Flow Office Ltd (“Company”)
Terms and Conditions
- DEFINITIONS AND INTERPRETATION
- In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Agreement: the contract between us following your acceptance of our (Order).
“CDM Regulations”: the Construction (Design and Management) Regulations 2015 (SI 2015/51)
Consumer: a consumer as defined by the Consumer Rights Act 2015.
Confidential Information: means information relating to the businesses, services and affairs of the parties which they treat as confidential including but not limited to trade secrets, processes, methods, techniques, know-how, technical data, and related documentation, including any disputes or other dealings and transactions between them.
Customer: the party accepting our Order by placing an order with us.
Guarantor: the party agreeing to guarantee and indemnify the obligations of the customer in this agreement pursuant to clause 6 and Guaranteed Obligations shall mean all monies, debts and liabilities of any nature from time to time due or owing from or incurred by the Customer to the Company.
Data Protection Legislation: means any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
Project: means the Works and any services as detailed in our Order.
Site: means the site at which construction will take place.
Works: means the Works we will provide as specified in the Order as may be subsequently altered or varied.
1.2. Each reference in these Terms and Conditions to:
1.2.1 “we”, “us” and “our” means the Company and includes all employees, agents and sub-contractors of ours;
1.2.2 “you” and “your” means the Customer;
1.2.3 “writing” and “written” includes emails;
1.2.4 a statute or provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.5 a “Party” or the “Parties” refer to the parties to the Agreement;
1.2.6 “these Terms and Conditions” is a reference to these Terms and Conditions; and
1.2.7 a clause or paragraph is a reference to a clause of these Terms and Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and will have no effect on their interpretation.
1.4 Words signifying the singular number will include the plural and vice versa. References to any gender will include the other gender. References to persons will include corporations.
2.1 We will prepare and submit an Order to you which will set out the Works to be carried out and its fee. Any price we provide will be valid for 21 days unless otherwise stated, and our order will constitute all of the Works we have agreed to do.
2.2 If the Order is based on an estimate or incomplete information then we may amend it upon receipt of complete information.
2.3 By placing an Order with us, you are accepting these Terms and Conditions and upon such Order a legally binding Agreement incorporating these Terms and Conditions will be formed between you and us.
2.4 No terms or conditions stipulated or referred to by you in any form whatsoever will in any way vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
2.5 Our Order is based on the information you have provided to us and if that was insufficient or inaccurate we have the right to make reasonable alterations to it (Alterations).
2.6 You agree to pay us £37.50 per hour or part thereof together with the costs of any materials used, for which you will pay us at cost price to us plus 20% (plus VAT if applicable), for our work or the work of any other party we reasonably instruct in making the Alterations or for time spent dealing with your appointed suppliers and contractors in regard to the Alterations.
2.7 If you require further or other Works (Variations) during or at the end of the Project at your request we will submit a notification of variations as a separate Order for your agreement before commencement.
2.8 You acknowledge that none of our employees or agents or subcontractors are authorised to agree any Variations on behalf of the company and that any such purported agreement or promise made by any of our employees or agents or subcontractors will not be binding upon us.
2.9 Notwithstanding clauses 2.7 and 2.8 if our employees or agents or subcontractors do any Variations on site at your request then in any circumstance, and whether or not such Variations have been agreed between us, you will be responsible for our costs in providing the Variations and any further consequential costs arising therefrom.
3.1 If we have agreed to provide design drawings and plans (Design) then unless otherwise agreed in writing the normal service carried out on your behalf by us is to prepare scheme design drawings at scales 1:20 and 1:50 with sufficient details and information for interpretation of the proposed Works.
3.2 The Design produced will be included in the Order.
3.3 Whilst every effort is made to ensure the accuracy of the Design because our instructions or parts thereof are often given orally, and the Design is affected by many factors, it is essential that you examine the Design carefully and ensure that the details are as you require before accepting our Order.
3.4 If you accept the Order this will constitute your approval of the Design.
3.5 We will not charge for small adjustments you require to the Design before you accept the Order which we, in our absolute discretion, agree are necessary and reasonable.
3.6 If you require any changes following acceptance of our Order that further Design work will be charged as Alterations.
- COMPANY OBLIGATIONS
4.1 To provide the agreed Works in a timely and efficient manner subject to circumstances created by you and/or beyond our reasonable control.
4.2 Without your consent we will not make any material change to the Design included in the Order after they have been settled or approved by you without your approval.
4.3 We have no obligation to settle disputes between you and any other party you have instructed regarding the Project.
4.4 You acknowledge that CDM means that parties involved in a construction project, including consumers, have legal duties under CDM 2015. The Company will assume that the principle contractor appointed by you, or you, or another party instructed, will implement the Construction Phase Health & Safety Plan and/or ensure all health and safety requirements on site. We agree that nothing in our agreement implies that the Company has any responsibility under CDM or any health and safety legislation.
- THE CUSTOMER OBLIGATIONS
5.1 To pay for the Works when stated to be due in the Order.
5.2 All invoices will include our incidental expenses and hourly rate charge in respect of any Alterations which you will pay at the same time as the invoice.
5.3 Time of payment to us will always be of the essence so if you fail to make payment on the due date we may suspend our services immediately.
5.4 To pay any contractors or suppliers or any other party engaged by you or us to provide work on the Project promptly and in regard to any such party you give us authority to negotiate and contract on your behalf and indemnify us against any liability whatsoever and howsoever arising from any such contract.
5.5 To pay us any VAT properly chargeable on the services. (Any amount expressed as payable on the Order is exclusive of VAT unless otherwise stated.)
5.6 If you fail to pay any amounts on the due date for payment, you will pay interest on the overdue amount at the rate of 3.7% per annum above Barclays Bank base rate from time to time. Such interest shall accrue on a daily basis from the final date for payment until actual payment of the overdue amount, whether before or after judgement. You will pay interest together with the overdue amount. The parties acknowledge that the customer’s liability under this clause is a substantial remedy for the purposes of section 9 (1) of the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 You will promptly provide us with all the relevant information we require to perform the Works including, but not limited to, full design and third-party consultant information, architects documents, budgets and costing information, health and safety information and any information about the site which it is necessary for us to know to perform the Works.
5.8 You warrant that all consents, licences or other permissions needed from any third parties, such as landlords, planning authorities, local authorities, neighbours or such like, will have been obtained and any requisite fees paid prior to the start date specified in the Order.
- 6. GUARANTEE
6.1 In consideration of the Company entering into this agreement, the Guarantor guarantees to the Company and its successors, transferees and assigns that whenever the Customer does not pay any of the Guaranteed Obligations as and when they fall due the Guarantor shall make due and punctual payment to the Company on demand of the Guaranteed Obligations.
6.2 If the Guaranteed Obligations are, or become, unenforceable, invalid or illegal, the Guarantor agrees to indemnify and keep indemnified the Company in full and on demand from and against all and any losses, costs and expenses suffered or incurred by the Company arising out of, or in connection with, any failure of the Customer to perform or discharge the Guaranteed Obligations.
6.3 The Guarantor as principal obligor and as a separate and independent obligation and liability from its obligations and liabilities under Clause 6.2 agrees to indemnify and keep indemnified the Company in full and on demand from and against all and any losses, costs and expenses suffered or incurred by the Company arising out of, or in connection with, any failure of the Customer to perform or discharge the Guaranteed Obligations except where the Customers failure to perform or discharge the Guaranteed Obligations results from the Company’s failure to comply with its obligations under this agreement.
6.4 This guarantee is and shall at all times be a continuing security and shall cover the ultimate balance of all monies payable under this agreement, irrespective of any intermediate payment or discharge in full or in part of the Guaranteed Obligations.
6.5 The liability of the Guarantor under this guarantee shall not be reduced, discharged or otherwise adversely affected by:
- any act, omission, matter or thing which would have discharged or affected the liability of the Guarantor had it been a principal debtor instead of a guarantor or indemnifier; or
- anything done or omitted by any person which, but for this provision, might operate or exonerate or discharge the Guarantor or otherwise reduce or extinguish its liability under this guarantee.
6.6 The Guarantor waives any right it may have to require the Company (or any trustee or agent on its behalf) to proceed against or enforce any other right or claim for payment against the Customer before claiming from the Guarantor.
6.7 The Guarantor shall on a full indemnity basis pay to the Company on demand the amount of all costs and expenses (including legal and out-of-pocket expenses and any value added tax on those costs and expenses) which the Company incurs in connection with:
- the preservation, or exercise and enforcement, of any rights under or in connection with this guarantee or any attempt so to do; and
- any discharge or release of this guarantee.
6.8 Until all amounts which may be or become payable by the Customer under or in connection with this agreement have been irrevocably paid in full, and unless the Company otherwise directs in writing, the Guarantor shall not exercise any security or other rights which it may have by reason of performance by it of its obligations under this clause, whether such rights arise by way of set-off, counterclaim, subrogation, indemnity or otherwise.
6.9 This guarantee shall be in addition to and independent of all other security which the Company may hold from time to time in respect of the discharge and performance by the Customer of the Guaranteed Obligations.
7.1 The customer and the Company may terminate this agreement at any time by giving 14 days’ notice in writing.
7.2 On termination the customer will pay the company the balance of any invoice outstanding and any amount properly due for payment under this agreement at the date of termination together with any payment for Alterations and Variations due and for the avoidance of any doubt it is agreed between us that payment due on termination does not depend on any phase or stage of the project being reached or completion.
7.3 The Company may terminate this agreement if the customer:-
- fails to make any payment on time as required under clause 5;
- is materially in breach of this agreement and fails to remedy that breach within 7 days of a written notification from the Company;
- if the customer makes any voluntary arrangements with its creditors, or becomes subject to an administration order or (being an individual or a firm) becomes bankrupt or (if a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
- the customer ceases or threatens to cease to carry on business;
- The Company reasonably apprehends that any of the events mentioned above is about to occur and notifies the customer in writing.
7.4 Termination of this agreement will not affect the rights and liabilities of the parties already accrued at such time or affect any terms which are expressly or implicitly capable of having effect following termination.
- FORCE MAJEURE
Neither Party will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism or war, governmental action or any other event beyond the control of the Party in question.
- GENERAL LIABILITY
9.1 We do accept liability and will indemnify you against any damage we may cause as a direct result of our negligence resulting in personal injury or death, or for fraud or fraudulent misrepresentation. Except as provided in this clause we will not be liable whether by way of indemnity, breach of contract or statutory duty or in tort (including negligence) for any loss of profit, loss of use, loss of contract/contracts, or for any indirect or
consequential loss or damage whatsoever.
9.2 In the event of a breach by us of our express obligations under this Agreement, your remedy will be limited to damages, which in any event, shall not exceed the fees paid by you for the Project.
9.3 These Terms and Conditions are exhaustive of the rights, obligations and liabilities of each party, whether such rights, obligations and liabilities arise in respect of or in consequence of a breach of contract or statutory duty or a tortuous or negligent act or omission which gives rise to a remedy at common law.
9.4 Nothing in these Terms and Conditions is intended to or will limit your legal rights as a Consumer under any consumer protection legislation, where applicable.
We have insurance for public liability, employer’s liability and professional indemnity insurance and the customer will be sent written details upon request during this agreement.
11.1 Our marketing and promotional material is presented in good faith as a guide to represent the Works offered and does not form a part of our Agreement.
11.2 Our employees and agents and subcontractors are not authorised to make any representation regarding the Company.
- ASSIGNMENT AND SUB-CONTRACTING
12.1 You may not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these terms and conditions.
12.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these terms and conditions, without your prior consent.
No failure by either party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
- DATA PROTECTION
Both parties will comply with all applicable requirements of the Data Protection Legislation.
- THIRD PARTY RIGHTS
The Agreement is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of the Agreement.
- ENTIRE AGREEMENT
16.1 This agreement constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to its subject matter.
16.2 We both agree that we shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement and we shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
If any dispute arises in connection with this agreement, the parties agree to meet to discuss their dispute within 14 days of notice of dispute being given by either party in an attempt to settle their differences.
- RIGHT TO CANCEL
19.1 If you are a Consumer you have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract. To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
19.2 If you cancel this contract, we will reimburse to you all payments received from you. We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless we have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement. If you requested us to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated to us your cancellation from this contract, in comparison with the full coverage of the contract.