Terms of Contract
TERMS AND CONDITIONS OF CONTRACT
Variations in these Terms & Conditions will only be considered after discussions with the client and the variations accepted by both Asbestobel and the client. In allowing Asbestobel to begin the work, the client agrees to the application of these terms to the exclusion of any other terms that may have been proposed by the client.
1.1 “Company” means Asbestobel Ltd.
1.2 “Client” means the individual, organisation or business entity to which the proposal detailing the Work was submitted (unless otherwise agreed in writing by the Company);
1.3 “Limit of Liability” has the meaning given to it in clause 10.3;
1.4 “Report” means any findings, forecasts, statements of opinion, recommendations or report relating to or arising out of the Work;
1.5 “Price” means the fee rates, costs, expenses, lump sum price and any uplift or interest payable under these Terms;
1.6 “Work” means the services to be provided in accordance with the scope of work set out in the detailed written proposal submitted by the Company to the Client as may be modified under clause 2.3, including any Report.
1.7 “Authorised Employee” means any employee of the Company holding the office of Director of the Company.
2.0 Company’s Duties
2.1 The Company will, subject to these Terms, carry out the Work for the Client with all the reasonable skill, care and diligence to be expected from a professional person or firm in the performance of similar services under these Terms and in the same circumstances, in accordance with relevant standards current at the time. No other warranty or representation, express or implied is included or intended in these Terms, the Report or the Company’s written proposal to apply to the Work and it shall not do so.
2.2 The Company will promptly notify the Client if any aspect of the Work is found or expected to be significantly different from that addressed in the proposal if this is likely to have an effect on the Price or scope of the Work.
2.3 The Company will perform the Work generally in accordance with the proposal, but reserves the right to vary the Work if it appears to the Company reasonably necessary to do so as a result of site conditions, new information, or of safety or environmental factors, on the basis that the Client agrees to bear the costs of additional work reasonably undertaken at the Company’s standard rates or such rates as otherwise agreed in writing.
2.4 The Company will take all reasonable precautions to avoid damage to the Client’s property. The Company shall not, however, be liable for any damage to services and structures that are not called to the Company’s attention or are not located as shown on any plans which are provided to the Company.
3.0 Client’s Obligations
3.1 The Client acknowledges that in preparing the written proposal and in carrying out the Work, the Company has relied and continues to rely on the Client to make full disclosure of all known, assumed or suspected structures, tanks, utilities, pipelines, discharges, spillages, leachate and hazardous substances at, under or near the project site, together with all plans, surveys, reports, hydrographic data, previous geotechnical or environmental investigations and any other relevant data. The Client shall promptly provide the Company with any new relevant information that becomes available.
3.2 The Client will co-operate with the Company in all reasonable ways and will make freely available or place at the Company’s disposal all facilities and personnel reasonably required by the Company to carry out the Project including (without limitation) access, permits, power etc.
3.3 If the Client suspects at any time that the Work is or may be defective in any way whatsoever, the Client shall immediately draw the same to the attention of the Company and allow the Company the opportunity to correct the same. However, the Client acknowledges that the Work will not necessarily reveal all adverse conditions that could be identified either through a different formulation of the Work or through more detailed work being carried out.
3.4 When, following receipt of the Company’s written proposal, the Client allows the Company to progress the work, the Company shall be entitled to assume the Client’s acceptance of the written proposal and these Terms and Conditions.
3.5 When the Client allows the work to proceed in circumstances where the amount of the Company’s fees have not been agreed, our standard hourly rates applicable at the time and disbursements shall apply (subject to any express written agreement to the contrary by an Authorised Employee).
3.6 The Client cannot rely upon oral advice provided by any employee of the Company unless this advice has been confirmed in writing by Asbestobel within 7 days.
3.7 The Company have assessed the substances hazardous to health which they use and the safety of the procedures used with these substances during the course of the work carried out on Clients’ premises. The likely effects on health and safety of the Company’s staff and Clients have been found to be trivial provided the substances are only used for the purposes intended and company procedures are followed.
3.8 The Client shall ensure that the Company and any Company employee working in the Client’s undertaking are provided, in writing, with the following:
Comprehensive information on any risks to the health or safety of the Company employees that may arise out of, and in connection with, the conduct of the Client’s undertaking.
Appropriate instructions and comprehensible information regarding those risks and the protective and preventative measures taken by the Client in order to meet his statutory obligations.
Sufficient information to enable the Company and its employees to identify, prior to the commencement of any contract, the person nominated for implementing emergency evacuation procedures and the procedures that should be followed in the event of any emergency occurring.
3.9 The Client shall allow the Company full use of all statutory site welfare facilities and provide space for the Company’s site accommodation, plant and materials storage free of charges.
3.10 Acceptance of Proposal – written requirement of acceptance of proposal/quote and start date minimum of 14 days prior to commencement on site. This allows for suitable resource allocation. We would also require all sufficient programme information which impacts our area of works and expect continuation of works where appropriate.
3.11 Out of sequence works – any works out of sequence or re-scheduled with any less than 7 days’ notice will be charged accordingly taking into account all administrative costs and utilisation issues.
3.12 Emergency attendance – if resource is required with less than 7 days’ notice, we will charge a 25% “emergency fee” in addition to the total value of works.
4.1 Each party will treat any information of a confidential nature relating to the other party which it comes across as a result of this agreement, and any information about the Work, as confidential.
4.2 Any Report will be addressed and delivered to the Client only. The parties will keep confidential the Report and neither will make it available or disclose its substance or contents to any third party.
4.3 Notwithstanding the foregoing, the Company reserves the right to use an outline description and generic image of the Work in its promotional literature.
4.4 This Clause shall not prevent the publication or disclosure of any such information once it has come within the public domain through no fault of the party which would otherwise owe the duty of confidentiality, information that has been lawfully acquired on a non- confidential basis, nor information published or disclosed under a duty or obligation owed to or imposed by any court, regulatory or governmental authority or body.
5.0 Sample and Hazardous Substances
5.1 The Client acknowledges and assumes the risk that commonly used exploration, investigative or remedial methods involve an inherent risk of contamination of previously uncontaminated soils and waters, including the potential migration of contaminants present on or beneath the surface of the project site or in the vicinity, and that any seal may be imperfect despite all reasonable or usual precautions. The Company will make all reasonable efforts to assist the Client with the safe handling and disposal of such materials, however the Client will be responsible for this disposal and for all associated costs.
6.0 Documents and Reports
6.1 All documentations made available by the Client under these Terms shall remain the property of the Client and shall be returned at the request of the client to the Client after use or on completion of the Work. The Company shall have the right to retain a copy of any document for its files. All other documents and records (including copies) generated by the Company and its sub- contractors etc shall be the property of the Company.
6.2 Reports will remain the property of the Company until the Price is paid in full. Reports shall be used only by the Client for the purpose set out in the Company’s written proposal and shall not be relied on or used for any other purpose whatsoever, or by any other party.
6.3 Copyright in the Company’s written proposal and the Report and any intellectual property rights arising from the Work shall at all times belong to the Company, unless there is a specific written agreement otherwise, signed by an Authorised Employee.
6.4 The work provided by the Company is for the benefit of the Client only and shall not be relied upon by any third party without the written agreement of an Authorised Employee.
7.0 The Price
7.1 Work will be carried out and charged on a time basis unless a fixed price or other basis is agreed in writing by an Authorised Employee. Any time charge contained or referred to in the Company’s written proposal is for guidance only and relates to the fee rates and price schedule as at that date only. Invoices will be issued using the fee rates and price schedule in force at the time Work is carried out unless otherwise agreed in writing by an Authorised Employee. Any time charge or fixed price specified in the Company’s written proposal will remain valid for a period of 30 days from the date of the proposal unless a different date is agreed in writing by an Authorised Employee.
7.2 Unless otherwise stated in the Company’s written proposal, a charge will be made on all disbursements made by the Company associated with the Work in order to cover administrative costs. The disbursements include, but are not limited to: subcontractors, freight and packing charges, customs documentation, out-of-pocket expenses plus costs of travel, accommodation and meals away from the normal place of business of the Company’s personnel incurred in carrying out the Work.
7.3 Where utilised, a charge will be made for the use of the Company’s in-house computer services in accordance with a schedule of charges in force at the time the Work is carried out, unless otherwise agreed in writing by an Authorised Employee.
7.4 An amount equivalent to 2.5% of the price payable under clause 7.1 will be charged to cover the cost of communications and photocopying unless otherwise agreed in writing with the Client.
7.5 Unless otherwise stated in the Company’s written proposal, the Price is based on all work being executed during normal working hours in a five day week (Monday to Friday inclusive) excluding Public Holidays and the Spring and Winter Holidays defined in the CIJC Working Rule Agreement. The Client agrees, where out of hours working requirements are subsequently notified to the Company, to bear the cost of additional payments incurred.
7.6 Cancelled visits/aborted visits – should a date be planned and cancelled or aborted due to areas out of our control, the below costs will apply:
Over 14 days notice - 0% of contract value
Over 7 days notice - 25% of contract value
7 to 5 days notice - 50% of contract value
4 to 2 days notice - 75% of contract value
Less than 48 hours - 100% of contract value
8.0 Terms of Payment
8.1 Invoices will be rendered monthly in arrears unless otherwise set out in the Company’s written proposal and shall be paid (without deduction or set-off) by the Client within 30 days of the date of submission of the invoice by the Company. Any sums remaining unpaid at the expiry of any such 30 days will bear interest to accrue from day to day, at the rate of 2% (two percent) above the base rate of Santander Bank from time to time in force, cumulatively on the balance outstanding, before as well as after judgement. Without prejudice to clause 14, the Company reserves the right to suspend its services hereunder if any invoice is not paid within 60 days of the date of submission by the Company and claim damages on the basis of such suspension.
8.2 Where any expense to be reimbursed by the Client is paid by the Company in a currency other than sterling, it shall be reimbursed in sterling calculated at the official purchase rate of exchange prevailing at the date when the expense was incurred, together with any additional charge payable under clause 7.2.
8.3 Unless agreed in writing to the contrary payment for Work carried out in each calendar month shall become due at the end of that month. An interim invoice on account may be submitted for payment. The Client accepts the Terms in 8.1.
8.4 The cost of services and expenses incurred will bear any applicable value added tax charge or the like at the rate current at the date of invoice. Non-UK Clients shall remit all payments free of any taxes, levies or claims or duties arising outside the UK, and shall pay in full any of the like which may be due according to the laws of its country or state.
8.5 The acceptance of any order arising from proposal/quotation is subject to a satisfactory credit check, by the Company obtaining a Credit Reference Agency report, and/or if required, seeking trade references, and agreement of acceptable terms of payment.
9.0 Company Personnel
9.1 It is a condition of this agreement that the Client will not approach or contact with the intention of employing or retaining any employee of the Company engaged on or connected with the Work without the prior agreement of the Company. This restriction is to apply at all times during the Work and for a period of one year immediately following the completion of the Work.
10.0 Liability of the Company
10.1 Save for the obligations set out in these Terms, all other warranties, obligations and representations are hereby excluded to the fullest extent permitted by law, and all relations between the parties and all matters, issues or claims in relation to the Work shall be governed by these Terms to the exclusion of any other liability whatsoever or howsoever arising under the law or tort or its equivalent in any other country. Notwithstanding the foregoing, nothing in these Terms shall restrict the Company’s liability for death or personal injury caused by negligence.
10.2 The Company’s liability shall be limited to the extent of any injury or loss that is directly attributable to the failure of the Company, its employees, its subcontractors, and/or agents to comply with the obligations on the part of the Company under these Terms. In no circumstances whatsoever shall the Company be liable to the Client for economic or indirect or consequential loss.
10.3 The Client acknowledges and accepts that the Price does not contain a premium sufficient to cover the Company’s risk of unlimited liability in respect of the Work and that a limitation on the Company’s liability is therefore reasonable, bearing in mind the relevant circumstances, including the cost and availability or otherwise of insurance cover.
11.1 The Company has professional indemnity insurance cover, and shall, if the Client requests, provide evidence that such insurance cover is available up to the Limit of Liability.
12.0 Delegation and Assignment
12.1 Neither the rights nor obligations of the Client under these Terms may be assigned.
13.0 Force Majeure
13.1 If the Company is delayed in the Work by any act or default of the Client or any other party or by any cause beyond the reasonable control of the Company, the period for completion of the Work shall be extended by a reasonable period, subject to clause 14.5, and the Company shall be paid for any additional reasonable costs incurred attributable to the delay.
13.2 Neither the Company nor the Client shall be liable for any failure to perform caused by circumstances or events beyond their reasonable control. Should such circumstances or events occur, it is agreed that both parties shall use all reasonable efforts to overcome difficulties arising and to resume as soon as reasonably possible the normal pursuit and schedule of the Work subject to clause 14.5.
14.0 Termination or Suspension
14.1 If either party shall become bankrupt, go into liquidation (other than voluntary liquidation for the purposes of amalgamation or reorganisation only) have a receiver, administrative receiver or administrator appointed over any part of its business or assets, enter into a composition with its creditors or otherwise become, in the reasonable opinion of the other, insolvent (the “Bankrupt Party”), the other party shall be entitled forthwith by notice to the Bankrupt Party to suspend the Work or terminate this agreement with immediate effect.
14.2 If the Client fails to pay any sum due hereunder within 60 days of the date of submission of the Company’s invoice, the Company may by notice to the Client suspend the Work and, at the same or a later time, terminate this agreement with immediate effect.
14.3 Save in circumstances to which clause 13 applies, if either party (the “Defaulting Party”) breaches a material term of this agreement which remains unremedied for 30 days after service of written notice on it specifying such a breach, or if the breach is not capable of remedy or it appears that the Defaulting Party is in breach of a material provision of any statute, statutory instrument or common law, the other party may by notice in writing to the Defaulting Party suspend the Work and, at the same time or a later time, terminate this agreement with immediate effect.
14.4 The Client may terminate this agreement on 14 days written notice to the Company, to expire no later than 10 days before the intended commencement date.
14.5 If circumstances or events beyond the reasonable control of the affected party prevent the proper performance of a party’s obligations under this Agreement for more than 90 days, then either party may immediately terminate this Agreement by written notice to the other.
14.6 If the Client terminates this agreement under clauses 14.1 or 14.3 above the Client shall pay to the Company only such sums as are payable in respect of Work done and costs incurred during the period up to the date of termination.
14.7 If the Company terminates this agreement under clauses 14.1, 14.2 or 14.3, either party terminates this agreement under clause 14.5, or the Client terminates this agreement under clause 14.4 the Client shall pay to the Company, in addition to the sums referred to in clause 14.6, such sums or costs as are reasonably expended or incurred by the Company in bringing the Work to an end in a prompt but orderly fashion and, where the Client terminates this agreement under clause 14.4, a cancellation fee of 10 per cent of the Price, such sums in aggregate not to exceed the Price (where fixed).
14.8 If the Work is suspended under clauses 14.1, 14.2, 14.3 or 14.5 or the circumstances referred to in clause 13.2 apply, and the Company is required to perform any additional work or incur additional costs in connection with the suspension or resumption of the Work, the Client shall pay the Company in respect of the same within 28 days of the suspension or resumption.
14.9 Termination shall not affect or prejudice the accrued rights, claims or defences of either party.
15.0 Status of these Terms
15.1 These Terms, together with, or as varied by, the Company’s written proposal or the express written agreement referred to in clause 15.2, prevail over all other terms or representations and supersede all prior discussion. Negotiations, arrangements, understandings or agreements between the parties (whether oral or otherwise), and shall constitute the entire agreement between the parties.
15.2 These Terms may be varied or excluded (in whole or in part) by the Company’s written proposal or by subsequent express agreement in writing signed on behalf of the Company by an Authorised Employee, but not otherwise.
15.3 If any provision of this agreement is or becomes invalid, illegal or unenforceable in any respect, the remaining parts of this agreement shall remain in force.
15.4 This agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the non-exclusive jurisdiction of English courts.
16.1 Provided both parties consider that there is a reasonable prospect of resolving any disputes or differences which arise between them out of or in connection with this agreement or the Work by negotiations between them in good faith, or by either of the procedures referred to below, before resorting to legal proceedings the parties shall attempt to settle the same.
17.1 Any notice to be given by one party to the other shall be served by sending the same by post or email to, or by leaving the same at, the address for each party shown in the Company’s written proposal or notified in writing as the address for service. Any notice sent by email shall be presumed to have been served at the time of transmission, providing that the transmission record shows it was sent to the correct recipient. A notice sent by post shall be deemed to have been served 4 days after posting (for sendings within the United Kingdom) or within 10 days for all other sendings.
18.0 Third Parties
18.1 The Client acknowledges and agrees that these Terms shall not confer on any third party a right to enforce any term of the agreement between the Client and the Company. This provision confirms the intention of both parties for the purposes of Section 1(2) of the Contracts (Rights of Third Parties) Act 1999.