Terms and Conditions of Trade
1. Definitions
1.1. “Contractor” means CUBE Construction Group Ltd, its successors and assigns
or any person acting on behalf of and with the authority of CUBE Construction
Group Ltd.
1.2. “Client” means the person/s ordering the Works/Equipment as specified in any
invoice, document or order, and if there is more than one
Client is a reference to each Client jointly and severally.
1.3. “Works” means all Works or Materials supplied by the Contractor to the Client at
the Client’s request from time to time (where the context so permits the terms
‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4. “Equipment” means all Equipment including any accessories supplied on hire by
the Contractor to the Client (and where the context so permits shall include any
supply of Works). The Equipment shall be as described on the invoices,
quotation, authority to hire, or any other work authorisation form provided by the
Contractor to the Client.
1.5. “Price” means the Price payable for the Works and/or Equipment hire as agreed
between the Contractor and the Client in accordance with clause 6 below.
1.6. “VAT” means Valued Added Tax (VAT) a tax imposed under section 7 of the
Value Added Tax Act, Cap. 87 of Barbados.
2. Acceptance
2.1. The Client is taken to have exclusively accepted and is immediately bound,
jointly and severally, by these terms and conditions if the Client places an order
for or accepts delivery of any Works/Equipment.
2.2. These terms and conditions may only be amended with the consent of both
parties in writing and shall prevail to the extent of any inconsistency with any
other document or agreement between the Client and the Contractor.
2.3. The Client accepts and acknowledges that any information supplied to the Client
by the Contractor for the purposes of providing a quotation, remains the property
of the Contractor and must not be forwarded to any other party in order for that
party to submit a quotation/tender for works. In the event that the Client fails to
comply with this clause, the Contractor reserves the right to charge the Client for
time taken to prepare the quotation and for any information and/or
documentation supplied.
2.4. The Client acknowledges that the supply of Works/Materials/Equipment on
credit shall not take effect until the Client has completed a credit application with
the Contractor and it has been approved with a credit limit established for the
account.
2.5. In the event that the supply of Works/Materials/Equipment request exceeds the
Client's credit limit and/or the account exceeds the payment terms, the
Contractor reserves the right to refuse delivery2.6. Any proposed change to the Scope of Works requested by the Client must be
made in writing to the Contractor. Additional charges may apply (in accordance
with clause 6.2).
3. Electronic Transactions Acts
3.1. Electronic signatures shall be deemed to be accepted by either party providing
that the parties have complied with Section 8 of the Electronic Transactions Act,
Cap. 308B of Barbados, or any other applicable provisions of that Act or any
Regulations referred to in that Act.
4. Change in Control
4.1. The Client shall give the Contractor not less than fourteen (14) days prior written
notice of any proposed change of ownership of the Client and/or any other
change in the Client’s details (including but not limited to, changes in the Client’s
name, address, contact phone or fax number/s, or business practice). The Client
shall be liable for any loss incurred by the Contractor as a result of the Client’s
failure to comply with this clause.
5. Quotations/Estimates/Scope of Works
5.1. The Client accepts and acknowledges that the Contractor’s quotation or
estimate includes solely the Scope of Works expressed and described therein.
Whilst the Contractor has taken all reasonable care in the preparation of the
quotation/estimate, the Client accepts that additional Works may be required
and will be charged as a variation in accordance with clause 6.2.
5.2. It is the Client’s responsibility to ensure that the description of the Scope of
Works on the Contractor’s quotation/estimate is correct and complete (including,
but not limited to, product selection, methodology of the Works, quality and
appearance of the finished products) and that all other project specifics are
expressly included, and to notify the Contractor of any errors and/or omissions
before acceptance of the quotation/estimate.
5.3. Preliminary site inspections shall be made by the Contractor in order to provide
the Client with a quotation/estimate. In the event that restricted site access,
furnishings, and/or other obstacles affect the Contractor’s ability to provide an
accurate quotation/estimate, the Client accepts that additional charges may
apply (in accordance with clause 6.2) subject to final site inspection and
measurement.
5.4. The Contractor’s quotation/estimate is prepared on the basis that all Works shall
be undertaken during the Contractor’s normal working hours. In the event that
the Client requires the Contractor to work outside normal business hours
(including, but not limited to, extended hours, weekends and/or public holidays),
then the Contractor reserves the right to charge the Client additional labour
costs agreed upon in the quotation, variation or any other from provided to the
Client by the Contractor (penalty rates will apply), unless otherwise agreed
between the Contractor and the Client.
5.5. The Contractor reserves the right to withdraw or retract a quotation/estimate and
the provision of the Works before such time as the quotation/estimate has been
accepted by the Client and the Works have commenced.
6. Price and Payment
6.1. At the Contractor’s sole discretion the Price shall be either(a) as indicated on invoices provided by the Contractor to the Client in respect of
Works performed or Materials/Equipment supplied; or
(b) the Contractor’s estimated Price (subject to clause 6.2) which shall not be
deemed binding upon the Contractor, as the actual Price can only be determined
upon completion of the Works; or
(c) the Contractor’s quoted Price (subject to clause 6.2) which shall be binding
upon the Contractor provided that the Client shall accept the Contractor’s
quotation in writing within thirty (30) days.
6.2. The Contractor reserves the right to change the Price:
(a) if a variation to the Works/Equipment which are to be supplied is requested;
or
(b) if a variation to the Works originally scheduled (including any applicable
plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or
unidentifiable difficulties (including, but not limited to, poor weather conditions,
limitations to accessing the site, availability of machinery, safety considerations,
prerequisite work by any third party not being completed, obscured building
defects, change of design, hard rock barriers below the surface, iron reinforcing
rods in concrete, or hidden pipes and wiring in walls etc) which are only
discovered on commencement of the Works; or
(d) in the event of delays outside of the Contractor’s control; or
(e) in the event of increases to the Contractor in the cost of labour or materials
which are beyond the Contractor’s control.
6.3. Variations will be charged on the basis of the Contractor’s quotation and will be
shown as variations on the invoice. The Client shall be required to respond to
any variation submitted by the Contractor within ten (10) working days. Failure to
do so will entitle the Contractor to add the cost of the variation to the Price.
Payment for all variations must be made in full at their time of completion.
6.4. At the Contractor’s sole discretion, a deposit of fifty percent (50%) of the price
for labour only jobs and seventy percent (70%) for labour and materials inclusive
jobs under Ten Thousand Dollars ($10,000.00) may be required. For projects
valued over BBD $10,000.00 + VAT a payment schedule will be issued outlining
mobilisation and breakdown of stage payments as per project cash flow
demands based on project plan.
6.5. Time for payment for the Works/Equipment being of the essence, the Price will
be payable by the Client on the date/s determined by the Contractor, which may
be:
(a) on delivery of the Materials/Equipment; or
(b) before delivery of the Materials/Equipment; or
(c) on completion of the Works; or
(d) by way of progress payments in accordance with the Contractor’s specified
progress payment schedule. Such progress payment claims may include the
reasonable value of authorised variations and the value of any Materials
delivered to the site but not yet installed; or
(e) the date specified on any invoice or other form as being the date for
payment; or (f) failing any notice to the contrary, the date which is seven (7) days following
the date of any invoice given to the Client by the Contractor.
6.6. Payment may be made by cash, cheque, bank cheque, electronic/on-line
banking, or by any other method as agreed to between the Client and the
Contractor.
6.7. The Client shall not be entitled to set off against, or deduct from the Price, any
sums owed or claimed to be owed to the Client by the Contractor nor to withhold
payment of any invoice because part of that invoice is in dispute.
6.8. Unless otherwise stated the Price does not include VAT. In addition to the Price
the Client must pay to the Contractor an amount equal to any VAT the
Contractor must pay for any supply of Works/Equipment by the Contractor under
this or any other agreement. The Client must pay VAT, without deduction or set
off of any other amounts, at the same time and on the same basis as the Client
pays the Price. In addition, the Client must pay any other taxes and duties that
may be applicable in addition to the Price except where they are expressly
included in the Price.
7. Delivery
7.1. The Client shall advise the Contractor of all colour, materials, fixtures and fittings
selected (including, but not limited to, tiles, carpet etc) within five (5) days of the
commencement of the Works (unless otherwise agreed). Failure to do so may
result in time delays and additional charges.
7.2. Subject to clause 7.3 it is the Contractor’s responsibility to ensure that the
Works start as soon as it is reasonably possible.
7.3. The Works commencement date will be put back and/or the completion date
extended by whatever time is reasonable in the event that the Contractor claims
an extension of time (by giving the Client written notice) where completion is
delayed by an event beyond the Contractor’s control, including but not limited to
any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Contractor that the site is ready.
Any delays due to the Client’s failure in accordance with this clause 7.2, or due
to incorrect, inappropriate, missing or damaged materials supplied by the Client,
may result in additional charges in accordance with clause 6.2
7.4. Delivery of the Materials/Equipment is taken to occur at the time that the
Contractor (or the Contractor’s nominated carrier) delivers the
Materials/Equipment to the Client’s nominated address even if the Client is not
present at the address.
7.5. At the Contractor’s sole discretion, the cost of delivery is either included in the
Price or is in addition to the Price.
7.6. The Client must take delivery by receipt or collection of the Materials/Equipment
whenever either is tendered for delivery. In the event that
the Client is unable to take delivery of the Materials/Equipment as arranged then
the Contractor shall be entitled to charge a reasonable fee for redelivery and/or
storage of the Materials/Equipment.7.7. The Contractor may deliver the Works/Equipment by separate instalments. Each
separate instalment shall be invoiced and paid in accordance with the provisions
in these terms and conditions.
7.8. Any time or date given by the Contractor to the Client is an estimate only. The
Contractor shall not be liable for any loss or damage whatsoever due to failure
by the Contractor to deliver the Works/Equipment (or any part of them) promptly
or at all, where due to circumstances beyond the reasonable control of the
Contractor.
8. Risk
8.1. If the Contractor retains ownership of the Materials under clause 14 then;
(a) where the Contractor is supplying Materials only, all risk for the Materials
shall immediately pass to the Client on delivery and the Client must insure the
Materials on or before delivery;
(b) where the Contractor is to both supply and install Materials then the
Contractor shall maintain a contract works insurance policy until the Works are
completed. Upon completion of the Works all risk for the Works shall
immediately pass to the Client.
8.2. Notwithstanding the provisions of clause 8.1 if the Client specifically requests
the Contractor to leave Materials outside the Contractor’s premises for collection
or to deliver the Materials to an unattended location then such materials shall
always be left at sole risk of the Client and it shall be the Client’s responsibility to
ensure the Materials are insured adequately or at all. In the event that such
Materials are lost, damaged or destroyed then replacement of the Materials shall
be at the Client’s expense.
8.3. Where the Contractor is required to install the Materials the Client warrants that
the structure of the premises or equipment in or upon which these Materials are
to be installed or erected is sound and will sustain the installation and work
incidental thereto and the Contractor shall not be liable for any claims, demands,
losses, damages, costs and expenses howsoever caused or arising in
connection with the installation and work incidental thereto.
8.4. Where the Client has supplied Materials for the Contractor to complete the
Works, the Client acknowledges that he accepts responsibility for the suitability
of purpose, quality and any faults inherent in the Materials. The Contractor shall
not be responsible for any defects in the Works, any loss or damage to the
Materials (or any part thereof), howsoever arising from the use of Materials
supplied by the Client.
8.5. The Client acknowledges that the Contractor is only responsible for parts that
are replaced by the Contractor and that in the event that other parts/Materials,
subsequently fail, the Client agrees to indemnify the Contractor against any loss
or damage to the Materials, or caused by the Materials, or any part thereof
howsoever arising.
8.6. The Client acknowledges that Materials (including but not limited to paint,
timber, granite, tiles & concrete) supplied may:
(a) exhibit variations in shade, colour, texture, surface, finish, markings and may
contain natural fissures, occlusions, lines, indentations and may fade or change
colour over time; and (b)expand, contract or distort as a result of exposure to heat, cold, weather; and
(c)mark or stain if exposed to certain substances; and
(d)be damaged or disfigured by impact or scratching.
8.7. While every effort will be taken by the Contractor to match colour or grain of
product, the Contractor will take no responsibility for any variation of grain of
timber, granite and other natural products between existing
structures/installations or sale samples and the final product.
8.8. The Contractor shall be indemnified from any damage that may be caused
during the removal of existing fittings in preparation for the installation of the
Materials.
8.9. The Client acknowledges that Materials used on roofs move, expand, and
contract over time due to environmental conditions. Whilst all care shall be taken
by the Contractor when attempting to rectify roof leaks, the Contractor cannot
guarantee that leaks will not re-occur unless the Contractor replaces the entire
roof.
8.10. The Contractor shall be entitled to rely on the accuracy of any plans,
specifications and other information provided by the Client. The Client
acknowledges and agrees that in the event that any of this information provided
by the Client is inaccurate, the Contractor accepts no responsibility for any loss,
damages, or costs however resulting from these inaccurate plans, specifications
or other information.
8.11. It shall be the Client’s responsibility to arrange for all other licensed tradesmen
as required, unless otherwise agreed between the Contractor and the Client at
that time of the quotation.
8.12. The Client agrees to indemnify the Contractor from any damage caused to
the Contractor’s Works by any other tradesmen during or after the provision of
Works.
8.12. The Contractor shall accept no responsibility for work undertaken by any third
party contractor employed by the Client. If the Client believes that they have any
claim in relation to works undertaken by that third party then said claim must be
made against the third party contractor in the first instance. Any delays or
damages incurred by the Contractor as a result of any action or inaction by the
Client’s sub-contractor shall be the Client’s responsibility.
8.13. Where the Contractor gives advice or recommendations to the Client, or the
Client’s agent, with specific instructions regarding the use of the Materials or the
scope of the Works, and such advice or recommendations are not acted upon,
then the Contractor shall require the Client, or the Client’s agent, to authorise the
commencement of the Works in writing. The Contractor shall not be liable in any
way whatsoever for any damages or losses that occur after any subsequent
commencement of the Works.
8.14. Any advice, recommendation, information, assistance or service provided by
the Contractor in relation to Materials or Works supplied is given in good faith, is
based on the Contractor’s own knowledge and experience and shall be
accepted without liability on the part of the Contractor and it shall be the
responsibility of the Client to confirm the accuracy and reliability of the same inlight of the use to which the Client makes or intends to make of the Materials or
Works.
9. Third Party Subcontractors
9.1. The Contractor’s sub-contractor must at the expense of the sub-contractor
obtain and maintain for the duration of this contract the following:
(a) all necessary statutory workers’ compensation insurance against any liability,
loss, claim or proceeding whatsoever arising by virtue of any Statute relating to
workers’ compensation by any person employed by the sub-contractor in or
about the execution of the contract works in respect of whom the sub-contractor
may be or become liable, whether employed by the sub-contractor or not (and
otherwise comply with all statutory workers compensation requirements); and
(b) a valid and enforceable public liability insurance policy against liability to third
persons or in respect of the property of third persons in an amount satisfactory
to the Contractor; and
(c) a valid and enforceable professional indemnity insurance policy to cover the
sub-contractor and the sub-contractor’s employees and workers.
9.2. Any such claims subject to this contract in respect of third party sub-contractors
engaged by the Contractor must be made direct to the subcontractor
in the first instance with notification also to the Contractor.
10. Access
10.1. The Client shall ensure that the Contractor has clear and free access to the
work site at all times to enable them to undertake the Works. The Contractor
shall not be liable for any loss or damage to the site (including, without limitation,
damage to pathways, driveways and concreted, paved or grassed areas, ceiling
tiles and panels, face brickwork and rendered masonry services) unless due to
the negligence of the Contractor.
11. Underground/Hidden Mains and Services
11.1. Prior to the Contractor commencing any work the Client must advise the
Contractor of the precise location of all underground/hidden mains/ services on
the site and clearly mark the same. The mains and services the Client must
identify include, but are not limited to, electrical services, gas services, sewer
services, pumping services, sewer connections, sewer sludge mains, water
mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains,
and any other services that may be on site.
11.2. Whilst the Contractor will take all care to avoid damage to any
underground/hidden services the Client agrees to indemnify the Contractor in
respect of any liability claims, loss, damage, costs and fines as a result of
damage to services not precisely located and notified as per clause 11.1.
12. Surplus Materials
12.1. Unless otherwise stated elsewhere in this contract;
(a) only suitable new Materials will be used;
(b) demolished Materials remain the Client’s property; and
(c) Materials which the Contractor brings to the site which are surplus remain the
property of the Contractor.
13. Compliance with Laws
13.1. The Client and the Contractor shall comply with the provisions of all statutes,
regulations and by laws of government, local and other public authorities that
may be applicable to the Works.
13.2. The Client shall obtain (at the expense of the Client) all licenses, approvals,
applications and permits that may be required for the Works, which are not
included in the project documents provided by the Contractor.
13.3. The Client agrees that the site will comply with any work health and safety laws
relating to building/construction sites and any other relevant safety standards or
legislation.
14. Title to Materials
14.1. The Contractor and the Client agree that ownership of the Materials shall not
pass until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all of its other obligations to the Contractor.
14.2. Receipt by the Contractor of any form of payment other than cash shall not be
deemed to be payment until that form of payment has been honoured, cleared or
recognised.
14.3. It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with
clause 14.1 that the Client is only a bailee of the Materials and unless the
Materials have become fixtures must return the Materials to the Contractor on
request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust
for the Contractor and must pay to the Contractor the proceeds of any insurance
in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by the Contractor shall be
sufficient evidence of the Contractor’s rights to receive the insurance proceeds
direct from the insurer without the need for any person dealing with the
Contractor to make further enquiries.
(d) the Client must not sell, dispose, or otherwise part with possession of the
Materials other than in the ordinary course of business and for market value. If
the Client sells, disposes or parts with possession of the Materials then the
Client must hold the proceeds of any such act on trust for the Contractor and
must pay or deliver the proceeds to the Contractor on demand.
(e) the Client should not convert or process the Materials or intermix them with
other goods but if the Client does so then the Client holds the resulting product
on trust for the benefit of the Contractor and must sell, dispose of or return the
resulting product to the Contractor as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises
the Contractor to enter any premises where the Contractor believes the
Materials are kept and recover possession of the Materials.
(g) the Contractor may recover possession of any Materials in transit whether or
not delivery has occurred.
(h) the Client shall not charge or grant an encumbrance over the Materials nor
grant nor otherwise give away any interest in the Materials while they remain the
property of the Contractor.(i) the Contractor may commence proceedings to recover the Price of the
Materials sold notwithstanding that ownership of the Materials has not passed to
the Client.
15. Defects, Warranties and Returns, Consumer Guarantees, Cap. 326E (CGA)
15.1. The Client must inspect all Materials/Equipment on delivery (or the Works on
completion) and must within seven (7) days of delivery notify the Contractor in
writing of any evident defect/damage, shortage in quantity, or failure to comply
with the description or quote. The Client must notify any other alleged defect in
the Materials/Works/Equipment as soon as reasonably possible after any such
defect becomes evident. Upon such notification, the Client must allow the
Contractor to inspect the Materials/Equipment or to review the Works provided.
15.2. Under applicable Laws of Barbados (including, without limitation the CGA),
certain statutory implied guarantees and warranties (including, without limitation
the statutory guarantees under the CGA) may be implied into these terms and
conditions (Non-Excluded Guarantees).
15.3. The Contractor acknowledges that nothing in these terms and conditions
purports to modify or exclude the Non-Excluded Guarantees.
15.4. Except as expressly set out in these terms and conditions or in respect of the
Non-Excluded Guarantees, the Contractor makes no warranties or other
representations under these terms and conditions including but not limited to the
quality or suitability of the Materials/Works/Equipment. The Contractor’s liability
in respect of these warranties is limited to the fullest extent permitted by law.
15.5. If the Client is a consumer within the meaning of the CGA, the Contractor’s
liability is limited to the extent permitted by CGA.
15.6. If the Contractor is required to replace any Materials under this clause or the
CGA, but is unable to do so, the Contractor may refund any money the Client
has paid for the Materials.
15.7. If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying
the Works under this clause or the CGA, but is unable to do
so, then the Contractor may refund any money the Client has paid for the Works
but only to the extent that such refund shall take into account the value of Works
and Materials which have been provided to the Client which were not defective.
15.8. If the Client is not a consumer within the meaning of the CGA, the Contractor’s
liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the
Client by the Contractor at the Contractor’s sole discretion;
(b) limited to any warranty to which the Contractor is entitled, if the Contractor
did not manufacture the Materials;
(c) otherwise negated absolutely.
15.9. Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) the Contractor has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that
cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were
delivered as is possible.15.10. Notwithstanding clauses 15.1 to 15.9 but subject to the CGA, the Contractor
shall not be liable for any defect or damage which may be
caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they
were designed;
(c) the Client continuing to use any Materials after any defect became apparent
or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without the
Contractor’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the
Contractor;
(f) fair wear and tear, any accident, or act of God.
15.11. The Contractor may in its absolute discretion accept non-defective Materials
for return in which case the Contractor may require the Client to pay handling
fees of up to twenty percent (20%) of the value of the returned Materials plus
any freight costs.
15.12. Notwithstanding anything contained in this clause if the Contractor is required
by a law to accept a return then the Contractor will only accept a return on the
conditions imposed by that law.
16. Intellectual Property
16.1. Where the Contractor has designed, drawn, written plans or a schedule of
Works, or created any Materials/Equipment for the Client, then the copyright in
all such designs, drawings, documents, plans, schedules and products shall
remain vested in the Contractor, and shall only be used by the Client at the
Contractor’s discretion.
16.2. The Client warrants that all designs, specifications or instructions given to the
Contractor will not cause the Contractor to infringe any patent, registered design
or trademark in the execution of the Client’s order and the Client agrees to
indemnify the Contractor against any action taken by a third party against the
Contractor in respect of any such infringement.
16.3. The Client agrees that the Contractor may (at no cost) use for the purposes of
marketing or entry into any competition, any documents, designs, drawings,
plans or Materials/Equipment which the Contractor has created for the Client.
17. Default and Consequences of Default
17.1. Interest on overdue invoices shall accrue daily from the date when payment
becomes due, until the date of payment, at a rate of two and a half per cent
(2.5%) per calendar month (and at the Contractor’s sole discretion such interest
shall compound monthly at such a rate) after as well as before any judgment.
17.2. If the Client owes the Contractor any money the Client shall indemnify the
Contractor from and against all costs and disbursements incurred by the
Contractor in recovering the debt (including but not limited to internal
administration fees, legal costs on a solicitor and own client basis, the
Contractor’s contract default fee, and bank dishonour fees).
17.3. Further to any other rights or remedies the Contractor may have under this
contract, if a Client has made payment to the Contractor by credit card, and thetransaction is subsequently reversed, the Client shall be liable for the amount of
the reversed transaction, in addition to any further costs incurred by the
Contractor under this clause 17 where it can be proven that such reversal is
found to be illegal, fraudulent or in contravention to the Client’s obligations under
this agreement.
17.4. Without prejudice to any other remedies the Contractor may have, if at any
time the Client is in breach of any obligation (including those relating to
payment) under these terms and conditions the Contractor may suspend or
terminate the supply of Works/Equipment to the Client. The Contractor will not
be liable to the Client for any loss or damage the Client suffers because the
Contractor has exercised its rights under this clause.
17.5. Without prejudice to the Contractor’s other remedies at law the Contractor shall
be entitled to cancel all or any part of any order of the Client which remains
unfulfilled and all amounts owing to the Contractor shall, whether or not due for
payment, become immediately payable if:
(a) any money payable to the Contractor becomes overdue, or in the
Contractor’s opinion the Client will be unable to make a payment when it falls
due;
(b) the Client becomes insolvent or bankrupt, convenes a meeting with its
creditors or proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Client or any asset of the Client.
18. Cancellation
18.1. The Contractor may cancel any contract to which these terms and conditions
apply or cancel delivery of Works/Equipment at any time before the Works are
commenced (or the Materials/Equipment are due to be delivered) by giving
written notice to the Client. On giving such notice the Contractor shall repay to
the Client any sums paid in respect of the Price, less any amounts owing by the
Client to the Contractor for Works already performed or Materials/Equipment
already provided. The Contractor shall not be liable for any loss or damage
whatsoever arising from such cancellation.
18.2. In the event that the Client cancels the delivery of Works/Equipment the Client
shall be liable for any and all loss incurred (whether direct or indirect) by the
Contractor as a direct result of the cancellation (including, but not limited to, any
loss of profits).
18.3. Cancellation of orders for Materials/Equipment made to the Client’s
specifications, or for non-stock list items, will definitely not be accepted once
production has commenced, or an order has been placed.
19. Dispute Resolution
19.1. If a dispute arises between the parties to this contract then either party shall
send to the other party a notice of dispute in writing adequately identifying and
providing details of the dispute. Within fourteen (14) days after service of a
notice of dispute, the parties shall confer at least once, to attempt to resolve the
dispute. At any such conference each party shall be represented by a person
having authority to agree to a resolution of the dispute. In the event that thedispute cannot be so resolved either party may by further notice in writing
delivered by hand or sent by certified mail to the other party refer such dispute to
arbitration. Any arbitration shall be:
(a) referred to and finally resolved by arbitration administered by the Arbitration
and Mediation Court of the Caribbean (“AMCC”) in accordance with the
Arbitration Rules of the Arbitration and Mediation Court of the Caribbean
(“AMCC Rules”), which Rules are deemed to be incorporated by reference into
this clause.
(b)The Tribunal shall consist of one arbitrator.
(c)The seat, or legal place, of arbitration shall be Barbados.
(b)The language to be used in the arbitral proceedings shall be English.
(d)The governing law of the contract shall be the substantive law of Barbados.
20. Equipment Hire
20.1. Equipment shall at all times remain the property of the Contractor and is
returnable on demand by the Contractor. In the event that Equipment is not
returned to the Contractor in the condition in which it was delivered the
Contractor retains the right to charge the Client the full cost of repairing the
Equipment. In the event that Equipment is not returned at all the Contractor shall
have right to charge the Client the full cost of replacing the Equipment.
20.2. The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign
the benefit of the Equipment nor be entitled to a lien over
the Equipment.
(b) not alter or make any additions to the Equipment including but without
limitation altering, make any additions to, defacing or erasing any identifying
mark, plate or number on or in the Equipment or in any other manner interfere
with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in
good order as delivered, and shall comply with any maintenance schedule as
advised by the Contractor to the Client.
20.3. The Client accepts full responsibility for the safekeeping of the Equipment and
the Client agrees to insure, or self-insure, the Contractor’s interest in the
Equipment and agrees to indemnify the Contractor against physical loss or
damage including, but not limited to, the perils of accident, fire, theft and
burglary and all other usual risks and will affect adequate Public Liability
Insurance covering any loss, damage or injury to property or persons arising out
of the use of the Equipment. Further, the Client will not use the Equipment nor
permit it to be used in such a manner as would permit an insurer to decline any
claim.
21. General
21.1. The failure by either party to enforce any provision of these terms and
conditions shall not be treated as a waiver of that provision, nor shall it affect
that party’s right to subsequently enforce that provision. If any provision of these
terms and conditions shall be invalid, void, illegal or unenforceable the validity,
existence, legality and enforceability of the remaining provisions shall not be
affected, prejudiced or impaired.21.2. These terms and conditions and any contract to which they apply shall be
governed by the laws of Barbados, the country in which the Contractor has its
principal place of business and are subject to the jurisdiction of the Barbados
Courts.
21.3. The Client accepts full responsibility for and shall keep the Contractor
indemnified against all liability in respect of all actions, proceedings, claims,
damages, costs and expenses in respect of any death or injury to any person,
damage to property, or otherwise, arising (either directly or indirectly) from the
Works/Materials supplied, except as regulated by law.
21.4. Subject to clause 15 the Contractor shall be under no liability whatsoever to
the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by
the Contractor of these terms and conditions (alternatively the Contractor’s
liability shall be limited to damages which under no circumstances shall exceed
the Price of the Works/Equipment on hire).
21.5. The Contractor may license and/or assign all or any part of its rights and/or
obligations under this contract without the Client’s consent.
21.6. The Client cannot license or assign without the written approval of the
Contractor.
21.7. The Contractor may sub-contract all or any part of its rights and/or obligations
under this contract with the written consent of the Client, which shall not be
unreasonably withheld. Where the Contractor elects to sub-contract out any part
of the Works, it shall not be relieved from any liability or obligation under this
contract by doing so. Furthermore, the Client agrees and accepts that it has no
authority to give any instruction to any of the Contractor’s sub-contractors
without the authority of the Contractor.
21.8. The Client agrees that the Contractor may amend these terms and conditions
at any time by notifying the Client in writing. These changes shall be deemed to
take effect from the date on which the Client accepts such changes, or otherwise
at such time as the Client makes a further request for the Contractor to provide
Works/Equipment to the Client.
21.9. Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock-out, industrial action, fire, flood, storm or other event
beyond the reasonable control of either party.
21.10. Both parties warrant that they have the power to enter into this agreement
and have obtained all necessary authorizations to allow them to do so, they are
not insolvent, and that this agreement creates binding and valid legal obligations
on them.