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1. INTERPRETATION
| 1.1 |
In these Conditions:- |
| “we” “us” |
means Bisca UK Ltd, company no. 6983209 |
| “Contract” |
means the contract for the purchase and sale of
the Product and Services subject to these Conditions; |
| “Contract Price” |
means the total price for the Contract quoted
by us to you at the end of the Design Commission stage; |
| “Conditions” |
means the terms and conditions set out below; |
| “Product” |
means the Product which you have commissioned
us to design and manufacture for you; |
| “Intellectual Property Rights” |
means any patent, know how, trade mark, service
mark, trade name, registered design, copyright, moral right,
design right, database right, semi-conductor topography right
or any other industrial or commercial right including any application
for registration or protection of any of the same anywhere in
the world; |
| “you” |
means the customer whose commission to design
and manufacture a Product is accepted by us; |
| “Scope of Works” |
means the scope of works which we provide to you
in respect of your Product at the Full Commission stage; |
| “Services” |
the design and where applicable installation services
which you have commissioned us to perform. |
2. BASIS OF THE CONTRACT
| 2.1 |
We shall sell and you shall buy the
Product and the Services subject to these Conditions, which
supersede any other terms which you may ask us to sign or which
you may supply. |
| 2.2 |
Any variation to these Conditions
is of no effect unless agreed in writing by our authorised representative. |
| 2.3 |
The Contract shall consist of up to five stages. At each stage of the Contract process, you shall be required to sign and return to us a specified authorisation form ("the Authorisation Form") and to pay a specified sum of money ("Stage Payment") as confirmation of your acceptance of our proposals and your formal instruction for us to proceed to the next stage of the Contract. Your signing of each Authorisation Form and payment of each Stage Payment shall also constitute your acceptance of these Conditions. The five stages of the Contract shall be as follows:- |
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2.3.1 |
At Stage 1 – Initial Proposal,
you shall be required to sign and return to us the Initial Design
Proposal Authorisation Form and agree to pay the first Stage
Payment being the Initial Proposal Fee specified by us. The
Initial Proposal Fee will only become due if you fail to instruct
us to proceed to Stage 2 within four weeks of the date of the
issue of the Initial Proposal. On receipt of the signed Initial
Proposal Authorisation Form we shall develop for you a written
initial proposal document which shall contain:- |
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(a)
(b)
(c) |
A definition of your brief;
An outline written definition of our proposed design solution;
and
An initial budget cost estimate or proposal to proceed to an
hourly rate. |
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2.3.2 |
At Stage 2 – Design Commission,
you shall be required to sign and return to us the Design Commission
Authorisation Form and agree to pay the second Stage Payment
being the Design Fee specified by us. The Design Fee will only
become due if you fail to instruct us to proceed to Stage 3
within four weeks of the date of issue of the Design Commission.
On receipt of the signed Design Commission Authorisation Form
we shall move on to the Product design commission stage and
shall present to you:- |
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(a)
(b)
(c)
(d)
(e) |
a firm Contract Price or proposal
to proceed on an hourly rate;
concept sketches of the overall Product and key detail areas
of the design;
a full written specification;
a Scope of Works setting out the project summary and the manner
in which the Product is to be installed;
any material samples which may be required. |
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2.3.3 |
At Stage 3 – Full Commission,
you shall be required to sign and return to us the Full Commission
Authorisation Form and pay a Stage Payment equal to 40% of the
Contract Price. On receipt of the signed Full Commission Authorisation
Form and the 40% Stage Payment, the Product shall be fully detailed
by our design team and a client pack shall be issued to you
for your final approval prior to the manufacture of the Product.
The client pack shall include the final design brief, material
and construction specification, visuals, plans, elevations and
other relevant information. |
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2.3.4 |
At Stage 4 - Manufacture, you shall be required to sign and return to us the Manufacture Authorisation Form and a Stage Payment equal to 30% of the Contract Price. On receipt of the signed Manufacture Authorisation Form and the 30% Stage Payment we shall proceed to manufacture the Product. |
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2.3.5 |
At Stage 5 - Installation, we will notify you that we have completed the agreed manufacturing stage. You may then:
(a) Inspect the stair at our chosen place of manufacture or storage, and/or
(b) Be issued with photographic evidence that manufacture is complete
You shall be required to sign and return to us the Installation Authorisation Form and pay a Stage Payment equal to 15% of the Contract Price. On receipt of the signed Installation Authorisation Form and the 15% stage payment we shall proceed to install the Product. |
| 2.4 |
A Final Stage Payment of 15% of the
Contract Price shall be due on the agreed delivery date specified
in the Scope of Works. |
| 2.5 |
Our employees and representatives are not authorised to make
any representation concerning the Product or Services and
you are advised to ask for written confirmation of representations.
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| 2.6 |
We shall not be obliged to proceed
to the next stage of the Contract until we receive from you
the signed Authorisation Form and payment of the Stage Payment
applicable to the next stage of the Contract. |
| 2.7 |
You are responsible for carrying out
all the customer obligations detailed in the Scope of Works.
We shall not be liable to you for any failure or delay in our
performance of all or any part of the Contract which is caused
by the failure of you, your employees, agents or contractors
to meet any of your obligations detailed in the Scope of Works. |
3. ORDERS AND SPECIFICATIONS
| 3.1 |
You are responsible for ensuring that
the terms of any commission (including any specification) are
complete and accurate and that you give us any necessary information
relating to the Product and Services within a sufficient time
to enable us duly to perform the Contract. |
| 3.2 |
Where the Product is manufactured
in accordance with information, drawings or instructions supplied
by you:- |
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3.2.1 |
no guarantee or warranty is given
by us as to the practicability, efficiency, safety or otherwise
of the Product; |
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3.2.2 |
you shall indemnify us against all
liability incurred by us as a result of:- |
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|
(a)
(b) |
the Product infringing any Intellectual
Property Rights or any statutory provision;
any impracticability, inefficiency, lack of safety or defect
in the Product where any of these is due wholly or partly to
faults or omissions in any such information, drawings or instructions. |
| 3.3 |
All work (including design drawings)
and any idea, invention or improvement made by or on our behalf
pursuant to the Contract and all Intellectual Property Rights
in the Product belong to us. |
| 3.4 |
We reserve the right to make any changes
in the specification of the Product or Services which are required
for the Product or Services to conform with any applicable safety
or other statutory or EU requirements or, where the Product
or Services are to be supplied to your specification, which
do not materially affect their quality or performance. |
| 3.5 |
Any advice or recommendation given
by us or our employees or agents to you as to the storage, application
or use of the Product which is not confirmed in writing by us
is followed or acted upon entirely at your own risk. |
| 3.6 |
Any typographical, clerical or minor/other
error or omission in any document or information issued by us
shall be subject to correction without any liability on our
part. |
4. DESCRIPTION
| 4.1 |
All descriptions, samples and illustrations
issued by us are intended merely to present a general idea of
the Product and Services described and do not form part of the
Contract. |
| 4.2 |
The final specification of the Product
and Services shall be as approved by you in the Full Commission
Authorisation Form. Whilst every effort will be made to supply
the Product in accordance with the quality of samples submitted
or quoted for, this cannot be guaranteed and no condition or
warranty to this effect shall be implied. |
5. CANCELLATION AND DELAY
| 5.1 |
No stage of the Contract may be cancelled
by you except with our written agreement and on terms that you
shall indemnify us against all loss (including loss of profit),
costs, (including the cost of all labour and materials used),
damages, charges and expenses incurred by us as a result of
your cancellation. |
| 5.2 |
If we accept your cancellation of
the Contract at any stage then any Stage Payments paid prior
to the cancellation date shall not be refunded. |
| 5.3 |
We will endeavour to comply with any
reasonable requests for postponement of delivery or installation
but shall be under no obligation to do so. |
| 5.4 |
You must give us at least 10 working
days notice if you want to delay the agreed delivery date set
out in the Scope of Works and we shall use our reasonable endeavours
to accommodate such delay. |
| 5.5 |
If you fail to give us 10 working
days notice of a delay then you shall pay us the Final Stage
Payment less 50% of any agreed installation costs and we may
charge you for all costs (including the cost of storage and
all labour and materials used), damages, charges or expenses
incurred by us as a result of such delay. The remaining 50%
of any installation costs will be payable by you on completion
of the installation of the Product. |
| 5.6 |
We reserve the right to defer the
date of delivery or performance or to cancel the Contract without
liability to you if we are prevented from or delayed in carrying
on our business by any cause beyond our reasonable control.
In such circumstances, you may also give written notice to cancel
the Contract if the cause in question continues for a continuous
period in excess of 180 days but in any event you shall remain
liable to pay for Product or Services delivered or supplied
by us prior to such cancellation by us or you. |
6. PRICE
| 6.1 |
The price of the Product and Services
is the Contract Price quoted to you at Stage 2, Design Commission. |
| 6.2 |
We reserve the right at any time before
delivery or performance to amend the Contract Price to take
into account any variation in cost to us. |
| 6.3 |
The Contract Price is inclusive of
the cost of delivery to you (including transport, packaging,
insurance and any taxes, duties or surcharges) unless otherwise stated in writing. |
| 6.4 |
The Contract Price is subject to VAT
and any other government duty or tax applicable unless otherwise
agreed in writing. |
| 6.5 |
If you request any alteration in the
design or specification of the Product we are entitled, should
we choose to accept such alteration, to vary the Contract Price. |
7. PAYMENT
| 7.1 |
Payment of each Stage Payment is due
by return with each Authorisation Form detailed in condition
2. The Final Stage Payment is due on the agreed delivery date
detailed in the Scope of Works following delivery and if applicable,
installation. |
| 7.2 |
Time of payment is of the essence. |
| 7.3 |
For the purposes of these Conditions,
payment is received when we receive it in cleared funds. |
| 7.4 |
Payment by you shall be made without
any deduction or set off. |
| 7.5 |
If you fail to make payment of any
Stage Payment on the due date then, without prejudice to any
other right or remedy available to us, we shall be entitled
to: |
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7.5.1 |
cancel the Contract or suspend any
further deliveries to you; |
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7.5.2 |
appropriate any payment made by you
to such of the Product or Services (or the goods supplied under
any contract between you and us) as we may think fit (notwithstanding
any purported appropriation by you); |
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7.5.3 |
charge you interest at an annual rate
of 3% above Barclays Bank Plc base rate from time to time which
will accrue daily (both before and after judgement) and be calculated
on a daily basis on overdue accounts from the date of invoice
until payment; or |
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7.5.4 |
claim interest and compensation for
debt recovery costs under the Late Payment of Commercial Debts
(Interest) Act 1998 and the Late Payment of Commercial Debts
Regulations 2002. |
| 7.6 |
We are entitled to set off sums owed
by us to you against sums owed by you to us. |
8. DELIVERY AND INSTALLATION
| 8.1 |
We shall use all reasonable endeavours
to carry out the Contract within the timescales agreed within
the Scope of Works. |
| 8.2 |
Any dates for delivery and/or performance
are approximate only and time of delivery and/or performance
is not of the essence. |
| 8.3 |
Where the Product is to be delivered
or Services are to be performed in instalments, each delivery
or performance shall be a separate contract and failure by us
to deliver or perform any one or more of the instalments in
accordance with these Conditions or any claim by you in respect
of any one or more instalment shall not entitle you to treat
the Contract as a whole as repudiated. |
| 8.4 |
If we fail to deliver the Product
(or any instalment) for any reasons other than any cause beyond
our reasonable control or your fault, and we are accordingly
liable to you, our liability shall be limited to the excess
(if any) of the cost to you (in the cheapest available market)
of similar Products to replace those not delivered over the
price of the Product. It should be possible to obtain the cheapest
available product however doing so may take additional time. |
9. RISK AND PROPERTY
| 9.1 |
The Product remains our property until:- |
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9.1.1 |
the full Contract Price has been received
by us; and |
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9.1.2 |
all other sums which are or which
become due from you on any account with us have been received
by us. |
| 9.2 |
The Product is at your risk from the
time of delivery. |
10. WARRANTY AND DEFECTS
| 10.1 |
Subject to the Conditions set out
below we warrant to you that the Product will correspond with
the final agreed specification approved by you in the Full Commission
Authorisation Form at the time of delivery and will be free
from defects in material and workmanship for a period of 12
months from the date of delivery or, if applicable, installation. |
| 10.2 |
We shall not be liable under this
warranty (or any other warranty, condition or guarantee) if:- |
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10.2.1 |
the total Contract Price has not been
paid by the due date for payment; or |
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10.2.2 |
any defect arises from fair wear and
tear, wilful damage, negligence, abnormal working conditions,
failure to follow our instructions (whether oral or written)
or maintenance requirements, misuse or alteration or repair
of the Product without our prior approval; or |
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10.2.3 |
the Product has been improperly installed
or connected (unless we carried out the installation and connection). |
| 10.3 |
This warranty does not extend to parts,
materials or equipment not manufactured by us, in respect of
which you shall only be entitled to the benefit of any such
warranty or guarantee as is given by the manufacturer to us
and which we are entitled to and able to assign to you. |
| 10.4 |
Any claim by you which is based on
any defect in the quality or condition of the Product or Services
or their failure to correspond with specification must (whether
or not delivery is refused by you) be notified to us within
seven days from the date of installation or performance or,
where the defect or failure was not apparent on reasonable inspection,
within a reasonable time after discovery of the defect or failure. |
| 10.5 |
In no event shall you be entitled
to reject the Product on the basis of any defect or failure
which is so slight that it would be unreasonable for you to
reject them. If you do not notify claims in accordance with
condition 10.4 then:- |
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10.5.1 |
you shall not be entitled to reject
the Product and/or Services; and |
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10.5.2 |
we shall have no liability for such
defect or failure; and |
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10.5.3 |
you shall be bound to pay the full
Contract Price for the Product and/or Services |
| 10.6 |
In the event you have a valid claim
which has been notified to us pursuant to condition 10.4, we
shall be entitled to repair or replace the Product or carry
out the Services again (or the part or element in question)
free of charge or, at our option, refund to you the Contract
Price (or a proportionate part of the price), but we shall have
no further liability to you . |
11. LIMITATION OF LIABILITY
YOUR ATTENTION IS PARTICULARLY DRAWN TO
THIS CONDITION
| 11.1 |
The following sets out our entire
financial liability (including any liability for the acts or
omissions of our employees, agents or subcontractors) to you
in respect of any breach of these Conditions any representation,
statement or act or omission (including negligence) arising
under or in connection with the Contract between us and in respect
of any contemplated performance or lack of performance. |
| 11.2 |
All warranties, conditions or other
terms implied by statute, common law, trade usage or otherwise
are excluded to the fullest extent permitted by law but this
exclusion does not apply to:- |
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11.2.1 |
any implied condition that we have or will have
the right to sell the Product when the property is to pass;
or |
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11.2.2 |
where the Product are sold to a person dealing
as a consumer within the meaning of the Unfair Contract Terms
Act 1977, any implied term relating to the conformity of the
Product with their description or sample or as to their quality
or fitness for a particular purpose. |
| 11.3 |
Where the Product or Services are
sold under a consumer transaction (as defined by the Consumer
Transactions (Restrictions on Statements) Order 1976) your statutory
rights are not affected by these Conditions. |
| 11.4 |
Nothing in these Conditions excludes
or limits our liability for death or personal injury caused
by our negligence or for fraudulent misrepresentation. |
| 11.5 |
Subject to conditions 11.2 and 11.4:- |
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11.5.1 |
we shall not be liable to you for any loss of
profit, loss of production, financial loss, depletion of goodwill
or any indirect loss, damage, costs or expenses whatsoever which
arise out of or in connection with the Contract or its contemplated
performance of lack of performance; and |
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11.5.2 |
subject to condition 11.5.1, our total liability
in contract, tort (including negligence or breach of statutory
duty), misrepresentation or otherwise, arising in connection
with the performance or contemplated performance or lack of
performance of this Contract shall be limited to the Contract
Price. |
| 11.6 |
You agree to indemnify us against
any damages, losses, costs, claims or expenses incurred by us
towards a third party arising out of or in connection with the
Product or Services supplied by us or their operation or use
and whether arising by reason of our negligence or otherwise.
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12. HEALTH AND SAFETY
You agree to:-
| 12.1 |
pay due regard to all information
supplied by us relating to the installation and use of the Product
necessary to ensure the Product will be safe and without risk
to health at all times when they are being set, used, cleaned
or maintained by any person at work; |
| 12.2 |
comply with the General Product Safety
Regulations 1994 if and to the extent that they are applicable
to the Product; |
| 12.3 |
indemnify us in respect of any and
all claims arising from the Product being unsafe as a result
of your activities; |
| 12.4 |
monitor the safety of the Product,
to pass on to us information as to the risks of the Product
and to co-operate in any action we decide to take to avoid those
risks; |
13. LIEN
We shall have a general lien (together with a power of sale) on
all property owned by you in our possession in satisfaction of any
payment due or owing from you on any account.
14. EXPORT
| 14.1 |
Where the Product is to be exported
to you; |
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14.1.1 |
Payment shall be made in England in
pounds sterling or such currency as is agreed in writing by
us; |
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14.1.2 |
you shall be responsible for complying
with any legislation or regulations governing the importation
of the Product into the country of destination and for the payment
of any duties the of Product. |
15. GENERAL
| 15.1 |
Each of our rights or remedies under
the Contract is without prejudice to any other right or remedy
we may have, whether or not under the Contract. |
| 15.2 |
If any provision of the Contract (including
any provision of condition 9) is found by any competent authority
to be invalid, unenforceable or unreasonable, it shall be severed
from the remainder of the Contract which shall continue in full
force and effect. Failure or delay by us in enforcing or partially
enforcing any provision of the Contract is not a waiver of any
of its rights under the Contract. |
| 15.3 |
Any waiver by us of any breach by
you is not a waiver of any subsequent breach. |
| 15.4 |
Any notice to be given by either party
to the other under these Conditions must be in writing addressed
to that other party at its registered office or principal place
of business or such other address as may have been notified
for these purposes and shall be delivered personally or sent
by first class post or facsimile transmission. |
| 15.5 |
Notices addressed to us shall be marked
for the attention of Julian Pilling. |
| 15.6 |
All rights under the Contracts (Rights
of Third Parties) Act 1999 are excluded. |
16. ASSIGNMENT
| 16.1 |
We may assign or subcontract the Contract
or any part of it and may dispose of or deal in any manner with
any of its rights or beneficial interests under it. |
| 16.2 |
You may not assign the Contract or
dispose of or deal in any manner with any of its rights or beneficial
interests under it. |
17. ENGLISH LAW
| 17.1 |
The Contract shall be governed by English law,
and we both submit to the exclusive jurisdiction of the English
courts. |
| 17.2 |
Condition 17.1 is for our benefit only and as
a result we shall not be prevented from taking proceedings in
any other courts with jurisdiction, whether concurrently or
not. |
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