Total Supplies Terms & Conditions

1. DEFINITIONS

           In these conditions

1. “Company” means Total Supplies of Beckland Hill, East Markham, Newark, Nottinghamshire, NG22 0QP.
2. “Commencement Date” means any date agreed between the Company and the Customer under clause 8.1 or, where no such date is agreed, the date the Company commences the Works on Site.
3. “Completion Date” means any date agreed between the Company and the Customer under clause 8.2.
4. “Conditions” means these terms and conditions.
5. “Contract Price” means the price for the Works and Materials.
6. “Customer” means the purchaser of Works and Materials from the Company.
7. “Engineer’s Survey” means a visual inspection of the Site in accordance with clause 9 below.
8. “Materials” means the materials, goods, machinery and equipment to be supplied by the Company in carrying out the Works.
9. “Site” means the place for performance of the Works.
10. “Works” means the Materials or other security supply services or works to be supplied and/or carried out by the Company which may be more particularly described in the quotation and order acknowledgement.

1. FORMATION OF CONTRACT
1. Any order sent to or placed with the Company by the Customer (whether or not pursuant to a quotation) shall be deemed to be an offer by the Customer to buy the Works subject to these Conditions.
2. Any order sent to or placed with the Company by the Customer (whether or not pursuant to a quotation) shall be accepted by means of an order acknowledgement at the discretion of the Company and if so accepted shall be accepted on these Conditions.
3. No damages, compensation or expenses shall be payable by the Company to the Customer in the event that the Company exercises its discretion to refuse an order placed by the Customer.
4. Acceptance will be by way of a Company order acknowledgement and a contract shall not be formed until the Company’s acceptance is communicated in this form or until the Company commences the Works (if earlier).
5. Any contract between the Customer and the Company shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply).
6. The Customer acknowledges that in entering into the contract it has not relied on any statement, promise or representation made by the Company, its agents or employees save for any such representation made or confirmed by the Company in writing.

1. CONTRACT CANCELLATIONS AND RETURNS
1. No order is accepted until confirmed in writing by Total Supplies, once sent no cancellations will be accepted. 

1. QUOTATIONS AND WORKS CARRIED OUT
1. Quotations are provided by the Company using information and prices for labour, Materials, and transport available at the date of issue of the quotation.  The Company reserves the right to withdraw or amend any quotation at any time.  All quotations are exclusive of VAT.
2. The quantity and description of any Materials supplied shall be as set out in the Company’s quotation or order acknowledgement. All samples, drawings, descriptive matter illustrations or advertising are issued for the sole purpose of giving an approximate idea of Materials, they shall not form part of the contract and this is not a sale by sample.
3. Unless agreed otherwise by the Company in writing the Contract Price assumes (where applicable) normal excavation of soil or clay where such works are appropriate. Where however the Company encounters physical conditions such as bedrock, tarmac, rock, brick or shale and or obstructions the Company shall be entitled to amend the Contract Price accordingly.
4. Where it is agreed that delivery shall take place other than at the Company’s place of business and unless agreed otherwise by the Company in writing the Contract Price allows for carriage of Materials and equipment within 10 metres of a metalled road. The Company shall at its sole discretion be entitled to amend the Contract Price accordingly for any carriage beyond 10 metres of a metalled road.

1. PRICE – PAYMENT
1. The Contract Price is stated exclusive of VAT which will be added to the Company’s interim or final application/invoices at the then current rate.
2. The Company is entitled to interim payments 1 month after the Commencement Date and subsequently on the same (or nearest) date in each following month.
3. The Company is entitled to submit a final application/invoice when it considers the Works are complete.
4. Interim and final applications/invoices shall be for a sum equal to the value of Works and Materials carried out and supplied (including unfixed Materials on Site) less the total of previous applications/invoices.
5. Interim and final applications/invoices are due on their respective dates.
6. Within 5 days of an interim or final application/invoice date the Customer shall;
1. confirm the sum payable is as stated in the application/invoice; or
2. set out an alternative sum payable providing details of the calculation of that sum.
7. The final date for payment of any interim or final application/invoice is 7 days after the due date.
8. Not less than 1 day before the final date for payment the Customer shall deliver to the Company in writing details of any ground for withholding payment from the Company and the sum to be withheld under each ground.
9. Interest on overdue applications/invoices will accrue on a daily basis from the final date for payment until payment at the rate of 8% above National Westminster Bank PLC’s base rate from time to time.
10. Where the Customer is a contractor under a building contract with an employer, all payments made by the employer to the Customer in respect of work performed or Materials or equipment supplied by the Company shall be held in trust by the Customer until paid to the Company. The Customer shall immediately upon receipt, pay such sums into a separate bank account held on trust for the Company.
11. The Customer shall not deduct from or set off against any sum due or payable to the Company under the contract and these Conditions any sum claimed or due from the Company to the Customer under any other contract, agreement or obligation between them.
12. If the Customer fails to make any payment by the final date for payment then without prejudice to any of the Company’s other rights the Company may;
1. suspend the Works; or
2. terminate the contract;

and in either case recover from Site any unfixed Materials and any fixed Materials the removal of which would cause only minor damage provided that the Company makes good any damage caused.

1. On termination under clause 5.12.2 the Company may submit a final invoice to be paid in accordance with clauses 5.4 to 5.8.

1. DELIVERY
1. Unless otherwise agreed in writing by the Company, delivery of Materials shall take place at the Company’s place of business.
2. The Company shall use reasonable endeavours to meet requested dates for the delivery of Materials or equipment, but shall accept no liability for any loss or damage incurred by the Customer as a result of a delayed delivery.
3. A delivery time agreed or provided by the Company are given for information purposes and a delivery time is not of the essence of the contract. Where no dates are so specified delivery shall be within a reasonable time.
4. If for any reason the Customer fails to accept delivery of any of any Materials when they are ready for delivery, or the Company is unable to deliver Materials on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
1. risk in Materials shall pass to the Customer (including for loss or damage caused by the Company's negligence);
2. the Materials shall be deemed to have been delivered; and
3. the Company may store and insure the Materials until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. The quantity of any Materials as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

1. VARIATIONS
1. The Company is not obliged to accept or make any variation to the Works and Materials and no variation will be binding on the Company unless accepted by it in writing.
2. Where a variation proposed by the Customer will affect the Contract Price the Company may provide a written variation quotation.
3. The Company may make acceptance by it of any proposed variation conditional upon an extension of the Completion Date.
4. If instructed by the Customer to proceed the Company will issue a variation acceptance and the Contract Price and Completion Date will be amended accordingly.
5. The Company reserves the right to make any variation in the Works or Materials necessary to confirm with any applicable safety, regulatory or statutory requirements.

1. TIME FOR PERFORMANCE
1. Unless specifically agreed by the Company in writing and confirmed in its order acknowledgement no Commencement Date, Completion Date or programmes requested by the Customer shall be binding on the Company.

1. Where the Company agrees to a Completion Date under clause 8.1 and it becomes apparent that the Works will not be completed by the Completion Date for reasons beyond the control of the Company, the Completion Date shall be extended by such time as is reasonable.
2. Where no Commencement Date is agreed under clause 8.1 the Customer shall nevertheless give to the Company written notice of commencement as follows;

1. 7 working days where the contract does not include the supply of Materials;

           or

1. (unless otherwise stated by the Company in writing) 3 weeks where the contract includes the supply of Materials.

1. ENGINEERS SURVEY
1. The purpose of the Engineers Survey is to confirm the suitability of the Materials and to discuss the preparatory work required by the Customer prior to the Commencement Date. No warranty or guarantee is given by the Company in relation to completeness or accuracy of the Engineers Survey.
2. The Company shall carry out the Engineers Survey as soon as practicable.
3. The cost of the Engineers Survey, assuming it does not exceed one day is included in the Contract Price. If additional visits are required there will be an additional charge on a consultancy basis of £250 plus VAT per day.  
4. The Customer shall draw to the Company’s attention all machinery and equipment in existence at the Site at the time of the Engineers Survey and at the Commencement Date which may have an adverse effect on the performance of the Materials provided by the Company to the Customer.
5. The Company shall not be liable for any matters which cannot be identified during the Engineers Survey, including, but not limited to ground conditions (including sub-soil or sub-surface conditions) and ground loop induction, which may be latent and which is not immediately apparent from the Engineers Survey. 

1. RISK AND TITLE
1. The Works including all Materials shall be at the Customer’s risk once delivered and the Customer shall on delivery effect a policy of insurance for the full replacement value of all Materials to include theft and damage by vandalism together with any other necessary policies of insurance for the Works whether complete or incomplete.
2. The Customer shall indemnify the Company for all loses arising from the Customer’s failure to insure in accordance with clause 10.1 and the Customer shall indemnify the Company for all loses arising from damage to or theft of Materials until payment is made in full.
3. Notwithstanding delivery and the passing of risk, property in and title to Materials shall remain with the Company until the Company has received payment of the full price of the Works including:
1. all Materials and/or services the subject of the contract; and
2. all other goods and/or services supplied by the Company to the Customer under any contract whatsoever.

Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the Company and the Customer.

1. Until property in and title to Materials passes to the Customer the Customer shall:
1. hold the Materials on a fiduciary basis as the Company's bailee;
2. store the Materials (at no cost to the Company) separately from all other goods or materials of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;
3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Materials; and
4. maintain the Materials in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
2. The Customer may not resell the Materials before ownership has passed to it.

1. CUSTOMER’S OBLIGATIONS

Unless otherwise agreed by the Company in writing the Customer shall provide the Company free of charge with:

1. all scaffolding, lifts, ladders, hoists craneage;
2. all sand and cement;
3. suitable temporary protection from the Works;
4. suitable connections to mains electricity and water supplies

necessary to carry out the Works; and

1. a designated waste collection point adjacent to the Works from which the Customer will remove from Site all rubbish, surplus excavated material and waste.
1. The Customer is responsible for providing clear access at all reasonable times to all parts of the Site necessary to enable the Company to carry out and proceed regularly with the Works.
2. The Customer shall provide to the Company a scale plan of the Site accurately identifying the setting out of the Works together with any underground services, conduits or other obstacles. The Customer is responsible for the accuracy and completeness of such plan.
3. The Customer is responsible for ensuring that all preparatory and concurrent works necessary for the commencement and continuation of the Works including clearing, grading and levelling are carried out and completed so as to enable the Company to proceed regularly with the Works.
4. The Customer is responsible for providing adequate insurance against the theft or damage of any plant or equipment brought to Site by the Company for use in connection with the Works and will indemnify the Company against such theft or damage.
5. The Customer is responsible for the reinstatement of finishes to tarmac, block paving or quality surfaces after the completion of the Works by the Company
6. The Customer is responsible for obtaining any necessary approvals, permissions or consents (including planning consent) for the carrying out of the Works.
7. The Customer will pay to the Company a reasonable sum for any additional Works, Materials, plant/equipment costs, time or travel costs incurred by the Company as a consequence of the Customer’s breach of any part of clause 11 or clause 8.3.
8. Sums payable under clause 11.8 shall be included in the Company’s interim/final invoices and paid in addition to the Contract Price in accordance with clause 5.

1. CUSTOMER’S SPECIFICATIONS AND QUALITY
1. Where the Company is not the manufacturer of any Materials supplied as part of the Works, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
2. The Company warrants that (subject to the other provisions of these conditions) on delivery the Materials shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
3. The Company shall not be liable for a breach of the warranty in clause 12.2 unless:
1. the Customer gives written notice of the defect to the Company within seven days of the time when the Customer discovers or ought to have discovered the defect; or
2. the Customer makes any further use of such Materials after giving such notice; or
3. the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Materials or (if there are none) good trade practice; or
4. the Customer alters or repairs such Materials without the written consent of the Company.
4. Subject to clause 12.3, if any of the Materials do not conform with the warranty in clause 12.2 the Company shall at its option repair or replace such Materials (or the defective part) or refund the price of such Materials at the pro rata Contract Price rate provided that, if the Company so requests, the Customer shall, at the Customers’ expense, return the Materials or the part of such Materials which is defective to the Company.
5. If the Company complies with clause 12.4 it shall have no further liability for a breach of the warranty in clause 12.2 in respect of such Materials.
6. The Company will not be responsible for defects in, or delay in carrying out, the Works or in the quality, quantity or fitness for purpose of any Materials supplied which arise from the Company’s reliance on any drawings, specifications, calculations, method statements or particulars supplied by the Customer.
7. Where any errors or omissions in any drawings, specifications, calculations, method statements or particulars supplied by the Customer cause:
1. the quantity or quality of Materials to be less than required to complete the Works the supply of any additional Materials shall be a variation subject to the provisions of clause 7;
2. the quantity of Materials to be greater than required to complete the Works the Company may at its discretion issue a credit note for such sums as it sees fit in respect of the excess quantity.

1. LIMITATION OF LIABILITY
1. The Company’s liability under the contract and these Conditions, except for liability in respect of death or personal injury caused by the negligence of the Company, its employees, servants or agents is limited to the reasonable cost of remedying or rectifying any defects in the Works and shall in no event exceed the sum of £1,000 (one thousand pounds).
2. Except as provided by clause 13.1 the Company excludes all liability to the Customer for any loss or damage, whether direct, indirect, consequential or economic suffered or incurred by the Customer arising under or in connection with the contract, these Conditions or the carrying out of the Works.
3. The Company does not accept liability for any colour or marking variations contained in and between natural products included in the Materials.
4. The Company does not accept any liability for:
1. any damage to surrounding foliage whilst carrying out the Works.
2. any damage to tarmac, block paving or quality surfaces that need to be removed in order to carry out the Works.
3. the cost and consequences of striking below ground services or conduits unless their location has been specifically identified to the Company by the Customer before the date of commencement on Site in accordance with clause 11.3.
4. Interference caused by high voltage cables or EMF interference of with any cables installed by the Company.
5. Failure of the Works or any Materials to connect to or incorporate within the Customer’s existing systems save where such connection and incorporation has been specifically agreed in advance between the Customer and the Company.
6. Failure of IT or computer equipment or non conformity of such equipment with the Customer’s systems.

1. INSOLVENCY OF CUSTOMER
1. If the Customer has a has a winding up or bankruptcy petition issued or filled against it or becomes bankrupt; makes a proposal for a composition in satisfaction of his debts or a scheme of arrangement of his affairs; makes or proposes any arrangement with its creditors; has a proposal for a voluntary arrangement for a composition of debts or scheme of arrangement approved in accordance with the Insolvency Act 1986; a notice of intention to appoint an administrator or administrative receiver is filed; has an application made under the Insolvency Act 1986 for the appointment of an administrator; has a winding up order made against it; passes a resolution for voluntary winding up; has appointed a receiver or manager of its business; has possession taken by or on behalf of any creditor of any property the subject of a charge or in the case of a partnership) any partner is the subject of an individual arrangement or any other event or proceedings referred to in this clause; is the subject of any analogous arrangement, event or proceedings in any other jurisdiction or the Company suspects any of the above is imminent without prejudice to any other right of remedy available to it the Customer’s right to possession of the Materials shall terminate immediately and the Company shall be entitled to:

1. terminate the contract;
2. suspend the Works;
3. recover payment for the Works including Materials notwithstanding that ownership of any of the Materials has not passed from the Company;

and in any case recover from Site any unfixed Materials and any Materials fixed to the Site the removal of which would cause only minor damage to the Site provided that the Company makes good the damage caused.

1. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Materials are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.

1. TERMINATION
1. The Company shall be entitled by written notice to the Customer to terminate the contract in the event that the Company is prevented or hindered from performing the Works due to unforeseen commercial or physical circumstances.
2. Following such termination the Company shall be entitled to be paid a fair and reasonable proportion of the Contract Price commensurate with the performance of the contract up to the date of termination. The Company shall not be responsible to the Customer for loss or damage either in contract or tort or otherwise sustained by the Customer as a result of the termination including (but not limited to) such losses or damages arising in relation to loss of profit or consequential breach of contract or liability otherwise incurred by the Customer.

1. DISPUTE RESOLUTION
1. The Company or the Customer may refer any dispute arising out of or in connection with this contract to adjudication and the rules applicable to any adjudication shall be those in the Scheme for Construction contracts (England and Wales) Regulations 1998 or any re-enactment or amendment thereof.
2. The adjudicator nominating body for the purpose of adjudication shall be the Royal Institution of Chartered Surveyors.

• MISCELLANEOUS
• The contract and these Conditions shall be governed by the law of England and Wales.
• No waiver by the Company of any breach of contract or these Conditions by the Customer shall be considered as a waiver of any subsequent breach of contract or these Conditions by the Customer.
• The Company shall be entitled to sub-contract or assign all or any part of the Works, without the consent of the Customer.
• The illegality, invalidity or unenforceability of any clause in these Conditions shall not affect the legality, validity or enforceability of the remainder.
• It is not intended that any party shall acquire any right pursuant to the contracts (Rights of Third Parties) Act 1999 as a consequence of this contract.