Brass Tacks Fittings Ltd
  1. Definitions
    1. In these conditions the following expressions shall have the following meanings:
      1. “Brass Tacks” means Brass Tacks Fittings Ltd
      2. “these Conditions” means these Conditions of Business.
      3. “Commencement Date” means the date agreed for the commencement of the Works on Site.
      4. “Contract” means the contract between Brass Tacks and the Customer for the Works.
      5. “Contract Price” means the price agreed by the parties for the Works.
      6. “Customer” means the person entering into the contract with Brass Tacks.
      7. “Estimate” means Brass Tacks’ estimate in respect of the Works.
      8. “Goods” and “Services” means respectively the goods to be supplied and the services or work to be performed by Brass Tacks to or for the Customer (or to the Customer’s order) under the Contract or Variation Orders.
      9. “Normal Hours” means 8.30am to 5.00pm on Monday to Friday.
      10. “Regulations” means the Construction (Design and Management) Regulations 1994.
      11. “Site” means the premises as specified in the Contract at which the Goods are to be delivered or installed and/or the Services performed.
      12. “Variation Orders” means any order, which varies the terms of the Contract whether by altering, increasing or reducing the scope of the Works.
      13. Works” means the supply and/or installation of such Goods and/or the provision of such services as may be specified in the Contract.
    2. In construing this Agreement the following provisions shall apply:
      1. If the Customer consists of more than one person then their obligations hereunder shall be joint and several;
      2. The clause headings are for ease of reference only and shall be ignored.
      3. Any reference in these Conditions to “Brass Tacks’ prevailing rates” or any similar expression shall refer to Brass Tacks’ rates for its products and its services. Brass Tacks’ prevailing rates shall additionally include cost plus Brass Tacks’ profit in respect of bought in goods. Where rates are specified in the Estimate they shall be deemed the prevailing rates.
  2. Contract

    A Contract shall be concluded by the Customer’s verbal or written acceptance of an Estimate. All Services and Goods supplied by Brass Tacks are supplied subject to these Conditions unless varied by written document signed on behalf of Brass Tacks by a director. However, the same may purport to be qualified, the placing of an order or a Variation Order with Brass Tacks or the acceptance of Goods or Services from Brass Tacks, shall be deemed acceptance of these Conditions.

  3. Basis of Estimate
    1. Unless otherwise stated Estimates are open for acceptance for a period of 30 days.
    2. The Customer warrants and undertakes as set out in sub-clauses 3.2.1 to 3.2.5 (inclusive) and the Estimate has been prepared on the basis of and in reliance on such warranties and undertakings:
      1. that the Site will at the Commencement Date be accessible and in a sufficient state of readiness to enable the Works to proceed without hindrance; and
      2. that the Customer has complied with its obligations under regulation 11 of the Regulations to provide Brass Tacks with all relevant information about the site; and
      3. that the Customer has or will prior to the Commencement Date appoint a planning supervisor where such appointment is required under regulation 6 of the Regulations;
      4. that the Customer has sufficient copyright or other intellectual property right for the purposes of the Contract in any designs, logos or other items (other than those created by Brass Tacks) which Brass Tacks requires to copy or use in the course of the Works and the Customer grants to Brass Tacks and its sub-contractors all necessary all right and licence to use and copy the same for the purpose of the Works and for Brass Tacks’ subsequent use of the same in its marketing materials; and
      5. that the Customer shall provide on site without charge to Brass Tacks adequate lighting and water supplies, electricity for portable tools, a site telephone and facilities for the storage of plant, tools, equipment and materials during the progress of the Works.
    3. If Brass Tacks have not produced the designs for the Works then sub-clauses 3.3.1 to 3.3.3 (inclusive) shall apply.
      1. The Customer warrants that the drawings and other design documents supplied to Brass Tacks are accurate and contain adequate information to enable Brass Tacks to proceed with the Works.
      2. Brass Tacks shall in no event be deemed to have accepted or approved the accuracy and/or safety of such designs (notwithstanding that it may have carried out the Works in accordance with them) and shall not be responsible for any loss or damage as a direct or indirect result of any deficiency in such designs.
      3. The Estimate does not include any costs of compliance with obligations imposed on a planning supervisor under the Regulations.
      4. The Customer warrants that it has obtained all necessary consents from local authorities, landlords or owners of neighbouring property or other persons for the Works and Brass Tacks shall have no responsibility for any breach of the terms of any such consents or want of consents. For the purposes of this clause “consents” includes party wall awards, licences, permissions and similar consents.
  4. Price
    1. Brass Tacks reserves the right to increase the Contract Price in any of the following circumstances:
      1. breach of any of the Customer’s warrantees or undertakings contained in clause 3.2 or 3.3.1;
      2. if the cost to Brass Tacks of materials, labour and/or transport increase between the date of the Contract and the Commencement Date;
      3. if work is carried out at the Customer’s request outside of Normal Hours such work will be charged at Brass Tacks’ prevailing overtime rates;
      4. if for any reason outside its own control Brass Tacks is prevented from starting the Works on the Commencement Date, or is forced to suspend, delay or accelerate the due progress of the Works;
      5. if variations are required or additional costs incurred by Brass Tacks by reason of the requirements of any local or other competent authority or any regulation (whether statutory or otherwise);
      6. if Brass Tacks is required to arrange the appointment of a planning supervisor under the Regulations then such appointment will be made by Brass Tacks as agent for the Customer who will be responsible for the fees of the planning surveyor.
    2. Any price shown in the Estimate or Contract as a “provisional sum” is not in any way binding and is not a fixed price. Brass Tacks’ final account for the Works shall include such items as Brass Tacks’ prevailing rates and the Customer agrees to pay for the same in accordance with clause 5.
  5. Payment Terms
    1. Unless otherwise stated, all prices are quoted net of Value Added Tax which shall be payable by the Customer in addition.
    2. Unless otherwise agreed in writing payment of the Contract Price for the supply of Goods only is to be made in cleared funds either on issue of Brass Tacks’ pro-forma invoice, or, at the option of Brass Tacks, 50% with order and 50% prior to delivery.
    3. Unless otherwise agreed in writing, all account customers must pay in full for goods or services provided by Brass Tacks at the end of the month following the invoice date.
    4. Unless otherwise agreed in writing, Brass Tacks have the right to demand any outstanding account balance must be settled in full on demand.
    5. If the value of Variation Orders is 10% or more of the original Contract Price Brass Tacks may invoice the value of those Variation Orders immediately. Save as aforesaid extras and variations are to be paid for on the submission of Brass Tacks’ final account.
    6. The whole balance of the Contract Price and other sums due under the Contract shall immediately become due and payable if:
      1. payment of any sum due under the Contract is not made on the due date, or
      2. If any Bill of Exchange is not met on first presentation.
    7. Where Brass Tacks has agreed to accept payment by Letter of Credit this shall be an irrevocable Letter of Credit payable at sight issued or confirmed by a London clearing bank.
    8. In the discretion of Brass Tacks where it has bona fide concerns as to the financial position of the Customer it may insist on payment for the Works to be made in advance notwithstanding any provision of these Conditions or the Contract.
    9. Payment of sums not provided for in clauses 5.2 or 5.3 shall be due within 7 days of the date of invoice.
    10. Payment of all sums due to Brass Tacks under the Contract shall be made without deduction whether by reason of set off or otherwise.
    11. Any sum overdue for payment from the Customer to Brass Tacks (whether under the Contract or otherwise) shall bear interest at the rate of 4% over the base rate for lending of Natwest Bank Plc until actual payment in cleared funds (whether before of after judgement in a court of law). VAT will be added to all interest charges if applicable.
  6. Variations and Extras
    1. The Contract specifies all the Goods and Services to which the Contract Price relates. Any Goods or Services required by the Customer which are not so specified or any alterations to the Contract or any specification shall be chargeable as extras or variations.
    2. Variation Orders shall only be binding on Brass Tacks when accepted in writing by Brass Tacks or when fulfilled by Brass Tacks.
    3. Extras and variations shall be charged at Brass Tacks’ prevailing rates (unless otherwise agreed in writing between the parties).
  7. Materials
    1. All materials specified are offered subject to the usual trade conditions, imposed by the suppliers of such materials (details will be researched by Brass Tacks on request in relation to specific items). Natural materials (e.g. timber) may vary from sample.
    2. If there are likely to be lengthy delays by the suppliers of the materials specified or if the same become obtainable, Brass Tacks reserves the right to substitute alternative materials of reasonably comparable quality.
    3. Existing materials on the Site to be replaced in the course of the Works become Brass Tacks’ property upon Commencement on Site.
  8. Passing of Property
    1. Notwithstanding delivery of the Goods and the passing of risk, property in the Goods shall remain in Brass Tacks until it has received payment in cleared funds of all sums due to Brass Tacks from the Customer (whether under Contract or otherwise).
    2. Until such time as property in the Goods have passed to the Customer:
      1. the Customer shall hold the Goods as fiduciary agent and bailee for Brass Tacks and shall keep the Goods separate from any property of the Customer and third parties and properly stored, protected and insured and clearly identified as the property of Brass Tacks;
      2. if the Customer shall sell the Goods the Customer shall hold the right to recover the full amounts of any proceeds of such a sale as trustee for Brass Tacks;
      3. Brass Tacks shall be entitled at any time to require the Customer to deliver up the Goods to Brass Tacks and, if the Customer fails to do so forthwith, Brass Tacks or its authorised representatives shall be entitled at any time and without notice to enter upon the Site or any premises of the Customer or a third party where the Goods (or part thereof) are located or believed to be located and repossess the same including the right to sever the Goods from anything to which they are attached and the Customer shall indemnify Brass Tacks for any damage thereby caused;
      4. the Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness the Goods but if the Customer does so all monies owing by the Customer to Brass Tacks shall (without prejudice to any other right or remedy of Brass Tacks) forthwith become due and payable.
    3. Brass Tacks’ rights under this clause 8 shall not prejudice or reduce any other remedies of Brass Tacks. The exercise of Brass Tacks’ rights under sub-clause 8.2.3 shall not affect Brass Tacks’ right to recover the price in respect of the items so removed but Brass Tacks shall credit the Customer with any sums obtained by resale of such items.
    4. Customer property not collected from Brass Tacks within 6 months will be deemed abandoned by the Customer and it may be disposed of by Brass Tacks without liability.
    5. Any shortages, damages or defects must be reported to Brass Tacks in writing within 7 days of delivery.
  9. Risk and Insurance
    1. Where the Goods are delivered by Brass Tacks to a Site in the UK or installed by Brass Tacks at a Site in the UK, risk in the Goods will pass to the Customer on arrival of the Goods at the Site.
    2. Where delivery is effected by the Customer collecting the Goods risk in the Goods will pass to the Customer upon such collection. Where the Goods are to be loaded by Brass Tacks onto the transport of the Customer or his carrier risk shall pass on completion of loading.
    3. If the Customer shall fail to accept or collect the Goods within a period of 14 days after written notice to the Customer that the Goods are ready for delivery or collection, risk will pass to the Customer at the expiry of such notice.
    4. Any materials, plant, tools or equipment (other than Goods) brought onto the Site by Brass Tacks or its sub-contractors shall remain the property of Brass Tacks or its sub-contractors.
    5. The Site and all property (including but not limited to Customer’s stock) located there, whether or not the same are in the ownership of the Customer, shall be at the risk of the Customer throughout the duration of the Works (notwithstanding that they may extend beyond any anticipated or agreed completion date). The Customer shall pay Brass Tacks’ charges at its prevailing rate for the restoration of the Works or any part thereof which are destroyed or damaged (other than by the negligence of Brass Tacks or its sub-contractors).
    6. The Customer is advised to arrange adequate insurance cover in respect of its liabilities hereunder.
  10. Specification, Imprints and Drawings
    1. Where Brass Tacks provides the Customer with a specification for the Works after the date of the Contract, such specification shall be binding on the Customer save to the extent of any items or matters of which the Customer gives Brass Tacks written notice within 7 days of receiving the specification.
    2. Brass Tacks shall be entitled to write or affix its name to the Goods or the Works and throughout the duration of the Works to advertise its name on Site.
    3. Any plans, drawings, specifications and samples submitted by Brass Tacks to the customer and any intellectual property therein shall be the property of Brass Tacks. Should Brass Tacks’ designs or drawings be executed otherwise than by Brass Tacks the Customer shall pay Brass Tacks a design fee equal to 20% of Brass Tacks’ estimate of the cost of such work (provided that no such design fee is payable where Brass Tacks have provided the designs under a separate design agreement with the Customer)
  11. Programme
    1. The provisions of this clause shall apply to delivery, commencement and completion dates (in this clause “the dates”).
    2. Brass Tacks shall not be obliged to commence the Works or setting out until all payments due “with order” or prior to the Commencement Date have been received by Brass Tacks in cleared funds, and all Bills of Exchange have been received by Brass Tacks in accordance with clause 5.4, and (if required by the Contract) any Letter of Credit has been received by Brass Tacks. Subject thereto Brass Tacks will use reasonable endeavours to commence the Works on the Commencement Date and to comply with agreed delivery and completion dates but such dates shall be regarded as estimates only and Brass Tacks shall incur no liability for failure to comply with them.
    3. The dates have been stated on the basis that there will be no material delay between the Estimate and the Contract. Any Variation Orders may affect the dates.
    4. In the event of any delay in the commencement or progress of the Works due to the Customer’s act or default:
      1. Brass Tacks may postpone some or all of the dates by such period as it may reasonably determine notwithstanding that the period of postponement might be more than the aforesaid delay;
      2. the Customer will be liable to reimburse Brass Tacks for any storage and labour displacement costs that Brass Tacks thereby incurs; and
      3. if the Customer wishes the said period of postponement to be shortened and if Brass Tacks can accommodate this then Brass Tacks shall be entitled to additional costs for accelerated completion.
  12. Warrantees
    1. Brass Tacks warrants that it will use reasonable care and skill in providing the Services and manufacturing and/or delivering the Goods in accordance with the Contract and any specification provided that the following shall be conditions precedent to any liability of Brass Tacks under the clause 12.1, namely:
      1. That any defect in Works becomes apparent within 60 days of practical completion of the Contract or within 7 days of the later delivery or installation in the case of defective Goods; and
      2. That the Customer gives written notice to Brass Tacks within 7 days of any such defect becoming apparent with full details thereof; and
      3. That the Customer shall have made payment in full of all sums due to Brass Tacks at the time of such notice.
    2. The liability of Brass Tacks under sub-clause 12.1 shall be limited to the repair or replacement (at Brass Tacks’ option) of the defective Works during Normal Hours.
    3. The warranty given in sub-clause 12.1 is given instead of and excludes all other express or implied conditions, warranties or undertakings (whether at common law or by statute) relating to the condition, quality, fitness for a particular purpose or compliance with description of the Works or any part of them.
    4. If no such notice is given to Brass Tacks within the period specified in sub-clause 12.1.2:
      1. Brass Tacks shall be under no liability whatsoever in respect of the Works howsoever arising and including, but not limited to, liability for latent defects; and
      2. in respect of the Goods, the Customer shall be deemed to have accepted the Goods and the Goods shall be deemed to comply with the Contract.
    5. The Customer shall not be entitled to reject any Goods or Services by reason only of minor variations in colour, finish or detailing or matters referred to in clause 7.1.
    6. Brass Tacks is not liable for any defects in or claim in respect of Goods which have been subjected to inappropriate load or stress or exposed to an unsuitable environment or which have not been adequately maintained or in respect of which the manufacturer’s instructions have not been complied with.
    7. The Customer shall be liable for Brass Tacks’ charges at its prevailing rates for dealing with any claim under this clause 12 which is not accepted by Brass Tacks.
  13. Liability
    1. Brass Tacks shall not be liable for any loss or damage of any nature caused by or arising from:
      1. errors in or material emissions form designs, information or instructions which were not provided by Brass Tacks
      2. defects in the Site which were not apparent on visual inspection and not notified to Brass Tacks prior to the date of the Contract;
      3. late or non-delivery of materials which were not being supplied by Brass Tacks;
      4. any failure by the Customer to provide Brass Tacks with information or instructions as and when reasonably required to enable it to proceed with the Works in the manner anticipated by the parties.
      5. Under no circumstances will Brass Tacks be liable for any special, indirect or consequential losses, damages or liabilities including (without limitation) any damages resulting from or associated with losses of sales, goodwill, profits, staff time or for contractual liability to third parties or work delays whether or not any such arise out of the negligence of Brass Tacks and the Customer shall indemnify and keep indemnified Brass Tacks in respect of any such losses, damages and liabilities incurred by the Customer or any third party.
      6. Brass Tacks’ aggregate liability in respect of the Contract and any other matter arising out of the carrying out of the Works shall be limited to a sum equal to the Contract Price excluding VAT.
      7. Brass Tacks shall not be liable for a shortage in delivery unless a claim for the same is notified to Brass Tacks in writing within 7 days of delivery. Brass Tacks shall not be liable for any alleged failure to deliver Goods or provide any Services hereunder unless a claim for the same is notified to Brass Tacks in writing within 14 days of Brass Tacks submitting its earliest account, claim or invoice therefor.
      8. Brass Tacks shall not be responsible for non-performance in whole or part of its obligations nor under any liability under the Contract if such non-performance or liability is due to any cause beyond the control of Brass Tacks (or its sub-contractors) including, without limitation, act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest.
      9. Nothing in this clause shall operate so as to exclude Brass Tacks’ liability for death or personal injury arising out of its negligence.
      10. Each foregoing sub-clause of this clause shall constitute a separate and severable agreement. The provisions of this clause 13 shall continue in effect notwithstanding the termination, completion or any negligence or actions constituting fundamental breach of contract or any other matter which might otherwise cause the Contract to become ineffective.
      11. The provisions of this clause shall operate to protect every servant, agent and sub-contractor of Brass Tacks and Brass Tacks shall be deemed to be trustee for itself and such servants, agents and sub-contractors so as to make them parties hereto for the purposes of this clause 13 only.
  14. Termination And Cancellation
    1. If the Customer, being an individual(s), shall make an offer to make any arrangement or composition with creditors or if any bankruptcy petition or order shall be presented or made against him or any of them or; if the Customer, being a limited company, any resolution or petition to wind up the Customer (other than for the purposes of a solvent reconstruction or amalgamation) or for an administration order in respect of the Customer shall be passed or presented, or if a receiver of the property undertaking or assets (or any part thereof) of the Customer shall be appointed or if any analogous procedure shall be taken in respect of the Customer if any jurisdiction or if the Customer shall commit any breach of its obligations hereunder, then, and in any such case (and without prejudice to any other right or remedy of Brass Tacks and without prejudice to any accrued or continuing rights of Brass Tacks) Brass Tacks may forthwith:
      1. suspend or determine the Contract or any unfulfilled part thereof and postpone any delivery or completion dates; and
      2. stop any Goods in transit.
    2. If Brass Tacks shall terminate the Contract clause 14.1 or if the Customer repudiates or seeks to cancel the Contract (and if Brass Tacks shall accept such repudiation or cancellation) then, and in any such case, the Customer will be liable to pay to Brass Tacks a sum calculated as follows:
      1. the price of all labour provided and materials manufactured or purchased up to the date of cancellation (charged at Brass Tacks’ prevailing rates); and
      2. a charge equal to 40% of the balance of the Contract Price after deducting sums already paid in respect of it and the sum (if any) payable under sub-clause 14.2.1. Such charge shall be liquidated damages being an estimate of Brass Tacks’ irrecoverable overheads and loss of profit.
  15. General
    1. The Contract shall form the entire agreement between the parties and supersedes any previous agreement and (save so far as expressly preserved by the Contract) representations oral or otherwise made by either of the parties. In the case of any conflict between the Conditions and the Contract the latter shall prevail. The Customer warrants that it has not relied on any representation made by Brass Tacks in entering into the Contract.
    2. Brass Tacks’ employees and agents are not authorised to make representations or enter into any binding obligations for Brass Tacks concerning the Works unless confirmed by Brass Tacks in writing.
    3. Failure by either party at any time to enforce any right, claim or provision of the Contract shall not be a waiver of such right, claim or provision.
    4. Brass Tacks may correct, without liability, any typographical, clerical or other error in any sales literature, price list, Estimate, Contract, invoice or any other document.
    5. Brass Tacks may perform any of its obligations hereunder by independent contractors and may assign the benefit of the Contract. Save as aforesaid the Contract shall not be assignable.
    6. All notices given by either party under the Contract or pursuant to it shall be in writing and given to the other party at its address shown in the Contract or at such other address as that party may have nominated in writing for that purpose. All notices may be served by personal delivery, first class registered or recorded delivery post or by facsimile transmission. Any notice given by post shall be deemed to be received by the party to whom it was given 48 hours after posting (excluding Saturdays, Sundays and UK bank and public holidays). Notices given by facsimile transmission shall be deemed to be given 1 hour after transmission thereof.
    7. The Contract shall be construed according to the laws of England. The Customer irrevocably agrees for the exclusive benefit of Brass Tacks to submit any dispute hereunder to the jurisdiction of the courts of England but nothing herein shall prevent Brass Tacks from taking proceedings against the Customer in any other court of competent jurisdiction.