Action Response Ltd - Terms & Conditions
SERVICE AND MAINTENANCE CONTRACT TERMS AND CONDITIONS OF TRADING
These conditions shall form the basis of a contract under which we undertake to carry out the work specified in all future proposals and estimates. In the event of any conflict between these conditions and any conditions contained in our proposal, the latter shall prevail.
Acceptance of our proposal or instruction to carry out work in writing constitutes your consent to these conditions, and excludes any other conditions, whether expressed or implied, which are inconsistent with them.
‘Proposal’ – A written proposal such as an estimate, contract, JBCC document, email document or fax.
‘Customer’ – The party to whom Action is carrying out the service.
‘Like for like’ – An item that requires replacement as an exact match.
‘Best match’ – An item that is considered to be the most similar match available from discontinued or unavailable items.
2.1 The Customer will be treated as an Account Customer or Non-Account Customer, according to Action’s reasonable discretion.
2.2 All estimates and Quotations given by Action, 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 Action and the Customer, except where these terms are a schedule to a signed agreement between the Customer and Action, in which event these terms apply only to the extent not inconsistent with that Agreement.
2.3 The Customer acknowledges that Action has not made any representations (other than any expressly stated in the Contract and/or in Action’s estimate or Quotation), which have induced it to enter into the Contract, and the Contract shall constitute the entire understanding between the Customer and Action for the performance of the Works.
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 Action of any documentation of the Customer shall not imply any modification of the contract.
2.5 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.
1. ACTION’S RESPONSIBILITIES
1.1 Action will carry out routine maintenance to the facilities or property as described in the Proposal. In addition Action shall at the additional expense of the Customer carry out such further works of repair and overhaul as may be requested via written consent from the Customer. Further works requested beyond the scope of any agreed proposal or estimate will be charged in line with our published scale of rates.
1.2 Action will report to the Customer details of replacement parts and consumable materials used at each visit, and will also notify the Customer of any further worn or defective parts observed during the visit. We will also notify the Customer of recommended additional works that might be required such as to maintain the equipment or facility in the most economical way.
1.3 Action will also provide a call-out service for emergencies subject to payment as described in Clause 4 below.
1.4 Basic service visits will be made during our normal working hours (8:00-16:30) at a time mutually convenient to the customer and Action.
Where the Customer requires specifying the time for works to be performed by reference to any particular day, then Action must be given at least 48 hours’ notice of the time allocated. Action shall under no circumstances be liable in the event that it is unable to perform its obligations hereunder at any time specified. Times stated are given as accurately as possible and represent statements of intention but are in no way contractually binding.
1.5 Contracted service visits will be made according to the details of visits provided in the contract documents. Confirmation of attendance cannot be provided until within 48 hours of the specified date.
1.6 Emergency service work and other works of repair and replacement where the customer has requested attendance within 2 hours between 8:00-16:30 will be performed by Action according to the scale of rates for daytime emergencies, providing Action Response can attend the site within 2 hours, else normal day rates apply. Emergency service work requested and attended to between 00:00-8:00 and 16:30-12:00 Monday to Friday and weekends are subject to the scale of rates for out of hours emergencies irrespective of the time taken to attend site.
1.7 Project related work will be undertaken within the hours highlighted in the project documents and in line with other contractors as required. A mobilisation period of 6 weeks is required from written authorisation to proceed with the contract and the project start date.
1.8 The Customer will be treated as an Account Customer or Non-Account Customer, according to Action’s reasonable discretion.
1.8.1 Account customers may receive up to 30 days credit.
1.8.2 Non account customers may be asked to pay up front by the use of credit card and on production of a proforma invoice.
Unless stated otherwise in writing the following works will not be covered under any Proposal and will be charged for in addition to the contract fee. Action will not be required to carry out any of the following under the proposal; and such work, if to be carried out by Action, shall be carried out during the normal working hours of Action (unless requested otherwise in writing by the Customer) and as soon as reasonably possible.
2.1 Attention to faults caused by defects or blockages in the Customer’s drainage system, failures in the supply of water, electricity or other services, that are not attributable to work carried out in the proposal.
2.2 Work performed by Action outside normal working hours at the Customer’s request. Such requests will be liable to be charged at out of hours rates according to the time of request. Where in the appointment
2.3 Repair of any Equipment necessitated by accidental or wilful damage, or by defective works performed by persons other than those employed by or authorised in writing by Action.
2.4 Repairs necessary as a result of fair wear and tear, except as provided for in any contracted maintenance schedule.
2.5 Work on ancillary gear or equipment attached to or adjacent to the Equipment or facilities detailed in the proposal.
2.6 Damage or deterioration due to misuse negligence or incorrect operation of equipment, systems or materials installed or maintained by Action.
2.7 The identification and procurement of specific like for like materials or bespoke items dictated by repair, replacement or discontinued product will not be included in any proposal or estimate made. In the instance a customer requests our involvement in procuring such items; an additional procurement charge will be made in line with Action’s standard scale of rates plus overheads and profit at 15% for the time taken in sourcing such an item.
2.8 Work to any specified schedule or timeframe may be affected by the delivery of specific or bespoke materials requested by the customer. This is particularly the case where the item may only be available from one supplier. Action will endeavour to work with the client in reaching all project deadlines and will not hold Action liable for any late delivery of work due to specific or bespoke items, or the action of nominated suppliers which may hold up the work, where alternative material or equipment can be suggested to keep the work on course.
3. CUSTOMER’S RESPONSIBILITIES
3.1 The Customer will permit access to the facility and equipment at times reasonably requested by Action and subject to reasonable notice. He will provide free of charge all necessary, lighting, power and water as would be expected for the safe completion of the works.
3.2 The Customer will be responsible for all loss or damage howsoever caused (otherwise than by neglect or default of Action or its employees) to all machinery or materials brought onto the Customer’s premises by Action for the performance of its obligations, and shall adequately insure against such loss.
3.3 The Customer will use the Appliance or service in accordance with the instructions or any directions issued by the manufacturer of the Appliance or Action.
3.4 The customer agrees that when notified by Action of the intention to attend site and where permission for access has been granted to perform the work, that failure to allow access for any reason will incur a call out fee as highlighted in Clause 5.4 below. This may be waivered at the discretion of Action management if notified a minimum of 24 hours before hand.
4.0 ESTIMATES AND VARIATIONS TO THE PRICE
4.1 Any estimate which may be given either verbally or in writing by Action is subject to withdrawal by Action at any time before receipt of an unqualified acceptance from the Customer and shall be deemed to be withdrawn unless so accepted within twenty eight (28) days from its date
4.2 Unless otherwise specified by Action 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 Action. Action’s final price will be calculated on the basis specified in the estimate, if any, or if none, in accordance with Action’s Schedule of Rates applicable at the time the Works are carried out and may be increased above (but not reduced below) the specified price. Furthermore, Action reserves the right to increase the price before carrying out the Works by an amount equivalent to any increase to Action in the cost of relevant materials, labour, equipment hire or transport since the date upon which Action’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
4.3 Action reserves the right to charge a fee for the collection of materials from its suppliers except with respect to work for which there is an estimate. If the collection occurs whilst Action is on site, the time taken will be treated as an addition to the estimate and charged at the relevant rate. If the materials are ordered for subsequent collection and delivery, a charge may be made by Action of £50 plus VAT. Materials will be supplied at cost, net after Action discounts plus Action normal mark-up of 15% to cover handling, stock maintenance etc.
4.4 Action Schedule of Rates is available on line or for inspection at Action’s premises during normal business hours. The Schedule of Rates specifies hourly rates. Charges are made by the hour, rounded up to the next hour, there is therefore a minimum charge of one hour.
The Customer will make payment by means of Cheque, BACS transfer, Credit or debit card payment or cash according to the following:
5.1 Annual maintenance contracts
The Customer will pay the Contract fee by equal instalments in advance of each maintenance visit at the payment intervals agreed in the contract documents and upon receipt of an invoice from Action.
If the Customer notifies Action of his intention to pay the full year’s contract fee in advance, Action will raise an invoice showing the appropriate fee and payment will be made against this invoice in advance of the agreed commencement date.
Action will raise invoices at Action’s then current rates in respect of all materials and parts (other than parts subject to manufacturer’s warranty) used during the course of all work carried out and in respect of all labour employed in carrying out additional works under Clause 1 above. Payment will be made by the Customer for all invoices raised under this sub-clause within thirty days from the date of invoice for all business clients and within 14 days for all private or unqualified accounts.
Any contract fee is based on the Equipment to be serviced remaining situated at the stated premises and with convenience of access as existing at the date hereof. If the Equipment is moved to other premises or access restricted then Action reserve the right to increase the contract fee.
In the instance access is granted to perform work on a stated date, where this is confirmed in writing to the customer and where access fails to be granted through the mistake of the client or arrangements with a third party, the client will agree without prejudice to pay a call out fee to Action for the costs of committed man power and travel to site.
If the Customer fails to make payment to Action as provided under this Clause, then without prejudice to Action’s rights under Clause 6 below, Action may charge interest at a rate of 3% above the NatWest base rate on all amounts overdue for more than 60 days.
5.2 Joint Building contracts
In the case of proposals undertaken in line with a Joint Building contract or similar, the details of payments according to stage payments or applications for payment will be followed according to that laid out and agreed upon in the contract.
If the Customer fails to make payment to Action as provided for under the contract, then without prejudice to Action’s rights under Clause 6 below, Action may charge interest at a rate of 3% above the NatWest base rate on all amounts overdue for more than 60 days.
5.3 Fixed Price contracts
Where an estimate has been requested for a proposal and Action have provided a fixed sum, it is expected that sum is representative of the work proposed to date and will be considered as a fixed price contract in all works we undertake. Where a customer requests work to be considered in line with the National Standard Rates for maintenance or some other form of surveying, they are requested to make this clear to Action in writing prior to giving authority in writing to start the work or the works price will be considered fixed.
Additional requests throughout the proposed works will not fall under the fixed price contract and will be liable for additional charge, against our standard daily rates, and must be requested in writing.
5.4 Attempts to provide service on a pre-agreed time or date, that are subsequently denied due to lack of access to a property or site due to the customer or their representative not being present or adequate provision being left to gain access, will incur a first hour charge unless notified to Action in writing more than 24 hours in advance.
6. STATEMENT AND REPRESENTATION
6.1 The Customer accepts that all statements made by Action’s servants, agents or sub-contractors do not form part of any contract and constitute statements of opinion only of such persons.
6.2 Action shall only be bound by the terms of this contract and other written statement signed by a nominated Action representative at management level.
7.1 Action hereby guarantee that if any materials supplied or work performed by it are or is proved to its satisfaction to be defective, it will promptly at the request of the Customer rectify such defect in the Equipment free of charge.
7.2 Action will indemnify the Customer against any legal liability for injury or damage to any person or to any property to the extent directly caused by its negligence in performing its obligations hereunder, but not otherwise, provided that:
7.2.1 The total liability of Action for damage to the property of the Customer shall not exceed £10,000,000 for any one act or default, and
7.2.2 Action shall not be liable to the Customer for any loss of use of the Equipment or other plant or equipment or for loss of profits or of contracts or for any consequential loss, damage or injury of any kind whatsoever whether to the Customer or third parties otherwise than in respect of claims for personal injuries or death arising by virtue of negligence on the part of Action.
7.3 In the event that the Customer fails to notify Action in writing within fourteen days of it becoming aware of circumstances which could entitle it to make a claim against Action pursuant to these Conditions then Action shall not be liable to the Customer to the extent that Action are thereby prejudiced by reason of inconvenience or expense due to such delay in notification.
7.3 The liability of Action to the Customer in relation to any claim whatsoever in respect of goods or services supplied by any Specialist Sub-contractor as specified in the Proposal Document or other performance or failure in performance by such Specialist Sub-contractor of any of its obligations shall be limited to the liability of such Specialist Sub-contractor to Action and the Customer shall fully and effectively indemnify Action from and against any such claim if made against Action by any third party whatsoever.
7.4 This guarantee is given in lieu of all other conditions, warranties or undertakings expressed or implied by common law or statute which are hereby expressly excluded.
This contract will start on the agreed commencement date and continue in force and effect until the Termination. This contract may be terminated by giving three month’s notice in writing to the other at their registered offices (or usual correspondence address), unless previously terminated under one of the following sub-clauses: -
8.1 Either party may terminate this contract at any time by notice in writing given to the other at their registered offices (or usual correspondence address) if either party: -
8.1.1 commits a breach of the terms of this contract which, if capable of remedy has not been remedied within 30 days of receipt of notice specifying the breach.
8.1.2 becomes bankrupt or insolvent of compounds with creditors or proceedings are commenced for its liquidation (other than for a voluntary winding up for the purpose of re-construction or amalgamation) or if a Receiver or Manager is appointed of all or any part of its assets or undertaking.
8.2 Action shall be entitled to terminate this contract forthwith by notice in writing if the Customer shall fail to make payment for any reason of any sums due from it hereunder within 60 days from the date due for payment as provided by this contract or if the Customer purports to assign the benefit of this contract without the consent in writing of Action.
9. FORCE MAJEURE
Neither party shall be under any liability whatsoever for any delay, loss or damage caused wholly or in part by Act of God, governmental restriction, condition or control or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves employees or not by reason of any other act, matter or thing beyond its reasonable control.
Subject to the obligations of Action under the above conditions and to the provisions of the Unfair Contract Terms Act 1977 Action shall not be liable for any loss or damage caused by or arising from the failure of Action to fulfil its obligations under this contract and this contract shall be governed and interpreted exclusively according to the law of England and shall be subject to the jurisdiction of the English Law Courts.
Where for any reason the repair or replacement of a part cannot be carried out at the address of the Customer then Action will notify the Customer and the repair or replacement will be the subject of a separate agreement between the Customer and Action.
TRANSFER OF ACCOUNT
The Customer shall not transfer this contract to any other person without the consent of Action.
Any notice which has to be given by Action will be in writing and deemed duly delivered if sent to or left at the address of the customer given in this contract or to any other address which the customer has notified Action in writing as his address for service and any notice which has to be given by the Customer will be in writing and deemed duly delivered if received at or left at the address of Action given in this contract or the email address firstname.lastname@example.org