In this Agreement the following words have the following meanings:
Agreement means the agreement between the Customer and the Contractor as described in these terms of business and the Estimate
Contractor means the individual or company who is to provide the Services to the Customer
Customer means the person(s) who purchase the Services from the Contractor
Goods means as described in the Estimate and all incidental materials used for the carrying out of the Services
Normal Working Hours means between the hours of 8 am and 5 pm Monday to Friday and excluding Bank Holidays
Services means the works as described in the Estimate
Estimate means the verbal statement or documentation issued by the Contractor that sets out the Services.
2. Estimate and Price
2.1 The price for the Services shall be quoted in the Estimate and shall be inclusive of any value added tax applicable.
2.2 The Estimate may be accepted at any time within a period of 30 days from the date of the Estimate and, if not accepted within such a period, shall lapse. In the event of the Estimate being accepted within such a period of 30 days, the Contractor may: by giving notice to the Customer at any time up to 7 days before delivery, increase the price of Goods to reflect any increase in the cost to the Contractor which are due to factors that are beyond the reasonable control of the Contractor which occurred after completing the Estimate in such an event the Customer may cancel the Agreement provided that he notifies the Contractor in writing within 6 days of any such notice from the Contractor;
2.2.2 make an extra charge in respect of any period of time during which he is unable to proceed with the work on account of delays which have arisen through no fault of his own; and
2.2.3 make a reasonable additional charge for any extra costs incurred where the Customer requires work to be done outside of Normal Working Hours.
2.3 Unless otherwise stated, the Estimate does not cover any work by other trades. If work by other trades is specified within the Estimate, the Contractor reserves the right to nominate sub-contractors to effect the same at its discretion. Any disputes arising from such sub-contracted work will not be reason for withholding payment for other work included in the Estimate, including that affected by the Contractor and/or their other sub-contractors.
2.4 The Estimate is given and the Services undertaken by the Contractor on the understanding that:
2.4.1 all necessary licences, authorities or planning permissions, including the consent of the landlord are first obtained and any costs involved covered by the Customer.
2.4.2 unrestricted access to the premises will be given by the Customer to the Contractor in order that the Services may be undertaken, and
2.4.3 the Contractor has the use of all necessary facilities at the Customer’s in order that the Contractor can undertake the Services.
2.4.4 any additional costs incurred by the Contractor as a result of this clause not being strictly observed, may result in an additional charge.
2.5 Any defects or deficiencies found in an existing building or flues or in an existing system which requires to be attended to for satisfactory completion of the Services or to satisfy statutory requirements and not specifically referred to in the Estimate shall be the responsibility of the Customer. If the Customer arranges for any part or the whole of such work to be carried out by the Contractor it shall be the subject of a separate Estimate or be charged as an extra on a time and materials basis. The Contractor reserves the right to refuse to undertake the Services.
2.5.1. The Customer undertakes to clear all the necessary areas as agreed with the Contractor before the Contractor commences the Services which, for the avoidance of doubt, includes all furniture and all floor coverings. The Contractor shall take every care during the carrying out of the work ; however, the Estimate does not
2.5.2. include any subsequent incidental re-decoration upon the proper execution of the Services.
3. Payment Terms
3.1 Payment of the price for the Services is due on completion of the work either in cash or by cheque with a guarantee card.
3.2 Time for payment shall be of the essence.
3.3 No payment shall be deemed to have been received until the Contractor has received cleared funds.
3.4 If any sum from the Customer to the Contractor under the Agreement is not paid on or before the due date for payment then the Contractor shall be entitled to charge the Customer interest calculated on a daily basis on all overdue amounts until actual payment at the rate of six per cent(6%) per annum above the base lending rate of Barclays Bank plc prevailing from time to time until payments are made in full.
4.1 The Contractor shall make every endeavour to carry out the Services within the period stipulated or if no period is stipulated , within a reasonable time.
4.2 Due to changes in the design or modifications by the manufacturers of Goods or materials or through lack of availability, the Contractor may not be able to supply the equipment originally specified in the Estimate; in such event the Contractor, with the agreement of the Customer, shall supply a satisfactory and reasonable alternative item and the price shall be adjusted accordingly.
4.3 Unless expressly otherwise stated, where drawings are submitted with the Estimate they shall be for demonstration purposes only. They should not be relied upon by the Customer and they are not prepared to specifically show the type or precise position of construction or installation.
4.4 The Customer warrants that any specifications they give to the Contractor for the completion of the Services or in relation to any Goods or material will be accurate and complete.
4.5 Any drawings or designs prepared by persons other than the Contractor or any supplies and any extra work necessary caused by defects in such drawings or designs shall be charged as an extra under Clause 2.3 on a time and materials basis or be the subject of a separate Estimate.
5 Title and Risk
5.1 Risk in any Goods or materials used to complete the Services shall pass to the Customer, for the avoidance of doubt, any necessary replacement Goods or materials will not be included in the Estimate and the Customer will be charged an additional charge for any replacement Goods or materials.
5.2 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in the Contractor (even though they have been delivered and risk has been passed to the Customer) until:
5.2.1 Payment in full, in cash or cleared funds, for all the Goods have been received by the Contractor, and
5.2.2 All other money payable by the Customer to the Contractor on any other account or under the Agreement or any other agreement has been received by the Contractor.
5.3 Until full legal, beneficial and equitable title to and property in the Goods passes to the Customer:
5.3.1 The Customer shall hold the Goods on a fiduciary basis as the Contractor’s bailee;
5.3.2 The Customer shall store the Goods at its premises in a proper manner in conditions which adequately protect and preserve the Goods and shall insure them without any charge to the Contractor; and
5.3.3 The Contractor may at any time, on demand and without prior notice, require the Customer to deliver the Goods up to the Contractor and the Contractor may repossess any resell the Goods if any sum due to the Contractor from the Customer under the Agreement on any other account or under any other agreement is not paid when due.
6 Guarantees and Exclusions
6.1 Subject to Clause 6.3, the Contractor guarantees that all Goods and materials supplied by him, if ordered by description and/or specification, shall correspond to that description.
6.2 Subject to Clause 6.3, the Contractor warrants that (and subject to the other provisions of these conditions) the Goods shall:
6.2.1 Be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
6.2.2 Be reasonably fit for purpose
6.3 The Contractor shall not be held in breach of this Agreement, and shall not be liable to the Customer for any loss or damage suffered or incurred by the Customer or any other third person as a result of:
6.3.1 Any failure to provide the Services in accordance with this Agreement unless the Customer notifies the Contractor in writing of such a claim (with detailed particulars of the circumstances giving rise thereto) within 12 months of such failure coming to the Customer’s notice; or
6.3.2 Any failure to provide the Services in accordance with this Agreement as a result of any act or omission of the Customer, which for the avoidance of doubt, includes any inaccurate or incomplete specifications; or
6.3.3 Any failure to provide the Services in accordance with this Agreement as a result of the Contractor’s compliance with any instruction or direction given by the Customer if the Contractor has informed the Customer before it complies therewith that, in its opinion, that instruction or direction will inhibit performance of the Services; or
6.3.4 The absence of any consent required to be obtained by the Customer, or
6.3.5 The incompetence of any consultant, professional adviser, contractors or person other than the Contractor and its sub-contractors employed by the Customer to provide the Services at the Customer’s specific request; or
6.3.6 Any defects arising because the Customer failed to follow the Contractor’s and/or manufacturer’s oral or written instructions; or
6.3.7 The Contractor has informed the Customer of any defects in the Goods or materials required to carry out the Services prior to them being used in the Services.
6.4 The Contractor will use its reasonable endeavours to assign the benefit of any warranty it receives from its supplier to the Customer but subject to clauses 6.1 and 6.2, shall not be liable for any claim or claims for any damages whether direct, indirect, special or consequential or economic damage or loss arising from any breach of this Agreement or any defect in the Goods. Nothing in this agreement shall exclude liability of the Contractor for death or personal injury resulting from its negligence insofar as the same is prohibited by United Kingdom statute.
6.5 If the Customer establishes to the Contractor’s reasonable satisfaction that, due to the Contractor’s own act or omission, the Contractor has failed to perform the Services in accordance with this Agreement, then the Contractor shall at its option remedy such breach:
6.5.1 By re-executing the relevant part of the Services free of charge up to the amount of the contract price received by the Contractor for the provision of such Services (exclusive of any value added tax); or
6.5.2 By repaying or crediting the Customer that part of the contract price paid by the Customer to the Contractor relating to the provision of the relevant part of the Services.
6.6 The Customer must notify the Contractor in writing of any claims under Clause 6.6 within 12 months of the date when the relevant Services were performed.
7.1 Either party may immediately terminate this Agreement without payment of compensation or other damages caused to the other party solely by such termination by giving notice in writing to the other if any one or more of the following events happens:
7.1.1 The other party commits a material breach of any of its obligations under this Agreement which is incapable of remedy;
7.1.2 The other party fails to remedy, where it is capable of remedy, or persists in any breach of any of its obligations under this Agreement (save as to payment) after having been required in writing to remedy to desist from such breach within a period of (30) days; or
7.1.3 Any sum payable under this Agreement is not paid within seven days of its due date for payment in accordance with this Agreement.
8 Consequences of Termination
8.1 On the expiry or termination of this Agreement (for whatever reason) the Contractor shall immediately upon the expiry or termination of this Agreement submit its final invoice to the Customer setting out the total amounts due to the Contractor pursuant to this agreement.
9.1 The Contractor reserves the right to defer the commencement date of the Services or to cancel the Agreement or reduce the volume of Goods or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligation under the Agreement due to circumstances beyond the reasonable control of the Contractor including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes(whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies if adequate or suitable materials provided that, in the event of force majeure continues for a continuous period in excess of 3 months, the Customer shall be entitled to give notice in writing to the Contractor to terminate the agreement.
9.2 The Agreement sets out the entire agreement and understanding between the Customer and the Contractor in connection with the provision of the Services and Goods and shall supersede and replace all documentation previously issued by the Contractor purporting to set out its terms and conditions.
9.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. No other person who is not a party to this Agreement (including any employee, officer, agent, representative or subcontractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which Agreement must refer to this clause.
9.4 If at any time one or more of the terms of the Agreement (or any sub-clause or paragraph or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Agreement and the validity/or enforceability of the remaining provision of the Agreement shall not in any way be affected or impaired as a result of that omission.
9.5 This Agreement and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with the laws of England.
9.6 All disputes or claims arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.