Terms and Conditions
TERMS AND CONDITIONS OF SALE OF GOODS AND SERVICE
These are the Terms and Conditions that shall apply to the Goods and Services supplied by Maxwood Washrooms Limited (Company Number 08126619) of Bodmin Road, Wyken, Coventry, CV2 5DB, VAT registration number 396929621.
These Terms and Conditions shall take precedence over any inconsistent provisions of any other contract documents. The Customer’s acceptance of these terms and conditions shall be evidenced by the Customer’s signature or by permitting Maxwood to commence the Services.
1. DEFINITIONS
1.1 The following definitions shall apply to these terms and conditions:
Commencement Date: the date upon which the Services shall commence on site as set out in Our Order Confirmation.
Completion Date: the date for completion of the Services or of a Section or Phase of the Services as divided by Us (and subject to amendment by Us from time to time).
Contract: the agreement between Us and the Customer incorporating these terms and conditions.
Contract Programme: a document stating or indicating anticipated dates for the commencement and completion of one or more individual activities or operations or stating or indicating a sequence by which one or more individual activities or operations are to be carried out.
Contract Sum: the amount stated in the Proposal and any adjustment to it which is agreed in writing by Us.
Customer/You/Your/s: the person, business, company or organisation to whom We agree to supply the Goods and/or Services.
Data Protection Legislation: the UK General Data Protection Regulation (“UK GDPR”) and the Data Protection Act 2018 as amended or updated from time to time, and any successor legislation to the UK GDPR or the Data Protection Act 2018 and all other applicable statutes, directives, or regulations which may supplement, amend, or replace them and relate to data privacy.
Employer: the party who has engaged the Customer to complete the Main Contract.
Final Date for Payment:
Goods: such goods as are manufactured, produced or procured by Us for the provision of the Services.
Installation: Where We are providing both a supply and install service to You, Installation means the distribution and fitting of products into the Site. In such circumstance vertical lifting must be provided by You.
Intellectual Property Rights: means patents, copyright, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, know-how and trade secrets 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.
Main Contract: the agreement between the Customer and the Employer
Maxwood/We/Us/Our/s: Maxwood Washrooms Limited
Notified Sum:
Order: the order provided by the Customer to which these terms and conditions shall apply
Order Confirmation: means the email We sent You acknowledging Your Order.
Quotations: the proposal setting out the Services to be provided to the Customer and the costs involved which shall, if not accepted by the Customer, lapse after a period of 30 days unless We agree that it may be extended. We reserve the right to withdraw any Quotation at any time before Our Order Acknowledgment.
Proposal: Our document setting out Our quotation for the Services together with any accompanying documentation.
Relevant Event/s: as set out in clause 5.
Section/s: the division of the Services into different sections as shown in the Proposal.
Services/ Sub-Contract Works/The Works: the services to be carried out by Us including materials, goods or plant delivered to, placed on or adjacent to the Site.
Site: the location set out in the Proposal where We will provide the Services.
Workshop Drawing/s Work: The detailed drawings that We supply to You for sign off by You for our manufacturing purposes.
Working Hours: Our standard working hours are Monday to Friday 07:30 to 16:00
2. CONTRACT DOCUMENTATION
2.1. No other document included by way of reference in Your correspondence will be binding upon Us or form part of the Contract between the parties.
2.2. We are entitled to rely on the accuracy and completeness of any plans and specifications and reports of site conditions provided to Us by You. Our obligation to examine documents, the site for the Services and materials and work completed by others is limited to notification by You of any defects or deficiencies that any reasonable contractor in the same or similar trade as Us would discover by reasonable visual inspection.
2.3. Unless otherwise notified in writing by You, We shall be entitled to rely and act on any instruction from any person purporting to be Your agent/employee.
3. CARRYING OUT OF THE SERVICES
3.1. We shall carry out and complete the Services as stated in the Proposal using material and workmanship of the qualities and standards specified in the Proposal or where none are specified, using all reasonable skill and care and of a standard and quality commensurate with the price paid for the Services.
3.2. We shall commence the Services on Site on the Commencement Date on the condition that You have promptly approved any Workshop Drawings and You have made any payment as set out in clause 4. We will use all reasonable endeavours to complete the Services by the Completion Date or such other date as may be agreed by the parties in writing.
3.3. Time shall not be of the essence in respect of any provision of the Services by Us. Any changes to the phasing, sequencing or coordination of the Services must be notified in writing to Us within a reasonable time of changes to the Main Contract to (where such a contract is in existence) allow Us to reschedule Our own programme. We shall not be liable for any delay in the provision of the Services which caused by circumstances beyond Our control.
3.4. Where We are unable to gain access to the Site in order to provide the Services, We shall be entitled to charge You in respect of the wasted delivery time and all other costs incurred by Us. We may deliver the Services in instalments.
3.5. We shall not be responsible for removal of anything used to protect the Services, or to replace the protection afterwards, including those removed by others. Where such removal is necessary in order to enable signature of documentation to facilitate practical completion, We shall not be liable for such removal and shall have no liability in the event that practical completion is delayed as a consequence.
3.6. Final removal of protection or cleaning of the Services shall be completed by the Customer.
3.7. You accept and agree that measurements may not be exact and that tolerances of +/- 1.5mm for both length and width between individual components as stipulated in BS4965:1999 (or such other tolerances as may be industry accepted standards from time to time), are acceptable and You shall have no rights in respect of such variances to the Services. It is Your responsibility to ensure any wall opening or ceiling height shall be within 5mm of agreed dimensions and We do not accept any liability in respect of this if You do not do so.
4. CONTRACT SUM AND PAYMENT
4.1. The Contract Sum shall be the VAT exclusive sum set out in the Proposal together with any variations agreed between the parties. The different sections of the Services may have separate Contract Sums. In addition to the Contract sum You shall pay VAT
4.2. The Contract Sum expressly excludes the following costs and expenses:
4.2.1 the provision of any vesting certificate, performance bond or collateral warranty or other such item;
4.2.2 cleaning or removal of any protection; or
4.2.3 the provision of any access equipment and/or safety barriers or any additional security or safety protection surrounding the Services.
In the event that You require any of those items set out in clauses 4.2.1 to 4.2.3 (“Additional Services”) You shall inform Us in writing and request a fee quotation from Us. Upon receipt of a written instruction to provide such Additional Services, We shall provide Completion Dates for the completion of the additional services. We shall have no liability whatsoever in respect of any delay caused as a result of Your failure to request such Additional Services in a timely manner.
4.3. Payment for Services undertaken are due on the date set out in the Payment Schedule provided by Us or in the absence of a Payment Schedule payment shall be in accordance with any credit terms that We agree with You.
4.4. We shall submit invoices for payment in accordance with the dates agreed in the Payment Schedule or as set out in clause 4.3. Each invoice will specify the sum due for payment, the final date for payment and the basis upon which the sum due for payment has been calculated.
4.5. Except as expressly set out in these terms and conditions, all other sums will be due for payment by no later than 30 days from the date of the invoice.
4.6. If You fail to pay the amount due to Us by the final date for payment, interest may be added to the unpaid amount from the final date of payment until the actual date of payment. This shall be calculated on a daily basis at the annual rate of 8% above the base rate set from time to time by the Bank of England. The parties acknowledge that the Your Liability under this paragraph 4.6 is a substantial remedy for the purposes of section 8(1) of the Late Payment of Commercial Debt (Interest) Act 1998.
4.7 We may require a deposit to be paid, in advance of the provision of Services and may at any time during the performance of the contract request that payment be made by instalments.
4.8 We may allow You to have an approved credit account and this will be on such terms as We shall specify.
4.9 We may in Our absolute discretion, decline any application for a credit account and We are not obliged to give any reason for such decision.
4.10 In the event that We agree credit terms with You, We may, in Our absolute discretion, and without liability to You, at any time and without notice either:
4.10.1 withdraw You credit account;
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reduce any credit limit or
4.10.3 bring forward the due date for payment.
4.11 By placing an order with Us or applying for a credit account, You:
4.11.1 consent to Us carrying out such credit referencing and other due diligence as We consider appropriate on an ongoing basis; and
4.11.2 agree that You shall, at Our request, provide all information reasonably requested by Us in relation to Your creditworthiness (and where relevant that of any Employer) and shall promptly notify Us of any material changes in Your (or the Employer’s) identity or financial arrangements.
4.12 If You fail to pay any sums due to Us under this Contract, or any other Contract that We have in place with You, by the final date for payment We may suspend the performance of any or Our entire Services and other obligations to You by giving not less than three days’ notice to You of Our intention to do so and stating the ground or grounds on which We intend to suspend performance.
4.13. In the event of a suspension in accordance with this Contract, You shall pay Us:
4.13.1. A reasonable amount in respect of costs and expenses reasonably incurred by Us as a result of any exercise of Our rights referred to in clause 4.12;
4.13.1. Taking into account any sums paid under clause 4.13.1 all reasonable expenses and disbursements properly and necessarily incurred by Us in resuming the performance of the Services and such payment shall be Our compensation for suspension of Our Services and obligations under this Contract.
5. PROGRAMMING, EXTENSION OF TIME AND ADDITIONAL SUM
5.1. We have priced Our Contract Sum so that Installation takes place in one continuous visit and on the assumption that You have provided to Us accurate and timely information. We shall be entitled to an extra payment in addition to the Contract Sum for (including but not limited to) any increased cost of labour, supervision, equipment or materials, reasonable overheads and profits in the event that the following events (“Relevant Events”) occur:-
5.1.1. The Contract Programme is varied from the original programme or there are any changes to the Commencement Date not caused by Us;
5.1.2. Any delays or disruptions (which are not caused by Us) due to changes in the scope, size and complexity of the Services;
5.1.3. The Services are accelerated or We have to execute them out of sequence;
5.1.4. There are any Contract Programme changes beyond Our reasonable control including but not limited to those caused by pandemic or epidemic, strike, fire, flood, delays in manufacture or transportation of goods or material required for the Services;
5.1.5. Suspension by Us of the performance of any or all Our obligations or the Services due to Your failure to pay Us any sums due to Us whatsoever;
5.1.6. Late or delayed instruction from You in such event, We shall not be liable to pay any liquidated or ascertained damages;
5.1.7. Other delays caused by You;
5.1.8. Services carried out outside normal Working Hours;
5.1.9. Abortive site visits or time spent on site not carrying out the Services where not due to any act or default on Our part; or
5.1.10 There has been an increase in the cost of raw materials, labour, utilities or other such items since the date that the Contract Sum was stated by Us.
5.1.11 Any variations instructed for additional works must include the details and the value of the works being requested.
5.2. We shall be entitled to an extension of time for the performance of the Services, without any liability to You, if it becomes reasonably apparent that the progress of the Services or any section of the Services are being or likely to be delayed as a result of any of the Relevant Events or any other causes or delays and We have given 3 day’s notice to You. We shall state in Our notice the expected period of delay in the completion of the Services or any section of the Services beyond the relevant Completion Date.
5.3 We shall be entitled to an extension of time for any extra services or changes which You instruct Us to complete (either verbally or in writing) provided that We give You notice (in writing or verbally) identifying the date and source of instruction considered as requesting extra services. We shall be entitled to payment for the extra services.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Intellectual Property Rights in any materials, Software and/or equipment, in whatever form, existing prior to the entering into of a Contract, or developed solely by one party entirely independently and unrelated to the Contract, shall be owned by the developing party.
6.2 The Intellectual Property Rights in any materials, Software and/or equipment, including drawings, designs, specifications or data, developed or produced by Us in pursuance of a Contract shall remain vested in Us unless specifically agreed otherwise in writing by Us prior to entering into the Contract.
7. WARRANTIES AND LIABILITIES
7.1. You expressly acknowledge and agree that We do not warrant the adequacy, sufficiency, suitability or building regulations compliance of the plans, specifications or Services and it shall be Your sole responsibility for ensuring that any Services supplied by Us meet Your requirements and are fit for Your purposes.
7.2. All materials and Services shall be provided in accordance with the respective industry’s performance standards and with reasonable skill and care.
7.3 Save as set out in clause 7.2 We give no other warranties and We exclude, to the fullest extent permitted by law, all warranties, terms and conditions that would otherwise be implied into the Contract, including all warranties implied by law, custom and practice and course of dealing as to the quality of Goods and/or Services and their fitness for purpose.
7.4 Subject to clause 7.10 We shall not be liable, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise for any defect in the Goods or the Services
7.5 You shall inspect the Goods on delivery. If any Goods are defective on delivery (or only partially delivered) You must:
7.5.1 inform Us (in writing), with full details within 48 hours of delivery; and
7.5.2 allow Us to investigate the alleged defect; and
7.5.3 return any Goods to Us at Your expense when We ask You to do so.
7.6 We shall not be liable for any defect in relation to the Services where:
7.6.1 the defect arises because You have failed to follow Our instructions as to the storage, installation, commissioning, use or maintenance of the Goods (or if there are none, good practice); or
7.6.2 You replace, repair or fit parts to the Goods which were not supplied by Us or without Our written consent; or
7.6.3 You have stored, handled or applied the Goods in such a way that damage is likely to occur; or
7.6.4 the defect is caused by vandalism or damage caused by someone other than Us; or
7.6.5 the defect is as a result of any factor not know to Us at the time We entered into the Contract with You; or
7.6.6 the defect is as a result of ground conditions, moisture levels, sunlight, shade or other such factors.
7.7 If, following Our investigations, the Goods have not been supplied or any Goods or Services supplied are found to be defective, and You have complied in full with clause 7.5, We shall, at Our sole option replace or repair the Goods, re-perform the Services or refund the price of Goods.
7.8 Subject to clause 7.10, We shall not be liable to You or to any person claiming through You for any loss or injury howsoever arising from the Contract, any collateral contract, the supply of Goods or their use or the provision of Services.
7.9 Subject to clause 7.10, Our liability to You for all other losses arising under or in connection with the Contract or any collateral contract, whether in contract (including fundamental breach), tort (including negligence), breach of statutory duty or otherwise shall be limited to the Contract Sum or £50,000 whichever is the lower sum.
7.10 Nothing in the Contract restricts or limits Our liability for death or personal injury resulting from negligence, for fraud or for any other liability which may not be excluded or restricted by law.
8. TITLE AND RISK
8.1. Unfixed materials and goods delivered to site, or tools placed on or adjacent to the site by Us, Our servants, agents, suppliers or independent contractors shall not be removed from site unless We have given prior written consent. You will be liable to pay Us for the deemed value of any items that are missing and for any consequential loss of working time.
8.2. All Goods shall remain Our property until You have paid all sums due to Us.
8.3. Plant, tools and equipment shall remain Our property at all times.
8.4. You shall furnish all temporary site facilities, including but not limited to site access, storage space, access scaffolding, floor covers, on-site security, parking, electrical services, lighting, heat, rubbish and recycling facilities.
9. INSURANCE
9.1. You shall ensure that You are fully insured and shall maintain all relevant insurance to cover all of Your liabilities under this Contract and shall, when requested to do so, supply evidence of such insurance to Us.
10. TERMINATION OF CONTRACT
10.1 We may suspend or cancel this Contract or any part of it, by written notice if:
10.1.1 You fail to pay Us any money when due (under the Contract or otherwise);
10.1.2 You do not comply with any of Your obligations under this Contract;or
10.1.3 You suffer an Insolvency Event.
10.2 Subject to clause 10.2, You may only cancel the Contract or any part of it if We agree in writing and, in such circumstances, You shall pay Us the sums due for costs incurred up to cancellation, including:
10.2.1 any material, processing and manufacturing costs;
10.2.2 the price of bespoke Goods and/or Services;
10.2.3 costs of failed delivery attempts; and
10.2.4 any other costs related to the Contract which We have incurred.
10.3 “Insolvency Event” means if You go into liquidation or a winding up petition is presented in respect of you (other than for the purpose of a solvent bona fide reconstruction) and such petition is not discharged within 7 days of its presentation or an order is made for the appointment of an administrator or documents are filed for the appointment of an administrator or notice of intention to appoint an administrator is given by You, Your directors or a qualifying floating charge holder, or a receiver or administrative receiver is appointed over the whole or any part of Your assets of You propose to enter or make any arrangement or composition with Your creditors or make an application to a court for the protection of Your creditors in any way, are otherwise unable to pay Your debts (within the meaning of any relevant insolvency law) or are the subject of any similar event in any jurisdiction;
10.4 In the event of any termination of this Contract, We shall be entitled to payment from You for all costs incurred by Us for which We have not received payment, plus reasonable overhead, profit, expenses, legal fees, interest, and overhead and profit on unperformed work.
11 ADJUDUCATION
11.1. In the event of any dispute or difference between Us and You in regard to any matter or thing of whatsoever nature arising out of this Contract or in relation to the Works, such dispute or difference shall be referred to an Adjudicator named by the Royal Institute of Chartered Surveyors. The appointment of an Adjudicator, the powers of the Adjudicator and the effects of the Adjudicator’s decision shall then be in accordance with those set out and included under Part 1 if the Scheme for Construction Contracts (England and Wales) Regulations 1996.
12. GENERAL
12.1 Any waiver of a part of the Contract is binding only if it is made (or recorded by Us) in writing and expressly states an intention to waive a part of these Conditions. Such a waiver shall not be deemed to be a waiver of any subsequent breach or default.
12.2 No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.3 Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Us.
12.4 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 If We are unable to perform Our obligation to You under the Contract because of a Force Majeure Event We may, without liability to You cancel or suspend any of Our obligations to You on notice.
12.7 Both parties agree to comply with their respective obligations under the Data Protection Legislation in respect of any Personal Data, which they supply or receive under, or in connection with, this Contract in their respective roles as either Data Controller or Data Processor (as defined under Data Protection Legislation). Where a party is Data Controller it will ensure that it has obtained from all relevant Employees all consents which may be necessary in order for it, or the Data Processor, to lawfully process Personal Data about those Employees for the purposes of delivering the Services and Products. The parties both warrant that they shall both take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data.
12.8 If any provision of this Contract (or part of any provision) is held by any competent authority to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Contract, and the validity and enforceability of the other provisions of this Contract shall not be affected.
12.9 Any notice given in respect of this Contract shall be deemed to have been given if delivered personally (including by courier) to either party at their respective addresses indicated on the order, or at such other address as may be notified by either party from time to time in writing, at the time of delivery or if sent by prepaid, recorded delivery, or first class post in the UK, 2 Business Days after posting or if outside the UK, 7 Business Days after posting.
12.10 Except as expressly provided for in this clause 12.10 a person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. Our assignees shall have the right to enforce the provisions of this Contract.
12.11 We may at any time assign, transfer, charge, subcontractor deal in any other manner with all or any of Our rights under the Contract and may subcontract or delegate in any manner any or all of Our obligations under the Contract to any third party.
12.12 You shall not, without Our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of Your rights or obligations under the Contract.
12.13 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales.