Conditions of Trading
DEFINITIONS:
In these Conditions: Adapt means Adapt Formwork Limited
The Customer means the company, firm or person who agrees to buy and/or hire the Goods from Adapt.
The Goods means an individual component part which Adapt is to supply in accordance with these Conditions. Any reference to the Goods shall, where appropriate, include a reference to part of them.
The Price shall mean the purchase price in cases of Goods for purchase and the applicable rate of hire in the case of Goods for hire as stated in Adapt’s quotation.
1. Conditions
1.1 Unless other terms and conditions are expressly accepted by Adapt by means of a specific written amendment signed by a director of Adapt the contract will be on the terms and conditions set out in this document to the exclusion of any other terms and conditions (except those implied in favour of a seller which are not inconsistent with the conditions). Any reference overleaf to the customer’s order, specification or like document will not be deemed to imply that any terms or conditions referred to in such order, specification or like document will have effect to the exclusion or amendment of the conditions.
1.2 In the conditions, “the goods” means the goods to be supplied under the contract and includes any of them or any part of them.
1.3 These conditions of trading (Conditions) override any other terms which the Customer may subsequently seek to impose.
1.4 Adapt's employees or representatives (other than directors) are not authorised to do any of the following things on behalf of Adapt:- (a) vary any of these terms or introduce any other terms, written or oral, into the contract; or (b) give any advice, make any representation, agree any condition precedent or enter into any collateral contract.
1.5 The Customer's order constitutes an offer by the Customer to purchase/hire the Goods from Adapt on these Conditions and the contract between Adapt and Customer is made by the Adapt's acceptance of the Customer's offer.
2. Delivery
2.1 Adapt will endeavour to deliver the goods within the time agreed, and if no time is agreed, within a reasonable time, but in no circumstances will Adapt be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the delivery of the goods, nor unless such delay exceeds one month will any delay entitle the customer to terminate or rescind the contract.
2.2 Unless otherwise agreed the customer will make arrangements for the carriage of the goods. Adapt will be deemed to have complied with the time agreed for delivery if it has made the goods ready for despatch from its storage facility within that agreed period. Where Adapt makes arrangements for the carriage of the goods it will be deemed to have complied with the time agreed if a carrier collects the goods prior to the expiry of that agreed time period. In such circumstances it is the buyers responsibility to unload the goods when they are delivered by Adapt or Adapt’s carrier to the customers site or other location.
2.3 Delivery of the goods will be made ex Adapt’s works (incoterms 1990) and the contract price is calculated on that basis. Accordingly the customer shall in addition to the price be liable for paying all costs of transport and insurance.
2.4 Where the customer has agreed to make advanced payments for the goods, delivery of the goods will be on condition that full payment has been made to Adapt.
2.5 Where the goods are carried by Adapts own transport or by a carrier on behalf of Adapt and there has been damage to or loss of the goods or any part thereof in transport, the customer shall notify Adapt in writing of any such claim within seven days of receipt of the goods. In the absence of such advice the customer will be deemed to have accepted the goods. No claim for non-delivery will be considered unless Adapt is advised in writing within fourteen days of the date of Adapt’s invoice. Any claim for damaged goods or shortages or non-delivery shall also be notified to the carriers by the customer in the manner and within the appropriate time limit prescribed by the carriers’ terms and conditions.
2.6 In the event of failure by the customer to give appropriate notice or notices a specified in condition 2.5, the customers claim will be deemed to have been waived and will be absolutely barred.
2.7 Where the customer rejects goods in accordance with condition 2.5 he shall nevertheless be obliged to unload and store the goods in accordance with these conditions. May 2020
2.8 One weeks’ notice on kit deliveries needed (per artic load).
3. Technical Instructions
3.1 The use of the goods is governed by technical instructions issued by Adapt. It is the customers responsibility to obtain a copy of the technical instructions from Adapt.
3.2 Any technical consultation provided by Adapt staff to the customer is limited to an explanation of the technical instructions issued by Adapt.
3.3 One weeks’ notice on technical designs (per area of job: i.e. per floor or wall or pour up to 1000m2 at a time).
4 Guarantee and limitation of liability
4.1 Adapt will endeavour to transfer to the customer the benefit of any warranty or guarantee given to Adapt by the manufacturer of the goods.
4.2 Subject as herein provided Adapt warrants to the customer that all of the goods supplied hereunder will, for a period of six months from the date of first use in all material respects comply with any specification agreed for them and be of satisfactory quality and be fit for any purpose for which they were expressly supplied provided always that condition 4.2 shall not apply where: the goods have been altered in any way whatsoever or have been subjected to misuse or unauthorised repair, or the goods have been improperly installed, erected or connected, or the customer has failed to observe any technical instructions issued by Adapt including without limitation any maintenance requirements relating to the goods, or the customer has failed to notify Adapt of any defect or suspected defect within the time limit specified in condition 4,3; or the total price of the goods has not been paid by the due date. Any repaired or replacement goods will be guaranteed on these terms for the unexpired portion of the six-month period.
4.3 In the event of any breach of Adapts warranty in condition 4.2 (whether by reason of defective materials, production faults or otherwise) Adapt shall, at Adapts option, and subject to condition 4.4 replace the goods in question within a commercially reasonable period or repay the price (where this has been paid) or issue a credit note PROVIDED that were any of the goods alleged to be defective, the customer, upon discovery of the defect, notifies Adapt within fourteen working days and promptly makes available to Adapt the goods in question for inspection, and if so, required by Adapt, promptly returns the goods at the customers risk and expense to Adapts works.
4.4 In any case Adapts liability for breach of condition 4.2 shall not exceed a total of £100,000.00 (one hundred thousand pounds sterling) in respect of any one claim save that nothing in this condition 4 shall operate to exclude any liability on the part of Adapt for personal injury or death resulting from Adapts negligence.
4.5 The limit of liability in Condition 4.4 may be subject to condition 4.5.3 be increased by the customer by any amount up to £110,000.00 (one hundred and ten thousand pounds sterling) by giving prior written notice to Adapt in which event:
4.5.1 the customer shall give such prior written notice at the earliest possible date and in any event immediately after it has received Adapt’s acknowledgement of order form and shall specify the amount of liability required. In no circumstances (where applicable) shall Adapt’s liability to the customer exceed the increased limit.
4.5.2 Adapts prices are determined on the basis of the limit of liability set out in condition 4.4 and therefore in the event of the buyer giving the notice referred to in condition 4.5.1 the customer shall accept an increase in Adapts charges to cover the costs (including Adapts administrative costs) incurred by Adapt in insuring against such additional liability.
4.5.3 Any increase in the limit of liability accepted by Adapt shall be subject to the availability of insurance on terms and conditions which in the opinion of Adapt are reasonable.
THE CUSTOMER ACKNOWLEGES THE FACT THAT THEY HAVE BEEN GIVEN EVERY OPPORTUNITY BY ADAPT TO DETERMINE WHAT WOULD BE AN APPROPRIATE LEVEL OF INSURANCE IN RELATION TO THE GOODS AND THAT IF IT HAS NOT NOTIFIED ADAPT THAT IT REQUIRES A HIGHER LEVEL OF COVER THAN £100,000.00 (ONE HUNDRED THOUSAND) IN ACCORDANCE WITH THE PROCEDURE SET OUT IN CONDITION 4.5.1 THEN ADAPT IS REASONABLY ENTITLED TO ASSUME THAT THE CUSTOMER ACCEPTS COVER LIMITED TO £100,000.00 AS BEING SATISFACTORY.
4.6 Subject as expressly provided in these conditions Adapt shall not, in so far as permitted by law, be liable to the customer by reason of any representation or implied warranty, condition or other term or any duty at
common law or under statute or under the express terms of these conditions for any injury and/or loss and/or damage of any kind whatsoever and howsoever arising or arisen whether direct, indirect, consequential or special (including without limitation for loss of profits of the Customer or diminution of goodwill) and howsoever caused, whether occasioned by the negligence of Adapt or its officers, employees or agents or otherwise resulting from any or arising out of or in connection with the goods (including without limitation, any failure to comply with the specification or any defect therein).
4.7 The customer shall indemnify, defend and hold harmless Adapt in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred (but excluding any liability to the extent that it is based on any breach of Adapts warranty in condition 4.2) as a result of or in connection with any claim made against Adapt by any third party in respect of any matter caused by the customer or for which liability has been assumed by the customer.
May 2020
4.8 In case of any claim arising out of breach of warranty or condition (including any statutory warranty or condition which is not excluded by these Conditions), the Company will (subject to clause 4.9) at its own expense make good any shortfall and repair the Goods or (if the Company shall in its absolute discretion so decide) remove them to allow replacement and replace them free of charge with replacement goods which conform to the contract.
4.9 The liability under clause 4.8 does not extend to meeting any cost incurred by the Customer in removing and/or replacing the Goods or by others (unless the Company shall have previously otherwise agreed in writing) and in any case is conditional upon:- (a) there having been no unauthorised alteration or addition to the Goods (b) notice of the complaint having been given in writing to the Company immediately it became apparent and in any case within thirty days of delivery; and (c) the Company being allowed all reasonable facilities to investigate the complaint and comply with clause 4.8.
4.10 The Customer shall have no right of rejection of the Goods and the Company shall have no liability for breach of warranty or condition except as provided in clause 4.8.
5. Risk
Notwithstanding any other condition risk in the goods shall pass to the customer when the goods are delivered to the customer or its agent.
6. Property in the goods
6.1 The property (both legal and equitable) in the goods shall not pass to the customer when the goods are delivered to the customer or its agent.
6.2 Until property in the goods has passed to the customer, the customer will hold the goods in a fiduciary capacity and will not obliterate any identifying mark on the goods or their packaging and will keep the goods separate from any other goods and shall not be entitled to re-sell the goods or to convert or incorporate the goods into or with other goods except with the prior written consent of Adapt and shall ensure that if the goods are to become fixed to land or any building they shall be capable of being removed without material injury to the owner of such land and building and repair and make good any damage caused by the fixation of the goods to or their removal from land or building and to indemnify Adapt against all loss, damage or liability which it may incur or sustain as a result of such affixation or removal.
6.3 Where Adapt is unable to determine whether any goods are the goods the customer shall be deemed to have sold all goods of the kind sold by Adapt to the customer in the order in which they were invoiced to the customer.
7. Right to possession
7.1 The customer’s right to possession of the goods shall cease if Adapt is not paid for the goods in full in accordance with these conditions in respect of any other Goods that Adapt has supplied to the Customer (whether hired or sold) in respect of which payment has become due or if any of the circumstances in condition 17.1 occur.
7.2 On cessation of the customers right to possession of the goods in accordance with condition 7.1 the buyer shall at its own expense return the goods to Adapt within fourteen days.
7.3 If the customer fails to return the goods in accordance with condition 7.2 the customer shall make the goods available to Adapt and allow Adapt to repossess them.
7.4 The customer shall be responsible for any costs and expenses incurred by Adapt in locating, repossessing, recovering or restoring the goods or collecting any payments due under any contract or otherwise in obtaining the due performance of the obligations of the customer hereunder.
7.5 The customer hereby grants to Adapt, its agents and employees an irrevocable licence to enter onto any premises were the goods are stored or sited in order to repossess them or inspect them at any time. The customer shall ensure that the owner of the premises were the goods are located permits Adapt to have access to inspect test and remove the goods and that the owner acknowledges that it has no ownership or other rights to the goods.
7.6 If prior to the expiry of seven days from the date when Adapt has taken possession of the goods the customer then pays all sums then due or owing to Adapt together with the costs of re taking possession of the goods, Adapt will re deliver the goods to the customer at the customers expense. If within the seven day period the customer fails to pay all sums then due or owing to Adapt together with the costs of re taking possession of and re selling the goods except that if the sums received by Adapt do not exceed all sums due or owing from the customer to Adapt and the costs of taking possession of and re selling the goods the customer will pay to Adapt any shortfall.
7.7 Adapt will have the right to maintain an action against the customer for the price of the goods notwithstanding that property in the goods has not passed.
7.8 Ownership of Kit – If a customer’s Company collapses with monies owed to Adapt Formwork Ltd, any equipment owned by the Customer previously sold to them by Adapt will then be off set against any outstanding debt. The Customer will have to return any of the previously purchased equipment.
8. Price
8.1 The contract price is based on the costs of materials, labour, subcontractors, transport, taxes, duties and currency exchange rates ruling at the date of the quotation. Adapt reserves the right to amend the contract price to take account of any variations in these costs or the imposition of any new taxes or duties occurring from whatever cause before delivery of the goods.
May 2020
8.2 Unless expressly stated otherwise all prices are exclusive of Value Added Tax which shall be charged at the rate and in the manner prescribed by law from time to time.
8.3 Any quotation given by the Company is valid for 30 days only.
8.4 Unless otherwise stated in writing by the Company, prices are quoted and are payable on a component basis.
8.5 The Price excludes delivery and/or collection for return and the delivery/collection charges will be quoted separately.
8.6 The Price and delivery/collection charges are exclusive of VAT which shall be paid in addition at the rate prevailing at the tax point.
8.7 Where at any time before delivery of the Goods; (a) there is an increase in the cost of raw materials, components or labour; or (b) there are any currency fluctuations increasing the cost of raw materials or components; the Company may adjust the Price accordingly.
8.8 All orders are accepted by the Company subject to raw materials and components being available to the Company and by accepting an order the Company does not give a warranty as to availability.
8.9 In the case of hire, the Goods must be hired for a minimum period of four weeks.
8.10 In the case of purchase, orders are accepted by the Company subject to a minimum order value of £250 (exclusive of delivery and VAT).
8.11 In addition or subject to any other warranty or condition previously agreed in writing, the Company warrants that the Goods are of satisfactory quality and correspond, within reasonable tolerance levels, to the quantity ordered and any published specification for the Goods and to all statutory requirements applicable to the Goods.
8.12 All terms, conditions, warranties or descriptions implied by law or expressed orally by the Company's employees or agents or otherwise, as to the quantity, quality or fitness for the purpose of the Goods or any of the Goods or their conformity to any samples or description provided by or on behalf of the Company are expressly excluded.
9. Payment
9.1 The price will become payable upon delivery of the goods and payment will be made by the customer within thirty days of the date of Adapts invoice.
9.2 Interest at an annual rate of 4% above the Bank of England base rate from time to time will accrue daily on overdue accounts from the date of invoice to due payment.
9.3 If deemed necessary Adapt will carry out additional checks if a personal guarantor is required.
9.4 Notwithstanding any condition allowing the customer credit payment shall become due and payable to Adapt immediately upon the termination of the contract.
9.5 Were the customer makes default under the contract or any other contract with Adapt in payment on the due date of any sum due to Adapt, Adapt may without liability postpone any delivery or may cancel the contract or any other contract between Adapt and the customer but without prejudice to any right or remedy which Adapt may have against the customer in respect of such default.
9.6 Adapt shall at any time be entitled to appropriate any payment made by the customer in respect of any goods in settlement of such invoices or accounts in respect of such goods as Adapt may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the customer.
10 OTHER COMPANY LIABILITY
Subject and without prejudice to the provisions of clauses 8.11 and 8.12: -
10.1 Adapt shall have no liability for ascertaining whether the Goods are suitable or reasonably fit for the purpose for which they were ordered or for any advice it may give whether by itself, its employees or agents as to the application or suitability of Goods for any purpose whatsoever.
10.2 Adapt shall not be liable for breach of contract attributable directly or indirectly to circumstances beyond the Company's reasonable control.
May 2020
10.3 Incidental to the supply of the Goods, Adapt may agree to provide a design service in respect of the use of the Goods, in which case all plans, calculations, designs, method statements and design advice produced by Adapt before or after delivery of the Goods are intended to be only a general guide and provided without acceptance of liability. It is the Customer's sole responsibility to check the adequacy, accuracy, suitability and completeness of the design advice and the Customer confirms that no reliance is or will be placed upon the design advice.
10.4 Adapt shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract.
10.5 Adapt’s total liability to the Customer in respect of all other 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 or the limit of Adapt’s insurance cover in the event that the risk is insurable and Adapt’s insurer will pay out in respect of such liability.
10.6 Nothing in these Conditions including, for the avoidance of doubt, clauses , 8 shall limit or exclude the Adapt’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (d) defective products under the Consumer Protection Act 1987; or (e) any other matter in respect of which it would be unlawful for the Adapt to exclude or restrict liability.
11. TERMS OF HIRE
In the case of hire Goods: -
11.1 The Customer is responsible for the proper handling, dismantling, storage, maintenance, and cleaning of the Goods
11.2 Loss or damage howsoever caused (excluding fair wear and tear) to the hired Goods will, without prejudice to any other remedies Adapt may have, render the Customer liable to a charge, details of which are available upon request. Damage shall include wear and tear going beyond normal proper use such as breakages, cuts, or drillings.
11.3 The Goods must be delivered to Adapt bundled, palleted and cleaned. Failure to do so shall render the Customer liable to a charge.
11.4 If the Customer mixes the hired Goods with the Customer's own equipment, Adapt's decision as to subsequent separation and identification of the Goods shall be final.
11.5 The Customer shall not part with possession or otherwise charge, pledge, or assign the Goods to any third party. Breach of this term shall render the Customer liable to a charge equivalent to the list price.
11.6 The hire period will commence in the case of:- (a) non pre-assembled Goods on the day of delivery or, if earlier, the day when the Goods are ready for delivery in accordance with the Customer's requested delivery date; or (b) pre-assembled Goods on the day of commencement of assembly by Adapt.
11.7 The hire period will terminate on the return of the Goods to the Company.
11.8 Adapt may treat the hire contract as being at an end or suspend any further deliveries and require the return of the hired Goods at the Customer's expense if the Customer is in breach of any of these Conditions.
11.9 The customer is required to arrange appropriate insurance cover on the goods whilst in their possession equal to the list price of the goods.
12. Cancellation
12.1 If the customer cancels, extends or delays, or fails to take delivery of any goods at the time agreed (if any) or if no time is agreed, within a reasonable time, then the customer will be liable (without prejudice to any other rights of Adapt to claim damages) to indemnify and keep indemnified Adapt against any resulting loss, damage or expense incurred by Adapt in connection with the supply or non-supply of the goods.
12.2 If Adapt is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the goods by prevention beyond Adapts reasonable control which shall include without limitation governmental action, war, riot, civil commotion, fire, flood, epidemic, labour disputes (including that of Adapt), restraints or delays affecting shipping or carriers, currency restrictions and acts of God, Adapt may cancel or suspend performance of the contract by notice in writing to the customer so far as it relates to goods not then supplied and such cancellation or suspension shall not give rise to any claims by the customer provided that the customer shall remain liable to pay for goods supplied prior to the date of such cancellation on suspension.
12.3 Goods will remain the property of adapt formwork until the invoiced amounts are paid in full.
May 2020
13. Storage
If the customer fails to take delivery of the goods when they are ready for delivery Adapt may, at its option, either store them itself or have them stored by third parties on such terms as Adapt may in its absolute discretion think fit. In any event the cost of storage will be borne by the customer and in so far as the storage is done by Adapt then such charges will be Adapts storage charges current at the time of storage. The cost together with any additional insurance or double handling charges will be added to and form part of the price of the goods.
14. Promotional material
No drawings, descriptive matter, weights, dimensions or shipping specifications issued by Adapt or the manufacturer of the goods nor the descriptions or illustrations contained in Adapts or the manufacturers catalogues, price lists or other promotional material will form part of the contract nor be regarded as a warranty or representation relating to the goods.
15. Intellectual property
The customer shall not change, alter, obscure, remove, conceal, or otherwise interfere with any trademark or trade name attached to the goods or attach in any other way any mark or name to the goods without the prior written consent of Adapt.
16. Set-off
The customer will have no right to set-off, statutory or otherwise.
17. Termination
17.1 The contract will terminate immediately upon the happening of any one or more of the following:
17.1.i the customer commits any remedial breach of any of these terms and conditions and fails to remedy the breach within fifteen days of notice of being required to do so.
17.2 The customer commits a series and irremediable breach of any of its obligations or these terms or conditions:
17.3 The customer makes any voluntary arrangement with its creditors or becomes subject to an administration order.
17.4 The customer becomes insolvent or compounds with its creditors or goes into liquidation or convenes a meeting or consider a resolution that it be placed in liquidation or suffers a petition to be presented that it be placed in liquidation or has an administrative receiver, receiver or manager appointed in respect of all or any of its assets or is adjudicated bankrupt, makes an assignment for the benefit of, or any composition with, its creditors or takes advantage of any insolvency act; or
17.5 The customer ceases to function as a going concern or ceases to conduct its operation in the normal course of business; or
17.6 There is any change in the ownership, control or management of the customer which is unacceptable to Adapt for any reason.
17.7 Adapt's rights contained in condition 6 (but not the customers rights) shall continue beyond the discharge of the party’s primary obligations under the contract consequent upon its termination
17.8 The termination of the contract howsoever arising will be without prejudice to the rights and duties of either party accrued prior to termination.
18. General
18.1 Any outstanding hire debts or otherwise if not paid by the customer at any time will be secured against any equipment already previously sold by ADAPT to the value of the outstanding amount and returned immediately by return of goods within 1 week of the debt being overdue.
18.2 Any kit bought by other companies from Adapt formwork related to or part of the group of companies or indeed controlled by one or more of the hiring companies directors will be secured to Adapt formwork ltd against any outstanding debt owed to adapt formwork ltd. If upon liquidation the hirer owes money to Adapt then they will return any previously purchased equipment from any of the Assosiated companies within 1 week of the debt being due.
18.3 Adapt are entitled to assign sub – contract or sub – let the contract or any part thereof.
May 2020
18.4 Failure by Adapt to enforce the conditions will not be construed as a waiver of any of its rights hereunder
18.5 In relation to the obligations of the customer under the contract, the time of performance is of the essence.
18.6 Nothing in the contract will constitute the customer the agent of Adapt in respect of any re-sale of the goods by the customer to confer upon a third parties rights against Adapt
18.7 The legal construction of these conditions shall not be affected by their headings which are convenience of reference only
18.8 If at any time any of these conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal or unenforceable in any respect that shall not affect or impair the legality, validity or enforceability of any other provision of these conditions.
18.9 A waiver of any right or remedy under the contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy
19. English Law
The formation, interpretation and operation of the contract will be subject to English law and the parties submit to the non exclusive jurisdiction of the English Courts.
20. Christmas Hire period
Non-Mechanical Plant – as is deemed non mechanical plant to be still in use over all holiday periods when on site there are no free hire periods available. The customer must make arrangements around this period to minimise impact to themselves of this policy. If you wish to off hire equipment the cut off for receipt in the depot is the 21st of December at 3pm.
21. Return transport and notification periods
Adapt require sufficient notice of at least one week prior to any off hire whatsoever to allow time for arranging the process. Goods remain in the customer's care until they are returned to Adapt's yard.
May 2020