Terms and Conditions of Service
These terms and conditions (“Terms”) are the Terms that apply to the purchase of Services from Oakwood Building Consultancy Services Limited a company registered in England, number 09752465, whose registered office is The Willows, Fen Lane, Dunston, Lincolnshire, LN4 2HB (“Oakwood”) (“we”, “us”, “our”)
1.Definitions and Interpretation
1.1 In these Terms:
a. “Agreed Date” means the date on which the provision of the Services will commence as agreed by the Parties;
b. “Agreed Times” means the times which the Parties shall agree upon during which Oakwood shall have access to the Property to render the Services.
c. “Business Days” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales;
d. “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with any Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
e. “Customer” means the individual or business that requires the Services subject to these Terms and any Agreement;
f. “Job” means the complete rendering of the Services;
g. “Order” means the Customer’s initial request to acquire the Services from Oakwood as set out in these Terms;
h. “Party” mean Oakwood or Customer;
i. “Parties” means Oakwood and Customer;
j. “Property” means the Customer’s property or premises, as detailed in the Order and any agreement, at which the Services are to be rendered, including any accessways or adjoining buildings;
k. “PCC” means the Certificate issued by Oakwood previously known as the Architects Certificate.
l. “Quotation” means the quotation given by Oakwood for the provision of Goods and/or Services quoted to the Customer by Oakwood.
m. “Services” means the building and other associated and ancillary services provided by Oakwood as detailed in these Terms.
n. “Visit” means any occasion, scheduled or otherwise, on which Oakwood shall visit the Property to render the Services.
o. “Work Area” means the part of the Property within which the Services are to be delivered.
1.2 The headings of these clauses shall not affect the interpretation thereof.
1.3 If there is any inconsistency between what is set out in any of the conditions in these Terms and what is set out in any communication in writing or variation (“Variation”) agreed in writing between the Parties the Variation shall prevail.
1.4 If there is any inconsistency or conflict in these Terms or any other Terms issued by Oakwood these Terms will prevail.
1.5 These Terms are the entire agreement between the Parties and supersedes any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of receipt of these Terms, except that this clause shall not exclude liability in respect of any fraudulent misrepresentation.
2.1 Oakwood accepts orders for in writing (for the purposes of these Terms ‘in writing’ means letter or email, not fax).
2.2 When placing an Order the Customer shall set out, in detail, the Services required. Details required include the location and size of the Property, number and type of rooms in which work is required and the type(s) of work.
2.3 Oakwood may provide paperwork to the Customer which shall provide prompts for all required information.
3.Quotes, Estimates, Deposit and Acceptance of Works
3.1 Where a deposit on works is required it will be set out in any Quotation.
3.2 Orders shall not be deemed confirmed until any deposit or pre-payment for Services is made by the Customer.
3.3 Unless agreed otherwise and set out in any Quotation any deposit paid shall be non-refundable.
3.4 Oakwood will only be bound to any Quotation provided in writing to the Customer, which have also been signed by an authorised representative of Oakwood.
3.5 Oakwood will not be bound to any estimate or quotation provided orally.
3.6 Any Quotation is valid for 30 days on the condition that the pre-conditions for the performance of the works following the onsite survey on the Property remain essentially unchanged during this period.
3.7 No variation or modification of or substitution for these Terms (even if included in or referred to in the document placing the order) shall be binding on Oakwood unless specifically accepted by Oakwood in writing.
3.8 Oakwood may refuse to accept an order:
3.8.1 where Oakwood cannot obtain authorisation for your payment;
3.8.2 if there has been a pricing error;
3.8.3 if you do not meet any eligibility criteria set out in our Terms; or
3.8.4 for any other reason at our sole discretion.
3.9 For each project Oakwood will endeavour to give Customer an estimated project plan within a specified time plan. The Customer accepts that there may be variations to timelines set out in any documents.
3.10 A Customer can cancel any Order within any designated cooling off period set out by law by writing to The Secretary at Oakwood BCS Ltd, The Willows, Fen Lane, Dunston, LN4 2HB within 14 days of signing the contract.
3.11 Unless instructed otherwise Oakwood will not begin works until after any cooling off period. In the event that the works have started and the Customer decides to terminate then the provisions of termination will apply and the Customer agrees that Oakwood will invoice the customer for any agreed contractual rates and other costs incurred within any agreement.
3.12 This contract supersedes all previous versions of the contract for this project unless specifically stated otherwise.
3.13 Any estimate or quotation provided by Oakwood may be revised in the following circumstances:
a. If after the submission by Oakwood, the Customer instructs Oakwood in writing to provide additional works or services not referenced or detailed.
b. If following the submission Oakwood, it is discovered further works and services need to be carried out which had not been anticipated.
c. If following submission or works carried out, it is discovered that there was a manifest error when the estimate or quotation was prepared.
4.Prices, Fees and Payment
4.1 Prices are subject to alteration or withdrawal without notice.
4.2 Oakwood shall invoice the Customer according to the details set out in any order documentation. complete. All invoices (unless otherwise agreed in writing by a director of Oakwood) are to be paid by BACS transfer within 30 days of issued invoice. Unless the invoice is for a RICS home buyers report, then payment should be made on receipt of the invoice
4.3 Cheque payments are only accepted for deposit and will only be deem paid upon receipt of cleared funds into Oakwood’s account.
4.4 In the event of non-payment or default in payment by the Customer in accordance with agreed terms, Oakwood shall be entitled without prejudice to any other right or remedy to charge interest to either an individual not a business or business, as set out in the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent amendments, and add any reasonable legal fees and debt recovery charges in respect of all invoices which are not wholly paid by the due date.
4.5 Where the Customer is a limited company then the directors named at Companies House on the date of receipt of these Terms agree they will accept and incur personal liability for any fees or disbursements accrued by the limited company. Where the legal entity is an LLP then the named partner(s) who agreed the contract accept personal liability for any fees due to Oakwood.
4.6 Sums payable pursuant to these Terms or any Agreement are exclusive of Valued Added Tax (“VAT”) which shall be paid at the prevailing rate providing it is properly detailed on an invoice in compliance with prevailing legislation.
4.7 All goods remain the property of Oakwood until the final payment has been received and reserve the right to withdraw all services where a Customer exceed the stated payment terms.
4.8 Where any inspections are required following the completion of the Job it shall be agreed between the Customer and Oakwood and there maty be additional fees to the Customer.
4.9 Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under these Terms or any Agreement at any time.
5.1 Prior to the start of the Job Oakwood may need to carry out a full inspection of the Property/site in order to ensure that the agreed Services are appropriate for the Property and can be rendered safely.
5.2 The Services shall be rendered in accordance with the specification and any accepted Quotation and in any Agreement (as may be amended by mutual agreement from time to time).
5.3 Oakwood may provide sketches, plans, diagrams or similar documents in advance of the Job. Any such material is intended for illustrative purposes only and is not intended to provide an exact specification of the Job nor to guarantee specific results.
5.4 Oakwood shall ensure that the Services are rendered with reasonable care and skill and to a reasonable standard which is commensurate with best trade practice.
5.5 In as much as is reasonably possible, Oakwood shall use its reasonable endeavors to ensure that no work done will have any effect on the Property outside of the Work Area.
5.6 Oakwood shall ensure they comply with any and all relevant codes of practice.
5.7 Oakwood will not be held liable for any circumstances which it could not have foreseen at the initial quote stage (the “Unforeseen Event”) and the Customer agrees to pay any extra costs to remedy any Unforeseen Event that cause postponement or cessation of the Services, after the initial quote have been accepted by the Customer. Events include, but not limited to discovery of old sewer workings, dry rot, asbestos contamination, discovery of protected species (e.g. bats) or other event that could not have been foreseen during the exercise of due diligence by Oakwood during the quoting and acceptance stage.
5.8 Oakwood will issue Certificates issued in accordance with the Council of Mortgage Lenders requirements, which rely upon Oakwood’s PI Insurance to a value of £1,000,000.00.
5.9 The certification process comprises of key stage inspections of the building to confirm the adequacy of each stage of the works.
5.10 Oakwood’s aim is to confirm the general adequacy of the structure, not to undertake snagging of minor defects which should be rectified by the builder in the first 12 months following completion.
5.11 Oakwood’s inspections are to confirm that, at each key stage, the main works are of a satisfactory standard and any significant deficiencies will then be highlighted and referred back to the builder for remedial action.
5.12 Oakwood’s required inspections cover the following including but not limited to:
a. Completion/confirmation of adequacy/suitability of foundations.
b. Completion/confirmation of adequacy of oversite concrete floor slab/damp proof course.
c. Completion up to wall plate level.
d. Building weather tight, i.e. roof complete, felted, battened and tiled.
e. First fix electrical and plumbing, prior to plastering out.
f. Substantial completion, i.e. all main works complete although not peripheral items such as fitting out of kitchens and bathrooms and decoration.
5.13 Information required within 30 days of the Building control final certificate being issued, including but not limited to:
a. Gas certificate;
b. Electrical certificate;
c. Oil Fired installation certificate;
d. Solid Fuel Heat certificate;
e. Sound proofing test certificate;
f. Robust Details (as Alternative to sound test);
g. Water calculations
h. Mechanical fan test data- Domestic Ventilation compliance: (http://www.planningportal.gov.uk/uploads/br/domestic ventilation compliance guide 2010.pdf;
i. Floor joist/beam calculations;
j. Building Control final certificate ;
k. Heating system design/details- unvented hot water storage system installation certificate ;
l. Roof structure calculations/design;
m. Air test certificate;
n. Structural Engineers design details - elements within the structure requiring calculations ie: foundations, floors, chimneys, joists/beams and roofs;
o. Window and door warranties;
p. Stairs invoice/warranty;
q. Damp proofing membrane details/Radon gas; SBEM/SAP Results;
r. Energy Performance certificate;
s. Fixed building services- written statement to confirm that the building owner has been provided with sufficient information about the building: http://www.planningportal.gov.uk/upoads/br/domestic_building_compliance_guide_2010.pdf
t. Planning permission details;
u. drawings for the build;
v. Fire alarm, emergency lighting, sprinkler test and commissioning certificates.
5.14 Time shall not be of the essence in the rendering of the Services under these Terms or under any agreement.
6.1 If any consents, licenses or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Customer’s responsibility to obtain the same in advance of the commencement of the Services.
6.2 If any party wall agreements are required in order for the Services to be rendered, it shall be the Customer’s responsibility to enter into those agreements prior to the start of the Job.
6.3 The Customer shall ensure that Oakwood can access the Property at the Agreed Times to render the Services.
6.4 The Customer shall have the option of giving Oakwood a set of keys to the Property or being present at the Agreed Times to give Oakwood access. Oakwood warrants that all keys shall be kept safely and securely.
6.5 The Customer shall ensure that Oakwood has access to electrical outlets and a supply of hot and cold running water.
6.6 The Customer shall ensure that the Work Area is kept clear of hazards, furniture, fixtures and fittings and out of use for the duration of the Job unless otherwise directed by Oakwood. .
6.7 The Customer must give Oakwood at least 2 days’ notice if Oakwood will be unable to provide the Services on a particular day or at a particular time. Oakwood will not invoice for cancelled Visits provided such notice is given. If less than 2 days’ notice is given Oakwood shall invoice the Customer at his normal rate.
6.8 The Customer is responsible for ensuring that Oakwood are contacted when these works are ready to be inspected, by phone and email. Oakwood issued certificates only cover the works that have been witnessed by us.
6.9 It is the Customer’s responsibility to conduct their own due diligence and seek the appropriate legal advice, prior to appointing the services of Oakwood BCS Ltd.
7.Liability, Indemnity and Insurance
7.1 The Customer shall indemnify Oakwood against all claims, demands, proceedings, actions, damages, costs, expenses and any other liabilities in respect of, or arising out of, the provision of the Services in relation to the injury or death of any person, or loss of or damage to any property including property belonging to Oakwood, financial loss arising from any advice given or omitted to be given by the Customer any other loss which is caused directly or indirectly by any act or omission of the Customer. This does not apply to the extent that such injury, death, loss or damage arises out of the act, default, or negligence of Oakwood, its employees, or agents not being the Customer or persons engaged by the Customer.
7.2 Oakwood will accept liability for:
(i) death or personal injury resulting from its negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) any other liability which cannot be excluded by law.
7.3 Oakwood will accept liability for direct physical damage to the tangible property of the Customer to the extent it is caused by the negligence of Oakwood subject to the exclusions set out in clause 7.5. Except as provided in clause 7.2, Oakwood’s total liability in respect of any one default under any Order shall not exceed the total amount being paid under that Order. If a number of defaults give rise to substantially the same loss or are attributable to the same or similar cause, then they shall be regarded as giving rise to only one claim. Oakwood will be afforded a reasonable opportunity to remedy any such default.
7.4 Oakwood shall not be liable for loss of profit or goodwill of the Customer or any other person arising, directly or indirectly, from any breach of these Terms or any Agreement or for any other indirect or consequential damage whatsoever save as provided in this clause.
7.5 Except as provided in clause 14.2, Oakwood shall not be liable for:
(i) loss of business, profits, revenue, anticipated savings, (even where the same arise directly from a breach of these conditions);
(ii) special, indirect or consequential losses, even if foreseeable by or in the contemplation of Oakwood ; or
(iii) any claim made against the Customer by any other person.
7.6 Oakwood shall ensure that he has in place at all times suitable and valid insurance covering Professional Indemnity to the level of £1million.
7.7 Oakwood is not liable for any loss or damage suffered by the Customer which results from the Customer’s failure to follow any instructions given by Oakwood.
7.8 Oakwood will not hold any responsibility for any damage suffered to a part of any Property where the damage is in whole or in part a consequence of a defect or weakness in that part of the Property.
7.9 The Customer shall indemnify Oakwood against any costs, liability, damages, loss, claims or proceedings arising out of the Customer’s failure to meet any of its obligations or any other breach of these Terms or any agreement.
7.10 Oakwood accepts no responsibility for any other consultant or contractor appointed by the Customer.
7.11 The PCC is backed by Oakwood professional indemnity insurance and is recognised by major banks and building societies as proof of the standard of construction.
8.Guarantee and Warranty
8.1 Notwithstanding the exceptions to Oakwood’s liability set out in clause 7 Oakwood will remain liable for six years from the date of issue of the PCC, which is fully transferable to all future owners and lenders during this period.
8.1.1 If the Customer does not respond to the documents requirement of clause 5.13 then the 6 years will start from the date of practical completion (Issue of the building control final certificate).
8.1.2 The provisions of clause 8.1 should not be confused with a latent defects insurance.
8.2 The PPC issue follows format approved by the Council of Mortgage Lenders (CML) and is issued following project inspection and approval at all the necessary stages and receipt of all associated certification.
8.3 The Oakwood issued PCC is approving the quality of construction and confirming that the build adheres to the plans agreed by the Building Control provider.
9.Health and safety at work
9.1 Oakwood shall observe the provisions of the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 and all other regulations, approved Codes of Practice and amendments thereto pertaining to the health and safety of employees and members of the public and shall ensure that its agents, employees and sub-Suppliers are competent to carry out their respective tasks with due regard to the Supplier's obligations under these Acts and other instruments.
9.2 Each Party agrees to notify the other Party of any health and safety hazards which may arise in connection with the performance of the Services.
10.1 “Confidential information” shall mean all information disclosed by one Party to the other, orally in writing or in electronic form relating to any Agreement that is not in the public domain (except where disclosure is in the public domain due to a breach of this clause). It shall also include information, documents, drawings, reports or data the Supplier may acquire or generate under or in connection with this Agreement.
10.2 Each Party shall:
10.2.1 treat all Confidential Information as secret and confidential and safeguard it accordingly;
10.2.2 not disclose any Confidential Information to any third party without the prior written consent of the other Party, except to such extent as may be necessary for the performance of any Agreement; and
10.2.3 not use any Confidential Information otherwise than for the purposes of this Agreement.
10.3 Nothing in this clause 10 shall prevent either Party disclosing any Confidential Information which is required to be disclosed by an order of court or other tribunal or required to be disclosed in accordance with any law, statute, proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court, delegated or subordinate legislation.
11.Intellectual Property Rights
11.1 The Customer hereby grants to Oakwood a perpetual non-exclusive royalty-free license to use any deliverable or material created by the performance of any Agreement in which, but for this clause 11, the Customer would own the IPR (including but not limited to data, drawings, design, working papers and the contents of any report). The Customer agrees that Oakwood may without let or hindrance publish, alter, release, license or otherwise exploit and deal with such material as it thinks fit, via any medium.
12.1 Oakwood agree to abide by the provisions of the General Data Protection Regulations 2016/679 (GDPR 2018) for any works they enact under these Terms and any agreement.
12.2 Oakwood will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer.
12.3 Such data will only be collected, processed and held in accordance with Oakwood’s rights and obligations arising under the provisions and principles of the GDPR 2018.
13.1 Neither Party to this Agreement shall be liable to the other nor held in breach of any Agreement if either Party is prevented, hindered or delayed in the performance of its obligations under any Agreement by any act of God, war, riot, civil commotion, explosion, fire, radiation, accident, terrorism, government action, interruption in the supply of power, labour dispute other than a dispute concerning the Supplier's employees or the employees of its sub-Suppliers, epidemic or other circumstances beyond the control of the Parties which prevents a Party from, or hinders or delays a Party in, performing its obligations under this Agreement (and which the application of due diligence and foresight could not have prevented).
14.1 Either Party may immediately terminate any Agreement by giving written notice to the other Party if:
14.1.1 If either Party commits a fundamental breach of its obligations without remedy under any Agreement;
14.1.2 any sum owing to that Party by the other Party under any of the provisions of any Agreement is not paid within 7 Business Days of the due date for payment;
14.1.3 the other Party commits any other breach of any of the provisions of any Agreement and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
14.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other Party;
14.1.5 the other Party makes any voluntary arrangement with its creditors or, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
14.1.6 the other Party has a provisional liquidator, receiver, or manager of its business or undertaking duly appointed;
14.1.7 the other Party has possession taken, by or on behalf of the holder of any debentures secured by a floating charge, of any property comprised in, or subject to, the floating charge;
14.1.8 the other Party is in circumstances that entitle the Court or a creditor to appoint, or have appointed, a receiver, a manager, or administrative receiver or which entitle the Court to make a winding-up order;
14.1.9 if there is a change of control in the shareholding;
14.1.10 where a Party or any of its employees or sub-suppliers becomes embroiled in matters attracting significant negative publicity liable to reflect adversely on the other Party, including but not limited to any occasion on which any of these persons is convicted of an arrestable offence;
14.1.11 where the Party is an individual if he shall die or be adjudged incapable of managing his affairs within the meaning of Part VII of the Mental Health Act 1983.
14.1.12 that other Party ceases, or threatens to cease, to carry on business; or
14.2 The rights to terminate any Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
15.Effects of Termination
15.1 Upon the termination of any Agreement for any reason:
15.1.1 any sum owing by either Party to the other under any of the provisions of any Agreement shall become immediately due and payable;
15.1.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of any Agreement shall remain in full force and effect;
15.1.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of any Agreement which exist at or before the date of termination;
15.1.4 subject as provided in this Clause 15 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
15.1.5 each Party shall (except to the extent referred to in Clause 10) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
16.1 In the event of a disagreement or dispute between the Parties in relation to the Services or in relation to the interpretation of any Agreement, the Parties shall, in the first instance, endeavour to resolve the disagreement or dispute themselves (or through their representatives).
16.2 In the event of a failure to reach an agreement in accordance with clause 16.1 within a reasonable time then the disagreement or dispute shall be referred to any mediation or conciliation procedure by reference to a third independent party agreed by the Parties. Any such mediation or conciliation will not be binding on the Parties.
16.3 If such dispute or difference is not resolved within twenty-one days of the dispute being referred to mediation or conciliation under clause 16.2 then such dispute or difference shall if so agreed by the Parties be referred to the lowest cost arbitration put forward by either Party and such a referral to arbitration shall be deemed to be a referral in accordance with the Arbitration Act 1996 and any statutory modification or re-enactment thereof for the time being in force.
16.4 The costs of mediation, conciliation and/or the appointment of the arbitrator shall be shared equally between the Parties and the arbitrator shall determine which Party shall pay any costs subsequently incurred.
All notices served under any Agreement shall be in writing (for this clause 17 ‘in writing’ is not classed as email) and shall be delivered by hand or sent by pre-paid first class recorded delivery post, in the case of any agreement to the addresses agreed and exchanges at point of Order (which addresses may themselves be amended by notice in accordance with this clause). Notices served by hand will be deemed served the day after service. Notices sent by post shall be deemed to have been received by the addressee 2 days after the day on which they were posted (excluding weekends and public holidays).
Failure by either Party at any time to enforce the provisions of an Agreement or to require performance by either Party of any of the provisions of an Agreement Terms shall not be construed as a waiver of or as creating an estoppel in connection with any such provision and shall not affect the validity of an Agreement or any part thereof or the right of either Party to enforce any provision in accordance with its terms.
If any provision or term of any Agreement or any part of it shall become unenforceable for any reason whatsoever, including but without limitation by reason of the provisions of any legislation, Regulation, Order, Direction of the Secretary of State or other provision having the force of law or by reason of any decision of any Court of competent jurisdiction, the validity and enforceability of the remainder of any Agreement shall not be affected thereby and shall remain in full force and effect. Where any such provision or decision substantially affects or alters the ability of either of the Parties to comply fully with its contractual obligations the Parties shall negotiate in good faith to amend and modify the provisions and terms of any Agreement as may be necessary or desirable in the circumstances
20.Assignment and Sub-Contracting
20.1 Oakwood shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of any Agreement, be deemed to be an act or omission of Oakwood.
20.2 The Customer may not assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of Oakwood, such consent not to be unreasonably withheld.
21.Relationship of the Parties
Nothing in any Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in any Agreement.
Any Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of any Agreement and/or of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of any Agreement and/or these Terms. The remainder of any Agreement and/or these Terms shall be valid and enforceable.
25.Contracts (Rights of Third Parties)
The Contracts (Rights of Third Parties) Act 1999 shall not apply to any Agreement and no person who is not a party to any Agreement shall be entitled to enforce any of the provisions of any Agreement pursuant to that Act.
These Terms are governed by, and are to be construed in accordance with, English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.