1 Definitions and Interpretation 

 
1.1 The following definitions and rules of interpretation apply in these terms and conditions: 
 

Business Day - means Monday to Friday (inclusive), but excluding public and bank holidays in England; 

 

Cancellation - means the instruction by the client to cancel attendance on the agreed time and date resulting in the original scope of works not being undertaken;  

 
Company - as detailed in the Contract Particulars; 

 
Company's Equipment - any equipment, including tools, systems, cabling or facilities, provided by the Company or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client; 

 
Key Company Person - the Key Company Person for the Services appointed under condition 4.4; 

 
Conditions - these terms and conditions and any Special Conditions; 

 
Construction Act - Housing Grants, Construction and Regeneration Act 1996 (as amended); 

 
Contract - the contract between the Company and the Client, incorporating these Conditions, any Special Conditions, the Contract Particulars and the terms of the relevant Quotation/Proposal, formed in accordance with condition 2.2; 

 
Contract Particulars - any specific particulars of the Contract which relate to a specific term in these Conditions; 

 
Client - the person, firm or company who purchases Services from the Company (who may instruct a representative or third party such as an architect or engineer to procure the Services on its behalf); 

 
Client's Manager - the Client's manager for provision of the Services, appointed in accordance with condition 5; 

 
Deliverables - all Documents, products and materials developed by the Company in respect of the Services in any form, including any deliverables specified in the Quotation/Proposal, software, data, reports, templates, surveys and specifications; 

 
Document - includes, in addition to any document in writing, any drawing, map, plan, diagram, picture or other image, tape, disk or other device or record embodying information in any form; 

 
Fee - the fee the Client shall pay the Company for the Services as set out in the Quotation/Proposal or Purchase Order (as adjusted in accordance with these Conditions) whether calculated by reference to the Company’s Rates or on a fixed price basis;   

 
Input Material - all Documents, information and materials provided by the Client relating to the Services, including computer programs, data, reports and specifications; 

 
Intellectual Property Rights - all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world; 

 
Pre-existing Materials - all Documents, information and materials provided by the Company relating to the Services which existed prior to the commencement of the Contract; 

 
Purchase Order - the Client's purchase order form or written instruction to proceed with the Services; 

 
Quotation/Proposal - the Company's most recent Quotation/Proposal for the Services setting out the Company’s proposed Services and fees for the Services which has been accepted in accordance with conditions 2.2 and 2.3; 

 
Rates - the Company’s standard daily time and materials rates as set out in its Quotation/Proposal or provided by the Company to the Client in writing; 

 
Services - the services to be provided by the Company under the Contract and the delivery of any Deliverables in each case as identified in the Quotation/Proposal, together with any other services which the Company provides or agrees to provide to the Client pursuant to the Contract; 

 
Site - the Site(s) at which the Company is to perform the Services or in relation to the Services as set out in the Quotation/Proposal (typcially an area of land or a building; 

 
Special Conditions - means any special conditions that may amend these Conditions and which are specified in the Contract Particulars; 

 
VAT - value added tax chargeable under English law for the time being and any similar additional tax. 

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Working days - means any day other than a Saturday, Sunday or a public bank holiday in the jurisdiction where the services are to be performed.   

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1.2 Condition and paragraph headings shall not affect the interpretation of these conditions. 

 
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns. 

 
1.4 Words in the singular shall include the plural and vice versa. 

 
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being. 

 
1.6 A reference to writing or written excludes fax but includes e-mail.  

 
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them. 

 
1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done. 

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2 Application of Conditions 

 
2.1 These Conditions shall apply to and be incorporated into the Contract and prevail over any inconsistent terms or conditions contained, or referred to, offered or relied upon in the Client's Purchase Order, confirmation of order, acceptance of the Quotation/Proposal or specification, or implied by law, trade custom, practice or course of dealing. 

 
2.2 The Client's Purchase Order constitutes an acceptance by the Client to purchase the Services specified in it on these Conditions. The Client’s acceptance shall be effective on the Client placing a purchase order or in the event a Purchase Order is not issued by the Client, on the Client accepting the Quotation/Proposal for Services issued by the Company; requesting any work in the Quotation/Proposal to be undertaken in whole or in part; or doing any other act consistent with acceptance of the Quotation/Proposal. No offer placed by the Client shall be accepted by the Company other than: by a written acknowledgement issued and executed by the Company or (if earlier) by the Company starting to provide the Services, when a contract for the supply and purchase of those Services on these Conditions will be established. The Client's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract. 
 

2.3 The Quotation/Proposal is given by the Company on the basis that no agreement shall come into existence except in accordance with condition 2.2. The Quotation/Proposal is valid for a period set out in the Contract Particulars, provided that the Company has not previously withdrawn it. 
 

2.4 In the event of any conflict, discrepancy or ambiguity within or between the Purchase Order, Quotation/Proposal, the Special Conditions (if any) and these Conditions, then the deemed order of priority shall be as follows (top of the list ranking the highest): 
           2.4.1 the Quotation/Proposal; 
           2.4.2 the Special Conditions; 
           2.4.3 these Conditions; and 
           2.4.4 the Purchase Order. 

 
2.5 Where there is any conflict, ambiguity or discrepancy within any of the above, the Client shall inform the Company as to which of the discrepant items is to be adopted and the Company shall instruct the Client to remove any such conflict, ambiguity or discrepancy at the Client’s own cost. 

 
3 Commencement and Duration 

 
3.1 The Services supplied under the Contract shall be provided by the Company to the Client from the date specified in the Purchase Order, or if there is no Purchase Order, on acceptance / instruction of the Company’s Quotation/Proposal and such Services will relate to the Site specified in the Quotation/Proposal and the relevant Deliverables/Documents only. 

 
3.2 The Services supplied under the Contract shall continue to be supplied until the Services have been completed in accordance with the Quotation/Proposal or, if earlier, until the Contract is terminated in accordance with condition 16. 

 
3.3 Any additional services necessarily provided and notified to the Client by the provision of a further quotation or proposal in connection with the Services shall be subject to the Contract with additional fees being charged on a time and materials basis in accordance with condition 7.2. 

 

4 Company's Obligations 

 
4.1 The Company shall use reasonable endeavours to provide the Services in accordance with the Quotation/Proposal and these Conditions. The Company will perform the Services with reasonable skill and care to be expected of a professional consultant having experience of undertaking services of a similar nature, scope and complexity to the Services. 

 
4.2 Subject to the Client's compliance with condition 5, in carrying out the Services the Company shall comply with all relevant current legislation applicable to the performance of the Services and for the avoidance of doubt, where compliance with such legislation conflicts with any terms of the Contract then the Company shall prioritise compliance with such legislation and shall not be liable for any breaches pursuant to the Contract as a result of complying with this condition 4.2. 

 
4.3 The Company shall use reasonable endeavours to meet agreed contract dates, but any such dates shall be estimates only and time shall not be of the essence of the Contract. 

 
4.4 The Company shall, if required and agreed between the parties, appoint the Key Company Person (and notify the Client in writing of who has been appointed as the Key Company Person) who shall have authority contractually to bind the Company on all matters relating to the Services. The Company shall use reasonable endeavours to ensure that the same person acts as the Key Company Person throughout the provision of the Services, but may replace him / her from time to time (at the Company’s sole discretion) where reasonably necessary in the interests of the Company's business. 

 
4.5 The Company shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Client's premises and that have been communicated to it by the Client, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract. 

 
4.6 Except as expressly set out in these Conditions, all other warranties, stipulations and undertakings as to the quality and fitness for purpose of the Services whether express or implied by statute or common law are excluded to the fullest extent permitted by law. 

 
4.7 Any advice or recommendation given by the Company or its employees or agents to the Client as to the storage, application or use of the Deliverables which is not confirmed in writing by the Company is followed or acted upon entirely at the Client’s own risk and the Client acknowledges that it does not rely on, and waives any claim for breach of, any such unconfirmed representation (unless such representation is made fraudulently). 

 
4.8 The Company shall not be liable for the performance of any person not engaged by the Company that the Client requires the Company to work with as part of a wider project which includes the provision of the Services, nor is the Company responsible for checking or reporting on their performance. 

 
4.9 Any request by the Client requiring the Company to enter into a collateral warranty, letter of reliance, novation, assignment or any agreement similar to any of the foregoing, shall be entered into at the Company’s discretion; shall be subject to payment of such additional fee and be in the Company’s standard form as the Company may, in its discretion, deem appropriate. 

 
5 Client's Obligations 

 
5.1 The Client shall: 

 
5.1.1 co-operate with the Company in all matters relating to the Services and appoint the Client's Manager in relation to the Services (and notify the Company in writing of who has been appointed as the Client’s Manager), who shall have the authority contractually to bind the Client on matters relating to the Services; 

 
5.1.2 where required and agreed by the parties, provide for the Company, its agents, sub-contractors and employees (in a timely manner and at no charge) access to the Client's site, office accommodation, data and other facilities as requested by the Company; 

 
5.1.3 provide, in a timely manner, such Input Material and other information as the Company may request and ensure that it is accurate in all material respects; be responsible (at its own cost) for preparing and maintaining the relevant Site for the supply of the Services 

 
5.1.4 provide (without charge) all sufficient and accurate information in its possession or known to it or available to it upon reasonable enquiry required by the Company in a timely fashion to enable the proper performance of the Services by the Company so as not to delay or disrupt the performance of the Company’s obligations under the Contract or pose any threat or danger to persons or property, including (where not forming part of the Services) any site investigation and ground conditions reports and/or surveys. The Company shall be entitled to rely on the accuracy and sufficiency of all information provided to the Company by the Client and to make assumptions on the basis of such information, when carrying out the Services. The Company will not be liable to the Client if the Services fail to satisfy the Client’s requirements as a result; 

 
5.1.5 inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site and ensure the health and safety of any of the Company’s employees if working at the Client’s site; 

 
5.1.6 where required and agreed by the parties, obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Company's Equipment, the use of Input Material insofar as such licences, consents and legislation relate to the Client's business, site, staff and equipment in all cases before the date on which the Services are to start; 

 
5.1.7 In the case of Services which are to be performed on or in relation to a Client's vessel, the parties will agree in writing where and when such Services will be performed, either in the Quotation/Proposal or as otherwise agreed in writing. 
 

5.2 In order for the Company to perform its obligations under the Contract, upon the Company giving to the Client reasonable notice and subject always to the Client’s right to supervise any access, the Client grants to the Company or shall at its own expense procure for the Company (including its employees and authorised representatives) the right from time to time to enter those parts of the Site of the Client or the Client’s landlords as necessary to the extent that they are used for the purposes of the provision of the Services; 
 
5.3 Unless otherwise stated in the Quotation/Proposal, the Client shall ensure that the information, collaborating parties and client brief in which the Company need to work are available, adequate and suitable at such times as the Company requires so as not to delay or disrupt the progress of the Services. 
 

5.4 Each party shall at all times comply and procure that its employees and authorised representatives comply with all reasonable instructions of the other party or any third party pursuant to any consents and wayleaves obtained in accordance with condition 5.2. 

 
5.5 If the Company's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay and the Client shall indemnify the Company for all costs, charges or losses sustained or incurred by the Company in relation to such act or omission on the part of the Client. 

 
5.6 The Client shall indemnify the Company against all costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and loss arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Client in writing. 

 
5.7 Without prejudice or limitation to the foregoing, the Company reserves the right to charge the Client for all costs incurred by the Company if the Company's personnel (or any subcontractors from time to time of the Company) are unable to access the Site as a result of, or in relation to, the Client’s fault or failure in ensuring the Company’s personnel (or any subcontractors from time to time of the Company) has sufficient access. 

 
5.8 The Client shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services or termination of the Contract, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Company in the provision of the Services. 

 
5.9 The Client acknowledges that in entering into the Contract, it has fully read and understood the Quotation/Proposal and these Conditions and is agreeable to the same.  

 

6 Charges and Payment 

 
6.1 The Fee for the Services shall be the amount set out in the relevant Quotation/Proposal. The Fee shall be paid to the Company (without deduction or set-off) and the Company shall be entitled to invoice the Client for the price at any time after completion of the Services. The Company reserves the right to issue interim invoices for the Fee to the Client where the duration of the Services is greater than one month.  The initial invoice shall be issued one month after commencement of the Services and each month thereafter, or other period set out in the Quotation/Proposal; 
 

6.2 Any fixed price and/or daily rate comprising the Fee contained in the Quotation/Proposal shall include the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Company engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Company for the supply of the Services (unless otherwise stated). The Client acknowledges that if the Services take longer than anticipated, the Fee will be increased to reflect any further expenses actually incurred by the Company, such as further software, licenses, utilities, hotel and subsistence costs, until completion of the Services. 

 
6.3 The Company may agree with the Client that the Fee is payable in advance or on account and the sums so demanded shall be payable immediately by the Client once demanded by the Company and the balance being paid as set out in the Quotation/Proposal.  

  
6.4 The Client shall pay each invoice submitted to it by the Company in full and without any deduction, contra-charge, withholding or set-off and in cleared funds within 30 days of receipt. All charges/prices quoted to the Client shall be exclusive of VAT which the Company shall add to its invoices at the appropriate rate and which the Client will pay. 
 

6.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date (and to the extent condition 8 applies, fails to give a Pay Less Notice under condition 8.4)  the Company may charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and (in the alternative and at its sole discretion) the Company may instead claim statutory debt, recovery costs and interest under the Late Payment of Commercial Debts (Interest) Act 1998.  The Company may suspend performance of part or all of the Company’ obligations under the Contract immediately on notice to the Client if the Client fails to pay in full and in cleared funds any payment due by the relevant final date for payment. The Client will allow the Company a reasonable period of time to re-mobilise after any period of suspension and the Client agrees to pay all of the Company’ costs, losses, damages and expenses accrued, suffered or incurred by reason of such suspension and (if applicable) any re-mobilisation.  
 

6.6 Notwithstanding clause 6.5 if the Client fails to pay the Company on the due date, then the Client cannot rely on or use any reports or Deliverables provided by the Company to the Client until such time as full payment of the Fee has been made. 

 
6.7 Time for payment shall be of the essence of the Contract. 

 
6.8 If the Company is involved in extra work or incur extra expense or have to allocate additional resources to enable it to comply with its obligations under the Contract for reasons beyond its reasonable control or caused by any act, omission, default or delay caused by the Client (including but not limited to the Company being required to vary any item of work commenced or completed pursuant to the Contract and/or the performance of the Services being delayed, disrupted or prolonged), then any and all losses, costs, damages and expenses that the Company may accrue, incur or suffer as a result including but not restricted to the supply of any necessary Services, waiting and travelling time or additional visits to the Site (together with an amount in respect of the Company’s reasonable overheads and profit having regard to the Rates or if no such rates and prices are applicable, then on a fair and reasonable basis) shall be paid by the Client to the Company within thirty (30) days of the date of the Company’s invoice or application for payment. 

 
6.9 Where the Services are to be performed outside of the United Kingdom, the Company will at its option invoice the Client either in GBP or the currency agreed between the parties in writing. If as a consequence of any movement in exchange rates or fluctuations in currency values or similar the Company suffers loss and expense of any description, the Company shall be entitled to invoice the Client for the amount of such loss and expense. 

 
6.10 The Company may, without prejudice to any other rights it may have, set off any liability of the Client to the Company against any liability of the Company to the Client. 

 
6.11 The Client acknowledges that the price payable is based on the information disclosed by the Client to the Company in relation to the condition of the Site and the Client shall use reasonable endeavours to provide the Company with any new relevant information which may affect the price for the Services and the Client warrants that it will use its reasonable endeavours to investigate all relevant circumstances to provide all such new information to the Company. 

 
7 Construction Act 

 
7.1 Unless stated otherwise in the Quotation/Proposal or the Purchase Order, the due date for payment of each amount due to the Company in connection with the Contract shall be the date the Company submits its relevant application for payment or invoice, whichever is the earlier. The final date for payment shall be 30 days after the due date. 

 
7.2 Not later than 5 days after the date on which any payment becomes due, the Client must give written notice (‘Payment Notice’) to the Company specifying the amount of the payment it considers to have been due at the payment due date in respect of the payment and the basis on which the amount was calculated (the ‘Notified Sum’). The Client shall pay the Company the Notified Sum on or before the final date for payment. If the Client does not give the Company the Payment Notice within such time, and provided that a notice is not served in accordance with condition 7.3, then the Client will pay in full the amount stated as being due in the Company’s application for payment or invoice on or before the final date for payment. 
 

7.3 Not less than on the seventh day before the final date for payment (in this condition 7.3, the ‘Prescribed Period’), the Client may give the Company notice that it intends to pay less than the Notified Sum (in this condition 7.3, a ‘Pay Less Notice’). Any Pay Less Notice shall specify: 

 
7.3.1 the sum that the Client considers to be due on the date the notice is served; and 
7.3.2 the basis on which that sum is calculated. 

 
8 Health and Safety 

 
8.1 The Client will inform the Company of any known health and safety dangers and/or hazards on the Site or affecting the Site or in or affecting any building on the Site and of any known health and safety dangers and/or hazards in the vicinity of the Site (including but not limited to the presence of asbestos and asbestos containing materials, hazardous chemicals, vagrants, dangerous animals, unsafe ground or buildings) prior to the commencement of the Services. 

 
8.1 Where specialist training, which does not form part of the Services is required before entering any part of the Site, this shall be disclosed to the Company in advance of the Company’s attendance at the Site and the costs of such training shall be borne by the Client. 

 
9 Deliverables and Exclusions 

 
9.1 The Company shall prepare Deliverables with reasonable skill and care within the constraints of these Conditions. 

 
9.2 In providing those Documents comprised in the Deliverables referred to in condition 9.1, the Company disclaims any responsibility to the Client with respect to any matters that fall outside the scope of the Services, including but not limited to those matters listed in condition 9.6. 

 
9.3 The purpose and scope of the Services will be as described in the relevant Quotation/Proposal. The Company accepts no responsibility for or in respect of materials found during the course of performing the Services or variations to the design / construction which are outside of the scope of the Services/the Deliverables to be produced by the Company pursuant to performance of the Services. 

 
9.4 The contents of any Deliverables provided to the Client pursuant to the Contract are confidential to the Company and may be used by the Client solely for the purpose set out in the Quotation/Proposal and may not be used for any other purpose nor by any third party without the Company's prior written consent and the Company disclaims all liability in respect of any use of the Deliverables not in accordance with this condition, and the Client shall indemnify the Company against any claims against or losses incurred by the Company in relation to any use of or reliance on the Deliverables that is not in accordance with this condition 9.5. 

 
9.5 Any Deliverables provided to the Client by the Company shall remain the property of the Company until the price for the Services has been paid in full. If the Client uses any of the Deliverables or takes any actions as a result of such Deliverables before paying for the Services in full then both parties agree that this will be a breach of the proprietary interest that the Company has retained in the Deliverables and will also be a material breach of these Conditions by the Client. 

 
 
9.6 Notwithstanding any other condition herein, the Client acknowledges the following exclusions from the scope of the Services: hazardous materials (including asbestos) existing within parts of the Site not covered by the scope of the Services/Contract; any potential hazardous materials (including asbestos) that remain undetected due to their being hidden or obscured by other items or materials; any hazardous materials (including asbestos) hidden as part of the structure of a building and not visible until the structure is dismantled at a later date; general hazardous material debris from previous hazardous material removal projects; where any part of the Site has been previously stripped of asbestos, the Client acknowledges that the asbestos removal techniques prior to the Control of Asbestos at Work Regulations 1987 will not have been of current standard and therefore asbestos debris may be present below new coverings and (for the avoidance of doubt) the Company shall have no responsibility whatsoever in respect of this. 

 

9.7 The Company grants the client an irrevocable, royalty free licence to use reports associated with the work but under no circumstances will the client alter or amend the report. If the client alters the report they will indemnify the company against any associated costs or damages associated with such actions. 

 
10 Intellectual Property Rights 

 
10.1 As between the Client and the Company, all Intellectual Property Rights and all other rights in the Pre-existing Materials and the Deliverables, and all Intellectual Property Rights arising from the Services, shall be owned by the Company. Subject to condition 10.2 and to payment in full by the Client for the Services, the Company licenses all such rights in the Pre-existing Materials and the Deliverables to the Client and on a non-exclusive basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services solely for the purpose set out in the Quotation/Proposal. If the Contract is terminated by the Company prior to completion of the Services pursuant to condition 16, this licence shall automatically terminate, and if the Client does not pay to the Company any amounts due to the Company when they are due under the Contract then the Company shall have the right to suspend the licence until the Company has received the relevant payment from the Client in full and cleared funds. 

 
10.2 The Client acknowledges that, where the Company does not own all rights in the Deliverables or Pre-existing Materials, the Client's use of rights in the Deliverables or Pre-existing Materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Company to license such rights to the Client. Where the Company incurs costs in obtaining any such licences then the Company may, acting reasonably, pass on such costs to the Client. 

 
10.3 The Company accepts no responsibility for and the Client shall indemnify the Company against the use by the Client or others on the Client’s behalf of any Deliverables for any purpose other than for which they were intended, prepared and provided by the Company. No Deliverables shall be supplied by the Client to any third party for its use without the Company’s written consent, but should such Deliverables be provided to any third party then the Client shall indemnify the Company against any liability which may be incurred by the Company by such use. 

 
10.4 The Client will not (and shall ensure that no third party shall) remove any copyright notices and/or other notices (identifying the Company as the owner and/or originator) included in any Deliverables provided to the Client. 

 
10.5 The Client grants the Company (or shall procure the grant of) a fully paid-up, non-exclusive, royalty free, non-transferable licence to use, copy and modify the Input Material for the purposes of providing the Services to the Client.  The Client shall indemnify the Company in connection with any claim for infringement of any Intellectual Property Rights arising from the Company’s use of the Input Material. 

 
11 Confidentiality and the Company's Property 

 
11.1 Each party (the ‘Recipient’) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Recipient by the other party (the ‘Discloser’), its employees, agents or sub-contractors and any other confidential information concerning the Discloser's business or its products which the Recipient may obtain. The Recipient shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Recipient's obligations to the Discloser, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Recipient. The obligations set out in this condition 11.1 shall not apply to confidential information which the Recipient can demonstrate by documentary evidence: 

 
11.1.1 is or has become publicly known other than through breach of this condition 12.1; or 
11.1.2 was in possession of the Recipient prior to disclosure by the other party; or 
11.1.3 was received by the Recipient from an independent third party who has full right of disclosure; or 
11.1.4 was independently developed by the Recipient; or 
11.1.5 was required to be disclosed by governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement. 

 
11.2 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Client (including Pre-existing Materials) shall, at all times, be and remain the exclusive property of the Company, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation. 

 
11.3 All information gathered during inspection activities shall remain confidential. 

 
11.4 The Client acknowledges that if the Company is required by law to release confidential information relating to the work undertaken that they shall be informed in writing by the Company of this requirement. 

 
11.5 This condition 11 shall survive termination of the Contract, however arising. 

 
12 Insurance 

 
12.1 The Company shall maintain the insurance set out in the Contract Particulars in respect of the performance of the Services. 

 
13 Limitation of Liability 

 
13.1 This condition 13 and any Special Conditions sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Client in respect of: 

 
13.1.1 any breach of the Contract; 

13.1.2 any use made by the Client of the Services or the Deliverables; and 
13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract. 
 

13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. Nothing in these Conditions limits or excludes the liability of the Company: 
            

13.2.1 for death or personal injury resulting from negligence; or 
13.2.2 for any damage or liability incurred by the Client as a result of fraud or 
13.2.3 fraudulent misrepresentation by the Company; or 
13.2.4 for any other liability which cannot by law be limited or excluded. 
 

13.3 Subject to condition 13.2, the Company shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for: loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; or any damage caused to the Site, provided such damage was caused in the proper performance of the Services. 

 
13.4  The Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price actually paid for the Services by the Client. 

 
13.5 No action or proceedings under or in connection with the Contract whether in contract or in tort in negligence or for breach of statutory duty or otherwise may be commenced, issued or served against the Company after the expiry of six years from the date of completion of the Company’s Services. 

 
13.6 The Company shall have no liability for any discrepancy which results from the Client’s failure to comply with its obligations under the Contract; or in respect of any failure of the Services to conform with the description of the Services in the Quotation/Proposal (subject to any variation to the Services in accordance with these Conditions) unless the Client gives the Company notice in writing within 30 days of delivery of the Services (such notice to include details of any non-conformance). 
 

13.7 The Company will within a reasonable period of receiving notice given in accordance with condition 13.6 at its discretion, either 
 

13.7.1 make such reasonable alterations to the Services as may be required to bring them into conformity with the description of the Services in the Quotation/Proposal; or 
13.7.2 re-perform the Services to bring them into conformity with the description of the Services in the Quotation/Proposal and the parties shall agree the terms applicable to such re-performance. 
 

14 Data Protection 
 

14.1 The Client acknowledges and agrees that details of the Client's name, address and payment record may be submitted to a credit reference agency, and that the Company will be required to process personal data in respect of the Client, and any relevant personnel of the Client, in connection with the Services and the Client irrevocably and unconditionally consents to such processing and shall procure that the relevant personnel of the Client also consent to such processing. Any personal data shall only be used in accordance with the Company’s privacy policy. 
 

15 Termination 
 

15.1 Unless terminated in accordance with conditions 16.2, 16.3 or 16.4, the Contract shall terminate automatically on completion of the Services in accordance with the Quotation/Proposal. 
 

15.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if: 
 

15.2.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or 
15.2.2 an order is made or a resolution is passed for the winding up of the other party, or 
15.2.3 circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or 
15.2.4 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or 
15.2.5 notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or 
15.2.6 a receiver is appointed of any of the other party's assets or undertaking, or 
15.2.7 circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or 
15.2.8 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or 
15.2.9 the other party ceases, or threatens to cease, to trade; or 
15.2.10 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt. 
 

15.3 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Client immediately on giving notice to the Client if there is a change of control of the Client (within the meaning of section 1124 of the Corporation Tax Act 2010). 
 

15.4 The Company may terminate the Contract if the Client fails to make payments in accordance with the Contract and continues to do so within ten (10) Business Days of the Company notifying the Client of non-payment;   
 

15.5 On termination of the Contract for any reason: 
 

15.5.1 the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt; and the Client shall return all of the Company's Equipment, any Pre-existing Materials and any Documents or Deliverables provided by the Company to the Client in the provision of the Services which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safekeeping and will not use them for any purpose not connected with the discharge of its obligations under the Contract. If the Client fails to do so, then the Company may enter the Client's premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping and shall be solely liable for all losses and damages in respect of the same; and 

 
15.5.2 the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive termination, shall not be affected. 
 

16 Force Majeure 
 

16.1 The Company shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, epidemic, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.  In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for six months, either party may terminate the Contract by giving 30 days' written notice to the affected party and condition 15.5.1 shall apply.  
 

17 Variation 
 

17.1 Subject to condition 5, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties. 

 
18 Waiver 
 

18.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. 
 

18.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law. 
 

19 Severance 
 

19.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. 
 

19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal. 
 

19.3 The parties agree, in the circumstances referred to in condition 19.1 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. 
 

20 Status and Pre-contractual Statements 
 

20.1 Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract. 
 

21 Assignment 
 

21.1 Subject to clause 21.2, neither party shall without the prior written consent of the other parties, assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under the Contract. 
 

21.2 The Company may at any time sub-contract all or any of its rights or obligations under the Contract without the consent of the Client.  Any sub-contracting will not in any way relieve the Company from its obligations and liabilities under the Contract and the Company shall remain responsible for the acts and omissions of any sub-contractor as if they were its own. 
 

22 No Partnership 

 
22.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).  In no circumstances is the Company deemed to be an employee or agent of the Client. 
 

23 Rights of Third Parties 
 

23.1 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else (whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise). 
 

24 Notices 
 

24.1 Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address given in (or such other address, or person as the relevant party may notify to the other party) and shall be delivered personally or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 25 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a Business Day), at 9.00 am on the first Business Day following delivery. To prove service, it is sufficient to prove in the case of post, that the envelope containing the notice was properly addressed and posted. 
 

25 Multi-Tiered Dispute Resolution Procedure 
 

25.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (‘Dispute’) then except as expressly provided in these Conditions, the parties shall follow the procedure set out in this condition: 
 

25.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (‘Dispute Notice’), together with relevant supporting documents. On service of the Dispute Notice, the duly authorised officer of the Client and the Company shall attempt in good faith to resolve the Dispute; 
25.1.2 if the duly authorised officers of the Company and the Client are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 60 days after the date of the ADR notice.; and 
25.1.3 the mediation shall be conducted in English at the offices of CEDR in London. Mediation is without prejudice to the rights of the parties to injunctive relief or to the rights of the parties in any future proceedings. 
 

25.2 Notwithstanding any other provision of the Contract, if the Construction Act applies to the provision of Services under the Contract, either party may refer a dispute arising under or in connection with the Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (as amended), which Part shall take effect as if it was incorporated into this condition. The parties shall agree upon an adjudicator within 7 days of referral of the dispute, failing which the referring party may apply to the Chartered Institute of Arbitrators for the appointment of an adjudicator or other nominating body agreed by the parties. 
 

26 Governing Law and Jurisdiction 
 

26.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales. 

 
26.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter. 

 

 

These Terms & Conditions are read and understood in conjunction with the corresponding Contract Particulars.