GENERAL TERMS & EXCLUSIONS
(Updated 23.09.2020)
1. GENERAL
Unless otherwise agreed in writing, all equipment, material and work are supplied subject to the following General Terms & Exclusions to the exclusion of any other terms which are implied by trade, custom, practice or course of dealing. No oral amendment to these General Terms & Exclusions shall be effective unless confirmed in writing by Eversafe Fire Protection Limited (“EFP”). No conditions included in your enquiry and / or order shall be of any effect. These General Terms & Exclusions and EFP’s tender and the documents referred to in these General Terms & Exclusions and EFP’s tender constitute the entire agreement between EFP and you for the design, supply and installation services set out in EFP’s tender (the “Contract”). You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of EFP which is not set out in the Contract.
2. DESIGN PERFORMANCE
2.1 EFP’s tender is based on the classification / specification / design outlined in the tender. It is your sole responsibility (whether or not carried out by any nominated representative) to liaise with the Building Control, Fire Service and water authorities and, if applicable, the property owner’s insurer to ascertain with each and all of them that the classification / specification / design are acceptable and approved. EFP shall have no responsibilities or obligations in respect of any such matters and obtaining such approval. EFP’s acceptance of your order or your acceptance of EFP’s tender will be on the basis that your responsibility to liaise with the Building Control, Fire Service and water authorities and, if applicable, the property owner’s insurer to obtain approval for the classification / specification / design is acknowledged and agreed by you.
2.2 EFP requires you to obtain the approval of the Building Control, Fire Service and water authorities as well as of any insurer as to EFP’s design and as to the design performance within seven days of EFP submitting any design to you. EFP has no liability for any delays to the completion of the works arising as a result of or in connection with any requisite approvals not being obtained within each such seven-day period.
3. EXCLUSIONS
3.1 Unless otherwise specifically mentioned, EFP has made no allowance within its tender for other trades, works and/or supplies associated with or linked to EFP’s works or for the installation of any equipment described in the tender or any associated specification (“the Equipment”). You accept that the timely and efficient delivery of EFP’s works and of the installation of the Equipment may be delayed and is dependent upon other factors, including but not limited to any: –
• builders, painters, carpenters, masons, plasterers and/or electrical contractors;
• cutting of holes, cutting away, fire stopping, making good, lagging and/or trace heating;
• underground or ground works, excavating, back filling, thrust and anchor blocks or supports and hunching’s if required (which must be in situ and cured prior to test), the design and calculations for supports keeping any trench free from water and the bed cover material recommended by relevant manufacturers (including the laying of such material);
• chlorination of or any part of the Fire Protection System whether it be under or above ground (such operations to be carried out by a specialist contractor);
• supply of dust/cover protective sheets; or
• Fire Watch
being individually and collectively referred to as “Third Party Works”.
3.2 The procurement and/or the carrying out of and/or any costs arising out of or in connection with Third Party Works are excluded from EFP’s tender. It is your responsibility to carry out or procure the carrying out of Third Party Works. You shall be responsible for any delays or damage to EFP’s works howsoever caused or arising from any Third-Party Works and you indemnify EFP in full against any and all related losses, damages, costs, expenses and/or other liabilities incurred by, awarded against and/or paid by EFP in connection with Third Party Works.
4. DELIVERY
You and/or any nominated representative shall upon EFP’s request assist in taking delivery, offloading and taking to store any and all goods, equipment, materials, tools, erection equipment etc… that is required to be used by EFP to carry out and complete EFP’s works and the installation of the Equipment (the “Materials”). You shall be responsible for storing the Materials in a covered security compound adjacent to the working area and you indemnify EFP in full against any and all related losses, damages, costs, expenses and/or other liabilities incurred by, awarded against and/or paid by EFP arising from and/or in connection with any failure on your part to do so.
5. ASBESTOS
You shall comply with all applicable duties and obligations under the Control of Asbestos Regulations 2012 and provide all possible assistance and co-operation to ensure (1) the safety and protection of EFP’s operatives in respect of any asbestos at the site or the premises and (2) the proper management of any related risks.
You shall prepare and make available to EFP upon request an asbestos report giving the location and condition of all asbestos and items containing asbestos at the site or the premises for EFP’s works and installation of the Equipment.
6. CONTINUITY OF WORK
EFP’s tender is based on EFP’s operatives having access to the site and being able to freely carry out their works without impediment during the course of normal working hours (Monday to Friday inclusive). In particular but without limitation, you shall ensure that (1) where false ceilings are involved all tiles/panels with holes are in place and tied in to allow continuity and (2) the floor area being worked by EFP’s operatives at any given time will be clear and free of obstructions to allow the unimpeded movement of EFP’s operatives and/or of a fully erected mobile scaffolding tower. EFP has no responsibility or liability for any delays to works arising from any inability of EFP’s operatives to gain free and unimpeded access to the site and/or to the work areas. You shall be liable for any losses and/or additional costs and expenses incurred by EFP in connection with or arising from any delays to EFP’s works or any disruption to the regular and efficient progress of EFP’s works arising from any failure to provide EFP’s operatives with the requisite free and unimpeded access to the site and/or to the work areas.
7. FALSE CEILING
You shall ensure that all false ceilings, whether tiled or solid, are in place and fixed with the requisite diameter holes cut ready to receive the sprinkler heads. You shall also ensure that there is sufficient permanent / temporary access to the void area above and/or adjacent to the holes cut for the sprinkler heads. You shall be responsible for removing any unwanted false ceiling(s).
8. TEST OF PIPEWORK
On completion of the system or first fix pipework, this will be tested in accordance with the appropriate rules and regulations pertaining to the project or at static pressure to reduce the possibility of serious water damage through a break or leakage in the existing system all as outlined within EFP’s tender. The test may include the induction of low compressed air. You shall ensure that all areas are exposed during the operation of filling and testing of the system with water in order that EFP may carry out a visual inspection. It is imperative that you do so and EFP has no responsibility or liability for any problems with the installed Equipment in the event of any failure for all areas to be exposed during the said testing of the system.
9. DRAINAGE OF SYSTEM
During new and/or modified works, it may be necessary to drain down the installation. EFP has assumed that this can be done within the course of one hour either by you or EFP’s operatives through the standard drain facilities attached to the system.
10. DAMAGE CAUSED BY FROST
EFP has no responsibility or liability for the replacement of any part(s) of EFP’s works or the Equipment necessitated by damage caused by frost or cold conditions (liable to cause freezing). Owing to the extensive nature and the reticulation of EFP’s pipework, it is not possible to protect all of the work at any one time and it is essential that the installation is hydraulically tested for a specific period of time. You shall be liable for any losses and/or additional costs and expenses incurred by EFP in connection with or arising from any damage to EFP’s works or the Equipment caused by frost or cold conditions.
11. SITE AREA
You shall ensure at all times the availability of a clear section within the area to be worked for EFP’s operatives to sort and assemble materials. You shall provide free of charge all electric light and power as well as water for any commission testing that may reasonably be required at appropriate stages of installation.
12. INSURANCE
12.1 “Specified Perils” are fire, lightning, explosion, storm, tempest, flood, bursting or overflowing or other escape of water from any water tank or apparatus or pipe, earthquake, aircraft and other aerial devices or articles dropped therefrom or riot and civil commotion.
12.2 You shall be take out and maintain until the completion of EFP’s works and in joint names with EFP as composite or joint insured:
• a policy of insurance in respect of any loss or damage due to or arising from any of the Specified Perils to the existing structures at the site and to the contents thereof, owned by you or for which you are responsible, for the full cost of reinstatement, repair or replacement plus an additional percentage of 15% to cover professional fees; and
• a policy of all risks insurance in respect of any loss or damage to EFP’s works, Materials and to the Equipment, to include without limitation any loss or damage due to or arising from any of the Specified Perils, for the full reinstatement value of EFP’s works, Materials and the Equipment plus an additional percentage of 15% to cover professional fees
13. TERMS OF PAYMENT
13.1 Payment of the contract sum shall fall due and be made in the following percentages and at the following stages:
• 25% on first submission of drawings;
• 50% on first delivery of Materials to site;
• 20% on completion of erection of the Equipment or when the Equipment is ready for erection but erection is delayed for any reason beyond EFP’s control; and
• 5% upon completion of testing and commissioning
being individually and collectively referred to as “Due Date”.
13.2 EFP may raise and issue invoices on or at any time after each Due Date. The final date for payment of each invoice shall be 14 days from the date of the invoice. In the event of non-payment of any of EFP’s invoices or any part amounts thereof by the final date for payment, you shall pay interest to EFP at the rate of 5% above the base rate for the time being of Barclays Bank PLC. Such interest shall accrue on a daily basis from the final date for payment until the date of actual payment of the overdue amount and shall be paid in addition to the overdue amount.
13.3 If any invoice or any part amount thereof is still outstanding after 90 days or more from the final date for payment, interest at the rate of 15% above the base rate for the time being of Barclays Bank PLC shall be payable until the debt is cleared. EFP shall be entitled to raise interest only invoices at the end of each month. In addition to the foregoing, EFP shall be entitled to claim and recover from you compensation on each outstanding invoice in the applicable amount prevailing from time to time pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
13.4 The time for payment is of the essence of the Contract. In the event of a failure to comply with any term or terms of payment, EFP has the option to either terminate the Contract or to suspend performance of the Contract until such time as the payment term or terms have been complied with or any outstanding payments have been made in full. In the event of non-payment of any of EFP’s invoices or of the non-compliance by you with any term or terms of payment, EFP is entitled to remove insofar as permissible by law any and all Materials delivered to the site and any and all other tools, plant and equipment belonging to EFP at the site. You shall indemnify EFP in full against any and all losses, damages, costs, expenses and/or other liabilities incurred by, awarded against and/or paid by EFP howsoever arising in connection with (1) the termination of the Contract; (2) the suspension of the Contract (including but not limited to the demobilisation and remobilisation of EFP’s works or services) and/or (3) the removal from the site of Materials, the Equipment and/or any other tools, plant and equipment following any non payment of EFP’s invoices or non compliance by you with any term or terms of payment (together with any subsequent re-installation or return of such items at or to the site).
13.5 Without prejudice to EFP’s right to terminate the Contract upon non-payment or to suspend the same, interest shall be payable from the applicable final date for payment at the rates stated above.
13.6 All Materials that are delivered to the site in connection with EFP’s works and/or the installation of the Equipment which are the subject of any invoice that EFP issues to you, shall remain the property of EFP until such time that EFP receives payment in full for the same. Any other tools, plant and equipment belonging to that EFP not intended to form part of EFP’s completed works shall at all times remain the property of EFP.
14. VALUE ADDED TAX (“VAT”)
The price(s) furnished in EFP’s estimate/tender is/are inclusive of any VAT. The gross amount of VAT properly chargeable on the supply by EFP of goods, works or services and due from EFP to HMRC is included in this Contract. If the rate of VAT changes between the date of EFP’s tender and the date that EFP supplies any Materials or Equipment and this results in a higher or lower related VAT liability for EFP, EFP will adjust the VAT you pay accordingly. If the VAT rate increases, EFP will be entitled to increase EFP’s price(s) proportionately and you shall pay EFP such increases in accordance with the terms of paragraph 14 above.
15. VARIATION
If you request EFP to carry out any work additional to or as a variation from the work included within EFP’s tender, EFP is under no obligation to carry out such work until you have agreed in writing (1) to make a specific additional payment to EFP for such works based on a related quotation from EFP where the additional or varied works can be accurately pre-determined in advance or (2) that all such works will be charged as an extra to EFP’s tender based upon [the actual cost of labour and material at the time that such works are carried out, together with an uplift of [ 185 ] % in respect of EFP’s overheads and profit] [daywork rates and materials based the following:
Prime cost base labour rates:
Fitter (senior craftsman) – £19.01/hour plus VAT (or such higher average rate prevailing from time to time within the Heating and Ventilating Contractor’s Association)
Installer – £13.43/hour plus VAT (or such higher average rate prevailing from time to time within the Heating and Ventilating Contractor’s Association)
The percentage increase for uplift on base prime costs:
Days (weekdays) – base labour rate + 185%
Nights (weekdays) – base labour rate + 265%
Saturdays Days – base labour rate + 250%
Sunday (and Saturday night) – base labour rate + 265%
Bank Holidays – base labour rate + 340%
Materials – cost + 27.5%
Plant – cost + 17.5%
Sub Contract Package – cost + 20%
Travel Time – base labour rate + 150% + 70p per mile
16. TIME FOR COMPLETION
In the event that no date is specified for completion of EFP’s works, EFP shall be entitled to such time as is reasonable in all prevailing circumstances in which to complete the works. In the event of a date being initially specified for completion of EFP’s works and it becomes apparent that EFP’s works will not be completed by that date for any reason beyond EFP’s control, EFP is entitled to an extension of time for completion of its works commensurate with the period of delay. EFP is also entitled to payment or reimbursement by you of any direct loss and/or expense incurred as a result of or in connection with any delay or disruption to EFP’s works or any extension to the date for completion of EFP’s works, save where any such delay or disruption has been caused by EFP’s default.
17. LIQUIDATED DAMAGES
EFP has no liability for any liquidated or other damages in the event of delayed or late completion of EFP’s works except in circumstances where EFP has been the sole and direct cause of the delay. In any event, EFP’s total liability for liquidated or other damages arising from delayed or late completion of EFP’s works shall not exceed an amount equal to 15% of EFP’s contract sum.
18. LETTER OF INTENT / ORDER
In the event of any letter of intent or order being given to and accepted by EFP to (1) reserve design or production capacity, (2) to proceed with any preliminary or design work involved or (3) order from EFP’s suppliers or sub-contractors any Equipment, Materials, plant or services arising from or in connection with the work or services specified in the Contract and subsequently any such letter of intent or order is amended, postponed, cancelled or not implemented, you shall fully compensate EFP in respect of all direct and indirect costs and losses incurred by EFP as a result of such amendment, postponement, cancellation or non-implementation. Such costs and losses shall be paid by you within 14 days of submission of EFP’s related invoice and shall bear interest in accordance with the terms of payment set out in these General Terms and Conditions. In addition, and without limitation, you shall pay EFP on demand 25% of the balance of the value of the works or services to be carried out under the letter of intent or order by way of a compensatory contribution to EFP’s overheads and profit.
19. TITLE AND RISK
19.1 The risk in the Materials shall pass to you on completion of delivery. Title to the Materials and/or any Equipment installed but capable of being dismantled shall not pass to you until EFP have received payment in full (in cash or cleared funds) for the same. Until title to any such Materials and/or Equipment has passed to you, you shall:
• hold them on a fiduciary basis as EFP’s bailee;
• store them separately from all other goods held by you so that they remain readily identifiable as EFP’s property;
• not remove, deface or obscure any identifying mark or packaging on or relating to them;
• maintain them in satisfactory condition and keep them insured against all risks for its full price from the date of delivery; and
• give EFP such information relating to them as EFP may require from time to time,
but you may use any such Equipment in the ordinary course of your business.
19.2 If before title to any Materials and/or Equipment passes to you, you become subject to any of the events listed in the paragraph 23 below entitled “Insolvency”, or EFP reasonably believes that any such event is about to happen and EFP notifies you accordingly, then, without limiting any other right or remedy EFP may have, EFP may at any time require you to deliver up the Materials and/or Equipment and, if you fail to do so promptly, enter any of your premises or those of any third party where the Materials and/or Equipment are present in order to recover them.
20. OWNERSHIP OF THE INTELLECTUAL PROPERTY RIGHTS IN DRAWINGS PLANS & BLOCK PLANS
The copyright, design right and all other intellectual property rights in any drawing, plan or block plan prepared and submitted by EFP belongs to EFP absolutely and shall so remain unless EFP’s written consent otherwise is obtained.
21. LIMITATION OF LIABILITY
21.1 Nothing in these General Terms & Exclusions shall limit or exclude EFP’s liability for:
• death or personal injury caused by EFP’s negligence;
• fraud or fraudulent misrepresentation; or
• any other matter for which it would be illegal or unlawful for EFP to exclude or attempt to exclude EFP’s liability.
21.2 Subject to the above paragraph 22.1:
• EFP is under no circumstances whatever liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with EFP’s works and/or the Contract; and
• EFP’s total liability to you in respect of all other losses arising under or in connection with EFP’s works and/or the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 50% of the contract sum.
21.3 Except as set out in these General Terms & Exclusions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
21.4 This clause 22 shall survive termination of the Contract.
22. INSOLVENCY
22.1 EFP may terminate the Contract with immediate effect by giving written notice to you if:
• you suspend, or threaten to suspend, payment of your debts or you are unable to pay your debts as they fall due or you admit inability to pay your debts or (being a company) you are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) you are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) you have any partner to whom any of the foregoing apply;
• you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or you make a proposal for or you enter into any compromise or arrangement with your creditors;
• a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up (being a company) other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction;
• you (being an individual) are the subject of a bankruptcy petition or order;
• a creditor or encumbrancer attaches or takes possession of you, or a distress, execution, sequestration or other such process is levied or enforced on or sued against you, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
• an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you (being a company);
• a floating charge holder over your assets (being a company) has become entitled to appoint or has appointed an administrative receiver;
• a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or
• you suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business.
22.2 If EFP terminates the Contract pursuant to clause 23.1, all sums due from you shall remain due and you shall be liable to EFP for any and all losses, damages, costs or expenses and other liabilities incurred by, awarded against or paid by EFP occasioned in consequence of such termination.
23. WARRANTY
23.1 Provided that EFP has previously been paid in full, EFP will make good defects which appear in the Equipment subject to such defects (1) being reported to EFP within twelve calendar months following final installation and testing of the Equipment; (2) arising solely from designs, materials or workmanship provided by EFP and (3) not being attributable wholly or in part to abnormal or improper use of the Equipment and/or to any lack of proper care or maintenance of the Equipment. Subject to the foregoing, any appropriate repaired or new parts will be delivered and installed by EFP free of charge to the specified premises.
23.2 EFP’s liability under this clause 24 shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the Equipment supplied and/or related work carried out by EFP and save as provided under this warranty, EFP shall not be under any liability, whether in contract, tort or otherwise, in respect of defects in the Equipment and/or related work carried out by EFP, damage or loss resulting from such defects or from any work done in connection therein. Except as set out in these General Terms and Exclusions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
24. EVENTS OUTSIDE EFP’S CONTROL
24.1 EFP is not be liable or responsible for any failure to perform, or delay in performance of, any of EFP’s obligations under the Contract that is caused by events outside EFP’s reasonable control (“Force Majeure Event”).
24.2 A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond EFP’s reasonable control and includes, in particular (without limitation), the following:
• strikes, lock-outs or other industrial action;
• civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
• fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
• impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or
• impossibility of the use of public or private telecommunications networks.
24.3 EFP’s obligations under the Contract are suspended for the period that a Force Majeure Event continues and the time for EFP to perform such obligations will be extended for the duration of the period of suspension. EFP will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which EFP’s obligations under the Contract can be performed despite the existence of a Force Majeure Event.
25. ASSIGNMENT AND SUBCONTRACTING
25.1 EFP may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
25.2 You shall not, without EFP’s prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
26. NOTICES
26.1 All notices sent by you to EFP must be sent to Eversafe Fire Protection Ltd at 5 Chilham Road, Maidstone, Kent, ME16 0PE (or such other address as EFP may subsequently make known to you).
26.2 EFP may give notice to you by any effective means. Notice will be deemed received and properly served upon the sending of any e-mail or fax, upon delivery in the case of any notice given in person and two days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to demonstrate in the case of (1) personal service that the notice was delivered to your registered office or normal place of business; (2) in the case of a letter, that the letter was properly addressed (to either your registered office or normal place of business), stamped and placed in the post and (3) in the case of an e-mail or fax, that the e-mail or fax was sent to any email address or fax number provided by you or otherwise displayed or included on your headed paper, your website or any promotional or other written material originated by you.
27. GENERAL
27.1 If any court or competent authority decides that any of the provisions of these General Terms & Exclusions are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
27.2 If EFP fails, at any time while the Contract is in force, to insist that you perform any of your obligations under the Contract, or if EFP does not exercise any of its rights or remedies under the Contract, that will not mean that EFP have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If EFP does waive a default by you, that will not mean that EFP will automatically waive any subsequent default by you. No waiver by EFP of any of right or remedy under the Contract shall be effective unless EFP expressly says that it is a waiver and EFP tells you so in writing.
27.3 A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
27.4 The headings to clauses in these General Terms & Exclusions are for reference only and shall not affect the interpretation of the General Terms & Exclusions.
27.5 A person who is not party to the Contract shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999. The Contract shall be governed by the law of England and Wales and you and EFP both agree to the non-exclusive jurisdiction of the courts of England and Wales.
