TERMS AND CONDITIONS OF CONTRACT FOR THE SUPPLY, INSTALLATION,REPAIR OR MODERNISATION OF LIFTS
May 2023.
1. GENERAL
1.1. The acceptance of the Company's Tender (the "Tender") includes the acceptance of the following terms and conditions. No terms or conditions stipulated or referred to by the Purchaser in writing or by verbal instruction shall in any respect vary or add to these terms and conditions unless Morgan Ellis Lifts Ltd agrees in writing to any such variation or addition.
2. NOTICE OF THE RIGHT TO CANCEL
2.1. You have the right to cancel this contract free of charge if you wish, within fourteen calendar days starting from the date of order. From receipt of your 50% deposit payment cancellation can be made within seven calendar days to claim a full refund. After this seven day period you have the right to reclaim 25% of your deposit payment before lift drawing approval. Any cancellations made after lift drawings are approved for production 100% of the contract value will be applicable. Cancellation should be communicated in writing and sent by registered post to Managing Director, Morgan Ellis Lifts Ltd. Finance House, 20 – 21 Aviation Way, Southend-On-Sea, SS2 6UN. Notice of cancellation is deemed to be served as soon as it is posted.
3. DRAWINGS
3.1. All specifications, drawings and particulars submitted with the Tender are approximate only and may require further refinement.
3.2. Morgan Ellis Lifts Ltd may from time to time use drawings and illustrations from various sources demonstrating the type of goods available. Morgan Ellis Lifts Ltd asserts that any and all descriptions, illustrations and other material of whatsoever nature contained in any catalogues, price lists and other advertisement produced or referred to by Morgan Ellis Lifts Ltd are intended merely to present a general description of the goods specified in such material and none of the documentation referred to shall form part of the contract.
3.3. Morgan Ellis Lifts Ltd shall supply to the Purchaser, free of charge, up to two copies of general arrangement drawings giving details of builders work required to be undertaken in preparation for the Works to be undertaken under this contract. Additional copies or revision shall be charged for.
3.4. Any changes requested after the drawings have been approved Morgan Ellis Lifts Ltd may apply a charge to do so.
4. OVERTIME and or DAYWORK
4.1. Unless specifically stated to the contrary in writing by Morgan Ellis Lifts Ltd, the Tender is based on the assumption that the Works will be carried out between Monday to Friday 0800 to 1700. Morgan Ellis Lifts Ltd shall be entitled to receive additional remuneration for any work outside such hours at a day rate of double time together with any additional costs and overhead charges incurred.
5. DELIVERY AND STORAGE OF GOODS
5.1. The Purchaser is required to provide delivery requirements for the Goods. In the absence of such an instruction and unless stated to the contrary in the Tender Morgan Ellis Lifts Ltd shall deliver Goods comprised in the Works to the site.
5.2. The Goods will be manufactured to meet an agreed programme after drawings and finishes are approved. If manufacture of the Goods is commenced and thereafter the Purchaser’s delivery requirements change, it will not be possible to stop manufacture. The Goods will therefore be delivered to the UK and the Purchaser will accept the Goods on site where it will be the Purchaser’s responsibility to store protect and pay for the Goods. Upon the Purchasers written request and subject to Morgan Ellis Lifts Ltd’s availability, Morgan Ellis Lifts Ltd may store the goods at the Purchasers risk and expense.
5.3. Morgan Ellis Lifts Ltd shall have no liability to the Purchaser in respect of any damage or loss to any Goods whilst in transit nor in respect of any shortage in the quantity of such Goods delivered unless notified as follows:
a. The Purchaser shall within 3 days of delivery of the Goods notify Morgan Ellis Lifts Ltd or the carrier in writing of damage or shortage of the Goods.
b. The Purchaser shall submit a complete written claim to Morgan Ellis Lifts Ltd and the carrier within fourteen days of receipt of the Goods specifying the exact damage or shortage.
6. COMPLETION OF THE WORKS
6.1. Any times stated by Morgan Ellis Lifts Ltd for completion of the Works shall run from the date of receipt of the Purchasers’ written order and any initial payment of the Contract price and if later, from the receipt of all information, drawings, licences, permits and approvals necessary to enable Morgan Ellis Lifts Ltd to proceed with the Works. All such times are to be treated as estimates only and shall not place upon Morgan Ellis Lifts Ltd any obligation to complete the Works by a specified date unless Morgan Ellis Lifts Ltd has specifically agreed such a date in writing.
6.2. The contract is entered into on the understanding that the Purchaser shall at its own expense before the estimated date of commencement of any part of the Works ensure that the site is ready in all respects for the Works to commence and, without prejudice to the generality of the Purchasers obligations in this respect, that all the facilities and items where applicable have been or will be, provided by the Purchaser free of charge as and when required by Morgan Ellis Lifts Ltd in order to enable the Works to proceed.
7. DELAY IN DELIVERY OR COMPLETION
7.1. If due to circumstances outside the control of Morgan Ellis Lifts Ltd, the Purchaser cannot accept delivery of Goods comprised in the Works upon the estimated delivery date for such Goods, or is otherwise unable to grant Morgan Ellis Lifts Ltd access to the site for the purpose of commencement of the Works, Morgan Ellis Lifts Ltd has the right to recover any costs incurred by the delay and/or to continue to manufacture goods and deliver them to storage in accordance with clause 5.
7.2. Morgan Ellis Lifts Ltd shall not be liable for any delay or for any consequences of any delay in the production or delivery of any of the goods comprised in the Works or in the completion of the Works in circumstances where an estimated time for completion of the Works has been given by Morgan Ellis Lifts Ltd.
7.3. In circumstances where Morgan Ellis Lifts Ltd has agreed in writing a time for completion of the works in accordance with clause 5, Morgan Ellis Lifts Ltd shall not be liable for any delay or any consequences of delay if such delay is due to fire, strike, lockout, dispute with workmen, flood, accident, delay in transport, shortage of fuel, default of any sub-Purchaser, inability to obtain material and/or labour, embargo, act or demand or requirement of any government or any government department or local authority, or as a consequence of war or of hostilities (whether war be declared or not) or any other cause whatsoever beyond the reasonable control of Morgan Ellis Lifts Ltd. If any such delay occurs then (unless the cause thereof shall frustrate or render impossible or illegal the performance of the contract or shall otherwise discharge the parties from their obligations under the Contract) the period within which Morgan Ellis Lifts Ltd had stated that its obligations under the Contract shall be completed shall be extended by a period (not limited to the length of such delay) as Morgan Ellis Lifts Ltd may reasonably require to complete the performance of its obligations.
7.4. There is no right to set off.
8. PASSING OF RISK
8.1. Risk shall pass to the Purchaser from the moment the Goods comprised in the Works or any part thereof are delivered on site or into storage whether or not accepted by the Purchaser. Once such risk has passed it shall in no circumstances pass back to Morgan Ellis Lifts Ltd
9. TERMS OF PAYMENT
9.1. All tenders are strictly net cash unless otherwise stated and are exclusive of Value Added Tax or any similar or other taxes, levies or duties.
9.2. Payments shall become due to Morgan Ellis Lifts Ltd as follows:-
a. 50% of the contract value on placing the order (to be paid within 14 days of the order to secure the quoted price)
b. 25% Drawing Approved Stage
c. 25% 4 weeks prior to delivery
If through no fault of Morgan Ellis Lifts Ltd final adjustments cannot be made when installation is otherwise complete, payment shall nevertheless become due as though such final adjustments had been made.
9.3. The Purchaser shall, not later than five days after the date on which any payment becomes due, give notice to Morgan Ellis Lifts Ltd specifying the amount (if any) of the payment made or proposed to be made, specifying to what the payment relates and the basis on which the amount was calculated.
9.4. The final date for all payments shall be fourteen days from the due date for payment.
9.5. In the event that Morgan Ellis Lifts Ltd has exercised its right under Section 112 of The Housing Grants, Construction and Regeneration Act 1996 to suspend performance of its obligations under this contract, the Purchaser shall reimburse Morgan Ellis Lifts Ltd in respect of any loss and/or expense incurred by Morgan Ellis Lifts Ltd during the period of the suspension including the cost of re-mobilisation on the lifting of the suspension.
9.6. The due dates and the final date for payment set out in sub-clauses 9.2 and 9.4 shall remain in place notwithstanding that the Purchaser does not accept delivery of any Goods comprised in the Works or allow commencement or completion of the Works in circumstances where Morgan Ellis Lifts Ltd is ready to deliver such Goods and/or commence or complete the Works.
9.7. In circumstances where more than one lift is provided by Morgan Ellis Lifts Ltd, the terms of payment set out above shall apply in respect of the provision of each lift.
9.8. Interest shall be paid by the Purchaser on all overdue amounts from the date when payment was due until actually made in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 at the rate in force from time to time.
9.9. Notwithstanding any other provision of this contract Morgan Ellis Lifts Ltd may at its discretion require full payment with order or against pro-forma invoices.
10. PRICE VARIATIONS AND ADDITIONAL WORKS
10.1. The price quoted is based on materials and wage rates applicable at the date of the tender or quotation and shall be subject to adjustment in accordance with any price increases likely to be incurred by Morgan Ellis Lifts Ltd should the commencement of the Works be in excess of 12 weeks from the point of order. If a fixed price is given it is done so on the understanding that the installation will be completed within the period stated. Should completion be delayed for any reason beyond the agreed date Morgan Ellis Lifts Ltd reserves the right to adjust the Contract price in accordance with any price variations incurred.
10.2. All prices shall be subject to further variation in respect of any additional costs arising by virtue of any statute, regulations or orders issued by any Government Department or other duly constituted authority.
10.3. Any adjustment or variation made in accordance with clauses 10.1 and 10.2 respectively may be invoiced immediately the amount of such adjustment and/or variation has been ascertained and shall be payable by the Purchaser immediately upon receipt by it of a notice from Morgan Ellis Lifts Ltd outlining the amount of the adjustment or variation as the case may be.
10.4. Morgan Ellis Lifts Ltd shall be under no obligation to accept additional instructions from the Purchaser without a signed instruction from a duly authorised representative of the Purchaser.
11. RETENTION OF TITLE
11.1. All Goods supplied by Morgan Ellis Lifts Ltd shall remain its property until full payment of the contract price and the Purchaser irrevocably authorises and licenses Morgan Ellis Lifts Ltd, in the event that the Purchaser fails to make payment to Morgan Ellis Lifts Ltd, and without prejudice to any other remedy which Morgan Ellis Lifts Ltd may have at law or otherwise to enter the premises where such goods are held and disconnect and or remove them. The Purchaser shall not use or in any way dispose of the Goods supplied by Morgan Ellis Lifts Ltd in respect of which payment has not been received in full by Morgan Ellis Lifts Ltd.
12. IMPORTED MATERIALS
12.1. The price stated in the Tender, where appropriate, allows for the cost of importing materials based upon the rates of exchange, tax or duty prevailing at the date of the Tender. In the event of any adjustment in such rates, between the date of the Tender and 14 days after receipt of sufficient payment to settle the overseas debt Morgan Ellis Lifts Ltd reserves the right to make an appropriate adjustment to the Contract price.
13. MAINTENANCE
13.1. Morgan Ellis Lifts Ltd recommend a contract including a minimum of 2 service visits per year, this is not included in the Tender. Upon request a contract of service can be sent to you for your consideration. Any maintenance contract would take effect from the date of completion of our Works unless otherwise agreed between the parties in writing. If this maintenance is to take effect from practical completion of the main contract works, caretaker maintenance will be needed to ensure that the lift remains in good working order for the period between completion of our sub contract Works and practical completion of the main contract. Costs for this service are in addition to the contract sum.
14. GUARANTEE
14.1. Morgan Ellis Lifts Ltd hereby warrants the material and workmanship supplied by it under the contract and will make good any defects arising (within one year) from the date of completion of each lift due to faulty design, workmanship or materials carried out or supplied by it which is not due to ordinary wear and tear or to improper use or care subject to 13.1.
14.2. The liability of Morgan Ellis Lifts Ltd under this clause 14 shall constitute its sole liability (save in respect of death or personal injury caused by the negligence of Morgan Ellis Lifts Ltd) whether in contract, tort (including negligence) or otherwise in respect of any defects in the goods and services supplied under the contract and any warranties or conditions implied by law are expressly excluded.
14.3. It is a condition of this guarantee that the Purchaser shall ensure that all accessible parts are kept clean, and that no person modifies, adjusts or interferes with any equipment without Morgan Ellis Lifts Ltd’s prior approval and such benefit shall apply to the Purchaser only.
15. GENERAL LIABILITY
15.1. The Purchaser shall not use or permit to be used the whole or any part of the Goods supplied under this Contract before they have been completed, installed, tested and handed over by Morgan Ellis Lifts Ltd and if they are so used the Purchaser shall indemnify Morgan Ellis Lifts Ltd against any liability that may be incurred to any person whether arising directly or indirectly from such use.
15.2. Save as provided by statute Morgan Ellis Lifts Ltd shall not be liable for any loss, delay or damage caused by or arising from the use of any Goods comprised in the Works otherwise than in accordance with instructions given by Morgan Ellis Lifts Ltd from time to time as to its operation and maintenance, and shall not, in any event, be liable for any loss arising out of any cause beyond its reasonable control. The Purchaser shall indemnify Morgan Ellis Lifts Ltd from any and all losses incurred as a result of misuse by the Purchaser. Morgan Ellis Lifts Ltd will not under any circumstances be liable for any loss of profit, business opportunity, consequential or economic loss or other indirect losses howsoever caused.
16. INSTALLATION
16.1. Unless agreed in writing the Purchaser shall allow Morgan Ellis Lifts Ltd to install the Goods in one continuous operation during normal working hours. The shaft, motor room or any other preparatory building works (if applicable) shall be handed over to Morgan Ellis Lifts Ltd properly completed, with the appropriate power supplies and weather tight.
16.2. Morgan Ellis Lifts Ltd shall inspect these works prior to hand over for reasons of access only. Morgan Ellis Lifts Ltd rely upon the skill and knowledge of the Purchaser or their appointed third party to design and set out these works to the correct vertical and horizontal tolerances and specifications. The inspection by Morgan Ellis Lifts Ltd is in no way verification that the building Works are to the required standard and no reliance shall be placed on such inspection.
16.3. Any extra cost incurred due to a suspension of the Works as a result of instructions received from the Purchaser or the lack of such instructions, interruptions, delays, overtime, unusual working hours, and additional work or variations or work for which Morgan Ellis Lifts Ltd is not responsible or mistakes or any other causes outside Morgan Ellis Lifts Ltd’s control, shall be added to the contract price and paid by the Purchaser in accordance with clause 9. Any such charges shall be based upon Morgan Ellis Lifts Ltd’s normal rates and shall include outworking and lodging allowances where appropriate. If suitable lodgings are not available at these rates due to circumstances beyond Morgan Ellis Lifts Ltd’s control the difference in cost including any extra fares incurred shall be added to the contract price and paid by the Purchaser.
17. TESTING, ACCEPTANCE AND COMPLETION
17.1. The Works shall be considered complete on notification by Morgan Ellis Lifts Ltd to the Purchaser that its tests have been successfully completed and all builders work including any items are complete and signed off to Morgan Ellis Lifts Ltd’s satisfaction.
17.2. If any lift supplied under the Contract is not taken into normal service at this time it shall be shut down, and Morgan Ellis Lifts Ltd shall be entitled to additional payment at current rates from the Purchaser for such servicing, cleaning, lubricating or other work as may be necessary to ensure its satisfactory condition when taken into normal service by the Purchaser.
17.3. If the Purchaser requests beneficial use of a lift then that shall be subject to a separate contract between the parties and subject to the client’s consent governing such use.
18. TERMINATION
18.1. Morgan Ellis Lifts Ltd may terminate this contract immediately:
a. If the Purchaser commits a material breach of this contract and fails to remedy the breach to the satisfaction of Morgan Ellis Lifts Ltd within 10 working days of Morgan Ellis Lifts Ltd providing written notification of the breach, or 2) Purchaser makes a voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation or an encumbrance takes possession of, or a receiver or manager is appointed over, all or any property or assets of the Purchaser or the Purchaser ceases or threatens to cease to carry on business or the Purchaser generally becomes unable to pay its debts within the meaning of
Section 123 of the Insolvency Act 1986.
18.2. Where the Purchaser is in material breach of this Contract, Morgan Ellis Lifts Ltd may at its discretion suspend performance of the Contract until such time as the breach is remedied and such action shall not affect the Purchaser's obligation to pay for work executed up to the point of suspension. Where the breach is a failure to pay any part of the contract value Morgan Ellis Lifts Ltd shall be at liberty to demand security for payment before performing or completing the Contract.
19. PREVENTION OR FRUSTRATION
19.1. If the contract becomes impossible to perform or is otherwise frustrated. The Purchaser shall be liable to pay Morgan Ellis Lifts Ltd all costs, expenses, overheads and any loss of profit which Morgan Ellis Lifts Ltd, its suppliers or sub-contractors incur as a result of such frustration or impossibility of performance.
19.2. Any pre-payments which may have been made to Morgan Ellis Lifts Ltd under the contract shall be applied towards satisfaction of such sum as may become due to him under the foregoing provisions, and the excess (if any) of such pre-payments will be refunded to the Contractor.
20. INTELLECTUAL PROPERTY RIGHTS
20.1. Morgan Ellis Lifts Ltd retains all IP rights and does not pass to the Purchaser any patent, trade mark or copyright in the Goods or any associated drawings or materials but will provide to the Purchaser an unconditional licence to use the same for the Works upon request.
20.2. The Purchaser warrants that any design or instruction furnished or given by him shall not cause Morgan Ellis Lifts Ltd to infringe any later patent, registered design or trade mark in the execution of the Works.
21. ADJUDICATION
21.1. Both the Purchaser and Morgan Ellis Lifts Ltd shall be entitled to refer any dispute or difference arising under this contract to adjudication at any time. The adjudication shall be conducted in accordance with the provisions of Part 1 of the Schedule to The Scheme for Construction Contracts (England and Wales) Regulations 1998.
22. LAW APPLICABLE
22.1. This contract shall be governed by and construed in accordance with the sole and exclusive jurisdiction of English Law and English Courts.
22.2. This contract does not confer or purport to confer any benefit on any third party. In particular, rights that would otherwise arise in favour of third parties under the Contracts (Rights of Third Parties) Act 1999 are excluded.
Finance House | 20 – 21 Aviation Way | Southend On Sea | Essex | SS2 6UN.
01702 780002 | enquries@morganellis.co.uk
www.morganellis.co.uk
