Remedy Geotechnics Ltd. Standard Terms
The following words which begin with capital letters in this agreement have the precise meanings set out below:
|“Agreement”||comprises these Remedy Geotechnics Ltd. Standard Terms and Remedy Geotechnics Ltd.’s Proposal as accepted by the Client and in the event of any discrepancy, these Terms and conditions shall take priority.|
|“Consultant”||REMEDY GEOTECHNICS LIMITED (company number 09304980) whose registered office is at ICON Environmental Innovation Centre, Eastern Way, Daventry, Northamptonshire NN11 0QB|
|“Client”||The legal entity or consumer that purchases the services.|
|“Dangers”||Toxic or hazardous substances, constituents and conditions, which present an actual or potential danger to human health, safety or the environment.|
|“Fee”||The amount stated within the agreement and/or the Proposal.|
|“Intellectual rights Property Rights”||Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in design, database rights, rights to use and protect the confidentiality of, confidential information (including know how) and all other intellectual property rights, whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions, right to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Proposal”||The Consultants written estimate detailing the relevant Services to be undertaken in response to the Client’s request.|
|“Services”||The services as set out in the Proposal.|
|“Site”||The land or buildings on or in which the Services are being undertaken.|
2. Assignment and Sub-Letting
2.1 The Consultant may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
2.2 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the other party. Such consent shall not unreasonably be delayed or withheld.
3.1 Unless otherwise stated in this Agreement, all Intellectual Property Rights arising out of or in connection with the Services shall be owned by the Consultant.
3.2 The Client shall be entitled to receive a copy of only the final product of the services.
3.3 Subject to payment the Consultant provides a licence to the Client to use the Intellectual Property Rights in the documents.
3.4 Any documents in respect of the Services shall only be used by the Client solely for such purposes of providing the Services as described in the Proposal.
4. Obligations of the Client
4.1 The Client guarantees that it has obtained and maintained the necessary licences, permission and consents which may be reasonably required in order for the Consultant to supply the Services.
4.2 The Client shall arrange to provide the Consultant, its employees or agents, consultants and subcontractors such rights of access to the Site and use of facilities as reasonably required by the Consultant.
4.3 The Client shall use reasonable endeavours to supply to the Consultant, promptly and free of charge:
4.3.1 any necessary instructions, decisions, consents and approvals which may be required at any point during the provision
of the Services; and
4.3.2 any relevant data and information in the Client’s possession that the Consultant may reasonably require in order to carry out the Services. The Client agrees to co-operate with the Consultant in all matters relating to the Services.
4.4 The Client shall indemnify and hold harmless the Consultant from and against all consequences of failure or Client default.
4.5 If the Consultant’s performance of its obligations under the Agreement is prevented or delayed by an act, omission or failure by the Client or any person for whom the Client is responsible, the Consultant shall:
- have the right to relieve it from the performance of any of its obligations; and
- not be liable for any costs or losses sustained or incurred by the Client as a result of the Consultants failure or delay to perform its obligations.
5. The Services
5.1 In consideration for payment of the Fee, the Consultant shall carry out the Services.
5.2 The Consultant shall carry out the Services with reasonable skill, care and diligence. Notwithstanding any responsibilities and obligations which the Client may have under any other contract, nothing in this Agreement or in any proposal, report or other document is to be construed as a warranty, guarantee or imply any higher or absolute standard of performance by the Consultant other than to use reasonable skill, care and diligence.
5.3 The Consult shall use reasonable endeavours to meet performance dates specified within the Proposal, but any such dates will be estimates only and time will not be of the essence for performance of the Services.
5.4 The Consultant shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement.
5.5 Once employed, The Consultant will have the role of a Designer under CDM regulations of 2015 for the work described within this fee proposal. The Consultant will not undertake the role of Principal Designer. The Client should be aware of their duties under CDM 2015, (more information can be found at http://www.hse.gov.uk/construction/cdm/2015/commercial-clients.htm). In particular, the Client should note that if a Principal Designer is not appointed, this role defaults to the Client.
6. Site Operations
6.1 If the Services include visit(s) to Site(s) by the Consultant, it’s employees or agent, they shall be considered the Client’s visitors.
6.2 The Consultant shall not be deemed to have assumed the role of occupier, or otherwise to have assumed control of or responsibility for a Site or any personnel on it.
6.3 The Client shall notify any persons on the Site (including other consultants and contractors, other than the Consultant’s own sub-contractors):
6.3.1 of the presence of the Consultant, it’s employees or agent,
6.3.2 of the extent (if any) to which the Consultant, it’s employees or agent are authorised to direct or supervise such person’s
6.3.3 that the presence of the Consultant, it’s employees or agent does not relieve them of their responsibilities, including safety
and their obligations under their respective contracts and agreements.
6.4 In the event that the Consultant is authorised by the Client to direct or supervise the works of any other consultants or contractors, the Client shall indemnify and hold harmless the Consultant from and against any claims from such consultants and contractors in respect of the Services, except to the extent of the Consultant’s negligence.
6.5 The Consultant shall take reasonable precautions and use reasonable endeavours to minimise damage to property, including utilities and other sub-surface obstructions. If, notwithstanding such precautions and endeavours, any such property is damaged, the cost of rectification shall be borne by the Client, unless the Proposal specifies a fee for it.
6.6 If the Services include field tests, drilling, sampling and similar site operations, they shall be carried out within a short distance of no more than 5 square metres from the designated locations, whilst avoiding utilities and any locations notified to the Consultant (in writing) as being the likely position of utilities or other obstructions.
6.7 In the event that the Consultant encounters and/or damages any utility or sub-surface condition which was unknown or not so notified, the Client shall indemnify and hold harmless the Consultant from and against all consequences of such event, except to the extent of the Consultant’s own negligence.
6.8 Locations identified in the Proposal, or contained within any other documents issued by the Consultant, may have been based on estimates and/or information from the Client or other parties, and are to be considered as approximate unless the Client confirms to the contrary. The Consultant is entitled to rely on any such information provided by or on behalf of the Client.
6.9 Following the thirtieth day after the Client has received the Consultant’s report (where applicable), the Consultant may dispose of all drilling samples and any other test specimens.
7. Toxic or Hazardous Substances
7.1 The Client shall have notified the Consultant of any known or suspected Dangers when requesting the Proposal or as soon as the Client becomes aware of them.
7.2 The Consultant shall not be responsible for reporting or failing to report any Dangers to any government, other duly constituted statutory authority, or the owner or occupier of any adjacent or affected lands.
7.3 The Client shall indemnify and hold harmless the Consultant from and against all consequences of encountering Dangers, except to the extent of the Consultant’s own negligence. The indemnity shall extend to cover all claims by all persons alleging personal injury death or damage to property as a result of exposure to or release of any dangers.
8.1 The Consultant is not a mould prevention Consultant; none of the Services and obligations provided on the Consultant’s part and in accordance with its obligations under the Agreement will be designed or conducted for the purpose of mould prevention.
8.2 Proper implementation of the recommendations conveyed in the Consultant’s report or findings will not themselves be considered sufficient to prevent mould from growing in or on the structure.
9. Estimates, Forecasts and Opinions of Costs
9.1 Any indication provided as to the likely cost of the Consultant, its employee or agent’s Services, shall not constitute an offer of a fixed fee for the provision of the Services, unless it is confirmed by way of a written proposal or fee estimate.
9.2 If the Consultant, its employee or agent provides any indication of the likely cost of future work by the Client for any construction or remedial work, such indication shall not be considered as binding or guarantee that the Client will be able to execute the work at such a cost.
9.3 The Consultant shall use reasonable endeavours to prepare realistic estimates as indications of future costs. The Client acknowledges that the actual cost of such work will be affected by factors that the Consultant cannot control or predict.
10.1 The Client shall pay the Consultant the Fee for the Services.
- Unless otherwise stated in this Agreement :
10.2.1 The Consultant shall submit interim invoices to the Client on a monthly basis. The Client will ensure that payment shall be made upon receipt of the invoice and finally payable fourteen days from the date given on the invoice in accordance with the Fees and other charges specified in this Agreement or otherwise formally agreed between the parties;
10.2.2 in respect of work (if any) for which the fees are not specified and are not agreed between the parties, payments shall be calculated as time based fees at hourly rates as given in the proposal, and all reasonable disbursements and expenses shall be reimbursed at cost plus a handling charge of 15%;
10.2.3 This agreement does not automatically include for providing a Collateral Warranty. In principle, and subject to agreement of the warranty wording by our insurers and legal advisers, we may be prepared to provide such a warranty. If this is requested the Client shall pay the Consultant’s associated legal fees subject to a minimum of £1,000.00;
10.2.4 amounts quoted in this Agreement exclude VAT;
- The Client shall pay the Consultant the amount invoiced, plus VAT, without any set-off, counterclaim, deduction or withholding.
- If the Client disagrees with any part of an invoice, the Client shall pay the undisputed part(s) by such final date.
- If the Client does not pay any amount due to the Consultant by such final date (subject to any reasonable deduction the Client was authorised to make by the Consultant) then:
- the Client shall also pay the Consultant interest compounded daily at a rate equivalent to 5% per annum above the official dealing rate of the Bank of England; and
- the Consultant may (after giving at least seven days notice to the Client) suspend performance of the Services until payment is received.
11. Contractor Clients
11.1 If the Client is a contractor who intends to submit a tender incorporating the Consultant’s design, any “Success Fee” (relating to the Client’s tender) stated in this Agreement shall be paid to the Consultant upon award of the contract to the Client on any terms whatsoever.
- In the event that:
11.2.1 the Client fails to submit a compliant tender by the latest date prescribed for such submission, or
11.2.2 the Proposal includes for arrangements for provision of some of the Services after the award of the contract to the Client (in which case the consideration for the pre-tender element of the Services may include the Client’s undertaking to continue this Agreement throughout the duration of such contract), and such a contract is awarded to the Client, and the Client fails to retain the Consultant for construction stage duties, then, unless the failure was due to a major breach of this Agreement by the Consultant, the Client shall also reimburse the Consultant in respect of all costs reasonably incurred in anticipation of, under, or in respect of this Agreement calculated in accordance with Clause 10.1.
12. Professional Liability
12.1 Notwithstanding any other provision of this Agreement, the total liability of the Consultant under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed in the aggregate the lesser of:-
- Ten times the total fee due to Remedy Geotechnics Ltd.
12.2 The Consultant shall have no liability whatsoever for any loss of profit, loss of use, loss of opportunity or any indirect or consequential loss arising under or in connection with the Agreement.
12.3 Nothing in this Agreement restricts or excludes the Consultant’s liability for death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors.
13. Third Party Rights
The Consultant shall carry out the Services for the sole use and benefit of the Client. Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term(s) of this Agreement.
The Consultant shall effect and maintain professional indemnity insurance for the Services in an amount limited to £1,000,000 in aggregate. Except that, if such insurance cover in respect of the Services is not available at commercially reasonable rates, the Consultant shall promptly notify the Client who is to obtain the relevant cover at a reasonable cost.
The laws of England and Wales shall govern this Agreement and, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
16. Adjudication of Disputes
If a dispute arises between the parties, which they agree (or are entitled by law) to refer to adjudication, and they fail to agree upon an adjudicator within five working days, the Chartered Institute of Arbitrators (London, EC1V 2RS) shall act as the nominating body and select an adjudicator.
17. Net Contribution
Further and notwithstanding anything to the contrary contained in this Agreement and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of the Consultant, if any, for any loss or damage (“the loss or damage”) in respect of any claim or claims shall not exceed such sum as it would be just and equitable for the Consultant to pay having regard to the extent of the Consultant’s responsibility for the loss or damage and on the assumptions that:
(i) all other consultants and advisers, contractors and sub-contractors involved shall have provided contractual undertakings to the Client on terms no less onerous than those set out in this Agreement in respect of the carrying out of their obligations in connection with the provision of the Services; and
(ii) there are no exclusions of or limitations of liability nor joint insurance or coinsurance provisions between the Client and any other party and that any such other party who is responsible to any extent for the loss or damage is contractually liable to the Client for the loss or damage; and
(iii) all the parties referred to in (i) above, have paid to the Client such proportion of the loss or damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss or damage.
18. Time Limitation
18.1 No action or proceedings under or in respect of this Agreement whether in contract, in tort, in negligence, for breach of statutory duty or otherwise shall be commenced against the Consultant after the expiry of six years from the date of completion of the Services or the termination of the Services if earlier.
19. Force Majeure
19.1 For the purposes of this Agreement “Force Majeure” means an event outside of the reasonable control of a party affecting its obligations under this Agreement.
19.2 If either party is affected by a Force Majeure it shall promptly notify the other party in writing and keep that other party updated of the Force Majeure and its impact.
19.3 The Consultant shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
19.4 If the Force Majeure Event presents the Consultant from providing any of the Services for more than four weeks, the Consultant shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Client or apply a fair and reasonable adjustment to the Fee.
Remedy Geotechnics Limited all Rights Reserved March 2017 ©