Conditions of Contract

NICHOLSON PLASTICS LIMITED CONDITIONS OF SALE

1. General
1.1 All transactions for the sale or supply of storage tanks (complete or in parts) and any other products or materials ("Products") and/or services by NICHOLSON PLASTICS LIMITED ("the Company") to its customers shall be governed only by these Conditions at Sale, which shall override any other terms or conditions contained or referred to in any order or other document submitted by customers
1.2 These Conditions of Sale exclude all other written or verbal statements, representations and communications and may not be modified or varied unless specifically agreed in writing by the Company signed by a Director of the Company.
1.3 All Quotations by the Company for the sale or supply of Products and/or services are open for acceptance by the Customer only for a period of thirty days from their date, unless on or before the expiry of such period the Company confirms the Quotation remains open for any further stated period.
1.4 Verbal orders by Customers confirmed by Order Acknowledgement by the Company shall be deemed to constitute concluded contracts governed by these Conditions of Sale Quotations by the Company shall be deemed to be accepted by the Customer on receipt of an Order from the Customer whether written or verbal.
2. Prices
2.1 Prices for Products which the Company has contracted to erect and/or install on site for the Customer are inclusive of delivery (provided that where such delivery is to be made other than by means of the Company's standard haulage method, additional delivery charges shall be payable) but exclusive of Installation, unless otherwise specifically stated in writing by the Company. Prices for all other Products are exclusive of delivery and installation and delivery and installation charges will be levied separately on the Customer by the Company, unless otherwise specifically stated in writing by the Company
2.2 All prices are current at the date of quotation by the Company or Order Acceptance by the Company but the Company reserves the right on giving not less than fourteen days written notice to amend prices to reflect increases in costs of labour and materials at any time or times prior to the later of despatch or installation of the Products or supply of the services.
2.3 All prices for services, (and prices for Products which are stated to be inclusive of installation), are for work carried out during normal working hours only which will be charged at the Company's applicable rate(s) Work instructed by the Customer, or otherwise required to be carried out outwith normal working hours will be charged at the Company's applicable overtime rate(s).
2.4 Unless otherwise specifically stated in writing by the Company, all prices are exclusive of VAT, which shall be added at the rate(s) applicable at the time of supply of the relevant Product or service, and of delivery and installation
3. Site preparation and installation
3.1 Where the Company has contracted to erect and/or install the Products, the Customer will be responsible for ensuring that all preparatory site work has been completed In accordance with the requirements specified in Clause 3.2, and any additional requirements advised by the Company, before the date for installation, and for ensuring that suitable access and facilities as specified in Clause 3.2, and any additional facilities advised by the Company are available on the date for installation. If these requirements are not met by the Customer, the Company reserves the right (i) to refuse to commence installation, and to charge the Customer for the loss of time incurred until the requirements are met or (ii) to proceed with installation and to charge the Customer for all additional costs (whether of materials, labour or otherwise) which it may incur as a result or (iii) to terminate the contract between the Company and the Customer (in which case Clause 10 shall apply)
3.2 The minimum requirements for site preparation, access and facilities are, unless otherwise specifically agreed in writing by the Company, as follows:
Dimensions
(i) The site must be large enough to accommodate the overall size of the storage tanks, and to provide access for erection and maintenance.
ii) The overall tank sizes are calculated by adding the following measurements to the internal
dimensions normally specified: (a) For tanks up to 4 feet deep (or metric equivalent)- add 6 inches/150mm
(b) For tanks above 4 feet deep (or metric equivalent) (such tanks have an external steel corset) - add 14 inches/350mm.
One piece tank base supports (includes internally flanged sectional, Knock Down & Two Part range)
A flat level base must be available whose base dimensions must be a minimum of 150mm greater than the overall tank size as stated above which is capable of supporting the tank & it’s contents without deflection outwith our stated tolerances which are available upon request. The Customer shall be solely responsible for determining the appropriate thickness of the level concrete base. The Company has no responsibility for ascertaining such thickness and gives no warranty in respect thereof.
Sectional Tank Supports
(i) Tank supports are required in one direction only, and must be positioned, in the case of imperial
measure tanks - at 610 or 407mm centres, and in the case of metric tanks at 0.5 or 1 metre centres. The Customer shall be solely responsible for determining the materials to be utilized for such tank supports. The Company shall have no responsibility for determining which materials should be used and gives no warranty in respect thereof.
(ii) Tank supports must be level and extend the full external width of the tank (see overall tank sizes
stated above) (iii) If a tank is to be erected on a platform with no access to bolts underneath the Company must be so advised in writing at the time of order as installation will require an internally flanged base which will be fitted by the Company and charged extra under Clause 2.3
Access
(i) Sufficient access must be available all round the installation site for ease of erection. The minimum requirement is the overall size of the tank as stated above, plus 18 inches/450mm.
(ii) Without limiting the Customer's responsibility to ensure sufficient access, the Customer should ensure that there is free access to any tank room involved, that there is sufficient headroom to install the tank and that any obstructions such as old piping are removed before the date for installation. (iii) The Company can erect and install tanks in tighter spaces than the stated minimum of 18 inches / 450mm but if this will prevent access to bolts for the carrying out of any remedial work which may have to be undertaken by the Company under Clause 8.2(a) hereof all liability of the Company for the integrity of the tank is excluded Hole Cutting
Hole Cutting for pipe connections will be done by the Company free of charge it the hole positions are marked by the Customer at time of installation, otherwise any necessary return visits for this purpose will be charged under Clause 2.3
Hoisting and Services
(i) The Customer will be responsible for hoisting the tank panels to within 20 feeV6 metres and on a level with the final position of the tank, and for providing all necessary scaffolding, light and power, free of charge.
(ii) The Customer will be responsible for the engagement of suitably qualified and skilled employees or contractors to carry out the necessary hoisting 3.3 Health and Safety to Company's Employees
(i) The Company reserves the right to refuse to commence, or to cease, installation if in its opinion conditions or activities at the installation site are or have become unsafe or the employees or contractors engaged by the Customer to carry out hoisting are not suitably skilled or experienced for that function. (The Company shall remain entitled to charge the Customer as specified in Clause 3.1).
(ii) The Customer undertakes to indemnify the Company against all liability it may incur in respect of the death of or injury to its employees or contractors for whom it is responsible while engaged in installation at the site, due to unsafe working conditions or the negligence of the Customer or the Customer's employees or contractors or third parties
(iii) The Company shall ensure that its employees at the installation site shall observe all site rules and regulations under the Health & Safety At Work Act, 1974
4. Payment
4.1 Unless otherwise specifically agreed in writing by the Company, payment for all Products and services shall be made by the last day of the calendar month following the month of invoice.
4.2 Interest at four percent per annum above the Base Rate from time to time of The Royal Bank of Scotland plc, will be due and payable as well before as after judgement by the Customer on all sums which are not paid in full on the due date of payment
4.3 If any sum due to the Company is not paid in full on the due date for payment. all other sums due by the Customer shall immediately become due and payable in full, with interest at the rate specified in Clause 4.2 above, until settlement in full notwithstanding that the due date(s) for payment of such sums has / have not yet fallen due
5. Delivery
5.1 The Company shall deliver the Products to the point nearest to the place of delivery at which there is access by hard core road. The Customer shall be responsible for transporting the Products tram the point at delivery to the installation site.
5.2 Delivery dates stated by the Company are given in good faith and on the best available information, but time shall not be of the essence of the contract between the Company and the Customer. The Company will make all reasonable efforts to meet stated delivery dates but shall not be liable in any way to the Customer for any loss or damage whatever, direct or consequential, arising from delay or failure to deliver on a stated date, nor shall such delay or failure affect the Customer's obligation to make payment
6. Force Majeure
The Company shall not be liable In any way to the Customer for any loss or damage whatever, direct or consequential, arising out of any failure or delay by the Company in performing its part at the contract with the Customer due to circumstances or conditions beyond the Company's control and in particular, without limiting that generality, acts of war or civil unrest, industrial disputes, strikes, lock outs, fire, storm, Act of God, accident, non-availability or shortage of material, fuel, power or labour, legislation, whether national or local, or requisition or other governmental action. 7. Loss or Damage in Transit
7.1 Unless otherwise specifically agreed in writing by the Company, the Company shall not be liable for any loss or damage which Products may suffer while in transit, if such loss or damage has not been reported to the Company in writing within seven days of the date of delivery
7.2 Subject to compliance by the Customer with the requirements of Clause 7.1 above, the Company will make good or rectify any such loss or damage as soon as reasonably practicable, but shall not be liable in any way to the Customer for any loss or damage whatever, direct or consequential, in respect thereof.
8. Warranty/Detects
8.1.1 Subject to the compliance of the Customer with the requirements of Clause 8.2 and the Maintenance Instructions issued by the Company, if any Products which have been supplied by the Company are defective as defined in Clause 8.1.2 then.
(a) in respect of Sectional Tanks for a period of 12 months from the date of completion of installation by the Company; and
(b) in respect of One Piece Tanks a period of 10 years from the date of the delivery by the Company, the Company at its option and in its absolute discretion may:
(i) repair or otherwise rectify the defect at its expense or replace the relevant Products as soon as reasonably practicable;
or
(ii) accept a return of the relevant Products and repay or credit the Customer with their invoice price plus any reasonable transport costs incurred by the Customer in returning the Products to the Company at its nearest premises.
8.1.2 Products shall be defective for the purposes of Clause 8.1.1. if:
(a) in the case of a Sectional Tank which is a tank supplied and erected by the Company and consisting of individual tank panels bolted together or otherwise fixed together to form a tank capable of containing liquid (including, for the avoidance of doubt, Knock Down Kits and Two Part Tanks which have been erected and installed by the Company)
(i) any contained in the Product has leaked through panels or joints between panels or of the Product; or
(ii) there is imminent failure of a panel of the Product likely to lead to leakage or flooding;
(iii) the insulating material of a pre-insulated panel has become detached from a panel of the Product and such fault is solely due to a manufacturing defect. For the avoidance of doubt separate insulating jackets which are not an integral part of a panel or Product shall not be deemed to be insulating material for the purpose of this Clause 8.1.2; and
(iv) there has been failure or corrosion of internal or external strengthening or reinforcing tie bars or corsets
(b) In the case of a one piece tank, which is a tank which has been manufactured and supplied in one piece (including for the avoidance of doubt, custom moulded tanks)
(i) any liquid contained in the Product has leaked from the Product through failure of the fabric of the Product.
(ii) there is Imminent failure of the tank likely to lead to leakage or flooding,
(iii) the insulating material of a pre-insulated Product has become detached from the Product and such fault is solely due to a manufacturing defect. For the avoidance of doubt separate Insulating Jackets which are not an integral part of the Product shall not be deemed to be insulating material for the purpose of this Clause 8.1 .2; and
(iv) there has been failure or corrosion of internal or external strengthening or reinforcing tie bars or corsets
8.2.1 The Warranty in Clause 8.1.1 shall not apply and the Company shall not be liable in any way to the Customer for any loss or damage whatever direct or consequential, where:
(a) Any defect in Products which would be apparent on a reasonable examination or for their otherwise not being in accordance with the contract between the Company and the Customer unless, within seven days of delivery, the Customer has given the Company written notice specifying the defect complained of and shall thereafter afford the Company a reasonable opportunity of inspecting the Products before they have been used; or
(b) With prejudice to or limiting the extent at paragraph (a) above, any leakage or seepage of water or other fluids from Products, unless the Customer has within seven days of delivery, filled the product with the liquid for which it was supplied and has tested the Product for such leakage or seepage within seven days from the date of completion of installation or delivery as appropriate,
(c) any defect caused by any negligent act or omission of the Customer, its employees or agents or by wilful damage by the Customer, its employees, its agents or any third party;
(d) There has been movement or deformation of the tank base or supports.
8.2.2 If in seeking to repair or rectify the detect or replace the Product pursuant to terms of Clause 8.1.1 the Company shall incur costs and expenses as a result of the removal of insulating or other materials to gain access to the Product. the Customer indemnify in full the Company against such costs and expenses and reimburse all costs and expenses
8.3 In terms of the Unfair Contract Terms Act 1977, the Company accepts unlimited liability to Customers in respect of death or personal injury arising from any defect in the Products caused by any wrongful act or omission of the Company.
8.4 The Company's liability to Customers in respect of defects in the Products and for breach of the contract between the Company and the Customer and any negligence in relation thereto shall be limited to the obligations on the Company under the foregoing provisions of this Clause, and the Company shall have no other liability whatsoever to Customers in relation to the quality, suitability, condition, supply or use of the Products.
8.5 The Customer shall not be entitled to withhold payment of any amount payable to the Company because of any disputed claim in respect of defective Products or any other alleged breach of the contract between the Company and the Customer, nor to set off against any amount payable to the Company any sums which are not yet due and payable by the Company or for which the Company disputes liability
9. Transfer of Title and Risk
9.1 Property and title in the Products shall not pass to the Customer until the full price for the Products and relevant services, and all other sums due to the Company by the Customer on any other account whatever, have been paid in full. Notwithstanding the foregoing, the risk of destruction of the tanks shall pass to the Customer immediately upon delivery
9.2 The Company shall be entitled to repossess any Products, the title to which has not yet passed to the Customer, immediately the Company becomes entitled to terminate the contract between it and the Customer (whether or not such termination has yet taken place), and in that event the Customer will permit the Company to repossess all such Products and for this purpose admit or procure the admission of the Company and its employees and agents to all premises in which the Products are situated.
9.3 The proceeds of sale of any Products, the title to which has not yet passed to the Customer, shall be held by the Customer as trustee for the benefit of the Company
10. Termination
The Company shall be entitled, without prejudice to its right to payment of interest under Clause 4.2 and its other rights and remedies to terminate the contract between it and the Customer and / or at the Company's option to suspend further deliveries under any such contract, on the occurrence of any of the following events:
(a) If any sum due by the Customer to the Company is not paid in full on the due date; or
(b) If the Customer fails to take delivery of any Products otherwise than in accordance with the Customer's contractual rights hereunder; or
(c) Where the Customer is a body corporate, if a resolution is passed to wind it up, or application is made to the Court for an order to wind it up, or a receiver or administrative receiver is appointed to the whole or any part of its property, undertaking or assets, or a proposal is made for a voluntary arrangement in respect of it under Section 1 of the Insolvency Act 1986, or a petition is presented for an administration order to be made in respect of it, or it proposes any composition or arrangement with its creditors, or proposes or effects or suffers to be effected any analogous proceedings under any foreign law; or
(d) Where the Customer is an individual or a partnership, the Customer is sequestrated or made bankrupt or becomes apparently insolvent, or grants a trust deed for or general composition or arrangement with creditors, or proposes or effects or suffers to be effected any analogous proceedings under any foreign law
11. Applicable Law
11.1 These Conditions of Sale shall be governed by and construed according to the law of Scotland, except as otherwise required by the rules of international private law, by reason of the location of the Products.
11.2 Insofar as not already subject thereto, the Customer hereby accepts the non-exclusive jurisdiction of the Scottish Courts.
12. Intellectual Property
12.1 The Customer acknowledges that the Company retains all copyright and other intellectual property rights in respect of the Products and any drawings or memoranda produced by the Company for the Customer in respect of the supply of the Products. The customer agrees that it shall not disclose such drawings to any third party or use such drawings for any purpose without the prior written consent of the Company
12.2 The Customer warrants to the Company that if it shall supply drawings to the Company for the purpose of manufacture of the Products the Customer shall be the beneficial owner of the intellectual property in such drawings and shall indemnify the Company against any claim, loss, damage or proceedings which the Company may suffer as a result of such drawings infringing any third party's rights.
12.3 The Customer further accepts that the terms of Clause 8.1.1 shall not apply in respect at any Products which are manufactured by the Company in accordance with drawings supplied by the Customer and the Company's liability shall be limited to the rectification of any detect which has arisen due to poor workmanship on the part of the Company.