1.1. In the case of supply Orders that are in excess of €40k we will accept 50% deposit to progress the order with balance to be paid in full prior to shipping. All supply orders with a value of less than €40k will require payment in full prior to shipping. Direct Deployment and installation by Forte Pespa and/or their servants/agents require a 30% deposit of the total agreed cost.
1.2. Cleared funds must be received for the order to be processed.
1.3. If ordered online – the supply Orders will arrive as specified in the technical data documentation affirmed by client upon placement of the order.
1.4. If ordered as bespoke fabrication – the detailed specifications will need to be drafted in DWG & PDF with written confirmation from the client to proceed as detailed.
1.5. Where the Contract provides for stage payments, Forte Pespa shall be entitled to claim payment at the times and in the amounts specified in the Contract. If at any time at which payment would fail to be made under this sub-clause there shall be any material non-conformance with the specification detailed in the Contract due to the fault of Forte Pespa in or affecting any portion of the Works in respect of which such payment is claimed, the Customer shall have the right to retain that part of such a payment specific to the alleged non-conformance but no other. Any sum retained by the Customer under this sub-clause shall be paid to Forte Pespa upon the said non-conformance being made good. In this case, Forte Pespa will only be liable for our own element / mis-specification and not any other elements (usually there is integrated trades, we wont take responsibility if there is an integration issue with another trade i.e. the other subcontractors costs)
1.6. Where part of the Contract is placed on a time and material basis Forte Pespa shall be entitled to claim payment at the times and in the manner stated in the Contract. Claims for payment shall be based on the time and material rates contained in the Contract.
1.7. Invoices in respect of all charges and payments due under the Contract shall be rendered in accordance with the procedures detailed in the Contract. Payment shall be due within thirty (30) days of receipt by the Customer of a correct invoice.
1.8. The Customer reserves the right to withhold payment against any invoice which is not in accordance with the Contract and shall, on receipt of such invoice notify Forte Pespa accordingly in writing within 5 working days
1.9. In the event that payment is unduly delayed, Forte Pespa shall have the right to defer further work on the Contract until such payment is received, subject to its giving fourteen (14) days notice, in writing, to the Customer of its intention so to do.
If Forte Pespa exercises its rights under sub-clause 1.9 to defer work on the Contract, the Customer shall grant to Forte Pespa an extension of time for completion.
Pursuant to the European Communities (Late Payment in Commercial Transactions) Regulations 2012 – SI 580 of 2012 the Company is entitled to charge interest on late payments. Forte Pespa will apply interest at the rate of 8 percentage points above the European Central Bank’s reference rate
2.1 All changes to design of products, systems, profiles, components and installation details will be reviewed on a case by case basis. Where impact is caused on the production of materials or changes requiring the materials to be remanufactured – the customer will be liable for the cost incurred.
2.2 All design changes in drafting, calculations will be treated as rework with the pre-agreed rate for each component
2.3 The Customer may at any time prior to the date so specified in the Programme of Work require Forte Pespa to undertake any reasonable Variation. In the event of a Variation being required, the Customer shall make a written request to Forte Pespa to state in writing the effect such proposed Variation will have on the Works, the warranty and the Programme of Work and the cost thereof. Forte Pespa shall furnish the necessary details to include a price quotation within fourteen (14) days from receipt of the Customer’s request or such other period as is reasonable in the circumstances.
2.4 Either party may at any time prior to the Acceptance Date request the other party to give consideration to a Variation to the Contract. In the event of a Variation being requested, the Customer shall make a written request to Forte Pespa to state in writing the effect such proposed Variation will have on the Works, the warranty and the Programme of Work and the cost thereof. Forte Pespa shall furnish the necessary details within fourteen (14) days from receipt of the Customer’s request or such other period as is reasonable in the circumstances.
2.5 Forte Pespa shall supply supporting evidence to the Customer to demonstrate the reasonableness of the stated effect of the proposed Variation and to demonstrate the reasonableness of any price quoted in respect of the proposed variation. Any such price quoted shall be reasonable in all the circumstances and calculated upon the same basis as the Contract Price.
2.6 Where, in accordance with sub-clauses 2.1 – 2.4, the Customer has requested Forte Pespa to state in writing the effect of a proposed Variation, the Customer shall within twenty eight (28 days) of receipt of Forte Pespa’s submission or such other period as is reasonable in the circumstances, inform Forte Pespa in writing whether or not it accepts Forte Pespa’s submission and intends to proceed with such Variation. In the event that for whatever reason, the Customer decides not to proceed with such Variation, Forte Pespa shall have the right to be reimbursed by the Customer for the reasonable costs necessarily and properly incurred in the preparation of its submission under sub-clause 2.1, provided that Forte Pespa shall have provided details of such costs within thirty (30) days, or such other period as may be agreed, of the date of the Customer’s letter informing Forte Pespa that it did not intend to proceed with the Variation.
2.7 Forte Pespa shall not implement any Variation unless instructed in writing to do so by the Customer
OWNERSHIP AND RIGHTS
3.1 Licensed Software
Licensed Software shall remain the property of the licensor and be provided to the Customer by Forte Pespa on such terms and conditions as the licensor sees fit.
3.2 Developed Software
3.2. Those parts of the Software developed or written under the Contract including the source code and the copyright and all other intellectual property rights therein shall belong to and vest in Forte Pespa
3.2.2 Forte Pespa shall grant to the Customer a non-exclusive and non-transferable licence to use the developed Software free of further charge on such terms and conditions as the licensor sees fit.
PATENTS, DESIGNS AND COPYRIGHT
3.3 Forte Pespa shall fully indemnify the Customer against all actions, claims, demands, proceedings, damages, costs, charges and expenses arising from or incurred by reason of any infringement or alleged infringement of any letters patent, registered design, copyright or any other intellectual property right by the use or possession of the System supplied by Forte Pespa under the Contract, subject to the following:
3.3.1 the Customer shall promptly notify Forte Pespa in writing of any alleged infringement of which it has notice;
3.3.2 the Customer shall make no admissions without Forte Pespa’s consent;
3.3.3 the Customer, at Forte Pespa’s request and expense, shall allow Forte Pespa to conduct and/or settle all negotiations and dispute resolution processes and give Forte Pespa all reasonable assistance. The costs incurred or recovered in such negotiations or dispute resolution processes shall be for Forte Pespa’s account.
3.4 If at any time allegation of infringement of any letters patent, registered design, copyright or any other intellectual property right is made in respect of the System or in Forte Pespa’s reasonable opinion is likely to be made, Forte Pespa shall, at its own expense, either modify or replace the System without detracting from the System’s overall performance, or negotiate a suitable licence with the owner of any pre-existing intellectual property rights, Forte Pespa making good to the Customer any loss of use during such negotiation, modification or replacement, so as to avoid the infringement. The provisions of clause 2 shall then take effect as if the parties had agreed a Variation, save that Forte Pespa shall not be entitled to request any increase to the Contract Price.
3.5 Forte Pespa shall not be liable under sub-clauses 3.3 or 3.4 for any infringement or alleged infringement of any letters patent, registered design, copyright or any other intellectual property right which arises as a result of the inclusion in the System of any Customer Items.
3.6 The provisions of this clause shall continue in force notwithstanding the termination of the Contract.
4. CONFIDENTIAL INFORMATION
4.1 Neither party shall divulge to any third party without the consent in writing of the other party, any information designated as confidential at the time of disclosure obtained under or in connection with the Contract.
4.2 The provisions of this clause shall not apply to any information which:
4.2.1 is or subsequently becomes in the public domain otherwise than by breach of the Contract; or
4.2.2 is already in the possession of the receiving party without an accompanying obligation of confidence; or
4.2.3 is obtained from a third party which is free to divulge the same; or
4.2.4 is independently developed by the recipient or its Sub-Contractor outside the scope of the Contract; or
4.2.5 is divulged by the recipient in response to a valid court order or as may otherwise be required by law. In such case the recipient must give the discloser prompt notice of the order and make a reasonable effort to obtain a protection order for the information divulged.
4.3 Unless the information is covered by a specific licence or is otherwise protected by law, the recipient may disclose, publish, disseminate and use ideas, concepts, know-how and/or techniques relating to the recipient’s primary areas of business.
4.4 Forte Pespa and the Customer may divulge confidential information only to those employees and/or agents who are directly involved in the Contract and/or use the System and shall ensure that such employees and/or agents are aware of and comply with these obligations as to confidentiality.
4.5 Forte Pespa shall ensure that its Sub-Contractors, Servants and/or Agents are bound by the requirements of this clause.
4.6 The provisions of this clause shall continue in force notwithstanding the termination of the Contract.
4.7 Both parties shall and shall ensure that their employees and agents shall, observe the requirements of the General Data Protection Regulation (GDPR) (EU) 2016/679, and any amendments or revisions thereto in the provision and use of the System and shall comply with any request made or direction given by the other which is directly due to the requirements of such Regulation.
5. LIABILITY AND INDEMNITY
5.1 Forte Pespa will not be held responsible for installers installation methods or techniques. This agreement will indemnify the supplier of individual problems that result that are outside of our control. (i.e. we won’t take responsibility if you go outside the agreed technical details and engineering calculations etc)
5.2 Forte Pespa shall indemnify and keep indemnified the Customer against all damages, losses, compensation or expenses arising form the death or injury of any person and against all loss of or damage to any physical property caused by any act, default or negligence of Forte Pespa, its Sub-Contractors and/or agents and against all actions, claims, demands or proceedings in respect thereof or in relation thereto, provided that this indemnification shall not apply to the extent that the death or injury to any person or the loss of or damage to any physical property is wholly or partly attributable to any act, default or negligence of the Customer or a third-party (other than Forte Pespa’s Sub-Contractors and/or servants/agents).
5.3 The Customer shall indemnify and keep indemnified Forte Pespa against all damages, losses, compensation or expenses arising form the death or injury of any person and against all loss of or damage to any physical property caused by an act, default or negligence of the Customer its agents or contractors (other than Forte Pespa) and against all actions, claims, demands and proceedings in respect thereof or in relation thereto, provided that this indemnification shall not apply to the extent that the death or injury to any person or the loss of or damage to any physical property is wholly or partly attributable to any act, default, or negligence of Forte Pespa or a third-party other than the Customer’s agents or contractors (other than Forte Pespa).
5.4 Notwithstanding the foregoing and anything to the contrary in the Contract, the liability of both parties to each other under or in connection with the Contract, whether arising from contract, negligence or however, shall be limited as follows:
5.4.1 in the case of liability arising from death or injury to persons, there shall be no limit;
5.4.2 in the case of liability for loss of or damage to physical property, including all actions, demands, costs and expenses in respect thereof or in relation thereto the limit for any one event or series of connected events shall be a maximum liability of €6,500,000.00;
5.4.3 in respect of any failure to meet the performance levels for those parts of the System identified in the Contract as being subject to liquidated damages, liability shall be limited to the amount of such liquidated damages;
5.4.4 in respect of any other liability, liability shall be limited to €6,500,000.00 for any one event or series of connected events.
5.5 Without thereby limiting their responsibilities under the Contract each party shall insure with a reputable insurance company against all loss of or damage to property and injury to persons (including death) arising out of or in consequence of its obligations under the Contract and against all actions, claims, demands, costs and expenses in respect thereof, or in relation thereto. Documentary proof of such insurance cover shall be made available on demand by either party.
5.6 Forte Pespa shall, until the Acceptance Date, insure and keep insured with a reputable insurance company the Software provided under the provisions of sub-clause 3.1 against loss or damage including the additional costs, charges and expenses of reconstituting or recompiling such Software.
6. WARRANTY PERIOD
6.1 Basic product warranty is offered in the way of discoloration and rust on all aluminium materials for 20 years. This warranty is also backed via manufacturer of the systems we supply. We will not warranty works directly outside of Forte Pespa installation team and direct control of Forte Pespa
6.2 Forte Pespa shall, subject to the provisions of clause 2, at its own expense and without unreasonable delay make good, if necessary by the provision of replacement or additional items, any defect in the System which
6.2.1 is identified on the acceptance certificate, or
6.2.2 develops and is notified to Forte Pespa by the Customer during the period of twelve (12) calendar months following the Acceptance Date and results in the System failing to fulfil the functions or meet the level of performance specified in the Contract.
6.3 The provisions of clause 2 shall not apply to any defect in the System which arises or develops as a result of any of the following:-
6.3.1 additions or amendments made to the System other than by or on behalf of Forte Pespa;
6.3.2 the Customer’s use of supplies which are not in accordance with the manufacturer’s published specification;
6.3.3 the Customer’s failure to maintain the environmental conditions specified in the Contract.
6.3.4 The Customer’s use of the System is not in accordance with Forte Pespa’s operational instructions
7 RETENTION OF TITLE
7.1 The Products shall remain in the ownership of Forte Pespa until such time as the Company Receives payment in full without any deductions.
7.2 Should the Customer default on the agreed payment terms then Forte Pespa reserves the right to take possession of the products and to enter onto the customer’s property to enable the recovery of the products. By signing this agreement, the Customer confers permission on Forte Pespa to enter onto the customer’s property to enable the removal and/or recovery of the property.
7.3 Forte Pespa will not be liable to the customer for any works or remedial works which may be required once the Products are removed. Should it become necessary for Forte Pespa to take possession of the products, the Customer will be liable to pay all outstanding sums immediately.
7.4 Should the customer sell, transfer or assign the products prior to Forte Pespa receiving payment in full for the Products then Forte Pespa reserves the right to pursue the Customer for a sum equal to the outstanding sum due to Forte Pespa plus any costs incurred with recovering this sum.
8 CANCELLATION AND RESCISSION
8.1 For Units that are specially made to order the contract is not subject to a right of cancellation. If any customer does so cancel, then Forte Pespa shall have the right to retain the deposit and in addition, to claim against the Customer for any costs incurred and for any loss of profit which accrues.
8.2 Forte Pespa reserve the right to cancel this contract should our surveyors report prove unsatisfactory whereupon any deposit paid will be repaid in full and this agreement shall be at an end.