INTERPRETATION

Definitions:

• Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
• Cancellation Fee: the fee which the Client is liable for when cancelling the agreed Services, see Clause 8.3.
• Client: the general terms to include both Commercial and Domestic Client's.
• Client Default: has the meaning given in Clause 7.2.
• Commencement Date: has the meaning given in Clause 2.2.
• Commercial Client: a firm (including, corporate bodies, associations, and sole traders) who purchases the Goods and/or Services from the Supplier.
• Conditions: these terms and conditions as amended from time to time in accordance with Clause 16.8.
• Contract: the contract between the Supplier and the Client for the supply of Goods and/or Services in accordance with these Conditions.
• Data Controller: has the meaning set out in GDPR Article 24 and section 1(1) of the Data Protection Act 1998.
• Data Subject: an individual who is the subject of Personal Data.
• Deliverables: the deliverables set out in the Order produced by the Supplier for the Client.
• Delivery Location: has the meaning given in Clause 4.1.
• Domestic Client: a private individual who purchases Goods and Services from the Supplier.
• Force Majeure Event: has the meaning given to it in Clause 15.
• GDPR: General Data Protection Regulation.
• Goods: the goods (or any part of them) set out in the Order.
• Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Client and the Supplier.
• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world
• Order: the Client's order for the supply of Goods and/or Services, as set out in the Client's acceptance of the Supplier's Quote by email or via ServiceM8 app. Acceptance of the Quote is subject to agreement of details specified and is agreement for the Supplier to book a Commencement Date.
• Personal Data: has the meaning set out in GDPR Article 4.1 and section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
• Processing and process: have the meaning set out GDPR Article 4.2 and section 1(1) of the Data Protection Act 1998.
• Quote: a proposed price for the Supplier's Services based on certain conditions for a particular job or service.
• Retention Fees: an agreed fee, withheld by the Client and paid at an agreed point in the future.
• Services: the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Service Specification.
• Service Specification: the description or specification for the Services provided in writing by the Supplier to the Client.
• Supplier: Excel Roofing Services Ltd, registered in England and Wales with a company number 03595977.
• Supplier Materials: has the meaning given in Clause 7.1(m).

Interpretation:

1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. A reference to a party includes its personal representatives, successors and permitted assigns.
3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
5. A reference to writing or written includes faxes and emails.

BASIS OF CONTRACT

The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these Conditions.

The Order shall only be deemed to be accepted when the Client issues acceptance of the Quote (in writing), at which point, and on which date the Contract shall come into existence (Commencement Date).

Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions of the Goods or illustrations, or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

These Conditions apply to the Contract (and shall prevail) to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Any Quote given by the Supplier shall not constitute an offer and is only valid for a period of 30 Days from its date of issue, unless otherwise stated upon the Quote.

GOODS & MATERIALS

The Goods and Materials (when the Supplier is supplying) are described as per the Goods Specification provided by the Supplier.

The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Client in any such event.

The risk in the Goods and Materials supplied by the Supplier shall pass to the Client on completion of delivery at site.

Title to the Goods and Materials supplied by the Supplier shall not pass to the Client until the Supplier receives payment in full (in cash or cleared funds) for the Goods and Materials and Services.

Until title to the Goods and Materials has passed to the Client, the Client shall (where applicable):

1. store the Goods &/or Materials separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;
2. not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods/Materials;
3. maintain the Goods and Materials in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
4. notify the Supplier immediately if it becomes subject to any of the events listed in Clause 12.2(c), to Clause 12.2(f); and
5. give the Supplier such information relating to the Goods &/or Materials as the Supplier may require from time to time.

Where the Client supplies the Goods and Materials, the Supplier provides no warranty, express or Implied statutory or otherwise Is given as to the quality or suitability for their purpose of the Goods and Materials so supplied or purchased.

Where the Client supplies the Goods and Materials, they are required to ensure they order correct amounts and the Supplier accept no liability for any surplus or insufficient amounts.

DELIVERY OF GOODS & MATERIALS

The Supplier shall deliver the Goods and Materials, to the agreed location as set out in the Order, unless otherwise agreed (Delivery Location).

Delivery of the Goods and Materials shall be completed on the completion of unloading of the Goods and Materials at the Delivery Location.

The risk in the Goods and Materials will transfer to the Client upon unloading of the Goods and Material at the agreed location. This includes the Client being responsible in ensuring they do not get damaged or stolen and accepting liability should this occur.

If the Client fails to make delivery of the Goods, Materials and Plant on the agreed date, then except where such failure or delay is caused by a Force Majeure Event the Supplier reserves the right change the Works commencement date.

QUALITY OF GOODS AND MATERIALS

The Supplier confirms the following warranties apply to the Goods and Materials used in providing their services shall:

1. the Manufacturer’s warranty (and its limitations) will apply to the Goods/Materials at all times provided by the Supplier; and
2. all Goods supplied to be of satisfactory quality (within the meaning of the Consumer Rights Act 2015 or Sale of Goods Act 1979, whichever is applicable).

The Supplier shall not be liable for Goods and Materials failure to comply with the warranty in Clause 5.1 if:

1. the Client makes any further use of such Goods/Materials after giving a notice of a defect and/or malfunction;
2. the defect arises because the Client failed to follow the Supplier’s or Manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods/Materials or (if there are none) good trade practice;
3. the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Client;
4. the Client or third party tampers with, alters or repairs such Goods/Materials without the written consent of the Supplier;
5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6. the Goods/Materials differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

Except as provided in this Clause 5 the Supplier shall have no liability to the Client in respect of the Goods/Materials’ failure to comply with the warranty set out in Clause 5.1.

The terms of these Conditions shall apply to any repaired or replacement Goods/Materials supplied by the Supplier.

SUPPLY OF SERVICES

These Terms and Conditions shall apply to the roofing and associated Services provided by the Supplier with the specific Service Specification as detailed within the Supplier’s Quote.

The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Quote, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

The Quote will be specifically for the requested and agreed Services. Any additional Goods and Services which are required, need to be notified to the Supplier who will advise of the additional fees involved for the Client’s agreement. No additional work will be carried out unless expressly agreed.

The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

The Supplier is entitled to deliver the works in one or more consignment at the Supplier’s sole discretion unless otherwise expressly agreed.

If the Suppliers supply of the Goods and Services is delayed by an event outside their control, the Supplier will contact the Client as soon as possible to notify them, and we will take steps to minimise the effect of the delay. The Supplier will not be liable for any direct or indirect loss caused by such delays.

It is the Clients obligation to supply the scaffolding required to carry out the Services, unless otherwise expressly agreed with the Supplier.

The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.

CLIENT’S OBLIGATIONS

The Client shall:

1. ensure that the terms of the Order and any information it provides in the Service Specification, and the Goods Specification are complete and accurate;
2. co-operate with the Supplier in all matters relating to the Services;
3. ensure the tender pack is accurate;
4. provide the Supplier with full and clear access to the work area where the services are to be supplied, free of obstructions;
5. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
6. carry out all builder’s work, and preparatory work required prior to the Supplier commencing the Services;
7. provide the Supplier with access to electricity and hot water;
8. provide the Supplier with facilities for plant and materials to be sited on hard standing adjacent and convenient to the work and hard road access provided thereto.;
9. provide the Supplier with adequate parking, no more than 10 metres from the location of where the Services are to be supplied. Where parking charges or permits are applicable, the Client agrees to meet the cost incurred to the Supplier;
10. provide the Supplier with access to welfare facilities on site;
11. provide an appropriate and secure storage for Goods and Materials;
12. obtain and maintain all necessary licences, access, planning, permissions, and consents which may be required for the Services before the date on which the Services are to start;
13. keep all materials, equipment, documents, and other property of the Supplier (Supplier Materials) at the Client’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
14. provide the Supplier with all relevant Notification periods, in good time;
15. comply with all applicable laws, including health and safety laws.

If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 7.2;
3. the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

CHARGES AND PAYMENT

The Charges for the Goods and Services shall be calculated on a time and materials basis, in accordance with the Supplier’s fee stipulated in the Quote and will be payable as follows:

1. payable on a monthly basis, within 30 days from the invoice at month end;

2. 25% non-refundable deposit payable in advance; then
3. 75% payable upon completion, and within 30 days of the invoice.

The fee stipulated within the Quote is for the agreed works only. Any additional works, need to be expressly agreed with the Supplier, who will provide an additional Quote for the same.

If the Client cancels the agreed works prior to the works commencement date, they will be charged a cancellation fee of 25% of the agreed value of the works. Where an upfront payment has been made in accordance with Clause 8.1, the Supplier will use this as the cancellation fee. If, however, no such payment has been made, the Supplier will send an invoice which will be payable immediately.

Our Quotes are for a fixed price period and should increases occur after the period expires, these will be passed on to the Client who will be and shall remain liable to pay the same.

If the Client fails to pay any agreed Commercial retention fees, on time, they will be liable to pay a penalty fee of £250.00 per month.

The Client shall pay each invoice submitted by the Supplier by Cash or by Direct Bank Transfer or BACS in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

All amounts payable by the Client under the Contract are inclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where applicable, the VAT element of the invoice will be clearly specified and payment of this taxable element, is due upon the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 13 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 8.7 will accrue each day at 4% (Domestic Clients) or 8% (Commercial Clients) a year above the Bank of England’s base rate from time to time, but at 4% or 8% (whichever is applicable) a year for any period when that base rate is below 0%

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Supplier.

The Supplier grants to the Client, or shall procure the direct grant to the Client, of a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables for the period of the Contract only.

The Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 9.2.

The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.

DATA PROTECTION AND DATA PROCESSING

The Client and the Supplier acknowledge that for the purposes of General Data Protection Regulation (GDPR), the Client is the Data Controller, and the Supplier is the Data Processor in respect of any Personal Data.

The Supplier shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.

The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.

Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards, and other similar instruments.

The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:

1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
   1. the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction, or damage; and
   2. the nature of the data to be protected.
2. take reasonable steps to ensure compliance with those measures.

Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages, or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this Clause 10.

The Client acknowledges that the Supplier is reliant on the Client for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Client’s instructions.

CONFIDENTIALITY

Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Client’s, or Client’s Suppliers of the other party, except as permitted by Clause 11.2.

Each party may disclose the other party’s confidential information:

1. to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11; and
2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

LIMITATION OF LIABILITY:

Nothing in the Contract shall limit or exclude the Supplier’s liability for:

1. death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;
2. fraud or fraudulent misrepresentation; or
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

Subject to Clause 12.1, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

1. loss of profits;
2. loss of sales or business;
3. loss of agreements or contracts;
4. loss of anticipated savings;
5. loss of use or corruption of software, data, or information;
6. any damage/losses/issues arising from pre-existing issues (including but not limited to wear and tear, chimneys, cavity trays, brickwork and timber) to the property/site which are not directly related to the agreed works;
7. any damage/losses/issues arising from the Clients failure to maintain their roof in accordance with guidance and advice;
8. any damage/losses/issues arising from the design of the roof. The Supplier does not provide a design service but can give advice, however all designs need to be approved by a suitably qualified person;
9. any damage/losses/issues arising from the Client’s request to change the design or scope of Services after they have commenced;
10. loss of or damage to goodwill; and
11. any indirect or consequential loss.

Subject to Clause 12.1, the Supplier’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 100% of the total charges paid under the Contract.

The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

All claims against Supplier must be brought within one 1 year after the cause of action arises and the Client waives any statute of limitations which might apply by operation of law or otherwise.

This Clause 12 shall survive termination of the Contract.

TERMINATION

Without affecting any other right or remedy available to it, either party may terminate the Contract prior to commencement by giving the other party 30 days written notice. If the Client terminates the Contract they will be liable for the Cancellation Fee as per .Clause 8.3

Without affecting any other right or remedy available to it, Supplier may terminate the Contract with immediate effect by giving written notice to the other party if:

1. the Client commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 24 hours of that party being notified in writing to do so;
2. the Client fails to pay any amount due under the Contract on the due date for payment
3. the Client takes any step or action in connection with its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
4. the Client (where applicable) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
5. the Client’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
6. there is a change of control of the Client;

Without affecting any other right or remedy available to it, the Client may terminate the Contract by providing 7 days written notice to the Supplier if:

1. the Supplier commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 48 hours after receipt of notice in writing to do so;
2. the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business
3. the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier, if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in Clause 13.2(c) to Clause 13.2(f), or the Supplier reasonably believes that the Client is about to become subject to any of them.

CONSEQUENCES OF TERMINATION

On termination of the Contract:

1. If work has not commenced you may be liable to pay the Cancellation Fee (see Clause 8.3); or
2. If work has commenced, the Supplier will retain any advanced payment received and the Client will also be liable to pay for all works (including Goods and Materials) carried out up to the point of Termination. The Supplier shall submit an invoice to you for the amount, which is owed, which shall be payable by you immediately on receipt; and
3. The Client will allow the Supplier to return to collect all of their Equipment and Plant. If they fail to do so, then the Supplier may enter the premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose whatsoever.

Termination or expiry of the Contract shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

FORCE MAJEURE

GENERAL

Assignment and other dealings

1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
2. The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

Notices

1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its principal place of business; or sent by email to the address specified in the Quote or Order.
2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
3. This clause does not apply to the service of any proceedings or other documents in any legal

Severance

Waiver

No partnership or agency

Entire agreement.

1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
3. Nothing in this clause shall limit or exclude any liability for fraud.

Third parties rights

Variation

Social Media

Governing law

Jurisdiction