1) Parties, Definitions and Interpretation
In these terms and conditions (which are referred to in this document as “these terms”), “Client” means the client for whom the Works are to be provided by the Contractor, “Contractor” means Modified Solutions Ltd, trading as Modified Solutions Ltd, Contract means the agreement between the Client and the Contractor to carry out the Works of which these terms form a part and (where these terms are a schedule to a signed agreement between the Client and the Contractor (the Agreement)) the Agreement, Works means the works described in the Contractor’s estimate and/or as referred to in the Contractor’s Work Detail Sheet or any other document or email issued by the Contractor, as may be varied by agreement in writing between the parties. For the purposes of these terms, in writing includes by email and any document which is set out in a hand held device and any signature on a hand held screen shall be treated as in writing. In these terms words importing the masculine gender also include the neuter and feminine gender and words importing the singular number include also the plural number, where the context so requires.
2.1 The Client will be treated as an Account Client or a Non-Account Client, according to the Contractors reasonable discretion.
2.2 All estimates given by the Contractor, all orders and instructions given by the Client, and all work authorisations, are governed by these terms. They supersede any other terms appearing elsewhere and override and exclude any other terms stipulated or incorporated or referred to by the Client, whether in the order or instructions or in any negotiations or in any course of dealing established between the Contractor and the Client, except where these terms are a schedule to a signed Agreement between the Client and the Contractor, in which event these terms apply only to the extent not inconsistent with that Agreement.
2.3 The Client acknowledges that the Contractor has not made any representations (other than any expressly stated in the Contract and/or in the Contractor’s estimate) which have induced it to enter into the Contract and the Contract shall constitute the entire understanding between the Client and the Contractor for the performance of the Works (and detailed in paragraph 4 below).
2.4 No modification to the Contract shall be effective unless made by an express written agreement or email exchange between the parties. The signing on behalf of the Contractor of any documentation of the Client shall not imply any modification of the Contract.
2.5 Nothing in this Contract is intended to confer on any person any right to enforce any term which that person would not have but for The Contracts (Rights of Third Parties) Act 1999. Accordingly, a person who is not a party to this Contract shall have no rights under that Act to enforce any of its terms, but this does not affect any right or remedy of such person which exists or is available apart from that Act.
3) Estimates and variations to the price
3.1 Any estimate by the Contractor is subject to withdrawal by the Contractor at any time before receipt of an unqualified acceptance from the Client and shall be deemed to be withdrawn unless so accepted within 60 days from its date.
3.2 Unless otherwise specified by the Contractor in the relevant estimate, an estimate is not a firm or fixed price quotation. It is an estimate of the likely minimum cost of the Works, based on the information made available to the Contractor. The Contractor’s final price will be calculated on the basis specified in the estimate, if any, or, if none, in accordance with the Contractor’s standard Account Rate Card applicable at the time the Works are carried out and may be increased above (but not reduced below) the specified price. Furthermore, the Contractor reserves the right to increase the price before carrying out the Works by an amount equivalent to any increase to the Contractor in the cost of relevant materials, labour, equipment hire or transport since the date upon which the Contractor’s estimate, written, emailed or oral, was given, save that if this would increase the estimated price by more than 10%, the Client may cancel the Contract provided it does so before the Works are begun, any relevant materials are ordered or any relevant equipment is hired.
3.3 The Contractor reserves the right to charge a fee for the collection of materials from its supplier. If the collection occurs whilst the Contractor is on site, the time taken will be treated as an addition to the Works and charged at the relevant rate. If the materials are ordered for subsequent collection and delivery, a charge may be made by the Contractor of £50 plus VAT.
3.4 The Contractors standard Account Rate Card is available for inspection at the Contractors premises during normal business hours. The Account Rate Card specifies hourly rates. Part hours worked are charged at the full hourly rate.
4) The Works
All descriptions and illustrations etc. contained in any catalogues, price lists and advertisements, or otherwise communicated to the Client, are intended merely to present a general idea of the Works and nothing contained in any of them shall form a part of the Contract.
5) The Price
The price payable by the Client is calculated as specified in paragraph 3 above. Unless otherwise stated, the price and all estimates provided by the Contractor are shown exclusive of Value Added Tax which will be payable in addition where properly chargeable.
6.1 Non-Account Clients: Payment by the Client is due on completion of the Works. Payment must be made on such completion.
6.2 Account Clients: The Contractor will seek to submit invoices to the Client upon completion of the Works and, subject to paragraph 8 below, payment must be made by the Client within 30 days after the date of issue of the invoice.
6.3 The Contractor shall be entitled to interest on a daily basis on any amount not paid on the due date for payment from such due date until payment in full at 4% above the Bank of England base rate at the relevant time.
6.4 The Contractor shall not be required to issue or deliver any certificates, guarantees or other similar documents regarding the Works until payment has been made in full.
7) Commencement and Completion Dates
Dates specified for the commencement and completion of the Works are estimates only and time shall not be of the essence of the Contract except as provided in paragraph 16 below.
8) Inspection of Works
The Client shall inspect the Works as far as it is reasonably possible to do so immediately upon their completion and if it considers that the Works or any part thereof are not in accordance with the Contract, it shall within 7 days from the date of inspection give detailed notice in writing thereof. In the absence of any such notice, the Works shall be conclusively presumed to be complete and free from any defect which would be apparent on reasonable examination.
The Client shall indemnify the Contractor against all actions, suits, claims, demands, losses, charges, costs and expenses which the Contractor may suffer or incur in connection with a claim by any third party resulting from a breach of the Client’s obligations, undertakings, representations and warranties in connection with this Contract.
10) Whole agreement and Exclusion of liability
These terms set out the Contractor’s entire liability in respect of the Works and the Contractors liability under them shall be in lieu and to the exclusion of all other warranties, conditions, terms and liabilities, expressed or implied, in respect of the Works and the quality thereof.
11) Limitation of Liability, and Liability of the Contractor
The Contractors liability shall be limited to:
11.1 the repair or making good of any defect pursuant to its undertaking in paragraph 13 below and subject always to paragraph 8 above;
11.2 liability for death or personal injury resulting from negligence in the course of carrying out the Contractors duties, and
11.3 the reasonable costs of repair or reinstatement of any loss or damage to the Client’s property if such loss or damage results from the Contractor’s negligence or that of its employees, agents or sub-contractors and the Client incurs such costs.
The Client shall provide clear access to enable the Contractor to undertake the Works and will make all necessary arrangements with the proper persons or authorities for any traffic controls and signals or other permits or permissions required in connection with the carrying out of the Works. The Client will at all times provide a safe working environment for the Contractor and its employees, agents and sub-contractors for the purposes of carrying out the Works. Where applicable to drainage works, the Client will provide, if possible, a plan showing drain layouts. If this is not available, the Contractor reserves the right to render additional charges at the relevant applicable rate in accordance with paragraph 3.2 above if blockages occur in drains not covered by the specifications or if it is necessary to trace unidentified drains to complete the Works. The Client must obtain any permission for the Contractor to proceed over property belonging to third parties if this is necessary for the proper execution of the Works and shall obtain any permission necessary to carry out work on property belonging to third parties. The Client shall indemnify the Contractor against all claims of whatsoever nature made by third parties arising out of the presence of the Contractor its employees, agents or sub-contractors on the Client’s property save where such claim results directly from negligence on the Contractor’s part. The Client shall be liable to the Contractor for all loss or damage whether direct, indirect or consequential which is suffered by the Contractor as a result of failure or delay by the Client in performing the obligations referred to above.
Subject to paragraph 8 above and the exclusions listed below, the Contractor undertakes to repair or make good any defect in completed work which appears within six months of completion of the same and which is notified by the Client in writing to the Contractor within such period to the extent that such defect arises from a breach of the Contractors obligations under this Contract. This undertaking shall only apply to work carried out and completed and invoiced by the Contractor and which is paid for by the Client by the due date for payment ascertained in accordance with paragraph 6 above. If the Contractor returns to the site at the Clients request to review a claim under this undertaking and it transpires that the defect had not arisen as a result of a breach of this Contract on the part of the Contractor, the Contractor reserves the right to charge the Client for the visit at its standard rate as per paragraph 3 above. The Contractor reserves the right not to carry out any work under this paragraph 13 where the Client cannot evidence that the work was originally carried out and completed by the Contractor or where payment has not been made in full for such work. Exclusions are:
– Systems or structures not installed by the Contractor.
– Any recall arising from circumstances or factors known to the Client but not notified or disclosed to the Contractor prior to the work having been undertaken.
– Defects resulting from misuse, wilful act, or faulty workmanship by the Client or anyone working for or under the direction of the Client.
– Structural defects encompassing but not limited to subsidence and its resultant effect.
– Damage to drainage systems caused by root penetration or any other outside force.
– Any roofing work where the Contractor advises that the overall condition of the roof is poor and is in need of more extensive work and the work to be undertaken involves less than 20% of the area of the roof.
– Any work to repair an existing lock, or to fit any lock not supplied by the Contractor.
14) Force Majeure
The Contractor will use all reasonable endeavours to carry out the Works on the agreed dates but shall not be under any liability to the Client if it should be either impossible or impracticable to carry out the Works on the agreed dates or at all, by reason of strike, lock out, industrial dispute, act of god or any other event or occurrence beyond the Contractor’s control.
15) Client’s Liability
The Client shall be liable for:
– Any loss, damage or injury, whether direct or indirect or consequential, resulting from failure or delay in the performance of the Client’s obligations under these terms.
– Providing all necessary power and a clean water supply for the Contractors use in the execution of the contracted works.
– The safety of both plant and machinery belonging to or hired in by the Contractor or its employees, agents or sub-contractors and shall indemnify the Contractor against its loss, theft or damage.
16.1 If the Client cancels the Contract without the Contractors consent other than pursuant to paragraph 3.2 above, the Client shall indemnify the Contractor against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing, and for the avoidance of doubt any such cancellation is without prejudice to the Contractors right to payment in accordance with paragraph 6 above.
16.2 If the Client wishes to cancel an appointment for a visit by the Contractor, the Client will incur a cancellation fee of a minimum £175 (plus VAT) unless it does so more than two hours prior to the time scheduled for the appointment.
16.3 If the Client cancels work to be undertaken pursuant to an estimate accepted by the Client, subject to paragraph 3.2 above the Client will be liable for a cancellation charge of 5% of the estimate price if the cancellation is made less than 14 days prior to the specified commencement date for the Works, 10% of the estimate price if the cancellation is made less than 7 days prior to the said specified commencement date and 20% of the estimate price if the cancellation is made less than 2 days prior to the said specified commencement date.
17) Removal of Waste Materials
Unless agreed in writing between the parties, the Client will be responsible for the removal from site of all waste materials resulting from the Works.
18) Frozen Pipes
The Contractor will not be liable for any fracture found in frozen pipes attended by the Contractor. The Contractor will not guarantee to clear blockages occurring in a frozen pipe or drain.
19) Waiver, Variation etc.
No waiver by the Contractor of any breach by the Client shall operate as a waiver of any preceding or subsequent breach by the Client. No variation shall be effective against the Contractor unless sanctioned in writing by the Contractor. No forbearance or delay on the Contractor’s part shall prejudice the Contractor’s rights and remedies under this Contract.