1. Who we are and the Services and Materials We Supply
1.1. We are KS Plumbing & Building Services Limited, a company limited by shares, with company number 09033947 (“we”).
1.2. We provide all general Mechanical and Electrical building services for Commercial and Domestic properties along with other trade services as listed on our website (“Services”) and materials (“Materials”) under customised plans to suit your needs.
2. These terms and why you should read them
2.1. These are the terms and conditions that will apply whenever you engage us to supply Services and/or Materials to you. Therefore, you should read them carefully.
2.2. Unless otherwise set out in the Contract, these terms apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Our contract with you
3.1. Whenever you want to engage us to provide services to you, you shall send us a request via phone or email. Your request shall include the description of the Services and Materials you want us to provide you and any expected timescales you want us to follow.
3.2. After we receive your request, we will send you via email our quotation for the supply of the Services and Materials included in your request (“Quotation”).
3.2.1. The Quotation will also include the materials or resources that you will provide and practical arrangements on working methods that provide minimum disruption to you and your business and allow a more efficient supply of the Services and Materials.
3.2.2. The Quotations are prepared with as much detail and clarity as possible. If you want to include any further information or otherwise amend the Quotation, please let us know within 7 days after you receive the Quotation, and we will revise it accordingly and send for your approval.
3.3. When you accept the Quotation, a contract will be formed for the supply of the Services set out in the Quotation (“Selected Services”) and/or the Materials set out in the Quotation (“Selected Materials”) in accordance with these terms and the Quotation (“Contract”).
3.5. Any samples, drawings, descriptive matter or advertising we issue, and any descriptions or illustrations of the Materials or descriptions of the Services contained in our catalogues, website or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Materials described in them. Unless otherwise stated in the Contract, they shall not form part of the Contract or have any contractual force.
3.6. For the avoidance of doubt, these terms and the Quotation are parts of the Contract, but your request under clause 3.1 is not part of the Contract.
3.7. Any additional Services or Materials shall be subject to a new request and, consequently, to new Quotation. We are obliged to supply any Services or Material which are not included in an agreed Quotation.
4. Supply of the Selected Services and Selected Materials
4.1. We shall supply the Selected Services and/or Selected Materials to you in accordance with the Quotation and the applicable laws and regulations.
4.2. You shall obtain all necessary authorisations and approvals required by third parties in connection with the supply of the Selected Services and Selected Materials to you.
4.3. We reserve the right to amend the Selected Services and Selected Materials if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Selected Services and/or Selected Materials. We will notify you in any such event.
4.4. We shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only. Time shall not be of the essence for supply of the Selected Services and/or Selected Materials and you shall not be liable for any compensation for reasonable delays in the delivery of the Selected Services and/or Selected Materials.
4.4.1. In addition to clause 4.1, we shall not be liable for any delay caused by or related to your or your personnel’s acts, omissions and failure to comply with the obligations set out in the Contract.
4.5. You shall cooperate with us in all matters relating to the supply of the Selected Services and the Selected Materials.
4.6. Without prejudice to the generality of clause 4.5, you shall:
4.6.1. provide us any information and materials we reasonably request in connection with the Selected Services and/or Selected Materials;
4.6.2. timely provide us access (including after working hours if so requested) to your premises, systems and personnel whenever required to the supply to the Selected Services and/or Selected Materials (including but not limited to access required to the delivery of building materials, plant, machinery and skips);
4.6.3. ensure that any information or material you provide us is true, accurate and complete;
4.6.4. obtain all necessary permits, authorisations and approval (including landlord and council consent) required to enable us to supply the Selected Services and the Selected Materials;
4.6.5. keep animals away from the areas where the Selected Services and the Selected Materials will be supplied; and
4.6.6. comply with any applicable regulations (including health and safety regulations) that apply to gas installations.
4.6.7. comply with the instructions we provide you (in writing or orally) in relation to the Selected Services and/or Selected Materials;
4.6.8. where the Selected Services and the Selected Materials include services and Materials outsource from third parties and delivered to you by us, comply with any terms, conditions and instructions from such third parties in relation to the Selected Services and the Selected Materials that we make you aware of;
4.6.9. where you provide materials or resources that are required for the supply of the Services, you shall ensure that such materials and resources are timely delivered to us in accordance with the Quotation; and
4.6.10. not use the Selected Services nor the Selected Materials for any unlawful or unethical purpose.
4.7. During the supply of the Selected Services and the Selected Materials, we will use dust sheets, loose plastic sheeting and reasonable market practices to protect existing surfaces. However, we shall not be held liable if any existing surface is damaged despite our efforts. Therefore, you shall ensure that existing surfaces are removed whenever possible or otherwise protected during the supply of the Selected Services and the Selected Materials.
5. Supply of the Selected Services
5.1. The Selected Services will be provided with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks that are allocated to them.
5.2. We may suspend the supply of the Selected Services if you or your personnel fail to comply with the obligations set out in the Contract (including but not limited to the obligation to timely pay the Fees).
5.2.1. If we suspend the Selected Services in accordance with clause 5.2:
5.2.1.1. we shall not be liable for any damage or loss you may suffer as a result of or in connection with such suspension; and
5.2.1.2. you shall indemnify us against any damage or loss we may suffer as a result of or in connection with such suspension.
5.3. The Selected Services will be tested and accepted as set out in the Quotation (“Selected Services Testing and Acceptance”).
5.4. If you fail to properly and timely deliver any material or resource that you shall provide under the Quotation, we reserve the right to charge you the day rate set out in the Quotation for each day when such material or resource has not been properly and timely delivered (“Day Rate”). The Day Rate shall apply in addition and without prejudice to any other right or remedy we may have under the law or the Contract.
6. Supply of the Selected Materials
6.1. If the Contract includes Materials, the risk of the Materials will transfer to you upon delivery of the Selected Materials to you in accordance with the Quotation.
6.2. If the Contract includes, we will deliver the Selected Materials in good working conditions, with full title and guarantee and free from any encumbrance. The title of the Selected Materials will transfer to you upon payment in full of the price of the Selected Materials.
6.2.1. Until the title of the Selected Materials is transferred to you:
6.2.1.1. we reserve the right to retake, sell or otherwise dispose of all or any part of the Selected Materials;
6.2.1.2. we reserve the right to pursue legal proceedings (including court injunctions) to prevent you from selling, transferring or otherwise disposing of Selected Materials;
6.2.1.3. you shall insure the Selected Materials for up to its full value against any loss or damage;
6.2.1.4. ensure that the Selected Materials is kept in the same conditions we delivered it to you, except for reasonable wear and tear;
6.2.1.5. promptly inform us of any loss of or damage to the Selected Materials; and
6.2.1.6. reimburse us for any loss or damage to the Selected Materials arising out of or in connection with you or your personnel’s acts or omissions.
6.3. Whenever we deliver the Selected Materials, we will deliver a note which will show:
6.3.1. all relevant reference numbers;
6.3.2. the type and quantity of the Selected Materials (including the code number of the Selected Materials, where applicable);
6.3.3. storage instructions (if any);
6.3.4. if the Selected Materials are being delivered by instalments, the outstanding balance of Selected Materials remaining to be delivered; and
6.3.5. any requirement for you to return any packaging material to us.
6.4. If you are required to return any packaging material to us, you shall make any such packaging materials available for collection at such times as we shall reasonably request. Returns of packaging materials shall be at our expense.
6.5. If you fail to accept delivery of the Selected Materials within 5 days after we notify you that the Selected Materials are ready, then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract in respect of the Selected Materials, we shall store the Selected Materials until delivery takes place, and charge you for all related costs and expenses (including insurance).
6.6. Notwithstanding the supply of the Materials, unless otherwise set out in the Quotation, we shall own any surplus building materials, waste materials and off cuts.
6.6.1. We will take down, demolish or otherwise use at our discretion any waste we generate in connection with the supply of the Selected Services and/or Selected Materials.
6.6.2. If there is any on site or road side skip contents, they shall remain our property until collection by the skip company.
6.7. These terms shall apply to any repaired or replacement Materials we supply.
7. Warranties
7.1. The warranties we give in relation to the Selected Services and/or the Selected Materials are solely and exclusively the warranties set out in the Quotation. No other warranty that can be legally excluded shall be implied in relation to the supply of the Selected Services and/or Selected Materials.
7.1.1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.2. Unless otherwise set out in the Quotation, any warranty we give covers new build work only and shall not apply to:
7.2.1. repair work, renovations, restorations, refurbishments and alterations;
7.2.2. repairs to buildings, roofs, infrastructure or any existing workmanship or related materials;
7.2.3. the integrity of any existing structures, materials or decorations;
7.2.4. the ingress of water through existing structures;
7.2.5. subsidence issues (like sinkage below slabs, subsidence below new or existing foundations or movement of foundations or floors etc);
7.2.6. materials and resources provided by you;
7.2.7. any work on existing installations that are either inferior or over 10 years old; and
7.2.8. shall be limited to the warranties given by the manufacturers of the Selected Materials.
7.3. You shall not be liable for breach of the warranties referred to in clause 7.1 if:
7.3.1. you make any further use of the Selected Services and/or Selected Materials after you notify us about the breach of the warranty;
7.3.2. the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use and/or maintenance of the Selected Services and/or Selected Materials or (if there are none) good trade practice regarding the same;
7.3.3. the defect arises as a result of we following any drawing, design or specification supplied by you;
7.3.4. you alter or repair the Selected Services and/or Selected Materials without our written consent;
7.3.5. the defect arises in connection with fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
7.3.6. the defect arises in connection with presence of perished, infested or rotten timber (or any other perished, rusty, infested or rotten materials) in existing structures such as doors, constructional or other timbers, windows and frames (whether or not this presence was detected by the date when the Contract was formed in accordance with clause 3.6);
7.3.7. the Selected Services and/or Selected Materials differ from the Quotation as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
7.3.8. you don’t get your boiler services every year as per the manufacturer’s instructions; or
7.3.9. the Fees are outstanding for more than 30 days after the due date for payment.
8. Non-solicitation
8.1. In order to protect our legitimate business interests, for the duration of the Contract and for 18 months after its termination you shall not:
8.1.1. solicit or entice away from our employment or service the services of any of our employee, workers, contractors, consultants, agents or advisors (“Our Staff”);
8.1.2. attempt to do any of the actions referred to in clause 8.1.1; and
8.1.3. employ or engage or otherwise facilitate the employment or engagement of Our Staff in form of employment, agency or engagement.
8.2. If you breach clause 8.1, you shall, on demand, pay us a sum equal to one year's basic salary or the annual fee that was payable by us to Our Staff plus the recruitment costs we incur to replace the person.
8.3. You acknowledge that you have had the opportunity to obtain independent legal advice on the implications of this clause and agree to be bound by it.
9. Intellectual Property Rights
9.1. Intellectual Property Rights mean patents, utility models, rights to inventions, copyright, neighbouring and related rights, moral rights, trade marks, service marks, business and domain names, rights in get-up and trade dress, goodwill, right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
9.2. We shall own all Intellectual Property Rights in or arising out of or in connection with the Selected Services, any of deliverable related to the Selected Services and/or any other material we provide you connection with the Contract, Selected Services and the Selected Materials.
9.3. We grant you or shall procure the direct grant to you of a fully paid-up, worldwide, non-exclusive, royalty-free licence for the duration of the Contract to use the Intellectual Property Rights referred to in clause 9.2 for the sole and exclusive purpose of using the Selected Services and the Selected Materials in accordance with the Contract.
9.4. You shall not sub-license, assign or otherwise transfer the rights granted in clause 9.3.
9.5. You grant us for the duration of the Contract a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify any information or materials you provide us for the sole and exclusive purpose of supplying the Selected Services and the Selected Materials to you.
10. Fees and Payment
10.1. In consideration of the supply of the Selected Services and the Selected Materials in accordance with the Contract you shall pay us the fees set out in the Quotation (“Fees”).
10.1.1. Unless otherwise set out in a Quotation, the Fees are calculated on the basis of free access and unimpeded working during our normal working hours (8 am – 6 pm Mon – Fri, Sat 8 am – 1 pm).
10.1.2. If the Fees for the Selected Services are calculated based on an hourly rate, the Fees will take into account the time we spend to supply the Selected Services and all reasonable time spent in obtaining the resources and materials required in connection with the supply of the Selected Services.
10.1.3. We reserve the right to include in the Fees for the supply of the Selected Materials our costs with the handling of the Selected Materials.
10.2. The Fees shall be paid in accordance with the payment terms set out in the Quotation (“Payment Terms”). The Payment Terms may include part payments, interim payments and deposits.
10.3. The Fees are exclusive of amounts in respect of value added tax which may be chargeable from time to time (“VAT”). We are not currently registered with VAT, but if at any point we are, we will inform you and any applicable VAT shall be added to the invoices issued in accordance with the Payment Terms.
10.4. If you fail to make a payment when it is due under the Payment Terms, then, without limiting the statutory and contractual remedies available to us, you 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 10.4 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%.
10.5. The Fees and any other amount due under the Contract 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).
11. Insurance
11.1. We have public liability insurance and the usual insurance covers for building practice. We can provide you further information about our insurance policies upon request.
12. Confidentiality
12.1. Confidential Information means all information relating to the Contract, we and you which is made available to us or you before, on or after the date of the Contract. Information is not Confidential Information if:
12.1.1. it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by us or you in breach of the Contract;
12.1.2. it was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party;
12.1.3. it was, is, or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not under any confidentiality obligation in respect of that information;
12.1.4. it was lawfully in the possession of the receiving party before the information was disclosed by the disclosing party;
12.1.5. it is developed by or for the receiving party independently of the information disclosed by the disclosing party; or
12.1.6. the parties agree in writing that the information is not confidential.
12.2. We and you shall not disclose any Confidential Information or make any announcement to the public about the subject matter of the Contract and/or any Confidential Information without first obtaining the other party’s written approval. This doesn't apply if the disclosure of Confidential Information is required by law or by a regulatory body acting properly. In these cases, the party required to disclose Confidential Information will inform the other party about the request and will limit the disclosure to the information strictly required.
12.3. The parties shall not use any Confidential Information otherwise than for the purposes of complying with its obligations under the Contract.
12.4. We and you shall establish and maintain adequate security measures to safeguard the Confidential Information from unauthorised access or use.
12.5. The parties may disclose the Confidential Information to their officers, employees, professional advisers, consultants and contractors that need to know the Confidential Information to enable them to comply with the terms of the Contract (“Representatives”) on the basis that they:
12.5.1. inform those Representatives of the confidential nature of the Confidential Information before it is disclosed; and
12.5.2. procures that those Representatives comply with the confidentiality obligations in this clause 12 as if they were the parties.
12.6. The parties shall be liable for the actions or omissions of the Representatives in relation to the Confidential Information as if they were their actions or omissions.
12.7. The obligations set out in this clause 12 shall remain in full force and effect for 2 (two) years after the termination of the Contract.
13. Data Protection
13.1. Whenever you collect, hold and or process personal data as a result or in connection with the Products and Services, you shall collect, hold and process such personal data in compliance with the applicable laws and regulations.
14. Limitation of Liability
14.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.
14.2. Subject to clauses 14.1, 14.3 and 14.4, our total liability to you shall not exceed the Fees.
14.3. If we fail to deliver the Selected Materials, our liability shall be limited to the costs and expenses you incur in obtaining replacement Materials of similar description and quality in the cheapest market available, less the price of the Selected Materials.
14.4. Subject to clause 14.1, we shall not be liable for:
14.4.1. loss of profits;
14.4.2. loss of sales or business;
14.4.3. loss of agreements or contracts;
14.4.4. loss of anticipated savings;
14.4.5. loss of use or corruption of software, data or information;
14.4.6. loss of or damage to goodwill; and
14.4.7. indirect or consequential loss.
15. Term and Termination
15.1. The Contract shall become effective in accordance with clause 3.6. Subject to clause 15.2, the Contract shall remain in full force and effect until the date set out in the Quotation (“Term”).
15.2. We may terminate the Contract before the expiry of the Term if you send a written notice to us (“Cancellation Notice”) within the notice period set out in the Quotation (“Cancellation Period”).
15.3. Depending on when you send us the Cancellation Notice, you may be required to pay us a cancellation fee as set out in the Quotation (“Cancellation Fee”).
15.4. Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.4.1. the other party commits a material breach of any provision of the Contract and (if such a breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing to do so;
15.4.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.4.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.4.4. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
16. Consequences of Termination
16.1. On termination of the Contract:
16.1.1. you shall immediately pay us any outstanding unpaid invoices and interest;
16.1.2. in respect of the Selected Services and Selected Materials supplied but for which no invoice has been submitted, we shall immediately submit an invoice, which you shall pay with 5 days of receipt;
16.1.3. you shall return any purchased Selected Materials which has not been fully paid for.
16.2. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
17. Force Majeure
17.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from an event, circumstance or cause beyond a party's reasonable control (“Force Majeure Event”).
17.2. If Force Majeure Event occurs, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 15 days, the party not affected may terminate the Contract by giving 10 days' written notice to the affected party.
17.3. For the avoidance of doubt, the COVID-19 pandemic itself is not a Force Majeure Event. However, to the extent such measures adversely impact the performance of the parties’ obligations under the Contract, new restrictive measures implemented by the governmental authorities as a result of the development of the COVID-19 pandemic shall be Force Majeure Events.
17.4. For the avoidance of doubt weather conditions outside the average wheather conditions of the last 24 months preceding the date when the Contract is formed in accordance with clause 3.6 will be considered a Force Majeure Event.
18. Assignment and other dealings
18.1. We may at any time assign the rights and subcontract the obligations set out in the Contract to third parties.
18.2. We may only assign the rights and subcontract the obligations set out in the Contract to third parties with our approval, which shall not be unreasonably withheld.
19. Entire agreement
19.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
19.3. Nothing in this clause shall limit or exclude any liability for fraud.
20. Variation
20.1. Except as set out in these terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties.
20.2. Notwithstanding clause 20.1, we may modify these terms at any time, provided that such changes shall only apply to requests you send after the date of such modification.
21. Waiver
21.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
22. Severance
22.1. If any provision or part-provision of the Contract 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.
23. Notices
23.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered to the contact details set out in the Quotation.
24. Third party rights
24.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract
25. Governing law and Jurisdiction
25.1. The Contract, 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.
25.2. 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 the Contract or its subject matter or formation.