STANDARD TERMS & CONDITIONS FOR TURNKEY / PROJECTS
1. Definitions
In these Terms and Conditions:
"Company" means LumenUK Limited.
"Customer" means the person, company or organisation purchasing the Works.
"Contract" means the Company's Quotation, these Terms and Conditions and any documents expressly incorporated by reference and accepted by both parties.
"Works" means the design (where applicable), supply, delivery, installation, testing and commissioning of the Goods as described within the Company's Quotation.
"Goods" means all materials, equipment, fixtures, fittings and other products supplied by the Company in connection with the Works.
"Site" means the premises or location where the Works are to be carried out.
"Practical Completion" means the stage at which the Works are substantially complete and capable of being used for their intended purpose, notwithstanding minor defects or outstanding items which do not materially affect their safe operation or intended use.
"Variation" means any addition, omission or alteration to the Works agreed in writing by both parties, including any adjustment to the Contract Sum or programme where applicable.
2. Formation of Contract
2.1 The Contract shall comprise, in order of precedence:
a) the Company's Quotation (including any agreed scope of works and commercial terms);
b) these Terms and Conditions; and
c) any other document expressly agreed in writing by both parties to form part of the Contract.
2.2 No order placed by the Customer shall be binding upon the Company until accepted in writing by the Company or until the Company commences the Works.
2.3 These Terms and Conditions shall apply to the Contract to the exclusion of any terms and conditions contained or referred to in the Customer's purchase order, subcontract, standard terms or any other document, unless expressly agreed in writing by a Director of the Company.
2.4 No variation to the Contract shall be binding unless agreed in writing by authorised representatives of both parties.
2.5 Where there is any conflict between the documents forming the Contract, the order of precedence set out in Clause 2.1 shall apply.
3. Scope of the Works
3.1 The Company shall carry out the Works in accordance with the Company's Quotation, any agreed drawings, specifications and any written Variations agreed by the parties.
3.2 The Contract Sum is based solely upon the scope of Works detailed within the Company's Quotation. Any work, materials or services not expressly included shall be deemed to be excluded.
3.3 Any additional work requested by the Customer, or made necessary by unforeseen Site conditions, changes to the Customer's requirements or third-party requirements, shall constitute a Variation and may result in an adjustment to the Contract Sum and/or the programme.
3.4 Unless specifically stated within the Company's Quotation, the following are excluded from the Contract:
a) builders' works, making good and redecoration;
b) asbestos surveys, removal or remediation;
c) structural alterations;
d) upgrades to existing electrical infrastructure not identified during the Company's survey;
e) statutory authority charges, permits or application fees;
f) work outside the Company's normal working hours.
3.5 The Company shall use reasonable endeavours to identify any exclusions during the survey and quotation stage. However, the Customer acknowledges that certain conditions may only become apparent once the Works have commenced.
3.6 The Company shall not be obliged to carry out any Variation until its effect on the Contract Sum and/or programme has been agreed, unless immediate action is necessary for health and safety reasons or to prevent damage to property.
4. Quotations and Variations
4.1 The Company's Quotation is based upon the information made available by the Customer at the time of tender and shall remain valid for the period stated in the Quotation, unless withdrawn earlier by the Company.
4.2 No Variation shall be binding unless instructed or confirmed in writing by the Customer and accepted by the Company.
4.3 Where a Variation affects the cost of the Works or the programme, the Company shall be entitled to make a fair and reasonable adjustment to the Contract Sum and/or the completion date.
4.4 If it is not reasonably practicable to agree the value of a Variation before the additional work is carried out, the Company may proceed with the Customer's written instruction and the Variation shall be valued using the rates contained within the Contract, where applicable, or otherwise at fair and reasonable market rates.
4.5 The Company shall not be required to commence any Variation until the Customer has accepted the associated adjustment to the Contract Sum and programme, unless immediate action is necessary for health and safety reasons, to prevent damage to property or to maintain the programme at the Customer's request.
4.6 Verbal instructions, site discussions or requests made directly to the Company's employees or subcontractors shall not constitute an authorised Variation unless confirmed in writing by the Customer and accepted by the Company.
5. Customer Obligations
5.1 The Customer shall provide the Company with safe and unrestricted access to the Site during normal working hours, together with all information reasonably required to carry out the Works.
5.2 The Customer shall ensure that the Site is ready for the Works to commence on the agreed start date and that all necessary permissions, consents and approvals under its control have been obtained.
5.3 Unless otherwise agreed in writing, the Customer shall provide, free of charge:
a) suitable access to all working areas;
b) a safe working environment;
c) welfare facilities where required by law;
d) reasonable access to electricity, water and other services necessary to carry out the Works.
5.4 The Customer shall ensure that the working areas are free from obstruction and that any activities by others which may affect the Works are properly coordinated.
5.5 The Company shall not be responsible for delays or additional costs arising from:
a) restricted or delayed access to the Site;
b) inaccurate or incomplete information supplied by the Customer;
c) delays caused by the Customer, its employees, agents or other contractors;
d) unforeseen Site conditions which could not reasonably have been identified during the Company's survey.
5.6 Where any delay or disruption is caused by matters outside the Company's control, the Company shall be entitled to a reasonable extension of time and reimbursement of any additional costs reasonably incurred.
6. Programme and Delays
6.1 Any programme, commencement date or completion date provided by the Company is an estimate unless expressly stated otherwise in the Contract.
6.2 The Company shall use all reasonable endeavours to complete the Works within the agreed programme but shall not be liable for delays caused by matters beyond its reasonable control.
6.3 The Company shall be entitled to a reasonable extension of time where the progress of the Works is delayed by:
a) Variations instructed by the Customer;
b) delays in receiving instructions, approvals or information from the Customer;
c) restricted or unavailable access to the Site;
d) delays caused by other contractors or third parties;
e) unforeseen Site conditions;
f) adverse weather conditions which materially affect the Works;
g) any Force Majeure event.
6.4 Where a delay is caused by the Customer or by matters for which the Customer is responsible, the Company shall be entitled to recover any additional costs, losses or expenses reasonably incurred as a result of the delay.
6.5 If the Works are suspended at the request of the Customer, or due to circumstances for which the Customer is responsible, the Company shall be entitled to revise the programme and recover all reasonable costs associated with the suspension, remobilisation and any resulting inefficiencies.
6.6 The Company shall notify the Customer as soon as reasonably practicable if it becomes aware of any event likely to materially affect the programme or completion of the Works.
7. Access to Site
7.1 The Customer shall provide the Company with uninterrupted access to the Site sufficient to enable the Works to be carried out efficiently and safely.
7.2 The Customer shall ensure that the Site is available on the agreed dates and that all areas in which the Works are to be undertaken are clear, accessible and ready for the Company's personnel to commence work.
7.3 Where access is restricted, delayed or prevented for reasons beyond the Company's control, the Company shall be entitled to:
a) a reasonable extension of time;
b) recover all reasonable additional costs, including labour, plant, accommodation, travel and remobilisation costs; and
c) revise the programme accordingly.
7.4 If the Company's personnel are required to leave the Site due to circumstances beyond the Company's control, any additional costs associated with returning to the Site shall be recoverable from the Customer.
7.5 The Customer shall ensure that all necessary Site inductions, permits, security clearances and access arrangements are available on the agreed commencement date.
7.6 The Company shall not be responsible for delays arising from the acts or omissions of the Customer, other contractors, the building occupier or any third party over whom the Company has no control.
8. Goods, Delivery and Storage
8.1 The Company shall supply the Goods specified within the Contract. Where a stated product becomes unavailable due to circumstances beyond the Company's reasonable control, the Company reserves the right to supply an equivalent product of equal or better quality and specification, subject to the Customer's approval where the substitution would materially affect the design, performance or appearance of the Works.
8.2 Delivery dates are estimates only. The Company shall use reasonable endeavours to deliver the Goods in accordance with the agreed programme but shall not be liable for delays caused by manufacturers, suppliers, carriers or other circumstances beyond its reasonable control.
8.3 Risk in the Goods shall pass to the Customer upon delivery to the Site or other agreed delivery location. Ownership of the Goods shall remain with the Company until payment has been received in full in accordance with the Contract.
8.4 Where the Customer requests that Goods are delivered in advance of installation, or requests that Goods are stored by the Company pending installation, the Customer shall be responsible for any reasonable storage, handling, insurance and redelivery costs incurred by the Company.
8.5 If delivery or installation is delayed by the Customer after the Goods have been ordered or made ready for dispatch, the Company shall be entitled to invoice the value of those Goods and recover any reasonable costs arising from the delay, including storage and remobilisation costs.
8.6 The Customer shall be responsible for the security and protection of all Goods following delivery to the Site. The Company shall not be liable for loss, theft or damage to Goods after delivery unless caused by the negligence of the Company.
9. Price and Payment
9.1 The Contract Sum shall be the amount stated in the Company's Quotation unless amended by an agreed Variation.
9.2 Unless otherwise agreed in writing, payments shall be made in accordance with the payment schedule set out in the Company's Quotation or invoice.
9.3 The Company shall be entitled to submit interim invoices, applications for payment or stage payment invoices where the Contract provides for staged payments.
9.4 All invoices shall be paid by the due date stated within the Contract. Time for payment shall be of the essence.
9.5 If the Customer fails to make payment when due, the Company may, without prejudice to any other rights:
a) charge interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
b) suspend the Works until payment has been received;
c) withhold delivery of Goods or materials;
d) recover all reasonable costs incurred as a result of the non-payment or suspension.
9.6 Where the Customer fails to pay an undisputed invoice, the Company shall be entitled to revise the programme to reflect any delay caused by the suspension of the Works.
9.7 The Customer shall not withhold payment or apply any set-off or deduction unless:
a) the Company has agreed in writing; or
b) the deduction relates to a genuine disputed amount which has been notified to the Company before the payment due date.
9.8 Unless expressly stated otherwise in the Company's Quotation, all prices are exclusive of VAT.
10. Practical Completion and Handover
10.1 The Works shall be deemed to have reached Practical Completion when they are substantially complete and capable of being used for their intended purpose, notwithstanding the existence of minor defects or outstanding items which do not materially affect the safe operation or intended use of the Works.
10.2 Upon Practical Completion, the Company shall, where applicable, provide the Customer with the relevant handover documentation, which may include operating instructions, test certificates, commissioning records, warranties and manufacturer's documentation.
10.3 The Customer shall inspect the Works as soon as reasonably practicable following notification of Practical Completion and shall notify the Company of any defects or incomplete items within seven (7) days.
10.4 The Company shall remedy any defects or outstanding items notified under Clause 10.3 within a reasonable time, having regard to the nature of the defect and the availability of labour and materials.
10.5 The Customer's occupation, use or beneficial use of the Works shall constitute acceptance of Practical Completion unless otherwise agreed in writing.
10.6 Practical Completion shall not relieve the Customer of its obligation to make payment in accordance with the Contract.
11. Defects Liability and Warranties
11.1 The Company warrants that the Works shall be carried out with reasonable skill and care and in accordance with generally accepted industry standards.
11.2 Unless otherwise stated in the Company's Quotation, the Company's workmanship shall be warranted for a period of twelve (12) months from the date of Practical Completion.
11.3 Goods and equipment supplied by the Company shall be covered by the relevant manufacturer's warranty. The Company shall use reasonable endeavours to assist the Customer in administering any valid warranty claim.
11.4 The Company's liability under this Clause shall, at its option, be limited to repairing or replacing defective workmanship or defective Goods, or reimbursing the reasonable cost of such repair or replacement.
11.5 This warranty shall not apply where any defect arises as a result of:
a) fair wear and tear;
b) misuse, neglect or accidental damage;
c) unauthorised alteration, modification or repair by persons other than the Company;
d) failure to operate or maintain the Works in accordance with the Company's or manufacturer's instructions;
e) defects arising from existing installations, equipment or infrastructure not installed by the Company;
f) power failures, voltage fluctuations, water ingress, vandalism, fire, flooding, lightning or any other cause beyond the Company's reasonable control.
11.6 The Customer shall notify the Company in writing of any alleged defect as soon as reasonably practicable after it becomes apparent and shall provide the Company with a reasonable opportunity to inspect and rectify the defect before instructing others to undertake remedial work.
11.7 Where the Company attends Site in response to a reported defect and it is established that the defect is not the responsibility of the Company, the Company reserves the right to charge the Customer its reasonable costs of attendance, including labour, travel, accommodation (where applicable) and any specialist equipment utilised.
11.8 Nothing in this Clause shall affect the Customer's statutory rights.
12. Risk, Title and Insurance
12.1 Risk in the Goods shall pass to the Customer upon Practical Completion of the Works or, where the Goods are delivered separately from the Works, upon delivery to the Site or such other location agreed in writing.
12.2 Ownership of the Goods shall remain with the Company until the Company has received payment in full, in cleared funds, for all sums due under the Contract.
12.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
a) keep the Goods adequately protected from loss, theft or damage;
b) not sell, dispose of or otherwise deal with the Goods other than in the ordinary course of business where agreed by the Company; and
c) permit the Company, upon reasonable notice and where legally permitted, to recover any Goods for which payment remains outstanding.
12.4 The Company shall maintain Public Liability Insurance and Employers' Liability Insurance at levels appropriate to the Works being undertaken.
12.5 Where the Contract requires the Company to maintain Contractors' All Risks Insurance or any other project-specific insurance, this shall be stated within the Company's Quotation or Contract Particulars.
12.6 The Customer shall maintain adequate insurance for the Site, existing buildings, contents and any property not forming part of the Works unless otherwise agreed in writing.
12.7 Each party shall, upon reasonable request, provide evidence of the insurance required under this Clause.
13. Limitation of Liability
13.1 Nothing in these Terms and Conditions shall exclude or limit the Company's liability for:
a) death or personal injury caused by its negligence;
b) fraud or fraudulent misrepresentation; or
c) any other liability which cannot lawfully be excluded or limited.
13.2 Subject to Clause 13.1, the Company's total liability arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the Contract Sum.
13.3 Subject to Clause 13.1, the Company shall not be liable for any indirect or consequential loss, including loss of profit, loss of revenue, loss of business, loss of production, loss of anticipated savings or loss of goodwill.
13.4 The Company shall not be liable for any loss or damage arising from:
a) defects in existing installations or equipment not installed by the Company;
b) information, drawings or specifications supplied by the Customer or others on the Customer's behalf;
c) alterations or repairs carried out by persons other than the Company;
d) the Customer's failure to operate or maintain the Works in accordance with the Company's or manufacturer's instructions; or
e) circumstances beyond the Company's reasonable control.
13.5 The Customer acknowledges that the limitations and exclusions of liability contained within these Terms and Conditions are reasonable, reflect the commercial value of the Contract and have been taken into account in determining the Contract Sum.
14. Suspension and Termination
14.1 The Company may suspend the Works, in whole or in part, by giving written notice to the Customer if:
a) any payment due under the Contract is not paid by the due date;
b) the Customer commits a material breach of the Contract;
c) the Customer fails to provide access to the Site or otherwise prevents the Company from carrying out the Works; or
d) it is unsafe or impracticable for the Company to continue the Works.
14.2 Where the Works are suspended for reasons beyond the Company's control or due to the Customer's default, the Company shall be entitled to:
a) a reasonable extension of time;
b) recover all reasonable costs arising from the suspension, including demobilisation, remobilisation, labour, plant, accommodation and storage costs; and
c) revise the programme for completion of the Works.
14.3 If the Customer fails to remedy the matter giving rise to the suspension within fourteen (14) days of written notice, the Company may terminate the Contract by giving further written notice.
14.4 The Company may terminate the Contract immediately if the Customer:
a) becomes insolvent or enters into administration, liquidation or any arrangement with its creditors;
b) ceases or threatens to cease trading; or
c) commits a material breach of the Contract which is incapable of remedy.
14.5 Upon termination, the Company shall be entitled to payment for all Works properly carried out, Goods supplied or ordered, together with all other reasonable costs and liabilities incurred up to the date of termination.
14.6 Termination shall be without prejudice to any rights or remedies accrued prior to the date of termination.
15. Force Majeure
15.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract where such failure or delay results from circumstances beyond its reasonable control, including but not limited to acts of God, fire, flood, adverse weather, war, terrorism, civil unrest, industrial disputes, pandemics, shortages of labour or materials, delays by manufacturers or suppliers, government action or any other event beyond the reasonable control of the affected party.
15.2 The affected party shall notify the other party as soon as reasonably practicable of the nature of the Force Majeure event and its anticipated effect on the performance of the Works.
15.3 The Company shall be entitled to a reasonable extension of time and reimbursement of any additional costs reasonably incurred where the Force Majeure event affects the progress of the Works.
15.4 If the Force Majeure event continues for a period exceeding ninety (90) days, either party may terminate the Contract by giving written notice, provided that the Customer shall remain liable for payment of all Works
completed, Goods supplied or ordered, and all reasonable costs incurred by the Company up to the date of termination.
16. Intellectual Property and Confidentiality
16.1 All intellectual property rights in the Company's quotations, designs, drawings, specifications, calculations, reports and other documents shall remain the property of the Company unless otherwise agreed in writing.
16.2 The Customer shall not copy, reproduce, disclose or use any such documents for any purpose other than the completion, operation and maintenance of the Works without the Company's prior written consent.
16.3 Each party shall keep confidential all commercial, technical and business information received from the other party in connection with the Contract and shall not disclose such information to any third party except:
a) where required by law;
b) to its professional advisers, insurers or funders; or
c) where necessary for the proper performance of the Contract.
16.4 The obligations contained within this Clause shall survive completion or termination of the Contract.
17. Governing Law and Jurisdiction
17.1 These Terms and Conditions and any Contract to which they apply shall be governed by and construed in accordance with the laws of England and Wales.
17.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions or any Contract.