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Points to note:
The use of an arbitrator has been included, the proposed body
being ARCA/ATaC. |
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1. |
Interpretation |
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1.1 |
In these conditions:
‘CLIENT/CUSTOMER’ means the person who accepts a quotation of the
Company for the provision of the Services or whose order for the
Services is accepted by the Company.
‘COMPANY’ means Asbestos Consultants to the Environment
Limited (registered in England under number 4266834).
‘CONDITIONS’ means the standard terms and conditions of
sale set out in this document and (unless the context otherwise
requires) includes any special terms and conditions agreed in
Writing between the Client/Customer and the Company.
‘CONTRACT’ means the contract for the provision of the
services.
‘OUTPUT MATERIAL’ means data, drawings, plans, documents,
test results and other information prepared by the Company in
relation to the Services.
‘SERVICES’ means the provision of consultancy, testing,
survey, training, inspection or other services for which the
company undertakes to perform for
The Client/Customer under the Contract.
‘WRITING’ includes electronic mail, facsimile transmission
and comparable means of communication. |
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1.2 |
Any reference in
these Conditions to any provision of a statute shall be construed
as a reference to that provision as amended, re-enacted or
extended at the relevant time. |
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1.3 |
The headings in this
Condition are for convenience only and shall not affect their
interpretation. |
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2. |
Basis of the sale |
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2.1 |
The Company shall
provide the Services and Client/Customer shall pay for the same in
accordance with any written quotation or tender of the Company
which is accepted by the Client/Customer, or any written order of the
Client/Customer which is accepted by the Company, subject in either case to
these conditions, which shall govern the Contract to the exclusion
of any other terms and conditions. |
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2.2 |
No Variation to
these Conditions shall be binding unless agreed in Writing between
the authorised representative of the Client/Customer and the Company. |
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2.3 |
The Company’s
employees or agents are not authorised to make any representations
concerning the Services unless confirmed by the Company in
Writing. In entering into the Contract the Client/Customer acknowledges
that it does not rely on and waives any claim for breach of, any
such representations which are not so confirmed. |
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2.4 |
Any typographical,
clerical or other error or omission in any sales literature,
quotation, price list, acceptance or offer, invoice or other
document or information issued by the Company shall be subject to
correction without any liability on the part of the Company. |
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3. |
Orders and
Specifications |
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3.1 |
No order submitted
by the Client/Customer shall be deemed to be accepted by the Company unless
and until confirmed in Writing by the Company’s authorised
representative. |
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3.2 |
The Client/Customer shall be
responsible to the Company for ensuring the accuracy of the terms
of any order (including any applicable specification) submitted by
the Client/Customer, and for giving the Company any necessary information
relating to the Services within a sufficient time to enable the
Company to perform the Contract in accordance with its terms. |
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3.3 |
The company reserves
the right to make any changes in the specification of the Services
which are required to conform with any safety or other statutory
requirements. |
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3.4 |
No order which has
been accepted by the Company may be cancelled by the
Client/Customer except
with the agreement in Writing of the Company and on condition that
the Client/Customer shall indemnify the Company in full against all loss
including loss of profit), costs (including the cost of all labour
and materials used), damages, charges and expenses incurred by the
Company as the result of cancellation. |
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4. |
Assignments and
Sub-Contracting |
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4.1 |
The Company will
perform the Services using its own staff. However, the company
reserves its right to sub-contract the whole or part of the work
and will notify the Client/Customer accordingly. |
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5. |
Price of Services |
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5.1 |
The price of the
Services shall be the Company’s quoted price. All prices quoted
are valid foe 30 days only or until earlier acceptance by the
Client/Customer, after which time they may be altered by the Company
without giving notice to the Client/Customer. |
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5.2 |
The Company reserves
the right by giving notice to the Client/Customer at any time before
commencement of the Service, to increase the price of the Services
to reflect any increase in the cost to the Company which is due to
any factor beyond the control of the Company (such as, without
limitation any foreign exchange fluctuation, currency regulation,
alteration of duties, significant increase in the costs of labour,
materials or other costs of manufacture) or any delay caused by
any instructions of the Client/Customer or failure of the
Client/Customer to give
the Company adequate information or instructions. |
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5.3 |
Value Added Tax
(‘VAT’) will be added to all charges at the rate applicable at the
tax point at the time of invoice. Where the Client/Customer is registered
for VAT within the European Union but outside the United Kingdom
the work will be zero-rated provided The Company has been notified
of the Client’s/Customer's VAT registration number. If the
Client/Customer is not
registered or The Company has not been so notified, VAT at the
rate applicable at the tax point shall become payable. |
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6. |
Terms of payment |
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6.1 |
Subject to any
special terms agreed in Writing between the Client/Customer and the
Company, the Company shall be entitled to invoice the
Client/Customer for
the price of the Services on or at any time after commencement of
the same. |
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6.2 |
The Client/Customer shall pay
the price of the Services inclusive of VAT where applicable (but
without any other deduction) within 30 days of the date of the
Company’s invoice in pounds Sterling. The time of payment of the
price shall be of the essence of the Contract. Receipts for
payment will be issued only upon request. |
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6.3 |
If the
Client/Customer fails
to make any payment on the due date then, without prejudice to any
other right or remedy available to the Company, the Company shall
be entitled to: |
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6.3.1 |
cancel the Contract
or suspend any further provisions of the Services to the
Client/Customer.
Any such period of suspension shall be disregarded for the purpose
of contractual time limits previously agreed for the completion of
the services. |
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6.3.2 |
under The Late
Payment of Commercial Debts (Interest) Act 1998, charge the
Client/Customer
interest (both before and after any judgement) on the amount
unpaid, at the rate of 4% per annum above (National Westminster
Bank Plc) base rate from time to time, until payment in full is
made (a part of a month being treated as a full month for the
purpose of calculating interest): and |
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6.3.3 |
charge the
Client/Customer
the costs of recovery of any outstanding amount including legal
costs and disbursements and charge any Bank charges incurred on
representing cheques or requesting special clearance thereof. |
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7. |
Force Majeur |
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7.1 |
The company shall
not be liable to the Client/Customer or be deemed to be in breach of the
Contract by reason of any delay in performing, or any failure to
perform, any of the Company’s obligations in relation to the
Services, if the delay or failure was due to any cause beyond the
Company’s reasonable control. |
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8. |
Accuracy |
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8.1 |
Any results provided
by the Company comprising advice data and conclusions are based on
information supplied by the Client/Customer and evidence known at the time
to the Company. The Client/Customer shall supply all necessary information,
data, drawings and items necessary to the timescale required by
the Company and shall arrange, at the Client's/Customer’s expense and risk,
for the conveyance of all test items to and from the Company’s
laboratories unless the conveyance of samples and other items
forms an integral part of the Work. All Data provided, conclusions
reached, or recommendations made by the Company rely on scientific
and engineering concepts disciplines and procedures used or
adopted by the Company and the Company does not warrant that the
same will necessarily be achieved by other parties, or that such
conclusions or recommendations will necessarily be valid in
circumstances other than those of which the Company has direct
experience. Any results are believed to be accurate and reliable
subject to the limitations of normal experimental uncertainties. |
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8.2 |
Any report produced
by the Company for the benefit of the Client/Customer relates solely to the
goods or samples reported on and not bulk from which the goods or
samples were drawn. |
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9. |
Confidentiality
and Intellectual Property |
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9.1 |
The property, and
any copyright, design rights or other intellectual property rights
in any Output Material shall, unless otherwise agreed in Writing
between the Client/Customer and the Company, belong to the Company, but the
Client/Customer shall be entitled to use the Output Material for the
purposes of utilising the Services by way of an exclusive licence,
subject to payment in full of all sums payable under this
contract. |
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9.2 |
Any information
provided by the Client/Customer which is so designated by the
Client/Customer and
any Output Material shall be kept confidential by the Company, and
al Output Material or other information provided by the Company
which is so designated by the Company shall be kept confidential
by the Client/Customer: but the foregoing shall not apply to any documents
or other materials, data or other information which either party
is required to disclose by law or by statutory requirements or
which are public knowledge at the time when they are so provided
by either party, and shall cease to apply if at any future time
they become public knowledge through no fault of the other party. |
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9.3 |
The Output Material
is prepared exclusively for the Client/Customer for the purposes of the
Contract and may not under any circumstances be used by any third
party. The Company is not liable for any Output Material so used
and the Client/Customer shall indemnify the Company against all liability
and loss, damages and expenses awarded against or incurred by the
Company in connection with any claims by third parties in
connection with such use of the Output Material. |
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9.4 |
While the Company is
not aware, to the best of its knowledge, that any Output Material
is in infringement of any design rights, copyright or other
intellectual property rights of any third part, it does not give
any particular warranty in this respect. |
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10. |
Warranty and
Limitation of Liability |
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10.1 |
The Company warrants
to the Client/Customer that it is accredited by UKAS and that the Services
(with the exception of advice and consultancy) will be provided in
accordance with the accredited procedures of UKAS. |
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10.2 |
Except as expressly
provided in this Contract and so far as is permitted by statute
all warranties, conditions, guarantees or representations, express
or implied, statutory or otherwise are hereby excluded, and the
Company shall not be liable for any loss, damage, expense or
injury of any kind whatsoever, consequential or otherwise, arising
out of or due to or caused by any defects or deficiencies of any
sort in the Services, (including any delay in providing or failure
to provide the Services) whether such defects or deficiencies are
caused by the negligence of the Company or its employees or agents
or otherwise. |
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10.3 |
The Services are
provided to and for the benefit of the Client/Customer exclusively and all
collateral warranties are hereby excluded. The Company shall not
be liable to any third party who seeks to use the Services without
the Company’s express written permission for any loss, damage,
expense or injury of any kind whatsoever, consequential or
otherwise, arising out of or due to or caused by any defects or
deficiencies of any sort in the Services whether such defects or
deficiencies are caused by the negligence of the Company or its
employees or agents or otherwise. |
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10.4 |
The Company shall
have no liability to the Client/Customer for any loss, damage, costs,
expenses or other claims for compensation arising from any
instructions supplied by the Client/Customer which are incomplete,
incorrect, inaccurate, or in the wrong form, or arising from their
late arrival or non-arrival, or any other fault of the
Client/Customer. |
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10.5 |
No liability is
accepted by the Company for loss or damage howsoever caused to any
goods or samples submitted for examination by the Client/Customer.
Following examination of the goods or samples the remainder will
only be returned to the Client/Customer upon written request. Unless the
Company receives notice in writing to the contrary the Company
shall be entitled to dispose of all goods or samples within 6
months of the completion of the Contract. |
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10.6 |
Nothing in this
Contract shall limit or exclude the Company’s liability for death
or personal injury resulting from the negligence of the Company or
that of its employees or agents. |
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10.7 |
The entire liability
of the Consultancy under or in connection with the Agreement shall
not exceed a multiple of 20 (twenty) times the Company’s charges
for the provision of the Services under the Contract. |
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10.8 |
The Client/Customer shall
indemnify and keep the Company indemnified against all costs,
expenses, damage or other losses incurred or suffered by the
Company as a result of any claims made against the Company due to
the infringement of any regulation, enactment or legislation by
the Client/Customer. |
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10.9 |
The Client/Customer is under
a duty to mitigate any losses howsoever caused. |
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10.10 |
The Client/Customer
acknowledges and agrees that the limitation of liability contained
in this clause is: |
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10.10.1 |
fair and reasonable; |
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10.10.2 |
reflected in the
level of charges and of insurance cover carried by the Company |
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10.10.3 |
just and equitable
having regard to the extent of the responsibility of the Company
for any loss or damage suffered, on the basis that all other
consultants, the contractor and any subcontractors who have a
liability shall be deemed to have provided contractual
undertakings to the Client/Customer on terms no less onerous than those
contained in this Contract. |
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11. |
Publicity |
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11.1 |
The Company’s name
shall not be used in connection with the Contract for purposes of
publicity promotion or advertising without the prior written
approval of The Company. The Company may publish or join in
publishing any description or illustration of the works with the
prior consent of the Client/Customer. |
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12. |
Non-solicitation
of Staff |
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12.1 |
The Client/Customer shall not
solicit or entice away or seek to enticer away from the Company to
work for its business, whether as principal, agent, partner ,
director, employee, secondee or consultant, any person who is or
was employed or engaged by the Company in providing the Services. |
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12.2 |
Should the
Client/Customer be
in breach of 13.1 above, then it shall pay to the Company a sum to
cover the Company’s reasonable losses in this matter. |
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13. |
Data Protection
Act 1998 |
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13.1 |
The Company is
registered under the Data Protection Act 1998. |
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13.2 |
The Company may
consult or register information about the Client/Customer and the conduct
of the Client’s/Customer's account with a licensed credit reference agency.
The Company may also consult a licensed credit agency about any
credit information that they hold on the Client/Customer, or the Client’s/Customer's
principal directors. The Company will keep a record of that search
either on computer or on manual records. |
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13.3 |
As part of its
marketing policy the Company may send to the Client/Customer from time to
time details of its products and services. If the Client/Customer does not
wish to receive these details then please contact Asbestos
Consultants to the Environment Limited (list address, phone number
and email address, if appropriate). |
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14. |
Dispute
Resolution And Applicable Law |
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14.1 |
Any dispute or
difference arising out of or in connection with this Contract
shall be referable at the option of either party to adjudication.
The person who is to act as the adjudicator shall be agreed
between the Client/Customer and the Company, the preferred adjudicator
being ARCA/AtaC. |
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14.2 |
The contract shall
in all respects be subject to and construed in accordance with
English Law and the Client/Customer submits to the exclusive jurisdiction
of the English Courts. |
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15. |
Events of
Default, Termination, Repossession, Suspension |
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15.1 |
If: |
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15.1.1 |
the Client/Customer fails to
pay any sums when due or other wise materially breaches any of the
terms of the Contract or any other terms agreed with the Company:
or |
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15.1.2 |
the Client/Customer is, or
for statutory purposes is deemed to be or appears to be unable to
pay its debts as they become due, or the value of its assets is
less than the amount of its liabilities (including contingent and
prospective liabilities) or the Client/Customer otherwise becomes insolvent
or suspends payment or threatens to do so or ceases to trade; or |
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15.1.3 |
the Client/Customer makes any
voluntary arrangement with its creditors or becomes subject to an
administration order or (being an individual or firm) becomes
bankrupt or (being a company) goes into liquidation (otherwise
than for the purposes of amalgamation or reconstruction): or |
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15.1.4 |
an encumbrancer
takes possession, or a receiver is appointed, of any of the
property or assets of the Client/Customer: or |
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15.1.5 |
the Client/Customer ceases,
or threatens to cease, to carry on business; or |
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15.1.6 |
where the
Client/Customer is
an individual or partnership, he or any partner dies; or |
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15.1.7 |
outside England and
Wales anything corresponding to any of the above occurs: or |
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15.1.8 |
the Company
reasonably apprehends that any of the events mentioned above is
about to occur in relation to the Client/Customer. |
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15.2 |
Then in the above
cases the Client/Customer shall notify the Company forthwith in writing of
such event and in all cases the Company may (at its discretion,
whether or not is has received notice from the Client/Customer as aforesaid
and without prejudice to its other rights hereunder or otherwise)
at any time by notice to the Client/Customer do any one or more of the
following:- |
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15.2.1 |
terminate, cancel
and/or rescind the Contract and other contracts with the
Client/Customer; |
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15.2.2 |
declare immediately
due, payable and interest-bearing under clause 6.3.2. above any
amounts owed by the Client/Customer to the Company under any contract; |
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15.2.3 |
suspend the
provision of any Services to the Client/Customer; |
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15.2.4 |
proceed against the
Client/Customer for any sums owing under the Contract and/or damages, as
appropriate. |
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16. |
General |
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16.1 |
Any notice required
or permitted to be given by either party to the other under these
Conditions shall be in Writing addressed to that other party at
its registered office or principal place of business or such other
address as may at the relevant time have been notified pursuant to
this provision to the party giving the notice. |
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16.2 |
No waiver by the
Company of any breach of the Contract by the Client/Customer shall be
considered as a waiver of any subsequent breach of the same or any
other provision. |
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16.3 |
If any provision of
these Conditions is held by any competent authority to be invalid
or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the remainder or the provision
in question shall not be affected thereby. |
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16.4 |
The parties
acknowledge that, except as specifically provided in this Contract
it is not their intention that any third party shall be entitled
to enforce any term of this Contract which may confer a benefit on
that third party, whether any such entitlement would, but for this
provision, arise under the Contracts (Rights of Third Parties) Act
1999 or otherwise. |
