BRIMSTONE SITE INVESTIGATION LTD STANDARD TERMS AND CONDITIONS OF BUSINESS
In these Conditions, the following definitions apply:
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business
- Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
- Commencement Date: has the meaning set out in clause 2.2.
- Conditions: these terms and conditions of business as amended from time to time in accordance with clause 11.8.
- Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions, these Conditions forming part of the Contract.
- Customer: the person, firm or company who purchases Services from the Supplier.
- Data & Information: shall include but not be limited to all drawings, documents, plans communications (whether verbal or in writing), marking out or location of services and the items set out in clause 3.8 below.
- Deliverables: the deliverables as set out in the written Proposal.
- Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, written reports, 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 right, 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.
- Order: the Customer’s written acceptance of the Supplier’s Proposal.
- Proposal: the Supplier’s written quotation and proposal of Services which will have been provided by the Supplier to the Customer prior to the Order and the Commencement Date.
- Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Proposal.
- Specification: the description or specification of the Services provided in the Proposal.
- Supplier: Brimstone Site Investigation Ltd registered in England and Wales with company number 10253758 and whose registered office is situated at 1 – 3 Manor Road, Chatham, Kent ME4 6AE.
- Supplier Materials: has the meaning set out in clause 4.1(f).
- The Site: the land owned or occupied by the Customer on which the Services are to be carried out.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or when the Supplier commences the Services on these Conditions, at which point, and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 90 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Insofar as the Supplier specifies any materials, it shall exercise reasonable skill and care to see that no materials generally known to the engineering profession at the time of specification to be deleterious to health and safety will be specified by it for use in providing the Services.
3.6 In respect of Services that involve an Intrusive Unexploded Ordnance Survey, the supplier shall reasonably endeavour to achieve 20 UXO surveys per day but this may be reduced due to the following varying factors:
- subsurface risks (see clause 3.8 below);
- distance between survey positions;
- location of survey positions;
- above ground conditions;
- other contractors works/equipment/facilities;
- adverse weather conditions i.e. snow or flooding; and/or
- delays caused by other parties.
3.7 In respect of Services that involve a Non-intrusive Unexploded Ordnance Survey, the supplier shall reasonably endeavour to achieve a survey area of 2 hectares per day but this may be reduced due to the following varying factors:
- distance between survey areas;
- location of survey area;
- above ground conditions;
- other contractors works/equipment/facilities;
- adverse weather conditions i.e. snow or flooding; and/or
- delays caused by other parties.
3.8 Risks occur whenever engineering or related disciplines are applied to identify subsurface conditions. The Customer accepts that nothing can be done to eliminate the risks altogether and acknowledges that:
- The geological, geotechnical, geochemical or hydrological conditions on site may differ from those foreseen from pre-existing information and, if adverse, may result in delays or changes to scope of the projected works;
- It has responsibility to locate underground services, to ensure that the positions to be surveyed by the Supplier are clear of such services and to issue or sign a written permit to dig or permit to carry out intrusive works. In some circumstances the Supplier may use equipment to check for the presence of services but will not warrant that such equipment will necessarily detect underground services. Any such actions on the part of the Supplier do not release the Customer from its responsibility in respect of such services.
- In view of sub-clause 3.8 (b), any and all damages resulting from the Supplier’s works striking, interrupting or damaging underground services is the responsibility of the Customer, unless caused by the Supplier’s gross negligence.
SEEPAGE, POLLUTION, CONTAMINATION:
3.9 Where the Supplier carries out any subsurface investigation as part of the Services the Customer shall indemnify, defend and hold the Supplier harmless from and against all claims demands proceedings damages costs charges and expenses arising out of any seepage, contamination or pollution caused by any subsurface investigation and sampling.
DATA AND INFORMATION:
3.10 The Customer shall supply in writing to the Supplier without charge and in such reasonable time so as not to delay or disrupt the performance by the Supplier of the Services all necessary and relevant Data & Information in the possession of the Customer or its servant agents or sub-contractors. In particular but without prejudice to the generality of the foregoing such information shall include:
- All data, drawings, plans or information (in hard copy and/or electronic medium) relating to the planned intrusive works on Site relevant to the Services to be provided by the Supplier and on which the Supplier will rely in order to properly conduct such services;
- All data or information including other reports studies plans and specifications concerning any subsurface risks including the location of utilities and underground structures and any above surface or subsurface site conditions at or beyond the Site;
- All data or information relating to the identity, location, quantity, nature or characteristics of any hazardous materials or suspected hazardous materials currently on or under the Site or previously on or under the Site.
3.11 The Data and Information provided to the Supplier by the Customer may be relied upon by the Supplier in the provision of the Services and therefore all liability associated with the accuracy of the Data & Information is the responsibility of the Customer.
3.12 Where the Supplier is aware that any relevant Data & Information is needed from third parties, the Supplier shall so inform the Customer and the Customer shall use reasonable endeavours to obtain such Data & Information unless the Services include an obligation that the Supplier shall request such Data & Information.
3.13 The Supplier shall review the Data & Information provided by the Customer or third parties generally to examine its accuracy or completeness but shall not be responsible for such accuracy or completeness.
3.14 The Customer shall give its decision approval or comments on all matters referred to it for this purpose by the Supplier in such reasonable time so as not to delay or disrupt the performance by the Supplier of the Services under this Contract.
3.15 The Customer shall take whatever measures are necessary to protect the health and safety of any persons (including any member of the public who may come on to the Site during the course of the Services).
3.16 If during the course of carrying out the Services the Supplier becomes aware of any dangers to the health and safety of any such persons it shall notify the Customer forthwith.
RIGHT OF ENTRY:
3.17 The Customer shall provide a right of entry to the Site for the Supplier, its agents or any sub-contractors or sub-consultants and for all necessary equipment to carry out the Services under this Contract and in such reasonable time so as not to delay or disrupt the performance by the Supplier of the Services. The Customer shall provide adequate site security to protect the Supplier’s personnel plant equipment and stores/materials.
POSTPONEMENT, SUSPENSION AND DELAY:
3.18 If for any reason the Customer postpones or suspends any of the Services or if the Supplier is impeded or delayed in the performance of the Services by the occurrence of any circumstances beyond its control, the Customer shall make forthwith to the Supplier a fair and reasonable additional payment in respect of all the additional costs and expenses incurred by the Supplier in respect of such postponement suspension or delay provided that the Supplier informs the Customer within a reasonable time of any circumstances which could give rise to the right to such additional payment.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
- Ensure that the terms of the Order, Proposal and any information it provides in the Specification are complete and accurate;
- Co-operate with the Supplier in all matters relating to the Services and in particular sign work records as and when required by the Supplier (failure to sign work records when required by the Supplier shall result in such non-signed work records being deemed as accepted by the Customer);
- Provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s Site, other premises, office accommodation and other facilities as reasonably required by the Supplier;
- Provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
- Obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
- Keep and maintain all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
- The Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
- The Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
- The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a time and materials basis:
- The Charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Proposal and no valuations of the Customer shall apply to any of the Services supplied;
- The Supplier’s standard daily fee rates for each individual are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
- The Supplier shall be entitled to charge an additional flat rate of £100 per person for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b) (subject to a maximum of 4 hours per person); and
- The Supplier shall charge time and a half for time worked by individuals whom it engages on the Services on a Saturday and double time for time worked by individuals whom it engages on the Services on a Sunday or bank holiday.
5.2 The Supplier shall invoice the Customer on completion of the Services or if the services continue to be provided for a period greater than one month on a monthly in arrears basis.
5.3 The Customer shall pay each invoice submitted by the Supplier:
- Within 30 days of the date of the invoice; and
- In full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.4 The Customer has 14 days from the date of issue of the Supplier’s invoice to query it. If no legitimate query has been made within this timeframe, the invoice shall be deemed as accepted by the Customer and Customer shall pay such invoice in full pursuant to the terms of clause 5.3 above.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“Due Date”), the Supplier shall have the right to charge interest on the overdue amount at the rate of eight per cent per annum above the then current Bank of England base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
6.2 The Customer acknowledges that, in respect of any third-party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 All Supplier Materials are the exclusive property of the Supplier.
A party (Receiving Party) 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 Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
- Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- Fraud or fraudulent misrepresentation; or
- Breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
- The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors; and
- The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed the Suppliers insurance cover of £5,000,000.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 No action or proceedings under or in respect of this Contract whether in contract or in tort, in negligence or for breach of statutory duty or otherwise shall be commenced against the Supplier after the expiry of the period of six years from the completion of the Services or such earlier date as may be prescribed by law.
8.5 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- The other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach;
- The other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- The other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
The other party (being an individual) is the subject of a bankruptcy petition or order;
- A creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
- A floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- A person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- Any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(i) (inclusive);
- The other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- The other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party one months’ written notice.
9.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b)) to clause 9.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
- The Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- The Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
- The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
- Clauses which expressly or by implication have effect after termination shall continue in full force and effect; and
- Any written report produced or to be produced by the Supplier as part of the Services, may be sold and or supplied by the Supplier to any interested third party without recourse to the Customer.
11.1 Force majeure:
- For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, 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 subcontractors.
- The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.2 Assignment and subcontracting:
- The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
- Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
- This clause 11.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
- A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
11.9 Entire Agreement: This Contract constitutes the whole agreement between the parties and supersedes any previous arrangements, undertakings or agreement between them relating to the subject matter of this Contract. Each party acknowledges that, in entering into this Contract, they do not rely on any statement, representation, assurance, warranty, act or omission (negligent or otherwise) of any person (whether a party to this Contract or not) other than expressly set out in this Contract. Nothing in this Contract shall limit or exclude any liability for fraud or wilful dishonesty.
11.10 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.