Supplier Terms and Conditions

 T W BARBER LTD

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STANDARD TERMS & CONDITIONS FOR SUPPLIERS AND SUBCONTRACTORS

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Application of this Set of Terms & Conditions

1.              TW Barber Ltd (‘the Main Contractor’) only trades on these terms and conditions when ordering work and/or goods and materials from any other party (‘the Subcontractor’) and they are to the exclusion of any other terms that may be sought to be introduced by or for and on behalf of the Subcontractor.

2.              The Subcontract between the parties shall be made on these terms and conditions by the Main Contractor’s Purchase Order being signed on behalf of the Subcontractor and returned to the Main Contractor or, in the event of the Subcontractor’s failure to do so, by the Main Contractor’s permitting the Subcontractor to proceed with fabrication or delivery, or both.

3.              These terms and conditions and the documents referred to in them contain the entire agreement between the parties.

4.              The Main Contractor conducts its business on the basis that its employees, agents or other representatives have no authority to make oral representations that might have the effect of inducing potential subcontractors to contract with it.  The Subcontractor acknowledges this to be the case and confirms that it abandons any claim that it might otherwise have against the Main Contractor arising out of or in connection with any such representation.

Subcontract Particulars

5.              The Subcontract Particulars identify various matters referred to in these terms and conditions and shall be incorporated into the Subcontract.

Delivery of Goods and Materials

6.              The Subcontractor undertakes to procure delivery of goods and materials for the Subcontract Works to the Site within a reasonable time and in accordance with the Main Contract Works.

7.              The Main Contractor shall be entitled to refuse to permit delivery of goods and materials if he believes that it would be unsafe, unlawful or unreasonably difficult to do so.

8.              The Main Contractor shall have no liability for any costs incurred by the Subcontractor as a result of unavoidable delay or damage due to inadequate or insufficient access.

9.              The Subcontractor shall be responsible for unloading goods and materials for the Subcontract Works upon delivery.

10.           The Subcontractor shall be responsible for the size, weight and positioning of any load on vehicles used by him and shall be liable for and indemnify the Main Contractor against any expense, liability, loss claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal in so far as loss, injury or damage arises out of or by reason of the size, weight and positioning of any load on vehicles used by the Subcontractor due to or resulting from any negligence, breach of statutory duty, permission or default of the Subcontractor.

11.           Property in any goods and materials supplied shall pass to the Main Contractor upon delivery to Site PROVIDED THAT any damage to or deterioration of goods and materials shall continue to be at the Subcontractor’s risk after delivery until practical completion of the Main Contract Works.

Carrying Out the Subcontract Works

12.           The Subcontractor shall carry out and complete the Subcontract Works in accordance with the description contained or referred to in the Subcontract Particulars, using goods and materials that are of good quality and reasonably fit for their respective purposes. Where the works include undertaking design, the Subcontractor shall exercise the skill and care to be expected of a professional designer appropriately qualified and competent in the discipline to which such design relates and experienced in carrying out work of a similar scope, nature and size to the works, and warrants that the works, when constructed in accordance with its designs, will be suitable for any intended purpose.

13.           The Subcontractor shall notify the Main Contractor when the Subcontractor is of the view that practical completion of the Subcontract Works has been achieved and the Main Contractor shall indicate whether it is of the view that such is the case and, if not, identify any further performance on the part of the Subcontractor is required which the Subcontractor will then undertake. The Subcontractor’s obligation to carry out and complete the Subcontract Works shall include the rectification or replacement of any part thereof which the Main Contractor is obliged under its Main Contract to remedy, either during the course of the Main Contract Works or thereafter upon the Main Contractor giving notice to the Subcontractor that such action is required.

14.           The Subcontractor shall comply with all relevant statutory requirements and codes of practice in or about the carrying out of the Subcontract Works and the Main Contractor shall be entitled to exclude from the Site any employee, sub-subcontractor or agent of the Subcontractor who fails to comply with such requirements.

15.           The role of Principal Contractor for the Subcontract Works is to be fulfilled by the Subcontractor, which warrants that it is competent to accept this appointment and that it will properly perform all the duties required of a principal contractor under the Construction (Design & Management) Regulations 2015 or any statutory amendment of them.

16.           The Subcontractor undertakes to carry out and complete the Subcontract Works within a reasonable time in accordance with the progress of the Main Contract Works and any Subcontract Programme. The Main Contractor makes no warranty that the Main Contract Works will proceed either as shown on any programme or in any particular sequence, or on particular dates, or at any particular rates or durations. The Main Contractor shall notify the Subcontractor as soon as practicable of any change to programme and the Subcontractor shall comply therewith without any recourse whatsoever against the Main Contractor.

17.           If the Subcontractor considers that the commencement or regular progress of the Subcontract Works is being delayed by circumstances beyond his control, it shall give the Main Contractor written notice to that effect within 14 days of becoming aware or the date upon which he should reasonably have become aware of such delay beginning to occur and, to the extent that the Main Contractor is entitled to loss and expense in respect thereof under the Main Contract or the cause of the delay is the result of a breach of the Subcontract by the Main Contractor, the Subcontractor shall be entitled to loss and expense under the Subcontract PROVIDED ALWAYS that it shall be a condition precedent to any liability of the Main Contractor under this clause that the Subcontractor shall have given notice as above. The provisions of this clause shall be the Subcontractor’s only remedy against the Main Contractor for any loss or damage suffered as a result of delay to the Subcontract works and are to the exclusion of any other rights that the Subcontractor might otherwise have had against the Main Contractor in that respect.

18.           The Subcontractor undertakes to keep the Main Contractor fully and effectually indemnified against all losses, damages, costs, claims, expenses whatsoever arising out of or in connection with any failure on the part of the Subcontractor to carry out and complete the works within a reasonable time in accordance with the progress of the Main Contract Works or to perform or observe all or any of the other acts, covenants and obligations to be performed or observed by the Subcontractor under or pursuant to the Subcontract.

Price

19.           Unless otherwise stated in the Main Contractor’s Purchase Order, the Subcontract Price is a fixed price and not subject to variation because of fluctuations in the prices of goods, materials or labour.

Variations

20.           The Subcontractor shall forthwith notify the Main Contractor if in the opinion of the Subcontractor the Subcontract Works need to be varied. The Subcontractor shall only vary the Subcontract works in accordance with any written instruction in writing by the Main Contractor to do so and the Subcontractor shall not be entitled to payment for any varied work carried out otherwise than in accordance with such a written instruction. All variations shall be valued on a reasonable basis, applying agreed rates where appropriate.

Payment

Interim & Final Payments

21.           Payment shall be by way of interim payments in relation to the dates for the making of an application for payment identified in the Subcontract Particulars or, if no such dates are identified, on a monthly basis beginning with one month after the date of commencement of the Subcontract Works on Site, until practical completion of the Subcontract Works, followed by the last interim payment one month thereafter.

22.           Subject to any agreement between the parties, the amount of each interim payment shall be the gross value of the Subcontract Works less any amount that may be deducted and retained as retention in the percentage stated in the Subcontract Particulars by the Main Contractor and any sum previously due as an interim payment.

23.           One half of any amount that may be deducted and retained as retention shall be released to the Subcontractor at the date of practical completion of the Main Contract Works and the other half the expiry of any defects liability or rectification period or the completion of any making good of defects under the Main Contract in respect of the Subcontract Works, whichever may be the later.

24.           A final payment shall be made in relation to an application for payment following the expiry of any defects liability or rectification period or the completion of any making good of defects under the Main Contract in respect of the Subcontract Works, whichever may be the later.

Application for Payment

25.           Any application for payment must be made in accordance with the requirements of the Sub-Contract Particulars and receipt of such an application shall be a condition precedent to any liability on the part of the Main Contractor to make any payment.

Dates for Payment

26.           A payment under the contract shall become due on the date for the making of an application for payment by the Subcontractor.

Final Date for Payment

27.           The final date for the making of a payment shall be 17 days from the date that payment becomes due.

Payment of Notified Sum

28.           The Main Contractor shall pay the notified sum (to the extent not already paid) on or before the final date for payment. The notified sum shall be the amount specified in a Main Contractor’s Payment Notice.

Main Contractor’s Payment Notice

29.           The Main Contractor shall, not later than five days after the payment due date, give a notice to the Subcontractor specifying the sum that the Main Contractor considers to be due or to have been due at the payment due date and the basis on which that sum is calculated.  It is immaterial that the sum may be zero.

Notice of Intention to Pay Less than the Notified Sum

30.           The Main Contractor may, not later than seven days before the final date for payment, give to the Subcontractor a notice of the Main Contractor's intention to pay less than the notified sum specifying the sum that the Main Contractor considers to be due or to have been due on the date the notice is served and the basis on which that sum is calculated.  It is immaterial that the sum may be zero

31.           Where a pay less notice is given, the Main Contractor’s obligation to pay applies only in respect of the sum specified in the pay less notice.

Payment where the Employer is insolvent

32.           Payment under this Subcontract shall be conditional on the Main Contractor receiving payment under the Main Contract for the Subcontract Works or any part of them from the Employer where the Employer is insolvent. For the purposes of this clause the Employer becomes insolvent—

(1) When it enters administration within the meaning of Schedule B1 to the Insolvency Act 1986,

(2) on the appointment of an administrative receiver or a receiver or manager of its property under Chapter I of Part III of that Act, or the appointment of a receiver under Chapter II of that Part,

(3) on the passing of a resolution for voluntary winding-up without a declaration of solvency under section 89 of that Act, or

(4) on the making of a winding-up order under Part IV or V of that Act.

Interest

33.           Any debt arising under this Subcontract shall carry simple interest at the annual rate of 2% over the Bank of England base rate.

Right to Suspend Performance

34.           Where the Main Contractor fails to comply with his obligation to pay any notified sum, the Subcontractor has the right (without prejudice to any other right or remedy) to suspend performance of any or all of his obligations under the contract to the Main Contractor. The right may not be exercised without first giving to the Main Contractor at least seven days’ notice of intention to suspend performance, stating the ground or grounds on which it is intended to suspend performance. The right to suspend performance ceases when the Main Contractor makes payment in full of the notified sum referred to above. Where the right to suspend is exercised, the Main Contractor shall be liable to pay to the Subcontractor a reasonable amount in respect of costs and expenses reasonably incurred by the Subcontractor as a result of the exercise of the right.  Any period during which performance is suspended in pursuance of, or in consequence of the exercise of, the right to suspend shall be disregarded in computing for the purposes of any contractual time limit the time taken, by the Main Contractor or by a third party, to complete any work directly or indirectly affected by the exercise of the right. Where the contractual time limit is set by reference to a date rather than a period, the date shall be adjusted accordingly.

Liability

35.           The Main Contractor shall not liable to the Subcontractor for any indirect or consequential loss, financial loss, loss of profits or loss of use arising out of or in connection with the contract, even if the Main Contractor has been negligent.

36.           The Main Contractor’s total liability to the Subcontractor (from one single cause) for damage to property caused by the Main Contractor’s negligence and for all other liabilities not referred to elsewhere in these conditions is limited in damages to the Subcontract Price. Nothing in these terms and conditions restricts or limits the Main Contractor’s liability for death or personal injury resulting from negligence.

37.           The Main Contractor’s liability for loss or damage shall in any event be limited to such as the Main Contractor ought reasonably to pay having regard to his responsibility for the same on the basis that all other consultants, specialists, and contractors, shall where appointed, be deemed to have provided to the Subcontractor, or any relevant third party such as the Employer, contractual undertakings in respect of their services and shall be deemed to have paid to the Subcontractor, or any relevant third party such as the building owner, such contribution as may be appropriate having regard to the extent of their responsibility for such loss and damage.

Insurance

38.           The Subcontractor shall take out and maintain insurance cover as required under the Main Contract and shall provide the Main Contractor with proof of such cover as a condition precedent to any payment becoming due to the Subcontractor under the Subcontract.

Collateral Warranties

39.           The Subcontractor shall execute collateral warranties with such third parties as the Main Contractor is obliged to procure under the terms of the Main Contract.

Performance Bond

40.           The Subcontractor shall if requested by the Main Contractor supply a performance bond in favour of the Main Contractor from insurers or another financial institution approved by the Main Contractor and the Employer under the Main Contract for a sum not less than that specified in the Subcontract Particulars for the due performance of the Subcontract and any collateral warranty executed by the Subcontractor in favour of the Employer under the Main Contract. The terms of the performance bond shall be in a form approved by the Main Contractor and in particular shall:

(1)  include terms allowing for concessions and variations by the Main Contractor and the Employer, and

(2)  specify that the performance bond shall remain in force until 18 months after the date upon which the entire Main Contract Works have reached practical completion.

Termination

41.           The Subcontractor’s employment under this Subcontract shall be automatically terminated where the Main Contract is terminated or, subject to the provisions of Section 14 of the Corporate Insolvency and Governance Act 2020, the Subcontractor becomes insolvent for the purposes of this clause as follows:

(1)  Where the Subcontractor is a company:

(a)   where the Subcontractor enters administration within the meaning of Schedule B1 to the Insolvency Act 1986,

(b)  on the appointment of an administrative receiver or a receiver or manager of the Subcontractor’s property under Chapter I of Part III of that Act, or the appointment of a receiver under Chapter II of that Part,

(c)   on the passing of a resolution for voluntary winding-up without a declaration of solvency under section 89 of that Act, or

(d)  on the making of a winding-up order under Part IV or V of that Act

(2)  Where the Subcontractor is a partnership:

(a)   on the making of a winding-up order against it under any provision of the Insolvency Act 1986 as applied by an order under section 420 of that Act, or

(b)  when sequestration is awarded on the estate of the partnership under section 12 of the Bankruptcy (Scotland) Act 1985 or the partnership grants a trust deed for its creditors.

(3)  Where the Subcontractor is an individual:

(a)  on the making of a bankruptcy order against him under Part IX of the Insolvency Act 1986, or

(b) on the sequestration of his estate under the Bankruptcy (Scotland) Act 1985 or when he grants a trust deed for his creditors.

(4)  A company, partnership or individual shall also be treated as insolvent on the occurrence of any event corresponding to those specified in subsection (1), (2), or (3) under the law of Northern Ireland or of a country outside the United Kingdom.

42.           The Main Contractor may terminate the Subcontractor’s employment under this Subcontract by serving a written notice to that effect on the Subcontractor where:

(1)  The Subcontractor has failed to make reasonable or diligent progress with the Subcontract Works;

(2)  The Subcontractor has failed or refused to remove defective works or defective materials from the Subcontract works after notice in writing from the Main Contractor to do so; or

(3)  The Subcontractor is otherwise in material breach of the terms and conditions of the Subcontract;

and the Subcontractor has continued such failure or breach for a period of 7 days after receipt of the Main Contractor’s written notice to that effect or has repeated such failure or breach at any time thereafter.

43.           In the event of the termination of the Subcontractor’s employment under this Subcontract:

(1)  The Subcontractor shall not be entitled to remove from the Site, the Subcontract Works or any adjacent ground, any plant or goods and materials belonging to the Subcontractor placed there for the purposes of the Subcontract Works.

(2)  The Main Contractor shall be entitled to employ a third party or third parties to carry out and complete the Subcontract Works using all goods and materials, temporary buildings, plant and appliances on Site and any further materials, temporary buildings, plant and appliances.

(3)  The Subcontractor shall if so required by the Main Contractor assign to the Main Contractor without further payment the benefit of any contract for the supply of materials or works intended for use under this Subcontract or for the execution of any works, and the Main Contractor shall pay the agreed price (if unpaid) for such materials or works supplied or executed after the termination.

(4)  The Subcontractor shall remove from the Site, the Subcontract Works or any adjacent ground, his materials, temporary buildings, plant and appliances within such reasonable time as the Main Contractor may specify in a written notice to the Subcontractor and in default of the Subcontractor doing so, the Main Contractor shall be entitled (without any liability for loss or damage) to remove and sell the same, holding the proceeds less all costs incurred in doing so to the credit of the Subcontractor.

(5)  No payment shall be made until after completion of the Main Contract Works and the preparation of a final statement of account by the Main Contractor setting out:

(a)    the value of work properly executed and not paid for at the date of the termination, the value of unfixed goods and materials used in the completion of the Subcontract Works delivered to Site and not paid for at the date of the termination, the property in which has passed to the Employer under the Main Contract and for no other sum whatsoever;

(b)  the amount of loss or damage suffered by the Main Contractor whether direct or consequential by reason of the determination of the Sub-Contractor’s employment under this Subcontract;

(c)   The difference between the two such amounts, showing a balance due to either the Main Contractor or the Subcontractor, which shall become a debt payable as the case may be within 14 days after receipt of the final statement by the Subcontractor.

(6)  The provisions of this clause 31 are without prejudice to any rights or remedies that the Main Contractor has or may have at common law.

Third Party Rights

44.           The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract.

Disputes

45.           Any dispute between the parties arising out of or in connection with the Subcontract shall be resolved in the first instance by adjudication in accordance with the adjudication provisions set out in the Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended.  The adjudicator nominating body shall be the Technology and Construction Bar Association.

46.           In the event that any dispute cannot be finally resolved by adjudication, it shall be finally determined by the courts of England and Wales.