Terms & Conditions
Terms & Conditions
AGREED TERMS
1. INTERPRETATION
The following definitions and rules of interpretation apply in this agreement.
1.1. Definitions:
Additional Services: any Emergency Maintenance or Excluded Maintenance performed by the Supplier under this agreement.
Additional Services Charges: the charges payable in consideration of the provision of any Additional Services, to be calculated in accordance with Part 2 of Schedule 4.
Applicable Laws: the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines, or industry codes which apply to the provision of the Services.
Business Day: a day, other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.30 am to 5.00 pm on any Business Day.
Charges: The charges to be paid for the Services under Clause 9.
Commencement Date: The date of the agreement.
Confidential Information: any information, which by its nature is confidential, concerning the business, assets, affairs, customers, clients, or suppliers of the other party [or of any member of its Group].
Contract Year: Any period of 12 consecutive months from the Commencement Date and each anniversary of the Commencement Date.
control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
Corrective Maintenance: in accordance with Clause 4.4:
- making any adjustments to the Equipment; or
- replacing any parts or components of the Equipment,
in each case, as required to restore the Equipment to Good Working Order.
Critical Service Failure: an event where the Supplier's performance of any of the Services falls to, or below, any of the Critical Service Levels for that Service.
Critical Service Levels: has the meaning given in Part 4 of Schedule 3.
Emergency Maintenance: in accordance with Clause 4.5:
- making any adjustments to the Equipment; or
- replacing any parts or components of the Equipment,
in each case, as required to restore the Equipment to Good Working Order.
Equipment: the equipment specified in Schedule 1.
Excluded Causes:
- a defect in the manufacturer's design of the Equipment;
- faulty materials or workmanship in the manufacture of the Equipment;
- the use of the Equipment with equipment or materials not supplied or approved in writing by the Supplier or the manufacturer;
- any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents unless approved by the Supplier;
- the Customer or third party moving the Equipment unless approved by the Supplier;
- the use of the Equipment in breach of any of the provisions of the agreement under which the Equipment was supplied;
- a failure, interruption or surge in the electrical power or its related infrastructure connected to the Equipment;
- a failure or malfunctioning of the environmental controls required for the normal operation of the Equipment, or an error or omission in the correct use of those environmental controls by the Customer; or
- the Customer's neglect or misuse of the Equipment.
Excluded Maintenance: any Maintenance Services required to restore any defect or malfunctioning or failure in the Equipment to Good Working Order where the defect or malfunctioning or failure results from or is caused by any of the Excluded Causes, or where the defect or malfunctioning or failure in the Equipment is deemed to be the result of a Major Parts Failure
Extended Term: has the meaning given in Clause 2.
Fix Time: the applicable fix time set out in Part 2 of Schedule 3.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.
Good Working Order: operating in accordance with the applicable specification of the manufacturer of the Equipment OR operating in accordance with the Operating Manual OR working in accordance with the specifications set out in the remote questionnaire/survey]
Group: in relation to a company, that company, any subsidiary or holding company of that company
Initial Term: has the meaning given in Clause 2.
Inspection Fee: the sum set out in Part 4 of Schedule 4 for the Supplier's initial inspection of the Equipment pursuant to Clause 3.1.
Location: the location of the Equipment as specified in Schedule 2, or any other location as may be agreed by the parties in writing from time to time.
Major Parts Failure: Equipment that requires repairs that exceed £1000.00
Maintenance Services: Routine Maintenance, Corrective Maintenance and Emergency Maintenance.
Response Time: the applicable response time set out in Part 1 of Schedule 3.
Routine Maintenance:
- testing that the Equipment is functional;
- making any adjustments as may be required to ensure the Equipment remains in Good Working Order; and
- replacing any Consumables that require replacing,
in accordance with Clause 4.2.
Service Credits: the sums attributable to a Service Failure as specified in Part 5 of Schedule 3.
Service Failure: a failure by the Supplier to deliver any part of the Services in accordance with the Service Levels.
Service Levels: the service levels to which the Services are to be provided, as set out in Part 3 of Schedule 3.
Services: the Maintenance Services
Standard Maintenance Charges: the charges payable in consideration of the provision of the Routine Maintenance and Corrective Maintenance, to be calculated in accordance with Part 1 of Schedule 4, as varied from time in accordance with Clause 8.4.
Term: the Initial Term together with all Extended Terms.
VAT: value added tax chargeable in the UK
1.2. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4. The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.7. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.9. Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.10. Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
1.11. A reference to writing or written excludes fax but not email.
1.12. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.13. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. COMMENCEMENT AND DURATION
This agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with Clause 3.5, Clause 14 or this clause, this agreement shall continue for a period of 12 months (Initial Term) and shall automatically extend for 60 days (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 30 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
3. INSPECTION OF THE EQUIPMENT
3.1. Inspection. On or shortly after the Commencement Date and upon payment by the Customer of the Inspection Fee, the Supplier shall carry out an inspection of the Equipment to determine whether it is in Good Working Order.
3.2. Good Working Order Certificate. If the Supplier finds the Equipment to be in Good Working Order, it shall promptly issue a certificate to the Customer confirming this.
3.3. Quotation to restore to Good Working Order. If the Supplier finds the Equipment not to be in Good Working Order, it shall issue a quotation to the Customer for the work and parts required to restore the Equipment to Good Working Order.
3.4. Acceptance of quotation. If the Customer accepts the quotation referred to in Clause 3.3, the Supplier shall carry out the work in accordance with the quotation, to the standard set out in Clause 9.2. Upon completion of the work it shall submit its invoice for the work and upon payment of such invoice it shall issue a certificate to the Customer confirming that the Equipment is in Good Working Order.
3.5. Automatic termination on rejection of quotation. If the Customer refuses the quotation, this agreement shall terminate automatically and without notice and without liability to either party, save that the Supplier shall be entitled to retain the Inspection Fee.
4. SUPPLIER'S OBLIGATIONS
4.1. Supply of Services. During the Term, the Supplier shall supply the Services to the Customer.
4.2. Supplier's representative. A representative of the Supplier shall attend the Location annually to perform the Routine Maintenance. The Supplier's representative shall perform the Routine Maintenance during Business Hours at such times as may be agreed in advance between the Customer and the Supplier from time to time.
4.3. Equipment malfunction. If the Supplier's representative discovers that the Equipment is defective or is malfunctioning or has failed or is not otherwise in Good Working Order during the course of the Routine Maintenance the representative will use all reasonable endeavours to repair it during that visit at the Location. If that is not reasonably practicable (or it is not reasonably practicable to do so during Business Hours) the Supplier's representative shall either arrange for a further visit to the Location within Business Hours to complete the repair.
4.4. Corrective Maintenance. On the Customer informing the Supplier that the Equipment is defective or is malfunctioning or has failed or is not otherwise in Good Working Order, the Supplier shall use all reasonable endeavours to ensure that one of its representatives shall:
4.4.1. attend the Location during Business Hours within the relevant Response Time to perform Corrective Maintenance; and
4.4.2. complete the Corrective Maintenance within the relevant Fix Time.
4.5. Emergency Maintenance. On the Customer informing the Supplier that the Equipment is defective or is malfunctioning or has failed or is not otherwise in Good Working Order, and requires repair outside of Business Hours, the Supplier shall use all reasonable endeavours to ensure that one of its representatives shall:
4.5.1. attend the Location within the relevant Response Time to perform Emergency Maintenance; and
4.5.2. complete the Emergency Maintenance within the relevant Fix Time.
4.6. Further site visits or repair off-site. Where it is not reasonably practicable for the Supplier's representative to complete Corrective Maintenance or Emergency Maintenance at the Location on their first visit the Supplier's representative shall either arrange for a further visit to the Location within Business Hours to complete the repair.
4.7. Provision of information. The Supplier shall:
4.7.1. provide to the Customer from time in writing with such up to date and accurate information as to the application and use of the Equipment as may be available to the Supplier and as the Supplier may reasonably determine to be necessary or desirable to be provided; and
4.7.2. without prejudice to Clause 5, respond promptly, during Business Hours, by telephone or in writing, as appropriate, to any request from the Customer for information concerning the application and use of the Equipment, or the repair of any defect in or malfunctioning of the Equipment.
4.8. Health and safety compliance. The Supplier shall procure that its representatives shall, while on site at the Location, comply with all applicable reasonable health and safety legislation and policies.
5. SERVICE LEVELS
5.1. Service Levels. The Supplier shall ensure that the Services meet or exceed the Service Levels at all times from the Commencement Date.
5.2. Service Failure. If there is a Service Failure, the Supplier shall:
5.2.1. notify the Customer immediately of the Service Failure;
5.2.2. arrange all additional resources necessary to perform the Services in accordance with the Service Levels as soon as possible and at no additional charge to the Customer; and
5.2.3. credit the Customer with the Service Credits, which shall take effect as an adjustment to the Standard Maintenance Charges.
5.3. Notification of prospective failure to achieve Service Levels. The Supplier shall notify the Customer promptly of any prospective failure to meet the Service Levels.
6. CUSTOMER'S OBLIGATIONS
6.1. Proper use of Equipment. The Customer shall at all times during the Term:
6.1.1. use the Equipment only in accordance with the instructions and recommendations of the manufacturer of the Equipment or as may be advised from time to time by the Supplier;
6.1.2. permit only trained and competent personnel to alter, repair or maintain the Equipment;
6.1.3. notify the Supplier promptly if the Equipment is discovered to be defective or malfunctioning or has failed or is otherwise not in Good Working Order;
6.1.4. keep the Equipment in the environmental conditions recommended in the Operating Manual or as may be advised from time to time by the Supplier;
6.1.5. not allow any other person than the Supplier's representatives to adjust, maintain, repair, replace or remove the Equipment or any part of it, unless otherwise agreed in writing by the Supplier; and
6.2. Access to Equipment. The Customer shall ensure that the Supplier's representatives have:
6.2.1. full and free access to the Location and to the Equipment
6.2.2. adequate and safe working space and facilities,
to enable the Supplier to perform its obligations under this agreement.
6.3. Provision of information to Supplier. The Customer shall provide the Supplier with such information concerning the Equipment, its application, use, location and environment as the Supplier may reasonably request to enable it to perform its obligations under this agreement.
6.4. Malfunction reports. The Customer shall report that the Equipment is defective or malfunctioning or has failed or is otherwise not in Good Working Order either by telephone or email, or in such manner as the Supplier may reasonably require from time to time.
6.5. Safety. The Customer shall take all such steps as may be necessary to ensure the safety of any of the Supplier's representatives when attending the Location.
6.6. Delay due to Customer. If the Supplier's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer. The Customer may incur an additional fee, as set out in Schedule 4, in respect of appointments delayed or cancelled due to any act or omission of the Customer.
7. EXCLUDED MAINTENANCE
7.1. No obligation to perform Excluded Maintenance. The Supplier is not obliged to perform any Excluded Maintenance.
7.2. Additional Services Charges. Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Equipment was not in Good Working Order due to any of the Excluded Causes, the Supplier may charge, and the Customer shall pay, the Additional Services Charges in respect of that work.
7.3. Investigation charges. If on investigation the Supplier reasonably determines that any defect in or malfunctioning of the Equipment is the result of an Excluded Cause, the Customer shall pay Additional Services Charges in respect of the time incurred by the Supplier in making the investigation and determining the cause of the defect in or malfunctioning of the Equipment.
8. CHARGES AND PAYMENT
8.1. Standard Maintenance Charges. In consideration of the performance of the Routine Maintenance and the Corrective Maintenance the Customer shall pay to the Supplier the Standard Maintenance Charges.
8.2. Additional Services Charges. In consideration of the performance of any Additional Services the Customer shall pay to the Supplier the Additional Services Charges.
8.3. Inclusive charges. The Charges shall be inclusive of all expenses and the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services.
8.4. Charges increases. The Supplier may increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index (all items) in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index (all items).
8.5. Payment timing. The Customer shall make a monthly payment of the Charges, on an agreed date, to a bank account nominated in writing by the Supplier from time to time.
8.6. Failure to pay. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
8.6.1. 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 8.6.1 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%; and
8.6.2. the Supplier may suspend all or part of the Services until payment has been made in full.
8.7. Tax and set-off. All sums payable to the Supplier under this agreement:
8.7.1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
8.7.2. 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).
9. WARRANTIES
9.1. Legal status of parties. Each party warrants that:
9.1.1. it has full capacity and authority to enter into and to perform this agreement;
9.1.2. this agreement is executed by a duly authorised representative of that party;
9.1.3. there are no actions, suits or proceedings or regulatory investigations pending or, to that party's knowledge, threatened against or affecting that party before any court or administrative body or arbitration tribunal that might affect the ability of that party to meet and carry out its obligations under this agreement; and
9.1.4. once duly executed, this agreement will constitute legal, valid and binding obligations.
9.2. Quality of Services. The Supplier warrants on an ongoing basis that it shall discharge its obligations under this agreement using personnel of the required skill, experience and qualifications and with all due skill, care and diligence including in accordance with Good Industry Practice.
10. COMPLIANCE WITH LAWS AND POLICIES
Compliance. In performing its obligations under this agreement, the Supplier shall comply with the Applicable Laws.
11. LIMITATION OF LIABILITY
11.1. Insurance. The Supplier has obtained insurance cover in respect of certain aspects of its own legal liability for individual claims not exceeding £10,000,000 per claim.
11.2. Scope of limitations of liability. References to liability in this Clause 11 include every kind of liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.3. Liability for deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11.4. No limitation of the Customer's payment obligations. Nothing in this Clause 11 shall limit the Customer's payment obligations under this agreement.
11.5. Unlimited liability. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
11.5.1. death or personal injury caused by negligence;
11.5.2. fraud or fraudulent misrepresentation; and
11.5.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.6. Total aggregate liability of Supplier. Subject to Clause 11.3, and Clause 11.5 the Supplier's total aggregate liability:
11.6.1. in respect of Service Credits, shall be limited, in each Contract Year, to 100% of the total charges that are paid by the Customer in the applicable Contract Year;
11.7. Service Credits. The Service Credits shall be the exclusive financial remedy for the Customer for each Service Failure for which a Service Credit has been set, unless:
11.7.1. any failure to meet the Service Levels (either on an individual basis or in aggregate) constitutes a failure beyond that for which the Service Credits have been set; or
11.7.2. the Customer is otherwise entitled to terminate this agreement for the Supplier's breach; or
11.7.3. the failure to perform the Services in accordance with the Service Levels has arisen due to theft, gross negligence, fraud, fraudulent misrepresentation or wilful default.
11.8. Service credits and cap on liability of Supplier. The amounts awarded or agreed to be paid under Clause 5.2.3 shall count towards the cap on the Supplier's liability under Clause 11.6.1.
11.9. Calculating the cap on Supplier's liability. The Supplier's liabilities shall be reduced by:
11.9.1. payment of an uncapped liability;
11.9.2. amounts awarded or agreed to be paid under other clauses of this agreement;
11.9.3. amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
11.10. Supply of Goods and Services Act 1982. The Supplier has given commitments performance of the Services in Clause 5 (Service levels) and a warranty in respect of performance of the Services in Clause 9.2 (Warranties). In view of these commitments, 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 this agreement.
12. TERMINATION
12.1. Termination by either party. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
12.1.1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
12.1.2. the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
12.1.3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
12.1.4. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
12.2. Termination by Supplier. Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if the Supplier reasonably determines that the Equipment can no longer be maintained in Good Working Order or the Equipment is damaged beyond economic repair otherwise than through the Supplier's fault.
12.3. Termination by Customer. Without affecting any other right or remedy available to it, the Customer may terminate this agreement with immediate effect by giving written notice to the Supplier if:
12.3.1. the Supplier has committed multiple Critical Service Failure(s) in any 12 months; or
12.3.2. the Supplier commits a breach of Clause 10.
13. CONSEQUENCES OF TERMINATION AND SURVIVAL
13.1. Unpaid invoices and survival. On termination or expiry of this agreement:
13.1.1. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
13.1.2. any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
13.2. Accrued rights. Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
13.3. Restrictions on use of Confidential Information. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14. GENERAL
14.1. Force majeure. Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this agreement by giving 30 days written notice to the affected party.
14.2. Assignment and other dealings. The Customer shall not assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
14.3. Entire agreement
14.3.1. This agreement constitutes the entire agreement between the parties.
14.3.2. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.4. Waiver
14.4.1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
14.4.2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.5. Severance
14.5.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
14.5.2. If any provision or part-provision of this agreement is deemed deleted under Clause 14.5.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.6. Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.7. Third party rights
14.7.1. Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
14.7.2. The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
14.8. Conflict. If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
14.9. Notices
14.9.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the following address (or an address substituted in writing by the party to be served):
Party 1: Info@first4heating.co.uk
14.9.2. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.10. Governing law. This agreement 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.
14.11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into from the date your first payment is taken.
EXCLUSIONS
- No Underfloor Heating.
- Only Natural Gas ( No Electrical, LPG or Oil Boilers).
- No Claims Within 30 Days.
- No for inaccessible / non visible pipework.
- Damage including accidental or cosmetic.
- No cover hardwater / sludge bloackages.
- Limit per claim: £1,000.00
- Annual claims limit: £21,000.00.
- Pay £250 towards BER if the boiler is over 7 years old.
- No cover for Showers, Taps or Toilets.
