Agreed Terms
1. Basis of contract
1.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
1.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
1.3 Commencement Date.
1.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.5 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
2.1 The Company shall supply the Services to the Client from the Services Start Date in accordance with the Contract.
2.2 In supplying the Services, the Company shall perform the Services with reasonable care and skill.
2.3 The Company reserves the right to amend the Services if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
2.4 The Company shall dispose of all cores and samples taken from the Site 30 days after the Company has submitted a report to the Client on such samples. If the Client requires them to be retained for a longer period, this must be agreed with the Company in advance in writing and may be subject to a storage charge.
2.5 All documents, information and reports provided as part of the Services are prepared exclusively for the benefit of the Client only, are provided subject to any disclaimers and restrictions printed on them, and are not for the use of, or to be relied upon, by any third party. This Contract and the benefit of the Services shall not be assigned of transferred to any third party without the express prior consent of the Company.
3. Client’s Obligations
3.1 The Client shall:
a) ensure that the terms of the Order and any information it provides in the Schedule are complete and accurate;
b) co-operate with the Company in all matters relating to the Services;
c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s Site and other facilities as reasonably required by the Company to provide the Services;
d) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
3.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
a) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
b) the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 2; and
c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
4.1 In consideration for the provision of the Services, the Client shall pay the Company the Charges in accordance with this clause 4.
4.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Company at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
4.3 The Client shall pay each invoice due and submitted to it by the Company in full and without set-off, counterclaim or deduction, within 30 days of receipt, to a bank account nominated in writing by the Company. The Charges may be invoiced on an interim basis on a monthly basis or at the conclusion of any stage of the Services (such stages to include the conclusion of the fieldwork, testing or reporting) at the discretion of the Company.
4.4 If the Client fails to make any payment due to the Company under the Contract by the due date for payment, the Company may suspend all Services until payment has been made in full.
5. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
5.1 The restrictions on liability in this clause 5 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
5.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; and
c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
5.3 Subject to clause 2, the Company’s total liability to the Client shall not exceed the Charges.
5.4 Any claim for breach of this contract must be made within 6 years of the date of investigation of materials testing carried out as part of the Services.
5.5 This clause 5 shall survive termination of the Contract.
6.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
6.2 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
6.3 Waiver. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
6.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 6.4 shall not affect the validity and enforceability of the rest of the Contract.
6.5 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
6.6 Definitions:
- Charges: the charges payable by the Client for the supply of the Services by the Company, as set out in the Contract Details and Schedule 2.
- Conditions: these terms and conditions.
- Contract: the contract between the Client and the Company for the supply of the Services in accordance with the Contract Details, these Conditions and any Schedules.
- Order: The Client’s written acceptance of the Company’s quotation.
6.7 Interpretation:
a) Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
b) A reference to writing or written includes fax and email.
7. Disclaimers
7.1 Unless otherwise stated the offer is in accordance with the “ICE Conditions of Contract Ground Investigation Version – 2nd edition” published by the Institution of Civil Engineers and as amended by these Conditions.
7.2 Unless otherwise stated the specification to be used is the “Specification for Ground Investigation” published by the Site Investigation Steering Group and as amended by these Conditions.
7.3 Unless indicated in the Conditions or the quotation no allowance has been made in our rates for working on contaminated and/or hazardous sites. On unexpectedly encountering such, the Company reserves the right to modify its Charges to ensure compliance with the “Guidelines for the Investigation by Drilling of Landfills and Contaminated Land” published by the Site Investigation Steering Group.
7.4 Unless otherwise specifically stated we have not allowed for setting out the exploratory hole, test or inspection positions. Any such setting out, surveying or levelling will be at the Client’s cost and responsibility.
7.5 All reasonable care will be taken to avoid damage to any buried pipelines, cables, drains or other underground services. It will be the responsibility of the Client to provide the Company with the relevant utilities plans in good time prior to the commencement of Services. The Company shall, at the Client’s expense, carry out an inspection pit where necessary at each exploratory hole position (excluding machine excavated trial pits) to ensure clearance of shallow utilities or obstructions.
7.6 Unless otherwise specifically stated no allowance has been made in the Charges for the provision of any traffic control, watching, lighting or protection of the works.
7.7 Unless otherwise specifically stated we have not allowed for any special preparation for access to or setting up at exploratory hole, test or inspection positions.
7.8 Where relevant to the exploration technique, if the rate of boring falls below 0.5metres per hour, an extra-over charge will be made at the chiselling rate irrespective of the use or otherwise of chiselling equipment or techniques, for ‘slow drilling’.
7.9 No allowance has been made for abnormal overtime, night or weekend working unless expressly stated. Should such working be subsequently required the additional costs shall be chargeable to the Client.
7.10 Unless otherwise specifically stated no allowance for archaeological, ecological, UXO or any other form of watching brief has been. Where the Company deems such a watching brief to be required, the Client will be notified accordingly.
7.11 Unless otherwise specifically stated no allowance for the provision of licenses, permits or any form of exemptions has been made unless the absence of such a document would prevent the Company from fulfilling its duties with reasonable skill and care.
7.12 No allowance has been made for the removal or disposal of any waste or other material, other than that resulting from the investigation undertaking routine work. Neither shall the Company be responsible for the filling in, grouting, making safe or other structural repair of any third-party boreholes, drill workings, test pits, or voids or mine workings encountered during the investigation.
7.13 The Company shall not be responsible for site security, other than that for the Company’s or its sub-contractors’ equipment.
7.14 The Company shall (on completion of the work) be responsible for temporary reinstatement of the surface at each exploratory hole position unless otherwise stated in our offer. The Site shall be left safe and in a reasonably clean and tidy condition. The permanent reinstatement of the site surface shall be the responsibility of the Client.
