These terms and conditions shall form part of all contracts by Clearpower Limited (hereinafter called “Clearpower”) with any person, customer or organisation (hereinafter called “the Client”).
Definitions and Interpretations
In these Conditions:
‘ACCEPTANCE’ means the acceptance of the boiler unit by to the Client upon receipt of the Commissioning Certificate and the date of acceptance shall be the date on the Commissioning Certificate;
‘COMMISSIONING CERTIFICATE’ means the certificate issued by Clearpower confirming the completion of testing and commissioning of the boiler unit as specified in Schedule 1;
‘CLIENT’ means the person, customer or organisation who accepts a quotation for the sale and installation of the Goods or whose order for the Goods is accepted by the Clearpower;
‘DELIVERABLES’ means those items to be provided to the Client together with the Commissioning Certificate as set out in Schedule 1;
‘GOODS’ means the goods, equipment and other items including the installation of the goods or any parts for them and services specified in the Scope of Work in Schedule 1 to which these conditions are annexed;
‘CONDITIONS’ means these standard terms and conditions as amended from time to time in accordance with clause;
‘CONTRACT’ means the contract for the purchase of the Goods in accordance with the Conditions contained herein;
CONTRACT DOCUMENTS” means the Order, the Schedules and the Conditions;
“ORDER” means the Client's order for the Goods, and the Client's written acceptance of Clearpower's quotation including these Conditions;
“SCOPE OF WORKS” means the extent of the equipment supply, installation and commissioning works and services to be provided by Clearpower to the Client as set out in Schedule 1.
In these Conditions, the following rules apply: (i) the headings in these Conditions are inserted for convenience only and shall not affect its construction. (ii) A reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it. (iii) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. (iv) Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular. (v) Any schedule to these Conditions forms part of (and is incorporated into) these Conditions. (vi) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
For the avoidance of doubt, any terms and conditions attached to a purchase order or otherwise (whether generated by the Client or Clearpower) shall not apply to the provision of these Goods and the Contract Documents shall take precedence over such terms and conditions at all times. Any terms and conditions included in the Client's communications shall be deemed solely for the convenience of the Client and no such term or condition shall be binding on Clearpower.
Fees and Payment
The fee payable shall be the fee specified in the Contract Documents and shall be subject to VAT where applicable. The fee shall be payable at the frequency indicated in the Contract Documents and the Client shall make payment of each invoice within thirty days of receipt of the invoice.
Invoice amounts shall not be subject to any set off, counterclaim, discount, deduction or withholding except as agreed in writing by the Clearpower or required by law. Clearpower shall be entitled to charge interest on all overdue payments at a rate of 8 percentage points per annum above the European Central Bank’s reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate. Such interest shall accrue on a monthly basis from the due date until actual payment of the overdue amount, whether before or after judgment.
In the event the Goods include equipment made to order, Clearpower shall not place an order for those made to order Goods with the equipment manufacturer until this Contract is signed and the Client complies with its obligations under the payment schedule in Schedule 2. Late receipt of Invoice 1 set out in Schedule 2 will result in the order for the Goods being demoted in the production schedule thus incurring delays in the delivery schedule. Clearpower reserves the right to cancel an order in the event of non-receipt of Invoice 1.
Scope of Work
Clearpower shall provide the Goods in accordance with the Scope of Work. Clearpower shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under the Contract.
Clearpower shall make no material alteration or addition to or omission from the approved design during construction without the prior written consent of the Client. However, Clearpower may in an emergency make an alteration, addition or omission to the approved design without the Client’s knowledge and consent but shall inform the Client without delay thereafter.
The Client represents to the Clearpower that it is the owner or is in authorised control of the property to be entered by the Clearpower in performance of the Agreement and that no conditions exist with the equipment or site, which will prevent or hinder the Clearpower from completing its performances hereunder.
It is the responsibility of the Client to provide a work site that is both safe and ready for use. If the Client, after notice, fails to provide a safe work site, the Clearpower may refuse to start work or may withdraw its employees from work started. Notices hereunder may be made orally to the Client in order to lessen any delays in the commencement of works.
In the event that the Client fails to provide a site that is safe, accessible and ready for use, and this results in a delay in work being carried out, the Client shall be liable for any costs involved in such delay occurring.
Delivery, Title and Risk
Clearpower will make every effort to deliver the Goods on time (or, if no date has been agreed, within a reasonable time from the date of Order Confirmation) but Clearpower cannot be held responsible and shall bear no liability for delays due to (i) weather or other circumstances beyond its control, (ii) due to the Client’s failure provide Clearpower with any instructions that are relevant to the supply of the Goods or (iii) or any delays or failures in those out of scope responsibilities as may be listed in Schedule 1 which Clearpower is relying upon in order to meet its Scope of Work. Delivery schedules stated upon acceptance of an Order or otherwise are given as an indication only and shall not be binding.
Delivery shall be in accordance with the Incoterm 2010 as specified in Schedule 2.
Title to the Goods shall pass to the Client once Clearpower has received payment in full. Notwithstanding the retention of title in the Goods, the risk in the Goods shall pass to you on delivery. If before title to the Goods passes to the Client, the Client becomes subject to an insolvency event as listed in clause 10 Termination, and until the purchase price and all other charges payable to Clearpower hereunder have been received in full, then, without limiting any other right or remedy Clearpower may have:
Clearpower retains and the Client hereby grants a security interest in the Goods delivered and any proceeds therefrom;
The Client agrees to promptly execute any documents requested by Clearpower to perfect and protect such security interest;
Clearpower may at any time require the Client to deliver up all Goods in its possession; and/or
if the Client fails to do so promptly, Clearpower may enter any of your premises or of any third party where the Goods are stored in order to recover them.
Clearpower may exercise any or all remedies provided under all applicable statutes or laws enacted in the jurisdiction within which it seeks to enforce its rights under this Contract.
Testing Acceptance and Handover
Where Clearpower is providing a boiler unit under the Scope of Works, Clearpower shall carry out testing on the boiler unit specified in Schedule 1. Following testing of the boiler and subject to the correction of any defect that arises during testing, Clearpower shall then issue a Commissioning Certificate to the Client and the date of such Commissioning Certificate shall be the date of Acceptance of the boiler by the Client.
Where applicable to a particular project, Clearpower shall notify the Client when it has achieved practical completion of the project. Within five (5) working days of receipt of such notification, the Client shall provide a complete list of material snags. Clearpower shall remedy each item on the snag list subject to such snags being limited to the Goods and the Clearpower Scope of Works. Once the snag list is completed, Clearpower shall issue a Handover Certificate which shall be evidence of final completion of the project.
Nothing in these Conditions limits or excludes our liability to you for death or personal injury caused by our negligence or fraud or fraudulent misrepresentation or any other liability which cannot be excluded by law.
In no event shall either party be liable to the other for any special, economic or consequential damages or losses, in each case whether direct or indirect, such as, but not limited to any economic loss (including loss of revenues, profits, data, contracts, business or anticipated savings, or any loss of goodwill or reputation, however caused even if foreseeable.
Subject to Clause 9.1 and 9.2, our total aggregate liability to you in respect of any loss or damage suffered by you and arising out of or in connection with these Conditions or the Contract, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the fees set out in Schedule 2.
We shall not be liable to you in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
any damage to property arising out of, or in connection with, the Goods, to the extent that damage is attributable to sub-standard site conditions or improper installation, commissioning operation and/or maintenance of any kind where same is not carried out by suitably qualified and accredited persons in accordance with applicable local and international standards and codes of practice and in accordance with the requirements and instructions set out in the operation and maintenance manual and any other instructions provided by us to you from time to time;
any claim for death, personal injury or damage to property arising out of, or in connection with, the Goods to the extent that the claim is attributable to your acts or omissions.
The Client shall indemnify Clearpower against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Clearpower arising out of or in connection with any claim made against Clearpower by a third party for death, personal injury or damage to property arising out of, or in connection with, the Goods, to the extent that the claim is attributable to the Client’s acts or omissions.
While the Clearpower may provide assistance to the client during a grant application process, the Client is solely responsible for the grant application process and for providing all relevant and requested information to Clearpower or the grants body. Clearpower accepts no responsibility in this regard and in the event of a grant being refused by the grant body, the client is still responsible for all payments due under this contract to the Clearpower.
Either Party shall be entitled summarily to terminate this Agreement without notice and without any compensation being paid to the other Party if:
a Party shall at any time be guilty of any serious or persistent misconduct or any material breach or non-observance of any of the terms and conditions herein contained which has not been remedied within thirty (30) calendar days of receipt of written notice to do so; or
a Party being a company ceases to carry on business in the normal course or enters into liquidation, whether compulsory or voluntary other than for the purposes of amalgamation or reconstruction, or compounds with its creditors generally or has a receiver or liquidator appointed over all or any of its assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution for winding up or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due within the meaning of the Companies Act 2014 as amended or events analogous to any of the foregoing occur.
Without limiting Clearpower’s other rights or remedies and notwithstanding the provisions of clause 10.1, Clearpower may suspend provision of the Goods under the Contract or any other contract between us and you if you become subject to any of the events listed in clause 10.1, or Clearpower reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment and may terminate this contract without warning in the event of late payment or non-payment of sums due under the contract.
On termination of the Contract for any reason, the Client shall immediately pay all of Clearpower outstanding unpaid invoices and interest and shall pay all sums due under the Agreement up to the date of termination and any equipment committed costs. By way of example and without limitation, if a boiler has been ordered and under manufacture for a Client by the date of termination, the Client shall pay the full price of the boiler.
Termination of the Contract, however arising, shall not affect either Party’s rights, remedies, obligations and liabilities that have accrued as at termination.
Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Force majeure events shall suspend full or partial performance of the Agreement with respect to the obligations that cannot consequently be fulfilled and shall exempt the Parties from all associated liability. In case of Force Majeure, the affected Party shall give notice of the event to the other Party and the time schedule for the performance of the Agreement shall be automatically extended by the period of time as reasonably necessary for the Parties to overcome the consequences of such event.
If the performance in whole or part of a party’s obligation is delayed or prevented by reason of Force Majeure for a period exceeding three (3) months, this Party may at any time without further liability to the other, request termination of the Agreement or any part thereof. Force Majeure shall not prevent or delay the payment of any sum due or to be due by either Party.
Either party may submit written variations or modifications for consideration to the other party (a Variation Request). Clearpower shall respond to a Variation Request from the Client with a proposal with details of the effect of the proposal in terms of changes to the Scope of Work, fees, schedule dates and other matters. If the Client wishes to proceed, the parties shall agree and execute a written variation confirming acceptance of the variations in terms of Scope of Work, fee, schedule and other matters (the Variation Order). The Parties cannot proceed with the variation until the Variation Order is evidenced in writing and signed by the authorised representative of each Party.
Each party shall at its own cost obtain and keep in force all insurance/and or bonds required by law and shall whenever requested by the other party provide up to date certificates signed by an insurance broker approved by the relevant authorities in accordance with applicable insurance regulations of its jurisdiction. Where Goods are delivered to a Client site and prior to Acceptance by the Client, the Client shall ensure all such Goods are adequately insured. In addition, Clearpower shall maintain Professional indemnity insurance with a limit of cover of not less than €5m per claim or series of claims arising from one event and unlimited in the aggregate and product liability insurance with a limit of cover of not less than €6.5m per claim or series of claims arising from one event in the annual aggregate.
No delay or abstention on the part of one or the other of the Parties in the exercising of its rights shall constitute a waiver of all or any of the rights that it holds under the Agreement or could be considered as such and, in all cases, cannot harm any right whatsoever of this Party to the Agreement.
If one or several of the clauses of the Agreement are found to be invalid or declared as such pursuant to a law, regulations or a final decision of a competent court, the other clauses shall retain their force and their scope.
The parties agree that no amendment to the terms of this Agreement shall be made except by agreement in writing and signed by both parties.
The Client shall not assign, delegate, sub-contract or otherwise transfer this Agreement without prior written consent of Clearpower. Clearpower may assign, novate or otherwise transfer this Agreement at any time.
This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous undertakings and agreements, written, oral or implied between the Supplier and the Clearpower and any terms proposed by the Supplier.
This Agreement may be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Agreement.
This Contract may not be construed as creating or constituting a partnership or joint-venture or by creating an agency relationship between the Parties. Each Party shall act on its own account as an independent professional and neither shall be the agent of the other. The Contract does not create an association and does not create an agency relationship or confer agency by either Party on the other. Neither Party may make or give commitments for and on behalf of the other without the prior written consent of the other. Each Party shall have sole responsibility for its own actions, representations, commitments, services, products and personnel.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient as set out in the Agreement or such other address in Ireland as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally or by registered post, facsimile transmission or e-mail and shall be deemed to have been served if by hand when delivered, if by registered post 48 hours after posting or if by facsimile or e-mail when dispatched.
The Parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the Senior Management of the Parties shall be the preferred dispute resolution methodology. If Senior Management cannot resolve the dispute within 30 days of first notification of the dispute, the Parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure.
The mediator will be chosen by agreement between the parties. In default of agreement, a mediator will be nominated by CEDR. These provisions shall apply also to the nomination (whether by agreement or otherwise) of any replacement mediator where the original mediator (or any replacement) is conflicted from acting as mediator, or has been removed by Order of the High Court, or refuses to act, or is incapable of acting or dies.
Any dispute not resolved in accordance with the above steps shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Dublin, Ireland. The language of the arbitration shall be English.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Ireland.