Terms & Conditions
1. Parties, Definitions and Interpretation
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 MAINTRACTS, “MAINTRACTS” means Maintracts Services Limited (“MSL”), “Contract” means the agreement between the Customer and MAINTRACTS to carry out the Works of which these terms form a part and (where these terms are a schedule to a signed agreement between the Customer and MAINTRACTS (“the Agreement”)) the Agreement, “Works” means the works described in MAINTRACTS’s estimate and/or as referred to in MAINTRACTS’s invoice sheet or any other document or email issued by MAINTRACTS, as may be varied by agreement in writing between the parties. For the purposes of these terms, “in writing” includes by email.
2.1 The Customer will be treated as an Account Customer or a Non-Account Customer, according to MAINTRACTS’ reasonable discretion.
2.2 All estimates given by MAINTRACTS, 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 MAINTRACTS and the Customer, except where these terms are a schedule to a signed Agreement between the Customer and MAINTRACTS, in which event these terms apply only to the extent not inconsistent with that Agreement.
2.3 The Customer acknowledges that MAINTRACTS has not made any representations (other than any expressly stated in the Contract and/or in MAINTRACTS’s estimate) which have induced it to enter into the Contract and the Contract shall constitute the entire understanding between the Customer and MAINTRACTS for the performance of the Works (and detailed in paragraph 4 below).
2.4 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 MAINTRACTS of any documentation of the Customer shall not imply any modification of the Contract.
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 and variations to the price
3.1 Any estimate by MAINTRACTS is subject to withdrawal by MAINTRACTS at any time before receipt of an unqualified acceptance from the Customer and shall be deemed to be withdrawn unless so accepted within 28 days from its date.
3.2 Unless otherwise specified by MAINTRACTS 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 MAINTRACTS. MAINTRACTS’s final price will be calculated on the basis specified in the estimate, if any, or, if none, in accordance with MAINTRACTS’s standard Account Rate Card applicable at the time the Works are carried out and may be increased above (but not reduced below) the specified price. Furthermore, MAINTRACTS reserves the right to increase the price before carrying out the Works by an amount equivalent to any increase to MAINTRACTS in the cost of relevant materials, labour, equipment hire or transport since the date upon which MAINTRACTS’s estimate, written, emailed or oral, 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 MAINTRACTS reserves the right to charge a fee for the collection of materials from its supplier except with respect to works for which there is an estimate. If the collection occurs whilst MAINTRACTS is on site, the time taken will be treated as an addition to the Works and charged at the relevant rate. Materials will be supplied at cost net after MAINTRACTS discounts plus MAINTRACTS’s normal mark-up to cover handling, stock maintenance, etc.
3.4 MAINTRACTS’s standard Account Rate Card is available for inspection by request. There is a minimum charge of one hour. Subject to that, charges are made by the half hour, rounded up to the next half hour.
4. The Works
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
The price payable by the Customer is calculated as specified in paragraph 3 above. Unless otherwise stated, the price and all estimates provided by MAINTRACTS are shown exclusive of Value Added Tax which will be payable in addition where properly chargeable
6.1 Non-Account Customers: Payment by the Customer is due on completion of the Works. Payment must be made on such completion.
6.2 Account Customers: MAINTRACTS will seek to submit invoices to the Customer within 14 days of completion of the Works and, subject to paragraph 8 below, payment must be made by the Customer within 30 days after the date of issue of the invoice.
6.3 Snagging: Where the Works have been completed subject to snagging, 95% of all amounts outstanding must be paid on such completion and the Customer must provide access to MAINTRACTS without delay to enable the snagging to be finalised. The balance of 5% will become payable upon the finalisation of the snagging or, if access has not been made available to carry out the snagging within 14 days of completion, at the expiry of such 14 day period.
6.4 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 MAINTRACTS has agreed otherwise in writing.
6.5 MAINTRACTS shall be entitled to interest on a daily basis 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.
6.6 MAINTRACTS shall not be required to issue or deliver any certificates, guarantees or other similar documents regarding the Works until payment has been made in full.
7. Commencement and Completion Dates
Dates specified for the commencement and completion of the Works are estimates only. MAINTRACTS 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 or non-delivery of materials. Time shall not be of the essence of the Contract except as provided in paragraph 16 below.
8. Inspection of Works
The Customer shall inspect the Works as far as it is reasonably possible to do so immediately upon their completion (though failure to countersign the relevant Invoice Sheet shall not imply rejection of the Works) 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 MAINTRACTS against all actions, suits, claims, demands, losses, charges, costs and expenses which MAINTRACTS may suffer or incur in connection with a claim by any third party resulting from a breach of the Customer’s obligations, undertakings, representations and warranties in connection with this Contract
10. Whole agreement and Exclusion of liability
These terms set out MAINTRACTS’ entire liability in respect of the Works and MAINTRACTS’ 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.
11. Limitation of Liability, and Liability of MAINTRACTS
MAINTRACTS’s liability shall be limited to:
11.1 the repair or making good of any defect pursuant to its undertaking in paragraph 13 below and subject always to paragraph 8 above;
11.2 liability for death or personal injury resulting from negligence in the course of carrying out MAINTRACTS’ duties, and
11.3 the reasonable costs of repair or reinstatement of any loss or damage to the Customer’s property if such loss or damage results from MAINTRACTS’ negligence or that of its employees, agents or sub-contractors and the Customer incurs such costs.
MAINTRACTS will not be responsible for damage suffered to a part of the Customer’s property (whether or not MAINTRACTS is working on that part) where that damage is in whole or in part a consequence of a defect or weakness in that part of the property.
The Customer shall provide clear access to enable MAINTRACTS 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 MAINTRACTS and its 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, MAINTRACTS 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 MAINTRACTS to proceed over property belonging to third parties if this is necessary for the proper execution of the Works and shall obtain any permission necessary to carry out work on property belonging to third parties. The Customer shall indemnify MAINTRACTS against all claims of whatsoever nature made by third parties arising out of the presence of MAINTRACTS its employees, agents or sub-contractors on the Customer’s property save where such claim results directly from negligence on MAINTRACTS’s part. The Customer shall be liable to MAINTRACTS for all loss or damage whether direct, indirect or consequential which is suffered by MAINTRACTS as a result of failure or delay by the Customer in performing the obligations referred to above.
Subject to paragraph 8 above and the exclusions listed below, MAINTRACTS undertakes to repair or make good any defect in completed work which appears within six months of completion of the same to the extent that such defect arises from a breach of MAINTRACTS’s obligations under this Contract and provided that details of the defect are notified by the Customer to MAINTRACTS in writing within such period and that MAINTRACTS and its insurers 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 MAINTRACTS and which is paid for by the Customer by the due date for payment ascertained in accordance with paragraph 6 above. If MAINTRACTS returns to the site at the Customer’s request to review a claim under this undertaking and it transpires that the defect had not arisen as a result of a breach of this Contract on the part of MAINTRACTS, MAINTRACTS reserves the right to charge the Customer for the visit at its standard rate as per paragraph 3 above. MAINTRACTS reserves the right not to carry out any work under this paragraph 13 where the Customer cannot evidence that the work was originally carried out and completed by MAINTRACTS or where payment has not been made in full for such work. Exclusions are:
- Parts and materials will be provided only with the benefit of the manufacturer’s / supplier’s guarantee, and are not guaranteed by MAINTRACTS.
- Systems or structures not installed by MAINTRACTS.
- Any recall arising from circumstances or factors known to the Customer but not notified or disclosed to MAINTRACTS prior to the work having been undertaken.
- 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 MAINTRACTS).
- Structural defects encompassing but not limited to subsidence and its resultant effect.
- Damage to drainage systems caused by root penetration or any other outside force.
14. Force Majeure
MAINTRACTS 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 MAINTRACTS’s control.
15. Customer’s Liability
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 MAINTRACTS’s use in the execution of the contracted works.
- The safety of both plant and machinery belonging to or hired in by MAINTRACTS or its employees, agents or sub-contractors and shall indemnify MAINTRACTS against its loss, theft or damage.
16.1 If the Customer cancels the Contract without MAINTRACTS’s consent other than pursuant to paragraph 3.2 above, the Customer shall indemnify MAINTRACTS against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing, and for the avoidance of doubt any such cancellation is without prejudice to MAINTRACTS’s right to payment in accordance with paragraph 6 above or to the cancellation charges pursuant to paragraph 16.3 below.
17. Frozen Pipes
MAINTRACTS will not be liable for any fracture found in frozen pipes attended by MAINTRACTS. MAINTRACTS will not guarantee to clear blockages occurring in a frozen pipe or drain.
18. Waiver, Variation etc.
No waiver by MAINTRACTS 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 MAINTRACTS unless sanctioned in writing by MAINTRACTS. No forbearance or delay on MAINTRACTS’s part shall prejudice MAINTRACTS’s rights and remedies under this Contract