THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's written acceptance of the Supplier's Quotation.
Quotation: the Supplier’s written quotation to the Customer setting out the Services to be provided and the costs.
Services: the services supplied by the Supplier to the Customer as set out in in the Specification.
Specification: the description or specification of the Services to be provided to the Customer as set out in the Quotation.
Supplier: S41 Developments Limited registered in England and Wales with company number 08607599.
Supplier Materials: has the meaning set out in clause 4.1g).
Total Costs: total costs for the Services as specified in the Quotation.
1.2 Interpretation:
a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
c) A reference to writing or written includes fax and email.
2.1 The Order constitutes an offer by the Customer to purchase the Services in the Quotation in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the 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 which are implied by law, trade custom, practice or course of dealing.
2.5 Any Quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
3.1 The Supplier shall supply the Services to the Customer in accordance with the Quotation Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates advised, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the 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.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1 The Customer shall:
a) ensure that the terms of the Order and any information stated in the Specification are complete and accurate (the Customer shall inform the Supplier when accepting the Quotation if any details of the Specification are incorrect);
b) co-operate with the Supplier in all matters relating to the Services;
c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation (if any) and other facilities as reasonably required by the Supplier;
d) provide the Supplier with such information and materials as the Supplier may reasonably require in order 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 (including emptying rooms of furniture and other items where required);
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) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
4.2 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 4.2; and
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.
5.1 A payments schedule shall be issued to the Customer when the Supplier accepts the Order (‘the Payments Schedule’).
5.2 The Payments Schedule shall list the payments required throughout the course of the providing the Services (typically weekly payments) and the Supplier shall invoice the Customer as set out in the Payments Schedule.
5.3 The Customer shall pay each invoice submitted by the Supplier:
a) within 5 days of the date of the invoice; 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.
5.4 The Supplier shall be under no obligation start work (even if the Supplier has accepted the Order) until the first payment on the Payments Schedule has been paid.
5.5 If the Customer is late making any payment on the Payment Schedule then the Supplier reserves the right to stop work until the required payments have been made.
5.6 Any further work required by the Customer, over and above the work that has been specified in the Quotation, shall be quoted for separately and, on written acceptance by the Customer, the Payments Schedule will be adjusted accordingly.
5.7 After the Quotation has been provided to the Customer, if any further site visits are requested then these will be charged at £50.00 per visit. This charge will be credited back to the Customer on the final invoice if the work proceeds to completion.
5.8 If any call outs are requested after the work has been completed and the issue has not been caused by the Supplier then a call out fee of £80.00 will be charged.
5.9 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 Services at the same time as payment is due for the supply of the Services.
5.10 All materials, including those already used in any construction works, remain the property of the Supplier until all outstanding invoices have been paid in full.
5.11 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 14, 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 5.9 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.12 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).
6.1 Strip foundations will be excavated to a depth of 1 metre. If building control require the foundations to be dug deeper than this or a raft foundation is required then this will be priced accordingly and the Customer accepts there will be further costs payable. If a pile foundation is required there will be additional cost payable by the Customer.
6.2 Skips hired by the Supplier shall only be used by the Supplier and the Customer must not use the skip for other waste.
6.3 If the Supplier encounters any unforeseen service media (such as gas pipes, electric cables, water pipes) that need to be circumvented or moved then there will be additional costs payable by the Customer.
6.4 Any Build over agreements (BOA) must be in place prior to commencement of works. This is the responsibility of the customer.
7.1 If architects calculations supplied by the Customer to the Supplier are incorrect or not sufficient for the purpose of building regulations or for calculating steel beams, then further costs will be chargeable to the Customer in order for the Supplier to remedy the issue and produce new and correct calculations.
8.1 Where applicable, Customers will be provided with brick samples to choose from. Before any order is placed, the Customer will be required to send an email to the Supplier as confirmation of their chosen sample.
9.1 The Customer acknowledges that the tradesman involved with the construction project will need to have tools close to the construction site and a number of vehicles may need to be parked close to the Customer’s property, but the Supplier will endeavour at all times to park as professionally and carefully as possible.
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.
11.1 The Supplier will only use Customers’ personal information as set out in their Privacy Policy
11.2 The Supplier is registered with the Information Commissioner’s Office with reference ZB307704.
12.1 If the Customer is provided with mobile phone contact details for the Supplier, then the Customer accepts that calls or texts should only be made to the Supplier (and will only be responded to) between usual business hours (unless in the case of emergencies):
a) to the office Monday-Friday, 9am - 5pm; or
b) to the builders Monday-Friday, builders 7.30am – 5pm.
13.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £2million per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; and
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.4 Subject to clause 13.3, the Supplier's total liability to the Customer shall not exceed £2million.
13.5 This clause 13.5 sets out specific heads of excluded loss:
a) Subject to clause 13.3, the types of loss listed in clause 13.5b) are wholly excluded by the parties.
b) The following types of loss are wholly excluded:
13.6 Subject to clause 13.3, the Supplier shall not be liable to the Customer for any issues arising from or relating to:
a) planning permission; or
b) the architects’ drawings and designs.
13.7 The Customer acknowledges that the Supplier shall not be liable for any issues or damage caused by third party deliveries of materials or skips or scaffolding.
13.8 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by 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.
13.9 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of [the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.10 This clause 13 shall survive termination of the Contract.
14.1 If the Customer supplies any drawings to the Supplier, these drawings will be destroyed after 6 months unless the Customer makes a written request for their return prior to the Quotation expiry date.
15.1 The Customer acknowledges that, if they instruct the Supplier to remove thermal breaks, this means that the works would no longer conform to building regulations.
15.2 The Customer accepts that proceeding without obtaining Building Regulations Approval could mean that there are future issues when selling or refinancing and indemnity insurance may be required.
16.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 1 months' written notice.
16.2 If the Customer terminates the Contract, then the Customer shall:
a) forfeit any staged payments it has already paid to the Supplier up to the date of termination;
b) be invoiced for and pay the next staged payment due;
c) pay for any materials that have been ordered and cannot be returned.
16.3 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 30 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), 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.
16.4 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.
16.5 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 the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.3b) to clause 16.3d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16.6 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.
17.1 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.
17.2 Assignment 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.
17.3 Confidentiality.
a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 17.3b).
b) Each party may disclose the other party's confidential information:
c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
17.4 Entire agreement.
a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
c) Nothing in this clause shall limit or exclude any liability for fraud.
17.5 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).
17.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.7 shall not affect the validity and enforceability of the rest of the Contract.
17.8 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); or sent by fax to its main fax number or sent by email to the address specified in the Quotation.
b) Any notice shall be deemed to have been received:
c) This clause 17.8 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.
17.9 Third party rights.
a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.10 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 England and Wales.
17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales 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.