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COPRISYSTEMS CONDITIONS OF TRADE

Customer’s attention is drawn in particular to Contractor’s rights in clause 10 and clause 13.

1. Definitions

In these terms (“Terms”) the following words shall have the meanings attributed to them below:

1. “Buildings”
shall mean the prefabricated building systems supplied by Contractor as more particularly described in the Specification;
2. “Contract”
shall mean any contract entered into between Contractor and Customer for the provision of the works;
3. “Contractor”
shall mean CopriSystems Limited (company number 02350205);
4. “Contractor’s Offer”
shall mean a quotation, proposal or other offer in writing for the Works submitted by Contractor to Customer;
5. “Customer”
shall mean, as the case may be, prospective customers for the Works and purchasers entering into Contracts;
6. “Deliverables”
shall mean the products of the Design Services (including the Provisional Designs and Final Design);
7. “Design Services”
shall mean the provision of any services relating to the design of Buildings for Customer, as detailed in clause 10;
8. “Final Design”
shall mean the final version of the Provisional Design (created by Contractor as part of its Design Services) that has been approved and signed by Customer pursuant to clause 10.5;
9. “Insolvency Event”
shall mean any of the events described in clauses 15.1.2 through to 15.1.11 inclusive.
10. “Intellectual Property Rights”
shall mean patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
11. “Provisional Design”
shall mean a design produced by Contractor as part of its Design Services to Customer prior to its approval as a Final Design;
12. “Site”
shall mean Customer locations to which Buildings are to be delivered and at which installation services are to be provided;
13. “Site Survey”
shall mean the service offered by Contractor to take information and measurements of the Site prior to the commencement of the Design Services or Works (as applicable);
14. “Quote”
shall mean the quotation document issued by Contractor to Customer;
15. “Specification”
shall mean the detailed description of the Buildings as provided to Customer by Contractor;
16. “Subcontractor”
shall mean the business contractor appointed by Contractor to carry out installation of the Buildings;
17. “Works”
shall mean the supply, delivery and installation of the Buildings including groundworks and supply of the Design Services where applicable.

2. Application of Conditions

  1. These Terms and the relevant Quote(s) shall apply to and govern Contractor’s Offers and Contracts relating to the Works to be provided to Customers by Contractor. In the event of conflict between these Terms and a Quote, the latter shall prevail. The Terms and Quote shall be the only provisions which apply to Contractor’s Offer and a Contract and all representations or other statements made by Contractor with respect to the Works prior to Contract effective date are expressly excluded.
  2. Unless otherwise agreed in writing in the Quote, a Contract shall come into effect upon Customer’s receipt of Contractor’s order confirmation email referencing Customer’s order. Orders, once submitted by Customer, may not be cancelled or withdrawn. If Customer submits an order which purports to vary or amend the Terms or Quote it shall represent a counter offer which may be accepted or rejected by Contractor in which event the Contract shall come into effect on submission of Contractor’s order acknowledgement.
  3. A Quote is only valid for the period stated on it.

3. PRICES AND PAYMENT

  1. Prices for the Works shall remain fixed for the duration of a Contract subject to adjustment by amounts which are sufficient to compensate Contractor for the additional costs incurred:
    1. in accommodating features which Contractor could not have reasonably foreseen on Site Survey; or
    2. if delivery or installation is delayed due to non-availability of Site, or due to interruptions in the installation programme.
  2. Price increases in clause 3.1 are payable:
    1. if the price increase is added to the overall price of the Works, according to clause 3.3; or
    2. if invoiced separately, due upon receipt of Contractor’s invoice for the same, final date for payment 28 days’ thereafter;.
  3. Subject to clause 3.4 and clause 3.5, and unless otherwise agreed in writing, the price for the Works shall become due and be payable as follows:
    1. 35% upon issue of Contractor’s order confirmation email, due upon receipt of Contractor’s invoice for the same, final date for payment 28 days’ thereafter;
    2. 50% on delivery of Buildings, due upon receipt of Contractor’s invoice for the same, final date for payment 28 days’ thereafter; and
    3. 15% on installation completion, due upon receipt of Contractor’s invoice for the same, final date for payment 28 days’ thereafter.
  4. Where Contractor is providing Design Services, the payment terms for the Design Services shall be as specified on the Quote. Where the payment terms for the Design Services are not specified in the Quote, the price for the Design Services shall become due upon completion of the Design Services and are payable within 28 days of Contractor’s invoice. Where any Works have been or will be carried out in addition to the Design Services, these remain payable under clause 3.2 and/or clause 3.3 (as applicable).
  5. This clause 3.5 applies only if the Contract is a ‘construction contract’ within the meaning of s104 of the Housing Grants, Construction and Regeneration Act 1996. Customer shall pay the amount stated in Contractor’s invoice by the final date for payment unless it gives notice in accordance with this clause 3.5 (a “Pay Less Notice”). If Customer intends to pay less than the sum set out in Contractor’s invoice then it shall no later than 7 days before the final date for payment give to Contractor notice of that intention, specifying the sum that Customer considers due at the date of the invoice and the basis upon which this is calculated. Where a Pay Less Notice is given, the payment shall still be made on or before the final date for payment and shall not be less than that stated in the Pay Less Notice.
  6. Contractor may suspend the Works if an invoice is not paid in accordance with clause 3 by giving Customer not less than 7 days’ notice stating the ground(s) on which it intends to suspend performance. On payment of the outstanding invoice, Contractor will resume the suspended Works. In the event this causes Contractor to incur remobilisation costs, Contractor may invoice these costs immediately and such invoice will be payable by Customer within 28 days of receipt.
  7. Contractor shall be entitled to interest on overdue payments. Interest shall be calculated and paid for the period during which the delayed payment remains outstanding inclusive of due date and actual date of payment. Interest under this clause will accrue each day at 2.5% a year above the Bank of England’s base rate from time to time, but at 2.5% a year for any period when that base rate is below 0%.

4. Delivery and Installation

  1. Delivery of the Building shall be made to, and installation shall take place at, the Site. Delivery date and installation completion dates are estimated only. Contractor shall make good faith efforts to deliver the Buildings and complete installation by quoted estimated dates. The Building installation period shall be subject to extension if affected by unavailability of Site or due to interruptions to the installation programme including those described in clause 13.

5. Title and Ownership

  1. Buildings shall remain the property of Contractor until title transfers pursuant to clause 5.3. Customer shall not use the Buildings, except with the consent in writing of Contractor, until installation completion. Without prejudice to its other rights, Contractor shall be entitled to enter upon Site and to dismantle and remove Buildings:
    1. if Customer fails to make payment of any overdue instalment of the price for a period of 14 days from date of service by Contractor of a notice in writing demanding payment; or
    2. immediately, if Customer becomes subject to an Insolvency Event. Contractor’s above rights shall be without prejudice to all other rights and remedies ii may have with respect to overdue payments.
  2. Risk in the Buildings shall pass from Contractor to Customer on completion of Building installation.
  3. Title in the Buildings shall pass from Contractor to Customer on the later to occur of:
    1. the date of completion of Building installation; and
    2. Contractor receiving payment in full of the full price of the Works.

6. Contractor’s Obligations

  1. Contractor shall:
    1. deliver Buildings to Site and carry out installation, using the services of its Subcontractor, with appropriate levels of care and diligence; and
    2. comply (including an obligation to ensure that Subcontractor complies) with all reasonable directions of Customer concerning use of the Site and in particular with any security and health and safety requirements of Customer notified in writing.

7. Customer’s Obligations

  1. Customer shall:
    1. unless otherwise agreed in writing with Contractor, apply for and obtain planning consent, building regulation and byelaw approval and such other permits and licenses as may be necessary to enable the Works to commence on the quoted installation commencement date, and advise Contractor as to progress with such applications in a timely manner;
    2. ensure that Site is available to Contractor and its Subcontractor, suitably cleared and with all facilities required by Contractor to enable installation of the Buildings to commence with effect from quoted installation commencement date and afford Contractor and Subcontractor uninterrupted access to and use of Site throughout the period of installation;
    3. indemnify and hold Contractor harmless against any failure to fulfil its obligations under clause 7.1.2 above;
    4. comply with Contractor and Subcontractor’s safety and security requirements for the Works;
    5. pay the purchase price and any increases in the price promptly in accordance with clause 3 above;
    6. cooperate fully and in good faith with Contractor to enable the carrying out of the Works, including but not limited to providing accurate information, responding to requests in a timely manner and granting access as required; and
    7. warrant that all information and measurements it provides to Contractor is accurate, complete and not misleading. Customer acknowledges that the information and measurements it provides may be relied upon by Contractor and Contractor will not be liable for any errors resulting from the information or measurements being inaccurate, incomplete or misleading.

8. Warranty

  1. Contractor warrants and undertakes as follows:
    1. that on delivery and installation completion dales the Buildings will comply, in all material respects, with Specification;
    2. to repair or replace (repair or replacement to be at Contractor’s discretion) any defects in the structure of the Buildings reported to Contractor within a period of 10 years from installation completion date and which are defects attributable to the use of defective materials or poor workmanship in the manufacture and/or installation of the Buildings;
    3. to replace all or any part (at Contractor’s discretion) of the fabric covers to the Buildings which fails to comply with Specification as such failures are reported to Contractor within a period of one year from date of installation completion; and
    4. if:
      1. a Building leaks within 12 months from the installation completion date;
      2. Customer notifies Contractor in writing without undue delay and in any event within 14 days of discovery of the leak; and
      3. following Contractor’s inspection, Contractor reasonably determines the leak is a result of its defective workmanship or materials and not the result of normal wear and tear, accident, use other than in accordance with the manufacturer’s or Contractor’s instructions, improper maintenance, extreme weather conditions, modifications made without Contractor’s consent or damage caused by third parties or any other cause,

      then Contractor shall remedy the defect within a reasonable time. If on inspection Contractor deems the leak is not attributable to it in accordance with clause 8.1.4(c), Contractor may invoice Customer any costs incurred by the inspection to be paid within 7 days of receipt of the invoice.

  2. Performance of the warranty in clause 8.1.2 shall be subject to Contractor’s inspection of the structure and pursuant to clause 8.1.3 shall be subject to Customer returning the defective cover and to Contractor being satisfied that the cover so returned is defective due to a failure to comply with Specification.
  3. The warranties in clauses 8.1.2 and 8.1.3 do not cover:
    1. normal wear and tear;
    2. damage caused by weather conditions which are outside the accepted levels of tolerance as identified in the Specification; and
    3. deliberate or negligent damage to the structure or fabric covers of the Building (as applicable) or defects resulting from alterations carried out on the same by any person other than Contractor or its Subcontractor.
  4. The above warranty and undertaking represents Contractor’s sole liability and Customer’s sole remedy for defects to the Works and all other express and implied representations, undertakings, conditions or guarantees with respect to the fitness for purpose or with respect to the suitability, quality and condition of the Works, including but not limited to statutory provisions, are excluded.
  5. If the Design Services are defective on delivery, Contractor may refund Customer the price of the Service or re-perform the Design Services at Contractor’s sole discretion, and this shall be Customer’s sole remedy for defects to the Design Services and all other express and implied representations, undertakings, conditions or guarantees with respect to the fitness for purpose or with respect to the suitability, quality and condition of the Design Services, including but not limited to statutory provisions, are excluded.

9. Risk and Responsibility

  1. Contractor accepts liability for all losses and damages incurred by Customer if and to the extent such losses or damages are attributable to any negligent act or omission of Contractor or Subcontractor and/or their respective directors, employees or agents in carrying out the work up to a limit of;
    1. £2,000,000 in aggregate for destruction of or damage to physical property; and
    2. the price of the Works for other losses.
  2. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
    1. death or personal injury caused by negligence;
    2. fraud or fraudulent misrepresentation; and
    3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  3. Subject to clause 9.2, Contractor wholly excludes the following types of loss suffered by Customer:
    1. loss of profits;
    2. loss of sales or business;
    3. loss of agreements or contracts;
    4. loss of anticipated savings;
    5. loss of use or corruption of software, data or information;
    6. loss of or damage to goodwill; and
    7. indirect or consequential loss.
  4. Customer accepts liability for and shall indemnify and hold Contractor and Subcontractor’s directors and employees and their respective agents harmless against all loss and/or damage incurred arising out of or resulting from any negligent act or omission or any breach of a statutory duty by Customer, its directors or employees or any agent of Customer.
  5. Customer shall be responsible for any damage or loss, including damage to any pipes, wires and conduits, which arise from performance of the Works in accordance with the Contract and shall indemnify and hold Contractor and the Subcontractor harmless against any liability for such loss and/or damage.

10. Design Services

  1. Where Contractor conducts a Site Survey for Customer:
    1. Contractor will provide Customer with a report of the survey and measurements;
    2. Contractor will be responsible for the accuracy and completeness of the report subject to clause 10.1.3;
    3. Customer will take full responsibility to ensure that any third party company contractors it uses adhere to the measurements and other material features covered by the report, and Contractor will not be liable for any errors caused by any third party company contractor’s failure to adhere to the report;
    4. Contractor may apply additional charges and/or provide an updated quote to conduct a Site Survey if:
      1. a design needs to be altered due to inaccuracies in a report provided by Customer (including via a third party) that become apparent when Contractor is carrying out the Works and/or Design Services; and/or
      2. there are any material increases in cost or volume of the materials required; and
    5. Customer accepts the risk that changes to the Site made post-survey (e.g. groundworks) may give rise to material discrepancies between the Site Survey measurements and the state of the Site. Additional costs may arise under clause 10.1.4 if a further Site Survey becomes necessary for this reason.
  2. Contractor will produce a Provisional Design prior to a Final Design for the Building following receipt of the Building’s information and measurements from Customer or completion of the Site Survey, whichever is applicable. There may be multiple versions of a Provisional Design and any Provisional Design:
    1. may include some or all of the following: description and details of the design; the Building’s floor plan; elevations; lighting plan; and list of types of parts required for the design (for example cabinets, appliances and parts);
    2. is Contractor’s interpretation based on initial information provided by Customer and is intended to be subject to further discussion before a Final Design is produced;
    3. is not suitable for implementation until it has been signed off as a Final Design in accordance with clause 10.4; and
    4. will include an approximate budget only for its implementation as Customer accepts the design is provisional and the cost of the Design Services is to be approved by Customer on approval of the Final Design.
  3. All versions of the Provisional Design and all designs, illustrations, descriptions or other items contained in either any sales literature or other material or on Contractor’s website are only intended to be for general illustrative purposes and Contractor does not represent, warrant or undertake that the Final Design will include or match anything in any such items.
  4. The Provisional Design becomes the Final Design once it is confirmed in writing by Contractor, and signed by Customer (such approval not to be unreasonably withheld or delayed), at which point:
    1. Customer confirms that the Final Design meets all of its requirements;
    2. Contractor’s Design Services are deemed completed;
    3. the design can be implemented by Contractor (with the Final Design forming the basis of any fitting and/or supply services provided by Contractor); and
    4. the Final Design supersedes and replaces all versions of the Provisional Design and all information, materials and requirements which either Party has previously communicated to each other.
  5. Once Customer has signed-off a final Provisional Design as the Final Design, Contractor shall have no liability to Customer in relation to that design except to the extent that Contractor has breached the terms of the Contract. If Customer is unsure of any aspect of the design, measurements or any technical or other aspect of the design contained in the final Provisional Design, Customer should raise a query with Contractor as soon as practicable before signing to enable Contractor to amend that final Provisional Design if reasonably necessary. Any subsequent changes (including aesthetic amendments) will be carried out at Customer’s cost, subject to the parties agreeing a further written scope of work.
  6. Unless otherwise agreed between the parties in writing, Contractor is not responsible for ensuring Customer has adequate planning permissions in place. This is the sole responsibility of Customer and Contractor will not be liable for any losses incurred as a result of Customer’s failure to obtain the appropriate planning permission.

11. INTELLECTUAL PROPERTY RIGHTS

  1. All Intellectual Property Rights in or arising out of or in connection with the Works and Design Services (other than Intellectual Property Rights in any materials provided by Customer) shall be owned by Contractor.
  2. Contractor grants to Customer, or shall procure the direct grant to Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual licence to copy the Deliverables (excluding materials provided by Customer) for the purpose of receiving and using the Design Services and/or Works and the Deliverables in its business.
  3. Customer shall not sub-license (including, but not limited to, by permitting third parties to utilise or work on the Deliverables), assign or otherwise transfer the rights granted in clause 11.2.
  4. Customer grants Contractor a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by Customer to Contractor for the term of the Contract for the purpose of carrying out the Design Services and/or Works for Customer.

12. Insurance

  1. Contractor and Customer shall each establish and maintain separate insurance against the risks and responsibilities for damage to property, and for death and personal injury in accordance with the liability they each accept in accordance with the provisions of clause 9. Contractor’s obligation shall be limited to establishing and maintaining insurance in an amount which for any one occurrence or series of occurrences having a common cause shall not exceed £2,000,000. Such insurance shall be arranged with reputable insurance companies. Each of the Parties shall, at the request of the other, produce evidence that it has established and maintains insurance in accordance with this clause.

13. SITE CONDITIONS

  1. Contractor may suspend, delay or reschedule the installation, movement or carrying out of the Works, without liability to Customer, if it determines in its sole discretion that the weather conditions are not suitable for the safe and effective installation, movement or carrying out of the Works.
  2. Without prejudice to clause 13.1, Contractor shall suspend installation of any fabric covers if wind speeds reach or exceed 15 miles per hour on any monitoring systems chosen by Contractor.
  3. In the event any Works need to be suspended, delayed, or rescheduled due to poor weather conditions, Contractor will give Customer as much notices as is reasonably practicable. Customer accepts this notice may be very short due to the uncertain nature of weather conditions.

14. Force Majeure

  1. Neither Party shall be in default due to a failure to perform or comply with its contractual obligations due to any causes beyond its reasonable control (“Force Majeure Event”) and in such event Contractor shall be entitled to suspend further performance with effect from date of service of a notice on Customer identifying the reasons which prevent continued performance. If the reasons preventing Contract performance continue for a continuous period of 90 days from the date of service of a notice, Contractor shall be entitled to terminate the Contract forthwith upon service of a further notice in writing.
  2. If a Force Majeure Event occurs and the Contract is terminated Contractor shall be entitled nevertheless to be paid for and to recover, that proportion of the purchase price attributable to the Buildings and any other costs and expenses, including those of a Subcontractor, to which Contractor has a commitment as at date of service of the notice. If a Force Majeure Event occurs and Contractor serves a termination notice, Customer shall not be liable for that part of the purchase price which relates to Works Contractor is unable to complete in accordance with the Contract. Subject as set out above on termination pursuant to this clause each Party shall be excused further performance of the Contract with effect from date of termination.

15. Termination AND SUSPENSION

  1. A Party shall be entitled to terminate the Contract immediately on written notice to the other if:
    1. the other Party commits a material breach of the Contract which, if capable of remedy, the Party in breach fails to remedy within 60 days of service of a notice setting out details of the material breach;
    2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
    3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    4. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
    5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
    7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
    8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
    9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
    10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.2 to clause 15.1.9 (inclusive);
    11. where Contractor is the terminating Party, Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
    12. in accordance with clause 14 above.
  2. During the currency of any notice served by Contractor pursuant to clause 15.1.1 above Contractor shall be entitled to suspend work performance.
  3. On termination of the Contract, Customer shall immediately pay to Contractor all of Contractor’s outstanding unpaid invoices and interest, and in respect of Works and/or Design Services supplied but for which no invoice has been submitted, Contractor shall submit an invoice, which shall be payable by Customer immediately on receipt.
  4. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, 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.
  5. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
  6. If Contractor pauses or suspends the Works at its absolute discretion due to:
    1. a request from Customer; or
    2. Contractor being unable to proceed with any part of the Works for longer than one week  due to Customer’s failure to provide any approval, decision, or any other necessary information,

    Contractor reserves the right to charge Customer a standby charge of not less than 5% of the total price of the Works under the Contract per week, invoiced weekly by Contractor to be paid by Customer within 7 days of receipt until the date the Works resume. If the total standby charges exceed the total price for the Works under the Contract, either party may terminate the Contract on 14 days’ notice without any further liability to the other party.

16. Assignment

  1. Neither Party shall be entitled to assign or transfer the Contract or its benefits or burdens except with the consent in writing of the other Party. Contractor shall be entitled to appoint and instruct the Subcontractor of its choice to carry out the Works without breach of this clause, and Customer’s consent to the Subcontractors appointment shall not be required.

17. WAIVER

  1. Any waiver or forbearance by either Party of any provision of the Contract shall not effect the right of that Party to enforce the relevant provision subsequently with respect to any separate incident or to enforce any other separate provision of the Contract.

18. Applicable Law and Disputes

  1. If the nature of the Works render this Contract a ‘construction contract’ within the meaning of s104 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) then either party may at any time refer any dispute or difference arising under this Contract to adjudication in accordance with the provisions of the Act, as amended by the Local Democracy, Economic Development and Construction Act 2009, except that the adjudicator nominating body shall be RICS.
  2. The rights and obligations of the Parties shall be governed and determined by the laws of England and Wales. Any disputes shall, subject to clause 18.1, be referred to the exclusive jurisdiction of the courts of England and Wales.

19. ENTIRE AGREEMENT

  1. The Contract and the documents referred to in these Terms constitute the entire agreement between the parties.
  2. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.