After Build’s Terms and Conditions

As a business it’s important to us to work well with all of our customers. In order to maintain an excellent quality of service across the board, we are obliged to remind our customers of their obligations when it’s needed. Please read our Terms and Conditions which will apply to all our commercial contracts. You see below the terms of business which we will apply and our right’s to pursue as needed.

Definitions

a) “Client Care Manager” shall mean After Build Limited;

b) “Property” shall mean “Plot” and vice versa and both shall mean the address referred to in schedule 1;

c) “Purchaser” shall mean the party committed to purchasing the Property;

d) “Occupant” shall mean the person(s) living at the Property;

e) “Homeowner” shall mean the legal owner of the Property;

f) “Development” shall mean the geographical location of the Property;

g) “Defect” shall mean a legitimate build problem, including snags, that 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);

h) “Original Contractor” shall mean a contractor involved in the construction of the Property;

i) “Nominated Contractor” shall mean the contractor appointed by the Client to receive calls and instructions from the Client Care Manager out of hours to attend a legitimate Emergency;

j) “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;

k) “Latent Defects” shall mean a Defects that was reported and resolved within the Builder’s Rectification Period but has subsequently recurred beyond the end of said period;

l) “Service” shall mean the Service as listed in Schedule 2;

m) “Wear and Tear” shall mean Property problems arising from general use;

n) “Damage” shall mean Property problems arising from an accident or misuse;

o) “Consequential Damage” is damage attributable to the consequences of a Defect e.g. damaged decoration due to a plumbing leak;

p) “The 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 2.

1.3 During the period of the Client Service Agreement, the Client Care Manager may accept and perform engagements from other companies, firms or persons.

2 Confidentiality
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.

3 Commencement and Termination

3.1 The Client Service Agreement shall commence on the Effective Date and shall continue for the term specified in Schedule 1.

3.2 Notwithstanding paragraph 3.1, either party may terminate the Client Service Agreement immediately by giving written notice to the other where:

3.2.1 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; 3.2.2 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;

3.2.3 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;

3.2.4 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.

3.3 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.

3.4 Termination of the Client Service Agreement as provided above shall not put an end to the obligations contained in clause 2 (Confidentiality). A penalty shall be payable by the Client to the Client Care Manager of £5 per Property per month (outstanding) in the event that 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 3.2). See Schedule 1.

4 Payment

4.1 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 shall conclude on the first or second anniversary (as determined by the Client Service Agreement) of the legal completion date, practical completion date or other date agreed, of the Property at the Development.

4.1.1 Where the Service is based on a Fixed Price Per Plot (FPPP), 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 as specified in Schedule 1. Payment terms are 28 days from the date of invoice;

4.1.2 Where the Service is based on a Fixed Price Per Defect (FPPD), every legitimate Defect shall be invoiced in the month reported. Payment terms are 28 days from the date of invoice;

4.1.3 Site services are invoiced in the month of delivery. Payment terms are 28 days.

4.1.4 All other charges. Payment terms are 28 days from the date of invoice;

4.2 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 prevailing bank base rate.

5 Divisibility Clause

a) Goods: This contract 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: This contract is divisible. The work performed in each period during the currency of the contract shall be invoiced separately. Each invoice for work performed in any period shall be payable by the customer 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.

6 The Client Care Manager’s obligations

6.1 The Client Care Manager shall at all times during the period of the Client Service Agreement:

6.1.1 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; 6.1.2 notify the Client of any Defects for which the Client remains responsible (updating the Client Portal: clientservices.uk.com);

6.1.3 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 performed;

6.1.4 keep a detailed audit of all jobs reported and all notice of Defects issued to the Contractor including 7- day notices.

7 The Client’s obligations

7.1 The Client shall at all times during the period of the Client Service Agreement:

7.1.1 diligently assist the Client Care Manager in performing its duties under the Customer Service Agreement; 7.1.2 notify the Client Care Manager within 2 working days of all legal completion dates as they arise; 7.1.3 remain responsible for the cost and resolution of all Defects;

7.1.4 remain responsible for the cost, management and resolution of all Defects and any other build related problems pre-existing the commencement of the Client Service Agreement;

7.1.5 remain responsible for the cost of any accommodation requirements that may arise should the Home Owner/ the Occupant be unable to remain within the Property while work is arranged or as the result of problems arising with the Property;

7.1.6 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;

7.1.7 in circumstances where the Client Care Manager instructs an alternative contractor, the Client shall accept and pay the Client Care Manager for those invoiced charges for labour and materials;

7.1.8 the responsibility to apportion costs by individual job shall remain the responsibility of the alternate contractor who shall agree with the Client an acceptable process by which to achieve this.

8 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.

9 Waiver

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.

10 Limitation

10.1 Subject to clause 9.3, under no circumstances shall the Client Care Manager be liable for any special, indirect or consequential damage of any nature whatsoever.

10.2 Subject to clause 9, 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.

10.3 Nothing in this clause 9 will operate or be construed to operate so as 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.

11 Notices

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.

12 Law, Jurisdiction and Dispute Resolution

12.1 The Client Service Agreement shall be construed in accordance with English Law.

12.2 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.

12.3 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.

13 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 the 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.

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