TERMS & CONDITIONS

These conditions are generally as those set down by the Heating and Ventilating Contractors' Association for use on contracts direct with employers involving the supply and installation of commercial heating and ventilating and/or ductwork and/or air conditioning systems and equipment, but to include all plumbing and other related building services.

There are separate Conditions of Trading for contracts with householders under the HVCA Double Guarantee Scheme for Domestic Heating installations up to 60kw (200,000 Btu/h); and for the Installation of Commercial Refrigeration Equipment.

1. Period of Tender

Unless previously withdrawn, this tender is open for acceptance in writing within thirty days of the date hereof or within such other period as may be agreed in writing.

2. Basis of Tender

This tender is conditional upon the Employer having supplied the Contractor with adequate drawings (where the Contractor is not responsible for design) and with such information regarding construction details and site conditions (including the availability or working and storage areas with suitable access roads, the existence of any abnormalities such as heat, fume, dust etc) as will enable the Contractor to make a reasonable estimate of the cost of the supply and erection of the Installation and the work to which this tender relates (hereinafter referred to as "The Installation") and the time for its completion. In the event of the Employer supplying inadequate and inaccurate drawings, information or details, the tender price shall be adjusted accordingly.

This tender covers the items in the specification and/or drawings only and, unless otherwise expressly stated, does not include the following items;
  • building and electrical work or the associated work of other trades:
  • the supply and erection of scaffolding, ladders, moveable platforms, hoisting and/or lowering gear necessary for the execution of the Installation.
  • the cost of operating any part of the Installation.
  • the cost of any fuel, water or electricity used on site.
  • Unless otherwise expressly stated, any costs incurred by the Contractor in providing any of the items referred to in paragraph 2(2)(a) shall be reimbursed by the Employer to the Contractor.

3. Fixed Price Basis

Where expressly stated to be on a fixed price basis, this tender is based upon the types and rates of contribution taxes, levies and duties (hereinafter referred to as "the tax items") payable by the Contractor in respect of the execution of the Installation and which are current at the date of this tender.

If after the date of tender there is any increase or decrease in the cost to the Contractor of executing the Installation caused by any change in or cessation of any one or more of the tax items or by the introduction of any new contribution, tax, levy or duty payable by the Contractor in connection with the execution of the Installation, then the tender price shall be increased or decreased accordingly.

4. Overtime

All additional costs caused by working overtime at the request or with the consent of the Employer shall be charged as an addition to the tender price.

5. Value Added Tax

The tender price does not include any Value Added Tax properly chargeable to the Contractor in respect of the execution of the Installation. The net amount of such tax shall be reimbursed to the Contractor in accordance with Clause 8.

6. Variations

The term "variation" means the alteration or modification of the design, quality or quantity of work executed for the Installation and includes the addition, omission or substitution of any work and the alteration of the kind or standard of any materials or goods to be used in the Installation.

The Employer may order variations to the Installation and the Contractor shall comply with such order but not until:
  • the same have been ordered in writing by the Employer or, where ordered orally, confirmed in writing by the Contractor, and;
  • the value of the variation has been agreed where it is reasonably possible to estimate such value.
  • It is not reasonably possible to estimate the value of a variation before the Contractor complies with the order, or if the order is complied with before such value has been agreed, then a fair valuation shall be made.
  • Where the value of a variation has not been agreed under paragraph 6(2)(ii) or a fair valuation under sub-clause 6(3) is not made, then the Contractor shall be allowed the prime cost of the variation work calculated in accordance with the "Definition of the Prime Cost of Daywork" current at the date of tender and issued by the Royal Institution of Chartered Surveyors and the Heating and Ventilating Contractors' Association, together with such percentage additions to each section of prime cost as are given below.
Labour 225% – Plant 10% – Materials 15%

7. Materials and Goods

Materials and goods properly on site for incorporation into the Installation shall remain the property of the Contractor until he has received payment in full.

Until such payment has been received the Contractor may remove any materials and goods from the site and the Employer shall allow such access to the site as is reasonably necessary for such removal.

All materials and goods properly on site whether unfixed or incorporated into the Installation shall be at the sole risk of the Employer. If any part of the Installation or any materials and goods are destroyed, damaged or lost through any cause then the Contractor shall be entitled to charge as a variation to the contract for the restoration of any work or the replacement of any materials or goods so destroyed, damaged or lost.

PROVIDED that the Employer shall not be liable for any such destruction, damage or loss to the extent that the same is caused or contributed to by the negligence of the Contractor or those for whose action he is responsible.

8. Terms of Payment

During the execution of the Installation, the Contractor shall be entitled to be paid instalments.

The Contractor may apply for payment to the Employer at any time or at such specific intervals as are agreed between the parties in writing, stating total value of the work properly executed (including the value of any materials or goods intended for incorporation into the Installation provided the same have been delivered to or adjacent to the site in respect of which the Contractor has paid his supplier or is legally bound to make such payment, and of any fluctuations assessed in accordance with clause 3 and of any amounts due under sub-clause 9(3), and of any variations which have been executed and of any Value Added Tax properly chargeable at the date of application, and of any other amounts due to the Contractor under these Conditions.

Within 14 days of receipt of such application the Employer shall pay to the Contractor the full amount applied for less any amounts previously paid.

Sharp & Howse Limited reserve the right to charge interest at the rate of 15% calculated daily on all amounts not paid in accordance with clause 8(1)(ii) above.

If the Employer fails to make any payment in accordance with these Conditions, and such failure continues for seven days after the Contractor has given him written notice of the same, then without prejudice to any other rights or remedies of the Contractor, he may suspend the further execution of the Installation until such payment is made and any such period shall be deemed to be an extension of the period for completion determined in accordance with clause 9 and shall not be deemed a delay in the completion of the Installation for which the Contractor is responsible.

9. Time for Completion

Subject to sub sub-clause 8(3) the Contractor shall, so soon as he has possession of the site, proceed regularly and diligently with the execution of the Installation.

Upon it becoming reasonably apparent that the progress of the Installation is delayed, the Contractor shall forthwith give written notice of the delay to the Employer stating the cause and, where reasonably practicable, the extent of the delay. Upon receipt of the said notice and where the delay is due to circumstances beyond the Contractors' control, the Employer shall forthwith grant the Contractor a fair and reasonable extension of time for completion of the Installation.

Where the progress of the Installation is delayed or materially disrupted by any act, omission or default of the Employer or those for whom they are respectively responsible, then the party at fault shall pay or allow to the other the agreed amount of direct loss and/or expense (including direct costs, overheads and loss of profit) as may be attributable to such delay or disruption.

10. Determination

If;
  • the execution of the Installation is delayed due to reasons within the control of the Employer; or
  • the Employer fails to make any payment in accordance with the provision of clause 8.
then if the circumstances mentioned in paragraphs 10(1)(i)-(ii) continue for ten days after notice in the said form has been sent by the Contractor to the Employer, then the party who sent the said notice may without further notice forthwith determine the employment of the Contractor under the Conditions.

PROVIDED that such notice shall not be given unreasonably and provided that any such determination shall be without prejudice to any other rights or remedies of the party effecting determination.

If either party commits an act of bankruptcy or enters into any deed of arrangement or composition with his creditors or enters into bankruptcy or liquidation (whether compulsory or voluntary) except for the purposes of company reconstruction, then the other party may, by notice sent by registered post or recorded delivery to the other, forthwith determines the employment of the Contractor under these Conditions.

Upon such determination, after taking into account amounts previously paid, the Contractor shall be entitled to be paid:
  • any design costs;
  • the total value of work begun and/or completed up to the date of determination.
  • the cost of materials and goods ordered for the Installation for which the Contractor has paid or is legally bound to pay. Upon such payment, title to the said materials and goods shall pass to the Employer and the Contractor shall make the same available for collection by the Employer.
  • the cost of removal from site of any property of the Contractor properly on site for the execution of the Installation.
  • any direct loss and/or expense (including overheads and/or financing charges) cause to the Contractor whether by determination or otherwise under these Conditions; and
  • any other amounts due to the Contractor under these Conditions.
PROVIDED that where determination has been effected for the reasons mentioned in paragraphs 10(1)(i)(ii), the Contractor may take possession of and shall have a lieu upon all fixed goods and materials which may have become the property of the Employer until the payment of all monies due to the Contractor from the Employer.

11. Insurance

The Employer shall, for the benefit of himself and the Contractor, insure and keep insured the full value of the Installation, the materials and goods on site for incorporation into the Installation and the cost of any professional fees or services against loss or damage by fire, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes (whether such loss or damage is caused or contributed to by the negligence of the Contractor or those for whose actions the Contractor is responsible) lightning, earthquakes, aircraft or anything dropped therefrom, aerial objects, riots and civil commotion, and such loss or damage which may occur shall be at the sole risk of the Employer.

12. Third Party/public Liability

The Employer shall indemnify the Contractor and his employees against all claims (including the cost of any legal proceedings) in respect of the death or injury to any person or for any damage to or loss of property made by any person against the Contractor or the Employer whether under statute or common law which may arise out of or be in any way connected with the execution of the Installation except where the same is due to the negligence, omission or default of the Contractor.

13. Provision of Facilities

The Employer shall, until completion of the Installation, provide free of charge, adequate and proper facilities for the storage of such materials, equipment, tools or other property which may be brought on to the site.

The Employer shall supply at his own cost all necessary water, lighting, power and site security for the purpose of executing, or in connection with, the Installation.

14. Drawings

The copyright in any drawings, illustrations or descriptive matter (hereinafter referred to as "documents") submitted by the Contractor shall remain his property. The copyright in any documents submitted by the Employer shall remain his property.

15. Guarantee and Limitation of Liability

The Contractor shall only be liable to make good any defects in the Installation which stem from his faulty design or his selection of unsuitable or inadequate materials or from faulty materials or bad workmanship. Provided that;
  • the Contractor received written notice of any defect within 12 months of the completion of the Installation, and
  • the Installation has been under proper operating conditions; and
  • in the case of materials and goods supplied and fixed but not manufactured by the Contractor, the extent of the Contractors' liability in respect thereof shall not exceed the extent of his suppliers' or the manufacturers' liability to the Contractor.

PROVIDED the paragraph 15(1)(iii) shall not operate unless, before entering any contract for the purchase of such materials and goods, the Contractor has informed the Employer of the nature and extent of his supplier's intention to limit or exclude his liability; and
  • the Employer has agreed that the Contractor's liability under these Conditions shall, mutatis mutandis, be of the same nature and extent, or
  • there are no alternative sources of supply for the materials and goods.

The Contractor shall not be liable to make good any defects in the Installation which arise from the operation of the same by the Employer, his servants or agents before the date of completion, nor shall the Contractor be liable for any loss or damage arising directly or indirectly as a consequence of such operation.

Completion of the Installation shall be deemed to have occurred and the guarantee period to have commenced on the date on which the Contractor gives notice to the Employer or his agent that the Installation is ready for use.

The Contractor shall not be liable in respect of any defect which may occur in any previously existing system to which the Installation may be connected unless and to the extent that such defect is caused or contributed to by a defect in the Installation for which the Contractor would be liable under this clause.

Save as is provided in this clause, the Contractor shall not be liable for any loss or damage whether arising directly or indirectly as a consequence of any defect in the Installation save to the extent that such defect is caused by the negligence of the Contractor, his servants or agents.

16. Compliance with Law and Regulations

Any fees incidental to the execution of the Installation which are payable by reason of any Statute, Order in Council, Regulation or Direction, Bye-Law or other lawful requirement or instruction (hereinafter referred to as "requirement or regulation) are to be paid for by the Employer.

The Employer and Contractor shall each respectively comply with every applicable good practice requirement or regulation whether of the Government or any local or other lawful authority and the Employer shall obtain every licence, permit or authority that may be required in connection with the Installation.

17. Arbitration

If any dispute or difference between the parties hereto arises out of this contract the same shall be referred to the decision of an Arbitrator to be mutually agreed upon or (failing such agreement) to be appointed by the President for the time being of the Institute of Arbitrators. The Arbitrator shall be subject to and in accordance with The Arbitration Act 1950 or any statutory modifications or re-enactment thereof or substitution therefor.
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