These terms and conditions create a Contract between you, the Buyer, and Swegon Air Management. Please read each point carefully when placing an order with Swegon Air Management.
1. Format of the contract
i. A contract between the parties shall only be formed when Swegon Air Management Limited (‘Swegon’) accepts any order, instruction or letter of intent from the Buyer in writing. A written acceptance by Swegon shall constitute an unequivocal agreement by both parties to be bound by these Terms & Conditions of Sale.
ii. Any terms and conditions contained in any document provided by the Buyer shall not apply and shall be excluded unless specifically agreed in writing by Swegon.
iii. No variation shall be made to these Terms & Conditions of Sale unless expressly agreed by Swegon in writing.
The following words and phrases shall have the meaning set out below unless the context requires otherwise:
Buyer - the company, firm or person whose order, instruction or letter of intent has been accepted by Swegon in writing.
Construction Act - means the Housing Grants, Construction & Regeneration Act 1996, as amended.
Contract - the contract between Swegon and the Buyer for the sale and purchase of Goods or the supply of Goods and carrying out of Works, which incorporates these Terms & Conditions of Sale, the Quotation and the Contract Documents.
Contract Documents - the documents listed in the quotation.
Contract Price - the total amount payable to Swegon Air Management pursuant to the Contract.
Due Date for Payment - the date on which Swegon Air Managements entitlement to payment becomes due under the Contract.
Final Date for Payment - the date on which payment must be made by the Buyer to Swegon Air Management.
Goods - the goods to be supplied by Swegon Air Management to the Buyer.
Insolvent - means insolvent within the meaning set out in clauses 113(2) to 113(5) of the Construction Act.
Practical Completion - practical completion shall be when all the Works have been completed in accordance with the terms of the contract save for minor defects.
Quotation - the Quotation issued by Swegon Air Management to the Buyer.
Site - the location where the Works are to be carried out.
Specification - the specification of the Goods and/or the Works provided by the Buyer to Swegon or agreed between the parties.
Works - the works to be carried out by Swegon Air Management, as described in the Quotation, together with any variations made in accordance with the Contract. Where the Contract is for the supply of Goods and the carrying out of Works, the expression “Works” shall be deemed to include the provision of Goods.
3. General obligations of Swegon Air Management
i. Swegon Air Management shall carry out and complete the Works in accordance with the Contract and in a proper and workmanlike manner.
ii. Swegon Air Management shall supply Goods of a satisfactory quality.
iii. Swegon Air Management shall, where required to do so, full comply with all applicable legislation relating to health and safety.
iv. Insofar as Swegon Air Management is responsible for the design of the Works or any part thereof, Swegon Air Management warrants that there has been exercised and will be exercised the skill and care reasonably to be expected of a duly qualified and experienced designer undertaking the design of works similar in scope and character to the Works or such part of the Works.
v. Swegon Air Management may at its sole discretion use sub-contractors to complete the Works.
i. The Buyer shall provide Swegon Air Management with an accurate Specification for the Goods and/or the Works. In the event that the Buyer’s Specification is inaccurate and such inaccuracy causes a delay to the completion of the Works, then Swegon Air Management shall be entitled to an extension of time under clause 12 and loss and/or expense under clause 11.
ii. The Buyer shall provide free of charge to Swegon Air Management all reasonable and necessary attendances and facilities to enable Swegon Air Management to unload and store the Goods and carry out and complete the Works on Site, in addition to providing those attendances and facilities set out in the Contract Documents.
iii. The Buyer shall provide Swegon Air Management with full access to the Site, as required by Swegon Air Management, and shall not hinder or prevent Swegon Air Management from carrying out the Works.
4. General obligations of the Buyer
5. Contract Price
i. The Contract Price is set out on the Quotation and/or the order acknowledgement and is exclusive of VAT which shall be due at the rate ruling on the date of the Buyer’s order.
ii. The Contract Price shall be adjusted to take into account any variations in any direct or indirect cost to Swegon since the date of the formation of the Contract and any variations instructed pursuant to clause 10.
iii. The Contract Price shall be due in full without the Buyer being entitled to exercise any set-off, lien, abatement or any other similar right or claim.
iv. The Buyer is not entitled to deduct any discount unless the same appears within the Contract Documents.
v. The contract price as set out on the Quotation is held firm for 90 days from date of Quotation to final dispatch date of goods only.
i. This clause 6 shall apply where the Contract constitutes a “construction contract” for the purposes of the Construction Act. Where the Contract is not classed as a “construction contract”, clause 6A shall apply.
ii. Payments under this contract shall only be applied for and made pursuant to an Invoice on the dates set out below. There shall be no written Application for Payment unless expressly agreed.
iii. Unless otherwise agreed between Swegon and the Buyer and specified on the invoices submitted by Swegon, the Buyer shall pay the Contract Price (or relevant portion thereof) within 30 days of the date of Swegon’s invoice.
iv. Swegon does not agree to retention being held unless expressly agreed in writing.
v. The Due Date for Payment shall be the 1st day of each calendar month following the month in which Swegon commences the Works/begins supplying the Goods and at the end of each subsequent month thereafter until 1 month after the date of practical completion of the Works or the last date when Swegon supplies the Goods, whichever is the later.
vi. The Final Date for Payment for the Goods and/or the Works shall be no later than 21 days after the Due Date for Payment.
vii. Not later than 5 days after each Due Date for Payment, Swegon shall issue a notice to the Buyer specifying the sum Swegon considers to be or have been due at the Due Date for Payment and the basis on which that sum is calculated (“Payee’s Notice”). The Buyer shall make payment of the sum specified in each Payee’s Notice on or before the relevant Final Date for Payment.
viii. If the Buyer wishes to pay less than the sum set out in any Payee’s Notice, the Buyer shall, not later than 5 days before the relevant Final Date for Payment, issue a written notice to Swegon specifying the sum the Buyer considers to be due at the date the notice is given and the basis on which that sum is calculated (“Pay Less Notice”).
ix. Retention monies shall be withheld at the rate specified in the Quotation. The Due Date for Payment of the first half of the retention shall be the date of practical completion of the Works. The Due Date for Payment of the second half of the retention shall be 12 months after the date of practical completion of the Works. The Final Date for Payment of each half of the retention shall be 15 days after the relevant Due Date for Payment. Not later than 5 days after each Due Date for Payment, Swegon shall issue a Payee’s Notice in accordance with clause 6(iii).
x. VAT, where applicable, will be added to the Contract Price.
xi. Swegon will charge the Buyer interest and claim compensation on any late payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
i. This clause 6A shall apply where the Contract does not constitute a “construction contract” for the purposes of the Construction Act.
ii. Unless otherwise agreed between Swegon and the Buyer and specified on the invoices submitted by Swegon, the Buyer shall pay the Contract Price (or relevant portion thereof) within 30 days of the date of Swegon’s invoice.
iii. VAT, where applicable, will be added to the Contract Price.
iv. Swegon will charge the Buyer interest and claim compensation on any late payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
v. The contract price as set out on the quotation is held firm for 90 days from date of quotation to final dispatch date of goods only.
6A. Payment - Contracts for the supply of Goods only
i. Swegon may serve on the Buyer a written notice of intention to suspend all further Works and performance of the Contract and shall be entitled 7 days after service of the notice to suspend the Works and the further performance of the Contract until payment in full has been received.
ii. The Buyer shall allow Swegon a reasonable period of time in which to re-commence the Works following payment and shall pay Swegon’s reasonable costs and expenses of re-mobilisation in such event.
iii. The period of suspension shall not count as a period of delay for which Swegon is liable.
7. Suspension of the Works
If any payment has not been received in full by Swegon by the relevant Final Date for Payment then:
i. The Buyer shall have no right or remedy against Swegon in respect of any alleged defect, whether arising during the 12 month period referred to in clause 8(i) or otherwise, unless the Buyer has given written notice of the defect to Swegon as soon as the alleged defect became apparent and provided Swegon with the opportunity to remedy the alleged defect in the first instance.
ii. Swegon offers no warranty whatsoever that any Goods or workmanship will be suitable for any particular purpose or meet any particular Specification requirement, notwithstanding that such purpose or requirement may be known or made known to Swegon.
8. Defects liability period
i. Should any defect in workmanship or materials become evident within the 24-month period you must notify Swegon in writing within 14 days following which Swegon undertake to repair or replace the defective part during normal working hours.
ii. This guarantee does not cover repairs, replacements or adjustments which may be required as a result of ordinary wear and teae, willful or accidental damage, misuse, neglect or any other cause beyond our control.
iii. That all outstanding monies have been paid to us.
8A. Standard warranty period
Swegon guarantees materials and workmanship for a period of 24 months from the date the Works are practically complete on the followingconditions:
i. The defects liability period shall be 12 months from the last date the Goods are supplied and/or the Works are practically complete, whichever is the later. Any claim for defective Goods or workmanship, other than glass, which shall be notified forthwith in writing, shall be notified to Swegon in writing within 14 days of the date of discovery and Swegon may, at its own option, either repair or replace the defective Goods or perform again the workmanship complained of.
ii. All Goods supplied and all Goods delivered to Site for incorporation into the Works shall remain the property of Swegon until payment in full has been received by Swegon.
iii. In the event the Buyer fails to pay Swegon in full for any Goods, either because the Buyer is Insolvent or for any other reason, Swegon shall be entitled to require the Buyer to deliver up the Goods to Swegon forthwith. If the Buyer fails to do, Swegon shall be entitled to enter upon any premises where the Goods are stored and repossess them.
9. Retention of title
i. The Buyer acknowledges that any variation to the Works which is instructed may have a time and cost implication.
ii. The value of all variations required by the Buyer shall be set out by Swegon in a lump sum quotation which, if agreed, shall be added to the Contract Price. If not agreed, Swegon will value the variation on a fair and reasonable basis which value will be added to the price.
If the regular progress of the Works is either prolonged and/or disrupted and/or otherwise materially affected by any act, omission or default on the part of the Buyer (including those for whom the Buyer is responsible) then Swegon shall notify the Buyer in writing within a reasonable period of time of such matters and provide details of the direct loss and/or expense incurred by Swegon. The direct loss and/or expense incurred by Swegon shall be added to the Contract Price and shall be paid by the Buyer to Swegon in the payment due to Swegon immediately following the notification referred to herein.
11. Loss and/or expense
i. The Buyer shall specify in writing the date on which the Works are to commence.
ii. Swegon and the Buyer shall agree date/dates by or period/periods within which the Works are to be completed. If no date(s) or period(s) for completion is agreed, Swegon shall complete the Works within a reasonable time.
iii. In the absence of any instructions from the Buyer, Swegon shall progress the Works in a sequence and manner which it thinks fit. It is the Buyer’s responsibility to ensure that it notifies Swegon of the requirements of any programme for the Works, and any changes or revisions thereto.
iv. Swegon shall confirm the date of practical completion of the Works to the Buyer in writing.
v. If the preparation, performance or completion of the Works is delayed, disrupted or hindered by any event, circumstance or cause beyond Swegon’s control then the period for the completion of the Works shall be extended by the same period of time as the period of delay, disruption or hindrance. In addition, if requested to re-mobilise its workforce following a period of delay to the Works, Swegon shall be granted a further 10 days extension of time.
vi. Swegon shall constantly use reasonable endeavors to prevent delay to the progress of the Works.
12. Commencement, completion & extension of time
i. Either party shall be entitled to terminate the Contract forthwith upon giving written notice if:
a) the other party commits a material breach of any of the provisions of the Contract and fails to remedy the same within 14 days after receipt from the party not in breach of a written notice giving full particulars of the breach required to be remedied; or
b) the other party becomes Insolvent.
ii. Where Swegon terminates the Contract pursuant to clause 13(i), Swegon shall be entitled to be paid the value of the Works and/or Goods carried out/supplied to date (less any sums already paid), its reasonable demobilisation costs and a sum in respect of loss of profit and overheads.
iii. Where the Buyer terminates the Contract pursuant to clause 13(i), Swegon shall be entitled to be paid the value of the Works and/or Goods carried out/supplied to date (less any sums already paid).
iv. If the Buyer terminates the Contract for a reason not specified in clause 13(i), the Buyer shall pay Swegon for the value of the Works and/or Goods carried out/supplied to date (less any sums already paid) and all damages, losses and expenses, including loss of profit and overheads, suffered or incurred by Swegon.
i. Swegon shall have no responsibility for loss or damage to the Works, the Site or Goods on Site. It shall be the Buyer’s responsibility to obtain a policy of insurance to cover such risks.
ii. Swegon warrants that there is in force a policy of insurance to cover Swegon’s liability in respect of personal injury, death and damage to property arising out of or in connection with the carrying out of the Works by Swegon.
14. Insurance and injury to persons/property
i. Swegon’s total liability to the Buyer in respect of all matters arising out of, under or in connection with the Contract, including (without limitation) any breach of Swegon’s obligations under the Contract, whether arising in contract, tort, statute, strict liability or otherwise, shall not exceed the Contract Price.
ii. Swegon shall have no liability whatsoever to the Buyer arising out of, under or in connection with the Contract for loss of actual and/or anticipated profits and/or overheads, loss of contracts with any third party, liquidated damages payable to a third party by the Buyer, costs of attempted mitigation and indirect, special, incidental and/or consequential losses or damages.
iii. No claims or proceedings arising out of or in connection with the Contract and/or the Works and/or the Goods shall be brought against Swegon after the expiry of 6 years following the date of practical completion of the Works or the last date the Goods are supplied, whichever is the later.
iv. Swegon’s liability in respect of death, injury to persons and damage to property shall be only to the extent that such death, injury or damage has been caused solely by the negligence or default of Swegon.
v. Nothing in this clause 15 shall exclude or limit Swegon’s liability for death or personal injury caused by Swegon’s negligence or for any other matter in respect of which the law provides that liability may not be excluded or limited.
vi. Liquidated damages for any delay caused by Swegon shall be limited to 1% of the value of the contract works in delay calculated per week for a maximum of 10 weeks. This shall be an exhaustive remedy for all time related delays.
i. Delivery of Goods shall be ex works Swegon’s premises, unless otherwise agreed in writing.
ii. Time of delivery of the Goods is not of the essence of the Contract.
iii. From the time of despatch of the Goods from Swegon’s premises, the Goods shall be at the Buyers risk.
iv. The Goods on delivery to site shall be at the Buyer’s risk.
i. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination, and into any country through which the Goods are transported, and for the payment of any duties on or in respect of the importation or transportation of the Goods.
ii. The Buyer shall be responsible for arranging for testing and inspection of the Goods at Swegon’s premises before shipment. Swegon shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which are made after shipment, or in respect of any damage during transit.
iii. From the time of dispatch of the Goods from Swegon’s premises, the Goods shall be at the Buyer’s risks.
17. Exporting goods
i. Any Payee’s Notice or Pay Less Notice to be given in accordance with the Contract shall sent by first class post or email to the last known business address of the relevant party. Any other notice to be given under the Contract shall be sent by first class post or recorded delivery to the last known business address of the relevant party.
ii. Notices sent by first class post or recorded delivery shall be deemed to be received on the second working day after the date of posting. Notices sent by email shall be deemed to be received on the same working day that the email is sent. If the email is sent after 5:00pm or not on a working day, the notice shall be deemed to be received on the next working day.
If a dispute or difference arises under this contract which either party wishes to refer to adjudication, The Scheme for Construction Contracts (England & Wales) Regulations 1998 as amended shall apply.
20. Third party rights
Nothing in the Contract shall confer or purport to confer upon any third party any benefit or right against Swegon or the Buyer, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The Contract constitutes the entire agreement and understanding between the parties in relation to the Goods and/or the Works and supersedes all previous agreements between the parties relating to the Goods and/or the Works. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any written or oral statement, representation, misrepresentation, assurance or warranty (whether express or implied) other than as expressly set out in the Contract. Nothing in this clause 21 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
21. Entire agreement
i. Swegon shall have no liability or responsibility to the Buyer for any failure to fulfill its obligations under the Contract if such failure is caused by any occurrence beyond the responsibility and reasonable control of Swegon, including any act of war, rebellion, revolution, military power or terrorism; radioactive contamination; fire and government restrictions (“Force Majeure Event”).
ii. If a Force Majeure Event continues for a period of 3 months, either party may determine the Contract by service of a written notice, in which case Swegon shall be entitled to be paid the value of the Goods provided and/or Works carried out to date (less any sums already paid).
iii. Each party shall bear its own costs and losses arising out of a Force Majeure Event.
22. Force majeure
The Buyer shall not be entitled to assign the whole or any part of the Contract without the written consent of Swegon. Swegon may, without reducing its obligations under the Contract, assign or sub-let all or part of its rights and/or obligations under the Contract without the written consent of the Buyer.
No failure or delay on the part of either party to exercise any right or remedy under the Contract shall be construed or operate as a waiver, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
If any provision of the Contract is held by a court or other competent tribunal to be invalid or unenforceable it shall be severable and shall be deemed omitted from the Contract to the extent necessary to prevent such invalidity or unenforceability and the remaining provisions shall continue to have full effect.
The laws of England and Wales shall apply to the Contract.
Where an event, series of events, or other set of circumstances occurs as a direct or indirect result of or in contemplation of:
i. the UK ceasing to be a full member state of the EU; or
ii. such other occurrence of any fact, matter, event, circumstance, condition or change,
which has a material adverse effect on the costs of the Company performing its obligations under this Contract and/or reduces its income under this Contract and/or otherwise adversely affects the benefit it derives from this Contract, such event, events or circumstances shall be deemed to be an "Adverse Effect".
Upon the occurrence (or likely consequence) of an Adverse Effect, the Company shall be entitled to:
i. require the Purchaser to negotiate in good faith an amendment to this Contract to offset or mitigate the Adverse Effect; and
ii. if no such amendment is made to this Contract within 30 days, terminate this Contract upon providing written notice to the Purchaser. Where the Company terminates the Contract in accordance with this clause, the Company shall be entitled to be paid the value of the goods supplied to date (less any sums already paid).
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