1. Parties, Definitions and Interpretation
In these terms and conditions (which are referred to in this document as “these terms”), “Customer” means the customer for whom the Works are to be carried out by LUCKYS CONSTRUCTION, “LUCKYS CONSTRUCTION” means Luckys Construction Limited (“LCL”) or, as the case may be, a franchisee of LCL carrying on business pursuant to a Franchise Licence Agreement entered into with LCL, “Contract” means the agreement between the Customer and LUCKYS CONSTRUCTION to carry out the Works of which these terms form a part and (where these terms are a schedule to a signed agreement between the Customer and LUCKYS CONSTRUCTION) that agreement, “Works” means the works described in LUCKYS CONSTRUCTION’s estimate and/or as referred to in LUCKYS CONSTRUCTION’s Work Detail Sheet or any other document or email issued by LUCKYS CONSTRUCTION, as may be varied by agreement in writing between the parties. For the purposes of these terms, “in writing” and “written” include by email and any document which is set out in a hand held device and any signature on a hand held screen shall be treated as in writing. In these terms words importing the masculine gender also include the neuter and the feminine gender and words importing the singular number include also the plural number, where the context so requires.
2. General
2.1 : The Customer will be treated as an Account Customer or a Non-Account Customer, according to LUCKYS CONSTRUCTION’s reasonable discretion.
2.2 : All estimates given by LUCKYS CONSTRUCTION, all orders and instructions given by the Customer, and all work authorisations, are governed by these terms. They supersede any other terms appearing elsewhere and override and exclude any other terms stipulated or incorporated or referred to by the Customer, whether in the order or instructions or in any negotiations or in any course of dealing established between LUCKYS CONSTRUCTION and the Customer, except where these terms are a schedule to a signed agreement between the Customer and LUCKYS CONSTRUCTION, in which event these terms apply only to the extent not inconsistent with that agreement.
2.3 : The Customer acknowledges that LUCKYS CONSTRUCTION has not made any representations (other than any expressly stated in the Contract and/or in LUCKYS CONSTRUCTION’s estimate) which have induced it to enter into the Contract and the Contract shall constitute the entire understanding between the Customer and LUCKYS CONSTRUCTION for the performance of the Works.
2.4 : No modification to the Contract shall be effective unless made by an express written agreement or email exchange between the parties. The signing on behalf of LUCKYS CONSTRUCTION of any documentation of the Customer shall not imply any modification of the Contract.
2.5 : Nothing in this Contract is intended to confer on any person any right to enforce any term which that person would not have but for The Contracts (Rights of Third Parties) Act 1999. Accordingly, a person who is not a party to this Contract shall have no rights under that Act to enforce any of its terms, but this does not affect any right or remedy of such person which exists or is available apart from that Act.
3 : The Price, Estimates and Variations
3.1 : Unless LUCKYS CONSTRUCTION provides the Customer with a written estimate which is accepted by the Customer in accordance with its terms, all Works will be charged on the basis of LUCKYS CONSTRUCTION’s standard Rate Card applicable at the time the Works are carried out.
3.2 : Any estimate by LUCKYS CONSTRUCTION is subject to withdrawal by LUCKYS CONSTRUCTION at any time before receipt of an unqualified acceptance from the Customer and shall be deemed to be withdrawn unless so accepted within 28 days from its date.
3.3 : Where LUCKYS CONSTRUCTION provides the Customer with an estimate which is accepted by the Customer in accordance with its terms, that estimate is a firm, fixed price quotation unless otherwise specified by LUCKYS CONSTRUCTION in the estimate and also except as follows:
3.3.1 : an estimate is based on the information made available to LUCKYS CONSTRUCTION by the Customer. If during the conduct of the Works it becomes apparent to LUCKYS CONSTRUCTION that that information was either incorrect or insufficient in any respect that LUCKYS CONSTRUCTION considers to be material, LUCKYS CONSTRUCTION reserves the right to inform the Customer and to increase the estimated price to take account of the revised information; and
3.3.2 : if prior to carrying out the Works, there is an increase to LUCKYS CONSTRUCTION of more than 10% in the cost of any relevant parts, materials or other items, equipment hire or transport since the date upon which LUCKYS CONSTRUCTION’s estimate was provided, LUCKYS CONSTRUCTION reserves the right to inform the Customer and to provide a revised estimate incorporating that increase. In this event, the revised estimate will apply unless the Customer cancels the Contract before the Works are begun or, if earlier, within 48 hours of the revised estimate being provided.
3.4 : For materials, parts or other items that are not carried as part of LUCKYS CONSTRUCTION’s standard van stock, unless it is with respect to Works for which there is an estimate which includes all collection fees, LUCKYS CONSTRUCTION charges a fixed collection fee of £50 plus VAT. Where an item is not easily sourced or generally held by the major suppliers used by LUCKYS CONSTRUCTION and it considers that significant time will need to be spent tracing and then collecting it, LUCKYS CONSTRUCTION will inform the Customer in advance and, unless the Customer sources the item itself, this will be charged on a time basis as per LUCKYS CONSTRUCTION’s standard Rate Card. It should be noted that this is an infrequent occurrence.
3.5 : LUCKYS CONSTRUCTION’s standard Rate Card is available for inspection both on LUCKYS CONSTRUCTION’s website (www.luckysconstruction.co.uk) and at LUCKYS CONSTRUCTION’s premises during normal business hours. The Rate Card specifies half hourly rates. There is a minimum charge of one hour. Subject to that, charges are made by the half hour, rounded up to the next half hour.
3.6 : Unless otherwise stated, the price and all estimates provided by LUCKYS CONSTRUCTION are shown exclusive of Value Added Tax which will be payable in addition, where properly chargeable.
3.7 : If the Works involve a diagnostic process to ascertain the cause or source of a fault or breakdown and during that process an item is ascertained by LUCKYS CONSTRUCTION to be faulty and is replaced, the Customer will be liable to pay for that replacement even if the breakdown was caused in whole or in part by a different fault.
3.8 : LUCKYS CONSTRUCTION will be entitled, in accordance with market practice, to charge a mark-up on any parts, materials and other items supplied by it, subject to a maximum mark-up of 65% of the actual cost paid by LUCKYS CONSTRUCTION for the relevant item. The mark-up will reflect, at LUCKYS CONSTRUCTION’s sole discretion, the level of trade or other discount that LUCKYS CONSTRUCTION was able to obtain from the relevant supplier.
4. : Payment and Title
4.1 : Non-Account Customers: Payment by the Customer is due on completion of the Works. Payment must be made on such completion.
4.2 : Account Customers: LUCKYS CONSTRUCTION will seek to submit invoices to the Customer within 14 days of completion of the Works and, subject to paragraph 11 below, payment must be made by the Customer within 30 days after the date of issue of the invoice.
4.3 : Snagging: Where the Works have been completed subject to snagging, 95% of all amounts outstanding must be paid on such completion and the Customer must provide access to LUCKYS CONSTRUCTION without delay to enable the snagging to be finalised. The balance of 5% will become payable upon the finalisation of the snagging or, if access has not been made available to carry out the snagging within 14 days of completion, at the expiry of such 14 day period.
4.4 : Where the Customer is represented by a third party (such as a managing agent, tenant or other occupier, contractor or other representative), in the event of non-payment by the Customer, the third party will be responsible for payment unless LUCKYS CONSTRUCTION has agreed otherwise in writing.
4.5 : In the case of consumer Customers, LUCKYS CONSTRUCTION shall be entitled to interest on a daily basis on any amount not paid on the due date for payment from such due date until payment in full at 4% above the Bank of England base rate at the relevant time together with such charges as may be incurred by any collection agent appointed by LUCKYS CONSTRUCTION (with a minimum of £40 plus VAT in the case of amounts below £1,000 and a minimum of £75 plus VAT in the case of amounts of £1,000 or more). In the case of commercial Customers, LUCKYS CONSTRUCTION will apply all relevant interest and charges as applicable under the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented from time to time by Government legislation or regulation.
4.6 : LUCKYS CONSTRUCTION shall not be required to issue or deliver any certificates, guarantees or other similar documents regarding the Works until payment has been made in full.
4.7 : Title in all parts, materials and other items supplied by LUCKYS CONSTRUCTION shall not pass to the Customer until payment for the Works has been made in full.
5 : The Works
All descriptions, illustrations, etc. contained in any catalogues, price lists or advertisements, or otherwise communicated to the Customer, are intended merely to present a general idea of the Works and nothing contained in any of them shall form
