Terms and Conditions
Draft Design Build Ltd. Terms and Conditions
STANDARD CONDITIONS OF CONTRACT
1. BASIS OF CONTRACT AND INTERPRETATION
(a) These T&C’s apply to all contracts of supply to the Buyer by Draft Design Build Ltd. All Orders placed by the Buyer whether written or oral shall constitute an offer by the Buyer to Draft Design Build Ltd.to purchase Goods under these Conditions subject to availability of the Goods and to written or emailed acceptance of the Order by Draft Design Build Ltd. authorised representative. No (1) additions, variations, waiver or amendment of these T&C's nor (2) other terms and conditions in any document or other communication of/with the Buyer shall form part of the contract unless specifically referred to in these T&C's or unless a director or company secretary of Draft Design Build Ltd. has prior agreed with the Buyer in writing. No agent or employee other than a director or company secretary of Draft Design Build Ltd. has authority to vary these T&C's or make any representations about Draft Design Build Ltd’s business, goods or service. No conduct by Draft Design Build Ltd. shall be deemed to constitute acceptance of any terms put forward by the Buyer. The acceptance by Draft Design Build Ltd. of any Order from the Buyer shall be deemed to incorporate all these T&C’s. Any quotation given by Draft Design Build Ltd. does not constitute an offer capable of acceptance. All implied terms shall be excluded to the fullest extent permitted by law save as set out in these T&C's.
(b) In these T&C's:
“Buyer”: means the party named in the Order.
“Draft Design Build ltd.” means Draft Design Build Limited registered in England and Wales with company number 4496551 of Maxon House, Hogwood Lane, Finchampstead, Wokingham, Berkshire, RG40 4QW, United Kingdom.
“Contract” means a contract between the Company and Buyer for the supply of the Goods. “Goods” means all equipment, machinery, parts, spares, software and other goods supplied by Draft Design Build Ltd.(and where appropriate goods, materials or services used on or in relation to the contract)
“Intellectual Property” means any patent, copyright, registered design, unregistered design right, trade mark (whether registered or not), know how or other industrial or intellectual property right in respect of the Goods, and applications for any of the forgoing.
“Order” means an order placed by the Buyer to purchase Goods.
“Price” means the price charged by Draft Design Build Ltd.to the Buyer for the Goods.
“T&C's” mean the Standard Terms and Conditions comprising this document.
(2) All references to Draft Design Build Ltd. agreeing, approving, waiving or specifying a matter apply only if such is confirmed in writing by a duly authorised officer of Draft Design Build ltd.
(3) The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction
(4) In this Agreement words importing the singular shall include the plural and vice versa and references to any gender shall include all other gender.
(5) A Working Day is any day other than a Saturday, Sunday or statutory Bank Holiday in England & Wales.
Any periods or times stated for delivery or for compliance with any other contractual obligation on Draft Design Build ltd's part ("Estimated Times") shall run from the date of Draft Design Build ltd's acceptance of the Buyer's written, faxed or verbal order and (where required by Draft Design Build ltd.) any payment, samples, information, licences and consents necessary to proceed with the order. Estimated Times are estimates only. Draft Design Build Ltd. shall not be liable for any loss or damage, including any consequential loss resulting from delay or failure to notify the Buyer of any delay. Changed specifications or instructions may result in changes to Estimated Times. Time of delivery is not of the essence of the Order nor of any Contract
3. PRICE, PAYMENT AND BUYER'S LIABILITY
(a) Catalogues price lists and other advertising literature or material as used by Draft Design Build Ltd. are intended only as an indication as to price and range of goods offered. No prices, descriptions, illustrations or other particulars shall be binding on Draft Design Build Ltd. and do not form part of the Contract but are intended merely to be indicative. The prices payable shall be those notified to the Buyer on Draft Design Build Ltd. invoice. Unless otherwise agreed, specified prices are exclusive of VAT and unless otherwise prior agreed in writing do not include delivery (i.e. ex-works) or installation.
(b) Draft Design Build Ltd. shall be entitled to increase prices to take account of
• Delivery charges
• Special handling charges
• Changes in specifications
• Additional work and revised instructions
• Changes in taxes, duties or levies
• Extra costs or expenses incurred by Draft Design Build Ltd.as a result of site conditions, delays, interruptions, lack of information
• Changes in exchange rates
• Any other factors beyond Draft Design Build ltd's control.
(c) Payment of the Price and any outstanding part thereof and all other charges due under the Contract shall be made within 14 days from the date of issue of the invoice for the Goods, unless otherwise prior agreed in writing by Draft Design Build Ltd. The contents of the invoice, including inter alia the Price, shall in the absence of a manifest error, be deemed to have been accepted by the Customer unless the Customer has notified Draft Design Build Ltd.in writing within 7 days from the date of the invoice that such contents are disputed. Unless otherwise agreed, payment shall be made in pounds sterling, without set off, deduction or withholding. Without prejudice to any other right of Draft Design Build Ltd. all overdue payments shall carry interest at the rate of 24% over the Bank of England Base Rate subsisting from month to month per year or part thereof on the amount or amounts for the time being outstanding. Overdue debts, paid prior to litigation will also be subject and equal to an administration charge of 5% of the total account balance.
(d) A 50% invoice will be issued on the date of purchase order for immediate payment and a 50% invoice, or a greater % in accordance with the factors listed in (b) above, will be issued after delivery of the goods unless a quotation indicates we will provide exceptionally other payment terms.
(e) The Buyer shall pay to Draft Design Build Ltd.in cash or as otherwise agreed all sums immediately when due, without reduction or deferment on account of any claim, counterclaim or set off.
(f) Draft Design Build Ltd. may appropriate any payment made by the Buyer and apply it in total or partial satisfaction of any debt then due from the Buyer.
(g) The Buyer shall fully and effectively indemnify Draft Design Build Ltd. against the total expense to Draft Design Build Ltd. arising out of the Buyer's breach or breaches of these T&C's. Such expense shall include (without limitation) (1) all expenses incurred by Draft Design Build Ltd.in sourcing the Goods (2) all court fees (3) all amounts payable to Draft Design Build ltd's professional advisers (payable on an indemnity basis) in pursuing claims against the Buyer for breach or breaches of these T&C's and for enforcing any judgement/s and/or order/s (4) all amounts payable to Draft Design Build ltd's insurers and/or debt recovery agents, in each case including anticipated sums payable by Draft Design Build Ltd. only after payment of any sums from the Buyer.
(h) No contract or order may be cancelled or varied without Draft Design Build ltd.'s agreement. If Draft Design Build Ltd. agrees to cancel or vary an order, then the Buyer shall indemnify Draft Design Build Ltd. against all costs, claims, loss, damages, charges and expenses occasioned thereby including any consequential loss and loss of profits. In the event that Draft Design Build Ltd. does agree to cancellation or variation it shall be entitled to charge and the Buyer agrees to pay an administration charge of 5% of the total account balance.
4. DELAYS IN DESPATCH AND STORAGE
(a) If the Buyer requests to delay the delivery for more or equal to 15 working days from the original planned day of delivery, the date of issue of the invoice would be the date of the original planned delivery. Conditions of Payment are as described in paragraph 3 (c).
(b) Where despatch is delayed through the Buyer's unwillingness or inability to arrange carriage (or to make any payment due prior to despatch) Draft Design Build Ltd. may effect delivery of the Goods by giving written notice that it is ready for despatch. If the Buyer does not take delivery of the whole quantity of the Goods at the due time, then any discount or other allowance in respect of the Goods, which is or would be otherwise allowed to the Buyer shall be recalculated to the level of Goods actually accepted by the Buyer.
(c) If Draft Design Build Ltd. stores the Goods at the Buyer's request or after notice has been given that the Goods are ready for dispatch the Buyer shall reimburse Draft Design Build Ltd. for all costs and expenses of storage (including any necessary transit costs and insurance).
5. ACCEPTANCE AND RETURNS PROCEDURE
(a) The Buyer shall inspect the Goods as soon as reasonably practicable after delivery to check the Goods for damage, discrepancies and shortages. If there is any damage, discrepancy or shortage in respect of the Goods then the Buyer shall notify Draft Design Build Ltd. of such in writing immediately and in any event within 2 Working Days of delivery. If no notification is made by the Buyer within such time, then the Buyer is deemed to have accepted the Goods as being in full compliance with the Order and Draft Design Build Ltd. shall not be liable for any damage discrepancy or shortage or otherwise. A "deliveries" or "arrivals" note signed by the Buyer or its agent indicating that the Goods are in good order on arrival shall be conclusive proof of the same and bind the Buyer.
(b) Draft Design Build Ltd. operates a returns procedure for Goods that fail on installation (“D.O.A's”). Further details of the D.O.A returns procedure are available on written request. The D.O.A returns procedure may vary depending on the manufacturer of the Goods and will be notified to the Buyer upon the Buyer notifying Draft Design Build Ltd. that the Goods have apparently failed on installation. The Buyer shall comply with all instructions given to it by Draft Design Build Ltd.in relation to the applicable D.O.A returns procedure. The Buyer shall notify Draft Design Build Ltd.in writing, within 48 hours of delivery, if any Goods appear to be D.O.A and arrange their return to Draft Design Build Ltd. within 7 Working Days. If the Buyer wishes to return the Goods as D.O.A more than 7 Working Days after delivery, then it must first obtain a manufacturer's returns authorisation and Draft Design Build ltd's consent.
(c) In the event that Goods fail after installation ("Faulty Goods”) the Buyer shall notify Draft Design Build Ltd. within 3 Working Days of the fault becoming apparent and follow the instructions notified to it by Draft Design Build Ltd.in relation to the fault.
(d) Should the Buyer return the Goods otherwise than as set out in these T&C's then the Buyer shall pay all Draft Design Build ltd.'s costs and expenses arising from liaising with the manufacturer concerning the return.
(e) The Buyer shall pay all Draft Design Build ltd.'s costs and expenses if the Goods suspected to be D.O.A or Faulty Goods prove not to be D.O.A or Faulty Goods.
(f) The Buyer shall be responsible for and pay all transportation and insurance costs relating to returned Goods.
(g) Draft Design Build Ltd. shall not be responsible for installation of returned Goods after repair or exchange.
(h) All labour costs and expenses incurred in extracting and replacing defective parts and/or components shall be borne by the Buyer and if incurred by Draft Design Build Ltd. shall be paid for by the Buyer at Draft Design Build ltd.'s then standard applicable rate.
(i) The Buyer shall pay all of Draft Design Build ltd.'s costs if Draft Design Build Ltd. agrees to collect the Goods for return and such Goods are not ready for collection at the agreed time.
(j) Damage incurred in the course of returning Goods to Draft Design Build Ltd. remains the responsibility and liability of the Buyer.
(k) Draft Design Build Ltd. reserves the right to refuse to credit Goods returned which are in compliance with its warranty but which Draft Design Build Ltd.is unable to re-sell for any reason.
(l) Draft Design Build Ltd. will not accept a request for Goods to be returned where the Goods or parts thereof have been specially purchased by Draft Design Build Ltd.at the request of the Buyer.
(m) Where Goods have been ordered in error by the Buyer, Draft Design Build Ltd. may consider accepting the Goods back but only in accordance with the requirements of clauses (k) (m) and (n). Draft
Design Build Ltd. may charge a handling charge of 20% plus any collection costs incurred by Draft Design Build ltd.
6. LIMITED WARRANTY
Subject always to the Buyer complying with the provisions of condition 5 above and to the other conditions set out in theseT&C's:
(a) Draft Design Build Ltd. may (at Draft Design Build ltd.'s sole discretion) either (1) refund the price (2) make good by repair (3) exchange the Goods which are shown to Draft Design Build ltd.'s reasonable satisfaction to have proved defective in materials or workmanship within the manufacturer's specified warranty period. Draft Design Build Ltd. shall in its sole discretion decide whether such making good shall be effected at the offices of the Buyer or at Draft Design Build ltd.'s offices.
(b) The warranty contained in this condition is in lieu of all conditions and warranties whatsoever (whether expressed or implied and whether arising at common law or by statute) all of which are hereby excluded to the full extent permitted by law. Draft Design Build Ltd. does not exclude the warranty as to title implied by law.
(c) The warranty contained in this condition shall not apply if (1) the repair or replacement is required because of an accident, neglect, misuse, or failure to maintain the Goods on the part of the Buyer (2) there is interference with the Goods by persons other than Draft Design Build ltd.'s engineers (3) the Buyer uses equipment or spares not approved by Draft Design Build Ltd.(4) any sum owing to Draft Design Build Ltd.by the Buyer has not been paid. All such matters shall be the entire responsibility of the Buyer for all purposes.
(d) The Buyer acknowledges that the Goods sold to it by Draft Design Build Ltd. contain goods manufactured by other parties. The Company sells the contained goods with the benefit of any manufacturer’s warranty subject to the terms and conditions of such warranty.
7. RETENTION OF TITLE: RISK, PROPERTY AND SEPARATE STORAGE
(a) All risk in the Goods shall pass to the Buyer on dispatch from Draft Design Build Ltd. At that moment, the Buyer shall become responsible for the care and protection of the Goods and shall take out at its own expense adequate and comprehensive all risks insurance cover on the Goods (with a note of Draft Design Build ltd.'s interest endorsed therein until Draft Design Build Ltd. has received payment of the Price in full).
(b) Notwithstanding delivery and the passing of risk in the Goods, title in the Goods (including full legal and beneficial ownership) shall not pass to the Buyer until Draft Design Build Ltd. has received (in cash or cleared funds) payment in full for all Goods supplied by Draft Design Build Ltd.to the Buyer under all contracts between them. Payment of the full price for the Goods shall include the amount of any interest and other sums payable under contracts between Draft Design Build Ltd. and the Buyer.
(c) Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Draft Design Build ltd.'s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as Draft Design Build ltd.'s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to Draft Design Build Ltd. for the proceeds of the sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
(d) Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) Draft Design Build Ltd. shall be entitled at any time to require the Buyer to deliver up the Goods to Draft Design Build Ltd. and, if the Buyer fails to do so forthwith, to enter upon any premises or vehicles of the Buyer or any third party where the Goods are stored and repossess the Goods and the Buyer hereby grants Draft Design Build Ltd. and its employees and agents licence to enter such premises where they reasonably believe the Goods to be located in order to repossess them or inspect them at any time.
(e) The Buyer shall not be entitled to pledge or in any way charge by way of security for indebtedness any of the Goods, which remain the property of Draft Design Build ltd., but if the Buyer does so all the monies owing by the Buyer to Draft Design Build Ltd. shall immediately become due and payable.
8. PERFORMANCE, DATA AND SPECIFICATIONS
(a) Draft Design Build Ltd. shall not be held responsible for any electrical and/or network related issues and/or issues or lack of performance due to any software installed, unless Draft Design Build Ltd. supplied and installed the software.
(b) The Buyer shall not rely upon any representations as to the Goods or their fitness for any particular purpose unless Draft Design Build Ltd. specifically prior agrees these in writing.
(c) Any performance figures quoted or referred to by Draft Design Build Ltd. are estimates only, based on assumed conditions in a well-managed office with experienced, adequate and efficient operators and appropriate services and maintenance, and proper use of satisfactory materials.
(d) The delivery date is approximate only and not of any contractual effect and the Buyer shall not be entitled to refuse delivery. While the Company will use all reasonable endeavours to meet the delivery date it will not be liable for any loss or damage (including loss of use, loss of contract or loss of profits or other consequential loss) incurred by the Customer as a result of any failure to deliver on such particular date.
(e) Draft Design Build Ltd. reserves the right to alter or depart from or change the specifications and/or design of the Goods ordered provided that this shall not to a material extent adversely affect the performance of the Goods or the quality of the workmanship without prior notification to the Buyer.
(f) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Draft Design Build Ltd. shall be subject to correction without any liability on the part of Draft Design Build Ltd. All specifications, drawings and technical documents issued by Draft Design Build Ltd. either before or after conclusion of the contract are issued solely for the Buyers use in connection with the Goods and shall not be copied, reproduced or communicated to any third party without Draft Design Build ltd.'s prior written approval.
9. TELECOMMUNICATIONS GOODS
When the Goods supplied by Draft Design Build Ltd. are to be used in conjunction with or for connection to British Telecom ("BT") lines or apparatus then the following additional conditions shall apply: (1) BT shall have the right to require modifications to be carried out to Goods already installed and in use and the modifications will be carried out at the Buyer's expense (2) the Buyer shall indemnify Draft Design Build Ltd. against all liability arising in connection with damage, loss or injury to BT Goods or personnel in connection with or arising out of the Buyer's acts or omissions.
10. FORCE MAJEURE AND FRUSTRATION
Draft Design Build Ltd. shall not be liable for loss or damage, including but not limited to consequential loss, and shall be entitled to cancel or rescind the contract or any part thereof or extend the time for delivery, in Draft Design Build ltd.’s sole discretion, if the performance of its obligations under the contract is in any way adversely affected, delayed or hindered by any cause whatsoever beyond Draft Design Build ltd.'s direct control including (but not limited to) the delays or default of any sub-contractor or supplier, war, act of terror, strike, lock-out, trade disputes, flood, fire, accident to or breakdown of plant or machinery, shortage of materials or labour.
11. CONTRACTUAL PERFORMANCE
(a) Draft Design Build Ltd. shall be entitled to deliver the Goods in instalments, in which case each delivery shall constitute a separate contract and failure, suspension or delay by Draft Design Build Ltd.to deliver any one or more of the instalments in accordance with these T&C's or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
(b) In no case shall any dispute concerning (1) any item or separate part of the Goods or work or (2) any other contractual obligation or liability of Draft Design Build Ltd.to the Buyer affect the Buyer's obligation in respect of payments.
(c) In the event that (i) the Buyer fails to pay all sums due under the contract by the due date, (ii) the Buyer is in breach of any term of the Contract and such breach continues for a period of 14 days after Notice thereof is given by Draft Design Build Ltd.to the Buyer, or (iii) the Buyer is involved in any legal proceedings concerning its solvency or ceases trading or suffers an event of insolvency (including without limitation bankruptcy, insolvency, administration, liquidation, a formal composition or arrangement with creditors or the appointment of a receiver or administrative manager or any analogous event that occurs in any jurisdiction), then the full price of the Goods less any sums already paid immediately becomes due and payable by the Buyer and Draft Design Build Ltd. may at its sole option terminate the contract or suspend despatch. Any termination shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party. Upon termination of a Contract all sums owing to Draft Design Build Ltd. whether under that Contract or otherwise shall become immediately due and payable and Draft Design Build Ltd. may cancel any outstanding order or make delivery subject to payment in advance and all goods held on trust shall be immediately returned.
12. LIMITATION OF Draft Design Build ltd.'s LIABILITY
(a) Draft Design Build ltd.'s liability under any contract is limited to making good defects or failures to the extent described in
condition 6 above.
(b) Draft Design Build Ltd. shall not be liable for any increased costs, expenses, loss of profits, goodwill, business, contracts, revenues or anticipated savings or any type of special indirect or consequential loss (including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Draft Design Build Ltd. had been advised of the possibility of the Buyer incurring the same. In any event, Draft Design Build ltd.'s entire liability under any contract shall be limited to damages of an amount equal to the price of the Goods.
(c) Draft Design Build Ltd. does not attempt to limit liability for personal injury or death caused by its negligence or the negligence of its employees or agents. To the extent the law does not permit such liability to be excluded, Draft Design Build Ltd. does not attempt to limit its liability for damage to the tangible property of the Buyer resulting from the negligence of Draft Design Build Ltd. or its employees or agents to the extent that Draft Design Build Ltd.is insured against such loss. Liability shall be limited to damages of an amount equal to the price of the Goods.
(a) Assignment: Draft Design Build Ltd. may assign its rights and obligations under the Contract. The Buyer may not assign any rights and obligations under the Contract without prior written consent from Draft Design Build Ltd.
(b) Intellectual Property Rights: The Buyer shall have no rights and shall not claim any rights in respect of any Intellectual Property owned or licensed by Draft Design Build Ltd. or subsisting in the Goods or any trade names or trademarks used by Draft Design Build Ltd.in relation to the Goods or of the goodwill associated therewith, and the Buyer hereby acknowledges that, except as expressly provided in the Contract, it shall not acquire any rights in respect of any such Intellectual Property, trade names or trademarks and that all such rights and goodwill are, and shall remain, as between the Buyer and Draft Design Build ltd., vested in Draft Design Build ltd.
(c) Any reputation in any trade marks affixed or applied to the Goods by Draft Design Build Ltd. shall, as between the Buyer and Draft Design Build ltd., accrue to the sole benefit of Draft Design Build ltd.
(d) The Buyer shall comply with all reasonable directions of Draft Design Build Ltd.as to notices to be given and/or labels to be affixed to the Goods in order to protect the Intellectual Property
(e) Waiver: No delay or failure by Draft Design Build Ltd.in enforcing any provision shall constitute a waiver of that provision or any other provision. No waiver by Draft Design Build Ltd. of any breach of the contract shall be considered as a waiver of any subsequent breach of the same or any other provision. (f) Severability: If any provision of these T&C's is held by any competent authority to be invalid or unenforceable in whole or in part the validity and enforceability of the other provisions of these T&C's and the remainder of the provision in question shall not be affected and the parties shall agree terms to give, as far as possible, effect to the original provision.
(g) Cumulative Rights: Draft Design Build ltd.'s rights are cumulative and in addition to any rights available to it at common law.
(h) Notices: Any notices given hereunder by either party to the other must be in writing and may be delivered personally, electronically to an agreed electronic address or by recorded delivery or registered post and in case of post will be deemed to have been given 2 working days after the date of posting.
(i) Law & Jurisdiction: This contract shall be subject to and construed in accordance with the laws of England in all respects as an English contract subject to the jurisdiction of the English Courts and the parties hereby submit to the jurisdiction of the English Courts. The uniform laws on international sales shall not apply.