1 Parties, Definitions and Interpretation
1.1 In these terms and conditions (which are referred to in this document as “these terms”),
“Customer” means the customer for whom the Works are to be carried out by House Martin Services (“HMS”),
“Contract” means the agreement between the Customer and HMS to carry out the Works of which these terms form a part;
“Estimate” means any estimate of the cost of the Works based on time to complete the Works calculated in accordance with the Schedule of Rates issued by HMS whether verbally or in writing;
“Quotation” means a fixed price cost for the Works based on time to complete the Works calculated in accordance with the Schedule of Rates issued by HMS either verbally or in writing;
“Schedule of Rates” means the rates available on line for inspection on HMS’s website: www.housemartinservices.com;
“Works” means the works described in HMS’s estimate or quotation or any other document or email issued by HMS, 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 the feminine gender and words importing the singular number include also the plural number, where the context so requires.
2.1 All Estimates and Quotations given by HMS, all orders and instructions given by the Customer, 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 Customer, whether in the order or instructions or in any negotiations or in any course of dealing established between HMS and the Customer, except where these terms are a schedule to a signed Agreement between the Customer and HMS, in which event these terms apply only to the extent not inconsistent with that Agreement.
2.2 The Customer acknowledges that HMS has not made any representations (other than any expressly stated in the Contract and/or in HMS’s Estimate or Quotation), which have induced it to enter into the Contract, and the Contract shall constitute the entire understanding between the Customer and HMS for the performance of the Works (and detailed in paragraph 4 below).
2.3 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 HMS of any documentation of the Customer shall not imply any modification of the contract.
2.4 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, Quotations and variations to the price
3.1 Any Estimate or Quotation is subject to withdrawal by HMS at any time before receipt of an unqualified acceptance from the Customer and shall be deemed to be withdrawn unless so accepted within fourteen (14) days from its date unless a longer time is specified on the face of the Estimate or Quotation.
3.2 Unless otherwise specified by HMS 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 HMS. HMS’s final price will be calculated on the basis specified in the Estimate, if any, or if none, in accordance with HMS’s Schedule of Rates applicable at the time the Works are carried out and may be increased above (but not reduced below) the specified price. Furthermore, HMS reserves the right to increase the price before carrying out the Works by an amount equivalent to any increase to HMS in the cost of relevant materials, labour, equipment hire or transport since the date upon which HMS’s Estimate was given, save that if this would increase the estimated price by more than 10%, the Customer 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 HMS reserves the right to charge a fee for the collection of materials from its suppliers. If the collection occurs whilst HMS is on site, the time taken will be treated as an addition to the Estimate or Quotation and charged at the relevant rate. If the materials are ordered for subsequent collection and delivery, a charge may be made by HMS of £50 plus VAT (if applicable). Materials will be supplied at cost net after HMS discounts plus HMS normal mark-up to cover handling, stock maintenance etc.
3.4 The Schedule of Rates specifies half hourly rates. Charges are made by the half hour, rounded up to the next half hour. There is a minimum charge of one hour.
3.5 Before the commencement of work HMS reserves the right to require the Customer to pay an initial payment of 20% (or such greater sum if so required) against the full value on all estimated or quoted Works above £250.00
4 The Works
4.1 All descriptions, illustrations etc. contained in any catalogues, price lists or advertisements, or otherwise communicated to the Customer, 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
5.1 The price payable by the Customer is calculated as specified in paragraph 3 above and shall be stated in the Estimate or Quotation or where no price is stated in accordance with the Schedule of Rates. The charge shall consist of the cost of materials supplied by HMS and the amount of time spent in undertaking the Works (including reasonable time spent obtaining unstocked parts and materials as stated in 3.3 above) charged in accordance with the Schedule of Rates.
5.2 Unless otherwise stated, the price and all Estimates and Quotations provided by HMS are shown exclusive of Value Added Tax at the prevailing rate which will be payable in addition where properly chargeable.
6.1 Payment by the Customer is due immediately on completion of the Works. Payment must be made on such completion. Payment can be made by cheque, or BACS.
6.2 Where the Customer is represented by a third party (such as a managing agent, contractor or other representative), in the event of non-payment by the Customer, the third party will be responsible for payment unless HMS has agreed otherwise in writing.
6.3 HMS shall be entitled to interest on a daily basis and reserve the right to charge such interest 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.
7 Commencement and Completion Dates
7.1 Dates specified for the commencement and completion of the Works are estimates only. HMS shall use all reasonable endeavours to ensure that it will attend on the date and time agreed. However, it accepts no liability in respect of non-attendance or late attendance on site or for the late delivery of materials. Time shall not be of the essence of the Contract except as provided for in paragraph 16 below.
8 Inspection of the Works
8.1 The Customer 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 Customer shall indemnify HMS against all actions, suits, claims, demands, losses, charges, costs and expenses which HMS may suffer or incur in connection with a claim by any third party resulting from a breach of the Customers obligations, undertakings, representations and warranties in connection with this Contract.
10 Whole Agreement and Exclusion of Liability
10.1 These terms set out HMS’s entire liability in respect of the Works and HMS’s 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.
10.2 HMS’s liability shall be limited to:
(A) the repair or making good of any defect pursuant to its undertaking in paragraph 12 below and subject always to paragraph 8 above.
(B) liability for death or personal injury resulting from negligence in the course of carrying out HMS’s duties, and
(C) the reasonable costs of repair or reinstatement of any loss or damage to the Customers property if such loss or damage results from HMS’s negligence or that of its employees, agents, franchisees, or sub- contractors and the Customer incurs such costs
10.3 subject to 10.2(B), HMS’s maximum liability under the Contract howsoever caused shall be limited to £1000 (one thousand pounds).
11.1 The Customer shall provide clear access to enable HMS 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 Customer will at all times provide a safe working environment for HMS employees, agents and sub-contractors for the purposes of carrying out the Works. Where applicable to drainage works, the Customer will provide, if possible a plan showing drain layouts. If this is not available, HMS 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 Customer must obtain any permission for HMS to proceed over property belonging to third parties. The Customer shall indemnify HMS against all claims of whatsoever nature made by third parties arising out of the presence of HMS its employees, agents or sub-contractors on the Customer’s property save where such claim results directly from negligence on HMS’s part. The Customers shall be liable to HMS for all loss of damage whether direct, indirect or consequential which is suffered by HMS as a result of failure or delay by the Customer in performing the obligations referred to above.
12.1 Subject to paragraph 8 above and the exclusions listed in 12.2 below, HMS undertakes to repair or make good any defect in completed Work which appears within one month of completion of the same to the extent that such defect arises from a breach of HMS’s obligations under the Contract and provided that details of the defect are notified by the Customer to HMS in writing and that HMS and its insurers (if applicable) are given the opportunity of inspecting the Work and the alleged defect. This undertaking shall only apply to Work carried out and completed and invoiced by HMS and which is paid for by the Customer by the due date for payment ascertained in accordance with paragraph 6 above.
(a) Parts and materials will be provided only with the benefit of the manufacturer’s / supplier’s guarantee and are not guaranteed by HMS
(b) Systems or structures not installed by HMS
(c) Any recall arising from circumstances or factors known to the Customer but not notified or disclosed to HMS prior to the work having been undertaken.
(d) Defects resulting from misuse, willful act, or faulty workmanship by the Customer or anyone working for or under the direction of the Customer (other than HMS)
(e) Structural defects encompassing but not limited to subsidence and its resultant effect
(f) Damage to drainage systems caused by root penetration or any other outside force
(g) Any work to repair an existing lock, or to fit any lock not supplied by HMS
12.3 In circumstances where HMS is unable to offer a guarantee HMS will notify the Customer before any work is carried out.
13 Force Majeure
13.1 HMS will use all reasonable endeavours to carry out the Works on the agreed dates but shall not be under any liability to the Customer 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 HMS control.
14 Customer’s Liability
14.1 The Customer 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 Customer’s obligations under these terms
– Providing all necessary power and a clean water supply for HMS’s use in the execution of the contracted works
– The safety of both plant and machinery belonging to or hired in by HMS or its employees, agents, franchisees and sub-contractors and shall indemnify HMS against it’s loss, theft or damage
14.2 The Customer must let HMS know of any dangerous gases, liquids or other materials or of anything which the Customer believes may present a hazard or danger to any person who is due to carry out the Works before such work is started.
15.1 If the Customer cancels the contract without HMS’s consent other than pursuant to paragraph 3.2 above, the Customer shall indemnify HMS against all loss, damage, claims or other actions arising out of such cancellation unless otherwise agreed in writing, and for the avoidance of doubt any such cancellation is without prejudice to HMS’s right to payment in accordance with paragraph 6 above
15.2 If HMS is unable to gain access to the Customers premises to carry out the Works the Customer will be liable to pay a minimum amount of one day (7 hours) charges at the standard rate in accordance with the Schedule of Rates. This shall apply irrespective of the Works having been booked by the Customer or by someone acting on the Customers behalf e.g. tenant.
15.3 If the Customer cancels the Works to be undertaken pursuant to an Estimate or a Quotation accepted by the Customer subject to paragraph 3.2 above the Customer will be liable for a cancellation charge of 5% of the estimated or quoted price if the cancellation is made less than 14 days prior to the specified commencement date for the Works, 10% of the estimated or quoted price if the cancellation is made less than 7 days prior to the said specified commencement date and 20% of the estimated or quoted price if the cancellation is made less than 2 days prior to the said specified commencement date.
16 Removal of Waste Materials
16.1 Unless agreed in writing between the parties, the Customer will be responsible for the removal from site of all waste materials resulting from the Works
17 Waiver, Variation etc
17.1 No waiver by HMS of any breach by the Customer shall operate as a waiver of any preceding or subsequent breach by the Customer. No variation shall be effective against HMS unless sanctioned in writing by HMS. No forbearance or delay on HMS’s part shall prejudice HMS’s rights and remedies under this contract.
18.1 If any provision set out in these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provisions held invalid shall not be effected.
19 Governing Law
These Terms and Conditions shall be governed and construed in accordance with English Law and shall be subject to the exclusive jurisdiction of the English Courts