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 Diligent Developments, “Diligent Developments” means Diligent Developments Limited carrying out a business pursuite,
“Contract” means the agreement between the Customer and Diligent Developments 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 Diligent Developments (“the Agreement”)) the Agreement,
“Works” means the works described in Diligent Developments’s estimate and/or as referred to in Diligent Developments’s Work Detail Sheet or any other document or email issued by Diligent Developments, 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 The Customer will be treated as an Account Customer or a Non-Account Customer, according to Diligent Developments’s reasonable discretion.
2.2 All estimates given by Diligent Developments, 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 Diligent Developments and the Customer, except where these terms are a schedule to a signed Agreement between the Customer and Diligent Developments, in which event these terms apply only to the extent not inconsistent with that Agreement.
2.3 The Customer acknowledges that Diligent Developments has not made any representations (other than any expressly stated in the Contract and/or in Diligent Developments’s estimate) which have induced it to enter into the Contract and the Contract shall constitute the entire understanding between the Customer and Diligent Developments 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 Diligent Developments 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.The Price, Estimates and Variations
3.1 Unless Diligent Developments provides the Customer with an estimate which is accepted by the Customer in accordance with its terms, all Works will be charged on the basis of Diligent Developments’s standard Rate Card applicable at the time the Works are carried out.
3.2 Any estimate by Diligent Developments is subject to withdrawal by Diligent Developments 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.
3.3 Where Diligent Developments provides the Customer with an estimate which is accepted by the Customer in accordance with its terms, that estimate is a firm, fixed price quotation unless otherwise specified by Diligent Developments in the estimate and also except as follows:
3.3.1 an estimate is based on the information made available to Diligent Developments by the Customer. If during the conduct of the Works it becomes apparent to Diligent Developments that that information was either incorrect or insufficient in any respect that Diligent Developments considers to be material, Diligent Developments reserves the right to inform the Customer and to increase the estimated price to take account of the revised information, and
3.3.2 if prior to carrying out the Works, there is an increase to Diligent Developments of more than 10% in the cost of any relevant materials, equipment hire or transport since the date upon which Diligent Developments’s estimate, written, emailed or oral, was provided, Diligent Developments reserves the right to inform the Customer and to provide a revised estimate incorporating that increase. In this event, the revised estimate will apply unless the Customer cancels the Contract before the Works are begun or, if earlier, within 48 hours of the revised estimate being provided.
3.4 For materials that are not carried as part of Diligent Developments’s standard van stock, unless it is with respect to Works for which there is an estimate which includes all collection fees, Diligent Developments charges a fixed materials collection fee of £50 plus VAT. Where an item is not easily sourced or generally held by the major suppliers used by Diligent Developments and it considers that significant time will need to be spent tracing and then collecting it, Diligent Developments will inform the Customer in advance and, unless the Customer sources the item itself, this will be charged on a time basis as per Diligent Developments’s standard Rate Card. It should be noted that this is an infrequent occurrence.
3.5 Diligent Developments’s standard Rate Card is available for inspection both on Diligent Developments’s website (www.Diligent Developments.co.uk ) and at Diligent Developments’s premises during normal business hours. The Rate Card specifies half hourly rates. 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
5.1The price payable by the Customer is calculated as specified in paragraph 3 above. Unless otherwise stated, the price and all estimates provided by Diligent Developments are shown exclusive of Value Added Tax which will be payable in addition where properly chargeable.
5.2If the Works involve a diagnostic process to ascertain the cause or source of a fault or breakdown and during that process an item is ascertained by Diligent Developments to be faulty and is replaced, the Customer will be liable to pay for that replacement even if the breakdown was caused in whole or in part by a different fault.
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: Diligent Developments 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 Diligent Developments 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, tenant or other occupier, contractor or other representative), in the event of non-payment by the Customer, the third party will be responsible for payment unless Diligent Developments has agreed otherwise in writing.
6.5 Diligent Developments 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 Diligent Developments 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.
6.7 Title in all parts and other goods supplied by Diligent Developments shall not pass to the Customer until payment for the Works has been made in full.
7. Commencement and Completion Dates
Dates specified for the commencement and completion of the Works are estimates only. Diligent Developments 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 Works Detail 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 Diligent Developments against all actions, suits, claims, demands, losses, charges, costs and expenses which Diligent Developments 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 Diligent Developments’s entire liability in respect of the Works and Diligent Developments’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.
11. Limitation of Liability, and Liability of Diligent Developments Diligent Developments’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 Diligent Developments’s 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 Diligent Developments’s negligence or that of its employees, agents or sub-contractors and the Customer incurs such costs.
Diligent Developments will not be responsible for damage suffered to a part of the Customer’s property (whether or not Diligent Developments 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.
12. Permits, Licences, other Consents and Access
It is the responsibility of the Customer to obtain all permits, licences and other consents in connection with the Works unless Diligent Developments agrees otherwise in writing. The Customer shall provide clear access to enable Diligent Developments to undertake the Works and will make all necessary arrangements with the proper persons or authorities for any traffic controls and signals required in connection with the carrying out of the Works. The Customer will at all times provide a safe working environment for Diligent Developments 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, Diligent Developments 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 Diligent Developments 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 Diligent Developments against all claims of whatsoever nature made by third parties arising out of the presence of Diligent Developments its employees, agents or sub-contractors on the Customer’s property save where such claim results directly from negligence on Diligent Developments’s part. The Customer shall be liable to Diligent Developments for all loss or damage whether direct, indirect or consequential which is suffered by Diligent Developments 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, Diligent Developments 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 Diligent Developments’s obligations under this Contract and provided that details of the defect are notified by the Customer to Diligent Developments in writing within such period and that Diligent Developments 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 Diligent Developments and which is paid for by the Customer by the due date for payment ascertained in accordance with paragraph 6 above. If Diligent Developments 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 Diligent Developments, Diligent Developments reserves the right to charge the Customer for the visit at its standard rate as per paragraph 3 above. Diligent Developments 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 Diligent Developments 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 Diligent Developments. – Systems or structures not installed by Diligent Developments.
– Any recall arising from circumstances or factors known to the Customer but not notified or disclosed to Diligent Developments 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 Diligent Developments).
– 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. – Any roofing work where Diligent Developments advises that the overall condition of the roof is poor and is in need of more extensive work and the work to be undertaken involves less than 20% of the area of the roof.
– Any work to repair an existing lock, or to fit any lock not supplied by Diligent Developments.
14. Force Majeure
Diligent Developments 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 Diligent Developments’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 Diligent Developments’s use in the execution of the contracted works.
– The safety of both plant and machinery belonging to or hired in by Diligent Developments or its employees, agents or sub-contractors and shall indemnify Diligent Developments against its loss, theft or damage.
16.1 If the Customer cancels the Contract without Diligent Developments’s consent other than pursuant to paragraph 3.3 above, the Customer shall indemnify Diligent Developments 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 Diligent Developments’s right to payment in accordance with paragraph 6 above or to the cancellation charges pursuant to paragraph 16.3 below.
16.2 If the Customer wishes to cancel an appointment for a visit by Diligent Developments, the Customer will incur a cancellation fee of £10 (plus VAT) if the cancellation is made less than 24 hours (but more than 2 hours) before the time scheduled for the appointment and of £50 (plus VAT) if the cancellation is made 2 hours or less before the scheduled appointment time.
16.3 The Customer may, at any time during a cooling off period of 7 days following the day of its acceptance of an estimate for planned non-emergency work to replace or install windows , by written notice to Diligent Developments cancel the work to be undertaken without any charge or penalty. Subject thereto, if the Customer cancels work to be undertaken pursuant to an estimate accepted by the Customer, subject to paragraph 3.2 above the Customer will be liable for the following cancellation charges: (1) as a contribution to the bank and credit card charges incurred by Diligent Developments, 5% of any amount already paid to Diligent Developments and which is to be refunded by Diligent Developments, and (2) as a contribution to the administration, demobilisation and other costs incurred by Diligent Developments, a charge of £50 (plus VAT) except that if greater, the charge is 5% of the estimate price if the cancellation is made less than 14 days prior to the specified commencement date for the Works, 10% of the estimate price if the cancellation is made less than 7 days prior to the said specified commencement date and 20% of the estimate price if the cancellation is made less than 2 days prior to the said specified commencement date.
17. Removal of Waste Materials
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.
18. Frozen Pipes
Diligent Developments will not be liable for any fracture found in frozen pipes attended by Diligent Developments. Diligent Developments will not guarantee to clear blockages occurring in a frozen pipe or drain.
19. Waiver, Variation etc.
No waiver by Diligent Developments 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 Diligent Developments unless sanctioned in writing by Diligent Developments. No forbearance or delay on Diligent Developments’s part shall prejudice Diligent Developments’s rights and remedies under this Contract.