Terms & Conditions of ACW Environmental Services Ltd

1. Parties, Definitions and Interpretation

In these terms and conditions (which are referred to in this document as “these terms”), “Customer” means the customer for whom the Works are to be carried out by ACW “ACW” means ACW Environmental Services Limited.

“Contract” means the agreement between the Customer and ACW to carry out the Works of which these terms form a part and (where these terms are a schedule to a signed agreement between the Customer and ACW (“the Agreement”)) the Agreement, “Works” means the works described in ACW quotation and/or as referred to in ACW’s Work Detail Sheet or any other document or email issued by ACW as may be varied by agreement in writing between the parties. For the purposes of these terms, “in writing” includes by email and any document which is set out in a hand-held device and any signature on a hand-held screen shall be treated as in writing. In these terms’ words importing the masculine gender also include the neuter and the feminine gender and words importing the singular number include also the plural number, where he context so requires.

2. General

2.1 The Customer will be treated as an Account Customer or a Non-Account Customer, according to ACW’s reasonable discretion.

2.2 All quotations given by ACW, all orders and instructions given by the Customer, and all work authorisations, are governed by these terms. They supersede any other terms appearing elsewhere and override and exclude any other terms stipulated or incorporated or referred to by the Customer, whether in the order or instructions or in any negotiations or in any course of dealing established between ACW and the Customer, except where these terms are a schedule to a signed Agreement between the Customer and ACW, in which event these terms apply only to the extent not inconsistent with that Agreement.

2.3 The Customer acknowledges that ACW has not made any representations (other than any expressly stated in the Contract and/or in ACW’s quotation) which have induced it to enter into the Contract and the Contract shall constitute the entire understanding between the Customer and ACW for the performance of the Works (and detailed in paragraph 4 below).

2.4 No modification to the Contract shall be effective unless made by an express written agreement or email exchange between the parties. The signing on behalf of ACW of any documentation of the Customer shall not imply any modification of the Contract. Nothing in this Contract is intended to confer on any person any right to enforce any term which that person would not have but for The Contracts (Rights of Third Parties) Act 1999. Accordingly, a person who is not a party to this Contract shall have no rights under that Act to enforce any of its terms, but this does not affect any right or remedy of such person which exists or is available apart from that Act.

3. The Price, Estimates and Variations

3.1 Unless ACW provides the Customer with an estimate which is accepted by the Customer in accordance with its terms, all Works will be charged on the basis of ACW’s standard Rate Card applicable at the time the works are carried out.

3.2 Any estimate by ACW is subject to withdrawal by ACW at any time before receipt of an unqualified acceptance from the Customer and shall be deemed to be withdrawn unless so accepted within 28 days from its date.

3.3 Where ACW provides the Customer with an estimate which is accepted by the Customer in accordance with its terms, that estimate is a firm, fixed price quotation unless otherwise specified by ACW in the estimate and also except as follows:

3.3.1 an estimate is based on the information made available to ACW by the Customer. If during the conduct of the Works it becomes apparent to ACW that information was either incorrect or insufficient in any respect that ACW considers to be material, ACW reserves the right to inform the Customer and to increase the estimated price to take account of the revised information, and

3.3.2 if prior to carrying out the Works, there is an increase to ACW of more than 10% in the cost of any relevant materials, equipment hires or transport since the date upon which ACW’s estimate, written, emailed or oral, was provided, ACW reserves the right to inform the Customer and to provide a revised estimate incorporating that increase. In this event, the revised estimate will apply unless the Customer cancels the Contract before the Works are begun or, if earlier, within 48 hours of the revised estimate being provided.

3.4 For materials that are not carried as part of ACW’s standard van stock, unless it is with respect to Works for which there is an estimate which includes all collection fees, ACW charges a fixed materials collection fee of £50 plus VAT. Where an item is not easily sourced or generally held by the major suppliers used by ACW and it considers that significant time will need to be spent tracing and then collecting it, ACW will inform the Customer in advance and, unless the Customer sources the item itself, this will be charged on a time basis as per ACW’s standard Rate Card. It should be noted that this is an infrequent occurrence.

3.5 ACW’s standard Rate Card is available for inspection both on ACW’s website (www.acwenvironmentalservices.co.uk) and at ACW’s premises during normal business hours. The Rate Card specifies hourly rates. There is a minimum charge of one hour. Subject to that, charges are made by the half hour, rounded up to the next half hour.

4. The Works

All descriptions, illustrations etc. contained in any catalogues, price lists or advertisements, or otherwise communicated to the Customer, are intended merely to present a general idea of the Works and nothing contained in any of them shall form a part of the Contract.

5. The Price

5.1 The price payable by the Customer is calculated as specified in paragraph 3 above. Unless otherwise stated, the price and all estimates provided by ACW are shown exclusive of Value Added Tax which will be payable in addition where properly chargeable.

5.2 If the Works involve a diagnostic process to ascertain the cause or source of a fault or breakdown and during that process an item is ascertained by ACW to be faulty and is replaced, the Customer will be liable to pay for that replacement even if the breakdown was caused in whole or in part by a different fault.

6. Payment

6.1 Non-Account Customers: Payment by the Customer is due on completion of the Works. Payment must be made on such completion. Domestic clients and clients with bad credit rating will be billed up front for whatever we deem necessary for prepayment. PARKING / ULEZ /CONGESTION may be added. A prepayment proforma invoice is usually raised before booking and is sent for payment. Payment can be made simply by BACS transfer. If subsequent time is incurred on site over the specified time, then “you” the customer are liable to pay after the job has ended.

6.2 Account Customers: ACW will seek to submit invoices to the Customer within 14 days of completion of the Works and, subject to paragraph 8 below, payment must be made by the Customer within 30 days after the date of issue of the invoice.

6.3 Snagging: Where the Works have been completed subject to snagging, 95% of all amounts outstanding must be paid on such completion and the Customer must provide access to ACW without delay to enable the snagging to be finalised. The balance of 5% will become payable upon the finalisation of the snagging or, if access has not been made available to carry out the snagging within 14 days of completion, at the expiry of such 14-day period.

6.4 Where the Customer is represented by a third party (such as a managing agent, tenant or other occupier, contractor or other representative), in the event of non-payment by the Customer, the third party will be responsible for payment unless ACW has agreed otherwise in writing.

6.5 In the case of consumer Customers, ACW shall be entitled to interest on a daily basis on any amount not paid on the due date for payment from such due date until payment in full at 5% above the Bank of England base rate at the relevant time together with such charges as may be incurred by any collection agent appointed by ACW (with a minimum of £50 plus VAT in the case of amounts below £1,000 and a minimum of £100 plus VAT in the case of amounts of £1,000 or more). In the case of commercial Customers, ACW will apply all relevant interest and charges as applicable under the Late Payment of Commercial Debts (Interest) Act 2013 as amended and supplemented from time to time by Government legislation or regulation.

6.6 ACW shall not be required to issue or deliver any certificates, guarantees or other similar documents regarding the Works until payment has been made in full.

6.7 Title in all parts and other goods supplied by ACW shall not pass to the Customer until payment for the Works has been made in full.

7. Commencement and Completion Dates

Dates specified for the commencement and completion of the Works are estimates only. ACW shall use all reasonable endeavours to ensure that it will attend on the date and time agreed. However, it accepts no liability in respect of nonattendance or late attendance on site or for the late or non-delivery of materials. Time shall not be of the essence of the Contract except as provided in paragraph 16 below.

8. Inspection of Works

The Customer shall inspect the Works as far as it is reasonably possible to do so immediately upon their completion (though failure to countersign the relevant Works Detail Sheet shall not imply rejection of the Works) and if it considers that the Works or any part thereof are not in accordance with the Contract, it shall within 7 days from the date of inspection give detailed notice in writing thereof. In the absence of any such notice, the Works shall be conclusively presumed to be complete and free from any defect which would be apparent on reasonable examination.

9. Indemnity

The Customer shall indemnify ACW against all actions, suits, claims, demands, losses, charges, costs and expenses which ACW may suffer or incur in connection with a claim by any third party resulting from a breach of the Customer’s obligations, undertakings, representations and warranties in connection with this Contract.

10. Whole agreement and Exclusion of liability

These terms set out ACW’s entire liability in respect of the Works and ACW’s liability under them shall be in lieu and to the exclusion of all other warranties, conditions, terms and liabilities, expressed or implied, in respect of the Works and the quality thereof.

11. Limitation of Liability, and Liability of ACW

ACW’s liability shall be limited to:

11.1 the repair or making good of any defect pursuant to its undertaking in paragraph 13 below and subject always to paragraph 8 above;

11.2 liability for death or personal injury resulting from negligence in the course of carrying out ACW’s duties, and

11.3 the reasonable costs of repair or reinstatement of any loss or damage to the Customer’s property if such loss or damage results from ACW’s negligence or that of its employees, agents or sub-contractors and the Customer incurs such costs. ACW will not be responsible for damage suffered to a part of the Customer’s property (whether or not ACW is working on that part) where that damage is in whole or in part a consequence of a defect or weakness in that part of the property.

12. Permits, Licences, other Consents and Access

It is the responsibility of the Customer to obtain all permits, licences and other consents in connection with the Works unless ACW agrees otherwise in writing. The Customer shall provide clear access to enable ACW to undertake the Works and will make all necessary arrangements with the proper persons or authorities for any traffic controls and signals required in connection with the carrying out of the Works. The Customer will at all times provide a safe working environment for ACW and its employees, agents and sub-contractors for the purposes of carrying out the Works. Where applicable to drainage works, the Customer will provide, if possible, a plan showing drain layout. If this is not available, ACW reserves the right to render additional charges at the relevant applicable rate in accordance with paragraph 3.2 above if blockages occur in drains not covered by the specifications or if it is necessary to trace unidentified drains to complete the Works. The Customer must obtain any permission for ACW to proceed over property belonging to third parties if this is necessary for the proper execution of the Works and shall obtain any permission necessary to carry out work on property belonging to third parties. The Customer shall indemnify ACW against all claims of whatsoever nature made by third parties arising out of the presence of ACW its employees, agents or sub-contractors on the Customer’s property save where such claim results directly from negligence on ACW’s part. The Customer shall be liable to ACW for all loss or damage whether direct, indirect or consequential which is suffered by ACW as a result of failure or delay by the Customer in performing the obligations referred to above.

13. Defects

Subject to paragraph 8 above and the exclusions listed below, ACW undertakes to repair or make good any defect in completed work which appears within six months of completion of the same to the extent that such defect arises from a breach of ACW’s obligations under this Contract and provided that details of the defect are notified by the Customer to ACW in writing within such period and that ACW and its insurers are given the opportunity of inspecting the work and the alleged defect. This undertaking shall only apply to work carried out and completed and invoiced by ACW and which is paid for by the Customer by the due date for payment ascertained in accordance with paragraph 6 above. If ACW returns to the site at the Customer’s request to review a claim under this undertaking and it transpires that the defect had not arisen as a result of a breach of this Contract on the part of ACW ENVIRONMENTAL SERVICES LTD. ACW reserves the right to charge the Customer for the visit at its standard rate as per paragraph 3 above. ACW reserves the right not to carry out any work under this paragraph 13 where the Customer cannot evidence that the work was originally carried out and completed by ACW or where payment has not been made in full for such work. Exclusions are:

• Parts and materials will be provided only with the benefit of the manufacturer’s / supplier’s guarantee, and are not guaranteed by ACW.
• Systems or structures not installed by ACW.
• Any recall arising from circumstances or factors known to the Customer but not notified or disclosed to ACW prior to the work having been undertaken.
• Defects resulting from misuse, wilful act, or faulty workmanship by the Customer or anyone working for or under the direction of the Customer (other than ACW ENVIRONMENTAL SERVICES LTD).
• Structural defects encompassing but not limited to subsidence and its resultant effect.
• Damage to drainage systems caused by root penetration or any other outside force.
• Any roofing work where ACW advises that the overall condition of the roof is poor and is in need of more extensive work and the work to be undertaken involves less than 20% of the area of the roof.
• Any work to repair an existing lock, or to fit any lock not supplied by ACW ENVIRONMENTAL SERVICES LTD.

14. Force Majeure

ACW will use all reasonable endeavours to carry out the Works on the agreed dates but shall not be under any liability to the Customer if it should be either impossible or impracticable to carry out the Works on the agreed dates or at all, by reason of strike, lock out, industrial dispute, act of God or any other event or occurrence beyond ACW’s control.

15. Customer’s Liability

The Customer shall be liable for:

• Any loss, damage or injury, whether direct or indirect or consequential, resulting from failure or delay in the performance of the Customer’s obligations under these terms.
• Providing all necessary power and a clean water supply for ACW’s use in the execution of the contracted works.
• The safety of both plant and machinery belonging to or hired in by ACW or its employees, agents or
• sub-contractors and shall indemnify ACW against its loss, theft or damage.

16. Cancellation

16.1 If the Customer cancels the Contract without ACW’s agreement other than pursuant to paragraph 3.3 above, subject to paragraph 16.3 below, the Customer shall indemnify ACW against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing, and for the avoidance of doubt any such cancellation is without prejudice to ACW’s right to payment in accordance with paragraph 6 above or to the cancellation charges pursuant to paragraph 16.4 below.

16.2 If the Customer wishes to cancel an appointment for a visit by ACW ENVIRONMENTAL SERVICES LTD, the Customer will incur a cancellation fee of £50 (plus VAT) if the cancellation is made less than 24 hours (but more than 2 hours) before the time scheduled for the appointment and of £100 0 (plus VAT) if the cancellation is made 2 hours or less before the scheduled appointment time.

16.3 With respect to planned non-emergency Works for which ACW has provided an estimate which has been accepted by the Customer, the Customer may, at any time during a cooling off period of 14 days following the day of its acceptance, by written notice to ACW cancel the Works without any charge or penalty, subject to the cancellation charges referred to in paragraph 16.4 below and to the Works not having already commenced (with the agreement of the Customer).

16.4 When the Customer cancels Works, unless the cancellation is pursuant to paragraph 3.3 above, the Customer will be liable for (i) as a contribution to the bank and credit card charges incurred by ACW, 5% of any amount already paid to ACW and which is to be refunded by ACW, and (ii) as a contribution to the administration, demobilisation and other costs incurred by ACW, a charge of £50 (plus VAT) except that if greater, the charge is 5% of the estimate price if the cancellation is made less than 14 days prior to the specified commencement date for the Works, 10% of the estimate price if the cancellation is made less than 7 days prior to the said specified commencement date and 20% of the estimate price if the cancellation is made less than 2 days prior to the said specified commencement date.

17. Removal of Waste Materials

Unless agreed in writing between the parties, the Customer will be responsible for the removal from site of all waste materials resulting from the Works.

18. Frozen Pipes

ACW will not be liable for any fracture found in frozen pipes attended by ACW ENVIRONMENTAL SERVICES LTD. ACW will not guarantee to clear blockages occurring in a frozen pipe or drain.

19. Waiver, Variation etc.

No waiver by ACW of any breach by the Customer shall operate as a waiver of any preceding or subsequent breach by the Customer. No variation shall be effective against ACW unless sanctioned in writing by ACW ENVIRONMENTAL SERVICES LTD. No forbearance or delay on ACW’s part shall prejudice ACW’s rights and remedies under this Contract.