Terms of Service:
Supply and Installation of Tanks and Ancillary Equipment
Merkland Tank Limited: Terms and Conditions for the Supply and Installation of
Tanks and Ancillary Equipment
The Customer’s attention is particularly drawn to the provisions of clause 11 (Limitation of liability).
The following definitions apply in these Conditions:
Additional Charges: the additional charges payable by the Customer pursuant to clause 8.2(d).
Charges: the charges payable by the Customer for the supply of the Goods or Services or Goods and Services in accordance with clause 9.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods or Services or Goods and Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods or Services or Goods and Services from the Supplier.
Customer Default: has the meaning set out in clause 8.2.
Deliverables: any operator’s manuals produced and supplied by the manufacturer of the Goods.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given in clause 15.
Goods: the particular fuel tank and/or fuel tank ancillary equipment (including but not limited to fuel dispensers and fuel management systems) set out in the Order together with the Deliverables, if relevant.
Goods Specification: any specification for the Goods, including any relevant plans or drawings (including but not limited to manufacturer’s design drawings), that are set out in the Quotation or subsequently agreed by the parties.
Order: the Customer’s order for the supply of Goods or Services or Goods and Services, as set out in the Customer’s purchase order form or, if there is no such purchase order form, comprised in the Customer’s acceptance by email of the Quotation.
Quotation: the Supplier’s final written quotation to the Customer for the Goods or Services or Goods and Services which shall be relevant to these Conditions notwithstanding that, from the face of it, its validity has expired.
Services: the Goods installation services, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services set out in the Quotation.
Supplier: Merkland Tank Limited, a company registered in Scotland with registered number SC282068.
Supplier Equipment: has the meaning given in clause 8.1(g).
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services from the Supplier in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acknowledgment of the Order (which may be by email) or the Goods are delivered to the Delivery Location or the Supplier commences the Services at the Customer’s site (whichever is earlier) at which point and on which date the Contract shall come into existence. The Services will commence on the date agreed between the parties.
2.3 Any photographs, descriptive matter or advertising issued by the Supplier, and any photographs, descriptions or illustrations contained in the Supplier’s brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or that are implied by law, trade custom, practice or course of dealing.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.6 These Conditions do not apply to the decommissioning of tanks by Supplier. ‘Supplier’s Terms and Conditions for the supply of services (other than tank installation)’ shall apply to such tank decommissioning services.
The Supplier reserves the right to amend the Goods Specification if required by any applicable law or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the type and quantity of the Goods (including the code number of the Goods, where applicable); and;
(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to take delivery of the Goods within three business days of the Supplier notifying the Customer that the Goods are ready for delivery, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third business day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
5. Quality of Goods and Services
5.1 The Goods are supplied by the Supplier to the Customer but are manufactured by a third In the event that the Goods do not conform to the Goods Specification or there are material defects in design, material or workmanship with respect to the Goods, the Customer shall be entitled, in conjunction with the Supplier, to the benefit of any warranty or guarantee as is given by the manufacturer to the Supplier and/or to the Customer, for such duration and subject to such limitations as relate to the manufacturer’s warranty. The Customer shall only be afforded such remedies for breach of the manufacturer’s warranty or damage to the Goods before delivery is completed as are afforded to it or to the Supplier by the manufacturer.
5.2 Notwithstanding clause 1, neither the Supplier nor the manufacturer shall have any liability for any defects in the Goods or any breach of manufacturer’s warranty if:
(a) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to use or maintenance of the Goods whether contained in the Deliverables or otherwise or (if there are none) good trade practice regarding the same;
(b) the defect arises as a result of the Supplier or the manufacturer following any Goods Specification which originated from the Customer;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the Customer stores materials in the relevant Goods for which the Goods were not intended;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.3 The Supplier warrants to the Customer that it will perform the Services with reasonable skill and care, in a good and workmanlike manner and in accordance with the Service Specification in all material In the event the Services do not conform to this warranty, Supplier’s sole liability and Customer’s exclusive remedy in any cause of action alleging breach of this warranty or any claim related to a defect in Services provided by Supplier is expressly limited to the re-performance of such Services or a refund of the amount paid for the non-conforming Services, at Supplier’s option. In any event, Supplier’s liability for non-conforming Services will not exceed the cost of the non-conforming Services.
5.4 Claims made under the warranty in clause 3 must be notified to Supplier by Customer in writing within one month of completion of the Services.
5.5 The Supplier shall not be liable for defective Services pursuant to clause 3 if the defect arises as a result of Customer Default.
5.6 Where the Services (or part of the Services) are for the installation of a fuel management system, unless the Quotation expressly provides otherwise, such Services shall only involve physically attaching the system to the fuel tank and shall not include any of the following in respect of the system: (i) any wiring or other electrics’ work; (ii) connecting the system to the Customer’s information technology infrastructure; or (iii) launching and running the system’s software.
5.7 Except as referred to in clause 5.1 and as provided for in clause 5.3, Supplier makes no other warranty, express or implied, including but not limited to any warranty of merchantability or fitness for any particular purpose, and the Supplier shall have no other warranty liability to the Customer. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
5.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery or deemed delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and all Services comprised in the Order.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the Customer’s ongoing financial
6.4 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up the Goods and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, to recover them.
7.1 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in in the Quotation or the Order or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.2 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in either or both the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services including allowing the Supplier to perform the Services on the agreed start date continuously without Customer imposed downtime;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information as the Supplier may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services as set out in the Service Specification and/or the Quotation;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) grant the Supplier any authorisation it may request from the Customer to have Supplier owned or hired plant and equipment delivered to and stored at the site and to have Supplier vehicles parked there, all as necessary for the performance of the Services (such plant, equipment and vehicles being Supplier Equipment).
(h) keep all Supplier Equipment at the Customer’s site in safe custody at its own risk, maintain the Supplier Equipment in good condition while it is at site, and not dispose of or use the Supplier Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations or conditions noted in the Quotation.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations, as set out in this clause 8.2;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default including but not limited to additional third-party plant or equipment hire costs and additional sub-contractor charges; and
(d) where any additional hours or days are expended by Supplier operatives at site or Supplier plant or equipment remains at site for additional hours or days due to Customer Default, the Customer shall pay the Supplier the Additional Charges, calculated as set out in clause 9.2, for those additional hours or days as well as the Charges.
9.1 The Charges for the Goods or Services or Goods and Services shall be as set out in the Quotation.
9.2 Additional Charges shall be calculated as follows:
(a) the Additional Charges in respect of Supplier operatives and/or Supplier plant or equipment shall be calculated in accordance with the Supplier’s daily fee rate or hourly rate, as relevant, specified in the Quotation or any agreed Schedule of Rates, failing which its prevailing daily fee rate or hourly rate;
(b) the operatives’ day is 7.00 am to 3.30 pm Monday to Thursday and 7.00 am to 2.30 pm on Friday;
(c) the Supplier shall be entitled to charge the hourly overtime rate specified in the Quotation or any agreed Schedule of Rates, failing which its prevailing hourly overtime rate for any additional hours worked outside the hours referred to in clause 9.2(b).
9.3 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials (including but not limited to steel) and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 The Supplier shall invoice the Customer in respect of the Goods or Services or Goods and Services as set out in the Quotation. This may involve payment for the Goods in advance of delivery.
9.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Intellectual property rights
10.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 Where relevant, the Supplier grants to the Customer a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Deliverables to maintain the assets on which the Services have been performed.
11. Limitation of liability THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence).
11.2 Nothing in this clause 11 shall limit the Customer’s payment obligations under the Contract.
11.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 11B of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.4 Subject to clauses 11.3 and 11.5, the Supplier’s total liability to the Customer shall not exceed the total Charges payable to the Supplier under the relevant Contract.
11.5 Subject to clause 11.3, the Supplier shall have no liability for the following types of loss which are hereby wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
11.6 This clause 11 shall survive termination of the Contract.
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(d) (both inclusive), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13. Consequences of termination
13.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall return all of the Goods, Supplier Equipment and any Deliverables which have not been fully paid If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (Force Majeure Event).
16.1 Assignation and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
16.2 Notices
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; or
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting.
(c) This clause 16.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 16.3, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
16.4 Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation based on any statement in the Contract.
16.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
16.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.
16.10 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.