Terms & Conditions

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1. The following definitions will have the following meaning in these Conditions of Contract (“Conditions”);

   “Company” Elite Surfacing Limited;

   “Conditions” these Conditions of Contract;

   “Contract” the Specification, the Quotation and these Conditions;

   “Customer” the person, firm or company who purchases the Works from the Company;

   “Quotation” the document detailing the Company’s proposed price for the Works signed by or on behalf of the Company and the Customer;

   “Site” the site of the Works;

   “Specification” the document(s) showing and/or describing the Works and attached to the Quotation;

   “Works” the work to be undertaken for the Customer by the Company as specified in the Quotation and the Specification.

2. Unless otherwise agreed in writing by the Company, the Works and any other work carried out by the Company for the Customer are carried out subject to these Conditions. Except as expressly provided therein, no amendments or modifications to these Conditions and in particular no terms or conditions of the Customer shall form part of the Contract unless expressly agreed to in writing by the Company.

3. The Quotation will remain open for the period of time set out in the Quotation and the Quotation and can only be accepted in its entirety. The Company shall not be bound by the Quotation or these Conditions unless and until the Quotation has been validly accepted by the Customer.

4. The maximum number of visits to Site allowed for by the Company in carrying out the Works is detailed in the Quotation. Any additional visits that the Company needs to make to the Site in order to complete the Works will be the subject of an extra charge for all additional costs incurred including transporting labour and plant to and from Site, reduced outputs and any other consequential costs.

5. Where a programme of works is included in the Contract, the Customer will ensure that the Company is given access to prepared areas of the Site in accordance with such programme.

6. The Works shall be executed during the Company’s normal working hours in a five (5) day working week Monday to Friday inclusive. Any Works executed outside these hours, either pursuant to the instructions of the Customer or due to causes beyond the Company’s control, shall be subject to an additional charge to reflect the additional costs incurred by the Company.

7. The Customer is required to make available for inspection and checking all areas that are required to be surfaced at least 48 hours before laying operations are due to commence. The Customer will check and agree levels of existing surfaces in writing before laying commences.

8. If, to meet specified levels, the thickness of any surfacing course laid by the Company exceeds the nett thickness described in the Quotation, the additional amount of material used will be calculated from either agreed levels or the use of a rate of spread factor and will be subject to an adjustment charge based on the Company’s regulating rates with no allowance to be made for any tolerances indicated in the Quotation. The Company’s rates are calculated on nett thickness described in the Specification.

9. Unless specifically detailed in the Quotation, no allowance has been made by the Company, and the Customer accepts full responsibility, for cleaning or any other preparatory work required prior to or during the Works, including, without limitation, any that is brought about by the use of unpaved roads or accesses or for the application of tack coat, bituminous sealing grit or surface dressing and the removal of weeds and other plants.

10. The Customer shall provide suitable, clean and safe access for the Company’s plant, materials and transport directly to the Site and point of laying. The Works will be valued by the Company every 14 days following their commencement, and upon their completion. The Customer will be invited to attend any such valuation. The Company’s valuations will be submitted to the Customer.

11. Payments shall be made by the Customer to the Company against the valuations submitted by the Company.

12. The final date for payment of any such valuation shall be 14 days from the date of issue of the valuation by the Company. Not later than five days after the date of issue of a valuation the Customer shall give a written notice to the Company which shall in respect of the amount stated as due in the valuation specify the amount of the payment proposed to be made, to what the amount of the payment relates and the basis on which that amount was calculated.

13. Not later than five days before the final date for payment the customer may give a written notice to the Company which shall specify any amount proposed to be withheld or deducted from the amount due, the ground or grounds for such withholding and/or deduction and the amount of withholding and/or deduction attributable to each ground.

14. Subject to any notice given under clause 13, the Customer shall no later than the final date for payment pay the Company the amount specified in the valuation given under clause 10.

15. If the Customer fails properly to pay any amount, or any part of it, due to the Company under these Conditions by the final date for its payment, the Customer shall pay to the Company in addition to the amount not properly paid simple interest thereon at the rate of 8% above the base rate for the time being of the Bank of England for the period until such period is made. The acceptance of payment of any interest under this clause shall not in any circumstances be construed as a waiver by the Company of its right to proper payment of the principle amount due from the Customer to the Company or of the rights of the Company to suspend performance of its obligations under this Contract.

16. Without affecting any other rights and remedies of the Company, if the Customer fails to pay in full any sum due under this Contract by the final date for its payment, the Contractor may suspend performance of its obligations under this Contract until payment in full occurs. Any costs incurred by the Company in exercising its rights under this clause, or in returning to Site following payment, shall be paid by the Customer to the Company in full following confirmation by the Company of the amount of any such costs.

17. The Quotation is exclusive of any additional costs the Company may be called upon to pay as a result of any taxes or levies from time to time imposed in respect if the Works after the date of the Quotation. The Customer shall reimburse the Company in respect of any such additional costs.

18. The Customer shall be responsible for providing and maintaining adequate water supplies within a reasonable distance of the areas surfaced with suitable access for the Company’s plant, and shall make available a free site for offices and the stockpiling of the Company’s materials should this be necessary.

19. The Customer shall be responsible for the safety of the Company’s property and employees whilst on the Site, and for complying with all statutory and other requirements relating to the Site and in particular for all traffic control, temporary ramping, signing, watching and for observing the provisions of the Public Utilities Street Works Act 1950.

20. The Customer shall not without the Company’s consent, allow any vehicle or plant to use the surfaces handed over to the Company or laid by it prior to the completion of the Works and handover by the Company to the Customer.

21. The Company will accept no liability for any defects or subsidence arising from the unsuitability or weakness of the formation on which materials are to be laid, and the Customer will ensure that such formation is of adequate strength to take the weight of the Company’s plant and loaded delivery vehicles up to the maximum legal Gross Vehicle Weight permitted on the Public Highway.

22. Should the Company be required to lay materials against, around or over kerbs, edgings, walls, ironwork, drains, services or other structures, the Company will accept no liability for any damage to these items caused by any reasonable pressures exerted on them as a result of the specified plant and methods employed to lay and compact the Company’s materials. Such structures should be of adequate strength to support the normal operating loads exerted by compaction equipment when it is necessary for the said equipment to pass over or adjacent to them.

23. The adjustment to the final level of any covers and frames or other constructions within the area to be surfaced will not be carried out by the Customer until after the base course has been laid. The Company’s rates do not include for any work involved in setting iron work to the finished level or replacement of any ironwork that may be required unless specifically itemised in the Quotation.

24. The formation presented to the Company shall be of true line and level to falls which will in particular ensure the removal of surface water. To permit accurate laying of the Company’s materials, the Customer shall provide and maintain adequate and suitable line and level control, the accuracy of which shall be the sole responsibility of the Customer. The cross falls, cambers and longitudinal falls of the finished surface are deemed to comply with the minimum requirements of BS 594987:2007 or such other official standards relating to the laying of coated materials that apply to the Contract.

25. Where free edge work is specified, the rates allow for edge wastage on the various layers of the Works but do not allow for any temporary form work or supports at the edge of the area to be surfaced where there are not kerbs. The Company is not liable for the cost of any additional sub-base or road base provided by the Customer to accommodate the natural angle of repose at carriageway edges of materials laid by the Company.

26. In the event of any delay caused by the Customer to any programme for the Works included in the Contract then, without prejudice to any other right the Company may have, the Company may charge for standing time in accordance with the then current rates of the Company, together with a charge in respect of reduced output and any other consequential losses suffered by the Company as a result of the delay.

27. Any variation to the Works or to any agreed programme must be agreed in writing or confirmed in writing by the Company to the Customer. The cost of any such variation shall be agreed between the parties, or calculated by reference to the rates in the Specification or (where such reference is not possible) shall be calculated using rates which are fair and reasonable in all the circumstances.

28. Testing of whatever nature, including sampling and testing of materials shall be carried out in accordance with British Standards or any other relevant specifications. Unless specifically agreed otherwise, the Customer shall pay for any testing including transport of samples to the place of testing.

29. If any Works are carried out in accordance with a specification or design provided by the Customer, the Company offers no warranty, express or implied, that such specification or design is suitable for the intended purpose and accepts no liability for any defect, error, omission, deficiency or ambiguity in such specification or design. Similarly no responsibility is accepted if the Company is required to lay thickness outside the appropriate British Standards.

30. In the event of a period of maintenance being specified in the Contract, such a period shall commence from the date of completion of the Works. When the Works are carried out in phases there shall be separate completion dates for each phase.

31. The Company shall not be responsible for failure to perform the obligations under the Contract where such failure may be due to or result from (whether directly or indirectly) any cause of circumstances beyond the Company’s control, and without limiting the generality of the foregoing such causes or circumstances shall extend to any act of God, weather, any war or hostilities (whether war be declared or not), invasion, act of foreign enemies, riot, civil commotion or disorder, rebellion, revolution, insurrection, military or usurped power any strike or lock out, fire, accident, breakdown of machinery, and shortage of labour and materials, equipment or spare parts.

32. 1. This clause 32 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors) to the Customer in respect of:

       1. any breach of the Contract; and

       2. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

    2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

    3. Nothing in these Conditions limits or excludes the liability of the Company:

       1. for death or personal injury resulting from negligence; or

       2. for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company; or

       3. for any liability incurred by the Customer as a result of any breach by the Company of the condition as to title or the warranty as to possession implied by section 2 of the Supply of Goods and Services Act 1982.

    4. Subject to clauses 32.2 and 32.3 the Company shall not be liable for:

       1. loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, or any special, indirect, consequential or pure economic loss, cost, damages, charges or expenses.

    5. Subject to clauses 32.2, 32.3 and 32.4 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance of the Contract shall be limited to the price paid or to be paid for the Works.

33. Unless specifically detailed herein the Company’s rates are based on the use of mechanical spreading plant; should the Works necessitate hand-laying of any materials this will be subject to an additional charge equivalent to 150% of the machine laying rate.

34. Property in the Works shall pass to the Customer when the Company has received payment in full for the Works.

35. The Contract, and any dispute or claim 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.