MPN Plumbing & Heating Services Ltd
Terms and Conditions for the supply of Goods and Services
1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions.
1.2 Definitions:
Business Day:
A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Call-Out:
A call-out for the supply of Goods and/or Services to undertake emergency work and/or repairs.
Commencement Date:
Has the meaning given in clause 2.4.
Conditions:
these terms and conditions as amended from time to time by the Supplier.
Contract:
The contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer:
The person(s) or firm who offers to purchase the Goods and/or Services from the Supplier and to whom the Supplier agrees to supply the Goods and/or Services.
Customer Default:
Has the meaning set out in clause 5.2.
Deposit:
Proportional fee as a % of the overall Estimate value (typically 30% - 50%)
Estimate:
The Supplier’s estimate of costs for the Customer’s Order for Goods and/or Services.
Goods:
The goods (or any part of them) set out in the Estimate.
Order:
The Customer’s order for Goods and/or Services.
Overheads:
Charged as 20% of all labour costs
Payment:
The fees payable by the Customer for the supply of the Goods and/or Services in accordance with clause 6 (Payment).
Personal Data:
Has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data.
Services:
The services supplied by the Supplier to the Customer either on a Call-Out or as set out in the Estimate.
Supplier:
MPN Plumbing and Heating Services Limited registered in England and Wales with company number 8398572.
Supplier Materials:
Has the meaning set out in clause 5.1.8.
1.3 Interpretation:
1.4 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.
1.5 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.
1.6 A reference to writing or written includes email.
2. Basis of contract
2.1 The Supplier reserves the right to refuse or decline the supply of any Goods and/or Services at its own discretion.
2.2 Where there is a request for a Call-Out, the Supplier shall not be under any obligation to provide an estimate to the Customer. The request for a Call-Out by the Customer constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these conditions. The Offer shall be accepted when the Supplier agrees to perform the Services in accordance with the Estimate.
2.3 Where the Service is not a Call-Out, the Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.4 Subject to clause 2.2, the Supplier shall issue an Estimate to the Customer in respect of the Customer’s Order and the Order shall only be deemed to be accepted when the Supplier agrees to perform the Services in accordance with the Estimate at which point and on which date the Contract shall come into existence (Commencement Date).
2.5 Where an Estimate has been supplied to the Customer, the Supplier reserves the right to revise the Estimate if:
2.5.1 it materialises that further works need to be carried out or further Goods supplied which were not anticipated when the Estimate was issued;
2.5.2 the Customer instructs the Supplier to supply any further Goods and/or Services that have not been set out in the Estimate.
2.6 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.7 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.8 Any Estimate given by the Supplier shall not constitute an offer, and is only valid for a given period, as advertised in the Estimate, or a maximum of 20 working days.
3. Supply of Good and/or Services
3.1 The Supplier shall supply the Goods and/or Services to the Customer in accordance with the Estimate in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates as agreed with the Customer in writing but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Estimate 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 Customer in any such event.
3.4 The Supplier warrants to the Customer that the Goods and/or Services will be provided using reasonable care and skill and shall guarantee its Services in so far as defective workmanship is concerned for a period of 12 months from the Commencement Date.
3.5 The Supplier warrants that on delivery and for a period of 12 months from the date of delivery (Warranty Period) the Goods shall conform with their description and shall be free from material defects in design.
3.6 Subject to clause 3.7, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
3.6.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 3.5;
3.6.2 the Supplier is given a reasonable opportunity of examining such Goods; and
3.6.3 the Customer shall co-operate with the Supplier should the Supplier need to collect any defective Goods from the Customer’s premises.
3.7 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 3.5 if:
3.7.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 3.6;
3.7.2 the defect arises because the Customer failed to follow the Supplier’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
3.7.3 the defect arises as a result of the Supplier following any drawing, design or Goods specification supplied by the Customer;
3.7.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
3.7.5 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or
3.7.6 the Goods differ from their description or as a result of the changes made to ensure they comply with applicable statutory or regulatory standards.
3.8 Except as provided in clauses 3.5 to 3.7, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 3.5.
3.9 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
4. Title and risk
4.1 The risk in the Goods shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall not pass to the Customer until the Supplier receives Payment in full for the Goods in
respect of which payment has become due, in which case title to the Goods shall pass at the time of Payment.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
4.3.1 store the Goods separately from any and all other Goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
4.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
4.3.3 maintain the Goods in a satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of the delivery;
4.3.4 notify the Supplier immediately if it becomes subject to any financial difficulties.
4.4 If before title to the Goods passes to the Customer the Supplier reasonably suspects that the financial position has deteriorated to such an extent that the Customer is unlikely to be able to pay for the Goods, then, without limiting any other right or remedy the Supplier may at any time:
4.4.1 require the Customer to deliver up all Goods in its possession; and
4.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in Estimate to recover them.
5. Customer’s obligations
5.1 The Customer shall:
5.1.1 ensure that the terms of the Order and any information it provides are complete and accurate;
5.1.2 co-operate with the Supplier in all matters relating to the Services;
5.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as the case may be as reasonably required by the Supplier;
5.1.4 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;
5.1.5 prepare the Customer’s premises for the supply of the Services;
5.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
5.1.7 comply with all applicable laws, including health and safety laws;
5.1.8 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
5.1.9 comply with any additional obligations as set out in the Estimate.
5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1 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 Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. Payment
6.1 The Payment for the Services shall be calculated on a time and materials basis:
6.1.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Estimate;
6.1.2 the Supplier’s daily fee rates for its staff are calculated on the basis of an seven-hour day from 8.00 am to
4.00 pm worked on Business Days;
6.1.3 the Supplier shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro- rata basis for each part day or for any time worked by staff who it engages on the Services outside the hours referred to in clause 6.1.2; and
6.1.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the staff who the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials, and for the cost of the time incurred to collect any non-stock items, and the Supplier shall use its reasonable endeavours to contact the Customer on the contact number provided by the Customer if the time incurred to collect the non-stock items is anticipated to be in excess of 1 hour.
6.2 The Supplier shall invoice the Customer on completion of the Services .
6.3 The Customer shall pay each invoice submitted by the Supplier:
6.3.1 within 3 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
6.3.2 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
6.4 When the Supplier provides an estimate to the Customer prices estimated shall be valid for 20 days from the estimate date or until acceptance by the Customer to the Supplier.
6.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Goods and/or Services.
6.6 If the Customer 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 9, the Customer 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 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.7 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).
6.8 A deposit, as stated on the Estimate, is required upon confirmation of purchase order and will be invoiced to the Customer upon scheduling of works.
6.8.1 Subject to clause 9.2, the deposit, as stated on the Estimate, is non-refundable under any circumstances
7. Data protection and data processing
7.1 The Supplier shall use the Customer’s Personal Data to:
7.1.1 supply the Services to the Customer; and
7.1.2 to process the Payments for the Services.
7.2 The Supplier will only share the Customer’s Personal Data with third parties where the law requires or allows the Supplier to do so.
7.3 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
7.4 The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
7.4.1 is on terms which are substantially the same as those set out in the Contract; and
7.4.2 terminates automatically on termination of the Contract for any reason.
8. Limitation of liability
8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 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.
8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
8.2.1 loss of profits;
8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of or damage to goodwill; or
8.2.7 any indirect or consequential loss.
8.3 Subject to clause 8.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the amount equal to the Payment for Services paid or due under the Contract.
8.4 The Goods supplied by the Supplier shall only be provided with the manufacturers guarantee and shall not be guaranteed by the Supplier.
8.5 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.
8.6 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
9.1.2 the Supplier reasonably suspects that the Customer’s financial position has deteriorated to such an extent that the Customer is unlikely to be able to pay for the Goods and/or Services.
9.2 Where the Customer is a consumer and the Contract has been entered into over the telephone, online, or verbally the Customer has the right to cancel this Contract within 14 days of the Commencement Date without giving any reason and must inform the Supplier in writing of the decision to cancel. The cancellation period will expire after 14 days from the Commencement Date. In the event that the Customer has requested the Supplier to commence performance of the Services during the cancellation period, the Customer shall be liable to pay the Supplier a proportion of the Deposit (less Overheads) up to and including Services performed up until the time the notification to cancel the contract is communicated to the Supplier.
10. Consequences of termination
10.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2 the Customer shall enable the Supplier to collect any and all of the Supplier Materials left at the Customer’s premises Until they have been collected, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 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.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11. General
11.1 Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings
11.2.1 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.
11.2.2 The Customer 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.
11.3 Entire agreement
11.3.1 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.
11.3.2 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 misstatement based on any statement in the Contract.
11.3.3 Nothing in this clause shall limit or exclude any liability for fraud.
11.4 Variation
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.7 Notices
11.7.1 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 post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to mike@mpn-plumbingandheating.co.uk
11.7.2 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 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 or email, at 9.00 am on the next Business Day after transmission.
11.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.8 Third party rights
11.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.9 Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation.