TERMS AND CONDITIONS – SUPPLY OF SERVICES
‘SERVICES’ means the provision of window and cladding testing, laboratory and certification services (including any part or parts of the Services) which LFT is to supply in accordance with these Conditions.
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing between the Customer and LFT’s means the contract for the purchase and sale of the Services either on or off LFT’s premises to the Customer.
‘CUSTOMER’ means the person who accepts a quotation of LFT Maintenance Ltd for the supply of the Services. ‘LFT’s means LFT Maintenance Ltd, 372 North Rd, Cardiff CF14 3BP.
‘LIABILITY’ means liability for all and any damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities.
‘REPORT’ means the report that is produced by LFT during the performance of the Services.
‘TEST SAMPLES’ means the samples of the Customer which LFT will test when performing the Services.
‘WRITING’ includes letter, facsimile transmission and electronic transmissions and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 LFT shall sell and the Customer shall purchase the Services in accordance with any written quotation of LFT and/or order of the Customer which is confirmed in writing by LFT, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and LFT
2.3 LFT’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by LFT in Writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by LFT or its employees or agents to the Customer or its employees or agents as to the specification, application of equipment tested or use of the Services which is not confirmed in writing by LFT is followed or acted upon entirely at the Customer’s own risk, and accordingly LFT shall not be liable for any such advice or recommendation which is not so confirmed. It is the Customer’s responsibility to check all test results and testing procedures.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by LFT shall be subject to correction without any liability on the part of LFT
3 Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by LFT unless and until confirmed in Writing by LFT’s authorised representative.
3.2 LFT is an independent provider of the Services and nothing in these Conditions shall create an agency, subcontractor or partnership relationship between the Customer and LFT
3.3 The Customer shall be responsible to LFT for ensuring the accuracy of the terms of any order, submitted by the Customer, and for giving LFT any necessary information within a sufficient time to enable LFT to perform the Contract in accordance with these Conditions.
3.4 The Services shall be those set out in LFT’s quotation (if accepted by the Customer and confirmed in writing by LFT) or the Customer’s order (if accepted by LFT in writing).
3.5 No order which has been accepted by LFT may be cancelled by the Customer except with the agreement in Writing of LFT and on terms set out in clauses
3.6 Subject to the provisions of clause 3.7 below, in the event that a Customer cancels a Contract with LFT the following minimum charges shall apply:
3.6.1 20% of the total value of the Contract quoted by LFTshall be payable for cancellations notified to LFT not less than five (5) working days prior to commencement of the Services;
3.6.2 40% of the total value of the Contract quoted by LFT shall be payable for cancellations notified to LFT not less than four (4) working days prior to commencement of the Services;
3.6.3 60% of the total value of the Contract quoted by LFT shall be payable for cancellations notified to LFT not less than three (3) working days prior to commencement of the Services;
3.6.4 80% of the total value of the Contract quoted by LFT shall be payable for cancellations notified to LFT not less than two (2) working days prior to commencement of the Services; and,
3.6.5 in the event that the Customer provides LFT with notice of cancellation of a Contract of one day or less, then the full amount shall be payable.
3.7 LFT may comply with reasonable requests from the Customer for postponement of performance of the Services due to site conditions but shall be under no obligation to do so.
3.8 The Customer shall provide a minimum of 48 hours notice to LFT to postpone performance of the Services under clause 3.7.
3.9 Where performance of the Services is postponed at the Customer’s request, then LFT reserves the right to charge the Customer and the Customer shall pay a minimum of 50% of LFT’s stated daily testing rate to cover LFT’s reasonable losses as a result of such postponement.
3.10 In the event of cancellation or postponement pursuant to this clause 3, the Customer will indemnify and keep indemnified LFT for any third party expenses incurred by LFT in the preparation of the Services.
3.11 LFT shall have no Liability for errors in any specification or details supplied by the Customer and the Customer is solely responsible for their accuracy.
3.12 The Customer agrees to indemnify and keep indemnified LFT against any and all losses, expenses, proceedings, actions, awards, liabilities, costs (including legal and increased administrative costs on a full indemnity basis) and any other losses and/or liabilities arising out of LFT’s use of a specification and/or drawings supplied by the Customer.
4 Price of the Services
4.1 The price of the Services shall be LFT’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in LFT’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer, after which time, they may be altered by LFT, without giving notice to the Customer.
4.2 LFT reserves the right, by giving notice to the Customer at any time, to increase the price of the Services to reflect any increase in the cost to LFT which is due to any factor beyond the control of LFT (such as, without limitation, any significant increase in the costs of labour, materials or other costs), any change in delivery or collection dates, which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give LFT adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to LFT
4.4 The Customer shall not be entitled to make any set off or other deduction howsoever arising and shall pay the full price for the Services and no refunds shall be applicable unless agreed in writing by LFT
4.5 LFT’s quoted price and/or price list is subject to the payment by the Customer of Premium Rates where personnel work before 0800 hours and after 1700 hours during Monday to Friday inclusive and on Saturdays at one and half times (1 1⁄2 x) the apportioned daily rate. Sundays and Bank Holidays are charged at twice (2 x) the apportioned daily rate.
4.6 The Customer shall pay a deposit as set out on the quotation if required by LFT
4.7 LFT will charge the Customer carriage unless specified to the contrary.
5 Terms of payment
5.1 Subject to any special terms agreed, in Writing between the Customer and LFT, LFT shall be entitled to invoice the Customer for the price of the Services on or at any time after completion of the Services.
5.2 The Customer shall pay the price for the Services without deduction in accordance with LFT’s instructions which shall be either:
5.2.1 within 30 days of the date of LFT’s invoice; or
5.2.2 before the submission of any technical reports, whether or not the Services have been completed.
5.3 The time of payment of the price shall be of the essence. Receipts for payment will be issued only upon request.
5.4 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to LFT, LFT may:
5.4.1 cancel the contract or suspend any further Services to the Customer; and/or,
5.4.2 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the prevailing rate under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), until payment is made (a part of a month being treated as a full month for the purposes of calculating interest); and/or
5.4.3 charge the Customer an administration fee of £60.00 + VAT for debts less than £1,000 - £100.00 + VAT for debts less than £10,000 and £130.00 + VAT for debts of £10,000 or more.
5.5 Any monies received by LFT from the Customer may be applied by LFT at its option against any additional administrative costs and/or interest charged prior to application against any principal sums due from the Customer against which it may be applied in any order.
5.6 LFT shall be entitled to invoice each stage of the Services separately.
5.7 The Customer shall pay all sums due to LFT under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
5.8 Payment shall not be deemed to be made until LFT have received either cash or cleared funds in respect of the full amount outstanding.
5.9 LFT shall be entitled to render an invoice to the Customer any time at any stage during performance of the Services.
5.10 If payment in full is not made to LFT when due then LFT may withhold or suspend future or current performance of the Services and/or performance under any other agreement with the Customer and/or retain ownership of the Report pursuant to clause 8.3 below.
5.11 If any Services are cancelled or this Contract terminated or performance is suspended before completion of the Services LFT shall be entitled to be paid in accordance with clause 3.6 above. LFT may invoice the Customer accordingly and such monies shall be immediately due for payment.
6 The Services and Test Samples
6.1 Upon completion of the Services, collection of the Test Samples shall be made by the Customer from LFT’s premises at any time after LFT has notified the Customer that the Services are complete or, if some other place for delivery or collection is agreed by LFT, by LFT delivering the Services to that place. LFT will assume that samples or stillages/pallets/a-frames and such like which have not been collected or arranged to be collected within 2 weeks after completion of services are permitted to be disposed of.
6.2 LFT requires a minimum of ten (10) working days in order to produce the Report after completion of the performance of the Services.
6.3 Any dates quoted for completion of the Services are approximate only and LFT shall not be liable for any delay in completion howsoever caused. Time for collection shall not be of the essence unless previously agreed by LFT in writing.
6.4 If LFT fails, to complete the Services for any reason other that any cause beyond LFT’s reasonable control or the Customer’s fault, and LFT is accordingly liable to the Customer, LFT’s liability shall be limited to the cost to the Customer of the Services.
6.5 If the Customer fails to provide adequate delivery instructions or to collect the Test Samples then, without prejudice to any other right or remedy available to LFT:
6.5.1 LFT may dismantle and store the Test Samples and test rigs until actual collection and charge the Customer £250.00 plus VAT per day;
6.5.2 after five days, LFT shall destroy the Test Samples and other equipment and charge any associated cost accordingly and a minimum charge of £750.00 plus VAT will apply.
7 Health and Safety
7.1 The Customer shall comply with LFT’s Health & Safety Rules and with all Health & Safety Regulations.
7.2 The Services will be provided subject to suitable weather conditions and written confirmation by LFT to the Customer of the method statement for the provision of the Services.
8 Risk and Property
8.1 Risk in the Test Samples shall remain with the Customer at all times.
8.2 The Customer shall keep the samples insured for the full value of the samples against all insurable risks.
8.3 LFT shall retain title and ownership of the Report until it has received payment in full in cash or cleared funds of all sums due and/or owing for all Services supplied to the Customer under this Contract and any other agreement between LFT and the Customer.
8.4 LFT shall have a lien over all Reports, Test Samples and any other property or goods belonging to the Customer which may be in LFT’s possession in respect of all sums due from the Customer to LFT
8.5 If any monies due to LFT from the Customer have not been paid within 90 days of the due date LFT may sell any Test samples, property or goods over which it has a lien in accordance with clause 8.4 above (and the Customer agrees that LFT may give good title for such Test Samples, property and/or goods) and shall apply the proceeds of sale firstly in discharging any costs or expenses of sale, secondly in repaying any interest owed to LFT, thirdly in payment of any principal sums owed to LFT and fourthly LFT shall account to the Customer for the remainder (if any).
8.6 LFT is under an obligation to video record the Services in accordance with the Secure by Design Scheme EN1627. All media relating to this obligation remains the property of LFT
9 Warranties and liability
9.1 The Report and any results details in the Report are based upon the information, specification, drawings and samples specifically referred to in the Report and tested by LFT during the performance of the Services. The Report is not related to any other samples or products produced by the Customer that are the same or similar, or purported to be the same or similar. LFT shall have no Liability for any damages, costs, losses or expenses as a result of the Customer’s reliance upon the Report.
9.2 LFT shall have no Liability for defects in the Services where the defect has been caused or contributed to by the Customer to the extent so contributed.
9.3 The results in the Report are valid only in relation to the conditions under which the Test Samples were tested during the performance of the Services.
9.4 LFT shall have no Liability to the Customer if the price for the Services has not been paid in full by the due date for payment.
9.5 LFT shall have no Liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued reliance on the Services after a defect has become
apparent or suspected or should reasonably have become apparent to the Customer.
9.6 The Customer shall where reasonable give LFT a reasonable opportunity to remedy any matter for which LFT is liable before the Customer incurs any costs and/or expenses in remedying
the matter itself.
9.7 The Customer shall where reasonable produce to LFT written evidence of any claims for which it is alleged that LFT is liable together with written details of how loss was caused by LFT
and the steps the Customer has taken to mitigate the loss before LFT shall have any Liability for the claim by the Customer.
9.8 LFT shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance and the Customer shall ensure that the Customer’s insurers waive any and
all rights of subrogation they may have against LFT
9.9 LFT shall have no Liability for any matters which are outside its reasonable control.
9.10 LFT shall have no Liability to the Customer for any:-
9.10.1 consequential losses;
9.10.2 loss of profits and/or damage to goodwill;
9.10.3 economic and/or other similar losses:
9.10.4 special damages and indirect losses; and/or
9.10.5 business interruption, loss of business, contracts, opportunity and/or production.
9.11 The Customer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by ensuring that it schedules adequate time for the performance of the
9.12 LFT’s total Liability to the Customer shall not exceed 10 (ten) times the quoted value of the Services or the maximum value of the LFT’s the professional indemnity insurance, whichever is the lesser sum. To the extent that any Liability of LFT to the Customer would be met by any insurance of LFT then the Liability of LFT shall be extended to the extent that such Liability is met by such insurance.
9.13 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
9.13.1 Liability for breach of contract;
9.13.2 Liability in tort (including negligence);
9.13.3 Liability for breach of statutory duty; and
9.13.4 Liability for breach of Common Law.
except clause 9.10 above which shall apply once only in respect of all the said types of Liability.
9.14 Nothing in this Contract shall exclude or limit the Liability of LFT for death or personal injury due to its negligence or any Liability which is due to LFT’s fraud or any other liability which it is
not permitted to exclude or limit as a matter of law.
9.15 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
9.16 The limitations in this Contract are necessary in order to allow LFT to provide the Services at its current prices.
9.17 If the Customer requires greater protection then LFT will agree to modify the limitations and extend its guarantees in return for the payment of a higher price for the Services.
10.1 If the Customer:-
10.1.1 fail to make any payment to LFT when due;
10.1.2 breaches the terms of this Contract and, if the breach is capable of remedy, have not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
10.1.3 persistently breach any one or more terms of this Contract;
10.1.4 ceases or threatens to cease to carry on business, or propose to compound with its creditors, apply for an interim order under Section 252 Insolvency Act 1986 or have a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of its assets, or take or suffer any similar action in any jurisdiction;
10.1.5 exceeds the credit limit set by LFT
10.1.6 appears to LFT due to the Customer’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or
10.1.7 appear reasonably to LFTto be about to suffer any of the above events; then LFT shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below.
10.2 If any of the events set out in clause 10.1 above occurs in relation to the Customer then:
10.2.1 LFT may withhold delivery of any Reports produced during the performance of the Services;
10.2.2 LFT may withhold the performance of any Services and cease any Services in progress;
10.2.3 LFT may cancel, terminate and/or suspend without Liability to the Customer any agreement with the Customer; and/or
10.2.4 all monies owed by the Customer to LFT shall forthwith become due and payable.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party as its registered office or principal place of
business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by LFT of any breach of the contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 Any dispute arising under or in connection with these Conditions or the sale shall be referred to a mediator to be agreed by the parties and in default to be nominated by the ADR Group and the parties agree to use their best endeavours to resolve any such dispute by mediation before court proceedings are started.
11.5 LFT shall have no Liability to the Customer for any delay in performance of this Contract (other than in relation to payment) to the extent that such delay is due to any events outside LFT’s reasonable control including but not limited to acts of God (including adverse weather conditions such as freezing temperatures, heavy rain, wind or snow), war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If LFT is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
11.6 The Customer may not cancel the contract without LFT’s written consent.
11.7 LFT may, without prejudice to its other rights and remedies, terminate the contract if either there shall be any breach by the Customer of any term or condition hereunder or the financial responsibility of the Customer shall, in the opinion of LFT, become impaired or unsatisfactory.
11.8 The Contract shall be governed by and construed in accordance with the laws of England and Wales