Terms & Conditions
Please see below our standard Terms & Conditions:
1. Definitions and Interpretation
1.1. In these Terms and Conditions:
Business Days means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Ceiling means any and all ceilings and/or ceiling grids at the Site.
Completion means completion of the Works in accordance with these Terms and Conditions.
Completion Date means the date referred to in the Order.
Contract means the agreement between the Purchaser and the Contractor comprising the Order, these Terms and Conditions and the Contract Documents.
Contract Documents means those documents specified in or otherwise referred to in the Order.
Contract Price means the price entered in the Order which is exclusive of VAT.
Contractor means Preform Insulations Limited (registered number 02864193) whose registered office is at 58 Hellesdon Park Road, Norwich, NR6 5DR.
End User means a business that does not make onward supplies of the building and construction services supplied to them.
Force Majeure means:
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war, hostilities (whether war be declared or not), armed conflict, invasion or other act of foreign enemies;
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imposition of sanctions, embargo, or breaking off of diplomatic relations;
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rebellion, riot, revolution, insurrection, terrorist attack, military or usurped power, or civil war;
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the discovery and/or occurrence of any munitions of war, explosive materials, iodising radiation or contamination by radioactivity on Site or adjacent to the Site which prevents operations on Site;
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nuclear, chemical or biological contamination or sonic boom;
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acts of god and natural catastrophes such as an earthquake, volcanic activity, hurricane, typhoon, tempest, lightning strike, drought, flood and/or other natural disaster;
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epidemic or pandemic (whether global or national) and any reasonable action(s) taken by the Contractor to include (without limitation) suspension of the whole or a part of the Works as a consequence of the epidemic or pandemic; and
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any unforeseeable event, beyond the reasonable control of the Contractor that affects the Contractor’s completion of the Works.
Insolvent has the meaning given in section 113 of the Housing Grants, Construction and Regeneration Act 1996 (as amended).
Intermediary Supplier means a business that is connected or linked to an End User.
Order means the order, contract or agreement between the Contractor and the Purchaser for the Works to which these Terms and Conditions are attached and incorporated.
Parties means the Contractor and the Purchaser together.
Pricing Document means the bill of quantities, or price schedule or other document or documents identifying the Contractor’s rates and prices, included in the Contract Documents or referred to in the Order.
Purchaser means the party identified as the Purchaser in the Order.
Purchaser’s Representative means the person representing the Purchaser whose name is notified by the Purchaser to the Contractor.
Retention Percentage means [0%]
Site means the place or places where the Works are to be carried out, as described in the Order.
Terms and Conditions means the standard terms and conditions set out in this document and (unless the context otherwise requires) include any special terms and conditions agreed in Writing between the Contractor and the Purchaser and/or set out in the Order.
Works means the work to be carried out by the Contractor, as more particularly described in the Order and the Contract Documents.
Writing includes letter, e-mail, cable and facsimile transmission and comparable means of communication.
1.2. These Terms and Conditions apply to the Order to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing and notwithstanding anything to the contrary these Terms and Conditions shall be deemed to be incorporated in any contract, agreement or order between the Contractor and the Purchaser and shall be in substitution for any other terms and conditions introduced before or after the date of the Order (unless expressly identified and agreed in Writing by the Contractor).
1.3. No servant or agent of the Contractor has power to vary these Terms and Conditions orally and any variation to the Order shall only be binding if agreed to in Writing by the Parties. If the Purchaser shall not have previously accepted these Terms and Conditions then any action undertaken by the Purchaser in pursuit of their obligations under the Contract, including delivery of a purchase order number to the Contractor, shall constitute such acceptance to these Terms and Conditions and cannot be rescinded, altered or amended in any way without mutual agreement in Writing by the Parties.
1.4. These Terms and Conditions shall be subject to such further special conditions as may be set out in the Order and in the event of any conflict or apparent conflict between any special conditions and these Terms and Conditions, the special conditions shall prevail.
1.5. Any reference in these Terms and Conditions to any provision of a statute, regulation, order or other form of legislation is construed as a reference to that provision as amended re-enacted or extended from time-to-time.
1.6. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
1.7. A clause or paragraph is a reference to a clause or paragraph in these Terms and Conditions.
2. Subletting and Assignment
2.1. The Purchaser shall not assign, transfer, charge, declare a trust over or deal in any other manner with any or all of its rights or obligations arising under this Contract or any interest, obligations or rights arising hereunder whether in whole or in part without the prior written consent of the Contractor.
2.2. The Contractor shall be entitled to assign its entire rights and obligations in this Contract at any time.
3. General Obligations
3.1. The Contractor shall carry out the Works in a proper and workmanlike manner and in compliance with the Contract Documents using (so far as procurable) materials, goods and workmanship specified in the Contract Documents, or if not therein specified, goods and materials of a reasonable and suitable standard.
3.2. The Contractor accepts no responsibility for any discrepancies, inaccuracies or omissions in any of the Contract Documents or other information provided by the Purchaser. The Contractor accepts no liability for any losses whatsoever arising from any such discrepancies, inaccuracies or omissions.
3.3. The Contractor shall use reasonable endeavours to complete its obligations under these Terms and Conditions at the times required by the Contract, but time will not be of the essence in the performance of those obligations.
3.4. Subject to confirmation from the Purchaser that there is no Ceiling which would prevent the Contractor from undergoing the Works, the Contractor shall start work on Site within seven days of the Purchaser’s written notice to proceed, or such other period as may be specified in the Order. The Contractor shall execute the Works upon and subject to the terms of the Contract.
3.5. The Purchaser shall give the Contractor such unimpeded and uninterrupted access to the Site as may be necessary for the Contractor to carry out the Works.
3.6. The Purchaser shall provide the facilities to be provided by the Purchaser as set out in the Contract Documents free of charge. The Contractor shall be entitled to use and have uninterrupted access to any erected scaffolding belonging to or provided by the Purchaser at the Site while it remains erected.
3.7. The Contractor may appoint sub-contractors and/or suppliers to perform all or any part of the Works provided that the Contractor shall not be relieved of any obligation hereunder by reason of the use or appointment of sub-contractors and/or suppliers.
3.8. The Contractor shall be entitled to publish information about the Works, including details of the Purchaser and the project of which the Works form a part, for any purpose including for use in the Contractor’s advertising and marketing materials.
4. Design
4.1. Where the Contract imposes design responsibilities on the Contractor, insofar as the Contractor is responsible for design of the Works, the Contractor shall exercise the reasonable skill and care to be expected of an appropriate designer experienced in projects of a similar complexity, type and nature to the Works.
4.2. The Contractor shall exercise the standard of reasonable skill and care defined in clause 4.1 to see that it has not specified or used any materials which are generally known within the United Kingdom construction industry at the time of specification or use to be deleterious to health and safety in the particular circumstances in which they are to be used.
4.3. Notwithstanding anything to the contrary, nothing in this Contract or otherwise shall imply any fitness for purpose obligations on the Contractor or that the Contractor’s design or any part of it will, when completed, be fit for the purposes for which it is required by the Purchaser or any other party.
5. Purchaser’s Obligations
5.1. The Purchaser agrees to pay the Contract Price at the times and in the manner specified in the Contract, along with any additions to the Contract Price due and payable in accordance with these Terms and Conditions.
5.2. Where the Purchaser appoints a Purchaser’s Representative to act on its behalf, the Purchaser’s Representative shall have full authority to act on the Purchaser’s behalf for all purposes in connection with the Contract unless the Purchaser advises the Contractor in Writing of a replacement Purchaser’s Representative.
5.3. The Purchaser shall provide, free of charge, all the data and information in the Purchaser’s possession and necessary for the performance of the Works in a timely fashion so that the Contractor can carry out the Works in accordance with the Contract and in compliance with any programme for the Works provided by the Contractor to the Purchaser. The Contractor shall be entitled to rely on any information provided by the Purchaser in respect of the Works or the Site.
5.4. The Purchaser shall provide their requirements, which shall contain all of the necessary information, instructions, decisions, approvals and consents to enable the Contractor to carry out their Works in accordance with the Contract Documents. The Purchaser shall remain liable for all information that they provide in relation to the Contract, including liability for any design provided by or on behalf of the Purchaser.
5.5. Where the Contractor is required to provide information, including design information, the Contractor will be given ten (10) Business Days’ notice to provide such requested information.
5.6. The Purchaser acknowledges that the Contractor expressly does not warrant and accepts no responsibility for:
5.6.1. any planning permission and or other approvals or consents from third parties being granted at all or in accordance with any timescale;
5.6.2. designs and other documents provided by or on behalf of the Purchaser;
5.6.3. damage to the Works or any of the goods or materials delivered to the Site in respect of the Works which has been caused by the Purchaser, their employees or agents, or any person employed, engaged or authorised by the Purchaser;
5.6.4. the physical and other conditions affecting the Site including any existing buildings and structures on the Site; and
5.6.5. any preceding work carried out by or on behalf of the Purchaser or any other contractor or sub-contractor (whether appointed by the Purchaser or otherwise), including whether such work has been properly executed. The Purchaser warrants to the Contractor that the positions, dimensions, levels, surfaces and suitability of any work previously carried out is suitable and satisfactory for the Works to be carried out by the Contractor.
6. Completion
6.1. When the Contractor is satisfied that the Works are complete, the Contractor shall notify the Purchaser (the “Contractor’s Completion Notice”) and the Purchaser shall issue a certificate to the Contractor notifying the Contractor that the Works have reached Completion (the “Purchaser’s Completion Certificate”).
6.2. If the Purchaser does not issue the Purchaser’s Completion Certificate in accordance with clause 6.1, then unless the Purchaser dissents by notice in Writing, giving reasons, within five (5) Business Days of receipt of the Contractor’s Completion Notice, Completion of the Works will be deemed to have taken place on the date notified.
7. Variations and Extensions of Time
7.1. The Contractor will be entitled to an addition to the Contract Price and an extension to the Completion Date in the event that the Works are varied in any way including, but not limited to, where:
7.1.1. there is a Ceiling that prevents the Contractor from undergoing the Works;
7.1.2. the Purchaser varies any details of the Contract or issues an instruction changing the Works or any part of the Works;
7.1.3. the Purchaser impedes or prevents the execution of the Works in any way or defers giving possession or prevents access to the Site, or the relevant part of the Site required by the Contractor for carrying out the Works;
7.1.4. the progress of the Works are affected by the carrying out of work, or failure to carry out work, by others in relation to the Works, or any other works being undertaken on the Site, including but not limited to a statutory undertaker, other sub-contractors and/or suppliers, the Purchaser and any employee or agent of the Purchaser and any employer of the Purchaser;
7.1.5. there is a discrepancy, inconsistency, ambiguity or omission in or between any of the Contract Documents;
7.1.6. the Contractor encounters adverse weather conditions;
7.1.7. the Contractor encounters unforeseen physical or other conditions affecting the Site which were not allowed for in the Contract Price;
7.1.8. the surface to which the Contractor is to fix their Works is found to be unsuitable; and/or
7.1.9. Force Majeure.
7.2. Any variations to the Works as a result of events referred to in clause 7.1 shall be valued by the Contractor on the basis of the rates and prices set out in the Pricing Document, or if it is not possible to value the variation by reference to the Pricing Document, on a reasonable basis. The Contractor shall in addition be entitled to:
7.2.1. any direct loss and/or expense incurred by the Contractor; and
7.2.2. the required adjustment to the Completion Date.
8. Payment and Notices
8.1. During the period up to 12 months following Completion of the Works, where retention applies under the Contract and/or as set out in the Order, retention may be deducted and retained by the Purchaser as follows:
8.1.1. The Retention Percentage may be deducted from the total amount where the Works have not reached Completion; and
8.1.2. Half the Retention Percentage may be deducted from the total amount where the Works have reached Completion but less than 12 months have passed since Completion of the Works.
8.2. Any retention that is held by the Purchaser beyond 12 months following Completion of the Works shall fall due to the Contractor and shall be payable regardless of whether the Purchaser receives payment from a third person and/or that third person becomes Insolvent.
8.3. The due dates for interim payments shall be appended to the Order or in the absence of such appendix the first due date for interim payments shall, unless otherwise agreed in Writing, be the end of the month after the date of the commencement of the Works on Site and thereafter the end of each month. If the first due date for an interim payment is a date that does not recur in a subsequent month the due date for that interim payment shall be the last day of that subsequent month. Subject to the sole discretion of the Contractor requiring a further interim payment, the last due date for interim payment shall be the period up to and including the month following Completion of the Works.
8.4. The Contractor may submit to the Purchaser an interim application for payment for the value of the work carried out under the Contract (the “Interim Application for Payment"). The said value shall be calculated by reference to the Contract Price and shall include any additional payment in respect of any variations and loss and/or expense payable to the Contractor in accordance with the provisions of these Terms and Conditions.
8.5. Not later than 5 days after each due date for an interim payment, the Purchaser shall give notice in Writing to the Contractor specifying the sum that it considers to be or have been due at the due date and the basis on which that sum has been calculated (the "Interim Payment Notice"). Subject to any Pay Less Notice served in accordance with sub-clause 8.6 the sum to be paid by the Purchaser to the Contractor shall be the sum specified as due in the Interim Payment Notice. The final date for payment of any interim payment shall be 30 days after the due date.
8.6. If the Purchaser fails to serve an Interim Payment Notice the sum to be paid by the Purchaser shall, subject to the service of a Pay Less Notice, be the sum specified in the Interim Application for Payment. If the Contractor has not made a prior Interim Application for Payment in accordance with clause 8.2, the Contractor may make an Interim Application for Payment at any time after the 5 day period referred to in clause 8.3.
8.7. Where an Interim Application for Payment is made following failure by the Purchaser to give a Payment Notice in accordance with clause 8.4, the final date for payment of the sum specified in it shall be regarded as postponed by the same number of days as the number of days after expiry of the 5 day period referred to in clause 8.4.
8.8. If the Purchaser intends to pay less than the sum stated as due from it in the Interim Payment Notice or the Interim Application for Payment, it shall not later than 5 days before the final date for payment give the Contractor notice in Writing specifying the sum that it considers to be due to the Contractor at the date the notice is given and the basis on which that sum has been calculated (the "Pay Less Notice"). If a Pay Less Notice is served, the sum to be paid on or before the final date for payment shall be the sum stated as due in the Pay Less Notice.
8.9. Within 12 months of Completion of the Works, the Contractor shall submit to the Purchaser a statement of final account complete with any supporting documentation required showing the value of the Works, and stating any further sum which the Contractor considers to be due from the Purchaser under the Contract or in relation to the Works.
8.10. If nothing in the statement sent by the Contractor pursuant to clause 8.9 is disputed in Writing by the Purchaser, giving grounds for so disputing, within 1 month of the submission of the statement to the Purchaser, the statement of final account shall be deemed to be agreed by the Purchaser.
8.11. The due date for payment of the final account (the “Final Due Date”) shall be 2 months after the date of issue of the Contractor’s statement in accordance with clause 8.9.
8.12. Not later than 5 days after the Final Due Date, the Purchaser shall give notice in Writing to the Contractor specifying the final sum that it considers to be due at the Final Due Date and the basis on which that sum has been calculated (the "Final Payment Notice").
8.13. The final date for payment of the Final Payment Notice shall be 14 days after the Final Due Date.
8.14. If the Purchaser intends to pay less than the stated balance in the Final Payment Notice, it shall not later than 5 days before the final date for payment serve on the other party a notice specifying the sum that it considers to be due at the date the notice is given and the basis on which that sum has been calculated (the "Final Pay Less Notice"). If a Final Pay Less Notice is served, the sum to be paid on or before the final date for payment shall be the sum stated as due in the Final Pay Less Notice.
8.15. If any sum payable in accordance with these Terms and Conditions is not paid by the final date for payment then, without prejudice to the Contractor’s other rights and remedies, the Contractor shall be entitled to charge interest from the final date for payment until payment is made in full plus compensation (if appropriate) pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8.16. From and including 1 March 2021, the Contractor shall assume that the Purchaser is not an End User or Intermediary Supplier unless the Purchaser specifies otherwise in Writing.
9. Liability and Indemnity
9.1. The Contractor’s liability under or in connection with the Contract shall be limited to the Contract Price. This limit shall apply however that liability arises, including, without limitation, a liability arising by breach of contract, arising by tort (including, without limitation, the tort of negligence) or arising by breach of statutory duty. Provided that this clause shall not exclude or limit the Contractor’s liability for:
9.1.1. death or personal injury caused by the Contractor’s negligence; or
9.1.2. fraud or fraudulent misrepresentation.
9.2. Subject to clause 9.1 the Contractor shall not be liable to the Purchaser, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
9.2.1. loss of profits;
9.2.2. loss of sales of business;
9.2.3. loss of agreements or contracts;
9.2.4. loss of anticipated savings;
9.2.5. loss of or damage to goodwill; and
9.2.6. any indirect, special or consequential losses.
9.3. The Contractor’s liability to the Purchaser shall be limited to that proportion of loss which it would be just and equitable to require the Contractor to pay having regard to the extent of the Contractor’s responsibility for any loss and/or damage and on the basis that other contractors, consultants and suppliers who were engaged in connection with the works at the Site shall be deemed to have provided contractual undertakings on terms no less onerous than those laid out in the Contract in respect of the performance of their services and shall be deemed to have paid to the Purchaser such proportion as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss/or damage.
9.4. The Purchaser shall indemnify the Contractor against all damages, costs, claims and expenses suffered by the Contractor arising from loss or damage to any goods, materials and equipment (including that of third parties) belonging to the Contractor caused by the Purchaser, or his agents or employees or any person employed, engaged or authorised by the Purchaser.
9.5. The Contractor shall not be liable to the Purchaser or deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Contractor’s obligations if the delay or failure was due to any cause beyond the Contractor’s reasonable control.
9.6. The Contractor shall not be liable for any claim arising out of or in connection with pollution, contamination or asbestos matters.
9.7. None of the Contractor’s employees, members, directors or agents shall be personally liable to the Purchaser for any negligence, default or any other liability whatsoever in connection with the Contract, whether in contract or tort.
9.8. The liability period applicable to this Contract shall be 6 years from the date of Completion of the Works and neither party shall commence any legal action against the other under this Contract after six years from the date of Completion of the Works.
10. Collateral Warranties
10.1. Where the Purchaser requires the Contractor to provide collateral warranties for a third party beneficiary, the Contractor will not provide more than a total of two collateral warranties in relation to the Works.
10.2. No collateral warranty will be provided whist any payment due to the Contractor remains overdue or outstanding.
10.3. The terms of any collateral warranty shall be in a form agreed by the Contractor and shall not confer any greater benefit on the beneficiary than is given to the Purchaser under the Contract.
11. Value Added Tax
11.1. All rates and prices in the Contract are exclusive of Value Added Tax.
12. Third Parties
12.1. Nothing in this Contract purports to confer on any third party any benefit or right to enforce any term of the Contract.
13. Termination of the Purchaser’s Employment
13.1. Without prejudice to any other rights or remedies available to the Contractor, the Contractor may by written notice to the Purchaser terminate the Contract immediately if:
13.1.1. the Purchaser is in breach of any of its obligations hereunder;
13.1.2. the Purchaser is Insolvent; or
13.1.3. there is a Force Majeure event which makes the termination of the Contract necessary.
13.2. Upon termination under clause 13.1, the Purchaser shall pay to the Contractor:
13.2.1. the value of the Works executed at the date of termination ascertained in accordance with the Contract Price;
13.2.2. the cost of materials or goods on Site or ordered for the Works for which the Contractor has paid or is legally bound to pay;
13.2.3. the cost of the Contractor’s demobilisation and/or removal of the Contractor’s plant, tools and equipment; and
13.2.4. any direct loss and/or expense caused to the Contractor by the termination.
14. Adjudication
14.1. A party to this Contract, provided that the Contract is a ‘Construction Contract’ as defined by the Housing Grants, Construction and Regeneration Act 1996 as amended under Part 8 of the Local Democracy, Economic Development and Construction Act 2009 (the “Act”), has the right to refer a dispute arising therefrom to adjudication at any time.
14.2. Subject to the Act applying to the Contract, either party may give notice at any time of its intention to refer a dispute to adjudication.
14.3. The referring party shall secure the appointment of the Adjudicator and the referral of the dispute to him or her not later than 7 days from the date of the notice of adjudication. On receipt of the referral notice, the Adjudicator must inform every party to the dispute of the date it was received.
14.4. The Adjudicator shall reach a decision within 28 days after receipt of the referral or such longer period as is agreed by the Parties after the dispute has been referred and shall set a timetable to enable this. In any event the responding party will be given 16 days to respond to the Referral.
14.5. The Adjudicator may extend the period of 28 days by up to 14 days with the consent of the party by whom the dispute was referred, or such longer period as may be agreed by the Parties.
14.6. The Adjudicator has a duty to act impartially.
14.7. The Adjudicator is able to take the initiative in ascertaining the facts and the law.
14.8. The decision of the Adjudicator shall be binding until the dispute is finally determined in court proceedings. The Parties may agree to accept the decision of the Adjudicator as finally determining the dispute.
14.9. The Adjudicator is permitted to correct his or her decision so as to remove a clerical or typographical error arising by accident or omission. Any correction of a decision must be made within five days of the delivery of the decision to the Parties.
15. Notices
15.1. All notices to be served by the Purchaser on the Contractor shall be served by recorded delivery at the address to be specified by the Contractor or if none is specified at the address stated on the Order. All notices to be served by the Contractor on the Purchaser shall be served in writing at the address stated on the Order.
16. Enforceability
16.1. If any provision of the Contract is at any time found to be void or unenforceable, such provision shall be deemed to be deleted from the Contract and the remaining provisions shall continue in full force and effect.
17. Waiver
17.1. Waiver by the Contractor of breach by the Purchaser of any provision of the Contract shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of that provision. The rights of the Contractor shall not be prejudiced or restricted by any indulgence or forbearance extended to the Purchaser by the Contractor.
18. Suspension
18.1. If the Purchaser fails to pay the Contractor the sum payable in accordance with any of the payment notices served under Clause 8 by the final date for payment and the failure continues for 7 days after the Contractor has given written notice to the Purchaser of its intention to suspend performance of any or all of the Works stating the ground or grounds on which it is intended to suspend performance, the Contractor may suspend performance of any or all of its obligations under the Contract until payment is made in full.
18.2. Where the Contractor exercises its right under Clause 18.1, it shall be entitled to its costs and expenses reasonably incurred as a result of the exercise of the right and shall be entitled to an extension of time for the period of the suspension.
19. Copyright, Royalties and Patent Rights
19.1. The copyright in all of the Contractor’s design documents shall remain vested in the Contractor.
19.2. Subject to the Contractor having been paid all sums due and payable in accordance with the Contract, the Purchaser shall have an irrevocable, royalty free, non-exclusive licence to copy and use the Contractor’s design documents and to reproduce the designs and content of them for any purpose including, but without limitation, the construction, completion, maintenance, letting, sale, promotion, advertisement, reinstatement, refurbishment and repair of the Works. That licence shall enable the Purchaser to copy and use the Contractor’s design documents for an extension of the Works but shall not include a licence or any right to reproduce the designs contained in them for any such extension.
19.3. The licence referred to in clause 19.2 shall be freely assignable and shall carry the right to grant sub-licences.
19.4. The Contractor shall not be liable for any use of such documents for any purpose other than that for which the same are or were prepared and/or provided.
20. Jurisdiction
20.1. These terms and conditions shall be governed by English law and any dispute shall be referred to the non-exclusive jurisdiction of the English courts.