GLENDINNING CONTRACTINGGENERAL CONDITIONS
1.1 “the Company” means E & J W Glendinning Limited
1.2 “the Quotation” means the quotation on the front of the page containing these Conditions and all attachments and enclosures with the Quotation.
1.3 “the Works” means the work to be undertaken by the Company and specified in the Quotation and/or the bill of quantitiesattached to the Quotation.
1.4 Acceptance of Order means the Acceptance of Order referred to in Condition 2.3.
1.5 “the Customer” means the person, firm or company to whom the Quotation and Acceptance of Order are addressed.
1.6 “the Contract” means the Contract between the Company and the Customer for the carrying out of the Works.
1.7 “Consumer” shall have the meaning ascribed in section 12 of the Unfair Contract Terms Act 1977.
2.1 The Company shall carry out the Works and the Customer shall pay for the Works in accordance with the Quotation and these Conditions.
2.2 Any specific notes or terms on the Quotation or the Company’s Acceptance of Order will take precedence over any conflicting provisions of these Conditions. Otherwise, these Conditions shall govern the Contract to the exclusion of any other terms and conditions (including any terms and conditions which the Customer purports to apply under any order, confirmation of order or similar document).
2.3 An order for the Works by the Customer to the Company shall be deemed to be an offer by the Customer for the Company to carry out the Works subject to the Quotation and these Conditions and no order submitted by the Customer shall be deemed to be accepted by the Company until an Acceptance of Order is sent by the Company to the Customer.
2.4 The Quotation is given on the basis that no Contract will come into existence until the Company accepts an order from the Customer in accordance with Condition 2.3. The Quotation is valid and open for acceptance for a period of 60 days only from the date of the Quotation subject to earlier withdrawal by the Company.
2.5 No variation to the Contract and these Conditions shall be binding unless agreed in writing by an authorised employee of the Company.
2.6 The Contract constitutes the entire agreement between the Company and the Customer and supersedes any previous agreements and understandings in respect of the Works.
3. VARIATION OF PRICE
3.1 The maximum number and type of visits allowed for is shown on the Quotation. Any additional visits will be subject to an extra charge for all additional costs incurred including transporting labour and plant to and from site, reduction in output and any other consequential affects relating to the additional visits.
3.2 The Works have been priced as being undertaken during the Company’s normal working day 8.00am to 6.00pm in a five day working week, Monday to Friday inclusive. Any work undertake outside these hours either from the instructions or actions of the Customer or due to causes beyond the Company’s control, shall be subject to additional charges.
3.3 The Quotation is based upon the Company’s current costs including the current rates of labour, fuel, transport and materials as at the date of the Quotation. The Company reserves the right to pass on any subsequent increase in cost to the Customer, which may occur up to the date of commencement of the Works.
3.4 The price for the Works shall be subject to the addition of VAT and a sum equal to any other government duty, tax or levy applicable to the Goods
4.1 Unless specifically detailed in the Quotation, no allowance has been made for cleaning or any other preparatory work required prior to or during the Works including the application of weedkiller, tack coat, bituminous sealing grit, surface dressing, adjustment of ironwork (e.g. manholes, drains etc.), cutting of joints and pre-sealing of same, or adjustment of any existing drainage or services (e.g. Telecom, Water, Electricity, Gas etc.). Also, no allowance has been made for excavation in rock or hard materials requiring the use of specialist tools etc).
4.2 The Quotation is submitted subject to the availability of supplies, materials, labour and plant at the time of execution of the Works.
4.3 Any time, period or date for delivery stated in the Quotation and the Contract is an estimate only with time not being of the essence. The Company shall not be liable for any damages or losses (including as a result of negligence) arising out of failure to meet such time, period or date.
4.4 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification provided by the Customer) and providing to the Company all necessary information relating to the Works within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
4.5 It shall be the obligation of the Customer to check and ascertain (taking professional advice where appropriate) that the Works are appropriate for the use intended by the Customer and the Company makes no representations or warranty as to their suitability for any specific use or for their incorporation into any structure, building or works.
4.6 The Company shall not be liable for any defects in respect of design.
4.7 The Company shall not be liablefor any subsidence or any other damage over which it has no control, or for any damage caused by the Company’s plant orequipment toanything below surface level or to any kerbs, manhole covers, drains etc. unless proven to be caused by the negligence of the Company’s employees.
4.8 The Company is not responsible or liable for any defects or subsidence arising from the unsuitability or weakness of the formation on which materials are to be applied and the Customer is to ensure that such formation is of adequate strength to take the weight of the Company’s plant, equipment and loaded delivery vehicles.
4.9 Should the Company be required to lay materials against, around or over kerbs, edging, walls, ironworks or other structures the Company shall have no liability for any damage to these items caused by any reasonable pressures exerted on them as a result of the specified plant and methods employed to lay and compact materials. Such structures should be of adequate strength to support the normal operating loads exerted by compaction equipment when it is necessary for that equipment to pass over or adjacent to the structures.
4.10 Formation levels and line when presented to the Company shall be of a particular fall that will ensure the removal of surface water. All crossfalls, cambers and longitudinal falls are deemed to comply with the current British Standards or other official standards relating to the laying of coated materials that apply to this Contract. Unless otherwise agreed the Customer will provide details of falls.
4.11 Levels of ironwork and kerbs are deemed to be laid to the correct levels. Unless the requirement of the surface level is given by other means (i.e. level pins) the Company will lay surfacing to levels as given by the kerbs and ironwork.
4.12 The Company shall have no liability arising from the Customer having failed to ensure that the ground works have been properly prepared in all respects or where the means of access is not appropriate for the Company’s plant and machinery.
4.13 The Company shall have no liabilityfor delays, non-execution of the Works or defects,either in whole or part, caused by circumstances beyond the Company’s control (“force majeure conditions”).
4.14 Without limiting the generality of Condition 4.13. force majeure conditions shall include governmental actions, war or threat of war, national emergency, riot, civil disturbance, malicious damage, sabotage, insurrection or requisition, act of God, fire, explosion, flood, frost, storms, tempest, epidemic or accident; import or export regulations or embargoes or compliance with any governmental, parliamentary or local authority order, rule, regulation, direction or bye-law; strikes, lock-outs or other industrial actions or trade or labour disputes (including actions or disputes involving the Company’s work force); inability to obtain, or delay in, obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour; or power failure or breakdown of machinery.
4.15 Except as may be implied by law where the Customer is dealing as a Consumer, the Company shall not be liable to the Customer in contract, tort (including negligence) or for breach of statutory duty for any loss of profit, loss of income, loss of revenue, loss of goodwill, loss of anticipated savings, loss of data, loss of opportunity or losses calculation by reference to profits, income, business, revenue, good will, anticipated savings, data or opportunity (in all cases whether direct or indirect) or any indirect, consequential or economic loss of any kind whatsoever which the Customer may suffer or incur by reason of any act, omission,neglect ordefault (including negligence) in connection with the Contract and/or the Works by the Company, it’s employees, agents or sub-contractors.
4.16 Nothing in these Conditions shall:
4.16.1 Limit or exclude the liability of the Company for death or personal injury resulting from the negligence of the Company, its employees or agents;
4.16.2 Limit or exclude the liability of the Company for fraudulent misrepresentation.
4.17 Nothing in the Contract or these Conditions shall affect the Customer’s statutoryrights.
4.18 Unless expressly agreed in writing all defects are to be notified within a period of 12 months from completion of the Works.
4.19 If during the period of 12 months from completion of the Works a material defect with the Works is discovered and:
4.19.1 The Customer notifies the Company within 7 days after discovery of the alleged defect giving particulars and permits the Company to inspect the same; and
4.19.2 The defect has arisen from faulty materials employed or faulty workmanship carried out by the Company existing but not discoverable upon inspection at the time of carrying out the Works;
4.19.3 Then the Company shall at its sole discretion be entitled to rectify the defective work provided always that the Company is given full and unobstructed access to the Customer’s premises.
4.20 The Company’s liability under Condition 4.19 applies only to defects appearing before the Customer makes any modification or alteration to the Works and the area in respect of which the Works were carried out (“the Works Area”) and the Company shall not be liable in the case of defects arising from:
4.20.1 Normal deterioration;
4.20.2 Repair of or modification to the Works and/or the Works Area by or on behalf of the Customer;
4.20.3 Defects in or subsidence to any structural surface where the Works were carried out.
4.20.4 Wilful damage, negligence, misuse or any other interference with the Works and/or Works Area by the Customer or any other person;
4.20.5 Failure to properly maintain the Works and/or the Works Area;
4.20.6 Faulty design;
4.20.7 Extremes of weather;
4.20.8 A change in use of the Works Area;
4.20.9 A breach or other non-compliance by the Customer of Conditions 4.1, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.114.12, 4.13 and 4.14.
4.21 Except as otherwise set out in the Contract and these Conditions the liability of the Company, whether in contract or in tort, arising out of or in connection with any act, omission, neglect or default of the Company, its employees, agents or sub-contractors in connection with the Contract and the Works shall be limited to a refund of the price paid by the Customer pursuant to the Contract.
5. SITE REQUIREMENTS
The Customer must ensure that:
5.1 There is safe and adequate clear access for the use of plant machinery and vehicles.
5.2 The Work Area is owned by the Customer or the Customer is entitled to exclusive possession of the Works Area.
5.3 Adequate traffic management is maintained wherever and whenever necessary.
5.4 Where health and safety facilities are provided including the use of toilet and messing arrangements where these are provided by the Customer for their own employee’s, such facilities must comply with current legislation.
5.5 There is adequate water supply.
5.6 All ground works have been properly prepared.
5.7 All necessary weed killing has been carried out.
5.8 The Customer agrees to indemnifythe Company against any claims whatsoever arising from a breach by the Customer of any Conditions 5.1 to 5.7 inclusive.
6. TERMS OF PAYMENT
6.1 The terms of payment will be as set out in the Quotation. The settlement terms are for payment within 28 days of being invoicedunless otherwise stated.
6.2 Interim invoices may be issued by the Company which, unless otherwise stated, will be for not more that 90% of the value of work then done and when so issued are immediately due for payment without deduction.
6.3 Final invoices, unless otherwise stated, are to be based upon a re-measurement of the area of work done.
6.4 Unless otherwise agreed in writing no retentions shall apply. Where retentions are specifically provided for in the Contract they shall become payable upon the termination of the agreed defects period, if any, or upon the expiry of three months from the date of issue of the final invoice, whichever is the sooner.
6.5 In the event of a defects period being specified the Contract such period shall commence from the date of the completion of the Works and not from the date of completion of any main contract involved.
6.6 If the Customer fails to make any payment on the date when the payment is due, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
6.6.1 Cancel the Contract or suspend the Works (subject to giving any notice required by legislation) or suspend any other works being undertaken by the Company for the Customer (subject to giving any notice required by legislation); and
6.6.2 Charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time until payment in full is made.
6.7 The Customer shall pay any sum due to the Company in full without any deduction, offset or counterclaim whatsoever.
7. INSOLVENCY AND BREACH OF CONTRACT BY CUSTOMER
7.1 If the Customer commits any breach of the Contract or if the Customer has a bankruptcy order made against the Customer or enters into a voluntary arrangement or composition with the Customer’s creditors or being a company or body corporate, convenes a meeting of creditors or enters into liquidation (except a solvent voluntary liquidation for the purpose only of a reconstruction or amalgamation), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or an encumbrancer takes possession or a manager, administrator, receiver or administrative receiver is appointed over any of the property, undertaking or assets of the Customer (or part thereof); or the Customer ceases or threatens to cease to carry on business; or if any distraint, lien, hypothec, execution (whether legal or equitable) or other process is levied or enforced on any property of the Customer and is not paid out, withdrawn or discharged within 21 days; or the Customer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986: or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then without prejudice to any other right or remedy available to the Company the Company shall be entitled to cancel the Contract or suspend the Works (subject to giving any notice requested by legislation) without any liability to the Customer and if the Works or part of the Works have been performed but not paid for, the price for the Works carried out shall become immediately due and payable despite any previous agreement or arrangement to the contrary.
8. RESERVATION OF TITLE
8.1 Title in any materials and goods (“the Goods”) included in the Works shall not be passed to the Customer until all sums due to the Company in respect of the Works and every other sum due from the Customer to the Company (whether under the Contract or otherwise) has been paid in full and until such payment, the Company shall be entitled to enter the Customer’s premises to recover the Goods.
8.2 Risk of damage to or loss of the Goods shall pass to the Customer upon delivery.
9.1 Orders placed cannot be cancelled except with the Company’s consent and on terms which will indemnify the company against loss and expenses incurred (including loss of profit). Any materials and goods returned without the Company’s consent will not be accepted for credit.
10.1 No waiver by the Company of any breach of any provision of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.2 Any provison of the Contract which is held by any competent authority to be invalid, void, voidable, unenforceable, or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonablemess be deemed severable and the other provisions of the Conract and the remainder of such provision shall not be affected.
10.3 The Contract shall be governed by the laws of England and Wales.
10.4 The customer shall not assign, sub-contract or otherwise transfer all or any of its rights, interests or obligations under the Contract without the prior written consent of theCompany. Any or all of the Company’s rights or obligations under the contract may be assigned or sub-contracted by the Company.