Definitions and interpretation
In these terms and conditions unless the context otherwise requires the following expressions have the following meanings:
‘you’ ‘your’ ‘yours’ ‘yourself’ – means the customer or contractor to whom we have agreed to provide the Services;
‘we’ ’our’ ’ourselves’ ‘us’ – means Future Cleaning Services Limited of 8 Opus Avenue, York Business Park, York, YO26 6RS ;
‘the Services’ – means the cleaning and other related services detailed in our estimate, quotation or customer contract. Unless otherwise specifically agreed, the Services will only be provided on a Business Day;
‘the Charges‘ – the charges payable by you for the provision of the Services in accordance with this Agreement;
‘this Agreement’ – means this agreement with you for the provision of the Services detailed in our estimate, quotation or customer contract;
‘these Terms’ – means these terms and conditions to which this Agreement for the supply of the Services is strictly subject.
‘Business Day’ – a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
All other words and expressions are to be given their normal English meaning taken in the context of the Agreement and these Terms. Any dispute as to the meaning of a word is to be settled by reference to the Oxford English Dictionary.
Any reference to a clause shall mean a clause of these Terms unless otherwise stated.
In these Terms unless the context clearly indicates another intention:
- reference to a party includes its successors or permitted assigns,
- reference to one gender includes all other genders,
- reference to the singular includes the plural and vice versa,
- reference to writing includes fax, e-mail and similar means of communication,
- reference to a statute or statutory provision is reference to such 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 preceeding those terms,
The use of headings in these Terms is for convenience only and shall not affect the interpretation of these Terms.
These Terms apply to this Agreement to the exclusion of any Terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Estimates and quotations
Any estimate or quotation that we give you for the provision of the Services is current at the time and will remain open for acceptance for a period of 90 days from its date. Your acceptance can be verbal or in writing. If you wish to accept after the expiry of that period, it may be subject to an additional charge for any changes that have occurred since the estimate or quotation was given.
If following acceptance you terminate this Agreement (for whatever reason) you will be liable to pay us for all work done up to the date of termination and for all goods and materials already purchased or ordered by us for use in the provision of the Services.
- provide the Services with reasonable care and skill;
- provide the Services to a reasonable standard in accordance with the agreed cleaning specification and the recognised standards and codes of practice applicable at the time of carrying out the Services;
- perform the Services within a reasonable time; and
- ensure that you have free and unencumbered title to any goods and materials supplied to you as part of the Services;
- co-operate fully with us and provide us with all information reasonably required by us;
- where the provision of the Services under the terms of this Agreement will be subject to the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended (‘TUPE’) you will:
- where it is a first-generation outsourcing, promptly provide us with Employee Liability Information in relation to the relevant employees whose contracts of employment are to be transferred to us, together with such further information as we may reasonably require;
- where it is a second or subsequent generation outsourcing use your reasonable endeavours to ensure that the outgoing contractor provides us with the that information; and
- when requested to do so by us will enter into a separate outsourcing or similar agreement to regulate the potential TUPE liabilities and provide appropriate warranties and indemnities;
- provide us with 7 days’ notice in writing of any change of your name, address or other contact details;
- provide us with full and safe access to your property for the purposes of providing the Services;
- provide free of charge all necessary lighting, hot water and other facilities reasonably required by us to perform the Services;
- provide us with suitable and safe accommodation for the storage of such equipment and supplies as we need to leave on your premises for the purposes of carrying out the Services; and
- obtain all necessary permissions, licenses and consents that may be required to enable us to perform the Services, the cost of which shall be your sole responsibility
The Charges and payment
The Charges are exclusive of VAT and VAT will be added to the Charges where applicable.
Payment of the Charges must be made by BACS, credit/debit card or cheque without deduction, set-off or deferment. Time for payment of the Charges is of the essence and shall be as stipulated in our estimate/quotation or customer contract, or otherwise shall be within 28 days of the date of our invoice. We will usually invoice you 4-weekly in advance or upon the completion of the Services by us.
You agree that payment of the Charges shall be paid in full without any set-off, counterclaim or deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting our rights or remedies, set-off any amount owing to you from us against any amount that you owe to us.
If payment of the Charges is not received on the due date we shall be entitled to charge you interest (both before and after any judgment) on any overdue amount (on a daily basis) from the due date of payment to the date of actual payment (both dates inclusive) at the rate of 5 per cent per annum.
You agree to pay the Charges irrespective of any dispute or claim you may have with or against any third party.
Should we need to take court action to recover payment from you, you agree to pay our legal costs and disbursements of that court action on a full indemnity basis.
Review of the Charges
In the event of a change to the relevant legislation and/or regulations governing employment requiring an increase in the remuneration that we are legally required to pay to our staff to provide the Services (for example an increase in the National Minimum Wage) then we shall (subject to giving you 21 days’ prior written notice) be entitled to increase the Charges for the Services from the date that statutory or regulatory increase comes into effect for the remainder of the term of this Agreement.
Where we provide a quotation, estimate or customer contract for the Charges for the provision of the Services at the outset of this Agreement on the basis that the provision of the Services will not involve a TUPE transfer, but it subsequently becomes apparent that the provision of the Services will involve such a transfer, then we shall be entitled to review the Charges to be made for the provision of the Services under this Agreement to reflect the additional liabilities and responsibilities that TUPE transfer will involve for us.
In any other event we shall review the Charges annually on each anniversary of this Agreement and will give you 21 days’ prior notice of any proposed increase in the Charges.
In the event that you do not wish to accept the proposed increase in Charges you shall be entitled to terminate this Agreement upon giving us 21 days written notice of your intention to do so.
If you do not serve notice to terminate the Agreement on that basis within 21 days of your receipt of our written notice of increase in the Charges, then you shall be deemed to have accepted that increase in the Charges, which shall then apply from the expiry of our 21 days’ written notice of that increase.
Limitation of Liability – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these terms shall limit or exclude our liability for:
- death or personal injury cause by our negligence, or the negligence of our employees, agents and subcontractors; or
- fraud or fraudulent misrepresentation.
We shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence) breach of statutory duty, or otherwise, for any loss of profit or any indirect or consequential loss arising under or in connection with this Agreement; and
Our total liability to you in respect of all other losses arising under or connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed £10,000,000 (ten million pounds).
The rights and obligations set out in or implied by Chapter 4 of the Consumer Rights Act 2015 are, to the fullest extent permitted by law, excluded from this Agreement.
In particular, we shall not be liable for any loss or damage arising from the breakage or disintegration during cleaning of any cracked, defective or broken part of your property or the fixtures and fittings in your premises.
In the event that we have any liability, you will give us the opportunity to repeat perform the Services and/or make good any damage at our own expense, rather than requiring us to make a payment to you.
This clause shall survive termination of this Agreement.
TUPE indemnity – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Where the provision of the Services involves your outsourcing your obligations to us (whether on a first or subsequent basis) and your relevant employees’ contracts of employment will be transferred to us under TUPE then you shall:
- indemnify us for any liabilities that may arise from a breach of your obligation under this Agreement to provide Employee Liability Information in relation to all relevant employees;
- indemnify us on a pro-rata basis (in relation to the length of time that we, you and/or any other previous contractors were each the employer of the relevant employees) for any statutory redundancy payments, contractual redundancy payments, statutory notice pay and contractual notice pay to the relevant redundant employee provided that we have:
- complied with our legal obligations and used all reasonable endeavours to avoid a redundancy situation and to re-deploy the relevant employees at risk of redundancy; and]
- used our reasonable endeavours to limit your liability under this clause.
- similarly indemnify us in relation to any statutory redundancy payments, contractual redundancy payments, statutory notice pay and contractual notice pay that may arise in relation to the relevant employees on the expiry of this Agreement, in the event that there is no TUPE transfer on exit, for example where you cease trading, suspend the Services (for an extended period of time such that a redundancy situation arises) and/or cease to commission the Services.
Without limiting its other rights or remedies, once the initial term of this Agreement has expired either party may terminate this Agreement by giving the other party 13 weeks written notice.
Without limiting its other rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party (being an individual) is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
- the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in the above bullet points;
- the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
- your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under this Agreement have been placed in jeopardy; or
- the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
Without limiting our other rights or remedies, we may terminate this Agreement with immediate effect by giving written notice to you, if you fail to pay any amount due under this Agreement on the due date for payment and fail to pay all outstanding amounts within 14 days after being notified in writing to do so.
Without limiting its other rights or remedies, we may suspend provision of the Services under this Agreement or any other agreement between us if the you become subject to any of the events listed in the above bullet points, or we reasonably believes that you are about to become subject to any of them, or if you fail to pay any amount due under this Agreement on the due date for payment.
Consequences of termination – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
On termination of this Agreement for any reason:
- you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
- you shall return all of our equipment and materials at your premises. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement;
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry;
- clauses which expressly or by implication survive termination shall continue in full force and effect; and
- you shall not for a period of 6 months from the date of termination (except with our prior written consent) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from our employment any of our employees engaged in the provision of the Services. If you breach this obligation you shall (without prejudice to any other rights and remedies that we may have) on demand pay to us a sum equivalent to six month’s basic salary for each employee plus the recruitment costs incurred by us in replacing that employee.
Given the short-lived and recurrent nature of the Services if you have any complaint regarding the services you must communicate that complaint to us in writing (to our e-mail address: firstname.lastname@example.org) as soon as possible and in any event within 48 hours of the subject matter of the complaint coming to your attention.
Upon receipt of a complaint we will immediately take steps to investigate and resolve it.
If you fail to report a complaint to us within 48 hours, such that we are effectively deprived of the opportunity to properly investigate and resolve that complaint, then we will be entitled to simply reject that complaint for lack of adequate notice.
If any dispute arises in connection with this Agreement, we will attempt to settle it by negotiation with you, but if that is not possible we will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (‘CEDR’) Model Mediation Procedure. Unless otherwise agreed between us within 14 days of notice of the dispute, the mediator will be nominated by CEDR.
We shall not be liable for any delay in performing the Services under this Agreement if such delay is caused by circumstances beyond our reasonable control. In such circumstances we shall be entitled to a reasonable extension of time for the performance of the Services. Sometimes we will be unable to do what we have agreed due to something beyond our reasonable control. If this happens we do not accept any responsibility for what has occurred.
Except as set out in these Terms, no variations of this Agreement, including the introduction of any additional terms and conditions, shall be effective, unless it is agreed in writing and has been signed by us.
A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by either of us in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between us, nor constitute either party the agent of the other for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other in any way.
A person who is not a party to this Agreement shall not have any rights to enforce its terms.
This Agreement supersedes all prior agreements arrangements and understandings between you and us and constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in this Agreement. No variation of any provision of this Agreement shall be binding upon you or us unless agreed in writing between us.
Save as expressly provided in this Agreement neither you nor we shall assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).
We may enter into any sub-contract with any person for the provision of the Services and the performance of any part of our obligations under this Agreement. We shall not be relieved from any of our obligations to you under the Agreement by entering into any sub-contract for the provision of the Services or the performance of any part of this Agreement.
Any notice or other communication given to either of us under or in connection with this Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as you or we may have specified to the other in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the above address, if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or if sent by fax or e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
If any provision or part-provision of this Agreement 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 this Agreement.
If either of us gives notice to the other of the possibility that any provision or part provision of this Agreement is invalid, illegal or unenforceable, then we shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Governing law and jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
We irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).