Terms and Conditions of Service – Elements Plumbing & Heating Ltd
1.1 Elements: Elements Plumbing & Heating Ltd, registered in England and Wales 08516779 of 10 London Road, Liphook, Hampshire, England, GU30 7AN;
1.2 the Client: the organisation or person who purchases the Services from Elements as specified in the Contract Specification and/ or Maintenance Agreement;
1.3 the Goods: the merchandise, wares or materials supplied by Elements to the Client and detailed in the Contract Specification;
1.4 the Services: the professional services to be provided by Elements to the Client and as detailed in the Contract Specification and/ or Maintenance Agreement;
1.5 the Estimate: an estimate of the likely minimum costs involved for the completion of the Services and/ or Goods based on a visual inspection by Elements and/ or details supplied to Elements by the Client. The Estimate is set out in the Contract Specification. The Estimate is subject to change in line with the terms of this Agreement.
1.6 the Contract Specification: means the schedule of works, quotation or other similar document giving details of the Goods and or Services to be provided by Elements;
1.7 the Maintenance Agreement: means the written agreement between the parties for Elements to provide reactive maintenance works to the Client in respect of specific equipment for a fixed duration;
1.8 the Equipment: the item(s) specified under the Maintenance Agreement identified with the make, model and serial number;
1.9 the Monthly Fee: means the fixed monthly fee payable by the Client where planned servicing of specific equipment, for a specific time is required;
1.10. the Agreement: these Terms and Conditions together with any terms contained within any Contract Specification and/ or Maintenance Agreement
2. General and Interpretation
2.1. These Terms and Conditions shall apply to all and any contracts for the supply of Goods and or Services by Elements to the Client and to the exclusion of all other terms and conditions, including any terms and conditions the Customer may purport to apply under any purchase order, confirmation of order or similar documents.
2.2. These Terms and Conditions along with the Maintenance Agreement govern the provision of reactive maintenance services to the Client in respect of the Equipment.
2.3. These Terms and Conditions along with a Contract Specification govern the provision of Goods and Services.
2.4. Any variation to these conditions (including any special terms or conditions agreed between the parties) shall be inapplicable unless agreed in writing by a Director of Elements.
2.5. In the Agreement any references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
2.6. To the fullest extent permissible by law, all implied terms, conditions, warranties and representations are excluded from this contract.
2.7. In these Conditions headings will not affect the construction of these Conditions.
3. Charges, invoicing and payment
3.1. A contract for the supply of Goods and or Services will only be formed when Elements confirms acceptance of the Client’s order, and the Clients acceptance of the Estimate. A purchase order or letter of intent will not form a binding contract until such acceptance has been communicated by Elements.
3.2. Elements’ fees (the Estimate or Monthly Fee) for the supply of Goods and or Services will be detailed in the Contract Specification and/ or the Maintenance Agreement. The Estimate will be exclusive of VAT which will be applied as necessary.
3.3. The Estimate may be subject to increase in the following circumstances. Where subject to increase, the Client will be notified by Elements:
3.3.1 If, after agreement of the Estimate, the Client instructs Elements (written or orally) to provide additional works or services not referenced or detailed within the Contract Specification;
3.3.2 If it is discovered further works and services need to be carried out in order to provide the Goods and/ or Services as provided for in the Estimate which had not been anticipated.
3.4. The Client will be invoiced for the Goods and/ or Services on completion unless otherwise detailed in the Contract Specification or Maintenance Agreement.
3.5. Invoiced amounts shall be payable within the period specified on the invoice or in the Contract Specification/ Maintenance Agreement. If not specified, all invoices are due for payment on invoice.
3.6. A deposit may be payable in line with the Contract Specification and/ or Maintenance Agreement.
3.7. In respect of maintenance as outlined within a Maintenance Agreement, only the Services outlined at clause 4.1 within these terms, and within the Maintenance Agreement shall be inclusive. Any additional Goods and/ or Services will be outlined within a Contract Specification.
3.8. If Elements cannot gain access to enable completion of the Services or the delivery of Goods an aborted visit fee may be imposed as set out in the Maintenance Agreement and/ or Contracts Specification.
3.9 Elements is entitled to charge interest on overdue invoices from the day after the final date on which payment was due until the date on which payment was made. The rate of interest charged shall be 8.00% per annum above the official dealing rate of the Bank England currently in force.
3.10. Elements shall also be entitled to recover any reasonable charges incurred in the process of obtaining late payment owed by the Client to Elements, unless such costs are incorporated in a fixed cost agreed in settlement of the late payment owed by the Client to Elements. Such costs may include, but are not limited to the fees paid to any third party debt collecting agency instructed to collect the late payment from the Client.
3.11. Where the Client fails to make payment of an invoice by the final date for payment in accordance with this clause and the Contract Specification, Elements, shall be entitled to, on submission of seven days’ written notice, suspend performance of the Services until payment of the outstanding amount has been made by the Client.
3.12. Where Elements suspends performance of the Services in accordance with Clause 3.11 the Client shall not instruct any other company, person(s) or organisation to perform the Services.
3.13. The Client agrees that it shall be liable for any costs and damages incurred by Elements in consequence of Elements’ suspending performance of the Services in accordance with Clause 3.11.
3.14. The Client further agrees that suspension of the Services in accordance with Clause 3.11 shall not amount to a breach of this Agreement by Elements.
3.15. The Parties agree that ownership of any Goods supplied by Elements (or any supplier to Elements) in the provision of the Goods and Services shall by retained by Elements until all invoices raised by Elements have been settled by the Client.
4. The Maintenance Agreement
4.1. Where a Maintenance Agreement applies to the Equipment, the Services as provided for within the Maintenance Agreement and the Monthly Fee shall include:
4.1.1. A minimum contract period of 12 months;
4.1.2. Contact, for the duration of the Maintenance Agreement with Elements and access to a 24- hour helpline in relation to faults and/ or break down with the Equipment;
4.1.3. Reactive visit(s), for the duration of the Maintenance Agreement from an Elements engineer to inspect and repair workmanship and/ or major parts or components as outlined within the Maintenance Agreement only on the Equipment.
4.2. The Maintenance Agreement and Monthly Fee shall not include:
4.2.1. Repair of pre-existing faults;
4.2.2. Any building works, making good or redecoration unless specifically stated within the Maintenance Agreement or a Contracts Specification;
4.2.3. Any repair to, or replacement of pipework;
4.2.4. Faults caused by any other party repairing or otherwise working on the appliance other than Elements;
4.2.5. The provision of any review, or Services in relation to any other equipment than that set out within the Maintenance Agreement;
4.2.6. Repair to, or replacement of parts or components other than those set out within the Maintenance Agreement;
4.2.7. Repair or replacement in the event of vandalism to the Equipment;
4.2.8. Repair necessary due to breakdowns caused wholly or partly by works carried out by anyone other than an Elements authorised engineer;
4.2.9. Repair necessary due to breakdowns caused wholly or partly due to use of the Equipment against the instructions of Elements and the manufacturer;
4.2.10. Replacement of any item of plant, accessory or components of plant or system; 4.2.11. Any lifting, scaffolding or access equipment;
4.2.12. Any carpentry or building works of any kind;
4.2.13. Any parking and congestion charges incurred in carrying out visits under the Maintenance Agreement;
4.2.14. Any Goods or Services not specifically listed in writing within clause 4.1, or the Maintenance Agreement.
4.3 The provision of Goods and/ or Services as outlined in clause 4.2 may be provided by Elements where possible at additional cost to the Client in line with a Contract Specification
5. Client Responsibilities
5.1. The Client shall co-operate with Elements in order to enable Elements to perform its obligations under this Agreement and in particular shall:
5.1.1. Obtain all necessary permissions and consents that may be required for the performance of the Services;
5.1.2. Ensure that accurate information, such as the delivery address for Goods, is supplied to Elements and supply any further information reasonably required by Elements;
5.1.3. Ensure that access and egress to the site(s) is unobstructed to allow Elements performance of the Services and delivery of the Goods;
5.1.4. Ensure access to and collection of all materials, equipment and plant which is the property of Elements (or any supplier to Elements);
5.1.5. Protect all items of furniture, furnishings, fixtures and fittings against damage during the provision of the Services by Elements, whether through removal or suitable protective covering;
5.1.6. Be responsible to check Goods are in good working order on delivery and to ensure their safekeeping/ storage; 5.1.7. Be responsible for any additional costs incurred as a result of testing or otherwise required to allow Ensure to perform the Services under this Agreement;
5.1.8. Be responsible for the removal of any waste materials resulting from the Services carried out by Elements and/ or supply disposal units such as skips for this purpose;
5.1.9. Be responsible for all submissions, payments and approvals where applicable from building control or other relevant statutory authorities;
5.1.10. Allow access and egress to the site by Elements and its insurers for the purposes of inspection of any alleged defective work within 12 months of completion of the Services;
5.1.11. Comply with such other requirements as may be set out in the Contract Specification or otherwise agreed between the parties. The Client shall be liable to compensate Elements for any expenses incurred or losses suffered by Elements as a result of a failure of the Client to comply with any part of clause 5.1.
6. Elements’ Responsibilities
6.1. Elements will use all reasonable efforts and skills to ensure that the Services and Goods provided by Elements are delivered in accordance with the standards expected of professional plumbing and heating engineers.
6.2. Elements are Gas Safe and Oftec registered and will perform Services in accordance with the applicable requirements of these associations.
7. Health and Safety
7.1. Elements treats the health and safety of its employees, contractors and agents with the utmost importance. Elements will carry out site specific risk assessments and produce method statements for any Services carried out on a site operated by or on behalf of the Client.
7.2. The Client acknowledges its statutory and common law duties in relation to the health and safety of visitors to its site, including in particular pursuant to section 4 of the Health and Safety at Work etc. Act 1974.
7.3. The Client shall ensure that all sites where Elements shall carry on the Services are safe for conduct of those Services. Elements shall notify the Client of any risks to health and safety which require remedial action, which must be taken by the Client within a reasonable time scale.
7.4. The Client will advise Elements of any changes made to its premises which will affect or impact the delivery of the Services.
7.5. Elements reserves the right to suspend the provision of all or part of the Services where an unacceptable risk to health and safety exists until the Client has removed, or reduced to an acceptable level, that risk. The Client shall remain liable for any charges due for the Services during any such period of suspension.
8. Variations to the Services
8.1 Variations to the Services and or Goods to be provided by Elements under this Agreement must be agreed by an authorised representative of Elements as specified in the Contract Specification. Any other variation will not be binding upon Elements.
8.2 All variations to the Services and or Goods must be confirmed in writing and signed by an authorised representative of Elements and the Client no later then seven days after the date on which the variation became effective.
9. Guarantees and Insurances
9.1. A guarantee shall be provided by Elements in respect of labour and parts within 12 months from the date of completion of the Services.
9.2. This guarantee is valid only upon the Goods and Service being paid for in full.
9.3. Elements will not carry out any remedial works under guarantee where the Client cannot supply sufficient evidence that the Services were originally carried out by Elements, and/ or that the parts were supplied by Elements.
9.4. Elements will seek to repair faulty workmanship or parts where this is notified to Elements in writing by the Client within 12 months from the date of completion of the Services only, where it is found that such faulty workmanship was wholly by Elements, or the faulty part was supplied by Elements.
9.5. Elements and/ or it’s insurers must be provided the opportunity to inspect the workmanship and parts and any alleged defect prior to carrying out repair works in line with this guarantee.
9.6. Elements will not contribute to the cost of the Client seeking repair/ replacement elsewhere.
9.7. Any guarantee in line with clause 9.1 will become null and void if the Services and/ or Goods completed/ supplied by Elements have been:
9.7.1. Subject to misuse, wilful act or neglect of the Client or any third party;
9.7.2. Repaired, tampered with, or modified by anyone other than an Elements operative/ representative.
9.8. Elements shall not be liable for any consequential loss by the Client or a third party of any nature whatsoever including (without limitation) loss of earnings.
9.9. Elements reserve the right to invoice the Client for all costs incurred handling a claim under this guarantee which prove not to be covered by this guarantee, including but not limited to the cost of the initial inspection visit at Elements’ standard rate.
9.10. Any parts, equipment or components supplied by Elements (the Goods) may be covered by their respective manufacturer’s warranty in addition.
9.11. Any systems or structures which have not been installed or worked on by Elements will not be covered under this guarantee.
9.12. Damage resulting in the requirement for remedial works/ replacement or repaired parts caused partly or entirely as a result of the following will not be covered under this guarantee, nor will Elements be liable for such:
9.12.1. Insect Infestation;
9.12.4. Structural defects such as subsistence;
9.12.5. Outside force or root penetration;
9.12.7. Natural disaster.
10.1. Any warranties and conditions provided in this Agreement shall be exclusive.
10.2. All other warranties and conditions, whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the performance of the Services and or the supply of the Goods by Elements.
11.1. The Client shall indemnify Elements for any losses incurred by Elements as a result of investment made by Elements in vehicles, equipment, man power or any other goods or services to perform the Services or supply the Goods in consequence of the formation of this Agreement where the Client cancels or varies this Agreement. Elements shall notify the Client of the nature and approximate value of that investment prior to making that investment.
11.2. The Client shall indemnify Elements in respect of any direct loss incurred by Elements in the performance of the Services and or supply of the Goods in consequence of any negligent act or omission committed by any person or organisation acting on behalf of the Client.
11.3. Elements shall indemnify the Client in respect of any direct loss incurred by the Client in consequence of any negligent act or omission committed by any person or organisation acting on behalf of Elements in the normal course of the performance of the Services or supply of the Goods.
12. Limitation of Liability
12.1. Nothing in these terms and conditions shall exclude or limit Elements’ liability for personal injury, death or fraudulent misrepresentation.
12.2. The liability of Elements to the Client under this Agreement shall be limited to any direct loss suffered by the Client as result of the negligent performance of the Services or supply of the Goods and only where the Client notifies Elements of the negligent act or omission in question within seven days of the date when the Client became, or should reasonably have been, aware of that act or omission.
12.3. Elements shall not be liable for any loss caused by any act or omission of an operative of Elements where that operative was not acting in the normal course of performance of the Services or supply of the Goods.
12.4. Elements shall not be liable for any damage suffered to a part of any property where the damage is in whole or in part a consequence of a defect or weakness in that part of the property.
12.5. Elements shall not be liable for the cost of, nor responsible for the repair of, any damage to property such as wallpaper, paintwork, tiles, carpets, furniture, fixings etc. which occur during the course of provision of the Services.
12.6. Elements shall not be liable for any loss or damage arising from the performance of services that amount to a variation of the Services to be performed or Goods to be supplied agreed under this Agreement unless such variation has been agreed in compliance with clause 9 of this Agreement.
12.7. Elements shall not be liable for any indirect or consequential loss suffered by the Client due to a breach of this Agreement.
12.8. Elements shall not be responsible for any additional costs incurred by the Client as a result of testing or otherwise required to allow Ensure to perform the Services under this Agreement.
12.9. Elements shall not be responsible for the cost to the Client of any works which need to be carried out to enable Elements to provide the Goods and/ or Services safely, including but not limited to electrical wiring.
12.10. Elements accepts no liability for materials supplied by the Client or other third parties and accepts no liability for any damage or faults as a result.
12.11. Elements accepts no liability for the condition or performance of existing systems or equipment retained by the Client which Elements has not provided or carried out works on under this Agreement.
12.12. Elements shall not be liable or responsible for any damage or defect arising from the works of any third party contractor.
12.13. Elements shall not be liable for losses resulting from works recommended by Elements which are subsequently not carried out.
12.14. Time shall not be of the essence in relation to performance of the Services or supply of the Goods unless expressly provided otherwise in the Contract Specification, and Elements shall not be liable for any losses incurred by the Client as a result of a failure to perform the Services or supply of the Goods within the indicated time frames specified in the Contract Specification.
13.1. Where no Maintenance Agreement applies, this Agreement shall terminate automatically once Elements has completed performance of the Services and or provided the Goods within the Contract Specification and the Client has made payment of all monies owed to Elements under this Agreement.
13.2. Otherwise this Agreement may not be terminated except in accordance with the provisions of this clause.
13.3. This Agreement may be cancelled by the Client with at least 48 hours’ notice to be provided in writing to Elements prior to the commencement of Services without charge except in the following circumstances where the Client may be invoiced for the cost incurred by Elements as a result:
13.3.1. Where Goods have been ordered specific to the Client’s requirements and Elements cannot return to their suppliers and obtain a full refund;
13.3.2. Where additional costs are incurred as a result of returning Goods and/ or cancelling orders;
13.3.3. Where Goods have been ordered specific to the Client’s requirements and Elements cannot re-use the Goods internally.
13.4. The Client shall indemnify Elements for any reasonable losses suffered or costs incurred as a result of early termination of this Agreement in compliance with the preceding sub-clause.
13.5. In the event of Services under a Maintenance Agreement, either party may terminate this Agreement only after 12 months by giving one month’s notice prior to reaching 12 months of this Agreement in writing.
13.6. Where either party does not give notice to terminate the Maintenance Agreement one month or more prior to reaching the 12 month anniversary of the Agreement, the Agreement will automatically renew.
13.7. Where automatic renewal takes place in line with clause 13.6 of this Agreement, this will be at the same Monthly Fee unless the Client is otherwise notified by Elements at least one month prior to the anniversary date of this Agreement.
13.8. Where notice is given by Elements to the Client of an increased renewal Monthly Fee less than one month prior to the anniversary date of this Agreement, the Client may, within 14 days of the notification of the increase, give written notice to Elements to terminate this Agreement. Failure to do so will result in automatic renewal under clause 13.6.
13.9. This Agreement may be terminated immediately whether applying to Goods and/ or Services under the Maintenance Agreement or Contract Specification by either party immediately in writing where:
13.9.1. The other Party becomes bankrupt or insolvent or enters a deed or arrangement with its creditors or goes into liquidation or has a receiver appointed of all or part of its undertaking, (except for the purposes of amalgamation or restructuring); or
13.9.2. Acts in fundamental or repeated breach of a term or terms of this Agreement to an extent which permits the other party to consider this Agreement repudiated, unless such breach is in consequence of force majeure.
14. Force Majeure
14.1. Neither party shall be entitled to damages from the other party, or to terminate this Agreement where the other party acts in default or material breach of this Agreement where that default or breach was caused by conditions or events beyond its control including, but not limited to:
14.1.2. Acts of God;
14.1.3. Natural disasters;
14.1.4. Acts of war or terrorism;
14.1.5. Act or omission of government, highway authorities or telecommunications carrier, operator or administrator;
14.1.6. Delay in manufacture, production or supply by third parties of equipment or services required for the performance of the Services or production and supply of the Goods;
14.1.7. Any event preventing Elements’ operatives from attending the Client’s premises to perform the Services including but not limited to adverse weather conditions, road closure or congestion and mechanical breakdown;
14.1.8. Any hazard at the Client’s premises including but not limited to impeded access or exit routes, structural defects, presence of noxious, combustible, radioactive or toxic substance which, in the reasonable opinion of Elements, comprises an unacceptable risk to the health and safety of its operatives;
14.2. Strike, lockout or other labour dispute affecting the employees of Elements or the Client where in the latter case the effect is to prevent or hinder Elements’ operatives from performing its duties;
14.3. The Party in breach of default shall be entitled to a reasonable extension of time to perform its obligations under this Agreement after notifying the other party
15. Independent Contractors
15.1. Elements and Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless expressly agreed to in writing by both parties.
16.1. Elements may assign its obligations under this Agreement to a third party without the Client’s consent.
16.2. Nothing in the preceding sub-clause shall however prevent the Client from enforcing its rights under this Agreement against Elements.
16.3. The Client may not assign any of its rights or obligations under this Agreement without the written consent of a Director of Elements.
17.1. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
18.1 The failure of any party at any time to require performance of any provision or to resort to any remedy provided under this Agreement shall in no way affect the right of that party to require performance or to resort to a remedy at any time thereafter, nor shall the waiver by any party of a breach be deemed to be a waiver of any subsequent breach. A waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced.
19.1 All notices and other communications provided for in this Agreement and any associated document shall be in writing and shall be delivered by post, fax, email or hand to an authorised representative, to the address, fax or email specified in the Contracts Specification.
19.2 Any notices served shall be deemed to be effective on actual receipt by the receiving Party, who shall acknowledge receipt within two working days of the date of receipt.
20. Data Protection
20.1. Elements will use any personal data supplied to it by the Client in order to provide the Goods and Services to the Client.
20.2. Elements will not use any personal data for any other purpose except with the express consent of the Client or unless it is required to do so by law.
20.3. The Client may request that Elements supply to them a copy of the personal data which Elements holds on file.
21. Entire Agreement
21.1. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.
22. Third party rights
22.1 Nothing in this Agreement is intended to, nor shall, confer any rights on a third party unless expressly provided otherwise
23.1 This Agreement shall be construed in accordance with English Law and the Courts of England and Wales shall have exclusive jurisdiction in so far as any matter arising from this Agreement is required to be referred to a court of law.