THE INFORMATION AND SERVICE RESOURCE FOR NEW HOMES DEVELOPERS
TERMS AND CONDITIONS
Property shall mean Plot and vice versa and both shall mean the address referred to in Schedule 1.
Purchaser shall mean the party committed to purchasing the Property.
Occupant shall mean the person living at the Property.
Homeowner shall mean the legal owner of the Property.
Development shall mean the geographical location of the Property.
Snag shall mean any aspect of the Property that is unfinished, damaged, missing or not working, at legal completion.
Builder’s Rectification Period shall mean the period of 2 years following the legal completion of the Property.
Defect shall mean a legitimate build problem that has occurred after legal completion, and is a breach of any mandatory warranty requirement, and as such deemed by the warranty provider as a problem that needs to be resolved if reported during the Builder’s Rectification Period (years 1-2 of the 10-year warranty).
Original Contractor shall mean a contractor involved in the construction of the Property.
Nominated Contractor shall mean a contractor appointed by the Client to receive calls and instructions from the Client Care Manager out of hours to attend a legitimate Emergency.
Alternative Contractor shall mean a contractor which has been approved or appointed by the Client in place of the Original Contractor or Nominated Contractor.
Emergency shall mean a sudden and unforeseen incident immediately creating a risk to the health of the Occupant(s) and/or damage to the Property rendering it uninhabitable, insecure, or dangerous.
Latent Defect shall mean a Defect that was reported and resolved within the ‘Builder’s Rectification Period’ but has subsequently recurred beyond the end of said period.
Service shall mean the Service identified in Schedule 2.
Wear and Tear shall mean Property problems arising from general use.
Damage shall mean Property problems arising from an accident or misuse.
Consequential Damage is damage attributable to the consequences of a Defect e.g., damaged decoration due to a plumbing leak.
Effective Date shall mean the date when the Client signs the Client Service Agreement.
1. The Service
1.1 The Client Care Manager has offered, and the Client has accepted, the terms set out in the Client Service Agreement to provide the Service to the Client in relation to the Property in Schedule 1.
1.2 The Client Care Manager shall provide the Service at such times and dates as required by the obligations in Schedule 3.
1.3 The After Care service meets the obligations placed on the Client by the Builder’s Rectification Period and the Client Care Manager shall:
1.3.1 Manage all legitimate build Defects reported during the Builder’s Rectification Period.
1.3.2 Provide Out of Hours Emergency registration and management.
1.3.3 Manage an allowance of 3 Snags per Plot.
1.3.4 A charge of £35 per snag shall be applied to those Snags over the allowance.
1.3.5 Manage the Original Contractor, Nominated Contractor, or Alternative Contractor to
attend the Property to rectify a Snag or Defect as described in the Client Care Manager’s Job
1.3.6 The contractors in clause 1.3.5 above shall carry out these instructions either as a part of
their aftercare responsibilities to the Client, or because of payments made to them by the
1.3.7 The Client Care Manager shall not be liable for the contractors’ costs.
1.4 During the period of the Client Service Agreement, the Client Care Manager may accept and perform
engagements from other companies, firms, or persons.
2. New Homes Quality Code (see: https://www.nhqb.org.uk/#code)
2.1 As Client, you agree to observe the New Homes Quality Code (2022). Specifically, this requires that:
2.1.1 You undertake to resolve Snags prior to legal completion, save for any minor issues e.g.,
decorative where, it is understood that there could be 2 or 3 such outstanding issues
at this stage.
2.1.2 Any outstanding issues at legal completion must be resolved within 30 days.
2.1.3 You accept that where an Original Contractor may not be able or willing to receive an
instruction to resolve either Snags or Defects, that you make available funds to facilitate an
Alternative Contractor to carry out the work.
The parties will at all times keep confidential the terms of the Client Service Agreement and any other information acquired in consequence of the Client Service Agreement, except for information which they are bound to disclose by law, or they are requested to disclose by regulatory agencies or information given to their professional advisers and the Contractor for the performance of their professional services and customers, where reasonably necessary.
4. Commencement and Termination
4.1 The Client Service Agreement shall commence on the Effective Date and shall continue for the term specified in Schedule 1.
4.2 Notwithstanding paragraph 4.1, either party may terminate the Client Service Agreement immediately by giving written notice to the other where:
4.2.1 that other party (being a natural person) dies, is imprisoned or suffers injury or
illness such that the Client Service Agreement cannot be performed or (being a
partnership or other unincorporated association) is dissolved.
4.2.2 that other party, being a company, passes a resolution for winding up (other than
for the purposes of a solvent reconstruction or amalgamation where the resulting entity
assumes all of the obligations under the Client Service Agreement of the relevant party)
or a court makes a winding up order in respect of that other party or that other party
has a receiver, administrative receiver, manager or administrator appointed of all or part
of its undertaking and assets.
4.2.3 that other party ceases or threatens to cease to carry on its business or is unable
to pay its debts or becomes insolvent (within the meaning of the Insolvency Act 1986) or
makes or proposes to make any arrangement or composition with its creditors.
4.2.4 is in material breach of any term of the Client Service Agreement and has failed to
remedy the breach within 7 days after receiving notice in writing requiring it to do so.
4.3 Any termination of the Client Service Agreement shall be without prejudice to the rights of either party against the other in respect of anything done or omitted hereunder prior to such termination or in respect of any sums or other claims outstanding at the time of such termination.
4.4 Termination of the Client Service Agreement as provided above shall not put an end to the obligations contained in clause 3 (Confidentiality). A penalty shall be payable by the Client to the Client Care Manager of £5 per Property per month (outstanding) if the Client notifies the Client Care Manager of their intention to terminate the Client Service Agreement prematurely or fails to fulfil the volume commitment during the full term of the Client Service Agreement (for any reason except those under their rights in clause 4.2). See Schedule 1.
5.1 In consideration of the Service to be provided by the Client Care Manager, the Client shall pay the Client Care Manager the Set-Up fee and/or Registration fee as specified in Schedule 1. The Set-Up fee and/or Registration fee shall be invoiced at the Effective Date. Payment terms are 7 days from the date of invoice. The Service shall commence when advised by the Client, and for After Care service shall commence no sooner than the legal completion date and shall conclude on the first or second anniversary (as determined by the Client Service Agreement) of the legal completion date of the Property at the Development.
5.1.1 The Set-Up fee shall be deducted from the total cost of Services, the balance of
which shall be paid monthly from the commencement of Services in Schedule 1. Payment
terms are 28 days from the date of invoice.
5.1.2 Site services are invoiced in the month of delivery. Payment terms are 28 days from the
date of invoice.
5.1.3 All other charges. Payment terms are 28 days from the date of invoice.
5.2 The Client Care Manager reserves the right to add interest to all overdue payments at the prevailing statutory level i.e., the government approved 8% over bank base rate.
5.3 The Client Care Manager reserves the right to suspend the Service if the Client is delinquent in the maintenance of their payments i.e., where payments are overdue by more than 60 days.6. Divisibility Clause
6. Divisibility Clause
a) Goods: The Client Service Agreement is divisible. Each delivery made hereunder:
i) Shall be deemed to arise from a separate contract, and
ii) shall be invoiced separately and any invoice for a delivery shall be payable in full in
accordance with the terms of payment provided for herein without reference to and
notwithstanding any defect of default in the delivery of any other instalment.
b) Services: The Client Service Agreement is divisible. The work performed in each period
during the currency of the Client Service Agreement shall be invoiced separately. Each
invoice for work performed in any period shall be payable by the Client in full, in accordance
with their terms of payment provided for herein, without reference to and notwithstanding
any defect or default in the work performed or to be performed in any other period.
7. The Client Care Manager’s Obligations
7.1 The Client Care Manager shall always during the period of the Client Service Agreement:
7.1.1 faithfully and diligently perform the Service with at least reasonable skill and care. All
other warranties, conditions or other terms implied by statute or common law are
excluded to the fullest extent permitted by law.
7.1.2 notify the Client of any Defects for which the Client remains responsible (updating the
Client Portal: clientservices.uk.com).
7.1.3 when reasonably required give to the Client (or to such other person or persons as it
may direct) such written or oral advice or information regarding any of the Services
7.1.4 keep a detailed audit of all jobs reported and all notice of Defects issued to the
contractor including 7- day notices.
8. The Client’s Obligations
8.1 The Client shall always during the period of the Client Service Agreement:
8.1.1 diligently assist the Client Care Manager in performing its duties under the Client Service Agreement.
8.1.2 notify the Client Care Manager within 2 working days of all legal completion dates as
8.1.3 remain responsible for the cost and resolution of all Snags and Defects.
8.1.4 remain responsible for the cost, management and resolution of all Snags and Defects
and any other build related problems pre-existing the commencement of the Client Service
8.1.5 remain responsible for the cost of any accommodation requirements that may arise
should the Home Owner/Occupant be unable to remain within the Property while
work is arranged or as the result of problems arising with the Property.
8.1.6 shall not (and whether directly or indirectly solely or jointly and whether on your own
behalf or on behalf of any other person, firm or company), solicit, endeavour to entice or
accept the services of any person who at any time during the period of engagement has
been an employee of the Client Care Manager.
8.1.7 in circumstances where the Client Care Manager instructs an Alternative Contractor,
the Client shall accept and pay those invoiced charges for labour and materials.
8.1.8 the responsibility to apportion costs by individual job shall remain the responsibility
of the Alternative Contractor who shall agree with the Client an acceptable process by
which to achieve this.
9.1 All contractors, whether Original Contractors, Nominated Contractors or Alternative Contractors remain the Client’s responsibility. Such responsibility shall include, but not be limited to, that contractor’s standard of work, reliability and charging structure.
9.2 Where the Client Care Manager assists in sourcing an Alternative Contractor, the responsibility for that contractor, remains with the Client, as explained in 9.1 above.
9.3 All costs arising from work conducted by a contractor shall be the Client’s liability.
9.4 The Client Care Manager shall not be liable for a contractor’s costs.
10. Assignment and Subcontracting
The Client Care Manager may sell, assign, sub-contract or transfer any duties, rights or interests created under the Client Service Agreement subject to the provision of prior written notice to the Client.
Failure or delay by either party to exercise any rights resulting from a breach of the Client Service Agreement by the other shall not be a waiver of such rights in such breach or any subsequent breach.
12.1 Under no circumstances shall the Client Care Manager be liable for any special, indirect, or consequential damage of any nature whatsoever.
12.2 The liability of the Client Care Manager to the Client arising out of or in connection with the Client Service Agreement, shall be limited to £5,000,000 for all Public Liability claims made against the Client Care Manager arising from any one occurrence and £5,000,000 for all Product Liability claims made against the Client Care Manager for any one occurrence. Additionally, the Client Care Manager shall have Employer’s Liability cover of up to £10,000,000 for any one claim or series of claims arising out of any one cause.
12.3 Nothing in the Client Service Agreement will operate or be construed to operate to exclude or restrict the liability of the Client Care Manager for fraud or death or personal injury caused by the negligence of the Client Care Manager.
Any notice to be given by a party under the Client Service Agreement must be in writing and must be given by delivery at or sending first class post or facsimile transmission or other means of telecommunication in permanent written form to the last known postal address or relevant telecommunications number of the other party. Where notice is given by sending in a prescribed manner it will be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it will be sufficient to show it was dispatched. A notice will have effect from the sooner of its actual or deemed receipt by the addressee.
14. Law, Jurisdiction and Dispute Resolution
14.1 The Client Service Agreement shall be construed in accordance with English Law.
14.2 Either party has the right to refer any dispute or difference arising under, out of or in relation to the Client Service Agreement to adjudication in accordance with the Technology and Construction Solicitors Association Adjudication Rules current at the date of the Client Service Agreement.
14.3 Subject to clause 11.2, any dispute or difference arising under, out of or in relation to the Client Service Agreement shall be submitted to the jurisdiction of the English courts.
15. Contracts (Rights of Third Parties) Act 1999
A person who is not party to the Client Service Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Client Service Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.