STANDARD CONDITIONS OF SERVICE
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Terms and Conditions.
1.1 Definitions:
Act | means the Housing, Grants, Construction and Regeneration Act 1996 (as amended); |
BoQ | has the meaning given to it in clause 2.4; |
Business Day | means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; |
Company | means Flooring Matters SW Ltd registered in England and Wales with company number 10096803; |
Contract | has the meaning in clause 1.3; |
Customer | means the person or firm who purchases the Goods and/or Services from the Company as set out in the Order Form; |
Delivery Location | has the meaning in clause 5.1.3; |
Force Majeure Event | has the meaning given to it in clause 10; |
Goods | means the goods (or any part of them) set out in the Order; |
Order | has the meaning in clause 2.1; |
Retail Prices Index | means the Retail Prices Index or any official index replacing it; |
Services and Works | means the services, supplied by the Company to the Customer as set out in the Contract; |
Site | means the location where the Services or Works are carried out. |
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes email or communication via our online software.
1.3 Any agreement, however made, between the Company and the Customer shall incorporate and be subject to these conditions (together referred to as ‘the Contract’).
1.4 The only terms of the Contract shall be: these conditions and anything contained in the Company’s tender, estimate or acknowledgement of order form which is expressly referred to as intended to be a term of the Contract. Any statement or representation made prior to the date of the Contract (which shall be the date on the Company’s acknowledgment of order form) and in any other way is excluded as a term of the Contract. Any additional terms sought to be imposed by the Customer shall not be incorporated.
2. BASIS OF CONTRACT
2.1 Any order made by a Customer and placed with the Company following a tender or estimate given by the Company must be accepted in writing.
2.2 Any samples, drawings, descriptive matter or advertising issued by the Company and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues, websites or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.3 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.4 Where an enquiry is made by way of a bill of quantity (“BoQ”) by the Customer, the BoQ must be accompanied by detailed finishing drawings provided by the Customer. Where it is not possible to provide such finishing drawings, the Company reserves the right to charge extra for all additional items(including labour and material) reasonably arising from the uncertainty caused at the time of acceptance of the BoQ by the Company (by way of its acknowledgment of order form).
3. PRICES
3.1 Prices shall be stated in the Contract along with details of the goods and services to be provided.
3.2 Prices are subject to an increase where the cost to the Company of labour and materials changes between the date of any tender and the completion of work under the Contract due to the operation of any new laws (including, but not limited to, new regulations) which were not in force at the date of the tender. Such an increase in price shall be charged to the Customer as an adjustment to the price stated in the Contract.
3.3 Any variation to the Contract price occurring due to a variation of the quality, quantity or extent of the work due to instructions issued by the Customer of must be paid for by the Customer.
4. CONDITIONS RELATED TO THE GOODS AND SERVICES TO BE PROVIDED
4.1 The Customer must ensure that adequate and generally acceptable conditions are provided for the Company to provide services under the Contract. This includes, but is not limited to, the provision of an adequate and generally acceptable damp-proof membrane on all floors at ground level or lower than ground floor level. The provision of such a membrane shall be the responsibility of the Customer unless otherwise agreed.
4.2 All floors will be laid square to the main walls and in one colour per material type unless otherwise specified in writing.
4.3 Many vinyl sheet and tile manufacturers recommend the application of a smoothing compound prior to the installation of their material. Where this is required, the cost of this is not included in the quotation and should be regarded as an extra if required. Furthermore, it should be noted that the standard of thickness for a smoothing compound is not to exceed 3mm. Any over and above the standard 3mm will be chargeable at an agreed rate prior to installation.
4.4 The subfloor should be constructed in accordance with the recommendations given in BS 8204‑1. Those responsible for the design and construction of the subfloor should ensure that it meets the requirements for hardness, strength, soundness, levels and surface regularities (see BS 8204‑1), dryness and other design parameters before floor covering installation is commenced.
4.5 The costs incurred by way of abortive journeys to the site, which are aborted by reasons beyond the control of the Company, shall be charged to the Customer.
4.6 In the event of there being an allegation of defective workmanship or material, notice in writing must be given as soon as possible to the Company.
4.7 It is the Customer’s responsibility to ensure that the building is efficiently and properly ventilated and heated before, during and after laying of floors in order to prevent dampness affecting the works. In accordance with clause 11, no responsibility will be accepted by the Company for causes beyond its control.
4.8 Unless safe lockable storage is provided by the Customer, the responsibility for all goods delivered to the Site shall pass to the Customer at the time of delivery. However, for the avoidance of doubt, the ownership of any such goods which were owned by the Company prior to delivery shall remain with the Company unless otherwise agreed.
4.9 The protection of the Works is entirely the responsibility of the Customer, and the Company can accept no claims for damage to the Works caused by others.
4.10 We have assumed that the following attendances will be made available to us free of charge:
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- 240V 32a (minimum 2No.)
- Overhead lighting to an acceptable standard (350 lux)
- Water
- A place to dispose of waste. (Extra for providing a general waste skip – £600/skip).
- All dust sensitive work areas and equipment to be screened off or covered prior to our arrival and any necessary safety barriers installed.
- Fire alarm sensors within the working area to be isolated.
- A secure, dry storage/mixing area adjacent to the work area.
- A minimum ambient temperature of 18°C to be maintained in the work/storage area during storage, laying and curing.
- Use of normal welfare facilities.
- Parking for vehicles close to the working area.
- All areas to be weatherproof.
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5. DELIVERY OF GOODS
5.1 The Company shall ensure that:
5.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Company reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
5.1.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Company. The Customer shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.
5.1.3 The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Company notifies the Customer that the Goods are ready.
5.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
5.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.5 If the Customer fails to accept delivery of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
5.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company notified the Customer that the Goods were ready; and
5.5.2 the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.6 If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
5.7 If the Company delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them.
5.8 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6. QUALITY OF GOODS
6.1 The Company warrants that on delivery the Goods shall:
6.1.1 conform with their description;
6.1.2 be free from material defects in design, material and workmanship;
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4 be fit for any purpose held out by the Company.
6.2 Subject to clause 6.3, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
6.2.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1 if;
6.2.2 the Company is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost.
6.3 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if:
6.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause2;
6.3.2 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.3.3 the defect arises as a result of the Company following any drawing or design supplied by the Customer;
6.3.4 the Customer alters or repairs such Goods without the written consent of the Company;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 6, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.
6.5 Potential defects should be inspected from a normal viewing position, either standing or seated. When viewing the floor, only those features which would be immediately obvious to any independent party should be considered as potential issues. Careful positioning of backlighting, and unusual viewing angles (crouching or kneeling, etc) would not be considered reasonable criteria for identifying a visual defect.
6.6 The terms of these Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Company.
7. RETENTION OF TITLE AND RISK
7.1 The legal title to any materials delivered or provided under the Contract shall remain vested in the Company until payment for the materials, or work and materials, has been received by the Company. Failing receipt of such payment the Company may at any time recover the materials from site.
8. SUPPLY OF SERVICES
8.1 The Company shall supply the Services to the Customer in accordance with the Contract.
8.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Company reserves the right to amend the Services to be provided 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 Company shall notify the Customer in any such event.
8.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
8.5 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer (its contractor or any other sub-contractor) or failure by the Customer (its contractor or any other sub-contractor) to perform any relevant obligation (“Customer Default”):
8.5.1 without limiting or affecting any other right or remedy available to it, the Company 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 Company’s performance of any of its obligations;
8.5.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 8.5; and
8.5.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
9. PAYMENT
9.1 The amount the Customer is liable to pay shall be made clear by the submitting of an invoice by the Company to the Customer. In the event that payment of an invoice is not received by the due date, the Company shall reserve the right to withdraw from the Contract without prejudice to the Company’s right to recover payment for goods supplied to the Customer and for the work already completed under the Contract and without incurring any liability for any resultant, direct or indirect, cost or expense (but with the right to recover any losses incurred by it).
9.2 The Company shall use its best endeavours to comply with any agreed written programme for the completion of the works in the Contract. In the event that the Company is delayed in the completion of the works or any part of the works due to the actions of the Customer, his Contractor or any other sub-Contractor, the Company shall be entitled to be reimbursed the direct loss and expense incurred by him as a result of such delays.
9.3 No deductions or set-offs shall be made from payments due to the Company unless prior agreement has been made in writing.
10. FORCE MAJEURE
10.1 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 such as by way of industrial action, adverse weather, fire, flood or any other circumstances (a Force Majeure Event).
11. THE ACT
11.1 Where matters have not been dealt with in the Contract, the applicable terms of the Housing, Construction and Regeneration Act 1996 (as amended, the “Act”) apply. In particular the terms of the Act relating to Payment, Suspension and Dispute Resolution are incorporated. A schedule of these terms is available from the Company upon request.
12. DISPUTES
12.1 Subject to either party’s right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation.
12.2 Notwithstanding any other provision of this agreement, either party may refer a dispute arising under this agreement to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations (as amended), which Part shall take effect as if it was incorporated into this clause.
12.3 The adjudicator shall be one of the following: a person agreed between the parties and, in the event that no agreement is reached, an adjudicator nominated by the Association of Independent Construction Adjudicators shall be appointed.
13. GENERAL
13.1 Assignment and other dealings
13.1.1 The Company 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.
13.1.2 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 without the prior written consent of the Company.
13.2 Notices
13.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) 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
(b) sent by email to the address specified in the Contract (if applicable).
13.2.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(c) if sent by email, or via one of our online message service at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
13.2.3 This clause 18.2 does not apply to the service of any proceedings or other documents in any legal action or, were applicable, any arbitration or other method of dispute resolution.
13.3 Severance
13.3.1 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 shall not affect the validity and enforceability of the rest of the Contract.
13.4 Waiver
13.4.1 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.
13.5 Partnership or agency
13.5.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.6 Entire agreement
13.6.1 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.
13.6.2 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 based on any statement in the Contract.
13.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
13.7 Third party rights
13.7.1 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.
13.8 Variation
13.8.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
13.9 The Act
13.9.1 Where matters have not been dealt with in the Contract, the applicable terms of the Act apply. In particular the terms of the Act relating to Payment, Suspension and Dispute Resolution are incorporated.
13.10 Jurisdiction
13.10.1 This Contract shall be deemed to be governed in accordance with English law.
13.10.2 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.
SCHEDULE SUMMARISING OBLIGATIONS DERIVED FROM THE HOUSING, GRANTS, CONSTRUCTION & REGENERATION ACT 1996
(the “ACT”)
These terms reflect terms of the Act and should be read in conjunction with the Contract Flooring Standard Conditions of Service.
Where there is any difference between these terms and the Standard Conditions, the latter take precedence to the extent permitted by the Act and the law generally.
1. Payment
1.1 Payment terms are set out in the Contract. However, to the extent that they are not set out in the Contract, the fee shall be paid at intervals of not less than one month, beginning one month after the Company begins performing the Services.
1.2 The Company shall submit to the Customer an invoice for each instalment of fee, together with any supporting documents that are reasonably necessary to check the invoice. The invoice and supporting documents (if any) shall specify the sum that the Company considers will become due on the payment due date in respect of the instalment of the fee, and the basis on which that sum is calculated.
1.3 Payment shall be due on the date the Customer receives each invoice.
1.4 No later than five days after payment becomes due, the Customer shall notify the Company of the sum that the Customer considers to have been due at the payment due date in respect of the payment and the basis on which that sum is calculated.
1.5 The final date for payment shall be 28 days after the date on which payment becomes due.
1.6 Subject to clause 1.9 and unless the Customer has served a notice under clause 1.7, it shall pay the Company the sum referred to in the Customer’s notice under clause 1.4 (or, if the Customer has not served notice under clause 1.4, the sum referred to in the invoice referred to in clause 1.2 ) (in this clause 1, the notified sum) on or before the final date for payment of each invoice.
1.7 Not less that seven days before the final date for payment (in this clause 1, the prescribed period), the Customer may give the Company notice that it intends to pay less than the notified sum (in this clause 1, a pay less notice). Any pay less notice shall specify:
(a) the sum that the Customer considers to be due on the date the notice is served; and
(b) the basis on which that sum is calculated.
1.8 If the Customer fails to pay an amount due to the Company by the final date for payment and fails to give a pay less notice under clause 1.7, simple interest shall be added to the unpaid amount from the final date for payment until the actual date of payment. This shall be calculated on a daily basis at the annual rate of 5% above the Base Rate of the Bank of England.
1.9 Notwithstanding clause 1.6 and clause 1.7, if the Company becomes insolvent after the prescribed period, the Customer shall not be required to pay the Company the notified sum on or before the final date for payment.
2. Suspension
2.1 If:
(a) subject to clause 1.9, the Customer fails to pay in full the notified sum to the Company under this agreement by the final date for payment under clause 1; and
(b) the Customer has not given a pay less notice complying with clause 1,
the Company may suspend the performance of any or all of its Services and other obligations under this agreement by giving not less that seven days’ notice to the Customer of its intention to do so and stating the ground or grounds on which it intends to suspend performance.
2.2 In the event of a suspension in accordance with this agreement, the Customer shall pay the Company:
(a) a reasonable amount in respect of costs and expenses reasonably incurred by the Company as a result of any exercise of its right referred to in clause 2.2; and
(b) taking into account any sum paid under clause 2.2(a) any adjustment to the Fees due under the Contract
and such payment shall be the Company’s sole compensation for suspension of its Services and obligations under this agreement.
V6-issued 4/4/24