1 Definitions and interpretation
1.1 In these Conditions:
- “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
- “Conditions” means the conditions set out in this document and (unless the context otherwise requires) includes any special conditions agreed in writing between the Customer and Heras;
- “Contract” means the contract for the supply of the Goods and/or Services formed upon acceptance of the Quotation or Order, as appropriate and in accordance with condition 2.1;
- “Customer” means the person who accepts a written quotation from Heras for the supply of Goods and/or Services or whose written order for Goods and/or Services is accepted by Heras;
- “Delivery Location” has the meaning set out in clause 6.1;
- “Goods” means those goods (including any instalment of the same) or Works which Heras is to supply in accordance with these Conditions;
- “Heras” means Heras Limited (registered in England under no 02840742); A division of CRH Fencing and Security Group (UK) Ltd, Registered Office: Herons Way, Carr Hill, Doncaster, South Yorkshire DN4 8WA
- “Order” the Customer’s order for Goods and/or Services as accepted by Heras and submitted in a form approved by Heras who shall notify the Customer of the same as required from time to time;
- “Price” the price for the Goods and/or Services as set out in condition 4.1;
- “Quotation” the written quotation for the Goods and/or Services supplied by Heras;
- “Services” the services, including the provision of (where applicable and stated in the Quotation and agreed in the Contract) installation, commissioning, repair, periodical maintenance, inspection, testing and any related Goods supplied by Heras to the Customer as set out in the Contract.
1.2 Reference in these Conditions to any provision of a statute shall include reference to that provision as amended, re-enacted or extended at the relevant time. Headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 A reference to writing or written includes faxes and e-mails but in relation to emails, they will only constitute writing in the event that they have been received and acknowledged by a duly authorised representative of Heras.
2 The supply
2.1 Heras supplies and the Customer purchases the Goods and/or Services in accordance with any Quotation accepted by the Customer (and which acceptance is subsequently acknowledged by Heras) or Order accepted by Heras subject in either case to these Conditions which govern the Contract (which is formed upon such acceptance of the Quotation and/ or the Order) to the exclusion of any other terms including any which the Customer attempts to incorporate or which are implied by trade, custom, practice or course of dealing. The provisions of the Contracts (Rights of Third Parties) Act 1998 are expressly excluded from the Contract. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Heras which is not set out in the Contract.
2.2 Any samples, drawings, descriptive matter or advertising issued by Heras and any descriptions of the Goods or illustrations or descriptions of the Services contained in Heras’s catalogues or brochures are issued or published for the sole purpose of giving a preliminary description of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.3 Any Quotation given by Heras shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.5 No variation to these Conditions shall be binding unless approved in writing by a director of Heras.
2.6 Any advice or recommendation given by Heras, its employees or agents to the Customer as to the use of Goods which is not confirmed in writing by Heras is acted upon at the Customer’s own risk. Accordingly Heras is not liable for any advice or recommendation not so confirmed.
2.7 Any error or omission in any sales literature, Quotation, price list, invoice or other document or information issued by Heras is subject to correction without liability to Heras.
2.8 No right is granted to the Customer under any intellectual property right save the right to use or resell the Goods.
2.9 Heras shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
2.10 Where appropriate the Customer shall obtain within fourteen (14) days of making the Contract (or such other period as Heras may agree) and shall maintain in force all necessary permits:
- to enable the Goods to be imported into the country of destination; and
- to enable payment to be effected in accordance with the Contract, and written confirmation of the requisite permits including the permit number, date and period of validity which shall be provided to Heras which shall be under no obligation to manufacture or supply the Goods before receipt of such permit information.
In the event of any breach of this obligation Heras shall be entitled without prejudice to any of its remedies to cancel the Contract.
3 Orders and specifications
3.1 No Order is deemed accepted by Heras unless confirmed in writing by an authorised representative of Heras. All such acceptances by Heras will be subject to availability of the necessary materials and to Heras being able to obtain any necessary authorisation and/or licences and the same remaining valid.
3.2 The Customer is responsible for ensuring the accuracy of any Order (including applicable drawings, descriptions, specifications and other information) submitted by it and confirms that all such information are in all respects complete accurate and entirely suitable for the Customer’s requirements, and for giving Heras any necessary information relating to the Goods and/or applicable to the Services within a sufficient time to enable Heras to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and/or Services must be set out in an acceptable format (to Heras) in the acknowledged Quotation or accepted Order, as appropriate.
3.4 If Heras applies any process to Goods in accordance with a specification submitted by the Customer, the Customer will indemnify Heras for any loss incurred by Heras in connection with any claim for infringement of third party intellectual property rights resulting from Heras’s use of the Customer’s specification.
3.5 Heras shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Heras shall notify the Customer in any such event Heras may make changes to the specification of Goods required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to Heras’s specification, which do not materially affect their quality or performance.
3.6 An Order (once accepted by Heras) may not be cancelled by the Customer without Heras’s written consent and then only on terms acceptable to Heras. In any event the Customer will indemnify Heras against all loss including loss of profit and the cost of any labour and materials then used incurred by Heras as a result of any Order cancellation.
3.7 Unless otherwise expressly agreed, Heras shall have no responsibility for the performance, suitability or durability or any goods or any materials or workmanship comprised therein to the extent that the same is manufactured in accordance with the Customer’s designs, drawings, standards or specifications.
4.1 The price of the Goods and/or Services shall, unless agreed otherwise, be based upon Heras’s list price at the date that the Order or Quotation, as appropriate, is accepted (“Price”). Subject to condition 4.2, any price quoted by Heras is valid for 30 days only or such other time specified in the Quotation, after which time the said price may be altered by Heras without notice. All prices are quoted in pounds sterling unless otherwise specified and all payment must be made in pounds sterling unless otherwise expressly agreed.
4.2 Heras may by giving notice to the Customer at any time before delivery, increase the Price to reflect any increase in the cost to Heras due to any factor beyond its reasonable control including, without limitation, changes to site conditions, foreign exchange fluctuations, currency regulation, alteration of duties, increases in the cost of labour materials or manufacture, a change in delivery dates quantities or specifications for Goods and/or Services requested by the Customer, delay caused by instructions of the Customer or a failure of the Customer to give Heras adequate information or instructions. Heras shall be given and allowed an extension of time for completion or for delivery to comply with such changes, such period to be advised by Heras
4.3 Save as otherwise agreed in writing (and subject to condition 6.1), the Price is the factory ex works price. Where Heras delivers Goods it does so as the Customer’s agent and the Customer is liable to pay Heras the costs of arranging transport, packaging and insurance. Heras accepts no liability for acts or omissions of any carrier of the Goods (including for non-delivery or damage in transit) or for pursuing any claim for loss suffered by the Customer resulting from any such act or omission.
4.4 The Price is exclusive of applicable VAT which the Customer is liable to pay to Heras. There shall be added to the price for the Goods and/or Services any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods and/or Services (whether initially charged on or payable by Heras or the Customer).
4.5 The cost of pallets and returnable containers will be charged to the Customer in addition to the Price. Full credit will be given to the Customer if these are returned undamaged to Heras before the due payment date.
4.6 Where the Price includes Services, it is based upon the free and uninterrupted access to and possession of fully prepared working areas being made available including a safe working area and conditions to Heras during normal working hours. In the event that such access, safe working area and conditions and possession are not made available, or that the working areas are not duly prepared to Heras’s requirements for immediate carrying out of the Services without prejudice to any other right which Heras may have, Heras shall at its sole discretion be entitled to increase the Price accordingly.
4.7 Where the Price includes Services, the Price stated in the Contract allows for carriage of materials within ten metres of a permanent road surface or metalled road. Any additional carriage shall be added to the Price.
4.8 Where the Price includes Services, the Price stated in the contract assumes (where applicable) normal excavation in soil, where Heras encounters physical conditions or obstructions (whether artificial or natural) Heras shall advise the Customer accordingly and the options available to remedy and shall carry out the work only upon receipt of an instruction accepting cost. All delays and non-working time to be paid by the Customer, which may include abortive and delayed time on site.
4.9 Where the Price includes Services, the Customer shall be responsible for the true and proper setting out of the Works and for the correctness of the position, levels, dimensions and alignment of all parts of the Works. If at any time during the progress of the works any error shall appear in the position of the levels, dimensions or alignment of any part of the Works the Customer on being required so to do by Heras shall at his own cost rectify such error.
4.10 Where the Price for the Goods is varied in accordance with this condition 4, the Price as varied shall be binding on both parties and shall not give either party any option of cancellation.
5.1 Subject to credit being approved accounts are due on a strict net monthly account basis (subject to clause 5.3) unless otherwise agreed. When deliveries are spread over a period each consignment will be invoiced as Despatched and each months’ invoice will be treated as a separate account and be payable accordingly. If the completion of the Contract is delayed due to site or other circumstances outside the control of Heras, Heras shall submit an invoice for the value of the Contract completed as at the invoice date which is to be treated as a separate account and be payable accordingly. Failure to pay for any Goods and/or Services or for any delivery or instalment shall entitle Heras to suspend further deliveries and work both on the same Order and on any other order from the Customer without prejudice to any other right Heras may have. Heras reserves the right where genuine doubts arise as to a Customers financial position or in the case of a failure to pay for any delivery or instalment as aforesaid to suspend delivery of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided. In addition Heras will be given reasonable period to organise and start back on site, without liability following any suspension.
5.2 Unless otherwise agreed in writing or stipulated within these Conditions, Heras may invoice the Customer for Goods and/or Services on or at any time after their delivery, unless the Goods and/or Services are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods and/or Services, in which event Heras may invoice Customer at any time after Heras has notified the Customer that the Goods are ready for collection or (as the case may be) Heras has tendered delivery of the Goods and/or Services. Heras may invoice the provision of annual maintenance services comprised within the Goods either 6 or 12 months (as Heras may stipulate) in advance of the relevant provision.
5.3 Unless otherwise agreed in writing or stipulated within these Conditions, the Customer will pay the Price (together with any other costs levied under condition 4) in full without deduction or set off by the end of the month following the date of Heras’s invoice. Heras may recover such Price notwithstanding that delivery may not have taken place and title in the Goods not passed to the Customer. Time of payment of the Price is of the essence of the Contract. Receipts for payment will be issued only upon request.
5.4 Where the Customer is located outside the UK, it will at Heras’s request arrange for an irrevocable letter of credit confirmed by a banking institution in the UK and in a form reasonably acceptable to Heras to be issued in Heras’s favour. Heras will be under no obligation to deliver the Goods or provide Services to the Customer until such letter has been issued. The Customer will provide to Heras such documentation as may be necessary for Heras to receive payment under such letter.
5.5 If the Customer fails to make any payment due under the Contract on its due date then, without prejudice to its other rights or remedies, Heras may:
- cancel the Contract or suspend any further deliveries to the Customer without notice to the Customer;
- appropriate any payment made by the Customer to such of the Goods and/or Services (or goods or services supplied under any other contract between the Customer and Heras) as Heras may think fit notwithstanding any purported appropriation by the Customer; and
- charge the Customer interest (before and after judgement) on the amount unpaid, at the rate of 8% per annum above Barclays Bank plc base rate from time to time, until payment in full is made (and part of a month being treated as a full month for the purpose of calculating interest).
5.6 Where the Contract provides for payment upon submission of a pro-forma invoice or other demand Heras shall not be obliged to deliver and or supply any of the Goods or Services in question until payment has been made in full.
5.7 Heras may at its sole discretion require at any time by invoice that all or part of the Price (plus delivery costs) be paid in advance or on account and sums so invoiced shall be immediately payable, any balance remaining payable as otherwise agreed.
5.8 Where the Customer is a main contractor under a building contract (or any other form of contract), all payments made to the Customer in respect of Goods supplied or Services performed by Heras shall be held in trust by the Customer until paid to Heras.
5.9 The charges for the Services shall be on a time and materials basis (unless otherwise agreed) and:
- as appropriate and where applicable the charges shall be calculated in accordance with Heras’s standard daily fee rates, as notified to the Customer by Heras from time to time;
- unless otherwise agreed the minimum charge for any Services shall be based on one days’ fee in respect of each individual attending site or who is involved in providing the Services;
- Heras’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
- Heras shall be entitled to charge overtime rates from time to time as notified;
- Heras shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Heras engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Heras for the performance of the Services, and for the cost of any materials.
5.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Heras may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Heras to the Customer.
6.1 Where applicable Delivery of the Goods is made by the Customer collecting them from Heras’s premises after Heras has notified the Customer that the same are ready for collection or, if some other place for delivery is agreed by Heras, by Heras delivering the Goods to that place, and for the avoidance of doubt, where the Goods are not delivered ex-works the Price will include delivery costs to the destination stated in the Contract if such destination is on the mainland of Great Britain. In the event that such destination is not on the mainland of Great Britain, the Goods will be delivered FOB United Kingdom, unless otherwise stated, where “FOB” or any other commercial terms as may be agreed shall be in accordance with the definitions and rules in INCO TERMS 1980; except as expressly provided for in these conditions or in the Contract.
6.2 If the Contract stipulates, or the Customer requests, special packing and/or transport arrangements, the extra cost will be for the account of the Customer.
6.3 Where Services (Excluding Installation, wiring, commissioning and testing) are being delivered, delivery of such Services will take place upon completion of performance of such Services.
6.4 The Customer will inspect delivered Goods as soon as reasonably practicable following delivery and will notify Heras in writing of shortfalls in delivery within 5 days of delivery (such notice being accompanied by a copy of the relevant despatch note).
6.5 Any and all dates given by Heras for delivery of Goods, completion dates for works on site and/or the provision of Services (including any and all dates specified in any Customer Order and any and all dates confirmed or accepted by Heras) are genuine estimates only and are given in good faith by Heras. Although Heras will use its reasonable endeavours to comply with such dates it shall not be liable to make good any damage or loss arising directly or indirectly out of any failure to meet the same. The Goods may be delivered in advance of the quoted delivery date upon Heras giving reasonable notice to the Customer. Heras will not be liable in any circumstances for any delays or failure to deliver if the delay or failure is due to an Act of God, fire, inclement or exceptional weather conditions, industrial action, hostilities, breakdowns, shortage of labour, materials, power or other supplies, late delivery or performance or non-delivery or performance by suppliers or sub-contractors, government order or intervention, export restrictions or any other cause whatever beyond Heras control or of an unexpected or exceptional nature. Time of delivery of Goods or performance of Services shall not be of the essence of the Contract.
6.6 Where the Goods are to be delivered in instalments, each delivery constitutes a separate contract. Failure by Heras to deliver any one or more instalments in accordance with these Conditions or any delay howsoever arising or any claim by the Customer in respect of any one or more instalments will not entitle the Customer to treat the Contract as a whole as repudiated, or to withhold any payment for previously invoiced instalments, or to reject any delivery or any further instalment or part of the order or any other order from Heras
6.7 If the Customer fails to take delivery of the Goods on the date appointed or fails to give Heras adequate instructions for delivery then, unless otherwise agreed and without prejudice to its other rights or remedies, Heras may:
- store the Goods until actual delivery and charge the Customer for the reasonable costs of storage plus reasonable addition for overheads and profit, such storage charges to be paid for by the Customer prior to delivery of the Goods; or
- sell the Goods at the best price readily obtainable and (after deducting reasonable expenses) charge the Customer for any shortfall below the price under the Contract.
7 Risk and title
7.1 Risk in the Goods passes to the Customer:
- where the Customer collects Goods from Heras’s premises, when Heras notifies the Customer that the same are available for collection; or
- where Goods are delivered by Heras to a location away from Heras’s premises as specified and agreed on the Order, on delivery or, if the Customer fails to take delivery of the Goods, when Heras has tendered delivery and for the avoidance of doubt, it shall be the responsibility of the Customer entirely at his own risk to load and/or unload the Goods supplied. Where the Price includes Services such as installation, it shall further be the responsibility of the Customer at his own cost to provide adequate dry and secure storage of the Goods pending and during such Services.
7.2 Notwithstanding the passing of risk in Goods, the absolute property and title in Goods shall not pass to the Customer until Heras has received in cash or cleared funds full payment of the Price of the Goods (together with any interest and where applicable the delivery costs) and all other Goods or Services supplied by Heras to the Customer for which payment is then due.
7.3 Until title in Goods passes to the Customer:
- the Customer will hold the same as Heras’s fiduciary agent and bailee, keep the same in good condition and separate from other goods of the Customer and third parties and properly stored protected insured and identified as being Heras’s property; If the Customer manufactures another article or articles from the Goods with or without the addition of other materials and/or mixes the Goods in any way whatsoever with other materials and/or incorporates the Goods into any other article as a component pert, the property in the products of such manufacture, mixing or incorporation (“the Products”) shall be transferred to Heras at any time of such manufacture, mixing or incorporation and the Customer will hold the same as Heras’s fiduciary agent and bailee, keep the same in good condition and separate from other goods of the Customer and third parties and properly stored protected insured and identified as being Heras’s property until paid in full by the Customer
- Heras may (unless the Goods have been resold) require the Customer to deliver up the same to Heras and, if the Customer fails to do so, Heras may enter upon the premises of the Customer or any third party where the Goods are stored and repossess the same and the Customer shall give Heras free and unobstructed access to the Customers Premises (or any third party where the goods are stored). Any goods repossessed by Heras may be resold and any shortfall to be reimbursed by the Customer.
7.4 Nothing in this condition shall give the Customer any right to return Goods sold by Heras and Heras may sue the Customer for the Price when due (without prejudice to its other rights) notwithstanding that property therein may not have passed to the Customer.
8 Warranties, liability and Force Majeure
8.1 Heras warrants that the Goods when delivered will correspond with their relevant specification and, where appropriate, will be free from defects in material and workmanship. Heras warrants that any Services comprised within the Goods or accompanying the Goods will be provided with reasonable skill and care.
8.2 Subject to the provisions of conditions 8. 3 and 8. 5 below and the terms of this condition, Heras warrants that the Goods (only), where appropriate, will be free from defects in material and workmanship for a period of 12 months from delivery (The Warranty Period). Any claim made must be in writing and accompanied by the Goods in question (suitably packed and returned to Heras at cost to the Customer) and a written statement identifying in as much detail as Heras may reasonably require their date of delivery and the nature of any defect claimed. Where a claim is notified to Heras under this condition which is substantiated to Heras’s reasonable satisfaction, Heras at its discretion may replace or repair the Goods (or a relevant part of the same) free of charge or refund to the Customer the Price (or a reasonable proportion of the same), but shall have no further liability to the Customer. for the avoidance of doubt the Customer’s remedies in respect of any claim under this condition 8 or any condition or warranty implied by law or any other claim in respect of the goods, Services or workmanship (whether or not involving negligence on the part of Heras) shall in all cases be limited to repair or replacement of the Goods or to refund the purchase price of the Goods as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the Warranty Period and Heras shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities whether direct or consequential, and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusion is prohibited by any rule of law. A claim in respect of any defect or failure to comply with the specification or Order or in respect of any delivery or instalment of an Order or any part thereof shall not entitle the Customer to cancel or refuse delivery of or payment for the Order or any other Order.
8.3 Heras shall not be liable for the Goods’ failure to comply with the warranty in clause 8.1 or 8.2 if:
- the Customer makes any further use of such Goods after giving a notice in accordance with clause 8.2;
- the defect arises because the Customer failed to follow Heras’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
- the defect arises as a result of Heras following any drawing, design or Goods specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of Heras;
- the defect arises as a result of fair wear and tear, wilful damage, misuse, negligence, or abnormal working conditions;
- if the price of the Goods has not been paid by the due date for payment;
- the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
8.4 Except as provided in this condition 8, Heras shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 8.1 or 8.2.
8.5 Any Goods replaced will belong to Heras and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period set out above in condition 8.2. The warranties given under conditions 8.1 and 8.2 do not extend to parts materials or equipment not manufactured by Heras, for which the Customer may only have the benefit of any warranty or guarantee given by the manufacturer insofar as Heras may transfer the same to the Customer.
8.6 Subject as provided in these Conditions and save where the Goods are sold to a person dealing as a consumer (defined in Unfair Contract Terms Act 1977), all terms implied by law are excluded to the fullest extent permitted. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the order.
8.7 Any claim by the Customer under condition 8.1 and 8.2 must (whether or not delivery is refused by the Customer) be notified to Heras as soon as reasonably practicable after discovery of the same and in any event within 10 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, provided that the Customer notifies Heras of such defect or failure within 6 months of delivery unless otherwise agreed between the parties in writing. If delivery is not refused and the Customer does not notify Heras accordingly then:
- the Customer may not reject the Goods;
- Heras has no liability for such defect or failure, and
- the Customer is bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.8 Heras’s liability to the Customer for missing or damaged Goods up to the time of delivery shall be limited to sums recoverable by Heras under a policy of insurance in respect of such risks which may be maintained by Heras at its sole discretion. If no such sums are recoverable or if no such policy of insurance is maintained, Heras does not accept any liability whatsoever in respect of such Goods. If the Goods are appropriated to the Customer but kept at Heras’s premises at the Customer’s request, Heras shall have no responsibility in respect of the safety of the Goods thereafter and accordingly the Customer should insure Goods against such risks (if any) as is deemed appropriate.
8.9 Save where death or personal injury is caused by Heras’s negligence, Heras is not liable to the Customer by way of representation (unless fraudulent), common law duty or under any express or implied term of the Contract, for any indirect special or consequential loss or damage whether for loss of profit or otherwise (whether caused by the negligence of Heras, its employees or agents or otherwise) arising in connection with the supply of Goods or their use or resale by the Customer. The entire liability of Heras in connection with the Contract shall not exceed the Price, save as expressly provided in these Conditions.
8.10 Heras’s obligations under the Contract will be suspended to the extent that it is prevented or hindered from complying with the same by any cause beyond its reasonable control including without limitation any Act of God, third party acts or omissions, war, sabotage, insurrection, Government regulation or action, embargo, strike, labour dispute, illness, flood, fire, tempest or shortage of raw materials or services. Heras will use reasonable endeavours to remedy such cause and will resume the performance of such obligations as soon as reasonably possible after the removal of the cause provided that any time scale (express or implied) which Heras has to meet under the Contract will be extended by the period that the cause in question continued.
8.11 The risk in goods passes to the Customer when specified by condition 7 above, and Heras accepts no responsibility for any damage, shortage or loss in transit thereafter. Claims for any damage, shortage or loss in transit should be notified immediately by Fax, e-mail, telex or by telephone, subsequently confirmed in writing to the carrier and to Heras and the Carrier’s conditions in relation to claims for damage, shortage or loss in transit must be strictly complied with. If the Carrier’s conditions are not strictly complied with, the Customer will indemnify Heras against all loss resulting therefrom.
9 Compliance and Testing
9.1 If a claim is made against the Customer that the Goods or their use infringes the intellectual property rights of any person, company or organisation, then unless the claim arises from the use of any drawing or specification supplied by the Customer, Heras is to indemnify the Customer against all loss incurred by the Customer in connection with the claim, or paid or agreed to be paid by the Customer in settlement of the claim (subject to limitation in clause 8.9), provided that:
- Heras is given full control of any related proceedings or negotiations;
- the Customer gives Heras all reasonable assistance for the purposes of such proceedings or negotiations and does nothing which would or might compromise any such proceedings without Heras’s consent;
- the Customer does nothing which would or might vitiate any insurance policy or cover which the Customer has in relation to such infringement, and this indemnity will not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer will use its best endeavours to do);
- without prejudice to any common law duty of the Customer, Heras may require the Customer to take such steps as Heras may reasonably require to mitigate any such loss for which Heras is liable to indemnify the Customer under this condition.
9.2 The Customer will:
- comply with all statutory and regulatory requirements relating to possession and use of the Goods and ensure that any person buying the Goods from the Customer complies with such requirements;
- comply with all reasonable requirements of Heras relating to the provision of Goods (and/or the receipt of Services) including ensuring that it has in place at any site at which Heras is perform Services and deliver the Goods public liability insurance to a level and covering such risks as Heras may approve; and
- indemnify Heras against any loss or damage resulting from any failure to comply with such requirements.
9.3 The Customer agrees upon demand to indemnify Heras against all losses, damage, injury, costs and expenses to whatever nature suffered by Heras to the extent that the same are caused by or related to:
- defective materials or products supplied by the Customer to Heras and incorporated by Heras in Goods produced by Heras for the Customer;
- the improper incorporation assembly, use, processing, storage or handling of Goods by the Customer; or
- the failure of the Customer to notify Heras of the nature of the ground and subsoil, the form and nature of the site and in general to provide Heras all necessary information (subject as above mentioned) as to risk contingencies and all other circumstances influencing Heras.
9.4 Heras shall only be obliged to carry out tests which are specified in the Contract and reasonable excesses and deficiencies thereof shall be accepted by the Customer who shall not be entitled to reject any Goods on the ground that they are not precisely as specified. Tests and inspections shall take place under Heras’s standard testing arrangements. Any additional testing which Heras expressly agrees to carry out for the Customer shall be charged extra to the Customer and shall be undertaken subject to those conditions. Where the Customer requires to be present at any tests or inspections Heras shall give the Customer as much notice as is reasonably possible of the date and time such tests and inspections shall take place and if the Customer or any third party fails to attend such tests and inspections Heras shall be permitted to undertake such tests and inspections without liability to the Customer and shall notify the results thereof the Customer who shall not be entitled to request further tests and inspections.
9.5 If any special arrangements have to be made to facilitate the requirements of the Customer, then at the discretion of Heras, a change may be made for all costs incurred in facilitating the inspection of the Goods.
10 Insolvency of Customer
10.1 Without prejudice to its other rights or remedies, Heras may terminate the Contract or suspend any further deliveries under the Contract with immediate effect if:
- the Customer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than by way of amalgamation or reconstruction);
- an encumbrancer takes possession, or a receiver is appointed, of any of the Customer’s undertaking;
- the Customer ceases, or threatens to cease, to carry on business; or
- Heras reasonably believes that any of the above events is about to occur.
10.2 If the Goods are delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
11 Confidentiality, Patents
11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This condition 11 shall survive termination of the Contract. the copyright in all documents provided by Heras will remain vested in Heras.
11.2 The Customer shall indemnify Heras against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, copyright, trademark, or other industrial or intellectual property rights resulting from compliance by Heras with the Customer’s specific requirements, designs or specifications.
12.1 Without limiting its other rights or remedies, Heras may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing from Heras to do so;
- any of the provisions of condition 10.1 above apply.
12.2 Without limiting its other rights or remedies, Heras may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.3 On termination of the Contract for any reason:
- the Customer shall immediately pay to Heras all of Heras’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has yet been submitted, Heras shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall deliver up on demand all Goods which have not been fully paid for. If the Customer fails to do so, then Heras may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
- the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 Heras may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of Heras, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2 Notices required or permitted to be given under these Conditions must be in writing addressed to the relevant party at its registered office or principal place of business.
13.3 No waiver by Heras of any breach of the Contract by the Customer is considered as a waiver of any subsequent breach of the same or any other provision. If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question is not affected. No forbearance or indulgence by Heras shown or granted to the Customer whether in respect of these conditions or otherwise shall in any way affect or prejudice the rights of Heras against the Customer or be regarded as a waiver of any of these conditions.
13.4 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).