TERMS & CONDITIONS OF BUSINESS - DRIVEWAYS OF DISTINCTION. 1.
PLEASE NOTE THE LIMITATION OF LIABILITY PROVISIONS IN CONDITION 12.
1. DEFINITIONS & INTERPRETATION
1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below.
“Conditions” means these terms and conditions;
“Contract” means the contract between Driveways of Distinction and the customer relating to the supply and Services, incorporating the Conditions and the Order Confirmation;
“Customer” means the person or party detailed in the Order Confirmation who purchases Services from Driveways of Distinction..
“Fees” means the fees detailed in the Order Confirmation.
“Order Confirmation” means the document confirming particulars of Contract, including (where applicable) the Services and Fees.
“Payment Terms” means the payment terms detailed in the Order Confirmation;
“Services” means the services detailed in the Order Confirmation to be supplied to the Customer by Driveways of Distinction;
“Special Conditions” means the special terms and conditions (if any) detailed in the Order Confirmation;
“Driveway of Distinction” is a trading name and/or Driveways Advisory Service Ltd (company number 06325731) whose registered offices are at Pear Trees, Barwick Road, Garforth, Leeds, LS25 2DL, as the context permits, and set out in the Order Confirmation.
1.2 A reference to a particular law is a reference to it as it is a force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular;
1.4 A reference to the parties shall be a reference to Driveways of Distinction and the Customer;
1.5 Condition headings do not affect the interpretation of these terms and conditions.
2. APPLICATION OF CONDITIONS
2.1 The description and price of the Service shall be detailed in the Order Confirmation.
2.2 Subject to any variation under condition 5. the Contract shall be made subject to the Conditions to the exclusion of all other items and conditions (including any terms or conditions which the Customer purports to apply under any confirmation of the Order Confirmation, other document, trade custom, practice or course of dealing), which, together with the Order Confirmation, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in it, superseding any previous agreement between the parties relating to such matters.
2.3 Any variation to these Conditions and any representations about the Services shall have no effect unless expressly agreed in writing.
2.4 If there is any conflict inconsistency or ambiguity when interpreting the Contract, the following order of precedence shall always apply.
(a) any Special Conditions;
(b) these Conditions;
(c) the Order Confirmation.
3. BASIS OF SUPPLY.
3.1 The Customer acknowledges that it has;
(a) not relied on any statement, promise or representation made or given by or on behalf of Driveways of Distinction which are not set out in the Contract; and
(b) satisfied itself that the Services are suitable for its own requirements.
4.1 The description and /or quality of the Services shall be as set out in the Order Confirmation.
4.2 All aggregates used in resin bound surfaces by Driveway of Distinction are natural product which may vary in colour, size and shape. Accordingly, the customer acknowledges that the finished colour and texture of the final product outlined in the Order Confirmation may differ from any samples provided by Driveways of Distinction to the Customer.
4.3 In entering into the Contract, the customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of Driveways of Distinction. However, nothing in these conditions limits Driveways of Distinction’s liability for fraudulent misrepresentation.
4.4 Any advice or recommendation given by Driveways of Distinction or its employees, contractors or agents to the Customer about the Services which are not confirmed in writing by an authorised officer of Driveways of Distinction is followed or acted on entirely at the Customer’s own risk.
5. CHANGE CONTROL
5.1 If either party requests a change to the scope or performance of the Contract, Driveways of Distinction shall, within a reasonable time, provide a written estimate to the customer of:
(a) the likely time required to implement the change.
(b) any variations to Driveway of Distinction’s price arising from the change, and
(c) any other impact of the change on the terms of the Contract.
5.2 If Driveways of Distinction requests a change to the scope of the Contract, the Customer shall not unreasonably withhold or delay consent to it.
5.3 If the Customer wishes Driveways of Distinction to proceed with the change, Driveways of Distinction has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the price , any implementation plan and any other relevant terms of the Contract to take account of the change.
6. PERFORMANCE OF SERVICES
6.1 Any date or times specified by Driveways of Distinction relating to the performance of the Services are estimates only. Time for performance of the Services shall not be of the essence and shall not be made so by the service of any notice.
6.2 Performance of the Services shall be within a reasonable time.
6.3 If performance of the Services is prevented or delayed by any act or omission of the Customer or the Customer’s agent, sub-contractors or employees, the Customer shall be liable to pay to Driveways of Distinction on demand all reasonable costs, Fees or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss or reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Driveways of Distinction confirming such costs, Fees and losses to the Customer in writing.
7. CUSTOMERS OBLIGATIONS
7.1 The customer shall:
(a) provide in a timely manner such access to the Customer’s premises, and such other facilities, as are requested by Driveways of Distinction.
(b) provide in a timely manner such information as Driveways of Distinction may request, and ensure that such information is accurate in all material respects; and
(c ) where the Services are performed at the Customers premises or at any other third party premises site, be responsible (at its own cost) for preparing such premises by:
(i) obtaining any necessary easements, wayleaves, permissions, consent or licenses, including without limitation, planning permission pursuant to the Town and Country Planning Act 1990 and building regulations consent pursuant to the Buildings Act 1984;
(ii) Providing suitable secure space for keeping tools, fittings and materials;
(iii) making electrical power, sanitary facilities and running water available to Driveways of Distinction; and
(iv) ensuring that no person interferes with anything installed pursuant to the Services.
8.1 The fees shall be deemed to be in UK £s (pounds sterling) and unless expressly stated otherwise, shall exclude value added tax (where applicable) at the applicable current rate, which shall be payable in addition.
8.2 Driveways of Distinction reserves the right, by giving notice to the Customer at any time to increase any fees to reflect any increase in the cost to Driveways of Distinction which is due to any factor beyond the control of Driveways of Distinction, any change in the Order Confirmation requested by the customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Driveways of Distinction adequate information or instructions.
9. INVOICING AND PAYMENT TERMS.
9.1 Payment terms shall be detailed in the Order Confirmation.
9.2 The Customer shall make all payments due under the Contract in full without any deduction whether by way of sett-off, counterclaim, discount abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Driveways of Distinction to the customer.
9.3 If the Customer fails to pay Driveways of Distinction any sum due pursuant to the Contract without prejudice to any other right or remedy available to Driveways of Distinction, the Customer shall be liable to pay interest to Driveways of Distinction on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England , accruing on a daily basis until payment is made, whether before or after any judgment.
10. TERM AND TERMINATION
10.1 The Customer has fourteen (14) days after the day the signed Order Confirmation is received by Driveways of Distinction to end the Contract. However, one Driveways of Distinction has completed the Services the Customer cannot change its mind, even if the period is still running. If the Customer cancels after Driveways of Distinction has started the Services, the customer must pay for the Services provided up until the time the Customer tells Driveways of Distinction of its change in mine.
10.2 Driveways of Distinction may end this Contract if the Customer;
(a) breaks any of the Conditions.
(b) fails to make any payment to Driveways of Distinction when it is due and the Customer still does not make payment within 7 days of Driveways of Distinction reminding the Customer that payment is due; and
(c) does not, within a reasonable time, allow Driveways of Distinction access to the Customer’s premises to supply the services.
11. QUALITY, WARRANTIES AND REMEDIES
11.1 Driveways of Distinction warrants that the Service shall be performed using reasonable skill and car within the meaning of the Supply of Goods and services Arc 1982.
11.2 Following payment of the Fees in full, Driveways of Distinction shall issue a guarantee for the Services to the Customer.
11.3 If the Services are not carried out with reasonable care and skill, the Driveways of Distinction shall re-perform the Services or get some money back if Driveways of Distinction cannot fix it.
12. LIMITED LIABILITY.
12.1 Driveways of Distinction is responsible to the Customer for foreseeable loss and damage caused by Driveways of Distinction. Driveways of Distinction is responsible for loss or damage the Customer suffers that is a foreseeable result of Driveways of Distinction breaking this contract or Driveways of
Distinction failing to use reasonable care and skill, but Driveways of Distinction is not responsible for any loss or damage this is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made, both Driveways of Distinction and the Customer knew it might happen for example, if it was discussed during the sale process.
12.2 Driveways of Distinction do not exclude or limit in any way the liability to the Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent.
12.3 If Driveways of Distinction is liable for damage to the Customer’s property, Driveways of Distinction will make good any damage to the Customer’s property caused by Driveways of Distinction. However, Driveways of Distinction is not responsible for the cost of repairing any pre-existing faults or damage to the Customer’s property that Driveways of Distinction discover while providing the Service.
12.4 Driveways of Distinction is not liable for business losses. Driveways of Distinction only supply the Services for domestic and private use.
13 UNFORSEEN DELAYS
13.1 Driveways of Distinction reserves the right to defer the performance of the contract (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Driveways of Distinction including without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, floor, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability to delay in obtaining supplies of adequate or suitable materials.
14. DISPUTE RESOLUTION
14.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non-payment of the price by the customer, for whatever reason) the parties shall attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
14.2 If the parties are unable to resolve such dispute or difference within fourteen (14) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.
14.3 If the difference or dispute is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 14.2 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in the condition, either party may request the Centre for Dispute Resolution (“CEDR”) in writing to appoint an independent expert.
14.4 If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:
a) acts as an expert and not an arbitrator;
b) affords the parties the opportunity within reasonable time limits to make representations to him;
c) informs each party to the representations of the other;
d) affords each party the opportunity within reasonable time limits to make submissions to him on the representations of the other; and
e) notifies the parties of his decision, with reasons as quickly as practicable.
14.5 The fees of the expert including the cost of his nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.
14.6 The expert determination is to be conclusive and binding on the parties except where there is fraud or manifest error on the matter of law.
15.1 Driveway of Distinction may assign the Contract or any part of it to any third party. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Driveways of Distinction.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall be the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 The parties of the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Right of Third Parties) Act 1999 by any person that is not a party to it.
15.4 The information, existence, construction, performance, validity and all aspect of the Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.
15.5 No allowance has been made for the sampling or testing of materials. All goods remain the property of Driveways of Distinction until all payments are received in full.