Foundations Up Terms and Conditions
These are the Terms and Conditions (the “Terms”) on which a client (the “Client”) engages Foundations Up Construction Ltd (the “Contractor”) to provide the services specified in these Terms and attached schedules (the “Services”).
1.1. References to any statutory provision, authority, rule or code of practice shall be deemed to include the amended versions, replacements or successors of such.
Relationship between the Parties
2.1. Neither these Terms or the course of dealings between the parties shall operate to make the Contractor an employee or agent of the Client.
2.2. Neither party shall assign or transfer any of their rights, liabilities or
obligations arising under these Terms without the prior written consent of the other party.
3.1. The Contractor shall provide to the Client a proposal for the Services to be provided (the “Quotation”) which shall set out:
- a) the Services which the Contractor shall undertake for the Client (which may be varied through the mutual written agreement of both parties);
- b) the date or time period within which the Service shall be performed; and
- c) the fees of which the Client shall be charged for the performance of the Services including but not limited to:
- i. any fees which the Contractor shall charge;
- ii. any disbursements or expenses which the Contractor will require the Client to meet as a result of the provision of the Services (including but not limited to the prices of materials); and
- iii. any Value Added Tax (“VAT”) or tax element which shall be payable by the Client.
3.2. The Quotation shall be attached both to these Terms as a schedule, and where a contract is entered into between the Contractor and the Client (the “Building Contract”). The Client shall be deemed to have accepted the contents of the Quotation in full.
3.3 No Quotation shall include decoration of any kind other than primed timber where appropriate, unless specifically agreed in writing by both parties.
The Services and the Time and Manner of their Delivery
4.1. The Contractor will provide such Services to the Client as are set out in the Quotation.
4.2. The Services will be provided to the Client within the timeframe specified in the Quotation.
4.3. Time frames and dates of delivery are provided for guidance only and the Contractor makes no guarantee whatsoever to the Client that the Services will be performed within the specified delivery period. For the purposes of these Terms, time shall not be of the essence and the Contractor shall not be liable for any loss or damage suffered by the Client as a result of the delivery of Services being delayed or postponed for any reason.
5.1. The fee payable by the Client is set out in the Quotation, which shall include, but is not limited to, the charges which the Contractor shall make for the Services, labour, materials and plant as well as any VAT, taxes or additional costs or expenses or disbursements which the Contractor may charge to the Client.
5.2. The intervals at which the Contractor may invoice the Client in respect of the whole or an instalment of the fee payable shall be set out in the Quotation.
5.3. Notwithstanding 5.1 and 5.2 above, the Contractor may vary the fee payable from the amount set out in the Quotation where the Contractor has provided Services which are different or are in addition to those set out in the Quotation either at the specific request of the Client, or because the Contractor has been required to complete additional work which was not anticipated at the time the Quotation was made, or because of market fluctuations in the price of materials.
5.4. The Client agrees
- a) not to withhold any sums due to the Contractor;
- b) to settle all invoices raised by the Contractor within 7 days unless otherwise agreed in writing between the parties at the time if issue;
- c) to pay to the Contractor interest at a rate of 5% per annum above the Bank of England base rate on any payments which are not settled in accordance with section 5.4(b); and
- d) to pay to the Contractor such costs and expenses as the Contractor may incur in recovering payment from the Client where the Client fails to make payment in accordance with these Terms.
6.1. In accordance with the Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc. Regulations (2008) the Client may cancel the engagement of Services within 7 calendar days of agreeing to these Terms (or within whatever extended period the Contractor may specify in the Quotation) and shall be entitled to a full refund of any monies paid to the Contractor, less an amount representing any reasonable administration costs which the Contractor has incurred. Any cancellation outside this period will not entitle the Client to a refund of any monies paid to the Contractor.
7.1. The Client shall be responsible for the correctness of all measurements for products or materials which the Client gives to the Contractor for the provision of Services. Where these measurements are not correct and accordingly materials or products which are ordered or provided by the Contractor for the provision of Services are the wrong size, the Client shall bear the expense of rectifying this.
7.2. The Client shall co-operate with the Contractor as may be necessary to facilitate these Terms, including but not limited to:
- a) permitting the Contractor access to the property or location in which the Services are to be supplied (the “Site”) and assuring that such access is appropriate and adequate;
- b) where the Site is indoors, ensuring that there is adequate ventilation;
- c) providing for the Contractor such facilities as may be necessary in order to allow the Contractor to complete the Services; and
- d) following the Contractor’s reasonable instructions relating to safety and the state of work which has recently been completed by the Contractor, or is in the process of being completed or to the state of the Site in general, including directions and restrictions on appropriate usage, care and maintenance.
7.3. Where the Contractor stores or keeps any materials or equipment on Site, the Client shall be responsible for the security and safety of such and shall account to the Contractor for any loss or damage.
7.4. The Client shall be responsible for procuring any permissions, licences or consents which are necessary in order for the Services to be provided. The Client warrants that he has applied for and obtained all such necessary permissions, licence or consents prior to engaging the Contractor.
7.5. The Client is solely responsible for removing any of his possessions from any room or area where work is taking place.
8.1. The Contractor shall perform all duties, Services and obligations under these Terms with reasonable care and skill [and to a reasonable standard]. The Contractor shall comply with all relevant codes of practice and statutory or regulatory requirements when providing Services in accordance with these Terms.
8.2. The Contractor shall take all reasonable care with the Client’s property, including taking reasonable steps to avoid damage to the Client’s furnishings, fittings, wall, ceiling and floor coverings during the provision of the Services (protection from dust and foreseeable debris).
8.3.The Contractor shall at all times be registered and remain in good standing with such organisations as may be relevant for the purposes of permitting itself to self-certify the compliance of the Services provided with the relevant building regulations or alternatively if it is not so accredited then the Contractor shall make arrangements for a building inspector to certify the compliance of the Services provided with the relevant building regulations.
8.4. The Contractor shall be responsible for managing and arranging the safe and lawful disposal of any waste materials which are generated or removed from the Client’s property as a result of the provision of the Services.
8.5. The Contractor shall at all times during the engagement hold valid employer and public liability insurance policies.
Property Rights and Assumption of Risk
9.1. Any property rights, title or ownership in any property or materials which are used by the Contractor in providing or delivering the Services shall remain with the Contractor until the Client has made payment in full in accordance with these Terms.
9.2. Risk in, and responsibility for, any products or materials which are used in the supply, performance or delivery of the Services shall pass from the Contractor to the Consumer:
- a) where the Contractor is responsible for delivering the products or materials to the Client, upon delivery; or
- b) where the Contractor is not responsible for delivery, at the moment the products or materials leave the Contractor’s storage premises, howsoever occurring
The Lifetime Guarantee
10.1. The Contractor provides to the Client, in addition to any statutory rights which the Client may have, a guarantee that the Services provided under this engagement shall be free from defective or flawed materials or workmanship (the “Lifetime Guarantee”) for a period of 5 years from the date of completion of the Services, or in the case of workmanship, whenever the Client ceases to live at the property, or whichever is the later, notwithstanding that this guarantee shall not apply to:
- a) defects or flaws which are as a result of any misuse, failure to adequately and properly maintain, and/or neglect or failure to follow instructions or recommendations from the Contractor, on the part of the Client;
- b) any defect or flaw which is caused by mechanical or chemical damage (which is not in itself a result of some defect in the workmanship or materials) and which arises after risk in the property has passed to the Client.
10.2. The Contractor shall, in its sole and absolute discretion, determine the manner in which it will satisfy this guarantee, whether by repairing, re-performing or replacing the Services or by refunding to the Client all or part of the monies which have been paid.
10.3. Where the Client considers that the Services are defective upon delivery or performance then he shall notify the Contractor of this within 30 days, failing which he shall not be entitled to claim the benefit of this guarantee.
10.4. This guarantee shall not become effective until the Client has paid the Contractor in full, failing which the Client shall not be entitled to claim the benefit of this guarantee.
10.5. Notwithstanding this clause 10, where a Building Contract has been entered into, the provision of a Lifetime Guarantee shall not affect a Client’s right to insurance-backed guarantee as detailed in the Building Contract.
11.1. These Terms shall continue until the Services (or any mutually agreed addition, extension or variation thereof) have been provided, or until terminated in accordance with the below.
11.2. Without affecting any other rights or remedies available to it, either party may terminate these Terms with immediate effect if:
- a) the other party commits a serious breach or persistent breaches of these Terms, which breach is irremediable, including but not limited to the non-performance, neglect or default of any of his duties as outlined herein (including a failure on the part of the Client to make payment within agreed timescales) and after notice of this breach has been given to the defaulting party it remains unremedied and unrectified 7 days after such notice;
- b) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up or insolvency of the other party (if a company) or (if an individual) the Client is declared bankrupt or steps are taken to declare him bankrupt;
- c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.3. Upon termination of these Terms, the Client shall pay to the Contractor such sums due to it which shall represent work done and expenses incurred by the Contractor for the provision of Services up to and including the date of termination.
11.4. Any right to terminate these Terms shall be without prejudice to any accrued rights or liabilities arising out of this agreement which are in existence at the date of termination.
Disclaimers and Exclusions
12.1. The Contractor shall not be liable in any circumstance to the Client or any third party for any loss of profit or indirect or consequential economic damage or loss, howsoever caused, whether as a result of negligence, misrepresentation, breach of contract or otherwise.
12.2. Nothing in the foregoing shall be read as restricting or limiting in any way the Contractor’s liability for death or personal injury.
13.1. The Client shall indemnify the Contractor against any loss or damage which results from the Client’s breach of, or failure to abide by, these Terms.
14.1. Neither party shall be liable for any delay or failure in performing its obligations or duties under these Terms which result from circumstances outside his reasonable control including but not limited to acts of God, industrial action, war, fire, threat of terrorism, civil disturbance or rioting, government or regulatory action, breakdown in plant or machinery or shortage of raw materials or supplies.
Whole Agreement, Governing Law, Severability and Miscellaneous Provisions
15.1. These Terms supersede any prior representations which may have been made, whether orally or in writing. Any modification to these Terms must be made in writing and signed by both parties.
15.2. These Terms shall be governed by the Law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English Courts.
15.3. All clauses, sub clauses and parts thereof shall be severable and shall be read and construed independently. Should any part of these Terms be found invalid this will not affect the validity or enforceability of any other provision or of these Terms as a whole.
15.4. Nothing in these Terms shall incur any rights on a third party and no third party may enforce any provision of these Terms under the Contracts (Rights of Third Parties) Act.
15.5. The failure by either party to enforce any provision of these Terms shall not be deemed a waiver or limitation of that party’s right to subsequently compel and require strict compliance with every provision of these Terms. These Terms are to be read in conjunction with the Building Contract if provided to the Client (for larger works) and signed by the Client.