SELECT SURVEYS LIMITED
TERMS AND CONDITIONS OF BUSINESS
1. DEFINITIONS
“SSL” means Select Surveys Limited
‘Client” means the person(s), firm or company to be supplied with the Services by SSL
“Services” mean the work and services pursuant to the Contract and specified in the Contract Documents and includes any changes to the specification and/or Order made in accordance with the Contract and referred to in Clause 6 herein.
“Site” means the site where the Services are to be carried out.
“Order” means the written order issued by or on behalf of the Client to SSL for the performance of the Services.
“Electronic Document” means, without limitation, any online Order, online e-mail, communication between authorised persons, acknowledgments, invoices and/or any other online transaction capable of acceptance by its intended recipient.
“Contract” means the contract for the provision of Services made between SSL and the Client to which these Conditions apply.
“Contract Documents” means these Conditions, the tender documents, quotation, purchase order, letter of intent and other documents, schedules or appendices referred to therein.
2. CONDITIONS APPLICABLE
These Conditions shall apply to all contracts for the provision of Services by SSL to the Client to the exclusion of all other terms and conditions including any terms or conditions which the Client may purport to apply under any Purchase Order, Confirmation of Purchase Order or similar document. Any variations to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by SSL and any conditions or stipulations to the contrary are hereby excluded or extinguished.
3. ELECTRONIC DATA INTERCHANGE
3.1 The parties may implement and use such form of electronic data interchange (EDI) as may be required from time to time as an electronic means of exchanging Electronic Documents.
3.2.The parties shall ensure that any EDI correspondence is issued by an authorised person.
3.3.ln accordance with condition 3.2., the recipient of any EDI correspondence shall be entitled to treat the same as a legally binding document capable of acceptance.
3.4.The parties shall keep and maintain all copies and receipts of any EDI correspondence for a reasonable time following the transaction.
4. PRICE
4.1. A quotation by SSL does not constitute an offer and SSL reserves the right to withdraw or amend the quotation at any time prior to SSL’s acceptance of the Client’s Order.
4.2. unless the Price quoted is stated to be fixed, SSL shall have the right at any time to alter the Price to take account of any errors or omissions.
4.3. The Price shall be binding on SSL provided the Client shall call off the Orders within a period of 3 months from the date of the quotation. Thereafter SSL may, by giving notice to the Client at any time before performance of the Service, increase the Price to reflect any increase in the cost to SSL which is due to factors occurring after the making of the Contract which are beyond the reasonable control of SSL
4.4. The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Sellers invoice.
5. PAYMENT
5.1 unless otherwise agreed in writing and noted within the Contract Documents SSL shall raise invoices upon completion of the work ordered by the Client.
s.2.unless otherwise agreed in writing, the date for payment of the invoice by the Client shall be 30 days from the date of the invoice.
5.3. SSL shall be entitled to charge interest at 5% above the Bank of England base rate on outstanding payments from the date payment become due to the date of receipt of payment by
SSL.
5.4 In the event that the Client fails to make payments in accordance with the provisions of this Condition 5 SSL shall be
entitled, without prejudice to any other rights it may have, to suspend delivery or performance of any outstanding Orders (in whole or in part) without liability until payment in full of all outstanding sums has been made. The Client will be liable to reimburse SSL for the cost of suspension and remobilisation should Services be resumed.
5.5. Any extension of credit allowed to the Client may be changed or withdrawn at anytime. If in the opinion of SSL the credit worthiness of the Client shall have deteriorated, SSL may require full or partial payment of the Price prior to completion of the Services or the provision for security of payment by the Client in a form acceptable to SSL in order to proceed with the Services.
6. VARIATIONS
6.1. If any instruction issued under this Contract shall require SSL to undertake work not provided for in or to be reasonably inferred from the Contract then SSL shall be entitled to an adjustment to the Contract Price ascertained in accordance with clauses 6.3 and 6.4 below and to an extension of the periods of completion of the Contract Services.
6.2. Such instruction or variation order shall be made in writing by the Client and will not vitiate the Contract.
6.3. unless otherwise agreed, any adjustment to the Contract Price shall be valued by SSL on a fair and reasonable basis, using where relevant rates and prices set out in the Contract Documents and such valuation shall include any direct loss and/or expense incurred by SSL due to the regular progress of the Services being affected by compliance with such instruction.
6.4. The cost of additional man-hours spent in order to achieve compliance with the variation instruction or order will be included as part of the adjustment to the Contract Price.
6.5. SSL shall raise appropriate invoices in respect of
the Variations when the works are completed and payment will be made in accordance with Clause 5 above.
7. PROGRESS AND COMPLETION
7.1. The Contract Services shall be commenced when the Client instructs SSL to proceed and shall be completed within the Contract period or section periods as specified in the Contract Documents subject to clauses 6.1 and 7.2 herein
7.2. SSL will use all reasonable efforts to perform the Services in accordance with the times specified. Time not being of the essence of the Contract, SSL will not be liable for any delay due to conditions beyond its control such as but not limited to inclement weather, traffic, illness and inability to gain access to the site. In the event of total failure to perform the Services due SSL’s fault, the liability of SSL shall be limited to the value of such Services referred to in the relevant invoice, quotation, order or as otherwise specified in the Contract.
7.3. For the avoidance of doubt, the Client will not be entitled to claim from SSL any consequential loss including (but not limited to) loss of profits.
8. EXECUTION OF CONTRACT SERVICES
SSL will perform the Services with reasonable skill and care and in a good and workmanlike manner in compliance with Contract Documents using equipment and workmanship of the quality and standard specified.
9. TRANSFER OF TITLE
Title in all materials relating to the Services including (but not limited to) surveys, designs, plans, packs and digital reproductions shall remain solely and absolutely with SSL as legal and equitable owner until such time as the Client shall have paid to SSL the agreed price upon which time title will pass to the Client.
10. LIMITATION OF LIABILITY
10.1. The Client acknowledges that in the performance of its Services SSL relies on utility plans obtained from statutory undertakers and private utility companies. Whilst SSL shall ensure that the plans obtained are current and up to date, SSL do not warrant the accuracy of such plans.
10.2. SSL shall not be liable to the Client for any loss, damage or injury direct or indirect arising from any error, omission or deficiency in such plans or in any plans supplied by the Client.
10.3. SSL’s aggregate liability to the Client whether for 12.1. The Client shell comply with its obligations pursuant to all negligence, breach of contract, mis-representation or otherwise shall in no circumstances exceed the cost of the defective or undelivered Service which gave rise to such liability, as determined by the net price submitted to the Client in respect of any occurrence or series of occurrences.
10.4. SSL shall not be liable to the Client for any loss, damage or injury resulting from any unsafe working practice, digging techniques or breach of relevant Heath and Safety guidelines by the Client, his servants, agents or employees.
10.5. The Client acknowledges that the electromagnetic location, radio detection and radar technology equipment utilised by SSL in carrying out the Services as to depth readings and all position markings are subject to manufacturer’s tolerances and accuracy errors. The Client accepts that SSL’s survey results, markings, drawings or designs are supplied for guidance purposes only and that trial holes post-survey are recommended by SSL to establish the accuracy of its findings.
SSL shall not be liable for any loss and/or damage arising out of inaccurate survey results, markings, drawings or designs supplied to the Client.
10.6. All conditions, warranties, representations expressed or implied by statute, common law or otherwise, in relation to the Services are hereby excluded. Furthermore, SSL shall be under no liability to the Client for any loss, damage or injury direct or indirect resulting from defective equipment, faulty workmanship or otherwise howsoever arising under the Contract and whether or not caused by the negligence of SSL, its servants or agents save that SSL shall accept liability for the death or personal injury caused by the negligence of SSL.
10.7. SSL are not responsible for carrying out works to remove any road paint on completion of the works or the cost of those works, pursuant to the Traffic Management Act 2004 (as amended from time to time) or any other legislation.
11. CLIENTS LIABILITY
11.1. SSL will be indemnified by the Client for any losses incurred as a result of any delay or disruption caused or contributed to by any default of the Client or any person employed or otherwise engaged (whether directly or not) by the Client to include (without limitation) any failure on the Client’s part in arranging and managing a reasonable and practical programme of works. SSL is entitled to apply extra charges for visits to site which are wasted
11.2. The Client will be liable to reimburse SSL for any loss and expense incurred caused by matters affecting the regular progress of the Services including but not limited to the following:
11.2.1. SSL not having received in due time necessary instructions, drawings or details from the Client or its agents;
11.2.2. the execution of other work by the Client itself or by persons employed or otherwise engaged directly or indirectly by the Client such as its other sub-contractors or the failure to execute such works
11.2.3. the supply by the Client of materials, equipment and other items which the Client has agreed to provide for the Services or the failure to supply
11.2.4. failure of the Client to give in due time access to the Site
11.2.5.variations ordered by the Client as referred to in condition 6.
11.2.6 suspension of the Works as referred to in condition 5.4.
11.2.7. The Client shall be responsible for, and be liable for the cost of, removing of any road paint on completion of the works pursuant to the Traffic
Management Act 2004 (as amended from time to time) or any other legislation.
11.3. the Client shall indemnify SSL in respect of any loss, damage or expense incurred as a result of personal injury or death of any person or damage to property caused by the default or negligence of the Client, its employees, agents or its other contractors.
11.4 The Client shall not, without the prior written consent of SSL, at any time from the first supply of Services under these Conditions to the expiry of 6 months after the last date of supply of the Services, employ or engage, or offer to employ or engage, or solicit, or otherwise entice or attempt to entice away from SSL any person who:
a) is employed or engaged by SSL and has provided the Services on behalf of SSL to the Client as a surveyor or document controller; or
b) was employed or engaged by SSL and has provided the Services on behalf of SSL to the Client as a surveyor or document controller.
11.5. The provisions of conditions 11.1. – 11.4. are without prejudice to any other rights and remedies which SSL may have.
12. HEALTH AND SAFETY
12.1. The Client shall comply with its obligations pursuant to all relevant Health & Safety legislation, guidance notes and CDM Regulations.
12.2. SSL shall comply with its Health & Safety procedures in accordance with statutory requirements and if requested, shall submit its Health & Safety Manual, Method Statements, Risk Assessments and COSHH assessments to the Client.
13. TERMINATION
13.1. If the Client enters into a Deed of Arrangement or commits an act of bankruptcy or compounds with his creditors or if a Receiving Order is made against him or (being a company) it shall pass a resolution or the Court shall make an order that the Client shall be wound up (otherwise than for the purpose of amalgamation or reconstruction) or if a receiver shall be appointed of any of the assets or undertaking of the Client or its circumstances shall arise which shall entitle the Court or a creditor to appoint a receiver or manager or which entitles the Court to make a Winding Up Order or if the Client takes or suffers any similar action in consequences of the debt or commits any breach of any part of this or any other Contract between SSL and the Client, SSL may stop any works and suspend further works and by notice in writing to the Client may forthwith determine the Contract without liability upon its part and without prejudice to any other rights which it may have.
13.2.ln the event of termination of the Contract, SSL is to be paid by the Client for all works completed and for other direct loss and expenses incurred as a result of the termination.
14. FORCE MAJEURE
14.1. SSL shall not be liable to the Client for any loss or damage which may be suffered by the Client as a direct or indirect result of the provision of the Services by SSL being prevented, hindered or delayed by reason of any force majeure circumstances.
14.2. In this condition “force majeure circumstances” shall include any act of God, riot, strike, lock-out, currency restrictions, trade dispute or labour disturbances, accident breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen, material or transport or other circumstances whatsoever outside the control of SSL affecting the provision of the Services therefore by SSL’s usual source of supply or the manufacturer of the materials by SSL’s normal means or the delivery of the materials by SSL’s normal route or means of delivery.
15. WAIVER
The failure on the part of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise by enforcement thereof at any time or times thereafter.
16. SEVERABILITY
If any provision or part-provision of this agreement 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 shall not affect the validity and enforceability of the rest of this agreement.
17. ENTIRE AGREEMENT
The Contract contains the entire understanding and agreement between SSL and the Client in respect of the subject matter of the Contract and supersedes all prior oral or written communication, undertakings and any practice or course of dealing applying between SSL and the Client. It may not be amended except in writing signed by the authorised representatives of both the Company and the Client.
18. THIRD PARTY RIGHTS
Nothing in the Contract shall confer any rights to any third party and for the avoidance of doubt any rights conferred on third parties pursuant to the Contract’s (Rights of Parties) Act 1999 or any other legislation are hereby expressly excluded.
19. GOVERNING LAW
The Contract shall be governed by English law.
20. DISPUTE RESOLUTION
20.1. In the event of any dispute between the parties, the parties may jointly appoint an independent mediator suitably qualified which may, without limitation, be a building surveyor, quantity surveyor or architect to resolve the matter.
The parties shall have the right to refer any dispute arising under the Contract to adjudication at any time, such adjudication shall be conducted in accordance with the provisions of Part 1 of the scheme for Construction Contracts (England & Wales) Regulations 1998.
