General Conditions of Purchase and/or Hire
Conditions relating to the order shown overleaf (the "Order'') shall apply in addition to the following terms and conditions.
The "Supplier" means the party with whom Company contracts under this Order. The "Goods" means the materials, goods or equipment to be sold or hired by the Supplier to Company under this Order. "Company" means Melton Renewable Energy UK Limited or any of its subsidiary companies.
2.1 Company's obligations are subject to acceptance of the terms of the Order by the Supplier. Arrangements made orally are not binding without Company's written confirmation.
Materials and Workmanship
3.1 The Supplier warrants that the Goods comply with any specification or requirement intimated to the Supplier and or any other documents referred to in this Order and shall be of the best quality of their respective kinds incorporating first class workmanship throughout.
3.2 The Supplier guarantees that the Goods shall be fit for the purpose for which they are required and shall be of merchantable quality.
3.3 Where the Goods do not comply with the requirements of this Order, (which includes any defects appearing within 12 months from the time of supply of the Goods) the Supplier shall at its own expense make such alterations, repairs and replacements as Company may require. Such repairs, alterations or replacements shall be without prejudice to any other rights or remedies of Company. Any altered, repaired or replaced Goods shall be guaranteed by the Supplier as if they were supplied in place of the original Goods. If any such defect, error or omission is not made good within a reasonable time and to the reasonable satisfaction of Company, Company may repair or (at Company's option) replace the Goods at the Supplier's expense.
Warranties and Indemnity
4.1 Without prejudice to any other rights of Company, the Supplier shall indemnify Company against every liability which Company may incur to any other persons whomsoever and against all claims, demands, proceedings, damages, costs and expenses made against or incurred by Company by reason of any act, default, neglect or breach of its obligations under this Order by the Supplier, its servants or agents however arising.
Delivery and Performance
5.1 The Supplier guarantees delivery of the Goods to the time and place of delivery stated in this Order.
5.2 If the Goods or any other part thereof are not delivered by the due date (or if delivered by the due date and are not in accordance with this Order) Company may cancel this Order and refuse further delivery and obtain the Goods from other sources and the Supplier shall be liable to Company for any additional costs and expense incurred.
6. Change Orders
6.1 At any time prior to completion by the Supplier of the Supplier's obligations under this Order, Company may issue to the Supplier written instructions ("a Change Order'') modifying the specification, quantity or any other aspect of the Goods, extending or contracting the time for delivery or changing the place of delivery. Upon receipt of a Change Order, the Supplier shall be obliged to deliver in accordance therewith and the amount to be paid to the Supplier shall be revised by the Supplier on the basis of the prices or rates contained herein.
7.1 The Supplier shall ensure that all Goods are adequately protected against damage and deterioration in transit and unloading. The price for the Goods shall include for all charges for preparation, packing, boxing, crating, freight or special services of any kind.
8. Cancellation and Termination
8.1 Company may immediately determine this Contract by written notice to the Supplier for any reason, including (without limitation) on the occurrence of any of the following: any breach by the Supplier of its obligations hereunder; any cause or event beyond the Supplier's reasonable control which may prevent the Supplier from fulfilling its obligation hereunder; the Supplier committing an act of bankruptcy, entering into a deed of arrangement with its creditors, having a receiver or administrator appointed or being a company going into liquidation (other than a voluntary liquidation for the purpose of reconstruction or amalgamation).
8.2 Notwithstanding any other provision hereof, Company shall not be obliged to make any further payments to the Supplier until it has ascertained its costs, losses, damages and expenses arising out of such termination.
9.1 The Goods are at the Supplier's sole risk until actually delivered in accordance with this Order and accepted by Company, its agent or nominee.
10. Government Regulations
10.1 The Supplier warrants that the Goods comply with all applicable domestic or foreign codes, laws, regulations and requirements.
11. Title, Passing of Risk, and Liability
11.1 Title shall immediately and unconditionally vest in Company free from all claims or liens of the Supplier and third parties in respect of all work done and materials allocated to, incorporated in and intended for the Goods upon payment or delivery or upon allocation or incorporation whichever occurs first and the Supplier shall as soon as is reasonably practical set aside and mark with Company's name and the number of this Order such work and materials. Notwithstanding title vesting in Company as above the risk of loss and/or damage or defects shall remain with the Supplier until delivery.
11.2 Company's liability for any breach by it of this Order shall be limited to the reasonable direct costs of the Supplier (but in no event shall this include any loss of profit, loss of opportunity, interest, financial charges, penalties and/or, save where ordered by a court of competent jurisdiction, legal or other professional costs). The Supplier shall use all reasonable endeavours to mitigate any losses.
12.1 Payment will be made to the Supplier no later than the end of the month following the month in which the Supplier's invoice is received. Any amount properly due hereunder which is not paid by the final date for payment shall carry interest at the rate of two percent above the base rate from time to time of the Bank of England for the period from the final date for payment and the date upon which payment is made. The prices and rates stated in this Order are fixed, are deemed to be inclusive of all things required to undertake this Order and shall not be subject to adjustment or increase for any reason save as provided herein.
12.2 The rates and prices contained in this Order are exclusive of Value Added Tax
("VAT'') and Company shall pay to the Supplier any VAT properly chargeable to the Buyer pursuant to this Order. All invoices and statements must show separately the VAT rate, the amount of VAT charged, and the Supplier's VAT registration number.
13. Assignments and Sub-Contracting
13.1 The Supplier may not assign or transfer any interest in this Order other than with Company's written approval.
13.2 Company may freely assign the benefit of this agreement.
14. Intellectual Property
14.1 The Supplier will hold harmless and indemnify Company from and against all claims, demands and proceedings arising out of any infringement of any intellectual property rights including, but without limitation, trademarks, industrial designs and copyright in respect of the Goods including all loss suffered or occasioned by Company when dealing with such claims, demands and proceedings.
15. Technical Data
15.1 Copyright in (inter alia) drawings, technical data and the like relating to this Order that are provided by the Supplier shall remain vested in the Supplier. Company shall have the right to use any such documents and Company shall have the right to grant licenses to use any such documents to any third party upon any terms required by Company or the third party. Where such drawings and technical data are provided to the Supplier for the purpose of manufacture or fabrication of the Goods they remain Company's exclusive property and are returnable to Company on demand.
15.2 If there are any discrepancies between drawings, technical data, specification and other documents relating to this Order, the Supplier shall immediately give Company written notification of the discrepancy together with their proposal for removing the discrepancy at no cost to Company.
16. Inspection and Testing
16.1 Company's inspector or representative shall be entitled with the Contractor's written authority (where applicable) to access the premises of the Supplier to inspect or test the Goods and/or any procedure or quality controls at any reasonable time at the Supplier's premises or those of any sub-contractor or assignee of the Supplier.
17.1 The Supplier shall procure that the Goods will be properly and adequately insured against any loss or damage and that such insurance shall be maintained by the Supplier until ownership passes to Company.
17.2 The Supplier will indemnify Company against all claims (including consequential loss in respect of loss or damage to persons and property) by Company or any third parties arising out of or in consequence of the supply of the Goods and shall, at its own cost, take out and maintain adequate insurance including Employer's Liability and third party and (where relevant) professional indemnity insurance and shall supply details of such insurance when requested to do so by Company. If the Supplier fails to take out and maintain insurance as above, Company may take out such insurance and deduct the cost of so doing from monies which would otherwise be due to the Supplier.
18.1 All information of a technical or business nature disclosed by Company to the Supplier either prior to or after the date of this Order is confidential and shall only be disclosed by the Supplier to such persons as may be necessary in order for the Supplier to fulfil its obligations hereunder.
18.2 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including, without limitation, (i) the Data Protection Act 2018 and (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 2018 and the GDPR.
19.1 Any dispute as to the reasonable amount by which the price is to be adjusted in consequence of a Change Order under clause 6.1 or the amount of any sum payable upon cancellation under clause 8.1 shall be referred to an independent expert to be appointed by agreement between the parties. The expert shall make a ruling as an expert and the parties shall be irrevocably bound thereby.
20. Hire Orders
20.1 In the event the Supplier makes Goods available for hire by Company, the final day of the hire period must be stated on the front of this Order. Failure by the Supplier to comply with this provision shall relieve Company from making any payment it considers to be unreasonable.
20.2 The Supplier shall arrange for the collection and removal of the Goods from Company within five (5) days of the end of the hire period.
20.3 Where any Goods are to be hired by Company from the Supplier in respect of such Goods the Construction Plant-hire Association ("CPA'') Model Terms and Conditions current at the date of this Order shall apply to the extent that the terms of this Order are inconsistent with a contract of hire.
21. Governing Law and Jurisdiction
21.1 This agreement 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 laws of England and Wales.
21.2 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 this agreement or its subject matter or formation.
Service Order General Terms and Conditions
Conditions relating to the order (the "Order'') shall apply in addition to the following terms and conditions.
The "Service Provider" means the party with whom Company contracts under this Order. "Company" means Melton Renewable Energy UK Limited or any of its subsidiary companies.
1. The Service Provider shall design (if required) execute and complete with the best materials and workmanship the works described in this Service Agreement and in accordance with the scope of the works and specification(s). The Service Provider warrants that the works shall be fit for the purposes for which they are intended or required.
2. The Service Provider shall:
2.1 Perform the Service Agreement works with reasonable skill and care and make good any defects appearing therein during the defects liability period (which unless otherwise stated in this order shall be twelve months from the date of completion) free of charge.
2.2 Maintain insurance with reputable insurers and indemnify Company against any cost, expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of:
personal injury to or the death of any person whomsoever arising out of or caused by the carrying out of the Service Agreement works, unless and to the extent that the same is due to any act or neglect of Company or any person for whom Company is responsible (which for the avoidance of doubt shall not include any other service provider engaged on the project or any of their sub-contractors, suppliers or personnel);
2.2.2 any injury or damage to property, real or personal, (other than the Service Agreement works) including, but without limitation the property of Company arising out of or caused by the carrying out of the Service Agreement works and provided always and to the extent that the same is due to any negligence omission or default of the Service Provider, his employees, agents, sub-contractors or suppliers.
2.3 Without prejudice to the foregoing, effect and maintain suitable public liability insurance.
2.4 Be entitled at his own risk to the non-exclusive use of the services and facilities provided by the Company for common use where defined overleaf, but subject thereto shall provide everything necessary for the execution of the Service Agreement works. The Service Provider acknowledges that any lack of availability of the services and facilities to be provided by Company for common use shall not give rise to any claim for an extension of time or to compensation.
2.5 On completion of the Service Agreement works, remove all plant and tools of the Service Provider and clear away all rubbish occasioned by his operations and leave the job clean and tidy to the satisfaction of Company.
2.6 Make good and indemnify Company against any injury, loss or damage occasioned by the Service Provider or his workmen or sub-contractors.
2.7 Observe and perform all obligations placed upon him by statute or at common law and all relevant safety regulations including in particular the Health and Safety at Work Acts CDM Regulations and COSHH Regulations. The Service Provider will be required to supply a COSHH assessment and safety policy.
2.8 Comply with any EC Directive any Act of Parliament (including without limitation the Town & Country Planning Act 1990 as amended by the Planning & Compensation Act 1991 the Health & Safety at Work (Etc) Act 1974 any Codes of Practice guidelines recommendations or safety procedures published by the Health & Safety Executive and the Occupiers Liability Act and any instrument rule or order made under any of the same) and in particular the Service Provider shall perform the duties and undertake the responsibilities allocated to a contractor and where required a designer pursuant to the CDM Regulations 2015 or any regulation by law or decision of any local authority or of any statutory undertaking public body or company which has any jurisdiction with regard to the Service Agreement works or with any systems to which the Service Agreement works will be connected.
2.9 Not use in the Service Agreement works any materials or substances which are generally known within the building industry or which become known during the course of the Project to be deleterious or hazardous to health and safety.
3. Payment will be made to the Service Provider no later than the end of the month following the month in which the Service Provider’s invoice is received. Any amount properly due hereunder which is not paid by the final date for payment shall carry interest at the rate of two percent above the base rate from time to time of the Bank of England for the period from the final date for payment and the date upon which payment is made.
3.1 The prices and rates stated in this Service Agreement are fixed, are deemed to be inclusive of all things required to undertake this Service Agreement and shall not be subject to adjustment or increase for any reason save as provided herein.
3.2 The rates and prices contained in this Service Agreement are exclusive of Value Added Tax (“VAT”) and Company shall pay to the Supplier any VAT properly chargeable to the Buyer pursuant to hereto. All invoices and statements must show separately the VAT rate, the amount of VAT charged, and the Supplier’s VAT registration number.
4. The Service Agreement sum shall be deemed to include all costs and expenses and in particular but without prejudice to the generality of the foregoing the Service Provider shall:
4.1 Be required to ensure that adequate labour is on site at all times to properly complete the Service Agreement works within the programme period and in accordance with any amendments thereto.
4.2 Provide at all times competent supervision which shall be responsible to Company for progress and quality of the Service Agreement works.
4.3 Include all plant, tools, materials, power and fuel necessary for the completion of the Service Agreement works.
4.4 Take all site dimensions, agree all dimensions with Company and check site dimensions in relation to the drawings. The Service Provider shall accept full responsibility for the accurate setting out of the Service Agreement works.
4.5 Not claim for payment of overtime unless specifically ordered by Company in writing.
4.6 Conform to the provisions of the current laws in the context of the control of the emission of noise.
4.7 Allow for all necessary measures to reduce levels of dust, noise etc.
4.8 Be responsible for handling and moving (including unloading, hoisting, stacking, storing and protecting) all materials to the final place of fixing.
4.9 Provide all necessary protection of the Service Agreement works against damage and inclement weather until such works are complete.
4.10 Clear away all rubbish and debris as it is produced to a point designated by Company and provide for cleaning the Service Agreement works on completion and leave the same to the entire satisfaction of Company.
4.11 Be responsible for loss of or damage to materials or goods properly on site for incorporation into the Service Agreement works until completion of such works.
5. The Service Provider shall comply with all reasonable orders of Company to vary the Service Agreement works.
5.1 Variations will be priced using the scheduled rates where applicable, or pro-rata thereto. New items of work to be at prices agreed prior to the time of execution.
5.2 The term “Variation” means the alteration or modification of the design, quality or quantity of the Service Agreement works shown upon or referred to in the drawings, scope of work or specification(s). No variation will be deemed to have been instructed unless and until confirmed in writing by Company. No approval expressed or implied instruction by Company shall relieve the Service Provider of his responsibility under this Service Agreement.
6. Daywork rates for labour shall be fully inclusive of all costs associated with the employment of labour in accordance with the definition of prime cost of daywork published by the Royal Institution of Chartered Surveyors.
6.1 Where the Service Provider considers that work to be executed may be of daywork nature he shall advise Company accordingly prior to commencing work and if Company agrees in writing the rates provided herein shall apply.
6.2 Where Company has agreed that daywork applies the Service Provider shall submit record sheets on a daily basis which shall only be valued when countersigned by Company whose decision in these respects shall be final and binding.
7. The Order may be terminated at any stage by Company giving five working days’ notice in writing to the Service Provider.
8. The Service Provider shall not without the written consent of Company assign the Service Agreement to others.
8.1 Company shall be fully entitled to assign and/or charge or otherwise transfer all of its rights under this Deed at any time without the consent of the Service Provider being required.
8.2 The Service Provider shall not without the written consent of the Company sub-let any portion of the Service Agreement works. No sub-letting by the Service Provider and no consent of Company shall in any way relieve the Service Provider from his responsibility for the execution and completion of the Service Agreement works in accordance with the provisions of this Service Agreement.
9. The Service Provider as beneficial owner of his designs, plans, models, drawings, specifications, programmes, schedules, and any other materials created or supplied by him (“Proprietary Materials”) assigns to Company with effect from the date of commencement of the Service Agreement works the entire copyright and other proprietary rights in the Proprietary Material.
9.1 Notwithstanding any assignment effected pursuant to clause 8 the Service Provider shall be entitled under a royalty-free non-exclusive licence to use the Proprietary Materials to such an extent and for as long as may be necessary for the proper performance of the Service Agreement works. Such licence shall not carry the right to grant sub-licences nor shall it be otherwise transferable to third parties.
10. The Service Provider undertakes that it shall not disclose to any third party or make use of any information of any kind whatsoever relating to the Service Agreement works.
10.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including, without limitation, (i) the Data Protection Act 2018, and (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 2018 and the GDPR.
11. Where materials and/or equipment installed in, used by or delivered to this contract by the Service Provider could constitute any risk to health and safety (as described in the current Health and Safety at Work etc. Act and the CDM Regulations 2015) then they must be clearly marked with warning notices which detail the risks inherent in the material and/or equipment, the precautions necessary to eliminate the risk and the actions to be taken in case of accident.
12. Contracts (Rights of Third Parties) Act 1999 - The parties hereby confirm that nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any provision of the Agreement.
13. All disputes and differences regarding any matter arising out of the Service Agreement shall, after written notice by either party to the other, be referred to an adjudicator. The Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”) (as amended from time to time) shall apply to such adjudication save that paragraph 7(2) of the Scheme shall be amended by the addition of “Provided that such written statements shall not exceed 20 single sided sheets of A4 pages in total”. The decision of the adjudicator shall be final, unless either party gives notice that it intends to refer the matter to the Courts of England and Wales.
14..1 This agreement 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 laws of England and Wales.
14.2 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 this agreement or its subject matter or formation.
2 January 2019