Standard Purchase Order Terms and Conditions

Standard Purchase Order Terms and Conditions
  1. Definitions
    1. “CDM Regulations” means the Construction (Design and Management) Regulations 2015 and any approved code of practice and industry guidance issued pursuant thereto.
    2. “Client” means Property Partners Construction (Scotland) ltd a company incorporated under the Companies Act (Company Number SC728473) having its Registered Office 28 Low Street, Banff, Scotland, AB45 1AS.
    3. “Fees” means the amount set out int the Purchaser Order, or such other sum as is properly payable under this Agreement for the proper performance of the Services (including any additional services);
    4. “Insolvent” has the meaning given in the Housing Grants, Construction & Regeneration Act 1996 (whether or not such Act applies to this Agreement);
    5. Prohibited Materials” means any materials not in accordance with the guidance contained in the publication “Good Practice in the Selection of Construction Materials” (2011): published by the British Council for Offices and any materials not complying with current statutory requirements and/or British Standards and Codes of Practice applicable to the circumstances in which the materials are used.
    6. “Project Material” means all plans, drawings, specifications, files, correspondence (including faxes and e-mails), reports, documents, records, calculations, data, computer discs or programs, models or other similar material or information at any time made, prepared, or generated by or on behalf of the Supplier or provided by or on behalf of the Supplier in carrying out the Services.
    7. “Purchase Order” means a statement of work, estimate quotation or other similar document describing the Services to be provided by the Supplier to the Client.
    8. “Services” means the services specified in the Purchase Order.
    9. “Supplier” means the person, firm, LLP, or company to whom the Purchase Order is addressed or whom are carrying out any Services.
    10. “VAT” means value added tax as provided for in the Value Added Tax Act 1994 at the rate in force at the Due Date for payment of any sum due under the Purchase Order.
    11. “Terms and Conditions” means the terms and conditions set out in this document.
  2. General
    1. These Terms and Conditions shall apply to all contracts for the supply of Services to the Client by the Supplier and shall prevail over any terms and conditions contained or referred to in any correspondence, order, documentation and/or communication submitted by the Supplier or otherwise and represents the entire understanding between the Client and the Supplier to the exclusion of any other terms that the Supplier may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    2. Any variation to these Terms and Conditions shall be inapplicable unless agreed expressly in writing by the Client.
    3. Nothing in the Purchase order or these Terms and Conditions is intended to, or shall be deemed to, constitute a partnership of any kind between any of the parties.
    4. Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Client may be entitled in relation to the Services, by virtue of any statute, law, or regulation.
    5. In the event of one or more of the provisions of these Terms and Conditions being held by a competent authority to be invalid, illegal, or unenforceable, in whole or in part, the validity, legality or enforceability of the remaining provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
  3. Price and Payment
    1. All prices specified in the Purchase Order are and shall remain fixed and, no variation is permitted unless agreed otherwise and agreed expressly in writing by the Client.
    2. The obligation of the Client to make any payment under the Purchase Order is subject to the provisions of the construction industry scheme.
    3. Payment of each instalment shall become due (but not yet payable) to the Supplier on the date stated on the Supplier’s application for payment (the “Due Date”). Each application shall specify the sum that the Supplier considers will become due on the Due Date in respect of the instalment of the Fee, and the basis on which that sum is calculated.
    4. Not later than five (5) days after the Due Date the Client shall give a notice to the Supplier which shall specify the sum that the Client considers to be or have been due at the Due Date and the basis on which that sum is calculated (a “Payment Notice”). The sum to be paid by the Client to the Supplier will be the amount in the Payment Notice.
    5. The Client shall make payment of each instalment on or before the Final Date for Payment (the “Final Date for Payment”) which shall be sixty (60) days after the Due Date. If the Client intends to pay less than the amount in the Payment Notice the Client shall not later than 1 day before the Final Date for Payment (the “Prescribed Period“), give the Supplier notice of that intention (a “Pay Less Notice”). The Pay Less Notice must specify the sum which the Client considers due to the Supplier at the date of the Pay Less Notice and the basis on which such sum is calculated.
    6. Any sums remaining unpaid at the expiry sixty (60) days from the Due Date may bear interest hereafter-accruing daily at a rate of 2% per annum above Bank of Scotland base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 which both the Client and the Supplier acknowledge is a substantial remedy in terms of any late payment.
    7. The Client may offset any amount owing to it from the Supplier against any amount owed to the Supplier by the Client.
    8. Without prejudice to any other rights of the Client, whether under these Terms and Conditions or under any other contract between the Supplier and Client any sum of money shall be recoverable from, or payable by, the Supplier, such sum may be deducted from the amount of any sum or sums then due, or which at any time may become due, to the Supplier under, or in respect of these Terms and Conditions and/or any other contract between the Supplier and Client, as the case may be, and/or may be recovered as a debt.
    9. In the event of the Client being in default of payment of any sum due to the Supplier, the Supplier may throughout such default, suspend the performance of any or all of the Services giving no less than twenty-eight (28) days’ notice in writing to the Client stating the ground or grounds for such suspension. The right to suspend performance shall cease when the Client makes payment of the amount due.
    10. Notwithstanding any other provision of these Terms and Conditions, and irrespective of whether any Pay Less Notice has been given if the Supplier becomes Insolvent after the Prescribed Period, the Client shall not be required to pay the Supplier any sums on or before the Final Date for Payment.
    11. Notwithstanding any other provision of these Terms and Conditions, and irrespective of whether any Pay Less Notice has been given, if the employer and/or any other person, payment by whom is under the main contract (directly or indirectly) a condition of payment to the Client, is or becomes Insolvent, the Client will have no liability to the Supplier in respect of any claim for payment by the Supplier (whether in respect of any payment for the Services or sums due on termination or otherwise) unless and until the Client has received from the employer a payment under the main contract which is equivalent to the payment claimed by the Supplier and which is attributable to the work or other matters to which the Suppliers’ claim relates; in which event the amount payable by the Client to the Supplier in respect of such work or matters shall be adjusted so that it bears the same proportion to the Supplier’s claim as that proportion of the Clients overall outstanding claim against the employer under or arising out of the main Contract which has been paid by or on behalf of the employer to the Client.
    12. The Fee is exclusive of VAT. On receipt of a valid, duly completed VAT invoice from the Supplier, the Client shall pay all properly chargeable VAT.
    13. The Client is an end user for the purposes of section 55A of the VAT Act 1994. In relation to each payment under this agreement, the Supplier shall issue the Client with a normal VAT invoice with VAT charged at the appropriate rate. The Client shall not account for the reverse charge. If, at any time during the term of this agreement, the Client ceases to be an end user for these purposes it shall promptly notify the Supplier in writing that this is the case. From the date of receipt of such notification, the Supplier shall cease to charge the Client VAT in accordance with section 55A VAT Act 1994.
  4. Expenses
    1. Fees are inclusive of travel, subsistence and any out-of-pocket expenses and disbursements. which include (i) general materials, reprographic and other incidental expenses; and (ii) fees for submission of statutory approvals.
  5. Obligations
    1. To enable the Supplier to perform its obligations, the Client shall (i) co-operate with the Supplier, (ii) provide the Supplier with any information reasonably required; and (iii) comply with any requirements agreed between the parties.
    2. The Client shall provide to the Supplier any such further information as the Supplier shall reasonably and necessarily request for the performance of the Services.
    3. The Supplier shall in providing the Services exercise all the reasonable skill and care in conformity with the normal standards of the Supplier’s profession.
    4. If the Supplier is required to specify any materials in relation to the Services, the Supplier warrants that it has not specified and will not specify for use any Prohibited Materials. The Supplier shall also ensure that any materials:-
      • correspond with the quantity, type, sort, quality and description set out in the Purchase Order;
      • meet the performance standards and dates specified on the Purchase Order or notified to the Supplier by the Client;
      • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the supplier or made known to the Supplier by the Client;
    5. If the materials do not comply with the Purchase Order and/or instructions, the Client is entitled at its option to either return the materials at the risk of the Supplier; reject the materials; require the Supplier to re-perform the services or accept the whole or part of the materials and/or services supplied by the Supplier but without prejudice to any rights of the Client to claim compensation or damages for loss or damage suffered as a result of failure to comply.
    6. The Supplier shall comply with the CDM Regulations, including without limitation: (i) regulation 8 (general requirements); (ii) regulations 9 and 10 (designer’s duties) and (iii) to the extent applicable, regulation 12 (health & safety planning pre and post construction).
    7. The Client may assign or transfer all or any rights under this Purchase Order at any time without the prior consent of the Supplier. Any such assignation shall take effect upon the receipt of written notice of the same to the Supplier.
    8. The Supplier shall not assign the whole or any part of its obligations under this Purchase Order without the prior written consent of the Client.
    9. The Client shall not be liable under any circumstances to the Supplier for any indirect or consequential loss of profit or other economic loss (or any other loss whatsoever) suffered by the Supplier howsoever caused, as a result of any negligence, breach of contract, termination, misrepresentation or otherwise.
  6. Sub-contracting
    1. The Supplier shall not, without the prior consent of the Client, sub‑contract to any person the performance of any of the Services. The Supplier shall be fully responsible for any work sub-contracted as if he had performed such work himself.
  7. Force Majeure
    1. Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances out with its reasonable control, including but not limited to Acts of God, strikes, lock outs, accidents, war, fire or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
  8. Copyright
    1. The Supplier hereby grants to the Client a full irrevocable royalty-free non-exclusive licence to use and reproduce any Project Material generated by or on behalf of the Supplier pursuant to or in connection with the Purchase Order and any copyright and designs contained in or arising from; or which are or will become comprised or reflected in the Services, for all purposes including (but without limitation) the construction, completion, maintenance, extension for the project, letting, promotion, advertisement, reinstatement, refurbishment and repair of the project. Such licences shall carry the right to grant sub-licences and shall be transferable to third parties. The Supplier shall not be responsible for use of the Project Material by the Client for any purpose other than that for which it was prepared by or on behalf of the Supplier.
  9. Indemnity and Insurance 
    1. The Supplier shall hold and keep the Client indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Client due to or arising out of the performance of the services to be performed under or in connection with the Purchase Order or any breach by the Supplier of these Terms and Conditions or any term or obligation implied by law or any statutory provision that may be in force from time to time. The Supplier shall at all times have sufficient insurances in place and provide written evidence to the Client upon request.
  10. Confidentiality
    1. The Supplier shall not, save to the extent required by law and/or for the proper performance of its obligations hereunder, without the prior consent of the Client, disclose to any third party any confidential information of which it has or may in the course of its engagement hereunder become possessed relating to the Client. The above restriction shall continue to apply, without limitation in point of time, unless and until such information comes properly into the public domain through no fault of the Supplier.
  11. Termination and Suspension
    1. Without prejudice to Clause 11.2 the Client may at any time by notice in writing to the Supplier terminate the Services:
      1. if the Client wishes to terminate the Services; or
      2. whenever any of the following events occurs:
  1. the Supplier commits a material breach of any provision of these Terms and Conditions which is not remediable or, if remediable, is not remedied within a period of fourteen 14 days after the Client has given written notice to the Supplier requiring such breach to be remedied;
  2. the Supplier’s financial position is such that either the Supplier, its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings with respect to the Supplier of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under Scots law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the Supplier is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.

10.2    The Client may at any time suspend the performance by the Supplier of the Services by giving written notice to the Supplier to that effect. If such suspension continues for longer than twelve (12) months the Supplier may request in writing that he resume the performance of the Services and unless the Client gives the Supplier written instructions so to resume within 28 days of the Client’s receipt of the Supplier’s said request, termination shall take place at the expiry of the said 28 days period.

  1. Notices
    1. Any notice to be served pursuant to this Purchase Order shall be in writing and shall be deemed to be sufficiently served if it is sent by first class recorded delivery post addressed to the other party if an incorporated body to their Registered Office and if an individual or a firm to its or their last known address in the United Kingdom. Such notice shall be deemed to have been duly served at the expiry of forty-eight hours after the time of posting or in the event that a recorded delivery letter is returned by the Post Office undelivered, left at the last known place of abode or business of the addressee.
  2. Governing Law
    1. These Terms and Conditions shall be governed by and construed in accordance with the law of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish Courts.
    2. Nothing in these Terms and Conditions confers or purports to confer on any third party any benefit or any right to enforce any term of this agreement which that third party would not have had but for the Contract (Third Party Rights) (Scotland) Act 2017.

 

 

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