1 INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
1.2 “Commencement Date” has the meaning given in clause 2.2.
1.3 “Conditions” these terms and conditions as amended from time to time in accordance with clause 11.5.
1.4 “Contract” the contract between the Supplier and the Client for the supply of Services in accordance with the Fee Proposal and these Conditions.
1.5 “Client” the person or firm who purchases Services from the Supplier.
1.6 “Client Default” has the meaning set out in clause 4.2.
1.7 “Deliverables” the deliverables set out in the Fee Proposal produced by the Supplier for the Client including but not limited to, plans, drawings, digital data, photographs, listings and reports.
1.8 “Fees” the Fees payable by the Client for the supply of the Services in accordance with clause 5.
1.9 “Fee Proposal Acceptance Form” the form contained within the Fee Proposal to be completed and signed by the Client if it wishes to purchase the Services from the Supplier.
1.10 “Fee Proposal” the document prepared by the Supplier for the Client entitled Fee Proposal containing key details regarding the proposed Services including but not limited to, the scope of Services, Survey Specification, Fees and payment terms (as applicable).
1.11 “Order” the Client\\’s order for Services as set out in the Fee Proposal Acceptance Form and any associated Client purchase order.
1.12 “Services” the services, including the Deliverables, supplied by the Supplier to the Client, the scope of which shall be set out in the Fee Proposal.
1.13 “Survey Specification” the survey specification as set out in the Fee Proposal or any other applicable specification for the Services.
1.14 “Supplier” Encompass Surveys Limited registered in England and Wales with company number 06863215 whose registered office is at Yarmouth House, 1300 Parkway, Solent Business Park, Whiteley, Fareham, Hampshire. PO15 7AE.
1.15 Interpretation:
1.15.1 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.15.2 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.
1.15.3 A reference to writing or written includes fax and email.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with the Fee Proposal and these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order and confirmation of a project start date, at which point and on which date the Contract shall come into existence (“Commencement Date”)
2.3 If the Client is a business, the Contract cannot be cancelled after the Commencement Date without the written agreement of the Supplier and subject to payment by the Client of 20% of the Fees due to the Supplier in order to compensate for time and resources already incurred and loss of revenue in respect of the time booked for the project. If the Client is a consumer, the provisions of clause 8 shall apply regarding cancellation.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier\\’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 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.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.7 In the event of any conflict or inconsistency between these Conditions and the Fee Proposal, the terms of the Fee Proposal shall prevail.
3 SUPPLY OF SERVICES
3.1 The Supplier warrants that it shall supply the Services to the Client:
3.1.1 in accordance with the Contract in all material respects;
3.1.2 using reasonable care and skill; and
3.1.3 subject to clause 3.1.1, in accordance with good industry practice.
3.2 The Supplier shall use all reasonable endeavours to meet any specified performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Survey Specification and Fee Proposal 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 Supplier shall notify the Client in any such event.
3.4 Delivery of the Services shall be completed by the Supplier upon sending the Deliverables to the Client’s provided email address.
3.5 If the Client reasonably considers that the warranties given in clauses 3.1 have been breached, it shall request within 5 working days of receipt of the Deliverables, that the defective Services be re-performed and this shall be the Client’s sole remedy for a breach of clause 3.1.
4 CLIENT\\’S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Survey Specification or any other applicable specification are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the survey site and any other facilities as reasonably required by the Supplier;
4.1.4 provide such relevant information as reasonably required by the Supplier, regarding the nature and scope of the Services and any unusual conditions which may apply (including but not limited to, in respect of the survey site any work phases or time schedule in respect of the Services which would mean that they cannot be undertaken in the most efficient and logical manner possible, topography, climate, any need to construct markers or provide referencing or protection, any requirement for weekend or night working and any requirement for the format of any of the Deliverables) and ensure that such information is complete and accurate in all material respects;
4.1.5 prepare the Client\\’s survey site for the supply of the Services as set out in the Fee Proposal or as otherwise notified to the Client by the Supplier;
4.1.6 ensure the survey site for the supply of the Services is safe and suitable for the Supplier and its employees, agents, consultants and subcontractors to carry out the Services, shall comply with all statutory requirements regarding health and safety at work and any other applicable rules, laws and regulations and shall inform the Supplier of all health and safety rules, laws and regulations and any other reasonable security requirements which apply at the survey site; and
4.1.7 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, including but not limited to supplying the Supplier with a list of occupiers and any letters of identification which may be required in respect of private property.
4.2 If the Supplier\\’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”):
4.2.1 without limiting or affecting any other right or remedy available to it, the Supplier 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 Supplier\\’s performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier\\’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
5 FEES AND PAYMENT
5.1 The Fees for the Services shall be as set out in the Fee Proposal.
5.2 Unless otherwise specified in the Fee Proposal:
5.2.1 the Supplier shall invoice the Client on completion of the Services and shall be entitled to invoice each Service separately if desired;
5.2.2 the Client shall pay each invoice submitted by the Supplier:
5.2.2.1 immediately upon receipt if the Client is a consumer (see definition with clause 8.1) and within 30 days of the date of the invoice if the Client is a business; and
5.2.2.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.3 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
5.4 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier\\’s remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 4% a year above the Bank of England\\’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.6 For the avoidance of doubt, each invoice raised and submitted by the Supplier in respect of any Service or Order, or part of a Service or Order, is separate and shall be deemed separate from any other invoice. Each invoice is separate and is payable separately. The Client’s obligations under this clause 5 apply to each invoice separately and shall apply regardless of any outstanding or potential disputes, claims, concerns, dialogues or otherwise in respect of any former invoices or payments thereof.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 All copyright and any other intellectual property rights in or arising out of or in connection with the Services and the Deliverables (other than intellectual property rights in any materials provided by the Client) shall be owned by the Supplier.
6.2 Subject to payment of the Fees, the Supplier grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables (excluding materials provided by the Client) for the purpose of receiving and using the Services and the Deliverables.
6.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2 nor remove any markings identifying the Supplier as the owner of the copyright in the Deliverables.
6.4 The Supplier may at its sole discretion provide the Deliverables to the Client prior to receipt of payment of the Fees, under a temporary licence arrangement, which the Supplier may revoke at anytime until payment of the Fees is made in full. Upon receipt of payment of the Fees, clause 6.2 shall apply.
6.5 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Services to the Client.
7 LIMITATION OF LIABILITY: THE CLIENT\\’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
7.1 The Supplier holds the following insurances:
7.1.1 £5million – professional indemnity cover;
7.1.2 £5million – public liability cover; and
7.1.3 £10million – employer’s liability cover.
7.2 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
7.4 Nothing in this clause 7 shall limit the Client\\’s payment obligations under the Contract.
7.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
7.5.1 death or personal injury caused by negligence;
7.5.2 fraud or fraudulent misrepresentation; and
7.5.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.6 Subject to clause 7.3 (No limitation in respect of deliberate default), and clause 7.5 (Liabilities which cannot legally be limited), the Supplier\\’s total liability to the Client for all loss or damage shall not exceed £500,000.
7.7 Subject clause 7.3 (No limitation in respect of deliberate default), clause 7.4 (No limitation of Client\\’s payment obligations) and clause 7.5 (Liabilities which cannot legally be limited), this clause 7.7 sets out the types of loss that are wholly excluded:
7.7.1 loss of profits.
7.7.2 loss of sales or business.
7.7.3 loss of agreements or contracts.
7.7.4 loss of anticipated savings.
7.7.5 loss of use or corruption of software, data or information.
7.7.6 loss of or damage to goodwill; and
7.7.7 indirect or consequential loss.
7.8 The Supplier shall not be liable for any inaccuracy of the Deliverables beyond the specified scale, tolerance or accuracy as set out in the Contract, or for any maters resulting from their use for purposes other than those stated in the Contract or otherwise advised to the Supplier by the Client.
7.9 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.10 This clause 7 shall survive termination of the Contract.
8 RIGHT OF CANCELLATION FOR CONSUMERS ONLY
8.1 If the Client is a consumer (an individual acting for purposes which are wholly or mainly outside their trade, business, craft or profession) and the Contract with the Supplier is made over the phone, by email, or by other distance means, or away from the Supplier’s offices, such as at the Client’s home, then the Client may be entitled, under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (“Regulations”), to cancel the Contract within 14 days without giving any reason. The cancellation period will expire at the end of 14 days after the Commencement Date (“Cancellation Period”).
8.2 If the Client cancels within the Cancellation Period, they will not be liable to pay any charges or expenses to the Supplier, unless they have expressly asked that the Supplier starts to undertake the Services within the Cancellation Period.
8.3 If the Client does ask the Supplier to start to undertake the Services within the Cancellation Period, the Supplier shall be entitled to charge for its work undertaken up to the point the Client cancels in accordance with these Conditions and if the Services are fully performed by the time the Client asks the Supplier to cancel, the Client will lose their right to cancel under the Regulations (but this doesn\\’t affect any other termination rights the Client has under these Conditions).
8.4 If the Contract is made away from the Supplier’s offices (such as at the Client’s home) and the Client asks the Supplier to proceed with the Services before the Cancellation Period has expired, the Supplier will ask the Client to confirm this in writing or another durable medium. In such circumstances, the Supplier shall treat the Client’s signature on the Fee Proposal Acceptance Form as written confirmation of the Client’s instructions to proceed with the Services before the expiry of the Cancellation Period.
8.5 If this cancellation right applies to the Client and they wish to cancel within the Cancellation Period, they can notify the Supplier in writing that they wish to cancel the Contract by letter or email to the Supplier, or by completing and sending the Supplier, the model cancellation form set out below.
9 TERMINATION
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months\\’ written notice.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
9.2.3 the other party (being an individual) the subject of a bankruptcy petition or order;
9.2.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.2.5 the other party\\’s financial position deteriorates to such an extent that in the terminating party\\’s opinion the other party\\’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract or any other contract between the Supplier and the Client, with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract or any other contract between the Client and the Supplier, on the due date for payment.
9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if:
9.4.1 the Client fails to pay any amount due under the Contract or any other contract between the Client and the Supplier on the due date for payment; or
9.4.2 the Client becomes subject to any of the events listed in clause 9.2.2 – clause 9.2.5, or the Supplier reasonably believes that the Client is about to become subject to any of them.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
10.1.1 the Client shall immediately pay to the Supplier all of the Supplier\\’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
10.1.2 the Client shall return any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client\\’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11 GENERAL
11.1 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.
11.2 Assignment and other dealings.
11.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. If the Supplier subcontracts all or any part of the Services, it shall remain fully liable pursuant to the Contract and for the acts and/or omissions of its subcontractor as though they were its own acts and/or omissions.
11.2.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.3 Confidentiality.
11.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.2.
11.3.2 Each party may disclose the other party\\’s confidential information:
11.3.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party\\’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party\\’s confidential information comply with this clause 11.3; and
11.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3 Neither party shall use the other party\\’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
11.4.1 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.
11.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 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.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8 Notices.
11.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business or main address (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Fee Proposal.
11.8.2 Any notice or communication shall be deemed to have been received:
11.8.2.1 if delivered by hand, at the time the notice is left at the proper address;
11.8.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
11.8.2.3 if sent by fax or email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.8.3 This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.10 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.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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MODEL CANCELLATION FORM
(Complete and return this form only if you wish to withdraw from the contract)
To: Encompass Surveys Limited, Unit 2 Talisman Business Centre, Duncan Road, Park Gate, Southampton SO31 7GA [TELEPHONE NUMBER AND, WHERE AVAILABLE, FAX NUMBER AND E-MAIL ADDRESS TO BE INSERTED]:
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale for the supply of the following service [*],
Ordered on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date
[*] Delete as appropriate
