Conditions of Sale and Service

Definitions

The “Buyer” means the Company or its representative who agrees to buy Goods from the Seller.
The “Seller” means D. Benson Controls Ltd (t/a Bensons Control Panels or Bensons Gas Engineering).
“Conditions” means the Conditions of Sale set out in this document and any special conditions agreed in writing by the Seller.
“The Order” means the written instruction to proceed with the work quoted.
“Insolvent” shall mean as defined in Section 113 of the Housing Grants, Construction and Regeneration Act, 1996.
“Services” shall mean the services provided by the Seller as detailed within and limited by their Offer.

1. Conditions

All contracts of sale made by the Seller shall be deemed to incorporate these terms and conditions, which shall prevail over any other

document or communication from the Buyer. If any amendments to these terms and conditions are required, they should be requested in writing. Work will not begin until an order has been received. Acceptance of delivery of goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.

2. Programme of works

The programme of works will be agreed between the Buyer and the Seller. The Seller shall not be responsible for any programme or works that he has not agreed. The Seller may review this programme at any time, or if the Buyer does not maintain the agreed dates and time is not of the essence.

3. Drawings and Approvals

Where the Seller has agreed to provide drawings, these drawings shall be subject to the approval of the Buyer. The drawings are provided for the control panels and internal wiring only. It is the responsibility of the Buyer to ensure that the drawings meet their requirements.

Procurement of any materials and any manufacturing will not commence until full written approval has been received.

4. Prices

The Price shall be the price contained in the Seller’s Quotation. All Prices are exclusive of VAT. Charges for packing, postage and carriage are generally included. However, please refer to our quotation for specific details. Prices shall be those ruling on the date of the offer, providing that acceptance in writing is received by the Seller within 30 days of the date of the Offer or such other period as is specified in the Offer. Where the Buyer cannot satisfy this Condition, the Seller reserves the right to charge prices ruling at the date of dispatch, should there be any change in costs or exchange rates.

5. Payment for Supply of Goods only Works

The total purchase price, including VAT and delivery charges, will be included on the invoice. Where credit facilities have been agreed, payment is due in full on the terms of credit agreed, which shall be net monthly. Payment must be received no later than the last working day of the month following the date of the invoice. Time for payment shall be of the essence, and any failure to pay shall entitle the Seller at its option to treat the Contract as repudiated by the Buyer or to delay delivery until paid. If any act or proceedings shall be commenced in which the Buyer’s solvency is concerned, all monies under any transaction covered by these Conditions shall become immediately due and payable. Unless specifically stated, no allowance has been made for retentions.

Where the works are for the supply of Goods only, the Seller shall be entitled to raise invoices upon delivery. All payments due from the Buyer to the Seller shall be made in full without deduction, abatement or set-off. Payment of invoices shall be net monthly, and payment must be received not later than the last working day of the month following the date of the invoice. Any change to the payment conditions for the supply of goods only or such other payment terms must be agreed in writing by the Seller.

In the event of default in payment by the date specified, the Buyer shall pay simple interest on the amount outstanding at the rate of 8% per annum above the base rate of Bank of England, current at the date that the debt became overdue for payment. The foregoing provision shall be in addition to and without prejudice to any other remedies available to the Seller for non-payment.

6. Variations

The Seller will identify any variations to the agreed scope of works as soon as practically possible. Variations are deemed acceptable by one or more of the following methods;

a) The Seller receives an official order covering the work, either valued or not.

b) The Seller receives a written instruction covering the work, either valued or not.

c) The Seller issues a verbal instruction covering the work, either valued or not.

d) The Buyer approves drawings that incorporate variation changes.

Any variation that gives rise to a change of scope of work will make any previously agreed programme of Works invalid and subject to a new agreement between the Seller and the Buyer. Payment for any variations to the contract will be due at the same time as the original invoice.

7. Interest on Overdue Invoices

Interest on overdue invoices shall accrue from the date that payment becomes due from day to day until the date of payment at 8% above National Westminster Bank PLC's base lending rate for the time being in force per calendar month.

8. Warranty and Liability

The Seller warrants that the Goods will, at the time of delivery, correspond to the approved drawings. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977, Section 12) all other warranties, conditions or terms relating to fitness for purpose, merchantability, or condition of the Goods, whether implied by Statute, Common Law or otherwise are excluded and the Buyer is satisfied as to the suitability of the Goods for the Buyer’s purpose.

9. Delivery

Where a specific delivery date has been agreed, and this delivery date cannot be met, the Buyer will be given the option to agree on a new delivery date. Whilst every reasonable effort shall be made to keep any delivery date, time of delivery shall not be of the essence and the Seller shall not be liable for any losses, costs, damages or expenses incurred by the Buyer or any other person or Company arising directly or indirectly out of any failure to meet any estimated delivery date. Delivery of the Goods shall be made to the address detailed on the Buyer's purchase order. The cost of delivery, where included in the selling price, will be delivered by carrier or flat back truck. Delivery will be within normal working hours. Offloading and positioning of any product is excluded unless specifically included within the quotation.

10. Ownership and Risk

The risk in Goods shall pass to the Buyer upon delivery of the Goods or upon the Goods being appropriated to the Buyer, but kept at the Seller’s premises at the Buyer’s request. The Seller remains the owner of the Goods affected by the Contract until the Seller has been paid in full for such Goods. The Buyer shall inspect the Goods immediately upon receipt and shall notify the Seller within a reasonable time of delivery if the Goods are damaged or do not comply with any of the Contract. If the Buyer fails to do this, he is deemed to have accepted the Goods. Any Goods in respect of which any claim of defect or damage is made shall be preserved by the Buyer intact together with the original packing at the Buyer’s risk and either:

a) Retained by the Buyer for a reasonable period to enable the Seller or its agent to inspect or collect the Goods or

b) At the Seller’s option, returned by the Buyer to the Seller, who will determine if the Goods are in fact defective.

11. Cancellation

The Seller reserves the right to cancel a contract at any time. Should the Buyer cancel the contract, or any part, then he shall remain liable for any costs, including reasonable overhead and profit associated with the work carried out to that point. Including, but not limited to, drawings, materials, loss of production, and loss of profit.

12. Force Majeure

In the event that the Seller is prevented from carrying out its obligations under a contract for sale as a result of any cause beyond its control such as, but not limited to, Acts of God, War, Strikes, Lock-outs, Flood, Pandemics and Failure of third parties to deliver goods, the Seller shall be relieved of its obligations and liabilities under such contract for sale for as long as such fulfilment is prevented.

13. No Waiver

The Seller’s failure to insist upon strict performance of any provision of these Conditions shall not be deemed to be a waiver of its rights or remedies in respect of any present or future default of the Buyer in performance or compliance with any of these conditions.

14. Liability

Except as may be implied by law where the Buyer is dealing as a consumer, in the event of any breach of these Conditions by the Seller the remedies of the Buyer shall be limited to damages which shall in no circumstances exceed the price of the Goods and the Seller shall under no circumstances be liable for any indirect, incidental or consequential damage. Notwithstanding the foregoing, nothing in this Clause shall be taken as excluding liability for death or personal injury resulting from negligence by the Seller.

15. Complaints

If you have a complaint about our service or any goods or services you receive from the Seller, please contact us immediately. You will be contacted as soon as possible, and we aim to provide a resolution within 5 working days. All complaints will be dealt with in a fair and confidential manner.

16. Law

The contract entered into between the Buyer and the Seller shall be governed by the laws of England and Wales, and any claim or dispute arising from such contract shall be subject to determination by the courts of England.

17. Provisions of Services

Where the Seller provides Services which are not the Supply Only of Goods, then the following Clauses 17-27 shall also form part of the Conditions and shall take precedence over any other part of the Conditions within Clauses 1-16, which may be at variance or in conflict.

18. Additional Definitions

In relation to Clauses 20-28 hereunder, “Adjudication Rules” shall mean the Rules described in the Scheme for Construction Operations referred to in the Housing Grants Construction and Regeneration Act, 1996, as amended by the Local Democracy, Economic Development and Construction Act, 2009.

19. Additional Liability

The provisions of Clause 14 in respect of liability also apply to the Services.

20. Design/ Selection of Materials/ Performance Specification

The Seller will exercise all reasonable skill and care in:

a) The design of the Services insofar as the Services have been or will be designed by The Seller; and

b) The selection of materials for the Services, insofar as such materials have been or will be selected by The Seller: and

c) The satisfaction of any performance specification or requirement insofar as such performance specification/ or requirement is included or referred to in The Seller's Offer.

21. Risk

Notwithstanding the provisions of Clause 10 above, the Seller shall take responsibility for the protection on site of any Goods installed by the Seller or any of the Seller’s Sub-Contractors until such time as they have become fully and finally incorporated into the Services. For the purposes of this Clause and for the avoidance of doubt, Goods shall be deemed to have been fully and finally incorporated once they have been fixed to the structure.

22. Extension of Time/Loss & Expense

The Seller shall not be liable to the Buyer or deemed to be in breach of any contract by reason of any delay in performing, or any failure to perform, any of Seller’s obligations in respect of the Goods or Services, if the delay or failure was due to any cause beyond Seller’s reasonable control. In addition, the Buyer shall pay to the Seller any costs incurred by the Seller as a result of the said failure or delay, where such failure or delay is caused by any act, omission, neglect or default of the Buyer, his Principals or any party for whom the Buyer is responsible.

23. Variations

No variation shall vitiate this agreement. The Buyer may make a variation to the Services, and the Seller shall be paid for any additional costs arising out of or in connection with the variation and shall be entitled to extend/postpone the agreed delivery dates or period for completion to take account of the variation. The additional costs referred to herein shall be calculated at rates analogous to The Seller’s Offer; however, effect shall be given to the quantities, timing and particular circumstances related to any such variation. Where rates analogous cannot reasonably be applied, such additional costs shall be calculated at reasonable market rates.

24. Payment

Where the agreement includes the provision of Services by The Seller, the following terms shall apply in lieu of Clause 5 herein:

a) The price shall be paid to the Seller in monthly instalments calculated based on the value of the Services carried out by the Seller during each calendar month, and the Services shall be valued by the Buyer accordingly.

b) Unless agreed otherwise, the Seller shall be entitled to submit either an Invoice or an Application for Payment to the Buyer specifying the amount of payment or payment considered due and the basis on which they are calculated. The first and every subsequent claim submitted by The Seller shall be valued to the end of each calendar month (the Valuation Date) and shall include the value of Services that The Seller has carried out during that period, less any amounts included in previous claims. Nothing contained in these Conditions, save as provided for in Clauses 24 and 25, shall be construed as affecting the value of the sum due to The Seller.

c) Where credit facilities have been agreed, payment shall be net monthly, and payment must be received not later than the last working day of the month following the date of invoice (the “Final Date for Payment”).

d) In respect of any payments which are not paid by the Final Date for Payment, simple interest shall be payable at the rate of 8% per annum over the base rate of The Bank of England, current at the final date of payment.

e) Where the Seller have elected, or Parties have agreed, to submit claims in an Application for Payment format, the Seller shall submit an invoice for the notified sum within the period beginning with the date that notification of the sum due should have been issued by the Buyer and the date 5 days prior to the final date of payment to which it relates, however should The Seller fail to issue any invoice as aforesaid, this shall in no way relieve the Buyer from the obligation to pay The Seller the notified sum by the final date of payment, or relieve the Buyer of any liability for interest under clause 24(d).

f) Where The Seller have elected to submit an invoice and not an Application for Payment and where the Notified Sum does not equal the value claimed, The Seller shall issue a credit note or a further invoice to account for the variance within the period beginning with the date that notification of the sum due should have been issued by the Buyer and the date 5 days prior to the final date of payment to which it relates. The Seller fails to issue any credit note or invoice as aforesaid, this shall in no way relieve the Buyer from the obligation to pay The Seller the notified sum by the final date of payment, or relieve the Buyer of any liability for interest under clause 24(d).

g) Without affecting The Seller’s other rights and remedies, if the Buyer fails to pay The Seller the notified sum in full by the final date of payment as required by these conditions and the failure continues for 7 days after The Seller has given notice to the Buyer of his intention to suspend all or part of his obligations under this contract and the ground or grounds on which it is intended to suspend performance, The Seller may suspend all or part of such performance until payment is made in full. Where the Seller have suspended all or part of its performance pursuant to this clause, the Seller shall be entitled to an extension of time and reimbursement of all reasonable costs incurred, and any such suspension period shall be treated as an act, omission, neglect, or default of the Buyer under clause 14.

25. Pay Less Notice

Not later than 5 days prior to the final date of payment the Buyer may give a written notice (the “pay less notice”) to The Seller specifying the sum that the Buyer considers to be due and the basis upon which this sum is calculated, and this sum shall become the notified sum due and payable by the final date of payment. If the Buyer fails to issue a timely pay less notice within the prescribed timescales or if the notice fails to fully identify the basis on which the sum specified therein is calculated, it will pay the notified sum otherwise due by the final date of payment.

26. Adjudication Provisions

Subject to clause 16 herein, if any dispute or difference arises out of or in connection with the Services either The Seller or the Buyer may give notice in writing (the “notice to refer”) requiring the dispute or difference to be referred to an Adjudicator who shall be appointed and act in accordance with the Adjudication Rules. The notice to refer may be given at any time, save that the notice to refer issued by the Buyer must be addressed to the Seller's Secretary at the address detailed in the Seller’s Offer. The Adjudication Rules shall form part of these conditions where clause 16 applies. The parties to any Adjudication shall pay their own costs, and the Adjudicator shall be empowered to determine which party will pay their costs based upon the outcome of the Adjudication. The Adjudicator shall be entitled to correct clerical or typographical errors arising by accident or omission within 5 days of issuing his decision to the parties.

27. Exclusion of Third-Party Rights

Notwithstanding any other term, this Agreement confers a benefit only on the Buyer and the Seller, and only the Buyer and the Seller may enforce its terms.