1 Our main obligation – to do the work

We (“we, us and our” shall mean WHPS Mechanical Ltd) will carry out the work (“work” shall mean the specification of services and goods as set out in our quotation, excluding design unless stated so):

1.1 With reasonable care and skill and to a reasonable standard;
1.2 by the end of the work period. However, this term does not mean that if we do not complete on time, you can immediately refuse to pay us;
1.3 and keep to all building regulations;
1.4 and keep to all legal requirements, which we would need to keep to in the course of carrying out the work, but only if you have told us in writing about these requirements;
1.5 and at the end of the contract, as long as you pay all amounts due, we will give you any guarantees, test certificates and so on which apply to the work. You should keep these in a safe place in case you need them in the future.

2 Your main obligation – to pay us

You ( “you and your” shall mean the client or client’s representatives) will pay us the price.
2.1 Interim payments
2.1.1 When the contract period is more than 28 days, we will be entitled to send you interim bills.
2.1.2 We will send you interim bills for the value of any work we have carried out up to that date, together with the cost of all goods and materials delivered to the site. We will add 20% handling fee for the material. You must pay us within 30 days of receiving an interim bill (unless otherwise agreed by both parties).
2.2 Final payment
2.2.1 When we have finished the work (at the completion date), we will send you the final bill.
2.2.2 You must pay us the price within 30 days of receiving the final bill/ invoice (unless otherwise agreed by both parties).
2.2.3 We will give you credit, in the final bill, for all interim bills you have paid.
2.3 Valuations
Unless you have employed a third-party certifier and they have issued a payment certificate, the value due under condition 2.1.2 or condition 2.2.1 will be the value (valuation) we have given the work carried out up to that date.
2.4 Payment
Within fourteen days of receiving any interim bill or the final bill you must give us written notice showing how much you plan to pay, as long as:
2.4.1 we have met our obligations under the contract/ agreed works; and
2.4.2 no set-off or abatement was allowed to be claimed.
You must also tell us how you worked out the amount that you are planning to pay. [See also clause 6.]
If you do not give us written notice under this condition 2.4, we will give you written notice showing the amount we think is due and the basis on which that amount was worked, depending on any notice you have given under clause 6.

3 Site Access

You must allow us enough access to the site and keep the site clear of all obstructions so we can carry out the work.

4 Interest

4.1 You must pay us interest, at the interest rate, on any amounts overdue. 5% a year above the Bank of England base rate.
4.2 This is calculated:
4.2.1 from the date the amount was due, until the date of payment;
4.2.2 daily; and
4.2.3 at the interest rate in force on each day.

5 Starting the work, length of the work and the site

5.1 We will start the work on the start date.
5.2 You must make the site available to us on the start date.

6 Withholding payment

If you plan to pay less than the amount shown in our interim or final bill or in our notice given under clause 2.4, no later than five days before the final date for payment you must give us notice to say you intend to pay less than the amount of our bill and tell us the amount you consider to be due at the date you gave the notice and the basis on which you have worked out that amount.

7 Permission

7.1 Unless we agree otherwise in writing, you must get all forms of permission you need before we start the work and keep any conditions relating to the work (including paying all the relevant fees). If you break this condition, you must pay us any losses and damages we suffer. When the work is completed, whoever is responsible for getting building regulations approval or planning permission is also responsible for getting formal written confirmation that the work meets those regulations or permissions.
7.2 If you do not know what permission you need, you should get advice from an architect or solicitor. When the work is completed, whoever is responsible for gaining building regulations approval or planning permission is also responsible for getting formal written confirmation that the work keeps to these regulations or permission.

8 Materials or goods

8.1 Any materials or goods we supply will be:
8.1.1 new, unless you agree otherwise in writing;
8.1.2 of satisfactory quality;
8.1.3 of the description you give for their type, as far as possible;
8.1.4 of the appropriate British standard and codes of practice, in force at the date of placing the order; and
8.1.5 fit for their normal purposes.
8.2 We will get any materials or goods you ask us to, as long as they are available, within a reasonable period.
8.3 We will not be liable for:
8.3.1 the satisfactory quality of any materials or goods you provide; or
8.3.2 the satisfactory quality or whether they are fit for purpose (or both) of any materials or goods if condition 22.2 applies.
8.4 If, instead of any normal purposes, you have told us about a special purpose for any materials or goods (whether under condition 8.1 or 8.2 or 8.3) you should preferably confirm this in writing within 14 days.
8.4.1 You can ask for particular goods or materials to be used. If we do not consider those goods or materials are appropriate, we should write and/or tell you this. We will have carried out our duty to you by giving you that warning. If you still insist on us using those particular goods or materials, you should confirm this in writing, and it will be at your risk.

9 Who owns materials or goods

9.1 You will not own any materials or goods delivered to the site until you have paid us.

10 Responsibility for the documents

10.1 You are responsible for making sure the details shown in the documents:
10.1.1 meet all legal requirements (including planning and building regulations); and
10.1.2 are fit for the intended purposes.
10.2 You must pay all relevant fees under this condition 10; and
10.3 We are not responsible for the details shown in the documents being fit for the intended purposes, if we did not prepare those documents. Our obligation is simply to build to the details shown in those documents.
10.3.1 If you give us drawings made by someone else, we are not responsible for any errors or missing details in those drawings. We will follow the drawings as provided.
10.3.2 If we do not consider those drawings are correct, we should write and/or tell you this. We will have carried out our duty to you by giving you that warning. If you still insist on us using those drawings, you should confirm this in writing, and it will be at your risk.
10.4 We will be responsible for the details of any documents we produce being fit for the intended purposes.

11 Responsibility for loss and damage and insurance

11.1 Your obligations
11.1.1 Existing structures and contents. You are responsible for any loss of and damage to any existing structures and contents, unless it falls within our obligations in condition 11.2.1.
11.1.2 The work. You are not responsible for insuring the work.
11.1.3 Evidence of insurance. You must take out and keep an adequate insurance policy for your liability under condition 11.1.1. We will be entitled to see this policy.
11.2 Our obligations
11.2.1 Existing structures and contents. We will only be responsible for any loss of and damage to any existing structures and contents, if the loss and damage is caused by our negligence or by the negligence of any person we are responsible for. If part of the loss and damage is caused by someone else, we will only pay our share.
11.2.2 The work. We will be responsible for insuring against any loss of and damage to the work until practical completion or you end our employment, whichever happens first.
11.2.3 Insurance for design or specification. If the work involves a material design element or specification by us, we will:
11.2.3.1 takeout suitable insurance cover for at least the final estimated value of the work;
11.2.3.2 and continue to keep that insurance until the end of the period during which legal action for any claim can be started.
11.2.4 Evidence of insurance
11.2.4.1 We will take out and keep adequate insurance policies for our liability under conditions 11.2.1 and 11.2.2 and 11.2.3 and 11.3 and 11.4.
11.2.4.2 If you ask, we will provide details of the policies.
11.3 Liability for personal injury
11.3.1 We will pay you any losses and damages you have to pay as a result of your legal liability for personal injury to, or the death of, any person arising out of or in the course of, or caused by carrying out, the work.
11.3.2 You will be responsible for personal injury or death caused by your negligence or the negligence of any person you are responsible for.
11.3.3 Liability for damage to any property of another person. We will pay you any losses and damages you have to pay as a result of your legal liability for loss of or damage to any property of another person. This only applies if:
11.3.3.1 it arises out of, or in the course of, or is caused by carrying out, the work; and
11.3.3.2 is caused by our negligence or the negligence of any person we are responsible for.
11.4 You or we must immediately let the insurers know about any claims. You and we must keep to the terms and exclusions of the insurance policy. If you or we fail to do this, the insurance may no longer be valid.

12 Supplying services

You agree to provide for us:
12.1 Toilet and washing facilities.
12.2 Water.
12.3 Electricity.
12.4 Secure storage space.
12.5 Access.

13 Limits on how or when the site can be used

13.1 You are putting the following limits on how or when the site can be used.
13.1.1 Working Hours: Monday to Friday 08:00 – 17:00
13.2 If you want to add extra limits on us after the contract has been signed/ agreed, that will be a change, which will mean the price must be adjusted accordingly.

14 Changing the work

14.1 If you want to change the work, you must :
14.1.1 confirm this in writing; and
14.1.2 do so within 14 days, if you first tell us.
We will then adjust the price, the best procedure is:
- (preferably) to confirm any change instructions in writing, at the time;
- to write the details of the change twice, with both sets signed by you and us; and
- (if possible) for you and us to agree the cost of any change (whether a fixed price or an estimate), at the time. If you and we do not agree the amount at the time, a provisional sum can be given. But, if that cannot be done, we and you should confirm in writing (on the change instructions) that no fixed price or estimate has been given at that time.
14.2 Local Authority or Public Officer changing the work
14.2.1 We will carry out any change instructed by an appropriate local authority or public utility officer, but only after giving you written notice.
14.2.2 However, if you can change those requirements, while still meeting your obligations under condition 10, you may do so. But you must tell us, in writing, before we start carrying out that change.
Whichever applies, we will adjust the price accordingly. Local authority officers have different views on matters. We may find that something which has been approved on a previous job by a local authority officer is not accepted by a different local authority officer on your work. If so, a change may be needed to meet the local authority’s requirements. So, that may not be due to a failure by us. We advise that it is often quicker and cheaper to accept the local authority’s requirements, but each case must be considered on its own facts. Every change which needs extra or revised work (as opposed to a change leaving something out) may mean extra costs.
14.3 The price will be adjusted by:
14.3.1 written agreement beforehand, if possible; or if not then
14.3.2 later written agreement; or if not then
14.3.3 referring to any priced documents, if this applies; or if not then
14.3.4 a reasonable amount for the work done or goods supplied.
14.4 Every change which extra or revised work (as opposed to a change leaving something out) may mean extra costs.

15 Unexpected work

15.1 If unexpected work arises, we will tell you and ask how you want us to go ahead.
15.2 Unexpected work can arise during the course of the work, for example, unsuitable foundations which were not expected at the time of pricing the work, and which will normally result in extra costs.

16 Our employees, subcontractors or tradesman

16.1 You may not use or instruct our employees, subcontractors or tradesmen. If you do, you will have to pay us as if we had carried the work out.

17 Health and safety

17.1 We will be responsible for all health-and-safety issues relating to the work.
17.2 If CDM applies, we must keep to our obligations and you must keep to your obligations.

18 Delay or disruption

18.1 If the work is delayed or lasts longer than expected for any reason (other than our fault), we will adjust the price accordingly, as shown in condition 14.3. If it is your fault, we will be entitled to claim for any losses and expenses caused.

19 Your right to end this contract

Without affecting your other legal rights and remedies, you can end this contract in one (or more) of the following circumstances:
19.1 If, without reasonable cause, we:
19.1.1 stop work for 14 days in a row; or
19.1.2 fail to work steadily; and
19.1.3 you send us a written notice, telling us to restart work or work steadily and we do not do this within seven days of receiving your notice.
19.2 If we become bankrupt.
19.3 If we go into liquidation.
19.4 If we make a composition or arrangement with our creditors.
19.5 If we are wound up.
19.6 If a receiver or manager is appointed over our business, unless this is to amalgamate or re-organise the business.
However, we can still use all our legal rights and remedies.

20 Our right to suspend or end the contract

Without affecting our legal rights and remedies, we can end all or suspend all or part of our obligations under the contract in one (or more) of the following circumstances:

20.1 If you fail to pay any amount due and still fail to pay for seven days after receiving a written notice we send demanding payment and warning you of our intention to end all or suspend all or part of our obligations under the contract.
20.2 If you, or anyone you employ or your agent, interfere with or obstruct the work or fail to make the site available for us (without good reason) for the contract period (or any one or more of these).
20.3 If you become bankrupt or go into liquidation, or make a composition or arrangement with your creditors (or any one or more of these).
20.4 If you cause, or attempt to cause, the withdrawal or cancellation of the grant payment or insurance money.
20.5 If the work is delayed due to your fault for more than 14 days in a row.

After we use our right to suspend part of the contract, we can still end our obligations under it if you are still at fault (as shown in conditions 20.1 to 20.5).

20.6 We will be entitled to:
20.6.1 all relevant payments under condition 2.1; and
20.6.2 any reasonable costs and any reasonable losses we suffer (including loss of profit) involved in or resulting from ending all or suspending all or part of our obligations under the contract within 14 days of asking for payment.
Our right to suspend performance ends when you pay the amount due in full unless in the meantime we have ended our obligations under the contract.
If there is a dispute over you ending this contract or us suspending it, you or we will have to prove that a notice has been served.
You or we may choose to send this notice by recorded delivery.
However, you can still use all your legal rights and remedies.

21 Extending the contract period

You will extend the contract period by a reasonable period to take into account any one (or more) of the following:
21.1 Your delayed instructions or lack of instructions on any one (or more) of the following:
21.1.1 The work.
21.1.2 Changes to the work (see condition 14).
21.1.3 Your choice of materials (see condition 8).
21.2 If we suspend all or part of our obligations under this contract (see condition 20).
21.3 If the work is obstructed by any matter we do not control.
21.4 Weather conditions which delay or prevent us continuing the work.
21.5 Civil commotion, wars, riots and lock-outs.

22 Defects liability period/ Manufacturer Warranty

22.1 During the defects liability period normally 12 months after practical completion, we will put right any defects in the work due to faulty workmanship or materials, unless condition 22.2 applies. We will not charge you for this.
22.2 However, we will not be responsible for any one (or more) of the following defects:
22.2.1 Defects due to the conditions of the site or relevant property that existed before we began work.
This condition 22.2.1 will only apply in the following circumstances:
- If we consider that the condition of the site or any property next to it or the access to it may affect the work and we write and/or tell you this.
- We will have carried out our duty by giving you that warning. If you still insist that we carry out the work with the site or relevant property in this condition, you should confirm this in writing and it will be at your risk.
If the condition of the site or any property next to it or the access to it will affect the work and this condition could not be expected before the work started.
22.2.2 Defects caused by you or any other person or caused by any event, which happen after the completion date.
22.2.3 Anything excluded under condition 8.3.
22.3 Manufacturer Warranty is subject to service as per its operating & maintenance manual and T&Cs.
22.4 Defects liability period/ Warranty may be invalid, if you instruct others to carry out our work.
Usually you or we have six years in which to make a claim. Sometimes a longer period can apply and you may need to take legal advice on this.

23 Subcontracting

23.1 We can subcontract any part of the work, but we will still be responsible for the work.

24 Clearing the site

24.1 Before the completion date, we will remove all surplus materials, rubbish and tools on the site and leave it clean and tidy.
24.2 We will not be responsible for removing any items you, or any person we don’t control, place on the site.

25 Disputes

We and you may sort out disputes by conciliation, adjudication, arbitration or court proceedings. Both you and we must agree to a conciliation.
Either you or we can ask for adjudication, arbitration or court proceedings.
25.1 Conciliation
You and we must both agree to conciliation taking place. If so, the following applies.
25.1.1 If the work is covered by the MasterBond insurance or similar insurance cover, any conciliation will be under the terms of that insurance.
25.1.2 If the work is not covered by the MasterBond insurance or similar insurance cover: you and we can agree who the conciliator will be.
25.1.3 Conciliation is a particular way of trying to sort out disputes which many believe to be quicker, cheaper and less formal than a court hearing or arbitration (if the conciliation is successful). An independent person, the conciliator, tries to help you and us reach agreement about how to settle the dispute.
25.1.4 Although the conciliator can make suggestions, she or he cannot force you or us to reach an agreement. If you and we cannot reach agreement, you or we can continue with our other, more formal, rights of adjudication, arbitration or court proceedings.
25.2 Adjudication
If adjudication applies, you or we can refer any dispute to adjudication at any time and the adjudication terms of the Scheme for Construction Contracts will apply to this contract, but with the following changes.
25.2.1 Adjudication will apply even if some of the contract has been arranged by discussion.
25.2.2 The adjudicator will be entitled to sort out any dispute about their own jurisdiction.
25.2.3 The adjudicator will be entitled to decide who will pay their costs and expenses and whether one side will pay the other side’s costs as well.
25.2.4 The adjudicator may correct their decision to remove any clerical or typographical mistakes which may have happened within five days of giving their decision to us.
25.2.5 You and we can agree that the adjudicator’s decision will be final and binding between us and that our right to have the dispute finally settled by legal proceedings or arbitration will not apply.
Adjudication is a quick-fix (usually 35-day) process. Adjudication, if it is used, should take place before arbitration or court proceedings. The right to adjudication is a legal one –and cannot be taken away, even by agreement. Adjudication only applies to ‘construction contracts’ (as defined in the ‘Housing Grants Construction and Regeneration Act 1996 as amended by the Local Democracy Economic Development and Construction Act2009’).

Either you or we can still issue arbitration or court proceedings, after an adjudication unless you and we agree to lose that right under clause 25.2.5. Arbitration or court proceedings are a more lengthy and formal process. You and we must accept the adjudicator’s decision until the dispute is finally decided in arbitration or court proceedings. Remember that arbitration and court proceedings are alternatives.

There must be a separate and specific agreement that the adjudicator’s decision is final and binding. If not, although adjudication still applies, you or we can go on to challenge the adjudication by arbitration or court proceedings as in condition 25.3 and 25.4.
25.3 Arbitration or court proceedings
Any dispute or difference arising from or in connection with the work will be dealt with as follows:
25.3.1 If the work is covered by the MasterBond insurance or similar insurance cover, under the terms of that insurance.
25.3.2 If the MasterBond insurance or similar insurance cover does not apply and the amount in dispute is within the county court small claims limit, by county court proceedings.
25.3.3 If the MasterBond insurance or similar insurance cover does not apply and the amount in dispute is above the small claims county court limit, by court proceedings.
Or, you and we can deal with the dispute by arbitration. You and we must both agree this, in writing, when the dispute arises.
25.4 Arbitration
If you or we refer a dispute or difference to arbitration, the following will apply:
25.4.1 The arbitrator will be a person agreed between us and you
25.4.2 The arbitration will be carried out under the Arbitration Act 1996 and the Construction Industry Model Arbitration Rules 1998.
25.4.3 If the arbitrator:
25.4.3.1 is unable or unwilling to act; or
25.4.3.2 becomes unable or unwilling to act; or
25.4.3.3 resigns.
You and we can agree a new arbitrator.
This condition 25.4.3 applies as many times as is necessary.
25.5 Conciliators or arbitrators appointed must be members of:
25.5.1 the Chartered Institute of Arbitrators; or
25.5.2 the Royal Institution of Chartered Surveyors (RICS).
If you or we suffer any losses or damages because of the other’s negligence or breach of contract, you or we can claim for that. However, the person who has suffered the losses or damages (the claimant) cannot sit back and let the loss get worse. The claimant has a duty to take reasonable steps to prevent the loss from getting worse. This is called the duty to ‘mitigate’ your loss.
In particular, claimant must do the following:
- Take all reasonable steps to mitigate the loss.
- Cannot claim for any loss or damage if she or he could reasonably have avoided it, but failed to do so.
If you are the claimant, you must give us a reasonable opportunity to:
- Check the alleged defects; and put right those defects. If we do that, at our own cost, the loss is avoided. However, this obligation (to allow us to put the defect right) may not apply if you can prove that we are so incompetent that we would not do the work properly, even if given the chance to do so.