PLANSAFE SOLUTIONS LTD
STANDARD TERMS & CONDITIONS
1. INTERPRETATION
Definitions
1.1 In these Conditions, the following definitions apply:
- “Acceptance Letter” means the acceptance letter from the Company;
- “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
- “Company” means Plansafe Solutions Ltd registered in Scotland with company number 158117;
- “Conditions” means these terms and conditions;
- “Contract” means the Acceptance Letter from the Company to the Customer together with these Conditions;
- “Customer” means the person or entity named in the Acceptance Letter;
- “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and 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 and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
- “Report” means the document prepared by the Company reporting the results of the survey undertaken in respect of the site;
- “Services” means the health and safety provision set out in the Contract; and
- “Site” means the premises stipulated in the Acceptance Letter.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 In the event of a conflict between these Conditions and the Acceptance Letter the terms in the Acceptance Letter shall prevail.
2. BASIS OF CONTRACT
2.1 The Company shall provide the Services and the Customer shall pay for the same.
2.2 Any quotation given by the Company is indicative only and shall not constitute an offer. Any quotation is only valid for a period of [60] Business Days from its date of issue, providing the Company has not withdrawn it and is, at all times, subject to these Conditions.
2.3 The buyer’s oral or written acceptance of a quotation shall constitute an offer which shall be deemed to be accepted when the Company issues written acceptance in the form of an Acceptance Letter.
2.4 No order submitted by the Customer shall be deemed to be accepted until the Company issues written acceptance in the form of an Acceptance Letter.
2.5 Any descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them and shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SERVICES
3.1 The Company shall supply the Services in respect of an assessment of the standard of compliance with current health and safety legislation and guidance, along with guidance and assistance in rectifying any deficiencies identified, and shall supply the Customer with a Report on the terms and conditions set out herein.
3.2 The Company shall use all reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.
3.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) provide the Company, its employees, agents, consultants and subcontractors, with unrestricted access to the Site so as to enable the Company to survey the Site and obtain such samples as may be required for the provision of the Services;
(c) provide the Company with such information as the Company may reasonably require in order to supply the Services including but not limited to information on the current and historical use of the Site and the age of the property on the Site. The Customer warrants that such information is accurate in all material respects and not misleading;
(d) make such preparations at the Site as may be necessary for the supply of the Services;
(e) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and, where appropriate, maintain the Company’s equipment, left on site during the contract works, in a secure state.
4.2 The Customer acknowledges that the Company will prepare the Report on the basis of observations of existing physical conditions at the Site and the Company’s interpretation of information obtained from third parties including, without limitation, the information provided by the Customer pursuant to clause 4.1(c).
4.3 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer 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 Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
4.4 The Customer warrants that he will not make any approach, with regard to direct employment, to any Consultant employed by the company at all while they are so employed, or any Sub-Consultant engaged by the company in pursuance of the Services for a period of 12 months after completion of the Services, and any Associate Consultant engaged by the Company for the period of the Services for a period of 12 months after the Services are finalised.
5. VARIATION
5.1 If the Customer wishes to vary the scope of the Services, the Customer will notify the Company in writing of the variation. On receipt of such notice the Company shall provide the Customer with a written estimate of
(i) the likely time to complete the variation,
(ii) any change to the price arising from the variation, and
(iii) any other impact of the variation on the terms of the Contract.
5.2 If the Customer wishes to proceed with the variation the Company has no obligation to do so unless the Company first agrees in writing to proceed with the variation.
6. PAYMENTS
6.1 The charges payable by the Customer for the supply of the Services shall be as specified in the Acceptance Letter.
6.2 Subject to any special terms agreed in writing between the Customer and the Company, the Company shall be entitled to invoice the Customer in respect of the Services on or at any time after commencement of the Services.
6.3 The Company shall be entitled to make reasonable variations to the prices specified in the Acceptance Letter at any time prior to the issue of an invoice to reflect any increase in cost to the Company (such as, without limitation, the price of labour, goods, materials, taxes and duties).
6.4 The Customer shall pay, in pounds sterling, each invoice submitted by the Company:
(a) within 30 days of the date of the invoice; and
(b) to a bank account nominated in writing by the Company, by personal cheque, or such other method of payment as agreed between the Customer and Company, and time for payment shall be of the essence of the Contract.
6.5 No payment will be deemed to have been received until the Company has received cleared funds lodge in the Companies Bank Acount.
6.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”) unless otherwise indicated, and the Customer shall pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. Where the 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 Customer’s VAT registration number.
6.7 Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“Due Date”), the Company shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Bank of England's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7. CONFIDENTIALITY
A party shall keep in strict confidence all information which is of a confidential nature and has been disclosed to them (“Receiving Party”) by the other party, its employees, agents or subcontractors (“Disclosing Party”), and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain in connection with the provision of the Services. The Company may disclose such confidential information to any of its employees, agents or subcontractors as may be required for the purpose of discharging the Company’s obligations under the Contract. This clause (Confidentiality) shall survive termination of the Contract.
8. LIMITATION OF LIABILITY
8.1 The Company shall not be liable to any third party who seeks to use the Services, and/or rely on the Report without the Company’s express written permission.
8.2 Nothing in these Conditions shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
8.3 Subject to clause 8.2:
(a) Whilst the Company will exercise reasonable care and skill in performance of the Services, the Company will accept no liability for any damage to the Site caused in connection with the performance of the Services;
(b) the Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(c) the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Company’s fees in respect of the Services.
8.4 The Customer is under a duty to mitigate any losses howsoever caused.
8.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.6 This clause (Limitation of Liability) shall survive termination of the Contract.
9. TERMINATION
9.1 Without limiting its other rights or remedies, each party may terminate the Contract if a party (being an individual) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors, or enters into liquidation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the party or for the granting
of an administration order in respect of the party, or any proceedings are commenced relating to the insolvency or possible insolvency of the party, or the party ceases or threatens to cease to carry on its business.
9.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Company shall have the right to terminate the Contract in any event by giving the other party one month’s written notice.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
10.1 the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
10.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. GENERAL
Force majeure:
11.1 For the purposes of these Conditions, “Force Majeure Event” means an event beyond the reasonable control of the Company including but not limited to 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 Company or subcontractors.
11.2 The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Company from providing any of the Services for more than 6 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
Assignment and subcontracting:
11.4 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
11.5 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Intellectual Property Rights
11.6 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company and the Customer shall acquire no rights in such respect. The Company hereby grants the Customer a non-exclusive licence to use the Report strictly for its own purposes and to the extent as is necessary to enable the Customer to make reasonable use of the Report.
Insurance
11.7 For the duration of the Contract and for a period of at least six months thereafter, the Company shall maintain in force professional indemnity insurance of £2,000,000 and public liability insurance of £5,000,000.
Notices
11.8 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
11.9 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
11.10 This clause (Notices) shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by email.
Waiver
11.11 A delay in exercising, or failure to exercise, any right or remedy under the Contract does not constitute a waiver of such or other rights or remedies nor will operate so as to bar the exercise or enforcement thereof nor will be treated as an affirmation of the Contract.
Cumulative Rights and Remedies
11.12 The rights, powers and remedies provided in the Contract are cumulative and not exclusive of any rights and remedies provided by law and no single or partial exercise of any right or remedy under the Contract or provided by law will hinder or prevent further exercise of such or other rights or remedies.
Severance
11.13 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.14 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
No Partnership
11.15 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Entire Agreement
11.16 The Contract constitutes the entire agreement and understanding between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
Third Parties
11.17 A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation
11.18 Any variation of the Contract (including those made pursuant to clause 5) must be in writing and signed by each party or, in the case of a body corporate, a duly authorised officer or representative of such party.
Governing Law and Jurisdiction
11.19 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Scottish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.