Suppliers
British Land Group's Terms & Conditions of Purchase Construction Contracts
1. Definitions and General
1.1 In these Conditions the following words and expressions shall have the following meanings:
Affiliates - at any time, any person or legal entity Controlled by, Controlling or under common Control of BL; &
BL - The British Land Company PLC;
British Land - BL and its Affiliates;
Conditions - the standard terms and conditions of purchase set out in this document including and subject to any special terms and conditions agreed in writing between British Land and the Supplier;
Contract - a contract for the sale and purchase of Goods and/or Services made pursuant to these Conditions;
Control - the ability to direct the affairs of another whether by ownership of 25% or more of the issued shares, contract or otherwise (whether directly or indirectly) and "Controlled" and "Controlling" shall be construed accordingly;
Delivery Address - the address stated in the Order;
Goods - the articles, components or raw materials to be supplied by the Supplier to British Land pursuant to the Order;
Order - any oral or written order placed by British Land for the Goods or the Services;
Services - any services of whatever nature to be performed by the Supplier;
Specifications - all specifications, drawings, sketches, models, samples, tools, designs, technical information or data and other proprietary information, written, oral or otherwise, furnished to the Supplier by British Land or on its behalf, or prepared by the Supplier in connection with the Order;
Supplier - the person, firm or company to whom any Order is addressed.
1.2 These Conditions shall apply to any Contract. They will apply in place of and prevail over any terms and conditions contained in or referred to in any documentation submitted by the Supplier or in correspondence or elsewhere and any purported provisions to the contrary shall have no effect.
2. Orders and Acceptance
2.1 An Order will become binding on the parties:
2.1.1 upon written acceptance by British Land of the Supplier's quotations; or
2.1.2 upon written acceptance of an Order placed by British Land which is not preceded by a quotation from the Supplier; or
2.1.3 upon failure by the Supplier to notify British Land that an Order placed by British Land is not acceptable within a period of 5 days of despatch of the Order by British Land.
2.2 British Land reserves the right at all times and in all circumstances to require alterations to the Specifications, delivery time or place and/or quantity specified in any Order not yet fulfilled or not completed.
2.3 Any modifications of an Order sought by the Supplier must be in writing and must be accepted in writing by an authorised representative of British Land before it shall be binding on British Land. British Land agrees to consider reasonable requests of the Suppliers to modify the Order only if such requests are in writing and relate to specific provisions of an Order but is under no obligation to accept such modifications.
2.4 The quantity, quality and description of the Goods and/or Services shall be those set out in the Order.
3. Responsibility for Packing and Delivery
3.1 Unless otherwise provided in the Order, the Supplier shall:
3.1.1 deliver the Goods Delivered Duty Paid (as defined in the Incoterms 2000) to the Delivery Address unless otherwise agreed in writing between the parties;
3.1.2 be responsible and bear the risk for the Goods until delivered and accepted at the Delivery Address regardless of the point of inspection. Title in the Goods shall pass on delivery to the Delivery Address or, if earlier, when payment is made;
3.1.3 pack and mark the Goods covered by the Order in accordance with British Land's instructions. meet carrier requirements and assure arrival at Delivery Address free of damage and deterioration; and
3.1.4 deliver the Goods between the hours of 9am and 5pm Monday to Friday or as requested by British Land. British Land accepts no responsibility for Goods delivered outside these times. If any Order is only partially fulfilled by the agreed date of delivery, then British Land reserves the right, without prejudice to any other remedy, either to accept or reject the Goods that have been delivered and in either case, to cancel the Order in respect of those that have not been delivered on time and to apportion the price accordingly.
3.2 Where delivery times have been specified in the Order, time shall be of the essence for delivery in respect of each Order. Where delivery times have not been specified, Goods must be supplied within a reasonable period. The Supplier shall promptly inform British Land if the Supplier knows or believes that:
3.2.1 any Goods specified in any Order or which British Land regularly purchases, or which British Land has placed is, or is likely to be, out of stock; or
3.2.2 the Supplier will not be, or is unlikely to be, able to deliver all or any of the Goods by the date required on the Order.
3.3 If the Goods are to be delivered by instalments, the Contract will, unless otherwise agreed by British Land in writing, be treated as a single Contract and not severable.
3.4 All delivery operatives are, where necessary or required by any applicable law or regulation, to wear adequate and suitable Personal Protective Equipment ("PPE") whilst carrying out their duties at the Delivery Address or any other British Land site.
A minimum standard of PPE shall consist of:
i) Safety Helmet conforming to BS5240 or BSEN397;
ii) Safety Footwear conforming to BS1870 Pt1 or BSEN345;and
iii) High Visibility Waistcoat conforming to BSEN472 class 2.
All PPE used in connection with this clause must at all times comply with the Personal Protective Equipment (EC Directive) Regulations 1992.
4. Price and Payment
4.1 All prices for the Goods and/or Services shall be as stated in the Order, save that if no price is stated, the price for the Goods or Services shall be the lowest price currently quoted or charged at the date of the Order by the Supplier for those Goods but in no event higher than the price most recently charged to British Land by the Supplier for those Goods and/or Services.
4.2 All prices for the Goods shall be inclusive of all charges for packaging (including containers and crating), package, carriage, insurance and delivery of the Goods to the Delivery Address and in respect of both Goods and Services inclusive of any applicable Value Added Tax and any other duties, taxes or levies other than Value Added Tax.
4.3 Once any Order has been accepted, no increase in the price for the Goods or Services may be made in relation to that order, whether on account of increased material, labour or transport costs or otherwise unless agreed in writing in advance by British Land.
4.4 British Land shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier.
4.5 Unless otherwise stated in the Order, the Supplier will invoice British Land on or after delivery of the Goods (and if relevant, after installation of the Goods) or performance of the Services by sending an invoice (and any time sheets relating to the hours of labour completed for the Services (if applicable)). Within 14 days of receipt of the invoice, British Land shall give notice of payment specifying the amount (if any) of the payment proposed to be made and the basis on which the amount was calculated. Payment shall become due upon the issue of such notice, or failing issue upon the expiry of the 14 day period referred to in this clause (the "Due Date for Payment"). The final date for payment for any sum due under the Contract shall be 60 days after the Due Date for Payment (the "Final Date for Payment").
4.6 Where British Land intends to withhold payment of some or all of a sum due under the Contract, British Land shall give written notice to the Supplier of the amount(s) which it intends to withhold and the ground(s) for such withholding (a "Notice of Intention to Withhold Payment"). A Notice of Intention to Withhold Payment must be served not later than two days before the Final Date for Payment of the sum to which the Notice of Intention to Withhold Payment refers. The notice referred to in clause 4.5 may suffice as a Notice of Intention to Withhold Payment if it complies with the requirements of this clause.
4.7 If by the Final Date for Payment, British Land fails to pay amounts due under this Contract subject always to clause 4.6, the Supplier may delay delivery of the Goods or suspend performance of the Services upon giving 21 days notice in writing to British Land of such intention and stating the grounds for such delay or suspension. The right to delay delivery of the Goods or suspend performance of the Services shall cease on payment of the amount due to the Supplier or any alternative sum as may be agreed by British Land and the Supplier.
4.8 British Land is a member of the Better Payment Practice Group and will, subject to anything contrary in these Conditions, endeavour to pay the Supplier in accordance with the principles of the Better Payment Practice Code.
4.9 Construction Industry Scheme
4.9.1 In this clause:
"the Act" means the Income and Corporation Taxes Act 1988 or any statutory amendment or modification thereof;
"Authorisation" means:
either "CIS 4" the registration card designated "CIS 4(T)" and which has an expiry date or "CIS 4(P)", in the form provided by regulations 7 and 7C of the Regulations appearing as shown in Schedule 1 of the Regulations and issued by the Inland Revenue;
or "CIS 5" or "CIS 6", the certificates in the form provided by regulation 24 of the Regulations and appearing as shown in Schedule 7 of the Regulations and issued by the Inland Revenue;
or a "certifying document" created on the Supplier's letter headed stationery, not a fax or photocopy, in the form prescribed by regulation 34 of the Regulations;
"construction operations" means those operations defined in S.567 of the Act as construction operations;
"contractor" means a person who is a contractor for the purposes of the Act and the Regulations;
"the direct cost of materials" means the direct cost to the Supplier or to any other person of materials used or to be used in carrying out the construction operations to which the contract under which the payment is made relates as provided in regulation 7 of the Regulations;
"the Regulations" means the Income Tax (Sub-Contractors in the Construction Industry) Regulations 1993 S.I. No.743 as amended by the Income Tax (Sub-Contractors in the Construction Industry) (Amendment) Regulations 1998 S.I. No.2622 or any amendment or re-making thereof;
"statutory deduction" means the deduction which is in force at the time of payment referred to in S.559(4) and (4A) of the Act;
"sub-contractor" means a person who is a sub-contractor for the purposes of the Act and the Regulations;
"voucher" means:
either a tax payment voucher in the form CIS 25 provided by regulation 7 and appearing as shown in Schedule 1 of the Regulations and issued by the Inland Revenue;
or a gross payment voucher CIS 24 in the form provided by regulation 29 and appearing as shown in Schedule 1 of the Regulations and issued by the Inland Revenue
4.9.2 If at any time up to the Final Date for Payment of any sum due, British Land becomes a "contractor", British Land shall so inform the supplier and clauses 4.9.3 to 4.9.17 shall apply.
4.9.3 British Land shall not make any payment under or pursuant to the Contract unless a valid Authorisation has been provided by the Supplier.
4.9.4 If British Land is not satisfied with the validity of the Authorisation provided by the Supplier, it shall notify the Supplier in writing of its grounds for consideration that the Authorisation is not valid.
4.9.5 Where a notification has been given under clause 4.9.4, British Land shall not make any payment under or pursuant to the Contract until:
either British Land has received an Authorisation which it considers to be valid;
or the Supplier has re-submitted the Authorisation with a letter from the Supplier's tax office, confirming that that Authorisation is valid.
4.9.6 Where the Authorisation is a CIS 4 registration card, then 7 days before the Final Date for Payment of any sum due:
(1) the Supplier shall give to British Land a statement showing the direct cost of materials to the Supplier and to any other persons to be included in the payment; and
(2) British Land shall make the statutory deduction from that part of the payment which is not in respect of the direct cost of materials as stated by the Supplier pursuant to clause 4.9.6(1).
4.9.7 Where the Supplier complies with clause 4.9.6.(1) it shall indemnify British Land against any loss or expense caused to British Land by any incorrect statement of the amount of direct cost referred to in clause 4.9.6(1).
4.9.8 Where the Supplier fails to comply with clause 4.9.6(1) or where British Land has reasonable grounds to believe that any statement provided in compliance with clause 4.9.6(1) is incorrect, British Land shall make a fair estimate of the direct cost of materials.
4.9.9 Where the Authorisation is a valid CIS 5 or CIS 6 or a certifying document British Land shall pay any amount due without making the statutory deduction.
4.9.10 Where the Authorisation is a CIS 4 but the Supplier is subsequently issued with a CIS 5 or CIS 6 by the Inland Revenue, the Supplier shall immediately inform British Land and either present the CIS 5 or CIS 6 in person to British Land or send to British Land a certifying document. Provided British Land is satisfied with the validity of the changed Authorisation, clause 4.9.9 shall thereupon apply.
4.9.11 If an Authorisation CIS 5 or CIS 6 is withdrawn by the Inland Revenue for any reason, the Supplier shall thereupon notify British Land and British Land shall make no further payments to the Supplier under or pursuant to the Contract until the Supplier provides British Land with a valid Authorisation CIS 4. After such provision clauses 4.9.6, 4.9.7 and 4.9.8 shall apply.
4.9.12 If an Authorisation CIS 5 or CIS 6 expires, British Land shall make no further payments to the Supplier under or pursuant to the Contract until the Supplier:
either shows in person to British Land an Authorisation CIS 4 and if so clauses 4.9.6, 4.9.7 and 4.9.8 shall apply;
or provides to British Land an Authorisation CIS 5 or CIS 6 or a certifying document and if so clause 4.9.9 shall apply
4.9.13 Where Authorisation CIS 4 applies and British Land has made payments to the Supplier, British Land shall within 14 days of the end of the income tax month (such income tax month ending on the 5th day of the month) in which the payment is made provide the Supplier with a copy of the CIS 25 voucher that it has sent to the Inland Revenue showing all the payments made in the tax month concerned and the total tax deducted
4.9.14 Where Authorisation CIS 6 applies and British Land has made payments to the Supplier, the Supplier shall within 14 days of the end of the income tax month in which the payment is made provide the CIS 24 voucher to British Land who shall add thereto its tax reference and send the voucher to the Inland Revenue with a copy to the Supplier.
4.9.15 Where British Land has made an error or omission in calculating the statutory deduction, it may correct the error by repayment or further deduction from payments due to the Supplier, subject only to an instruction by the Inland Revenue to British Land not to make such a correction.
4.9.16 If compliance with this clause 4.9 involves British Land or the Supplier in not complying with any other of the Terms and Conditions, then the provisions of this clause shall prevail.
4.9.17 The relevant procedures applicable under clause 20 shall apply to any dispute or difference between British Land and the Supplier as to the operation of this clause 4.9 except where the Act or the Regulations or any other Act of Parliament or statutory instrument, rule or order made under any Act of Parliament provide for some other method of resolving such dispute or difference.
5. Inspection and Rejections
5.1 If any Goods delivered or Services rendered by the Supplier are defective in materials, quality or workmanship or otherwise not in conformity with requirements or Specifications of the Order, British Land shall have the right to:
5.1.1 reject the Goods or Services and treat the Contract as discharged by the Supplier's breach and require repayment of any part of the price which has been paid. The Supplier shall bear the risk of damage to or loss of and all handling and transportation costs for defective Goods delivered; or
5.1.2 require the Supplier to supply replacement Goods or re-perform the Services in accordance with any delivery times stipulated by British Land. British Land shall be entitled to a reduction in price reflecting the reduced value attributable to non-conformance; or
5.1.3 if the Supplier fails to replace any rejected Goods or re-perform the Services or remedy the faults or defects in relation to the Services within the period specified by British Land or if British Land cancels the Order, British Land shall have the right to purchase replacement goods from another source or arrange to have the faults or defects in relation to the Services remedied by another supplier and any money paid by British Land to the Supplier in respect of the rejected Goods or Services together with any additional expenditure over and above the Order price reasonably incurred by British Land in obtaining replacement goods or remedying faults or defects in relation to the Services shall be paid by the Supplier to British Land.
The above rights shall exist notwithstanding payment or any prior inspection or test, and do not affect any rights to which British Land may be entitled at common law including but not limited to British Land's right to claim general and/or special damages by reason of the Supplier's breach.
5.2 If the Supplier fails to deliver the Goods ordered by British Land or make delivery within the period specified, the Supplier shall be liable to indemnify and reimburse British Land in full for loss of sales revenue directly or indirectly relating to the delay in delivery or failure to deliver.
6. Performance of the Services
6.1 Where the Services require or entail use or processing of goods, property or facilities of British Land, the Supplier shall satisfy itself as to their safety and suitability for the Services and unless written notice to the contrary is given to British Land before commencement of the Services, the Supplier shall be deemed to have satisfied itself accordingly.
6.2 The Supplier shall provide (unless otherwise specified in the Order) all labour, tools, equipment and materials required for performance of the Services (other than power or water) and upon completion of the Service shall leave the work site clean and tidy.
7. Warranties
7.1 The Supplier warrants that the Goods and/or Services covered by the Order will comply with the Specifications and details in the Order in relation to design, construction and quality and quantity and will comply with any applicable law, statutory requirement or regulation which may be in force at the time of delivery or performance of the Services, including, but without limitation, the Trades Descriptions Act 1968, the Health & Safety at Work Act 1974, the Consumer Safety Act 1978, the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, the Consumer Protection Act 1978 and any regulations made under any of those acts.
7.2 The Supplier also warrants that the Goods will be of satisfactory quality, of first class materials and workmanship and free from defects. The Supplier warrants that any supplies furnished under the Order that are designed by the Supplier will be fit and sufficient for the purpose intended.
7.3 The Supplier warrants that the Services will be performed with utmost care and skill, by qualified and trained personnel, and in an expeditious and workmanlike manner and under competent supervision and will be in accordance with best industry practice. The Supplier shall ensure that the Services will comply in all respects with any statutory rule or regulation which may be in force at the time when the Services are performed.
7.4 The Supplier warrants that it has all necessary consents and licences to enable it to perform its obligations under the Contract.
7.5 The warranties and remedies provided for in this Condition 7 shall be in addition to those implied by or available at law or in equity and shall continue in force notwithstanding the acceptance by British Land of all or part of the Goods or Services in respect of which such warranties and remedies are applicable.
8. Indemnity
8.1 The Supplier indemnifies and holds British Land harmless from and against any and all liability, claims, fines, losses, costs and expenses, demands and damages, resulting from or arising out of a breach of the Supplier's warranties.
8.2 The Supplier indemnifies and holds British Land harmless against all claims, liability, losses and damages due to injury to or death of any person and damage to or loss of any property arising out of breach of obligations under these Conditions, or negligent work or arising out of actual or alleged defective material or workmanship in the Goods or Services provided or out of any act or omission of the Supplier, any employee or agent of the Supplier or its sub-contractors.
9. Assignment of Performance by the Supplier
The Contract and the Order are personal to the Supplier and neither the Contract, the Order nor any part thereof may be assigned, sub-contracted, delegated or transferred in any other manner by the Supplier to a third party without British Land's prior written consent. Any such consent to sub-contracting shall not relieve the Supplier of any obligation to comply with these Conditions or the Contract. British Land shall be free to assign its rights or obligations under any Contract.
10. Termination
10.1 British Land may terminate any Contract and accordingly all performance of work under any Orders in whole or from time to time in part by written notice of termination in which event British Land's sole liability shall be to pay to the Supplier the price for Goods or Services in respect of which British Land has exercised its right of cancellation, less the Supplier's net saving of cost arising from cancellation.
10.2 British Land may immediately by written notice terminate the Contract in whole or in part if the Supplier either:
10.2.1 fails to delivery the Goods or to perform the Services at the time specified or any extension authorised by British Land in writing, or at British Land's discretion it becomes clear that the Supplier will not be able to supply the Goods or Services in accordance with the Order, or
10.2.2 is in breach of or has not observed or performed any of the other provisions of these Conditions, and if such breach, non observance or non-performance is capable of remedy and the Supplier fails to remedy such breach within 10 (ten) days after receipt from British Land of written notice calling upon it to do so.
10.3 If the Supplier becomes unable to pay its debts in the ordinary course of business, passes a resolution for winding up or has a receiver or administrator appointed over all or any of its assets, becomes insolvent (whether voluntary or involuntary), placed in liquidation, or the ownership or control of the Supplier is materially changed to British Land's detriment, British Land shall be entitled to terminate the Contract by giving written notice to this effect to the Supplier.
11. Insurance
The Supplier will at all times insure and keep himself insured with a reputable insurance company against all insurable liability in respect of the Goods and Services and without prejudice to the generality of the foregoing against all the Supplier's liabilities under Conditions 7 and 8. The Supplier will provide all assistance and advice required by British Land or British Land's insurers for the purpose of contesting or dealing with any action claim or matter arising out of the Supplier's performance of any Contract.
12. Use of British Land's Name
The Supplier shall not, without the prior written consent of British Land, in any manner publish the fact that the Supplier has furnished or contracted to furnish British Land with the Goods or Services or use the name of British Land in the Supplier's advertising or other publication.
13. Intellectual Property Rights
13.1 The Supplier warrants that the sale or use of the articles, Goods or material covered by the Order, will not infringe or contribute to the infringement of any third party intellectual property rights, and the Supplier agrees to indemnify and hold British Land harmless for any claims, liability, losses, damages, costs, fines or expenses arising from any breach of this warranty.
13.2 The Supplier also undertakes to defend any claim for any such alleged infringements which may be brought against British Land or its customers or others and to pay all expenses and fees which shall be incurred in and about defending the same.
13.3 The Supplier assigns (by way of present assignment of future rights in respect of rights not yet created) with full title guarantee all intellectual property rights created by the Supplier and/or its employees in such items or materials specifically created for British Land, to take effect immediately on their creation. Where a third party has created items or materials on behalf of the Supplier specifically for British Land the Supplier shall procure forthwith the assignment of all intellectual property rights with full title guarantee in such items or materials.
13.4 The Supplier covenants with British Land that it shall, both during and after the term of the Contract, at the request of British Land, do all such further acts and execute all such documents as may from time to time be necessary to vest all intellectual property as created in clause 13.3 above in British Land or its nominee.
14. Confidentiality
14.1 Save as is otherwise required by law or any regulatory authority, the Supplier undertakes to British Land that during the term of the Contract and thereafter it will keep secret and will not without the prior written consent of British Land disclose to any third party any confidential information relating to the business or affairs of British Land ("Confidential Information") learned by the Supplier or disclosed to the Supplier by British Land pursuant to or otherwise in connection with the Contract (except insofar as any such Confidential Information shall (otherwise than by breach of the Contract) be in the public domain) or subsequently comes lawfully into the possession of the Supplier from a third party without the imposition of any duty of confidentiality by such third party.
14.2 To the extent that it is necessary to implement the provisions of the Contract, the Supplier may disclose Confidential Information to its employees, agents or sub-contractors as may reasonably be necessary provided that before any such disclosure the Supplier shall make such persons aware of their obligations of confidentiality under the Contract and shall at all times procure compliance with such obligations of confidentiality.
15. Remedies
The rights and remedies of British Land contained or referred to in these Conditions are cumulative and not exclusive of any other rights or remedies provided by law.
16. Notices
Any notice to be given must be in writing and delivered personally, sent by first class post or facsimile transmission (with a confirmation copy sent by post). The address for service of each party shall be the registered office of that party or as otherwise notified in writing to the party giving the notice. A notice shall be deemed to have been served:
a) if personally delivered, at the time of delivery;
b) if posted, two working days after posting; and
c) if sent by facsimile, when clearly received in full.
17. Waiver
Failure by British Land to exercise or enforce any rights under these Conditions or at law shall not be deemed to be a waiver of any such right nor operate to bar its exercise or enforcement at any future time or times.
18. Severability
In case one or more of the provisions of these Conditions should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this document shall not in any way be affected or impaired by such severance and the parties shall amend these Conditions to add a new provision having an effect as near as legally permissible to the one found invalid, illegal and unenforceable.
19. Law
The Supplier and British Land can start court proceedings in England or Wales to settle any disputes arising under the Contract, and can give notice at any time of its intention to refer a dispute to adjudication under the Technology and Construction Solicitors Association Adjudication Rules (version 2.0) which are deemed incorporated by reference to this clause.