TERMS & CONDITIONS
THESE CONDITIONS APPLY TO ALL PROPOSALS AND CONTRACTS FOR THE SUPPLY OF GOODS, MATERIALS AND SERVICES BY BAYFIELD ELECTRICAL LTD.
1.1 In these conditions:
‘Customer’ means the person, firm or company to whom the Proposal is addressed, or the person, firm or company for whom the Supplier carries out the Works, or where such person, firm or company acts as agent for another, that person, firm or company and its principal jointly and severally.
‘Conditions’ means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier and/or set out in the Proposal.
‘Contract’ means the contract for the Works, consisting of the Proposal (and any documents referred to therein), the Project Acceptance Form and these Conditions.
‘Exceptions' mean those items listed in the Proposal that are not included in the Price.
‘Goods’ means the goods which the Supplier is to supply in accordance with the Contract.
'Proposal' means the proposal issued by the Supplier.
'Price' has the meaning given in clause 5.
‘Supplier’ means Bayfield Electrical Ltd (registered in England and Wales under number 05793210).
‘Works’ means the works to be carried out by the Supplier under the Contract.
2. Supplier’s Obligations
2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions.
2.2 The Supplier shall carry out the Works in accordance with the Proposal in a good and workmanlike manner and complete the Works in accordance with the Contract using materials specified or otherwise of a good and suitable standard and which are not generally regarded as deleterious.
2.3 The Supplier may appoint sub-contractors to perform any or all of the Works, but shall be liable for the acts and defaults of all such sub-contractors as if they were its own acts and defaults, and shall not be relieved of any obligation hereunder by reason of the use or appointment of sub-contractors.
2.4 The Supplier’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
3. Customer’s Obligations
3.1 The Customer will ensure clear, unimpeded and unrestricted access for delivery of the Goods and for the execution of the Works on the dates agreed between the parties. In the event unrestricted access is not given, the Supplier reserves the right to charge the Customer reasonable additional costs.
3.2 The Customer will ensure (at its own expense) that effective heating, ventilation, lighting and power is provided to the premises at all times to enable the Supplier to carry out the Works.
3.3 Save where agreed otherwise in writing, the Customer shall ensure that all legal and statutory permissions including but, not limited to, planning permission, building regulation approval, listed building consent and any other necessary licences or notices required, have been obtained prior to the Supplier commencing the Works. The Customer shall indemnify the Supplier against any claims arising as a result of the Supplier failing to comply with this clause.
3.4 The Customer will perform the duties required under the Construction (Design and Management) Regulations 2015 including acting as or the appointment of Principal Designer, where not covered by the Proposal, the provision of all pre-contract information, as required, to enable the Supplier to prepare the Construction Phase Health and Safety plan.
3.5 The Customer warrants that the premises where the Works are to be carried out has been soundly constructed and is capable of withstanding the Works. The Customer shall provide to the Supplier on request a full report on all hazardous materials within the premises and full record drawings of the premises, including its services and structure.
3.6 The Customer warrants that there is an appropriate Asbestos Management report extant for the works area of the premises, where such is required and that this will be provided to the Supplier in a timely manner. The cost of any requisite statutory asbestos surveys, including refurbishment and demolition surveys, will be a chargeable additional cost where not included within the Proposal.
3.7 The Customer warrants that all incoming services to the premises are adequate for the proposed Works. This includes the incoming mains electricity supply and gas supply.
3.8 The Customer shall provide to the Supplier copies of current condition certificates and servicing reports for all services as required including, but not limited to, emergency lighting, gas installations, water installations, heating, ventilation and air conditioning including appropriate service records.
3.9 The Regulatory Reform (Fire Safety) Order 2005 confers a responsibility on the building occupier to carry out a risk assessment in relation to fire safety. The Customer shall provide the Supplier with that assessment as required. It will be assumed that the Customer accepts the opinion of the statutory Fire Officer and the requirements of Building Control as it may affect any aspect of that assessment.
3.10 Unless otherwise agreed, the Customer will make adequate provision for the welfare requirements of the Supplier’s operatives when they are carrying out the Works on the Customer’s premises.
3.11 The Customer may not assign the Contract without the Supplier’s prior express written consent.
3.12 The Customer is responsible for security of the premises at all times. The Customer shall ensure that there is an adequate secure storage area at the premises for all materials which are to be used in conjunction with the Works to be stored as necessary.
4. Proposals, Acceptance and Specifications
4.1 Upon receipt of the Proposal, the Customer shall sign and return the Proposal to the Supplier.
4.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Proposal and unless otherwise expressly set out therein the Supplier gives no warranty that the Goods or the Works will conform to any particular standard specification or test.
4.3 By signing the Proposal the Customer is deemed to have accepted that the goods and materials referred to in the Proposal (including the amount of goods and materials) are suitable for the Works.
4.4 The Supplier reserves the right to make any changes to the Goods set out in the Proposal which are required to conform to any applicable safety of other statutory requirements or which do not materially affect their quality or performance.
4.5 The descriptions of the Goods set out in the Proposal are not binding. The Supplier reserves its right to change any of the Goods to the nearest commercially available alternative due to a change in supply, price or technical developments.
5. Price of the Goods
5.1 The Price shall be the Price set out in the Proposal.
5.2 Save where agreed otherwise in writing, the Price does not include for those items listed as Exceptions.
5.3 If at the Customer’s request or approval, the Supplier agrees to carry out any of the Works outside normal working hours, (Monday to Friday 7:00am to 5:00pm) then, where not defined in the Proposal, the Customer agrees to pay the additional cost of such overtime working.
5.4 The Price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay the Supplier.
6. Terms of payment
6.1 The Price shall be paid as set out in the proposal.
6.2 If a payment method is not set specified in the proposal then the Supplier shall invoice the Customer on the 30th of each month. The date that the Customer receives the Supplier’s invoice shall be the due date.
6.3 The final date for payment of the Supplier’s invoice shall be 14 days after the due date.
6.4 Within 5 calendar days of each due date the Customer may give a payment notice to the Supplier specifying the amount of the interim payment to be made and the basis on which such amount is calculated (a “Payment Notice”). If the Customer fails to issue a Payment Notice in accordance with this clause, the Supplier’s invoice will become the payment notice by default.
6.5 If the Customer intends to pay less than the amount stated in a Payment Notice (or any form of default payment notice) then the Customer shall give a pay less notice to the Supplier not later than 5 days before the final date for payment specifying the revised amount of the interim payment to be made and the basis on which such amount is calculated.
6.6 In the event of a failure to pay any sum due to the Supplier by the Customer by the final date for payment the Supplier shall have the right to:
6.6.1 Suspend, following 7 days’ notice in writing, all or part of the Works. Upon the ending of a suspension the Customer shall pay the Supplier all reasonable costs of the suspension and shall grant the Supplier an extension of time for the period of the suspension; and / or
6.7.2 Charge the Customer interest for the period of late payment at a rate of 5% above the base rate of the Bank of England, or 2% per month, whichever is greater.
6.8 All amounts due under the Contract shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.9 The Supplier may at any time, without notice to the Customer, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
7.1 The Customer may, without invalidating the Contract, instruct an addition to or omission from or other change in the Works or change by instruction the order or period in which they are to be carried out. Any such instructions shall be valued by the Supplier on the basis of the rates and prices in the Proposal or, where not available in the Proposal, on a fair and reasonable basis. The Supplier shall in addition be entitled to reasonable direct loss and/or expense incurred by the Supplier or its agents as a result of the change instructed.
7.2 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the Supplier and the Customer.
8. Contract Period
8.1 Any dates specified by the Supplier for the delivery of the Goods and or for the installation of the Works, either set out within the Proposal or elsewhere, are approximate only and shall not form a condition of the Contract. The Supplier will not be liable for any losses whatsoever that arise as a result of such dates not being adhered to. Time shall not be of the essence of the performance by the Supplier.
8.2 In the event the Customer delays the Works for whatever reason the Supplier reserves its right to charge the Customer for any costs it incurs as a result of such delay.
9. Risk, Title and Defects
9.1 The risk in any Goods or part thereof shall pass to the Customer on delivery to site, or payment (if earlier).
9.2 If the Goods are collected by the Customer, risk in those Goods shall pass to the Supplier upon collection.
9.3 All goods, materials and equipment shall remain the property of the Supplier until all sums invoiced by the Supplier have been paid to the Supplier by the Customer.
9.4 Until the Price has been paid in full to the Supplier, the Customer grants the Supplier an irrevocable licence to enter the premises where the Goods are stored in order to inspect them or to repossess them at any time.
10.1 If the Customer cancels or rescinds the Contract before any Goods are supplied or before any Works are carried out then the Supplier may, at its absolute discretion, accept the cancellation or rescission. If the Supplier does this it shall serve notice in writing accepting the cancellation or rescission of the Contract within ten days of such cancellation or rescission whereupon the Customer will pay to the Supplier as agreed damages a sum equal to 25% of the Price plus VAT within 20 days of cancellation or rescission of the Contract.
10.2 If either party:
10.2.1 makes a proposal for a voluntary arrangement or is subject to an Administration Proposal or has a Provisional Liquidator appointed or has a Winding Up Proposal made or passes a resolution for voluntarily winding up (other than for amalgamation or reconstruction) or is otherwise “insolvent” for the purposes of Section 113 (2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended); or
10.2.2 is, in the reasonable opinion of the other party, in breach of the Anti-Bribery and Corruption Policy or any other obligations under clause 3.22 or 3.23; or
10.2.3 is, in the reasonable opinion of the other party, believed to have engaged in anti-competitive behaviour, such that their actions would be in contravention of the Competition Act 1998 and/or the Enterprise Act 2002;
The other party may terminate the Contract with immediate effect.
10.3 The Customer shall have no other right to cancel or terminate the Contract except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation or termination.
10.4 If the Customer commits a breach of Contract which is considered by the Supplier to be of a fundamental or repudiatory nature, the Supplier may terminate the Contract with immediate effect.
10.5 The Supplier may terminate the contract with 7 days’ notice if the Supplier fails to make payment in accordance with clause 5.
10.6 In addition to any other rights and remedies which the Supplier may have, the Supplier may at any time by 7 days' written notice to the Customer immediately terminate the whole or any part of the Supplier's engagement under the Contract.
11.1 All designs, sketches, drawings or other documentation prepared by the Supplier for the purposes of carrying out the Works, and the copyright in such documents, shall remain the Supplier’s property.
11.2 All designs, sketches, drawings or other documentation prepared by the Supplier shall be confidential and the Customer shall not share any such documentation with any third party without the express permission of the Supplier.
12.1 Any drawings or other visuals produced are an artistic representation only and do not form part of the Contract.
12.2 The Proposal shall take precedence over any drawings or other visuals.
13 Insurance and Liability
13.1 The Customer shall ensure that both the Works and the Goods are covered by an insurance policy taken out by the Customer (or other third party). Such insurance must be ‘allrisks’ insurance to cover all materials from the point at which they are delivered to the premises (or from the point of collection by the Customer if applicable). Such insurance must also cover accidental damage to the premises (or to any other goods at the premises) that arises as a result of the Works being carried out.
13.2 In the event that the premises, or goods at the premises, are damaged as a result of the Supplier carrying out the Works, the Customer shall in the first instance claim such loss from the insurance policy.
13.3 In the event the Supplier is ever found to be liable for damage to any goods at the premises, the Supplier’s liability for the same will be limited to the cost at which the Customer purchased or manufactured such goods. In any event the Supplier shall not be liable for any unavoidable damage in this regard.
13.4 The Supplier shall have no liability to the Customer for loss of profit or for any consequential loss.
13.5 The Supplier's total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price.
13.6 Nothing in these conditions shall limit the Supplier’s liability for death or personal injury arising as a result of the Supplier’s negligence.
14. Dispute Resolution
14.1 If a dispute or difference arises between the Customer and Supplier the parties agree to meet in good faith to attempt to resolve the dispute or difference that exists between them.
14.2 If any dispute or difference concerning the Works shall arise between the Customer and Supplier, such dispute or difference may be referred to adjudication such adjudication to be conducted in accordance with the Scheme for Construction Contracts Regulations (England and Wales) 1998 (as amended). For the purposes of such adjudication the parties agree that the nominating body for appointment of the adjudicator shall be the President or Vice President of the Royal Institute of Chartered Surveyors.
15. Governing law and Jurisdiction
15.1 The governing law of this contract shall be the law of England and Wales.
15.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Works or these Conditions (including non-contractual disputes or claims)
16. Third Party Rights
Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.