Terms & Conditions

Standard Terms & Conditions

for Design, Supply & Construction

For the Design, Supply,Construction, repair and maintenance of all 

HIGH AND LOW ROPES, OBSTACLE, ADVENTURE AND ASSAULT COURSES

Agreement between

TECHNICAL OUTDOOR SOLUTIONS LIMITED

AND the CLIENT

1. DEFINITIONS

In these Terms and Conditions:

The terms and conditions in this document are between Technical Outdoor Solutions and the Client.

“The Contractor” means Technical Outdoor Solutions Ltd. (hereafter referred to as TOS).

“Project Costs” means the costs payable by the Client to TOS for the Works, as varied in accordance with these Terms and Conditions.

“The Client” means as such in the proposal.

“The Proposal” means TOS signed written proposal or quote including relevant technical drawings referring to these conditions.

“Works” means the design and construction of the ropes course(s) and the supply of all related goods and services to be provided by TOS as described in the Proposal.

 

 

2. CONTRACT FORMATION

The Project Contract shall come into effect upon agreement and signature or by payment of the Proposal by an authorised representative of each of TOS and the Client and all terms and conditions purporting to apply to the Works and/or the Project inconsistent with these Terms and Conditions are

3. GENERAL OBLIGATIONS

3.1  TOS shall exercise reasonable skill and care in the performance of the Works.

3.2  TOS shall ensure that the design and construction of the Products supplied under the Project Contract shall comply with statutory requirements and regulations relating to the Products and the Works at the time when the Works are carried out.

3.3  It is the responsibility of the Client to ensure that TOS has unfettered access to the premises (and, where required, mains water and electricity) as reasonably required by TOS to enable it to carry out and complete the Works without interference by the Client or End Operator. It is also the responsibility of the Client to ensure that all relevant permissions and consents have been obtained to allow TOS access to carry out the Works. Any delays caused by the failure to provide the necessary access shall be charged to the client at the daily rate of £350 per person per day (ex. VAT) plus plant hire and any other associated costs incurred.

3.4  TOS shall take reasonable precautions to minimise damage to the ground whilst working with vehicles plant and machinery. The Client accepts that should such damage occur then, unless expressly agreed otherwise and documented in the Project Contract, TOS is under no obligation to make good such damage.

3.5  If the construction is using trees then the client must have an in-date tree report for all trees that are being used. TOS accepts no responsibility for any damage to people, property or the course due to failure of a tree, trees or parts of.

3.6 It is the responsibility of the client to ensure that all necessary planning consents have been obtained prior to TOS commencing the Works and that TOS are notified by the client, in advance of commencement of those Works, of any restrictions, limitations and/or conditions imposed by planning consents and/or regulations. TOS reserves the right to amend the quote as necessary in order to comply with any such conditions.

3.7 TOS shall not be liable for the costs of removal or alteration of any Works carried out under the terms of the contract in breach of planning regulations. The Client will be liable for any additional costs incurred in such removals or alterations.

4. VARIATION

4.1  If the Client wishes to vary any of the specifications for the Works as contained in the Proposal or any variation of it, they will inform TOS who will, as soon as practicable, notify the Client of the estimated cost of the variation and the effect on the proposed timescales for the Project.

4.2  Unless the Client withdraws its request for a variation to the Proposal when the Client receives TOS’s revised estimate for the variation, the Project Costs will be adjusted in accordance with TOS (or as otherwise agreed between the Client and TOS) and an appropriate extension of time for completion of the Works shall be agreed.

4.3  If a variation is made orally, either TOS or the Client will confirm it in writing within three working days. If such a variation is not confirmed in writing it shall be deemed to not have been issued.

4.4  TOS will notify the Client if it encounters any difficulties which it could not have reasonably foreseen when submitting the Proposal and in those circumstances, a fair and reasonable adjustment to the Project Costs and proposed or agreed timescales will be made.

4.5 Even though TOS provide fixed quotes, if material prices increase between the quote and the work commencing, the extra costs will be passed onto the client.

Unforeseen encounters include the following:

a. Changing weather conditions preventing or restricting working hours; in such cases TOS reserves the right to add to the project costs the additional labour, transport, accommodation and plant hire incurred as a result of any delays caused by weather, for example (but not limited to) prevention of safe working at height or cold temperatures restricting concreting.

b. If planning permission on the Clients site is delayed and work has already been booked in, all additional costs, which can include but not limited to covering labour costs, will be born by the client. If work has not yet been booked in and material price increase, the extra material costs will be born by the client

c. Damage to undetectable underground services if not shown on service maps provided by the Client;

d. Physical conditions (other than in a and b) including sub soil conditions and/or ground contamination and/or artificial obstructions which conditions or obstructions could not, in his opinion, have been foreseen by an experienced contractor.

e. Delays caused by the actions of the Client or End Operator;

f. Delays caused by other contractors on the Client’s premises;

g. Delays caused by theft or damage to plant machinery or materials by a third party;

h. Force majeure.

4.6  TOS reserves the right not to comply with any requests for a variation which would increase the value of the Works by more than 25% of the original Project Costs.

5. PROJECT COSTS & PAYMENT

5.1  The Project Costs are stated in the Project Contract and they may be varied in accordance with these Terms and Conditions.

5.2  Payment of the deposit in the Project Contract is an acceptance by the client of these terms and conditions.

5.3   TOS shall not commence work nor order any materials until cleared funds for the deposit have been received.

5.4  The Client shall pay TOS the Project Costs in accordance with the payment terms in the Project Contract.

5.5  Late payment shall incur interest at the rate of 8% above the bank rate in accordance with The Late Payment of Commercial Debts (interest) Act 1998.

5.6 For the avoidance of doubt, TOS may exercise its statutory right to claim interest and compensation for debt recovery costs pursuant to The Late Payment of Commercial Debts (interest) Act 1998 if payment is not made according to the payment terms agreed in the Project Contract.

6. INSURANCE

6.1  TOS shall take out and/or maintain the following insurances in respect of the Project (except as otherwise agreed or stated in the Proposal):

• Construction: All Risks insurance for the full reinstatement value of the Works;
• Public Liability Insurance £10,000,000;
• Employer’s Liability Insurance £10,000,000.

6.2  On occasion the nature and/or location of the site on which the Works are to be carried out will require special insurance cover for risks not covered under TOS normal insurances (for example, if there were a gas main located under the site).  In such cases, the Client shall reimburse TOS for the additional premiums payable for such special insurance.

6.3  TOS will provide the Client, upon request during the period during which TOS is carrying out the Works, evidence that the insurances are in place and that premiums have been paid up to date.

7. HANDOVER, WARRANTY & DEFECTS LIABILITY

7.1 Upon completion of the works agreed, the following information will be provided:

(a) Overview of drawings
(b) Statement that the work conforms to the relevant standards
(c) comprehensive operations and maintenance manual

Any additional information, drawings and calculations are part of the intellectual property of TOS, unless agreed otherwise.

7.2  TOS warrants to the Client that the Works will be carried out using reasonable care and skill and, as far as reasonably possible, in accordance with the design and specification as set out in the Project Contract.

7.3  TOS shall give the Client notice of its intention to hand over the Works and give the Client and / or the end Operator the opportunity to inspect the Works prior to handover.  TOS will confirm the date of handover to the Client in writing.  On handover the Works will be certified to European Ropes Course Association (ERCA) minimum standards for design and construction in particular standard BS EN15567-1 safety requirements and test methods (or any amended, updated or revised version of such standard in effect at the date of the hand over).

7.4  TOS shall be responsible for remedying defects in the Works which appear within 5 years from the date of handover and which are notified to TOS by the Client within no longer than 7 days of such defects coming to the attention of the Client or the End Operator who shall give and/or procure that the End Operator gives TOS full access to carry out any remedial works.

7.5  Nothing in the Agreement shall limit TOS liability in respect of claims for death or personal injury caused by:

(a) the negligent or wilful acts or omissions of TOS its servants, agents or contractors in supplying, delivering and installing the Products or in carrying out the Works;

(b) the breach of any provision of the Project Contract by TOS;

(c) any defect in the workmanship, materials or design of the Products.

7.6  Where TOS supplies in connection with the provision of the Works any goods supplied by a third party, TOS does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person or company supplying the goods to TOS.

7.7  TOS shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from:

(a) any instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, which constitute a misunderstanding or miscommunication between the Client and the End Operator or from any other fault of the Client or the End Operator.

(b) use of the Products other than in accordance with European Ropes Course Association (ERCA) standards and in particular standard BS EN15567-2 operational requirements.

7.8  Except in respect of death or personal injury caused by TOS’s negligence, or as expressly provided in these Terms and Conditions, TOS shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Project Contract, for any indirect, special or consequential loss, damage, costs, expenses or other claims including but not limited to loss of profit or loss of use (whether caused by the negligence of TOS, its servants or agents or otherwise) which arise out of or in connection with the Works (including any delay in providing or failure to provide the Works).

8. TERMINATION                                                                                                    

8.1  TOS may give notice to terminate the Project Contract if the Client fails to make any payment becoming due within 30 days of the due date or commits any other material breach of the Project Contract.

8.2  The Client may give notice to terminate the Project Contract if TOS commits a material breach of the Project Contract and, in the case of a breach capable of remedy fails to take steps to remedy the breach within 30 days of being requested to do so in writing.

8.3  Either party may terminate the Project Contract if the other party becomes insolvent or has a receiver, manager or administrative receiver or liquidator appointed.

8.4  Termination will not affect the accrued rights and liabilities of the parties at the termination date.

9. ENTIRE AGREEMENT                                                                                   

The Proposal and these Terms and Conditions constitute the only agreement between the parties and supersede any previous arrangements, agreements or understandings relating to the Works.

10. DISPUTES

10.1 Each party to the contract has the right to invoke adjudication as set out in s. 108 The Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009.

10.2  If necessary, every dispute will ultimately be determined by the courts of England.

11. GOVERNING LAW

The contract will be governed by the laws of England.