the works and variations, will be subject to additional design charges that shall be notified by IBS Engineered Products Ltd. prior to commencement of such drawings and details.
2.8. Where IBS Engineered Products carry out design works, drawings and calculations as a result of an instruction from the Buyer, or his representative, but the works package is not subsequently awarded to IBS Engineered Products Ltd or the works do not progress for commercial reasons then we reserve the right to charge reasonable costs for design works and feasibility studies undertaken in the sum of not less than £500.00.
2.9. The Price excludes any civil engineering works required for or associated with the installation of the System, and any such works are to the responsibility of the Buyer or his representative.
3. TERMS OF PAYMENT
3.1. Prices quoted are net. Subject to credit being approved accounts are due for payment not later than 30 days from date of invoice: otherwise payment must be received by the Seller before delivery to site. All payments shall be made without deduction or set off. When deliveries are spread over a period each consignment will be invoiced as despatched and each month’s invoices will be treated as a separate account and be payable accordingly. Failure to pay for any Goods or for any delivery or instalment shall entitle the Seller to suspend further deliveries and work both on the same order and on any other from the Buyer without prejudice to any other right the Seller may have. The Seller also reserves the right to charge interest on overdue accounts at the rate of 8% above the rate for unarranged borrowing of the National Westminster Bank plc. The Seller reserves the right where genuine doubts arise as to a Buyer’s financial position or in the case of failure to pay for any Goods or any delivery or instalment as aforesaid to suspend work on and delivery of any order or any part of instalment without liability until payment or satisfactory security for payment has been provided.
3.2. If you fail to make payment on the due date or if you are unable to pay your debts within the meaning of the Insolvency Act 1986 s123 or (if you are an individual) are the subject of a bankruptcy notice or petition or a bankruptcy order is made against you, or being a company, you have a receiver, liquidator or administrator receiver appointed or a winding up order made or a resolution for winding up is passed, or a voluntary arrangement is made with your creditors, or a petition is presented for a winding up order or an administration order, or any distress or execution is levied or threatened over any of your assets, we shall be entitled, without prejudice to any other remedies available to us, forthwith to suspend the Works and to remove all unused materials from your premises or the Site and (at our complete discretion) to terminate the contract forthwith but without prejudice to the rights which have accrued up to the date of such termination
3.3. Unless otherwise agreed in writing, the Price is based on net payments, without any allowance for deductions for retention or main contractors discount.
4. DELIVERY AND COMPLETION DATES
4.1. Design of the System will commence only upon receipt of an order unless otherwise stated in the quotation or offer letter.
4.2. Production drawings and manufacture will commence only after IBS Engineered Products Ltd’s drawing is received back from the Buyer or his representative signed as approved in all respects of the design. Any comments on the design are to be made at this stage and prior to manufacture. Any changes to the project requirements after this stage will be deemed a variation and valued accordingly.
4.3. Date for delivery of goods cannot be guaranteed until after IBS Engineered Products Ltd have received from the Buyer the signed as approved drawings mentioned above.
4.4. Any delivery or performance dates which may be specified in the contract are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. In the event that a delivery date is specified and agreed by IBS Engineered Products Ltd, for clarification this shall be subject to the provisions of clauses 4.1, 4.2 and 4.3.
4.5. The Seller will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver if the duration of the delay is not substantial or if the delay or failure is due to Act of God, fire, inclement or exceptional weather conditions, industrial action (whether at the Seller’s premises or elsewhere), hostilities, breakdowns, shortage of labour, materials, power or other supplies, late delivery or performance or non-delivery or non-performance by suppliers or sub-contractors, governmental order or intervention (whether or not having the force of law) export or import restrictions (whether or not existing at the date of the contract) or any other cause whatever beyond the Seller’s control or of an unexpected nature. Whilst IBS Engineered Products shall use their best endeavours to commence and complete the works within any time scales that may be agreed, the period of time for commencement and/or completion of the works shall be extended by the period of any delay or suspension of the carrying out of the works caused by or on behalf of the Buyer and/or any other cause beyond our control.
4.6. No delay shall entitle the Buyer to reject any delivery or any further instalment or part of the order or any other order from the Buyer or to repudiate the contract or the order.
4.7. The Seller cannot undertake to meet any schedule of the Buyer’s requirements supplied after the date of the contract and will have no liability whatever for delay in meeting or failure to meet all or any of such requirements (howsoever such failure or delay may arise) unless and to the extent that the Seller expressly agrees to meet such requirements, in which event clause 4.5 shall apply.
4.8. Unless otherwise agreed in writing, the Price is based upon the exclusion of our liability for any liquidated or ascertained damages.
4.9. If we are delayed, disrupted or prevented in delivering the goods, owing to any act or omissions of the Buyer, or their representatives, we shall be entitled to recover from you any additional costs arising from such delay or disruption.
5. DELAYED ACCEPTANCE
If for any reason the Buyer is unable to accept delivery of the Goods when the Goods are due and ready for delivery the Seller shall be entitled to invoice the Buyer for the goods and may arrange storage of the Goods and the Buyer shall be liable to the Seller for all reasonable costs (including insurance) incurred by Seller. This provision is without prejudice to any other right which the Seller may have in respect of the Buyer’s failure to take delivery of the Goods or to pay for them in accordance with the contract.
6. PASSING OF TITLE AND RISK
6.1. You shall sign to acknowledge acceptance of materials delivered to the Site.
6.2. The materials supplied by or on behalf of us (whether fixed or unfixed) shall remain our property until you have paid to us in full all sums payable or which may become payable to us. Until that time, you shall hold the materials as our bailee and shall store them in such a way that they can be clearly identified as our property and shall keep them secure and separate from your own property and property of any other person.
6.3. Although the materials shall remain our property until all sums due to us under the contract have been paid, they shall be at your risk from time of delivery. You shall insure the materials against loss or damage accordingly and in the event of any such loss or damage occurring shall hold the proceeds of such insurance on trust for us.
6.4. Your rights to possession of the materials shall cease if clause 3.2 applies.
6.5. You shall then at your own expense, make the materials available to us and allow us to repossess them. You hereby grant to us an irrevocable licence to enter any premises where the materials are stored in order to inspect or repossess them.
6.6. At any time prior to full payment (whether or not payment is then overdue) the Seller may (without prejudice to any of its other rights) retake possession of the Goods or any part thereof and may enter on the Buyer’s premises by its employees or agents for that purpose or for the purpose of ascertaining whether the Buyer is complying with the provisions of this clause.
6.7. Any Goods repossessed by the Seller may be resold on such terms as the Seller may determine and the Buyer shall remain liable to the Seller for the difference between the net proceeds of such resale and all outstanding sums due to the Seller in respect of such Goods and for all costs and expenses incurred by the Seller in repossessing, storing and reselling the same.
7. WARRANTY: LIMIT OF RESPONSIBILITY
7.1. The Seller warrants that it will (at the Seller’s choice) either repair or replace, or refund the full purchase price of any Goods which are accepted by the Seller as being defective or not in accordance with the contract or any express description or representation given or made on behalf of the Seller in respect of the Goods within a period of 12 months from delivery of such Goods to the Buyer (“the Warranty Period”). The Buyer’s remedies in respect of any claim under the foregoing express warranty or any condition or warranty implied by law or any other claim in respect of the Goods or any workmanship in relation thereto (whether or not involving negligence on the part of the Seller) shall in all cases be limited to repair or replacement of the Goods or to a refund of the purchase price of the goods as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the Warranty Period and the Seller shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential, and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law. A claim in respect of any defect or failure to comply with the specification or order or in respect of any delivery or instalment of an order or any part thereof shall not entitle the Buyer to cancel or refuse delivery of or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment. The Seller will require a reasonable period of time to carry out any repairs or replacements.
7.2. The responsibility for the design and the installation of any civil works rests with the Buyer. IBS Engineered Products Ltd will only accept responsibility for the design of the System above ground level, but excluding any interfacing civil works that may be required to support the above ground installation. IBS Engineered Products will provide assistance and advice in terms of any civil engineering works where requested in order to expedite the design process, however, the Buyer or his representative shall remain responsible for the final overall design. Full details of the proposed civil works, including final design levels, must be supplied to IBS Engineered Products Ltd for comment prior to the manufacture of the System, and we reserve the right to withdraw from any agreement, without any liability to the Buyer, where the design of the civil works is deemed unacceptable.
8. LIMITATION OF LIABILITY
8.1. We shall have no liability for any loss, damage or otherwise sustained by you other than such:
8.1.1. As may arise from our negligence or that of our servants or agents, or
8.1.2. in respect of personal injury to or the death of any person arising directly out of or directly caused by the carrying out of the works and due to negligence by us, our servants or agents.
8.2. We shall not be liable to you in contract, tort (including negligence) or otherwise for any indirect or consequential loss of any kind (including, but not limited to, loss of revenue, project or opportunity, wasted expenses or loss of contract or goodwill).
8.3. Our maximum liability to you in relation to the Works and this Contract (unless arising directly from death or personal injury caused by our negligence) shall in no circumstances exceed in aggregate 10% of the Price
9. INDEMNITY
9.1. The Buyer agrees upon demand to indemnify the Seller against death of or injury to persons or loss of or damage to property or for or in respect of any claims, demands, proceedings, damages, costs charges and expenses in respect thereof or in relation thereto to the extent that same are caused by or related to:
9.1.1. defective civil works undertaken by the Buyer to which the System is incorporated, or affixed by the Buyer; or
9.1.2. the improper incorporation, assembly, use, dismantling, storage or handling of Goods by the Buyer; and
9.1.3. designs, drawings or specifications given to IBS Engineered Products Ltd by the Buyer in respect of the Civil Works and interfacing and supporting structures.
9.1.4. any act, neglect or breach of statutory duty done or committed by the Buyer his agents servants or other contractors (not being employed by the Seller).
9.2. Without prejudice to your liability to indemnify us you hereby certify to us that you have affected such employer’s liability Insurance and public liability policy as are necessary to cover our liabilities and that such policies are with a reputable insurer up to a limit of at least £5,000,000 (five million pounds) and such policy shall be kept in force during and until completion of the Works.
9.3. You shall insure the premises and materials (whether fixed or unfixed) to cover any damage thereto from any cause whatsoever.
10. MODIFICATIONS / VARIATIONS
Any variation, requirement or modifications to the Goods or their installation from that which is specified in the contract or which is expressly excluded by these conditions, and which either the Buyer requests or is deemed required by the seller; shall, if IBS Engineered Products Ltd agrees to undertake or incorporate, be charged extra (including an appropriate allowance for overheads and profit) to the extent that such extra work, requirement of modification increases the cost to the Seller of performance of the contract. The Seller shall be allowed a reasonable extension or postponement of performance or delivery dates required to comply with any such request.
11. TESTING
11.1. Specific or type testing of the Systems is not included in any offer, and where specific or type testing of the System or any of its component parts or elements is required, then this will be subject to additional charges, agreed between IBS Engineered Products Ltd and the Buyer prior to the tests being undertaken.
11.2. Material certification may be made available, and the Buyer or his representative should state that certification is required within any tender documentation.
11.3. Subject to these clauses 11.1 and 11.2, where the Buyer requires to be present at any tests or inspections the Seller shall give the Buyer as much notice as is reasonably possible of the date and time such tests and inspections shall take place and if the Buyer or any third party fails to attend such tests and inspections the Seller shall be permitted to undertake such tests and inspections without liability to the Buyer and shall notify the results thereof to the Buyer who shall not be entitled to request further tests and inspections.
12. CUSTOMERS SPECIFICATIONS AND DOCUMENTATION
12.1. The Seller is entitled to assume that all drawings, descriptions, specifications and other information supplied by the Buyer to the Seller, whether written or verbal, is in all respects complete, accurate and entirely suitable for the Buyer’s requirements.
12.2. Unless otherwise expressly agreed, the Seller shall have no responsibility for the performance, suitability or durability of any Goods or any materials or workmanship comprised therein to the extent that the same is manufactured in accordance with the Buyer’s designs, drawings, or specifications.
12.3. Where the drawings or specifications are not supplied by the Buyer, only those which are specifically made by the Seller and charged to the Buyer in full shall when paid for by the Buyer, become the property of the Buyer.
12.4. Fabrication drawings do not form part of IBS Engineered Products Ltd’s document package submission to the Buyer. Fabrication drawings can be viewed only, at the factory, by arrangement.
13. CONFIDENTIALITY: PATENTS ETC.
13.1. Any drawings, specifications or other technical information supplied to the Buyer by the Seller in connection with the contract are provided on the express understanding that the Buyer will not disclose, give, loan, exhibit or sell such drawings, specifications or technical information to any third party and that the Buyer will not use them in any way except in connection with the Goods or services provided hereunder. The copyright in all documents provided by the Seller will remain vested in the Seller.
13.2. The Buyer shall indemnify the Seller against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement of any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Seller with the Buyer’s specific requirements, designs or specifications.
14. HEALTH AND SAFETY
14.1. Sellers duties under Health and Safety at Work Act 1974;
14.1.1. Insofar as the Seller is under a duty pursuant to S.6 of the Health and Safety at Work Act 1974 in respect of the design manufacture and supply of any goods for use by the Buyer; the Buyer shall be deemed to have been afforded by the Seller:
14.1.1.1. reasonable opportunity for the testing and examination of the Goods or materials prior to delivery to the Buyer in respect of their safety and any risk to health; and
14.1.1.2. adequate information about the Goods and materials in respect of the use for which they are designed and have been tested and of any conditions necessary to ensure that when put to use they will be safe and without risk to health whether or not the said information has been requested by the Buyer.
14.1.2. Where the Buyer receives information from the Seller about
14.1.2.1. the use for which the Goods are designed or have been tested;
14.1.2.2. any conditions necessary to ensure that the Goods will be safe and without risks to health when being set, used, cleaned or maintained by any person at work or when the Goods are being dismantled; and
14.1.2.3. revisions to information supplied under 14.1.2.1 and 14.1.2.2 above, as is necessary because of it becoming known that any thing that gives rise to a serious risk to health or safety,
the Buyer is deemed to have read and understood the above information and agrees to pay due regard to it, and hereby undertakes to take such steps as may be specified by the above information to ensure that so far as is reasonably practicable the goods will be safe and without risk to health.
15. LOSS OR DAMAGE IN TRANSIT
The risk in the Goods passes to the Buyer when specified by clause six above, and the Seller accepts no responsibility for any damage, shortage or loss in transit thereafter. Claims for any damage, shortage or loss in transit should be notified immediately by FAX or telephone, and subsequently confirmed in writing to the Seller.
16. SUB-CONTRACTING
The Seller reserves the right to sub-contract the whole or any part of the contract.
17. PERMITS ETC.
The Buyer shall be responsible for seeking all statutory consents permissions and approvals necessary for the execution of the Works including any third party consents, easements or wayleaves.
18. TERMINATION
18.1. In addition to any other rights the Seller may have, if the Buyer fails to pay any amount payable to us under the Contract by the date for payment, or commits any other material breach of the Contract and fails to remedy same within 14 days of receipt by the Buyer of a notice from the Seller specifying such breach or become bankrupt or insolvent, or has an administrator or receiver appointed or compounds with his or its creditors, or being a corporation commences to be wound up, (other than by way of a members voluntary winding up for the purpose of amalgamation or reconstruction) or carries on his business under an administrator or a receiver or manager for the benefit of his or its creditors or any of them; then;
18.1.1. The Seller shall be entitled at any time thereafter to terminate the Contract or suspend all or any part of the outstanding works or any of their other obligations under the Contract; and
18.1.2. The Buyer shall pay to us the sum representing the aggregate of the Price and any other amount payable to us under any other provision of the Contract, less the amount of previous payments made by the Buyer under the Contract and a fair and reasonable allowance for costs not incurred by us resultant on such termination.
18.1.3. We may in full or in part satisfaction of any claims under the Contract remove sell or otherwise dispose of any of the Goods supplied to site, or pending delivery, without any liability for any loss or damage thereby suffered by the Buyer or any third party.
19. FORBEARANCE
No forbearance or indulgence by the Seller shown or granted to the Buyer whether in respect of these conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be regarded as a waiver of any of these conditions.
20. SEVERANCE
If any provision of the terms and conditions of the Contract is declared by any judicial or other competent authority to be void then the remaining terms and conditions of the contract shall not be affected by such declaration and shall remain in full force and effect.
21. ASSIGNMENTS
None of the rights or obligations of the Buyer under the contract may be assigned or transferred in whole or in part without the prior written consent of the Seller.
22. SERVICE OF NOTICES
22.1. Any notice to be given under the Contract shall either be delivered personally (including by courier), or by registered or recorded delivery. The addresses for the service of each party shall be those stated within our quotation, or otherwise agreed. A notice shall be deemed to have been served as follows:
22.1.1. If personally delivered, at the time of delivery
22.1.2. If sent by registered post or recorded delivery, two working days after the date of posting, i.e. excluding public holidays and weekends.
23. LAW AND JURUSDICTION
23.1. The contract shall in all respects be governed by and construed in accordance with English law and the Buyer hereby submits to the exclusive jurisdiction of the English Courts.
23.2. If any dispute or difference arises under this Contract either party may refer such dispute or difference to adjudication in accordance with the Adjudication Rules (current at the time) of the Technology and Construction Solicitors Association.
23.3. Any rights of any person to enforce the terms of the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 are excluded.
24. ALTERATIONS TO TERMS
All additions, amendments and variations to the Contract shall be binding only if in writing and signed by the duly authorised representatives of both the Buyer and the IBS Engineered Products Ltd.
25. ACKNOWLEDGEMENT
The Buyer acknowledges that in entering into the Contract it has not relied on any representation, warranty or other assurance made by us or on our behalf (except those set out in our quotation) and waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation warranty or assurance provided that nothing in this clause shall limit or exclude any liability for fraud.