Terms and conditions
In these Conditions: “Company” means J Higham Building
Services Limited; “Customer” means the party with whom the Company contracts;
“Contract” means the contract made between the Company and the Customer for
supply of the Goods and /or Services which is subject to these Conditions;
“Goods” means all or any of the goods works and materials to be supplied by the
Company; “Services” means any services to be performed by the Company; and “Act
of Insolvency” means any one or more of the following namely the passing of a
resolution or the presentation of a petition for winding-up, bankruptcy or for
the appointment of an administrator, the appointment of a receiver and/or
manager or administrative receiver over the whole or any part of the Customer’s
undertaking and assets, the making of a proposal for a voluntary arrangement
within the Insolvency Act 1986 or of a proposal for any other composition
scheme or arrangement with or the calling by the Customer of any meeting of its
creditors generally, the levying of execution or distress or diligence on any
of its assets, the failure to pay its proper debts as and when due, the
Customer ceasing, or threatening to cease, to carry on business, the Company
reasonably apprehending that any of the events mentioned above is about to
occur in relation to the Customer and anything analogous to any of the
foregoing under the law of the jurisdiction where the Customer is established.
2. Basis of
2.1 - Any quotation shall remain open for a maximum period of
60 days from its date. Quotations are not binding and shall not be open for acceptance
by the Customer. Where Goods are quoted for supply from stock they are quoted
subject to being unsold when the Customer’s order is accepted.
2.2 - These Conditions shall form the terms and conditions of
the Contract and shall apply to the exclusion of any terms or conditions
whether put forward by or on behalf of the Customer in or on its order or
otherwise or whether implied by law (insofar as the exclusion of the same is
2.3 - The placing by the Customer of any order shall
constitute an offer by the Customer. No contract shall come into existence
unless the Company accepts the Customer’s order in writing. Any order placed the
Customer with any of the Company’s employees or agents shall be subject to
written acceptance by the Company.
2.4 - No alteration to these Conditions shall be effective
unless expressly agreed to in writing by a director of the Company.
2.5 - The Company’s employees or agents are not authorised to
make any representations concerning the Goods unless confirmed by the Company
in writing. In entering into the Contract the Customer acknowledges that it
does not rely on, and waives any claim for breach of any such representations
which are not so confirmed.
2.6 - Any advice or recommendation given by the Company or
its employees or agents as to the storage, application or use of the goods
which is not confirmed in writing by the Company is followed or acted upon
entirely at the Customer’s own risk, and accordingly the Company shall not be
liable for any such advice or recommendation which is not so confirmed.
2.7 - 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 the Company shall be subject to correction
without any liability on the part of the Company.
Information, samples and materials supplied
3.1 - The Customer shall be responsible to the Company for
ensuring the accuracy and sufficiency of its order (including of any applicable
specification and/or sample) and for giving the Company any necessary
information relating to the Goods within a sufficient time to enable the
Company to perform the Contract in accordance with its terms. The Company shall
be entitled to charge the Customer for all costs (and a reasonable element of
profit) incurred by it where variations to Goods and/or Services are requested
to the Customer and accepted by the Company.
3.2 - Where samples are to be supplied by the Company, the
Customer shall as soon as reasonably practicable and in any event within 14
days after receipt of the same notify the Company that the samples are in all
respects satisfactory or of any respect in which the samples are not
satisfactory. In default of such notification the Company shall be entitled but
not bound to proceed in the manufacture of the remainder of the Contract.
4.1 - Any time quoted by the Company for delivery of all or
any of the Goods and/or performance of all or any of the Services is an
estimate only and time shall not be of the essence. The Company shall not be
liable for any failure to meet any such estimate, nor for any loss, of
whatsoever nature resulting directly or indirectly therefrom.
4.2 - The Company reserves the right to deliver all or any of
the Goods and/or the Services in advance of the estimated date.
4.3 - In the absence of agreement to the contrary delivery of
the Goods shall be made by the Company delivering the Goods to an agreed
destination or by the Customer collecting the Goods at the Company’s premises
at any time after the Company has notified the Customer that the Goods are
ready for delivery.
4.4 - The Company reserves the right to deliver by
instalments and each delivery shall constitute a separate contract to which
these Conditions shall apply. Failure by the Company to deliver any one or more
of the instalments or any claim by the Customer in respect of any one or more
instalments shall not entitle the Customer to treat the Contract as a whole as
4.6 - the Company may (without prejudice to its other rights
and remedies): store the Goods (on its own or any third party’s premises)
4.7. - If the Company fails to deliver the goods for any
reason other than any cause beyond the Company’s reasonable control or the
Customer’s fault, and the Company is accordingly liable to the Customer, the
Company’s liability shall be limited to the excess (if any) of the cost to the
Customer (in the cheapest available market) of similar goods to replace those
not delivered over the price of the Goods.
All descriptive and technical specifications, drawings,
catalogues, illustrations and particulars of weight and dimensions supplied by
the Company are approximate only and the Company reserves the right without
notice to the Customer to make alterations thereto and to supply the Goods so
altered in performance of the Contract provided that such alterations do not
materially affect the characteristics of the Goods.
Following acceptance by the Company of the Customer’s order,
no cancellation and/or suspension, either in whole or in part, may be made by
the Customer other than with the prior written consent of a director of the
Company and upon terms that the Customer shall indemnify the Company in full
against all loss (including without limitation loss of profit) damages, costs
expenses and other liabilities awarded against or incurred by the Company as a
result of or in connection with the cancellation.
7.1 - The price of the Goods shall be the Company’s quoted
price or, where no price has been quoted (or a quoted price is no longer
valid), the price listed in the Company’s current price list at the date of the
acceptance of the Order, less any discounts to which the customer is entitled
but without any other deduction. Where the Goods are supplied for export from
the United Kingdom, the Company’s price shall apply.
7.2 - The Company reserves the right, by giving notice to the
Customer at any time before delivery, to increase the price of the Goods to
reflect any increase in the cost to the Company.
7.3 - Unless otherwise expressly stated in writing, all
prices are inclusive of VAT which shall be charged where appropriate at the
rate prevailing at the relevant tax point.
7.4 - Unless otherwise agreed in writing payment of all sums
due under the Contract shall be made in full as according to the commencement
of work contract.
7.5 - Where payment is agreed to be made by instalments, any
delay or default by the Customer in making payment in respect of any one
instalment shall render the contact to cease until resolved.
7.6 - The Company may appropriate any payment made by the
Customer to such of the Goods (or the goods supplied under any other contract
between the Company and the Customer) as the Company may think fit
(notwithstanding any purported appropriation by the Customer).
8. Risk and
8.1 - Risk in the Goods shall pass to the Customer
immediately on delivery to the Customer or into custody on the Customer’s
behalf whichever is the sooner.
8.2 - Notwithstanding delivery and the passing of risk,
property in and title to the Goods shall remain in the Company until the
Company has received payment of the full price of (a) all Goods and/or Services
the subject of the Contract and (b) all other goods and/or services supplied by
the Company to the Customer under any other contract whatsoever.
8.3 - Until property in and title to the Goods passes to the
8.3.1 - the Customer shall keep the Goods properly stored,
protected and insured and separate from all or any other goods whether
belonging to the Company the Customer or any third party;
8.3.2 - the Company shall be entitled at any time forthwith
to revoke the Customer’s power to deal with the Goods and it shall automatically
cease if the Customer shall commit or be subject to any Act of Insolvency; and
8.3.3 - the Customer shall not make any modification to the
Goods or their packaging or alter remove or tamper with any marks, numbers or
other means of identification used on or in relation to the Goods.
8.4 - Upon termination of the Customer’s power to deal with
the Goods, the Customer shall place the Goods at the disposal of the Company
and the Company and its servants and agents are hereby irrevocably authorised
without the need for consent of any third party but using only such force as
may be necessary, to enter upon any premises of the Customer or any third party
for the purpose of removing the Goods.
8.5 - If any of the foregoing provisions of this Condition
shall be invalid or unenforceable such invalidity or unenforceability shall not
affect the remaining provisions.
Termination and suspension
Without prejudice to any rights and remedies available to it,
the Company shall be entitled, forthwith either to terminate the Contract
wholly or in part and/or any other contract with the Customer or to withhold
performance of all or any of its obligations under the Contract and/or any
other contract with the Customer (and all monies outstanding from the Customer
to the Company shall become immediately due and payable) if:
9.1 - any sum owing to the Company from the Customer on any
account whatsoever shall be unpaid after the due date for payment (in which
event the Company shall have a general lien for any such sum on all and any
property of the Customer in its possession);
9.2 - the Customer shall commit or be subject to any Act of
9.3 - the Customer shall commit any breach of any contract
(including without limitation the Contract) with the Company.
In the event of a suspension of performance the Company shall
be entitled to require, as a condition of resuming performance, to require
pre-payment, or such security as it may require.
10.1 – The warranty is held by the local authority building regulations
(or any private company it appoints). Any immediate defects or incomplete
works, the Company shall:
10.1.1 - make good at its option by reimbursement of the
whole or part of the price (and, where relevant, as a deduction from any part
of the price remaining unpaid) or by repair or by replacement:
10.1.1.2 - any defect due solely to faulty materials and/or
10.1.2 - make good by reimbursement of the price or by
performance of the Services any defective workmanship in the performance of
Services; provided that:
10.1.3 - any failure to meet specification is notified in
writing to the Company within 14 days from the date of delivery or (where the
failure was not apparent on reasonable inspection) within a reasonable time
after discovery of the failure and in any event such failure must be notified
within six months after delivery;
10.1.4 - the Customer shall within 14 days of the date of
delivery or in the case of a latent defect within three days of the date when
the defect might reasonably have been discovered (but in any event no later
than six months after delivery of the Goods ) notify the Company in writing of
any such defect;
10.1.5 - the Company shall be under no liability in respect
of any defect in the Goods arising from any drawings, design or specification
supplied by the Customer;
10.1.6 - the Company shall be under no liability in respect
of any defect arising from fair wear and tear, any glass breakage after the
date of delivery or other acts of the Customer including without limitation
wilful damage, negligence, lack of proper maintenance or servicing, abnormal
working conditions, failure to follow the Company’s instructions (whether oral
or in writing), misuse or alteration or repair of the Goods without the
10.1.7 - the Company shall be under no liability until any
monies due from the Customer under the Contract have been paid in full; and
10.1.8 - any Goods alleged to be defective are promptly made
available to the Company for inspection and, if so required by the Company, are
promptly returned at the Customer’s risk and expense to the Company’s works for
10.1.9 - the above warranty does not extend to parts,
materials or equipment not manufactured by the Company in respect of which the
Customer shall only be entitled to the benefit of any such warranty or
guarantee as is given by the manufacturer to the Company and can be
11.1 - The Company shall not be liable to the Customer in
contract, tort (including without limitation negligence) or breach of statutory
duty for any loss or damage which the Customer may suffer by reason of any act,
omission, neglect or default (including negligence) in the performance of the
Contract by the Company its servants or agents, in a sum which will exceed the
contract price paid by the customer.
11.2 - The Company shall not be liable to the Customer in
contract, tort (including without limitation negligence) or breach of statutory
duty for any indirect or consequential (including economic) loss of any kind
which the Customer may suffer by reason of any act, omission, neglect or
default (including negligence) in the performance of the Contract by the
Company, its servants or agents.
11.3 - Nothing in these Conditions shall operate so as:
11.3.1 - to exclude the Company’s non-excludable liability in
respect of death or personal injury caused by the negligence of the Company its
servants or agents;
11.3.2 - to affect the statutory rights of the Customer where
Goods are sold or Services are supplied to a Customer dealing as a consumer
within the meaning of Unfair Contract Terms Act;
11.3.3 - to exclude the application of Section 12 of the Sale
of Goods Act 1979; or
11.3.4 - to exclude liability for fraudulent
11.4 - The Customer is required to notify the Company of any
claim under condition 11.3 as soon as reasonably possible except that any claim
under condition 11.3.3 shall be notified to the Company within 14 days of the
Customer suffering any alleged loss or damage.
For the purposes of Section 6(8) of the Health and Safety at
Work Etc Act 1974 the Customer undertakes to comply with all instructions
relating to the Goods received from the Company from time to time and to take
such other steps sufficient to ensure, so far as is reasonably practicable,
that the Goods will at all times be safe and without risk to health when being
properly used, set, cleaned and maintained by a person at work.
13. Instructions to Customer
13.1 - The Customer shall ensure that all materials and
components are correctly assembled, installed, used and maintained in strict
accordance with the Company’s instructions or recommendations.
13.2 - The Customer shall indemnify the Company in respect of
any liability the Company may have in relation to damage caused by faulty
installation, work or parts damaged after supply by the Company whether the
installation work has been carried out by the Customer or by any other person
to whom the Customer has supplied the Goods.
13.3 - If the Customer arranges installation by another
person the Customer shall keep a record of the name, telephone number and
address of the installer and end user.
13.4 - Where the Customer supplies any glass or other
alternative materials, the Customer shall ensure that the glass or material
supplied is subjected to adequate safety testing and quality controls. The
Customer shall not supply a substitute to the glass as specified by the
Company. Where the Customer wishes to supply what he considers to be a safer
alternative to the glass specified by the Company he may only do so with
written approval by the Company that the proposed alternative is suitable and
falls within the stress loads for which the product has been tested.
13.5 - The Customer shall use the Goods only for the purpose
for which they are marketed by the Company.
13.6 - The Customer must ensure that all assembly booklets,
information leaflets and other literature supplied by the Company with the
Goods are given to the installer and end user, as appropriate.
Intellectual property rights
14.1 - If any claim is made against the Customer that the
Goods infringe or that their use or resale infringes the patent, copyright,
design right, registered design, trade mark or other industrial or intellectual
property rights of any other person or any claim is made in respect of passing
off or unauthorised use of confidential information in relation to the Goods
and/or their use or resale the Customer shall forthwith notify the Company in
writing and the Company shall be given full control of any proceedings or
negotiations in connection with any such claim. The Customer shall give the
Company all reasonable assistance for the purposes of any such proceedings or
negotiations and except pursuant to a final award, the Customer shall not pay
or accept any such claim, or compromise any such proceedings without the
consent of the Company (which shall not be unreasonably withheld). The Customer
shall do nothing which would or might vitiate any policy of insurance or insurance
cover which the Company may have in relation to such infringement.
14.2 - If the Goods are to be manufactured or any process is
to be applied to the Goods by the Company in accordance with a specification
submitted by the Customer, the Customer shall (without prejudice to the other
rights and remedies of the Company) indemnify the Company in full against all
loss, costs, damages, charges, expenses and other liabilities awarded against
or incurred by the Company as a result of or in connection with:
14.2.1 - any claim for infringement of any patent, copyright,
design right, registered design, trade mark or other industrial or intellectual
property rights of any other person and/or for passing off and/or unauthorised
use of confidential information which results from the Company’s use of the
Customer’s specifications; and
14.2.2 - any other liability of any kind to any third party
including without limitation for defective Goods, personal injury or death to
the extent that it arises from the specification.
15.1 - Any term or expression which is defined in or given a
particular meaning by the provisions of Incoterms shall have the same meaning
in these Conditions, but in the event of conflict these Conditions shall
15.2 - Where the Goods are supplied for export from the
United Kingdom, the provisions of this clause 13 shall (subject to any special
terms agreed in writing between the Company and the Customer) apply not
withstanding any other provision of these Conditions.
15.3 - Unless otherwise agreed in writing between the Company
and the Customer, the Goods shall be delivered to the air or sea port of
shipment and the Company shall be under no obligation to give notice under
section 32(3) of the Sale of Goods Act 1979.
15.4 - The Customer shall be responsible for arranging for
testing and inspection of the Goods at the Company’s premises before shipment.
The Company shall have no liability for any claim in respect of any defect in
the Goods which would be apparent on testing or inspection and which is made
after shipment, or in respect of any damage during transit.
15.5 - Payment of all amounts due to the Company shall be
made by irrevocable letter of credit opened by the Customer in favour of the
Company and confirmed by a bank acceptable to the Company.
Contracts for Services
If the Contract is for or to include Services to be performed
by the Company the following provisions shall apply:
16.1 - the Company shall only be obliged to carry out
Services during normal working hours and shall be entitled to charge for any
overtime worked upon request by the Customer;
16.2 - where Services are performed at the premises of the
Customer, the Customer shall provide free of charge:
16.2.1 - proper and safe storage and protection of all Goods,
tools, plant, equipment and materials on site;
16.2.2 - free and safe access to the site and place where the
Services are to be performed;
16.2.3 - all facilities and services necessary to enable such
Services to be performed safely and expeditiously;
16.2.4 - if such Services include the installation of Goods,
all builders work, foundations and cutting away and making good where
16.2.5 - the availability of all plant and equipment to
permit the Goods to be tested upon completion of Services;
16.3 - the Customer shall pay the Company any expenses
incurred by the Company by reason of a breach by the Customer of any of its
obligations in this condition without prejudice to the Company’s right to
recover any loss thereby occasioned; and
16.4 - Goods and Services supplied on the site of the
Customer are at all times at the sole risk of the Customer and if any part is
lost or destroyed for any reason whatsoever the Company shall be entitled to
charge as a variation to the Contract for the restoration of such Goods and/or
Services. The Customer shall for the benefit of itself and the Company insure
and keep insured with reputable insurers the full value of Goods and Services
against every kind of loss, damage or destruction. The Customer shall produce
the policy to the Company upon request together with the latest premium
receipts and in default of effecting the same the Company shall be entitled to
do so and add the cost of such insurance to the Contract price.
17.1 - It shall be the responsibility of the Customer to
ensure that all requirements applicable to the Contract, whether statutory,
regulatory, municipal and/or otherwise howsoever, (including without limitation
any relating to the importation or use of the Goods in the country of
destination and for the payment of duties thereon) are duly complied with. It
shall be a condition precedent to the performance by the Company of its
obligations under the Contract that all necessary licenses, permits and
consents shall have been obtained by the Customer.
17.2 - Without prejudice to the generality of condition 16.1
the obtaining of any relevant exchange control consents shall be a condition
precedent to the performance by the Company of any of its obligations under the
17.3 - Neither party shall have any liability for any failure
to perform or for any delay in the performance (other than as to payment) of,
any of its obligations under the Contract caused by any factor beyond its
17.4 - No failure or delay on the part of the Company to
exercise any of its rights under the Contract shall operate as a waiver of nor
shall any waiver by the Company of any breach by the Customer of any of its
obligations under the Contract affect the rights of the Company in the event of
any further or continuing breach.
17.5 - The Contract is personal to the Customer, who shall
not assign or in any way part with the benefit without the Company’s prior
17.6 - Each and every obligation contained in these Conditions
shall be treated as a separate obligation and shall be severally enforceable as
such notwithstanding the non- enforceability of any other such obligation.
17.7 - The clause headings in these Conditions are for
convenience only and shall not in any way affect the interpretation of the
17.8 - The Conditions and the Contract shall not create or
evidence, or be deemed to create or evidence, any agency or partnership between
the Company on the one hand and the Customer or any third party on the other.
17.9 - Any notice required to be given in writing under the
Contract shall be given, where possible, by facsimile transmission and
otherwise by first class post addressed to the registered office of the party
for which it is intended, or to such other address as may be notified in
writing in accordance herewith for the purpose, and shall be deemed to have
been received, in the case of a facsimile transmission, upon transmission and,
in the case of a letter, forty-eight hours after posting. In proving service by
letter, it shall be sufficient to show that the envelope containing the notice
was properly addressed and stamped and duly posted.
17.10 - The Contract shall be governed by English Law.
17.11 - The parties irrevocably submit to the exclusive jurisdiction
of the English Courts, save in the case of a Customer who has no assets within
the jurisdiction of the English Courts and who is established in a country
which will not enforce the judgment of the English Courts. In those
circumstances the Company may if it chooses refer any disputes arising out of
the Contract to arbitration under the Rules of Conciliation and Arbitration of
the International Chamber of Commerce, such arbitration to take place in