SURVEYOURS LTD – STANDARD TERMS OF CONDITIONS OF BUSINESS

 

1 INTERPRETATION

1.1 The definitions & rules of interpretation in this clause apply in these terms & conditions (Conditions)

Client: the person, firm or company who purchases Services from the Company.

Client's Manager: the Client’s manager for the Project, appointed in accordance with cond 6.1.

Company: Surveyours Ltd incorporated & registered in England & Wales with company number 08769255 whose registered office is at High Close, Fairfield Terrace, Swansea SA1 6JX.

Company's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Company or its subcontractors & 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 .

Contract: the Client's acceptance of a Service Proposal by the Company under condition 2.2.

Deliverables: all Documents, products & materials developed by the Company in relation to the Service Proposal in any form, including computer programs, data, reports & specifications (including drafts).

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

In-put Material: all Documents, information & materials provided by the Client relating to the Services including, plans, maps & reports regarding the site conditions, topography & climate.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright & related rights, trademarks, service marks, trade, business & 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 right, topography rights, moral rights, rights in confidential information (including know-how & trade secrets) & any other intellectual property rights, in each case whether registered or unregistered & including all applications for & renewals or extensions of such rights, & all similar or equivalent rights or forms of protection in any part of the world.Pre-existing Materials: All Documents, information & materials provided by the Company relating to the Services which existed prior to the commencement of the Project including computer programs, data, reports & specifications.

Project: the project as described in the Service Proposal.

Rate: the rate, charges, fees or payment terms applicable and agreed within the Service Proposal and in accordance with Schedule 2.

Service Proposal: the detailed plan describing the Project & setting out the estimated timetable & responsibilities for the provision of the Services agreed in accordance with condition 4.

Services: the services to be provided by the Company under this Agreement as set out in the Service Proposal.

Surveyor: the Company’s Chartered Surveyor/Energy Assessor/Green Deal Advisor, or any sub contracting parties, for the Services appointed under condition 5.3.

1.2 - Condition, schedule & 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) & that person's legal & personal representatives, successors & permitted assigns.

1.4 - The schedules form part of this Agreement & shall have effect as if set out in full in the body of these Conditions & any reference to this agreement includes the schedules.

1.5 - Words in the singular shall include the plural & vice versa.

1.6 - reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment & includes any subordinate legislation for the time being in force made under it.

1.7 - A reference to writing or written includes faxes & e-mail.

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

1.9 - Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.10 - References to conditions & schedules are to the conditions & schedules of this Agreement.

2 APPLICATION OF CONDITIONS

2.1 - These Conditions shall:(a) Apply to & be incorporated into the Contract; and(b) Prevail over any inconsistent terms or conditions contained, or referred to, in the Client's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.

2.2 - The Client's purchase order, or the Client's acceptance of a Service Proposal for Services by the Company, constitutes an offer by the Client to purchase the Services specified in it on these Conditions. No offer placed by the Client shall be accepted by the Company other than:

(a) by a written acknowledgement issued & executed by the Company; or

(b) (if earlier) by the Company starting to provide the Services,when a contract for the supply & purchase of those Services on these Conditions will be established.

The Client’s standard terms & conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern this Agreement.

2.3 - Service Proposals are given by the Company on the basis that no agreement shall come into existence except in accordance with condition 2.2. Any Service Proposal is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn it.

3 COMMENCEMENT & DURATION

3.1 - The Services supplied under this Agreement shall be provided by the Company to the Client from the date specified in the acknowledgement issued by the Company in accordance with condition 2.2(a).

3.2 - The Services supplied under this Agreement shall continue to be supplied until the Project is completed in accordance with the Service Proposal unless this Agreement is terminated in accordance with condition 14.

4 SERVICE PROPOSAL

4.1 - The Service Proposal(s) shall be agreed in the following manner:(a) the Client shall provide the Company with a request for a Service Proposal, setting out the requirements & specifications of the services which it is requesting from the Company, including a description of what work is to be done, dates by which is requested to be started & finished, In-put Material & such other information as the Company may request to allow the Company to prepare a draft Service Proposal;(b) the Company shall, as soon as reasonably practicable, provide the Client with a draft Service Proposal; and(c) the Company & the Client shall discuss & agree the draft Service Proposal & when it has been agreed, they shall both sign a copy of it or confirm agreement of the draft Service Proposal in writing & where it is signed it shall become subject to these Conditions.

4.2 - The Client is responsible for the verification of any data supplied to the Company under condition 4.1 or any part of this Agreement. The Company will not carry out any checks on the accuracy of the data supplied by the Client unless the Client specifically requests that the Company do so.

4.3 - Once the Service Proposal has been agreed & signed in accordance with condition 1.1(c), no amendment shall be made to it except in accordance with condition 7 & condition 16.

5 COMPANY'S OBLIGATIONS

5.1 - The Company shall use reasonable endeavours to manage & complete the Services, in accordance in all material respects with the Service Proposal.

5.2 - The Company shall use reasonable endeavours to meet any performance dates specified in the Service Proposal, but any such dates shall be estimates only & time shall not be of the essence of this Agreement other than where specifically stated to the contrary.

5.3 - The Company shall appoint the Surveyor 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 Surveyor throughout the term of Project, but may replace him from time to time where reasonably necessary in the interests of the Company’s business.

5.4 - The Company shall use all reasonable endeavours to observe all health & safety rules & regulations & any other reasonable security requirements that apply at the site where the Services are to be performed & that have been communicated to it under condition 1.1(e), provided that it shall not be liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement.

6 CLIENT 'S OBLIGATIONS

6.1 - The Client shall:

(a) co-operate with the Company in all matters relating to the Services & appoint the Client's Manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to that Project;

(b) provide, for the Company, its agents, sub-contractors & employees, in a timely manner & at no charge, access to the site at which the Project is to be conducted and obtain permission to access any other areas to which the Company may require access to carry out the services;

(c) provide, in a timely manner, such In-put Material & other information as the Company may request & ensure that it is accurate in all material respects;

(d) be responsible (at its own cost) for preparing & maintaining the relevant premises for the supply of the Services, including identifying, monitoring, removing & disposing of any hazardous materials from any of its sites in accordance with all applicable laws, before & during the supply of the Services at those premises, & informing the Company of all of it obligations & actions under this condition 1.1(d);

(e) inform the Company of all health & safety rules & regulations & any other reasonable security requirements that apply at any of the Client's sites;(f) obtain & maintain all necessary licences consents & permits & comply with all relevant legislation in relation to the Services, in all cases before the date on which the Services are to start & the Company will provide assistance in the submission of any necessary applications;

(g) keep & maintain the Company’s Equipment in accordance with the Company’s instructions as notified by the Surveyor from time to time & shall not dispose of or use the Company’s Equipment other than in accordance with the Company’s written instructions or authorisation; and

(h) verify any data or information supplied to the Company for use in providing the Services.

6.2 - If the Company’s performance of its obligations under this Agreement 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 & any delay caused to the Company will be subject to the charges at the Rate.

6.3 - The Client shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit & loss of reputation, loss or damage to property & those arising from injury to or death of any person & 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 this Agreement, subject to the Company confirming such costs, charges & losses to the Client in writing.

6.4 - The Client shall not, without the prior written consent of the Company, at any time from the date on which these Conditions were executed to the expiry of six months after the completion of the Project or termination of this Agreement 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.

7 CHANGE CONTROL

7.1 - If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.

7.2 - If either party requests a change to the scope or execution of the Services, the Company shall, within a reasonable time, provide a written estimate to the Client of:

(a) the likely time required to implement the change;

(b) any variations to the Company’s charges arising from the change;

(c) the likely effect of the change on the Service Proposal; &

(d) any other impact of the change on the terms of this Agreement.

7.3 - The Company may, from time to time & without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. The Company may, from time to time change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, the Company will give the Client at least 5 days notice.

7.4 - If the Client wishes the Company to proceed with the change, the Company has no obligation to do so unless & until the parties have agreed in writing on the necessary variations to its charges, the Service Proposal & any other relevant terms of this Agreement to take account of the change.

7.5 - The Company may charge for its time spent in assessing a request for change from the Client on a time & materials basis in accordance with condition 8.

8 CHARGES & PAYMENT

8.1 - Condition

8.2 shall apply if the Company provides the Services on a time basis. Conditions 8.3 & 8.4 shall apply if the Company provides the Services for a fixed price. The remainder of this condition 8 shall apply in either case.8.2 - Where the Services are provided on a time basis:

(a) the charges payable for the Services shall be calculated in accordance with the Company’s standard Rates, as amended from time to time, a copy of which is available from the Company on request;

(b) the Company shall be entitled to charge an overtime rate in accordance with the rates set out in the Company’s Standard Rates;

(c) all charges quoted to the Client shall be exclusive of VAT which the Company shall add to its invoices at the appropriate rate where applicable;

(d) the Company shall ensure that every individual whom it engages on the Services completes time sheets recording time spent, & the Company shall use such time sheets to calculate the charges covered by each monthly invoice; and

(e) the Company shall invoice the Client periodically in arrears for its charges for time, expenses & materials (together with VAT where appropriate) for the period concerned, calculated as provided in this condition 8.2.

8.3 - Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Service Proposal. The total price shall be paid to the Company (without deduction or set-off) & where agreed in writing by the Company in instalments, as set out in the Service Proposal. At the end of a period specified in the Service Proposal in respect of which an instalment is due, the Company shall invoice the Client for the charges that are then payable, together with expenses, the costs of materials & VAT, where appropriate, calculated as provided in condition 8.4.

8.4 - The unit rate stated in the Service Proposal is only applicable to the Project. If the scope of the Project is raised in accordance with condition 7 the unit rate stated in the Service Proposal will be subject to revision at the Company’s discretion.

8.5 - Any delay caused by:

(a) erroneous data being supplied to the Company under condition 4.1;

(b) access on & to site;

(c) agreement with others on work completed or to be done;

(d) site clearance;

(e) demolition;

(f) obstructions to the Project by vegetation or buildings; or

(g) adverse weather conditions;

other than those specifically allowed for as part of the Service Proposal will be charged for at the applicable unit rate.

8.6 - Any fixed price & Rate contained in the Service Proposal excludes:(a) the cost of hotel, subsistence, travelling & any other ancillary expenses reasonably incurred by the individuals whom the Company engages in connection with the Services, the cost of any materials & the cost of services reasonably & properly provided by third parties & required by the Company for the supply of the Services. Such expenses, materials & third party services shall be by prior agreement with the client and invoiced by the Company; and(b) VAT and/or customs duties, sale or other taxes payable, which the Company shall add to its invoices at the appropriate rate.

8.7 The Client shall pay each invoice submitted to it by the Company, in full & in cleared funds, within 30 days of receipt.

8.8 In the event that the Client disputes any invoice, in whole or in part, the Client shall inform the Company within five working days of the date of the disputed invoice. The Client shall pay the undisputed part of the invoice in accordance with Condition 8.7. The Parties shall use all reasonable endeavours to resolve any dispute in relation to an invoice without delay.

8.9 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may:

(a) 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 Lloyds Bank PLC, accruing on a daily basis & being compounded quarterly until payment is made, whether before or after any judgment & the Company may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

(b) suspend all Services until payment has been made in full.

8.10 - All sums payable to the Company under this Agreement shall become due immediately on its termination, despite any other provision. This condition without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

8.11 - The Client identified in these Conditions shall be the party responsible for all sums payable under this Agreement & the Company shall not be concerned whether the Client is acting as principal or agent nor shall the Company concern itself as to whether the Client is paid by a third party.

9 SURVEY & REPORTING

9.1 - All data, information, reports & plans will be issued according to the Company’s standard format unless otherwise agreed between the parties in writing prior to the commencement of the Project.

9.2 - The Company shall, at its own expense, rectify any errors in the survey which are shown to be in excess of the tolerance stated in the Service Proposal.

10 INTELLECTUAL PROPERTY RIGHTS

10.1 - As between the Client & the Company, all Intellectual Property Rights & all other rights in the Deliverables & the Pre-existing Materials shall be owned by the Company. Subject to condition

10.2, the Company licenses all such rights to the Client free of charge & on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables & the Services provided that all payments due to the Company from the Client have been paid in full. If the Company terminates this Agreement under condition 14.2, this licence will automatically terminate.10.2 - The Client acknowledges that, where the Company does not own any Pre-existing Materials, the Client’s use of rights in 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.

10.3 - The Client shall not assign or grant any sub-licence of any Intellectual Property Right licensed to the Client under condition 10.1 without the prior written consent of the Company such consent not to be unreasonably withheld, conditioned or delayed.

11 CONFIDENTIALITY & THE COMPANY'S PROPERTY

11.1 - The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature & have been disclosed to the Client by the Company, its employees, agents or sub-contractors & any other confidential information concerning the Company’s business or its products which the Client may obtain. The Client 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 Client’s obligations to the Company, & shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.

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

11.3 - This condition 11 shall survive termination of this Agreement, however arising.

12 INSURANCE

12.1 - The Company shall remain adequately insured against all liabilities required by law, its regulatory bodies and prudent practice where reasonable to do so.

13 LIMITATION OF LIABILITY

13.1 - Subject to condition 5.4, this condition 13 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents & sub-contractors) to the Client in respect of:

(a) any breach of this Agreement;

(b) any use made by the Client of the Services, the Deliverables or any part of them;

(c) any delay in providing or failure to provide the Services; and

(d) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2 - All warranties, conditions & other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

13.3 - Nothing in these Conditions limits or excludes the liability of the Company:

(a) for death or personal injury resulting from negligence; or

(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company

13.4 - Subject to condition 13.2 & condition 13.3

(a) the Company shall not be liable 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 or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(b) 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 this Agreement shall be limited to the price paid for the Services.

14 TERMINATION

14.1 - Subject to condition 14.3, this Agreement shall terminate automatically on completion of the Project in accordance with the Service Proposal.

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

(a) the other party commits a material breach of any of the terms of this Agreement & (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

(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

(c) an order is made for the appointment of an administrator to manage the affairs, business & 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 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

(d) a receiver is appointed of any of the other party's assets or undertaking, or 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

(e) 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

(f) the other party ceases, or threatens to cease, to trade; or

(g) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or

(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

14.3 - On termination of this Agreement for any reason:

(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices & 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;

(b) the Client shall return all of the Company’s Equipment, Pre-existing Materials & Deliverables. If the Client fails to do so, then the Company may enter the Client's premises & take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and

(c) the accrued rights of the parties as at termination & the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

15 FORCE MAJEURE

15.1 - The Company shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement 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, 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, provided that if the event in question continues for a period in excess of [60] days, either party shall be entitled to give notice in writing to the Company to terminate this Agreement.

16 VARIATION

16.1 - Subject to condition 4 & condition 7, no variation of this agreement or these Conditions shall be valid unless agreed prior by a director of each of the parties.

17 WAIVER

17.1 - A waiver of any right under this Agreement is only effective if it is in writing & it applies only to the party to whom the waiver is addressed & the circumstances for which it is given

17.2 - Unless specifically provided otherwise, rights arising under this agreement are cumulative & do not exclude rights provided by law.

18 SEVERANCE

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

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

18.3 - The parties agree, in the circumstances referred to in condition 18.1 & if condition 18.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable & legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the parties under any invalid or unenforceable provision of this Agreement shall be suspended while an attempt at such substitution is made.

19 STATUS OF PRE-CONTRACTUAL STATEMENTS

19.1 - Each of the parties acknowledges & agrees that, in entering into this Agreement 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 & conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

20 ASSIGNMENT

20.1 - The Client shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20.2 - The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21 NO PARTNERSHIP OR AGENCY

21.1 - Nothing in this Agreement 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, & 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 & the exercise of any right or power).

22 RIGHTS OF THIRD PARTIES

22.1 - This agreement is made for the benefit of the parties to it & (where applicable) their successors & permitted assigns & is not intended to benefit, or be enforceable by, anyone else.

23 NOTICES

23.1 - Notice given under this Agreement shall be in writing, sent for the attention of the person, & to the address or fax number, given in this Agreement (or such other address, fax number or person as the relevant party may notify to the other party) & shall be delivered personally, sent by fax 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 fax, at the time of transmission, 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 23 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 that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed & posted.

24 GOVERNING LAW & JURISDICTION

24.1 - This Agreement & any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, & construed in accordance with, the law of England & Wales.

24.2 - The parties irrevocably agree that the courts of England & Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.