TERMS & CONDITIONS
Wheelscape Ltd Terms and Conditions for Design and Build Projects
Please note that these terms headed “Wheelscape Ltd Terms and Conditions for Design and Build Projects” apply to all works projects and any products ordered from Wheelscape Ltd for installation projects.
1. Definitions
CDM Regulations means the Construction (Design and Management) Regulations 2015.
Customer means the person to whom the Quotation is addressed.
Commencement Date means the date agreed in writing by Wheelscape Ltd for commencement of the Works, as adjusted in accordance with the Contract.
Conditions means these terms and conditions.
Contract means the agreement between Wheelscape Ltd and Customer for the carrying out and completion of the Works by Wheelscape Ltd for the Customer as set out in the Quotation, the Conditions and the Order Acknowledgement.
Defects
(i) Any part of the Works which is not in accordance with the Contract or any applicable law; or
(ii) Any part of the Works, the design of which is the responsibility of Wheelscape Ltd, that has not been prepared with the reasonable skill and care to be expected of a suitably qualified designer experienced in the design of works similar in scale and character to the Works or the relevant part of the Works; or
(iii) Any part of the Works which is not in accordance with the Working Drawings.
Materials means any materials or goods supplied by Wheelscape Ltd for incorporation in the Works.
Order Acknowledgement means the letter or email from Wheelscape Ltd to the Customer confirming receipt of the Customer’s acceptance of the Quotation.
Wheelscape Ltd means Wheelscape Ltd a company registered in England and Wales with company number 13711654 and whose registered office is at Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX.
Price means the sum stated in the Quotation as the sum to be paid by the Customer to Wheelscape Ltd, as adjusted in accordance with the Contract.
Quotation means the quotation document provided by Wheelscape Ltd to the Customer for the Works to which the Conditions apply.
Site means the site where the Works are to be carried out as referred to in the Order Acknowledgment.
Working Drawings means the drawings, calculations, specification sheets and other documentation, including updates and revisions, that are agreed between the parties, to enable the Works to be performed.
Works means the design (where so agreed in writing) and construction of the works to be carried out by Wheelscape Ltd as specified in the Quotation.
2. Primary Obligation
2.1 Wheelscape Ltd shall, upon and subject to the terms of the Contract, carry out and complete the Works within a reasonable time and be paid the Price (as adjusted pursuant to these Conditions), together with any VAT payable thereon at the rate prevailing at the time of invoice, which shall be payable in accordance with these Conditions.
3. Offer and Acceptance
3.1 Unless expressly withdrawn, the Quotation is open for acceptance for 30 days from its date.
3.2 In the event of a conflict or inconsistency between the Contract documents, the order or priority shall be:
3.2.1 The Conditions;
3.2.2 The Order Acknowledgement;
3.2.3 The Quotation; and
3.2.4 Any other documents or information supplied by the Customer.
3.3 The Customer’s acceptance of Wheelscape Ltd quotation constitutes an offer by
Wheelscape Ltd to the Customer. The Customer’s acceptance of that Quotation will only be deemed to be accepted when Wheelscape Ltd issues an Order Acknowledgement to the Customer in respect of that Quotation or, if such offer has not otherwise already been accepted, and the Customer invites Wheelscape Ltd to commence the Works, Wheelscape Ltd commencing the Works shall constitute acceptance of the Quotation.
3.4 The Contract shall come into existence when the Customer’s acceptance of Wheelscape Ltd Quotation is accepted by Wheelscape Ltd in accordance with clause 3.3 above.
4. Performance
4.1 Wheelscape Ltd shall carry out the Works using reasonable skill and care.
4.2 Where Wheelscape Ltd is responsible for design, Wheelscape Ltd shall use the reasonable skill and care to carry out that design.
4.3 Where Wheelscape Ltd is not responsible for design the Customer shall supply to Wheelscape Ltd such number of copies as Wheelscape Ltd may reasonably require of the Working Drawings and of such other details or information necessary for the performance of the Works.
4.4 The Customer will provide general attendance free of charge to enable Wheelscape Ltd to carry out and complete the Works in accordance with the Contract. General attendance shall be deemed to include unrestricted access to the Site during the hours of 7am to 6pm on normal working days, the provision of lighting and clean water supplies, distribution boards for lighting and power, security, space for the storage of plant and materials and the use of mess rooms, sanitary accommodation and welfare facilities.
4.5 Wheelscape Ltd shall be permitted to carry out the Works to its programme allowing continuity of work in a proper sequential manner.
4.6 Each Party acknowledges that he is aware of and undertakes to the other that in relation to the Works and Site he will duly comply with the CDM Regulations.
4.6.1 If, by the final date for payment in respect of any invoice submitted by Wheelscape Ltd, the Customer fails to pay the full amount stated in any invoice after deducting the amount referred to in Pay Less Notice served in accordance with clause 12.8, Wheelscape Ltd may suspend the performance of all or any of its obligations under this Contract. Such right is subject to Wheelscape Ltd first giving the Customer at least 24 hours notice in writing of such intention and stating the grounds for suspension by reference to the invoice concerned and the amount which Wheelscape Ltd states is due. The right to suspend performance of the obligations shall cease on payment of the amount due to Wheelscape Ltd. Any period of suspension shall be disregarded for the purposes of contractual time limits (if any) and the Customer shall pay Wheelscape Ltd a reasonable amount in respect of costs and expenses reasonably incurred by Wheelscape Ltd as a result of the exercise of this clause. Such amount may be claimed in any subsequent invoice for payment issued by Wheelscape Ltd.
4.7 The Customer may cancel the Works at any time before the Commencement Date. If the Customer cancels the Works, its liability to Wheelscape Ltd arising from the cancellation shall be calculated as follows: Cancelation more than 4 weeks prior to the Commencement Date: 25% of the Price; Cancelation 3 – 4 weeks prior to the Commencement Date: 50% of the Price; Cancelation less than 3 weeks prior to the Commencement Date: 100% of the Price.
5. Statutory Obligations
5.1 Unless otherwise agreed, the Customer at its cost shall make all necessary statutory applications, give all notices and pay all fees required by law or by any government organisation (of any tier), including planning permission, building regulation approval and listed building consent as the same may be modified and amended from time to time and which are necessary for the carrying out and completion of the Works. Wheelscape Ltd shall have no liability and/or responsibility in this respect and neither shall it have any liability and/or responsibility for determining and/or advising the Customer on whether there is any requirement or otherwise to make any such statutory applications and/or to give any such notices as referred to in this clause, including planning permission, building regulation approval and listed building consent.
6. Date for Commencement and Delay to Commencement
6.1 Subject to the Customer complying with any pre-commencement activities including, without limitation, obtaining any relevant consents or permissions, Wheelscape Ltd shall commence the Works on the Commencement Date and shall carry out and complete the Works within a reasonable time.
6.2 Where a delay to the Commencement Date or the Works arises for reasons beyond Wheelscape Ltd control (including, without limitation a variation pursuant to clause 10 or delay due to making and/or determining statutory applications and/or giving notices in relation to the Works) Wheelscape Ltd shall be entitled to an adjustment in the Price to reflect its reasonable additional costs incurred as a consequence thereof.
6.3 Wheelscape Ltd shall have no financial liability for late completion of the Works.
7. Exclusions from the Works
Wheelscape Ltd shall have no liability, whether in tort (including for negligence or breach of statutory duty), contract, breach of statutory duty, misrepresentation or otherwise to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any damage to underground services on the Site save where Wheelscape Ltd has been advised by the Customer prior to the date of the Contract in writing of the location of underground services on the Site by reference to a detailed plan.
8. Property and Risk
8.1 The risk of loss or deterioration of or damage to the Materials provided by Wheelscape Ltd will be borne by the Customer after 30 days from delivery of the Materials to the Customer save as regards any defect not apparent on reasonable inspection of the Materials at the time of delivery.
8.2 The property in the Materials will not pass to the Customer until the Customer has paid in full all of the sums due and payable to Wheelscape Ltd in accordance with the Contract and until that time the Customer agrees to keep the Materials separate from other goods and materials in such a way as to indicate clearly that they remain Wheelscape Ltd property and in the condition in which they were delivered or installed by Wheelscape Ltd.
8.3 Following delivery, the Customer shall take all reasonable steps to protect and preserve the Materials in the condition in which they were in upon delivery.
8.4 Except as required, or agreed by Wheelscape Ltd, after property in the Materials has passed to the Customer under this clause 8, the Customer will not in any circumstances return any of the Materials to Wheelscape Ltd and the Customer will not be entitled to a refund in respect of those Materials. Where Wheelscape Ltd agrees to the return of any Materials and the property in any such Materials has passed to the Customer, such Materials will nevertheless remain the Customer’s property and at the Customer’s risk unless Wheelscape Ltd has agreed otherwise in writing before their return.
9. Instructions
Wheelscape Ltd shall use reasonable endeavours to comply with any instruction and any decision of the Customer issued or made under or pursuant to this Contract in relation to the Works (provided that such instruction or decision shall not change the Works to any material extent) and any such instruction or decision shall have effect except to the extent that it is varied by the Customer or under the dispute resolution procedures under this Contract provided always that such Customer instructions or decisions may only be given by a duly authorised representative of the Customer or a person holding them self out to be a duly authorised representative of the Customer. Wheelscape Ltd shall be entitled to payment of its reasonable additional costs incurred as a consequence of such instruction or decision.
10. Variations
10.1 The Contract is a fixed price lump sum contract.
10.2 The Customer may not make any variation or addition to or omission from the Works or change the Commencement Date without Wheelscape Ltd’s consent, which will not be unreasonably withheld. Wheelscape Ltd shall notify the Customer of any amendments to the Price as a result of such change.
10.3 The following events shall be deemed variations to the Works:
10.3.1 Any changes to the Works instructed by the Customer and agreed by Wheelscape Ltd under clause 10.2 above;
10.3.2 All adverse ground conditions which were not reasonably apparent on inspection of the Works prior to the date of the Quotation including but not limited to rock, running sand, unstable ground, excessive water, poor drainage;
10.3.3 Any changes to the ground conditions occurring after the date of Quotation;
10.3.4 The discovery of any service such as gas, electricity, drainage, etc., save where the Customer has advised Wheelscape Ltd of the presence of such service in writing before the date of the Quotation;
10.3.5 Any changes to the access to the Site;
10.3.6 Any other unforeseen circumstances affecting the Works.
10.3.7 Any delay and/or change to the Works which is caused by
10.3.7.1 any inadequate, ambiguous or incorrect information, instructions, designs or specifications that are provided by the Customer;
10.3.7.2 any adverse weather on Site; and
10.3.7.3 a breach by the Customer of its obligations pursuant to clause 19 of these Conditions.
10.4 In the event of a variation under clause 10.3 arising Wheelscape Ltd shall be entitled to an adjustment in the Price to reflect payment of its reasonable additional costs incurred as a consequence thereof and Wheelscape Ltd shall be provided with additional time to complete the Works.
10.5 The amount to be paid or allowed therefore shall be such fair and reasonable sum as shall be determined by Wheelscape Ltd, having regard to the Price.
11. Defects
11.1 The Customer shall allow Wheelscape Ltd a reasonable opportunity to rectify any Defects arising in connection with the Works. 11.2 Wheelscape Ltd obligations under this clause 11 and in relation to Defects generally do not apply to:
11.2.1 Natural wear and tear of parts meaning any natural consequences or behaviour of the Materials;
11.2.2 Failures due to improper use, non-compliance with the Maintenance Schedule and extreme environmental conditions (climate, humidity, chemicals);
11.2.3 Damage due to use, contrary to the intended use;
11.2.4 Materials supplied by the Customer;
11.2.5 Damage reasonably believed to be cause by vandalism;
11.2.6 UV degradation or discolouration.
11.3 The Customer acknowledges that any natural materials and resources used in the Works may carry natural imperfections such as surface cracks, shakes, knots and holes (“Natural Imperfection”). Any such Natural Imperfections existing in the Works or fair wear and tear, shall not amount to a breach of the terms of the Contract and the Customer shall not be entitled to claim against Wheelscape Ltd in respect of that.
12. Payment
12.1 Unless stated otherwise elsewhere in the Contract, Wheelscape Ltd shall following deemed receipt of the Order Acknowledgement require the Customer to pay a deposit of up to 50% of the value of the Contract.
12.2 Subject to clause 12.1, the Price shall be paid in intervals set by Wheelscape Ltd as they see fit.
12.3 Wheelscape Ltd shall submit to the Customer an invoice for each instalment of the Price specifying the sum that Wheelscape Ltd considers will become due on the payment due date and the basis on which that sum is calculated.
12.4 Payment shall be due on the date the Customer receives each invoice.
12.5 The final date for payment shall be 7 days after the date on which the invoice is dated
12.6 No later than five days after the invoice date, the Customer shall notify Wheelscape Ltd of the sum that the Customer considers to have been due at the payment due date and the basis on which that sum is calculated (the Payment Notice).
12.7 Unless the Customer has served a notice under clause 12.8, it shall pay Wheelscape Ltd the sum referred to in the Payment Notice (or if the Customer has not served a Payment Notice, the sum referred to in the invoice) (the ‘Notified Sum’) on or before the final date for payment.
12.8 Not less than five days before the final date for payment the Customer may give to Wheelscape Ltd a notice that it intends to pay less than the notified sum (a Pay Less Notice). Any Pay Less Notice shall specify the sum that the Customer considers to be due on the date the notice is served and the basis on which that sum is calculated.
12.9 If the Customer fails to pay any sum due to Wheelscape Ltd within the time specified herein the Customer shall pay to Wheelscape Ltd, in addition to the sum due, interest thereon calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
13. Guarantees
13.1 Forthwith upon the completion of the Works Wheelscape Ltd shall furnish to the Customer guarantee/s for the completed Works as advised in the Order Acknowledgement provided that all payments due under clause 12 have been paid to Wheelscape Ltd.
13.2 The liability of Wheelscape Ltd under the said guarantee/s shall cease in accordance with the period stipulated on the said guarantee/s, from the date of completion of the Works.
Concrete Skate Parks are guaranteed for 20 years from the date of installation. For terms and conditions please contact us.
14. Third Parties
Save as otherwise specifically agreed in writing between Wheelscape Ltd and the Customer, no warranty is given to any third party. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15. Termination
15.1 Wheelscape Ltd may terminate the Contract immediately upon receipt by the Customer of a written notice to the Customer at its registered office or last known address or abode, if the Customer has::
15.1.1 become bankrupt or insolvent or compound with creditors, or a resolution be passed or proceedings be commenced for the liquidation of the Customer; or
15.1.2 suspended the Works for a continuous period or combined periods of 3 months or more; or
15.1.3 failed or refused to allow Wheelscape Ltd to commence the Works within the period of 3 months from the date of the Contract’;
15.1.4 breached its obligations under this Contract.
15.2 On termination pursuant to clause 15.1, the Customer shall indemnify Wheelscape Ltd in respect of:
15.2.1 all sums that are due to Wheelscape Ltd pursuant to this Contract but have not yet been paid;
15.2.2 all works carried out by Wheelscape Ltd prior to the termination date in accordance with the Contract (including, without limitation, demobilisation costs) which had not yet been invoiced;
15.2.3 all direct and indirect costs, expenses, and losses that Wheelscape Ltd incurs as a result of the termination. Wheelscape Ltd shall submit an invoice for the payment of these sums in accordance with clause 12 of these Conditions.
15.3 Termination pursuant to this clause 15 shall be without prejudice to any other rights or remedies either party might have under or arising in connection with this Contract.
16. Entire Agreement Clause
16.1 The Contract constitutes the entire agreement between the parties and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties. Each party acknowledges that, in entering into this Contract, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Contract or not) other than as expressly set out in this Contract.
16.2 The Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
16.3 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
16.4 If any provision of this Contract is held to be void or unenforceable, the enforceability of the other provisions shall not be affected.
16.5 No amendment to the terms of this Contract shall be effective and binding unless it is recorded in writing and signed by both parties.
16.6 All intellectual property rights, registered or unregistered, including but not limited to patents, trademarks, design rights and know-how remain the property of Wheelscape Ltd and cannot be used by the Customer without Wheelscape Ltd prior written permission.
16.7 Any notices to be given by either party to the other may be served by email, personal service or post to the address of the other party given in the Contract or such other address as such party may from time to time have communicated to the other in writing, or that party’s last known registered office, place of business or address. If sent by email or delivered personally, notice is deemed to have been received on the same day it was sent or delivered. If sent by post it shall deemed to have been served on the second day after the posting.
17. Disputes
17.1 The adjudication provisions of the Scheme for Construction Contracts (England and Wales) Regulations 1998 shall apply to the Contract. 17.2 Save as above, any dispute arising under the Contract shall be determined by litigation and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.
18. Limitation of liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
18.1 Nothing in this Contract shall limit or exclude Wheelscape Ltd liability for:
18.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
18.1.2 fraud or fraudulent misrepresentation; or
18.2 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
18.3 Subject to clause 18.1:
18.3.1 Wheelscape Ltd shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss
of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill or any indirect or consequential loss; and 1
8.3.2 Wheelscape Ltd total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Works that the event giving rise to liability relates to.
18.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
19. Customer’s Obligations
19.1 The Customer shall:
19.1.1 ensure that any applicable specification or information it provides to Wheelscape Ltd meet its requirements and are complete and accurate;
19.1.2 co-operate with Wheelscape Ltd in all matters relating to the Works;
19.1.3 provide Wheelscape Ltd, its employees, agents, consultants and subcontractors, with access to the Site (including keys, if required) and other facilities as reasonably required by Wheelscape Ltd;
19.1.4 provide Wheelscape Ltd with such information and materials as Wheelscape Ltd may reasonably require in order to supply the Works, and ensure that such information is accurate in all material respects;
19.1.5 prepare the Site for the supply of the Works in accordance with the requirements of Wheelscape Ltd; 19.1.6 provide Wheelscape Ltd with all relevant information on the nature of the Site including, without limitation, the location of any gas, water, electricity, internet or waste services within the Site;
19.1.7 ensure that any preparatory work carried out in accordance with this clause 19.1 is of a sufficient quality to enable Wheelscape Ltd to carry out the Works;
19.1.8 obtain and maintain all necessary licences, permissions and consents (including, where relevant, planning permission, building regulations approval and listed building consent) which may be required before the date on which the Works are to start. For the avoidance of doubt, Wheelscape Ltd has no responsibility for advising the Customer what licences, permissions and consents may be required; 19.1.9 keep and maintain all materials, equipment, documents and other property of Wheelscape Ltd (Supplier Materials) at the Site in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Wheelscape Ltd, and not dispose of or use the Supplier Materials other than in accordance with Wheelscape Ltd written instructions or authorisation;
19.1.10 ensure that its insurer is notified of the Works prior to the Commencement Date and that the Works are covered by that insurance. The Customer shall add the Supplier as a joint named insured on that policy of insurance for the duration of the Works
19.1.11 ensure that its staff, representatives, agents and all those persons on Site that are not under Wheelscape Ltd control, follow any site rules prepared by Wheelscape Ltd and do not interfere or delay the performance of the Works
19.2 If Wheelscape Ltd performance of any of its obligations under the Contract in respect of the Works is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
19.2.1 Wheelscape Ltd shall without limiting its other rights or remedies have the right to suspend performance of all or any part the Works until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Wheelscape Ltd performance of any of its obligations;
19.2.2 Wheelscape Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Wheelscape Ltd failure or delay to perform any of its obligations as set out in this clause 19.2; and
19.2.3 the Customer shall indemnify Wheelscape Ltd on written demand for any costs or losses sustained or incurred by Wheelscape Ltd arising directly or indirectly from the Customer Default by way of an adjustment to the Price.