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"Works carried out by XXX Ltd are carried out in strict agreement to our Terms & Conditions. (copy available on request)"

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Hello,

 

Does adding the following to the bottom of an email make the T&C binding?

 

"Works carried out by XXX Ltd are carried out in strict agreement to our Terms & Conditions. (copy available on request)"

 

A bit of context.  We had a builder do some work, its not gone to plan.  They are now asking for more money stating that the original price was a 'budget' (it was stated as a budget) and their T&C state then can change the amount billed.  They are asking for £several 000's more than 'budget'.  We had a specification which was agreed, they invoiced us and we paid in chunks.  They then said we had to pay the final amount before the work had completed stating that they had changed their T&C (that we didn’t signed) and to complete the work we had to pay the final balance.  Reluctantly, we had to do this to avoid holding up other work.

 

Fast forward 6 months, the work is not complete, they had to rework several times to achieve the required finish and they now want more money.  Very important to note that the specification has not changed.  But, there was a period of 12 months from the 'budget' to now so there could be a small adjustment due to perhaps labour and material costs increasing.  But, that would be 5% max, not the 20% they are asking for.

 

We didn't ever sign any T&Cs, although they claim they gave a copy to us when we visited their workshop, that they have 2 witnesses to this, although we didn't get any T&C's but it is hard to prove either way I guess.  We certainly didn't sign anything.  Also, they claim that the T&C are referenced in their email, per the snippet above.

 

I know this is probably a huge question, but when do T&C's apply?

 

Do they apply if (allegedly) handed to a customer in a suppliers offices?

 

Do they apply if they are available on request?

 

I eagerly await any advice anybody can offer.

 

Regards

 

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Hello and welcome to CAG.

 

I've moved your thread to our Building trade forum for further advice. People should be along later but weekends are always a bit quieter here so please bear with us. They'll tell you what you can do about the problem.

 

Best, HB


Illegitimi non carborundum

 

 

 

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No, the terms and conditions are not necessarily the last word. They are also subject to statutory protections – the Consumer Rights Act, for instance and also if there has been a change in the work that was originally agreed then that also could give rise to variations in the contract – whether they were agreed in writing, agreed orally – or simply to be implied into the contract.

I think it would be helpful if you started off giving a reasonably detailed bullet pointed chronology of events – go light on the narrative.

You will probably need to monitor the thread for a further reply over the weekend – once you have responded to the above.


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Thank you,

 

Please see the chronology, I have tried to keep light, I hope this helps:

  • Context - This is a staircase, comprising 4 elements: a. steel structure, b. timber treads, c. glass balustrades, d. timber handrail
  • 17/08/2017 - Visit to fabrication workshop (where fabricator claims T&C provided*)
  • 27/11/2017 - Design specification, costs & cost schedule agreed (by email)**
    Payment schedule agreed:  1. Deposit 35%; 2. Delivery 35%;  3. Completion 30%
  • 01/12/2017 - Deposit invoiced and paid (35%)
  • Design (by 3rd party) started, but not completed after 6 months so design handed to fabricator
  • 06/06/2018 - Additional fee to fabricator for design work agreed and paid
  • Design (per agreed spec).  Supposed to take week, took 3 months.
  • 19/09/2018 - Design approved
  • Steel fabrication starts
  • 06/12/2018 - 2nd payment for delivery (35%) invoiced and paid
  • Install delayed due to stairwell not being ready
  • 17/03/2019 - Phase 1 (steel) installation - estimated one week.  Actually took c. 2 months to get right
  • 18/03/2019 - Request for payment in advance for Timber (b)
    Request questioned as next payment was supposed to be completion.  Told their T&C allow them to change T&C whenever and their costs have increased due to moving premises and now need payment in advance.  Paid reluctantly to avoid further delays
  • 28/05/2019 - Request for payment in advance for Glass (c ).  Reluctantly paid.  All work paid in full.
  • Glass cutting etc
  • 04/07/2019 - Glass installed - estimated to take few days, took 2 months to complete due to breakages, missing glass, snags etc
  • Over 2 months to install glass.  Glass still not fully completed.
  • 04/10/2019 - Chased for timber element installation date (paid in March '19).  Told they could no longer install and offered us a refund for timber only
    This is an issue, as the treads are an intrinsic part of the stairs and we don't know where to start getting this element added
  • 06/10/2019 - We emailed to say under consumer rights he needs to complete the agreed work, and we have paid in full0
  • 09/10/2019 - Request for additional money to complete the work and sent a copy of T&C (this is the first time they have been sent)

* Have checked all paperwork, no T&C and we definatelly did not sign before agreeing the spec and cost

** The agreed specification states "Cost" not "Budget" as per a few emails.  It was the specification that was agreed

 

There is no doubt that this has taken a very long time (2 years and still not finished) and it is reasonable to expect a price adjustment if materials / labour costs have increased.  But the fabricator has contributed to the delays through lots of rework, delays getting designs to us, not ordering the treads that were paid for in March.  And, we have yet to see any details for the handrails.

 

Thank you again for any help regarding if T&C that are "available on request" could apply.  Or, if alleged T&C provided in Sept 17, before being appointed and before the Spec and Cost were agreen in Nov 17.  (I say alleged as we didn't get them.)  But, even if T&C were provided and not signed 3 months before appointing the fabricator, would they apply?

 

Thank you again.

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So this has been going on for two years.

I understand that you commissioned a staircase and that by and large the terms and conditions were agreed. Presumably a timescale for the installation was also agreed although you haven't said so.
Then there were various delays which are all caused by the fabricator which is the person or company that you had the contract with.
You refer to the moving of premises. This is ambiguous. Was it the contractor who moved premises or you?
Two years on the work is still not complete. However you have paid the entire price of the installation.
Earlier this month the contractor told you that the work could not be completed and only offered you a partial refund.
The contractor has now changed his position and said that he can complete the work but for additional payments. He is relying on his terms and conditions.

Is this all correct?

What was the agreed value for the work?
How much extra is he seeking?
Have you made any contributions to the delays or difficulties


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Quote

So this has been going on for two years.

Yes

 

Quote

I understand that you commissioned a staircase and that by and large the terms and conditions were agreed.

We didn't actively agree / sign to any terms and conditions.  But, he believes that his T&C apply.

 

Quote

Presumably a timescale for the installation was also agreed although you haven't said so.

No, I don't think any exact timescales were formally agreed.  He gave indications for installation timescales (6 weeks vs the 6 months and still not finished).  But, this does not allow for 12 month delay due to design and contractor not being ready.

 

Quote

Then there were various delays which are all caused by the fabricator which is the person or company that you had the contract with.
You refer to the moving of premises. This is ambiguous. Was it the contractor who moved premises or you?

Not all delays were caused by the fabricator.  A separate designer contributed to the delays as did the main contractor working on the house where the stairs were to be installed.  So, some costs related to delays are expected.
It is the fabricator that moved to larger premises during the 2 years and this is part of his justification for higher costs.

 

Quote

Two years on the work is still not complete. However you have paid the entire price of the installation.

Correct - two years and not complete.  But, a chunk of that is due to the main contractor being late.  Any additional reasonable costs from the stair fabricator related to the main construction will need to be passed to the main contractor.

 

Quote

Earlier this month the contractor told you that the work could not be completed and only offered you a partial refund.
The contractor has now changed his position and said that he can complete the work but for additional payments. He is relying on his terms and conditions.

Yes he offered a refund of £5k.  But I don't think this will cover the costs for the remaining work.

Yes he has retracted that offer and now wants additional payments and is relying on his T&C.

 

Quote

What was the agreed value for the work?
How much extra is he seeking?
Have you made any contributions to the delays or difficulties.

 

Agreed value £28k

Extras seeking c.£5k, excluding the cost of the treads and to complete the work.  So, seeking c.£10k.  This will include lots of rework, which is down to poor management and inadequatelly skilled people.

Contribution - No.  But we have raised lots of snags and issues with the installation and work in order to achieve the agreed specifation and to satisfy building regulations.

 

I think there is a reasonable extra to be paid.  It is not £5k + treads.  But, the design has not changed.  So, increases can only be because of labour / material cost changes over 2 years, less any delays casued by him.  I hope we can come to reasonable number, and some cost can be passed to the contractor.

 

We will ask for a detailed breakdown of the numbers (materials and labour) and how / why these have changed.

 

My questios is when do T&C apply if we havn't signed?  This will help us understand if there is any basis for increase the cost by c.30% (approx £10k) when the spec has not changed, we have not agreed (signed) any T&C.  He states "our terms and conditions are quite clear that we reserve the right to" increase costs.  But, most of these costs are really due to snagging, extra installation costs as labour not skilled, wrong materials etc.  I really do not believe that material costs have increased by much.  Labour may have increased by little more than inflation. 

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Hang on, I was using the words "fabricator" and "contractor" interchangeably.

I gather from your explanation that in fact there is a contractor who is separate from the fabricator so that we are dealing with a third party which wasn't at all clear from any of your posts so far.

Terms and conditions don't need to be signed in order to apply but they need to have been brought to your attention and you need to have had an opportunity to see them.


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Thank you for being patient on this.  We are learning our consumer rights (perhaps a little late!)

 

Yes there is a main contractor (builder) and the stair fabricator.  Two separate parties.  Two separate contracts.  This post relates to the latter (fabricator) where we had a detailed specification and agreed price.

 

So regarding your point ...

Quote

Terms and conditions don't need to be signed in order to apply but they need to have been brought to your attention and you need to have had an opportunity to see them.

 

... do the folloiwing satisfy being given an opportunity to see them?

 

1) Does writing "All works carried out by XXX Fabricator Limited are carried out in strict agreement to our Terms & Conditions. (copy available on request)" in the footer of emails satisfy this?

 

2) Would T&C alleged to have been handed over in paper form three months before agreeing the specification, price and agreeing to proceed apply?

2b) And, what would happen in a small claims court if two parties have oposing view as to if T&C were handed over in hard copy with no way of proving either way?  Except, one part states to have witnesses (who are on the payrole).

 

I think he is trying to intimidate us into agreeing something to close this down in his favour.  I just want to quote facts back to close this down fairly.

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But you have also referred to a designer. Is this a separate contract? Did the designer contribute to any of the problems?

So I understand that you instructed a contractor and separately you instructed a stairway fabricator.

The reference to the terms and conditions which are available on request might possibly be incorporated into the contract. It is difficult to say. It certainly suggests that you haven't seen them.

Your reference to terms and conditions which might have received three months prior to the agreement – if you had received them then I would say they would almost certainly be incorporated into the contract.

However as I have said in an earlier post, the terms and conditions are not the last word. They are subject to all sorts of implied terms. In your case I would suggest that section 51 of the Consumer Rights Act is especially important

 

And it seems to me that it is this section which governs your problem.

I think you may find yourself in a position where you have to start seeking independent advice as to what might be a reasonable increase in the circumstances. However as I'm sure you realise, to a certain extent you are over a barrel because the work has not been completed and your dispute could lead to a long interruption in the work while you negotiate or litigate.

I certainly attain to agree with you that the percentage increase which is apparently envisaged by the fabricator seems to me to be excessive.

I think also if the contractor has contributed to the increasing costs then you are right to expect some recompense there – but has this been agreed? Or are you looking at a another dispute?

I'm at a bit of a loss to understand why you seem to be in doubt as to your rights when the fabricator says that the terms and conditions apply strictly – and yet when you are asked to pay out the rest of the money which as I understand it was not what was contractually agreed, you appear to have done so without much resistance.

It seems to me that you have given away an important part of your negotiating hand without too much fuss


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And, also would a supplier (fabricator in this case) need to notify you in advance if prices are increasing?  Not, just add these retrospectively?

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Yes I think any reasonable person would expect to be notified in advance. I would suggest that this is a provision which could reasonably be implied into the contract


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I'm at a bit of a loss to understand why you seem to be in doubt as to your rights when the fabricator says that the terms and conditions apply strictly – and yet when you are asked to pay out the rest of the money which as I understand it was not what was contractually agreed, you appear to have done so without much resistance.

It seems to me that you have given away an important part of your negotiating hand without too much fuss

 

I somewhat agree and in hindsight we should have resisted more at that point.  Getting the remaining stair parts was on the critical path, he did have us over a barrel.  We resisted but he gave us no choice and at the time trying to resolve this would have delayed other works as we sorted out the legal side of payment in advance vs at completion.  We did make a fuss, but it was a calculated risk in order to avoid other delays to the rest of the project.  All that has happened is this has pushed problems further along, and we are having to sort out similar issues again now.  Hence, this time trying to be more informed and resist unreasonable demands.

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It seems to me that any bond of trust between you and which is necessary for this kind of contract of services to continue has been irrevocably broken.

So it seems to me that the best thing you can do is to get hold of the structure so far as it has been completed and then get other quotes for finishing it completely and then looking at the possibility of suing the fabricator for that money.

I'm afraid that with any contract for services where there are multiple parties involved, then it always gets very difficult. For instance we have had people here who have bought a central heating boiler and then have had it installed by someone else – or a kitchen or some other household equipment.

This very easily leads to problems – especially when things break down because the installer blames the supplier and the supplier blames the installer et cetera.

Of course it doesn't help you now – but you would have been much better off instructing a contractor and then requiring as part of the job that the contractor deals with the fabricator so that you effectively had only one point of contact and one responsible party.

I don't know where the designer sits in this.

It seems to me that you are saying that you didn't even look at the terms and conditions. I would have thought that when you are considering spending £28,000, you would want to look quite closely at what you are getting for your money. However, you are saved by section 51 of the 2015 Act – but the problem is that the fabricator wants to rely on his contract and he is using this as a stick to beat you with.

Once again – and although you probably won't want to hear it again – I'm afraid that you seem to have walked into this with your eyes closed.

I think it is going to be difficult to extract yourself without making some sacrifices. Apart from anything else if you start litigating then you will have to bear in mind that the small claims limit is £10,000 and it sounds to me as if you may end up in dispute for something far greater than that and that gives you a risk of costs if you lose which you will need to factor in.

Frankly I can't see you losing but you need to bear it in mind.

If you start to negotiate with him then there is a risk that he might simply refuse to engage with you any further on any basis - and leave you with a partly finished job. That actually wouldn't be a bad position to be in because she would then have a very solid case before the County Court because clearly he has a contractual obligation to complete the work and this would be a very winnable piece of litigation that you would still have to work out how much you are going to sue for. Is it not possible to have the work completed by someone else?


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8 minutes ago, BankFodder said:

It seems to me that you are saying that you didn't even look at the terms and conditions. I would have thought that when you are considering spending £28,000, you would want to look quite closely at what you are getting for your money. However, you are saved by section 51 of the 2015 Act – but the problem is that the fabricator wants to rely on his contract and he is using this as a stick to beat you with.


T&C were not presented or referenced other than a small point in a footnote in the email, which also covers confidentiality, hours of business etc.  Thus:

 

"This electronic message contains information from XXX Fabrication Limited which may be privileged and confidential.  The information is intended to be for the use of the individual(s) or entity named above.  If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you have received this electronic message in error, please notify us by telephone or email (to the number or address above) immediately.  Activity and use of email at XXX Fabrication Limited is monitored to secure its effective operation and for other lawful business purposes.  Communications using this system will also be monitored and may be recorded to secure effective operation and for other lawful business purposes.  All works carried out by XXX Fabrication Limited are carried out in strict agreement to our Terms & Conditions. (copy available on request).

Any emails received after 5pm Monday - Friday or during the weekend may not be received or read. If the email is urgent it needs to be sent during our working hours. Our working hours are Monday - Friday 8am - 5pm "

 

It doesn't feel that these "have been brought to our attention".  However, we should have checked.  Either way, the T&C we have now been provided (last week), which are part of a Credit Application form, that we didnt sign and didn't take credit, also dont really cover this situation.  The only part of the T&C that covers cost relates to variation as follows.  I guess 1.2 is the one that covers delays.  But, categorically the specification and design did not change.  Re (2), no rates were provided.

 

Quote

VARIATION
(1) If at any time after submission by the company of a tender or quotation to the customer, the customer alters, in any way, the specification of the goods and/or services and/or work to be provided by the company or, without prejudice to the generality of the foregoing.
1.1 requires qualities or quantities of goods or other materials used in the work which differ from those notified to the company prior to the quotation and /or tender by the company and /or
1.2 requires the work or any of it to be carried out at times which differ from those notified to the company prior to the quotation and/or tender by the company or where no times were so notified, which differ from the times when the company wishes to carry out the work and or
1.3 fails to provide the company with finalised information and where appropriate, finalised detailed drawings by the time which is in the company’s opinion, necessary to enable the company to commence, continue or complete the work and , or
1.4 in any way varies it’s requirements from those notified by the company prior to the quotation and/ or tender by the company or makes available to the company further information which is at variance or is inconsistent with the information made available to the company at the time of the quotation and/or tender and/or fails to make available to the company such further information as the company reasonably requires to fulfil its obligations under the contract.
The company shall be entitled to increase the price of the goods and/or services and /or the work or any part the same, and the company shall be entitled to alter the time at which, or extend the period during which, the work or any part of the work is to be completed or performed to the time or by the period which in the company’s opinion is necessary as a result of such alteration, requirement or failure.
(2) Where any increase in price is applicable as a result of any such alteration, requirement, failure or variation as is mentioned in (1) above, the increase will where the company considers it possible and appropriate to do so, be calculated by the company in accordance with the rates specified in the tender or quotation by the company or in accordance with the company’s rates in force for day work at the relevant time and for work of the nature of that question. Where the company does not consider it possible or appropriate so to calculate any increase in price the increases shall be as is necessary to reimburse the company for additional costs which it incurs or sustains as a result of such alteration, requirement, failure or variation.

 

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It seems to me that any bond of trust between you and which is necessary for this kind of contract of services to continue has been irrevocably broken.

 

Agreed

 

Quote

So it seems to me that the best thing you can do is to get hold of the structure so far as it has been completed and then get other quotes for finishing it completely and then looking at the possibility of suing the fabricator for that money.

 

That is what we started last week.  That is what caused him to start emails "without prejudice", to start quoting T&C and to suggest we owe him more for work completed etc

 

Quote

I think it is going to be difficult to extract yourself without making some sacrifices. Apart from anything else if you start litigating then you will have to bear in mind that the small claims limit is £10,000 and it sounds to me as if you may end up in dispute for something far greater than that and that gives you a risk of costs if you lose which you will need to factor in.

Frankly I can't see you losing but you need to bear it in mind.

 

If you start to negotiate with him then there is a risk that he might simply refuse to engage with you any further on any basis - and leave you with a partly finished job. That actually wouldn't be a bad position to be in because she would then have a very solid case before the County Court because clearly he has a contractual obligation to complete the work and this would be a very winnable piece of litigation that you would still have to work out how much you are going to sue for. Is it not possible to have the work completed by someone else?

 

Agreed.  We are not alone on this, I now know of at least two others that are less than satisfied with the services from this company.  One of those is considering legal action, but is negotiating.  I think this is just how they do business.

 

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Well as I have suggested, I think this points to the fact that any price increases must be reasonable – and there's a suggestion there that they are directly linked to additional costs incurred.

Therefore you need to get an account of the additional costs incurred. I would have thought that you would need to measure this against independent estimates


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You could get these other two people and any other victims to start new threads on this forum.

I must say I hadn't understood that he even wants more money for you to retrieve the staircase in its unfinished condition now.

I thought he simply wanted more money to complete the entire job.


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I also think that if there is litigation that you should be referring to each other's cases and each other's experiences in court in order to suggest that this actually is his way of working.

How closely are you liaising with the others? I think you should start information sharing.


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Thank you BankFodder

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Just one final question.

 

We will write to ask for a detailed breakdown of the costs and increase.

 

In the fabricators last email, he attached T&Cs (part of a Credit Form).  This is the first time these have been provided.  They were sent "without prejudice", but we do not want to be trapped by some new T&C we have not seen and he is trying to apply retrospecivelly.  How do we reject these / make it clear we do not accept them given they are retrospective?

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the T&C's cant be without prejudice, just an example of someone threatening things when they dont really ahve the wearwithall to make it stick if it did get to court.

S62 of the consumer righs act says what you need to know about unfair terms or ones that appear on their web site when you ahve signed a piece of paper without seeing them but as you have agreed to variations of the origianl contract it will be difficult to show that they mean anything to either party. It will boil down to what is reasonable under the circumstances. Are they incompetent and thus brought all the extra work on themselves? were there really such unforseen circumstances that meant they couldnt fulfil the contract and if so how come they can now do the work but at a higher price?

 

You may want to get everything in writing  and  consider getting teh work finished and then sue them to recover some of the money esp any money that basically covers redoing their own shoddy work. the problem for this is quantifying your losses that are a result of thier mismanagement and not other factors such as higher materials costs ( althoug the delay should mean part of that is recoverable)

 

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