Terms & Conditions
Introduction
Activity First is a Community Interest Company based in the UK. We help communities to create places for self-organised activity, providing resources, advocacy, and expertise to drive change.
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TERMS & CONDITIONS
Activity First CIC Terms and Conditions for work undertaken either by contract or gratis to community groups, councils, private clients, charities etc.
Please note that these terms headed “Activity First CIC Terms and Conditions apply to all works projects and any products ordered from Activity First CIC for installation projects.
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Definitions
Gratis means services, documentation, research or works carried out without charge.
Customer means the person to whom the Quotation is addressed.
Commencement Date means the date agreed in writing by Activity First CIC for commencement of the Works, as adjusted in accordance with the Contract.
Conditions means these terms and conditions.
Contract means the agreement between Activity First CIC and Customer for the carrying out and completion of the Works by Activity First CIC for the Customer as set out in the Quotation, the Conditions and the Order Acknowledgement.
Order Acknowledgement means the letter or email from Activity First CIC to the Customer confirming receipt of the Customer’s acceptance of the Quotation.
Activity First CIC means Activity First CIC a company registered in England and Wales with company number 15859397 and whose registered office is at Unit 1 Office 1 Tower Lane Business Park, Tower Lane Warmley, Bristol, BS30 8XT
Price means the sum stated in the Quotation as the sum to be paid by the Customer to Activity First CIC, as adjusted in accordance with the Contract.
Quotation means the quotation document provided by Activity First CIC to the Customer for the Works to which the Conditions apply.
Works means the documentation or services (where so agreed in writing) and works to be carried out by Activity First CIC as specified in the Quotation.
2. Primary Obligation
2.1 Activity First CIC shall, upon and subject to the terms of the Contract, carry out and complete the Works within a reasonable time and be paid the Price (as adjusted pursuant to these Conditions), together with any VAT payable thereon at the rate prevailing at the time of invoice, which shall be payable in accordance with these Conditions.
3. Offer and Acceptance
3.1 Unless expressly withdrawn, the Quotation is open for acceptance for 30 days from its date.
3.2 In the event of a conflict or inconsistency between the Contract documents, the order or priority shall be:
3.2.1 The Conditions;
3.2.2 The Order Acknowledgement;
3.2.3 The Quotation; and
3.2.4 Any other documents or information supplied by the Customer.
3.3 The Customer’s acceptance of Activity First CIC quotation constitutes an offer by
Activity First CIC to the Customer. The Customer’s acceptance of that Quotation will only be deemed to be accepted when Activity First CIC issues an Order Acknowledgement to the Customer in respect of that Quotation or, if such offer has not otherwise already been accepted, and the Customer invites Activity First CIC to commence the Works, Activity First CIC commencing the Works shall constitute acceptance of the Quotation.
3.4 The Contract shall come into existence when the Customer’s acceptance of Activity First CIC Quotation is accepted by Activity First CIC in accordance with clause 3.3 above.
4. Performance
4.1 Activity First CIC shall carry out the works and services using reasonable skill and care.
4.2 The Customer will provide general attendance free of charge to enable Activity First CIC to carry out and complete the Works in accordance with the Contract.
4.3 Activity First CIC shall be permitted to carry out the Works to its programme allowing continuity of work in a proper sequential manner.
4.4 If, by the final date for payment in respect of any invoice submitted by Activity First CIC, the Customer fails to pay the full amount stated in any invoice after deducting the amount referred to in Pay Less Notice served in accordance with clause 12.8, Activity First CIC may suspend the performance of all or any of its obligations under this Contract. Such right is subject to Activity First CIC first giving the Customer at least 24 hours notice in writing of such intention and stating the grounds for suspension by reference to the invoice concerned and the amount which Activity First CIC states is due. The right to suspend performance of the obligations shall cease on payment of the amount due to Activity First CIC. Any period of suspension shall be disregarded for the purposes of contractual time limits (if any) and the Customer shall pay Activity First CIC a reasonable amount in respect of costs and expenses reasonably incurred by Activity First CIC as a result of the exercise of this clause. Such amount may be claimed in any subsequent invoice for payment issued by Activity First CIC.
4.5 The Customer may cancel the Works at any time before the Commencement Date. If the Customer cancels the Works, its liability to Activity First CIC arising from the cancellation shall be calculated as follows: Cancelation more than 4 weeks prior to the Commencement Date: 25% of the Price; Cancelation 3 – 4 weeks prior to the Commencement Date: 50% of the Price; Cancelation less than 3 weeks prior to the Commencement Date: 100% of the Price.
5. Date for Commencement and Delay to Commencement
5.1 Subject to the Customer complying with any pre-commencement activities including, without limitation, obtaining any relevant consents or permissions, Activity First CIC shall commence the Works on the Commencement Date and shall carry out and complete the Works within a reasonable time.
6.2 Where a delay to the Commencement Date or the Works arises for reasons beyond Activity First CIC control (including, without limitation a variation pursuant to clause 10 or delay due to making and/or determining statutory applications and/or giving notices in relation to the Works) Activity First CIC shall be entitled to an adjustment in the Price to reflect its reasonable additional costs incurred as a consequence thereof.
6.3 Activity First CIC shall have no financial liability for late completion of the Works.
7. Exclusions from the Works
Activity First CIC shall have no liability, whether in tort (including for negligence or breach of statutory duty), contract, breach of statutory duty, misrepresentation or otherwise to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any damage to underground services on the Site save where Activity First CIC has been advised by the Customer prior to the date of the Contract in writing of the location of underground services on the Site by reference to a detailed plan.
8. Instructions
Activity First CIC shall use reasonable endeavours to comply with any instruction and any decision of the Customer issued or made under or pursuant to this Contract in relation to the Works (provided that such instruction or decision shall not change the Works to any material extent) and any such instruction or decision shall have effect except to the extent that it is varied by the Customer or under the dispute resolution procedures under this Contract provided always that such Customer instructions or decisions may only be given by a duly authorised representative of the Customer or a person holding them self out to be a duly authorised representative of the Customer. Activity First CIC shall be entitled to payment of its reasonable additional costs incurred because of such instruction or decision.
9. Variations
9.1 The Contract is a fixed price lump sum contract.
9.2 The Customer may not make any variation or addition to or omission from the Works or change the Commencement Date without Activity First CIC’s consent, which will not be unreasonably withheld. Activity First CIC shall notify the Customer of any amendments to the Price as a result of such change.
9.3 The following events shall be deemed variations to the Works:
9.3.1 Any changes to the Works instructed by the Customer and agreed by Activity First CIC under clause 10.2 above;
9.3.7 Any delay and/or change to the Works which is caused by
9.3.7.1 any inadequate, ambiguous or incorrect information, instructions, specifications that are provided by the Customer;
9.3.7.3 a breach by the Customer of its obligations pursuant to clause 19 of these Conditions.
9.4 In the event of a variation under clause 10.3 arising Activity First CIC shall be entitled to an adjustment in the Price to reflect payment of its reasonable additional costs incurred as a consequence thereof and Activity First CIC shall be provided with additional time to complete the Works.
9.5 The amount to be paid or allowed therefore shall be such fair and reasonable sum as shall be determined by Activity First CIC, having regard to the Price.
10. Payment
10.1 Unless stated otherwise elsewhere in the Contract, Activity First CIC shall following deemed receipt of the Order Acknowledgement require the Customer to pay a deposit of up to 50% of the value of the Contract.
10.2 Subject to clause 12.1, the Price shall be paid in intervals set by Activity First CIC as they see fit.
10.3 Activity First CIC shall submit to the Customer an invoice for each instalment of the Price specifying the sum that Activity First CIC considers will become due on the payment due date and the basis on which that sum is calculated.
10.4 Payment shall be due on the date the Customer receives each invoice.
10.5 The final date for payment shall be 7 days after the date on which the invoice is dated
10.6 No later than five days after the invoice date, the Customer shall notify Activity First CIC of the sum that the Customer considers to have been due at the payment due date and the basis on which that sum is calculated (the Payment Notice).
10.7 Unless the Customer has served a notice under clause 12.8, it shall pay Activity First CIC the sum referred to in the Payment Notice (or if the Customer has not served a Payment Notice, the sum referred to in the invoice) (the ‘Notified Sum’) on or before the final date for payment.
10.8 Not less than five days before the final date for payment the Customer may give to Activity First CIC a notice that it intends to pay less than the notified sum (a Pay Less Notice). Any Pay Less Notice shall specify the sum that the Customer considers to be due on the date the notice is served and the basis on which that sum is calculated.
10.9 If the Customer fails to pay any sum due to Activity First CIC within the time specified herein the Customer shall pay to Activity First CIC, in addition to the sum due, interest thereon calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
11. Termination
11.1 Activity First CIC may terminate the Contract immediately upon receipt by the Customer of a written notice to the Customer at its registered office or last known address or abode, if the Customer has::
11.1.1 become bankrupt or insolvent or compound with creditors, or a resolution be passed or proceedings be commenced for the liquidation of the Customer; or
11.1.2 suspended the Works for a continuous period or combined periods of 3 months or more; or
11.1.3 failed or refused to allow Activity First CIC to commence the Works within the period of 3 months from the date of the Contract’;
11.1.4 breached its obligations under this Contract.
11.2 On termination pursuant to clause 11.1, the Customer shall indemnify Activity First CIC in respect of:
11.2.1 all sums that are due to Activity First CIC pursuant to this Contract but have not yet been paid;
11.2.2 all works carried out by Activity First CIC prior to the termination date in accordance with the Contract (including, without limitation, demobilisation costs) which had not yet been invoiced;
11.2.3 all direct and indirect costs, expenses, and losses that Activity First CIC incurs as a result of the termination. Activity First CIC shall submit an invoice for the payment of these sums in accordance with clause 12 of these Conditions.
11.3 Termination pursuant to this clause 15 shall be without prejudice to any other rights or remedies either party might have under or arising in connection with this Contract.
12. Entire Agreement Clause
12.1 The Contract constitutes the entire agreement between the parties and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties. Each party acknowledges that, in entering into this Contract, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Contract or not) other than as expressly set out in this Contract.
12.2 The Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
12.3 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
12.4 If any provision of this Contract is held to be void or unenforceable, the enforceability of the other provisions shall not be affected.
12.5 No amendment to the terms of this Contract shall be effective and binding unless it is recorded in writing and signed by both parties.
12.6 All intellectual property rights, registered or unregistered, including but not limited to patents, trademarks, document rights and know-how remain the property of Activity First CIC and cannot be used by the Customer without Activity First CIC prior written permission.
12.7 Any notices to be given by either party to the other may be served by email, personal service or post to the address of the other party given in the Contract or such other address as such party may from time to time have communicated to the other in writing, or that party’s last known registered office, place of business or address. If sent by email or delivered personally, notice is deemed to have been received on the same day it was sent or delivered. If sent by post it shall deemed to have been served on the second day after the posting.
13. Limitation of liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 Nothing in this Contract shall limit or exclude Activity First CIC liability for:
13.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2 fraud or fraudulent misrepresentation; or
13.2 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.3.1 Activity First CIC shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss
of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill or any indirect or consequential loss; and 1
13.3.2 Activity First CIC total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Works that the event giving rise to liability relates to.
13.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14. Customer’s Obligations
14.1 The Customer shall:
14.1.1 ensure that any applicable specification or information it provides to Activity First CIC meet its requirements and are complete and accurate;
14.1.2 co-operate with Activity First CIC in all matters relating to the Works;
14.1.3 provide Activity First CIC, its employees, agents, consultants and subcontractors, with access to all documentation and facilities as reasonably required by Activity First CIC;
14.1.4 provide Activity First CIC with such information and materials as Activity First CIC may reasonably require in order to supply the Works, and ensure that such information is accurate in all material respects;
14.2 If Activity First CIC performance of any of its obligations under the Contract in respect of the Works is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
14.2.1 Activity First CIC shall without limiting its other rights or remedies have the right to suspend performance of all or any part the Works until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Activity First CIC performance of any of its obligations;
19.2.2 Activity First CIC shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Activity First CIC failure or delay to perform any of its obligations as set out in this clause 19.2; and
19.2.3 the Customer shall indemnify Activity First CIC on written demand for any costs or losses sustained or incurred by Activity First CIC arising directly or indirectly from the Customer Default by way of an adjustment to the Price.