Construction Supplement for Terms & Conditions of Sale

    Schenck Process UK Ltd

    1. Definitions and Interpretation
      1. These Supplementary Conditions only apply insofar as and to the extent that the Contract is one governed by the terms of the Construction Act. Where the Contract is a construction contract for the purposes of the aforesaid Act then the terms contained in these Supplementary Conditions apply in priority to any other terms in the Terms & Conditions of Sale, Special Conditions, Order or Order Acknowledgment howsoever which are relevant to the obligations of application for payment, timing of payment, payment notices and withholding notices as regulated by the aforesaid Act.
      2. Save where the contrary is provided, expressions used in these Supplementary Conditions that are prefixed with a capital letter have the same meaning as in the Terms & Conditions of Sale.
      3. The following words which begin with capital letters in these Supplementary Conditions have the precise meanings set out below:
        "Application Date" means the 25th day of each month, or such other dates as may be specified in the Special Conditions.
        "Construction Act" means the Housing Grants, Construction and Regeneration Act 1996 (as amended).
        "Co-obligors" means jointly the Customer and one or more third parties who are jointly and severally liable for the obligations of the Customer under the Contract as set out in detail in the Special Conditions.
        "Interim Applications" has the meaning ascribed to it in clause 3.1.
        "Superior Contract" means any contract entered into or to be entered into between the Customer and any person (a "Superior Contractor") for the manufacture and/or supply of goods/materials of which the Equipment and/or Services to be carried out or supplied under the Contract form part.

    2. The Purchase Price
      1. The Purchase Price is as set out in the Company’s Special Conditions or such other sum as should become payable in accordance with the Terms & Conditions of Sale.

    3. Interim Applications for Payment
      1. The Company shall submit applications for payment ("Interim Applications") to be received by the Customer by the relevant Application Date.
      2. Each Interim Application shall include the value of the Equipment and/or Services provided and/or delivered to Site by the Company up to and including the relevant Application Date, and shall:
        1. include a full breakdown of the value of Equipment and/or Services covered by the application; and
        2. include any additional costs so incurred payable in accordance with the Terms & Conditions of Sale;
        3. include details of any variations which the Company has been instructed to carry out in accordance with clause 7 of the Terms & Conditions of Sale together with a breakdown of the amounts applied for in respect of each such variation (if any); and
        4. be accompanied by such supporting documentation and information as the Customer may reasonably require.
        5. where the Company is registered for VAT, be accompanied by a VAT invoice in respect of the amount the Company considers to be due.
      3. The amount due to the Company in respect of each payment shall be the Purchase Price together with any additional amounts to be paid by the Customer in accordance with clauses 7 and 8 of the Terms & Conditions of Sale for the Equipment and/or Services provided by the Company up to the relevant Application Date less all sums previously due or paid by the Customer to the Company.

    4. Timing of Payment
      1. Subject to the Company having submitted an Interim Application in accordance with clause 3 and without prejudice to clause 8 of the Terms & Conditions of Sale payment shall fall due to the Company on the Final Date.
      2. In the event that a Superior Contractor becomes insolvent (as defined in Section 113 of the Construction Act) the Company shall be entitled to terminate the Contract with immediate effect. In the event of such termination, the Company shall be entitled to claim any and all costs (including but not limited to loss of profits) incurred in relation to such termination including but not limited to costs that the Company has already incurred in manufacturing or ordering the Equipment or any Deliverables or parts thereof which cannot otherwise be used. The Company shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer in this respect.
      3. Without prejudice to any right the Customer may have to challenge the amount applied for in any Interim Application submitted by the Company at any time, not later than 5 days after payment falls due to the Company or would have fallen due had the Company properly carried out its obligations under this Order, the Customer shall give to the Company written notice specifying the amount (if any) of the payment to be made and the basis on which that amount was calculated. If the Customer does not issue any such written notice then the amount of the Interim Application to be paid by the Customer shall, subject to any notice under clause 4.5, be the payment stated as due in the Interim Application.
      4. Subject to clause 4.5, if the Customer intends to pay less than any sum due under the Contract the Customer must give to the Company a notice in writing not later than 1 day before the Final Date specifying the amount the Customer considers to be due on the date the notice is served and the basis on which that sum was calculated.
      5. Clause 4.4 only applies where the Contract constitutes a "construction contract" as defined in Section 104 of the Construction Act but not further or otherwise.

    5. Joint and Several Liability
      1. Co-obligors shall be jointly and severally liable for their respective obligations and liabilities arising under the Contract unless otherwise set out in the Special Conditions.
      2. The Company may take action against, or release or compromise the liability of, any Co-obligor, or grant time or other indulgence, without affecting the liability of any other Co-obligor.