BIRCHWOOD GAS SERVICES LTD (trading as BGS Utilities)
UTILITY INSTALLATION TERMS AND CONDITIONS
This document forms part of the Offer and Acceptance for the installation of electric and/or gas and/or water apparatus and, together with other documents, comprise the Agreement between “us”, Birchwood Gas Services Limited (trading as BGS Utilities), and “you”, our customer/The Client and supersedes all agreements, representations, understandings or discussions that may have occurred prior to receipt of the signed Acceptance.
The Contract constitutes the entire Agreement between the parties, supersedes any previous agreement or understanding and may not be varied except by agreement in writing between the parties.
Each party warrants and undertakes that it has full power and authority to enter into and perform its obligations under the Agreement. Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
Communication regarding contractual issues between the parties shall be in writing, dated and signed by an authorised person and can be by post, facsimile or email.
BGS Utilities will provide and undertake the Scope of Works as set out in Schedule 1 (‘the Service’). We will perform the Service with all due reasonable endeavours and care and use reasonable endeavours to complete the Service within a reasonable timescale subject to any outside or 3rd party constraints.
You will grant unhindered access to us and any nominated contractors or 3rd parties to the site in order to provide the Service and fulfil our obligations under this Agreement.
You will undertake the responsibilities and obligations set out in Schedule 1 in a timely manner to enable us to provide the service unhindered and without delay and accept liability for any losses or costs that BGS Utilities might incur as a result of any failure on your part to comply with your responsibilities and obligations under this Agreement.
You acknowledge that the Offer is based on the information provided at time of tender and will notify us immediately of any changes to the pre-tender or pre-construction information which will have any effect on the quoting or undertaking of the Works.
BGS Utilities have not included for acting as Principal Contractor under the 2015 Construction (Design & Management) Regulations.
3. Price, Payment and Acceptance
Your Acceptance of the Works, the Offer, payment schedule and these Terms & Conditions as outlined in the Offer will be deemed to form a contract between the two parties.
BGS Utilities will undertake the scope of the works as identified in the Offer and you, the Client, will pay to us the charges as set out in Schedule 2 (‘the Price’) at the times specified. In addition, you will reimburse us for any changes or amendments to the service that you request or for any delays caused by you, your consultants or sub-contractors.
If you fail to pay us any sum due within the 30 days specified, interest shall accrue on the sum outstanding at the quoted rate until the date of actual payment. VAT, where appropriate, will be added at the rate current at the time of invoice. Failure to pay a due sum within the 30-day timescale may result in termination of the Agreement as well as re-mobilisation and additional accrued costs which will be invoiced as a variation to the Agreement.
Birchwood Gas Services Limited will not enter into, or consider any contracts with retention or damage clauses.
4. Relevant Facts
Before we can commence the Service, you shall notify us and provide all the relevant facts and documents requested which may be connected with or affect the delivery of the Service including, but without limitation such matters as potential hazards, adverse or restrictive working conditions, areas of contamination, reduced access rights and of any steps which are necessary to deal with such facts.
No party shall be liable for any failure or delay in performance of the Agreement which is caused by circumstances beyond the reasonable control of that party.
If either party fails or delays its performance for more than ninety (90) days due to such circumstances, either party may terminate the Agreement by written notice with immediate effect to the other party.
Either party may terminate the Agreement immediately by written notice if the other party commits an act of bankruptcy or goes into liquidation or is put into liquidation (other than for a proper commercial purpose and whilst solvent) or a receiver is appointed or an administration order is made in respect of it.
If either party is in breach of the Agreement and fails to remedy such breach within thirty (30) days from receipt of written notice by the other party specifying such breach, the other party may terminate this agreement by written notice with immediate effect.
Should you fail to make payment on the due dates as identified in Schedule 2, BGS Utilities reserves the right to terminate the performance of this Agreement and the undertaking of the Works and will notify you in writing.
6. Limit of Liability
Our total liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 125% of the total contract value (excluding non-contestable costs).
The Client and Birchwood Gas Services Ltd intend that their respective rights, obligations and liabilities as provided for in the Agreement shall be exhaustive of the rights, obligations and liabilities of each of them to the other arising out of, under connection with the Contracts or Service, whether such rights, obligations and liabilities arise in respect or in consequence of a breach of contract or of statutory duty or negligent act or omission which gives rise to a remedy at common law. Accordingly, except as specifically provided for in the Conditions of Contract, neither party shall be obligated or liable to the other in respect of any damages or losses suffered by the other which arise out of, under or in connection with the Agreement or Service, whether by reason or in consequence of any breach of contract or of statutory duty or neglect act or omission.
We shall not be liable for any loss of profit, revenue or goodwill or any other indirect or consequential loss or damage suffered by you and you will indemnify us from any claim by any third party which may arise out of, or in connection with, the Service.
Nothing in the Agreement excludes or limits our liability for death or personal injury caused by our negligence or fraudulent misrepresentation. Nothing in the Agreement shall operate to limit or exclude any liability for fraud.
7. Health & Safety
You will provide to us the name and contact details of the Planning Supervisor, CDM Officer or Safety Consultant appointed by you for the purposes of the Construction (Design & Management) Regulations 2015 (where applicable) together with a copy of the relevant Health & safety Plan and HSE F10 Notice before we commence the Service. You undertake to notify us fully of all hazards and risks associated with the site before we commence the Service and carry out inductions in a timely manner so as not to delay the delivery of the Service.
In event of any conflict between these Terms and Conditions and the Schedules, the Terms and Conditions shall take precedence.
9. No Waiver
No failure, delay or indulgence by either party in exercising any power or right under the Agreement shall operate as a waiver of that power or right.
If any provision of the Agreement is held to be invalid or unenforceable, that part shall be severed and the remaining provision shall continue to be valid and enforceable as if the Agreement had been executed with the invalid provision omitted.
11. Third Party Rights & Data Protection
Third parties have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of this agreement but this does not affect any right or remedy of a third party which exists or is available otherwise than pursuant to that Act.
In requesting a quotation for utility installation (regardless of whether or not it is accepted), you give due consent that we may store such data provided by you for the preparation of the Offer and the subsequent delivery of the Works and may share such data as is necessary with the relevant stakeholders who will need to be involved in preparing the Offer and delivery of the Works.
12. Legal Wayleaves and Easements
With regard to legal agreements for wayleaves and easements, the responsibility of Birchwood Gas Services Ltd as a Lloyds accredited multi utility provider is solely concerned with the administration and completion of any Adoption Agreement between us, you and the relevant Adopting Utility Company(s) in order to install the Works. Any further Project Management, drawings, communication or legal costs regarding rights, wayleaves, easements, legal agreements or land transfers between you and any other parties remain with the Client or his appointed legal representative.
The Client shall, before the commencement of the Service, obtain all legal consents, wayleaves, licences, authorisations and approvals in connection with the regulations, requirements or bye-laws of party or competent authority which shall be applicable to the Service on site or as required in pursuant to the terms of the Adoption Agreement relative to the site. The Client shall confirm to Birchwood Gas Services Ltd and provide evidence when requested when the same have been obtained and agreed with the relevant third party.
13. No Assignment
Neither party may assign the benefit or burden of the Agreement without the written consent of the other.
14. Applicable Law
The Agreement shall be construed in accordance with the laws of England and Wales and be subject to the exclusive jurisdiction of the English Courts.
15. Design Responsibility and Approval
All designs are procured on the basis of the demand identified or agreed by the client or assumed by us for domestic properties and the information provided by the Client at tender stage. All designs are undertaken by Lloyds accredited designers or the Adopting Utility based on the tender documentation and approved by the Adopting Utility Company(s) coordinated by Birchwood Gas Services Ltd.
No work on site can commence until the appropriate design approvals and consent to construct have been received in writing from the relevant AUCs. Installation must comply with the approved design and designs can only be amended by reference back to the designer and AUCs at additional cost and delay to installation.
16. Variations, Amendments and Changes
The Client shall be responsible for the validity and any errors, omissions or discrepancies in the drawings and written information supplied by him and provided to Birchwood Gas Services Ltd in order to procure approved utility designs and carry out the Scope of Work outlined in Schedule 1. The Client shall pay to Birchwood Gas Services Ltd the additional costs (and uplift) as invoiced for any delay and costs incurred by us for carrying out such alterations or remedial work so necessitated to enable completion of the Service and any costs (and uplift) incurred where reasonable for rectifying such errors, omissions, discrepancies, amendments or variations.
17. Conditions of Contract
The Agreement will be defined by the ICE Conditions of Contract edition current at the date of issue and will be administered under the requirements of the Reform of Housing Grants, Construction and Regeneration Act 1996 and as amended by The Local Democracy, Economic Development and Construction Act 2009.
Birchwood Gas Services Ltd will retain title and ownership of the utility apparatus installation until such times as they are transferred to the relevant Adopting Utility Company under the terms of the relevant Adoption Agreement, or to the Client upon commission as appropriate. The security and condition of all materials delivered to, or installed, on site shall be the responsibility of the Client and shall be insured by him where necessary.
19. Force Majeure
If either party is prevented or delayed from undertaking or performing any of his obligations under the Agreement by Force Majeure, then he may notify the other party of the circumstances constituting the Force Majeure and of the implication to his obligations of which is thereby delayed or prevented, and the party giving notice shall thereupon be excused the performance or such obligation for so long as the circumstances of prevention or delay may continue.
20. Applicable VAT
Value Added Tax and any other relevant statutory payments will be applied to our rates and prices as required where applicable. VAT will only be omitted on ‘new build’ projects where applicable and when stated in writing that the project is exempt from VAT by the Client prior to invoicing.
21. Gas installations
a) The development demand applied for and included in our Offer is based on the house type, number of bedrooms at each or other information provided by the Client.
b) The design or connection to any gas compressor, booster apparatus or CHP plant is excluded unless specifically identified in the Offer.
c) Meter outlet pipework is excluded unless specifically identified in the Offer.
d) Breaking or drilling through the building fabric (walls, footings, floors etc.) is excluded unless specifically identified in the Offer. Installation of factory entry tees through walls exceeding 600mm thickness is excluded unless specifically identified in the Offer.
e) Where the Client is installing the gas meter box, it must be installed correctly and to specification prior to the service installation. Meter boxes must be installed as per design and on the front face of each building, or not more than 2m from the front of a property if on a gable wall.
f) Where the gas meter is proposed to be located somewhere other than a standard meter box, a survey of the area and report must be prepared to ensure sufficient ventilation is available. BGS Utilities have not included for this additional cost unless specifically included in the Offer.
g) The provision of, or design incorporating Smart metering is excluded unless specifically identified in the Offer.
h) The provision of gas meters is excluded unless specifically identified in the Offer.
i) The Client must have established an agreement with an energy provider before MPRNs can be applied for and issued.
j) Service ducting must be installed by others to the correct depth of cover and specification before service installation unless specifically included in the Offer.
k) Pipework in or on multi-storey buildings is excluded unless specifically identified in the Offer.
l) Electrical earth cross-bonding must be available before meter installation.
22. Water installations
a) The Client must supply a Soil Investigation report and completed water company Risk Assessment before the design process can commence.
b) BGS Utilities has made no allowance for design or installation of water networks in contaminated ground or made provision for barrier pipe unless notified by the Client and specifically identified in the Offer.
c) The Offer excludes installation of internal pipework, meter adaptor manifolds or insulated bends.
d) The Offer excludes any additional Fire Hydrants not identified at time of tender and subsequently required by the Fire and Rescue services before design approval.
e) The inspection of services and provision of WIAPS (or Watersafe or similar) certificates is excluded unless specifically included in the Offer.
f) Water mains and connections for fire-fighting purposes are excluded unless specifically included in the Offer.
23. Electric installations
a) The development demand applied for and included in our Offer is based on the house type, number of bedrooms at each or other information provided by the Client.
b) BGS Utilities has not allowed for any on-site generation as this will affect the installation costs unless notified by the Client and specifically included in the Offer.
c) BGS Utilities has not allowed for any disturbing loads or harmonic emitting apparatus unless notified by the Client and specifically included in the Offer.
d) The provision of electric meters, Smart metering, CT chambers or CT metering units is excluded unless specifically included in the Offer.
e) Service ducting must be installed by others to the correct depth of cover and specification before service installation unless specifically included in the Offer.
f) An electrical wiring completion certificate must be provided by the Client for each service prior to connection.
24. General Utility Installation, Excavation and Construction
a) All on-site utility road crossings to be pre-ducted to specification using approved rigid ducts by others prior to utility apparatus installation with the correct depth of cover and physically marked for ease of location. Each utility and service will require a separate duct.
b) The Client must provide written confirmation from the local Street Naming department of addresses and postcodes before services can be installed or connected.
c) The Offer does not include for excavation in or through voids, rock or concrete or across SSSIs, tree roots, bridges or in areas of engineering or environmental difficulties.
d) Excavation carried out by others for utility installation by BGS Utilities must be suitable and to the required specification. Trenches and excavations with excessive widths, depths or in an unacceptable condition will delay the delivery of the service and additional costs will constitute a variation and will be charged accordingly.
e) Additional costs incurred due to additional reinstatement of any specialist surfaces, increased areas due to poor quality existing surfaces, cobblestones, setts or decorative flags will constitute a variation and be charged accordingly.
f) After the placing of apparatus surround and the appropriate marker tape, excavations on-site will be backfilled with excavated material. We have not allowed for the removal of spoil and no excavated material will be removed from site.
g) The importation of aggregates to backfill on-site excavations is not included in the Offer.
h) Double-handling of excavated material is not included on the Offer.
25. Statutory Undertaker Non-contestable costs
The utility asset operators (Statutory Undertakers) have fixed and variable costs which will be payable for the development regardless of who installs and connects the services and these are termed Non-Contestable costs. They do not form part of the quoted contestable work in our Offer but are listed separately where known and are included in the payment schedule.
Non-contestable costs are not always fixed and can be varied after completion. Any additional Non-contestable costs, additions or amendments subsequently identified and not known at time of tender will be invoiced as a variation which must be paid before utilities are connected.