Terms & Conditions
In these Terms and Conditions, unless the context otherwise requires, the following words have the following meanings:
“Additional Fee” the amount agreed by the Client and H21 payable by the Client to H21 for the Additional Services in accordance with these Terms and Conditions.
“Additional Services” any additional services agreed between the parties prior to them being carried out.
“Fee” the amount payable by the Client to H21 for the Services as detailed in the Letter.
“Client” means the client detailed in the Letter.
“Contract” means the contract between H21 and the Client for the supply of Services and being the Letter, H21‘s fee quotation and these Terms and Conditions.
“H21” means H21 Safety Limited.
“Expenses” means any expenses and disbursements to be charged by H21 in accordance with clause 4 of these Terms and Conditions.
“Fee” means the Fee for the Services together with the Additional Fee (if any) and any cancellation fee in accordance with the Letter (if any).
“Insolvent” as defined in section 113 of the Housing Grants, Construction and Regeneration Act 1996;
“Letter” means the covering letter accompanying these Terms and Conditions;
“Material” means all documents, drawings and other such work prepared by or for H21 in connection with the Project and/or the Site;
“Permitted Uses” means the construction, completion, operation, maintenance and repair of the Project and/or the Site;
“Project” means the project identified in the Letter;
“Services” means the Services relating to the Project or Site to be carried out by H21 as detailed in the Letter, together with any Additional Services in accordance with these Terms and Conditions.
“Site” means the site identified in the Letter.
“Terms and Conditions” means these terms and conditions and any other documents or parts of other documents expressly referred to in them, as may be amended from time to time.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes fax and email.
These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing
- H21 will provide the Services to the Client in relation to the Project and/or the Site and H21 shall provide the Services in accordance with these Terms and Conditions. H21 shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and H21 shall notify the Client in any such event.
- The Client will:
- provide such information in its possession, or reasonably obtainable, which is necessary for the proper performance of the Services including but not limited to all documents, registers and information.
- provide all relevant staff on Site to allow inspections to be carried out.
- Provide complete and accurate information.
- Co-operate and assist H21 in all matters relating to the Services.
- Comply with any additional obligations which may be set out in the Letter.
H21 Safety Limited will not be held responsible in situations where information has been withheld or not been available during such meetings.
- If H21‘s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
- H21 shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays H21‘s performance of any of its obligations;
- H21 shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from H21‘s failure or delay to perform any of its obligations as set out in this Clause 1.3; and
- the Client shall reimburse H21 on written demand for any costs or losses sustained or incurred by H21 arising directly or indirectly from the Client Default.
- Standard of care
- H21 shall exercise reasonable skill and care in performing the Services.
- Subject to clause 2.1, H21shall carry out the Services in accordance with all applicable legislation.
- Progress and co-ordination
- H21 shall proceed regularly with the Services in accordance with any programmes or key dates agreed between the parties.
- The Fee and terms of payment
- The Client shall pay H21:
- the Fee for the Services; and
- the Additional Fee for any Additional Services.
- The Client shall reimburse H21 for any Expenses not detailed in the Letter/fee quotation (including but not limited to any expenses reasonably incurred by H21 travelling expenses, hotel costs, subsistence and any associated expenses). All other expenses and disbursements incurred by H21 are deemed to be included in the Fee. Any Expenses payable shall be included in the next invoice after they are incurred and paid by the Client in accordance with this clause 4.
- The Client shall pay H21 any VAT properly chargeable on the Services and any amount expressed as payable under the Contract is exclusive of VAT unless stated otherwise.
- The Fee shall be calculated and paid as follows:
- in instalments as set out in the Letter;
- once the Site visit has been undertaken (and documents will only be released when payment has been received);
- ongoing support and advice, which is provided for a minimum term of 12 months, shall be payable by standing order;
- Training courses are to be invoiced and paid for no less than 7 days prior to the course/training date;
- If not so set out in the letter, the Fee shall be paid at intervals of not less than one month, beginning one month after H21 begins performing the Services.
- H21 shall submit an invoice to the Client for the Fee or part thereof in accordance with the Letter.
- Payment shall be due on the date the invoice is received by the Client (and the provisions of clause 14 shall apply) (the “Due Date for Payment”).
- No later than five days after the Due Date for Payment, the Client shall notify H21 of the sum that it considers to have been due in respect of the payment and the basis on which that sum is calculated.
- If the Client fails to serve a notice in accordance with clause 4.7 then, subject to the Client serving a Pay Less Notice, the amount to be paid by the Client shall be the amount stated in H21’s invoice for the instalment.
- The final date for payment (the “Final Date for Payment”) for an instalment of the Fee shall be 21 days from the Due Date for Payment for the instalment.
- If the Client intends to pay less than the sum stated as due in the notice under clause 4.8 or H21’s invoice under clause 4.6, as the case may be, the Client shall not later than five days before the Final Date for Payment give H21 notice of that intention (a “Pay Less Notice”) stating:
- the sum that the Client considers to be due to H21 at the date the Pay Less Notice is given; and
- the basis on which that sum has been calculated.
- The Client shall pay H21:
If the Client serves a Pay Less Notice in accordance with this clause 4.10 the obligation to pay the notified sum in clause 4.7 (or clause 4.8 as the case may be) applies only in respect of the sum specified in that Pay Less Notice.
- If the Client fails to pay an amount due by the Final Date for Payment and fails to give a Pay Less Notice under clause 4.10, then the Client shall pay interest on the overdue amount at the rate of 5% per annum above Bank of England’s base rate and the parties acknowledge that the Client’s liability under this clause 4.11 is a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.
- The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). H21 may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by H21 to the Client.
The Client shall not be entitled to assign the benefit of and rights under the Contract.
- Confidentiality and Copyright
- Neither the Client nor H21 shall at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs , except as permitted by clause 6.2.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and
- as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.
- Neither the Client nor H21 shall use any other party’s confidential information for any purpose other than to exercise their rights or perform their respective obligations under or in connection with the Contract.
- H21 owns all intellectual property rights (including copyright) relating to the Material it produces.
- H21 grants to the Client, subject to payment of all Fees and Expenses, an irrevocable, non-exclusive, non-terminable, royalty-free licence to copy and make full use of any Material prepared by, or on behalf of H21 for the Permitted Uses.
- H21 shall not be liable for use of the Material for any purpose other than that for which it was prepared and/or provided.
- The Client may request a copy or copies of (some or all of) the Material from H21, and, subject to the Client’s payment of H21’s reasonable charge, H21 shall provide the
- Without limiting its other rights or remedies, H21 may terminate the Contract with immediate effect at any time and for any reason by giving the Client written notice and the Client shall pay H21 fair and reasonable compensation for work-in-progress at the time of termination.
- The Client may terminate the Contract upon giving H21 28 days’ written notice.
- The Contract may be terminated immediately by notice from either party, if:
- the other party is Insolvent; or
- the other party is in material breach of the Contract.
- On termination the Client shall pay to H21 any outstanding Fees and Expenses and interest due at the date of termination.
- Where the Services are suspended by either party and not resumed within 3 months, the other party shall have the right to treat the performance of the Services as terminated on giving the other party seven days’ written notice in accordance with this clause.
- Any notice or other communication given to a party under or in connection with these Terms and Conditions shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
- Any notice or communication shall be deemed to have been received on signature of a delivery receipt.
- This clause 8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Headings to clauses are for convenience only and do not affect the interpretation of these Terms and Conditions.
These Terms and Conditions and the Letter and all matters relating thereto shall be governed by and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English courts.
- Scope of Contract
- This Contract shall constitute the entire agreement between the parties in respect of the Project and/or Site and supersedes and extinguishes all previous appointments, agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.
- No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- The Contract takes effect from the date when H21 first commenced performance of the Services, regardless of the date of the Letter.
- Each party acknowledges that in entering into this 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 this Contract.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Nothing in this clause 11 shall limit or exclude any liability for fraud.
- H21 shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for loss of profits and consequential losses.
- Notwithstanding any other provision in this agreement, H21’s total liability under this Contract shall be limited to the value of the Services.
- H21 shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Unless otherwise agreed, these Terms and Conditions apply to any other future instructions the Client gives to H21.
- Either party may refer a dispute to adjudication in accordance with this clause.
- The referring party shall request the Technology and Construction Solicitors’ Association to nominate an adjudicator.
- The provisions of Part I of the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No. 649) as amended by the Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011 (SI 2011 No. 2333) shall apply subject to the provisions of this clause.
- Third party rights
No person may enforce any of these Terms and Conditions and/or the provisions set out in the Letter by virtue of the Contracts (Rights of Third Parties) Act 1999.
Where applicable, the supply of the Services by H21 to the Client shall commence and expire in accordance with the service period set out in the Letter, subject to clause 8.
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