UPLUS, A DIVISION OF Radius Systems Ltd
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions (unless the context otherwise requires), the following words and expressions shall have the following meaning given to them:
"Competent Person" shall have the same meaning given to that term in the SCO Process;
"Conditions" means the terms and Conditions set out in this document and include any special terms and Conditions agreed in Writing between the Buyer and the Supplier. Any special terms and Conditions shall prevail;
"Contract" means the contract (comprising the documents set out in Condition 2.1) between the Customer and the Supplier for the Works;
"Contract Price" means the sum stated in the Request as the price payable by the Customer to the Supplier for the Works;
"Customer" means the company, firm, body or person named in the Request;
"Defects Liability Period" has the meaning given by Condition 9.1;
"Force Majeure" means any circumstance beyond the reasonable control of the parties including acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slowdowns or other industrial disputes, accidents, acts of government, lack of power and delays by suppliers or materials shortages;
"Goods" means the goods set out in the Request;
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce sales dated 2000;
"Request" means the request for PE connection completed by the Customer using the Supplier's PE connection form;
"Safe Control of Operations ("SCO") Process" means the procedures as defined in the SCO documents provided by the Supplier to the Customer, as amended by the Supplier from time to time;
"Site" means where the Goods are delivered and/or where the Works are carried out;
"Specification" means the specification of the Works annexed to or included in the Contract;
"Sub-Contractor" means any person (other than the Supplier) to whom supply of any part of the Works or any person to whom any part of the Contract has been sub-contracted by the Supplier;
"Supplier" means UPLUS, a division of Radius Systems Ltd, a company registered in England and Wales with company number 01585669, whose registered office is at Radius House, Berristow Lane, South Normanton, Alfreton, Derbyshire, DE55 2JJ;
"Supplier's Equipment" means all tools, equipment or things of whatsoever nature required to complete the Works other than the Goods;
"Taking Over Certificate" means the date the Works pass the Taking-Over Tests;
"Taking-Over Tests" means the tests specified by the Supplier in writing to be carried out on the Works at the Site;
"Working Day" means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory holiday in England;
"Works" means all Goods to be provided and/or work to be done by the Supplier under the Contract which may include the design, manufacture, installation, testing and commissioning of Goods, training and consultancy services); and
"Writing" includes facsimile transmission (but not email) and other comparable means of communication.
1.2 In these Conditions (unless the context otherwise requires):
1.2.1 the words "including" and "include" and words of similar effect shall not be deemed to limit the general effect of the words which precede them;
1.2.2 obligations undertaken by a party which comprises more than one person shall be deemed to be made by them jointly and severally;
1.2.3 words importing persons shall include firms, companies and bodies corporate and vice versa;
1.2.4 words importing the singular shall include the plural and vice versa;
1.2.5 construction of these Conditions shall ignore the headings (all of which are for reference only); and
1.2.6 any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision.
2. APPLICATION
2.1 The Customer's completion of the Request is acceptance of these Conditions. The Contract shall comprise the Request, the Specification and the Conditions. If there is inconsistency the order of precedence is:
2.1.1 the Request;
2.1.2 the Specification;
2.1.3 the Conditions.
2.2 Subject to Condition 2.1, these Conditions shall prevail over any other terms and conditions (whether or not inconsistent with these Conditions) contained or referred to in any correspondence, order, documentation or elsewhere or implied by custom, practice or course of dealing.
3. CONFIDENTIALITY
3.1 Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained pursuant to the Contract or in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to those of its directors, shareholders and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract (or, in respect of the Supplier, is required for disclosure for its business purposes including to a bona fide purchaser).
3.2 The obligations of Condition 3.1 shall survive expiry or termination of the Contract but shall not apply to any information which:
3.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at Condition 3.1;
3.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
3.2.3 enters the public domain through no act or default of the recipient, its agents or employees; or
3.2.4 is required by law to be disclosed.
4. TECHNICAL SPECIFICATIONS AND INTELLECTUAL PROPERTY RIGHTS
4.1 Information or technical advice given by the Supplier in relation to the Goods including information contained in operating and maintenance manuals is given to the best of the Supplier's knowledge and belief.
4.2 The Supplier reserves ownership rights and intellectual property rights in its Specification and technical documents.
5. THE SUPPLIER'S OBLIGATIONS
5.1 The Supplier warrants that the Works will be performed with reasonable skill and care and in accordance with the Specification.
5.2 The Supplier shall prepare the Specification, however, the Customer shall be responsible for ensuring that the design of the Goods and of the Works as set out in the Specification complies with the Customer's requirements.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall upon reasonable notice give the Supplier access to the Site for the purpose of carrying out the Works.
6.2 The Customer shall, before the time specified for delivery of any Goods to the Site, obtain all consents, wayleaves and approvals in connection with the regulations and bylaws of any authority which shall be applicable to the Works and/or the Site.
6.3 The Customer shall obtain all permits or licences required for any part of the Goods or Works in reasonable time having regard to the time for delivery of the Goods as set out in the Contract or as otherwise notified to the Customer by the Supplier. If the Customer shall fail to obtain such permits or licences, the additional costs incurred by the Supplier in consequence thereof shall be added to the Contract Price.
6.4 The Customer shall be responsible for providing a Competent Person on Site at all times during the carrying out of the Works.
6.5 All resources including structures, foundations, approaches, equipment, or labour to be provided by the Customer shall be provided within the time and to the quality set out in the Specification.
6.6 The Customer shall provide free of including technical assistance) to enable the Works to be carried out in accordance with the Specification at the Site. Technical assistance may include;
6.6.1 making available personnel (who will follow the Supplier's directions) in the numbers and for the time required for the Works;
6.6.2 undertaking all the earthworks, building works, bedding works and scaffolding works, including procuring the necessary building materials;
6.6.3 making available the necessary equipment and heavy tools (e.g. lifting gear, compressors, portable forges) and the necessary materials and consumables (e.g. scaffolding poles, wedges, underlays, cement, rendering and sealing materials, lubricants, fuels, drive cables and drive belts);
6.6.4 making available heating, lighting, power, water, including the necessary connections;
6.6.5 making available the necessary (to the Supplier's reasonable satisfaction) dry and lockable premises for storing the Supplier's Equipment;
6.6.6 protecting and cleaning the Site as necessary;
6.6.7 making available to the Supplier suitable secure social rooms and work rooms (with heating, lighting, washing facilities, sanitation facilities) and first aid; and
6.6.8 making available any other materials and facilities the Supplier deems reasonably necessary.
6.7 If the Customer does not fulfil its obligations under this Condition 6, the Supplier may (without prejudice to its other rights and remedies) carry out the Customer's obligations and the cost will be added to the Contract Price.
7. DELIVERY AND TESTING OF GOODS BEFORE DELIVERY
7.1 Unless otherwise agreed the Supplier shall deliver the Goods ex works in accordance with Incoterms. Delivery and/or completion dates are approximates only.
7.2 If the Customer (or any person under the Customer's control) does not meet the requirements of this Contract (either temporarily or partially) and the Supplier is prevented from either:
7.2.1 Delivering any Goods to Site; and/or
7.2.2 carrying out of any of the Works at Site,
the Works shall be suspended until the Customer can prove to the reasonable satisfaction of the Supplier that the Customer is no longer in default. The Supplier's reasonable costs of such suspension shall be paid by the Customer.
7.3 If suspension of the Works under Condition 7.2 has continued for more than 60 days, the Supplier may by notice to the Customer terminate the Contract forthwith and invoice the outstanding Contract Price to the Customer for payment within 30 days.
8. TAKING-OVER
8.1 The Taking-Over Tests shall be carried out upon completion of the Works by the Supplier in the presence of the Competent Person and any failure of attendance will entitle the Supplier to proceed as if the Competent Person were present. The Supplier shall not be limited in the number of times the Taking-Over Tests are run until a pass is achieved.
8.2 When the Works have passed the Taking-Over Tests the Competent Person shall issue a certificate to the Supplier in the form set out in Appendix 1 ("Taking-Over Certificate"). The Customer accepts the Works at the latest as at the Taking--Over Certificate.
8.3 If the Customer does not participate constructively or at all in the Taking-Over Tests and 30 days has passed since the Supplier carried out the first Taking-Over Tests, the Customer shall be deemed to have accepted the Works and the Supplier will complete the Taking-Over Certificate.
9. DEFECTS LIABILITY
9.1 The Defects Liability Period is the period set out in the Specification, running from the date of the Take-Over Certificate. Where any section of the Works is taken-over in sections the Defects Liability Period in relation thereto shall commence on the date of Taking-Over of that section.
9.2 The Supplier shall be responsible for making good by repair or replacement any defect in or damage to any part of the Works which may appear or occur during the Defects Liability Period and which arises either:
9.2.1 from any defective materials or workmanship of the Supplier; or
9.2.2 non-compliance of the Works with the Specification.
9.3 The Supplier may remove from the Site any part of the Works which are defective or damaged, if the nature of the defect or damage is such that repairs cannot be expeditiously carried out on Site.
9.4 The Supplier's liability under this Condition 9 shall be in lieu of any contract term implied by law as to the quality or fitness for any particular purpose or the workmanship of any part of the Works.
9.5 Save as set out in this Condition 9 (and subject to Condition 12.6), neither the Supplier nor its Sub-Contractors, their respective servants or agents shall be liable, whether in contract, in tort (including negligence) or by reason of breach of statutory duty or otherwise for any and all liability howsoever arising including defects in or damage and/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.
9.6 The Supplier's liability under this Condition 9.6 shall cease to the extent of any repair or replacement carried out on the Works other than by the Supplier.
9.7 In the case of Goods not manufactured by the Supplier, whether such goods constitute or form part of the Goods, and subject to Condition 12.6, all liability howsoever arising (whether from design, manufacture or fitness for purpose) is excluded. The Supplier's sole obligation is to use reasonable endeavours to ensure that any benefit available to the Supplier in respect of Goods supplied to it is made available to the Customer.
9.8 If the Supplier rectifies a defect in the Works, the Supplier shall retain title to the replacement parts insofar as the Supplier had such title to the parts which were replaced.
10. THE SUPPLIER'S EQUIPMENT
The Customer shall indemnify the Supplier for loss of or damage to the Supplier's Equipment which may occur otherwise than through the default of either the Supplier or its Sub-Contractors, and their respective servants and agents.
11. PRICE AND PAYMENT
11.1 The Contract Price is exclusive of any sales tax or duty applicable from time to time.
11.2 Unless otherwise agreed in Writing, the Supplier may invoice the Customer for:
11.2.1 Goods delivered or shipped and en-route to the Site -- on providing reasonable evidence of delivery/shipment;
11.2.2 Works executed at the Site -- on providing worksheets; and
11.2.3 additional payments provided for in these Conditions -- on providing written particulars.
11.3 The Supplier will raise an invoice with the supporting evidence set out in 11.2 and unless otherwise agreed in writing, all payments are due within 30 days of the date of such invoice. The time of payment shall be of the essence of the Contract. If payment is delayed, the Customer is liable to pay interest at the rate of four per cent per annum above the base rate of National Westminster Bank Plc. The Supplier reserves the right to alter or withdraw at any time any credit allowed to the Customer.
11.4 If the Customer fails to comply with its payment obligations, the Supplier shall (without prejudice to its other rights and remedies) be entitled:
11.4.1 to stop work until the failure is remedied and any cost of such stoppage shall be paid by the Customer and any contractual timelines will be extended by the period of suspension; and/or
11.4.2 to terminate the Contract immediately by giving notice in writing to the Customer. The Supplier may invoke this Condition 11.4.2 whether or not there has been a suspension under 11.4.1 and at any time during such suspension.
12. LIMITATION OF LIABILITY
12.1 The Supplier shall not be liable to the Customer for any liability howsoever arising including indemnity, breach of contract, statutory duty, tort (including negligence) for any loss of profit, loss of use, loss of production, loss of contracts (in all cases, direct or indirect), loss of data/software/systems and/or for any financial or economic loss or for any indirect or consequential damage.
12.2 The Supplier shall have no liability to the Customer for or in respect of or in consequence of any loss of or damage to the Customer's property which shall occur after the expiration of the Defects Liability Period.
12.3 The Supplier shall have no liability to the Customer to the extent that the Customer is covered by any policy of insurance and the Customer shall ensure that its insurers waive any rights of subrogation that may affect the Supplier.
12.4 The total aggregate liability of the Supplier to the Customer howsoever arising including in contract, tort (including negligence) and/or statutory duty shall not exceed the Contract Price.
12.5 Except as expressly provided in these Conditions, all conditions, warranties and representations, express or implied by statute, common law or otherwise, in relation to the supply, non-supply or delay in supplying the Goods and/or carrying out the Works are excluded to the fullest extent permitted by law.
12.6 Nothing in these Conditions shall operate to exclude or restrict either of the parties' liability for death or personal injury arising from negligence, or liability for fraud or deceit.
13. FORCE MAJEURE
13.1 The Supplier shall not be liable for any breach of its obligations to the extent that the Supplier is prevented or hindered from complying with them by an event of Force Majeure.
If the Supplier is prevented, hindered or delayed from performing this Contract by Force Majeure the Supplier may, at its sole option, and without being liable for any loss or damage suffered by the Customer as a result:
If the Supplier is prevented, hindered or delayed from performing this Contract by Force Majeure the Supplier may, at its sole option, and without being liable for any loss or damage suffered by the Customer as a result:
13.1.1 suspend deliveries and/or the carrying out of the Works while Force Majeure continues; and/or
13.1.2 terminate the Contract forthwith by giving notice to that effect to the Customer.
13.2 If the Contract is terminated under Condition 13.1.2 the Supplier shall be entitled to be paid:
13.2.1 the cost of resources to be used for the Works for which the Supplier has paid or is liable to pay.
13.2.2 Any return costs of the Supplier's Equipment.
14. RISK
14.1 Unless otherwise agreed between the parties, risk in the Goods shall pass to the Customer on delivery.
14.2 If delivery of the Goods is delayed or stopped due to circumstances beyond the Supplier's control, the risk in the Goods shall pass to the Customer on the day of notification of readiness for despatch.
15. RETENTION OF TITLE
15.1 Title in Goods will pass from the Supplier to the Customer when the Customer has paid the Contract Price and all other amounts owed by the Customer to the Supplier. From the time at which risk in Goods passes to the Customer under Condition 14 until title passes the Customer shall insure the Goods for all relevant risks. Until title passes under this Condition 15, Customer shall hold Goods in a way which enables identification.
15.2 The Customer grants the Supplier an irrevocable licence to enter at any time any vehicles or premises owned or possessed by the Customer for the purpose of removing any Goods where title has not passed under this Condition 15.
16. INSURANCE
16.1 The Customer shall insure the Works and keep each part thereof insured for its full replacement value and for all relevant risks.
16.2 The Customer shall so far as reasonably possible extend the insurance under Condition 16.1 to cover damage which the Supplier is responsible for making good hereunder.
16.3 All monies received under any such policy shall be applied in or towards the replacement and repair of the part of the Works lost, damaged or destroyed.
16.4 The insurance policies shall be effected with an insurer of good repute and the Customer shall, when so required by the Supplier, produce the policy or other satisfactory evidence of insurance cover. The Customer shall, if the Supplier so requests, ensure that the Supplier's name is noted on the insurance policy. The Customer shall promptly notify the Supplier of any alteration to the terms of the policy or in the amounts for which insurance is provided.
16.5 If the Customer fails to effect and keep in force the insurance policy referred to in this Condition the Supplier may effect and keep in force such insurance and pay such premiums as may be necessary for that purpose and from time to time add the amount so paid by the Supplier to the Contract Price.
17. TERMINATION
17.1 If the Customer becomes bankrupt or insolvent, or has a receiving order made against it, or compounds with its creditors, or, being a corporation, commences to be wound up (not being a members' voluntary winding up for the purposes of amalgamation or reconstruction) or has an administration order made against it or carries on its business under an administrator, a receiver, a manager or liquidator for the benefit of its creditors or any of them, or takes or suffers any similar or analogous event and/or action in any jurisdiction; or the Supplier reasonably believes that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, the Supplier shall be entitled to terminate the Contract forthwith on immediate notice.
18. DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION
18.1 The Contract shall be governed by and interpreted in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
18.2 In the event of any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, the parties shall attempt to resolve such dispute in good faith and without recourse to legal proceedings.
18.3 If the parties are unable to resolve such dispute after the expiry of 10 Working Days from the date on which discussions between the parties began, either party may request to the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within 10 Working Days of the written request to do so.
18.4 If the dispute is not resolved pursuant to Condition 18.3, the matter shall be referred to, and finally resolved by court proceedings.
19. ENTIRE AGREEMENT
19.1 The Contract constitutes the entire agreement and understanding between the parties in respect of the matters dealt within it and supersedes any previous agreement arrangement or understanding between the parties relating to such matters.
19.2 Subject to Condition 12.6, each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in the Contract as a warranty. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of the Contract
20. GENERAL
20.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions which shall remain in full force and effect. If any provision of the Contract is found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted or amended, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
20.2 The rights and remedies provided by the Contract may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by the Supplier shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of the Contract or of a default under this Contract shall not constitute a waiver of any other breach or default and shall not affect the other terms of the Contract.
20.3 No variation of the Contract shall be valid unless it is in writing signed by or on behalf of each of the parties to the Contract.
20.4 Any notice given by one party to the other in connection with the Contract must be in writing and may be delivered personally or by pre‑paid first class post (or registered carrier if the address for service is outside the United Kingdom). In the case of pre-paid first class post, notices will be deemed to have been given two Working Days after the date of posting and in the case of registered carrier, five Working Days after the date of posting. Notices shall be delivered or sent to the other party at its registered office. Each party may specify by notice to the other a particular individual or office holder to whom any notices served on it are to be addressed, in which case a notice shall not be validly given unless so addressed.
20.5 The Customer may not assign or deal in any way with the Contract without the Supplier's prior written consent. The Supplier may assign or deal in any way with the Contract without the Customer's consent.
20.6 A person who is not a party to the Contract shall have no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This Condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
APPENDIX
Taking-Over Certificate
TAKING -OVER CERTIFICATE
To: UPLUS, a division of Radius Systems Limited
From: [Name of Customer]
DN: Insert short description of Works
In accordance with Condition 8 (Taking-Over) of UPLUS's Terms and Conditions of Sale; it is hereby certified that the Works specified below were completed [(except in minor respects that do not affect its commercial use, noted below)] and have passed the Taking Over Tests and are accordingly deemed to have been taken over by the Customer with effect from [ ] ("Taking-Over Date").
DN: Insert description of the Works to which this certificate applies
