Terms & Conditions
1. Definitions and Interpretation
1.1 Definitions
- Business Day : a day other than a Saturday, Sunday or Public Holiday.
- Conditions : these terms and conditions.
- Contract : the contract between the Contractor and the Employer for the Works based upon the Conditions.
- Contract Sum : the sum set out in the covering quotation from the Contractor which will be paid by the Employer to the Contractor in manner specified in the Conditions.
- Contractor : R Hughes Plumbing & Heating Limited.
- Employer : the customer named in the covering quotation from the Contractor.
- Goods : all goods, plant and materials supplied to the Site to carry out the Works.
- Interest Rate : a rate of 5 percent per annum above the official bank rate of the Bank of England current at the date that a payment due under this Contract becomes overdue.
- Practical Completion : the Works are complete (as confirmed by the Contractor) except for minor works which can be put right without undue interference to the Employer provided that full access is provided.
- Site : as defined in the covering quotation from the Contractor.
- The Works : installation of mechanical services including the supply of associated goods, plant and materials as described in the covering quotation from the Contractor.
1.2 Interpretation
1.2.1 Where under this Contract an act is required to be done within a specified period of days after or from a specified date the period shall begin immediately after that date. Where the period would include a day which is a Public Holiday that day shall be excluded.
1.2.2 Notwithstanding any other provision of this Contract, nothing in this Contract confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.
1.2.3 This Contract shall be governed by and construed in accordance with the laws of England and Wales.
2. Basis of Contract
2.1 The covering quotation of the Contractor constitutes an offer by the Contractor to carry out the Works in accordance with these Conditions.
2.2 The Contract shall only come into existence when the Contractor issues a written confirmation of Order following the Employer’s acceptance of its quotation on which date the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Employer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Carrying out the Works
3.1 The Contractor will carry out the Works in a proper and workmanlike manner exercising appropriate reasonable skill and care.
3.2 The Works will be commenced within 14 days of the issue of the Contractors written confirmation of Order and subject to clause 3.3, to be completed by the date(s) or period set out in the Contractor’s quotation.
3.3 The Contractor’s obligation is nevertheless to complete the Works within a reasonable period of time taking into account that it is not responsible for matters/reasons beyond its control such as compliance with instructions from the Employer/its representatives or agents in respect of the Works (including the instruction of variations/additional works which can include omissions of works and additional works or changes in working conditions such as restricted access).
3.4 The Contractor shall not be in breach of the Contract or otherwise liable for any failure or delay in performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a force majeure event).
4. Payment
4.1 The Contract Sum is exclusive of Value Added Tax (VAT) and in relation to any payment to the Contractor under this Contract, the Employer shall in addition, pay the amount of any VAT properly chargeable in respect of it.
4.2 The Contractor is entitled to interim payments from the Employer against the Contract Sum in intervals of 30 days from the commencement of the Works in accordance with the following payment procedure:-
4.2.1 The Contractor will submit its first interim application for payment within 7 days of the commencement of the Works and then subsequently within 7 days of each 30 days thereafter (the application date).
4.2.2 The due date for payment is 7 days after the application date.
4.2.3 The final date for payment is 16 days after the due date for payment.
4.2.4 Subject to any notice given by the Employer under clause 4.2.5, the Employer shall pay the sum set out as due in the Contractor’s interim application on or before the final date for payment under clause 4.2.3.
4.2.5 If the Employer intends to pay less than the sum set out as due in the Contractor’s interim application, the Employer shall not later than 7 days before the final date for payment give the Contractor notice of that intention (a “pay less notice”), stating the sum the Employer considers to be due to the Contractor at the date the pay less notice is given and the basis on which that sum is calculated.
4.2.6 If the Employer fails to pay a sum, or any part of it, due to the Contractor under these Conditions by its final date for payment, the Employer shall, in addition to any unpaid amount that should properly have been paid, pay the Contractor simple interest on that amount at the Interest Rate for the period from the final date for payment until payment is made.
4.2.7 If the Employer fails to pay a sum payable to the Contractor (together with any VAT properly chargeable in respect of that payment) by the final date for payment and the failure continues for 7 days after the Contractor has given notice to the Employer of his intention to suspend performance of its obligations under this Contract and the grounds for such suspension, the Contractor, without affecting its other rights and remedies may suspend performance of any or all of those obligations until payment is made in full.
4.2.8 The value of each of the Contractor’s applications for payment shall be the value the Contractor considers is due at the application date in respect of:-
- Work properly executed (including the value of additional/variation works which shall be valued on a fair and reasonable basis including and any direct loss and/or expense incurred by the Contractor as a consequence);
- The value of associated Goods supplied to site.
Less the value of previous interim applications and retention being at the rate of 3 percent until the date of Practical Completion and thereafter at the rate of 1.5 percent until the expiry of 6 months upon which date the full balance of retention will be paid
4.2.9 Following Practical Completion, the Contractor shall within 1 month submit its final account to the Employer valued on the basis set out in clause 4.2.8 and the due date for payment shall be 30 days after submission and the final date for payment shall be 14 days thereafter.
5. Title and risk
5.1 The risk in the Goods shall pass to the Employer upon completion of delivery to the Site.
5.2 Title to the Goods shall not pass to the Employer until the date when the Contractor receives payment in full (in cash or cleared funds) for the Goods.
5.3 Until title to the Goods has passed to the Employer, the Employer shall ensure that the Goods which are stored on the Site are separated from all other goods on the Site supplied by the Employer or other supplies/contractors it has engaged and/or allow the Contractor full access to all areas of the site to ensure the Goods are readily identifiable as the Contractor’s property.
5.4 At any time before title passes to the Employer, the Contractor may by notice in writing require the Employer to allow the Contractor full access to the Site to remove and take possession of all Goods which have not been irrevocably incorporated into the property in question (removing Goods which are only installed by fixings and can be readily removed is not incorporation).
6. Employer’s obligations
6.1 The Employer shall ensure that any information it provides to the Contractor in respect of the Works is complete and accurate.
6.2 The Employer will co-operate with the Contractor in all matters relating to the Works.
6.3 The Employer will provide the Contractor, its employees, suppliers, agents, consultants and sub-contractors with full and unrestricted access to the Site and other facilities as reasonably required by the Contractor to carry out the Works.
6.4 The Employer will provide the Contractor with such information as the Contractor may reasonably require in order to carry out the Works, and ensure that such information is complete and accurate in all material requests.
6.5 The Employer will ensure that the Site is prepared for the Contractor to carry out the Works in a continuous manner.
6.6 The Employer will obtain and maintain all necessary licences, permissions and consents which may be required for the carrying out of the Works before the date of the commencement of the Works.
6.7 The Employer will comply with all applicable laws including health and safety rules.
7. Employer Default
7.1 If the Contractor’s carrying out of the Works is prevented or delayed by any act or omission by the Employer to perform any relevant obligation.
7.1.1 without limiting or affecting any other right or remedy available to it, the Contractor shall have the right to suspend the carrying out of the Works until the Employer’s Default has been remedied, and to rely on the Employer’s Default to relieve it from the performance of any of its obligations in each case to the extent the Employer’s Default prevents or delays the carrying out of the Works.
7.1.2 the Contractor shall not be liable for any costs or losses sustained or incurred by the Employer arising directly or indirectly from the Contractor’s delay, failure or inability to carry out the Works which are caused by circumstances beyond the Contractor’s reasonable control
7.1.3 the Employer shall reimburse the Contractor for any costs or losses sustained or incurred by the Contractor arising directly or indirectly from the Employer’s Default.
8. Termination
8.1 Meaning of Insolvency
For the purposes of these Conditions a person/company becomes insolvent on:
8.1.1 the making of an administration, bankruptcy or winding-up order against him/them, appointment of an administrative receiver, receiver or manager of his/their property, his/their passing of a resolution for voluntary winding-up without declaration of solvency or any other event referred to in section 113, sub-sections (2) to (5), of the Housing Grants, Construction and Regeneration Act 1996;
8.1.2 otherwise entering administration within the meaning of Schedule B1 to the Insolvency Act 1986;
8.1.3 entering into an arrangement, compromise or composition in satisfaction of his/their debts (excluding a scheme of arrangement as a solvent company for the purposes of amalgamation or reconstruction); or
8.1.4 (in the case of a partnership) each partner being the subject of an individual arrangement or any other event or proceedings referred to in this clause 9.1.
9.2 Termination default by the Employer
9.2.1 If the Employer does not pay the Contractor by the final date for payment the amount due to the Contractor in accordance with clause 4 or fails in any way to comply with clause 6, the Contractor may give to the Employer a notice specifying the default or defaults (a ‘specified’ default or defaults).
9.2.2 If before Practical Completion of the Works the carrying out of the whole or substantially the whole of the uncompleted Works is suspended for a continuous period of one month or more by reason of any impediment, prevention or default, whether by act or omission, by the Employer or any person acting on its behalf, the Contractor may give to the Employer a notice specifying the event or events (a ‘specified’ suspension event or events).
9.2.3 If a specified default or a specified suspension event continues for 7 days from receipt of a notice under clause 9.2.1 and 9.2.2, the Contractor may on, or within 10 days from, the expiry of that 7 day period by a further notice to the Employer terminate the Contractor’s employment under this Contract.
9.3 Insolvency of the Employer
9.3.1 If the Employer is insolvent, the Contractor may by notice to the Employer terminate the Contractor’s employment under this Contract and as from the date the Employer becomes insolvent these conditions to carry out and complete the Works shall be suspended.
9.3 Consequences of termination
If the Contractor’s employment is terminated under clauses 9.2.3 or 9.3.1.
9.4.1 the Contractor shall as soon as reasonably practicable prepare a termination account. The account shall set out:
- the total value of work properly executed at the date of termination of the Contractor’s employment, ascertained in accordance with these Conditions as if the employment had not been terminated, together with any other amounts due to the Contractor under these Conditions;
- the cost of materials or goods (including site materials) properly ordered for the Works for which the Contractor then has paid or is legally bound to pay;
- any direct loss and/or damage caused to the Contractor by the termination.
9.4.2 after taking into account amounts previously paid to the Contractor under this Contract, the Employer shall pay to the Contractor the amount properly due in respect of the termination account within 28 days of its submission by the Contractor to the Employer, without deduction of any retention.
10 Limitation of liability
10.1 The limits and exclusions in this clause reflect the insurance cover the Contractor has been able to arrange and the Employer is responsible for making its own arrangements for the insurance of any excess liability.
10.2 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
- defective products under the Consumer Protection Act 1987.
10.4 The Contractor’s total liability to the Employer shall not exceed the value of the Works carried out.
10.5 This clause 10.5 sets out specific heads of excluded loss which can be claimed from the Contractor.
10.5.1 Subject to clause 10.3 The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business (including property);
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
11 Settlement of Disputes
11.1 Mediation
If a dispute or difference arises under this Contract which cannot be resolved by direct negotiations, each party shall give serious consideration to any request by the other to refer the matter to mediation.
11.2 Adjudication
If a dispute or difference arises under this Contract which either party wishes to refer to adjudication, the Adjudication provisions of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (as amended) shall apply except the nominating body for the appointment of the Adjudicator shall be The Royal Institute of Chartered Surveyors.
11.3 Jurisdiction
The English Courts shall have jurisdiction over any dispute or difference between the Parties arising out of or in connection with this Contract.
