Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) are made between Sherpa Environmental Limited, a company registered in England and Wales with Company Number and registered company address Fountain Court, 2 Victoria Square, St Albans, Hertfordshire, AL1 3TF (“We”, “Us”, “Our”) and You (as defined below) (hereinafter jointly referred to as “the Parties”).
1 Definitions.
The following terms have the meanings set forth below whenever they are used in these Terms and Conditions:
“Order” means a purchase order for the Services.
“Premises” means the premises, including specific buildings at a Site, for which You require Us to perform the Services, as set out in the applicable Quotation.
“Quotation” means Our written quotation for the provision of Services that specifies:
a that it is subject to these Terms and Conditions;
b a description of any services to be supplied, including the Report to be provided if applicable, together with the applicable Services Fee;
c details of the Site and the premises; and
d any Special Provisions, assumptions, and specific obligations for You that will apply to the quotation.
“Regulations” means all laws and regulations applicable to the Services and any subsequent amendments and additions thereto.
“Report” means the report generated by the provision of the Services, if included and stated in the applicable Quotation.
“Sample” means a sample of a gas, liquid or solid, taken by Us from the Premises for testing as part of the Services, if included and stated in the applicable Quotation.
“Sample Fee” means the fee payable by You to Us in respect of each Sample, if included and stated in the applicable Quotation.
“Services” means those services provided by Us as further set out in the applicable Quotation.
“Services Fee” means the fee payable by You to Us in respect of the Services as set out in the applicable Quotation.
“Site” means a site or location at which You require Us to perform the Services, as set out in the applicable Quotation.
“Site Works” means the part of the Services provided at the Site which may include but shall not be limited to inspection, surveying and/or sampling and as set out in the applicable Quotation.
“Special Provisions” means the additional provisions detailed in each Quotation that are applicable to such individual Quotation and the resulting Services.
“Survey Date” means the date on which We require access to the Premises to perform any surveys required by the Services, as specified in the applicable Quotation or as mutually agreed by the Parties.
“You” means the party identified as the client in the Quotation, and “Your” shall be construed accordingly.
2 Contract Formation
2.1 Upon Our receipt of Your valid Order referencing Our Quotation, such Quotation together with these Terms and Conditions shall create a binding contract (“Contract”) for the purchase by You and the supply by Us of the Services in accordance with these Terms and Conditions and the Quotation.
2.2 While time shall not be of the essence of the Contract We shall use Our reasonable endeavours to meet the timescales set out in these Terms and Conditions and any Quotation. In the event that We encounter delays, We shall notify You of these at the earliest opportunity and agree an appropriate amendment to the timescales with You.
2.3 You may request additions or amendments to the Services. We may also give notice to You that a change in circumstances prompted by You, or new information coming to light during the Services, constitutes a request for modification to the Services even though no formal request for modification has been issued by You. In response to such requests You and We shall agree any changes to the Services specified in the Quotation, including the specification for the additional or changed Services, price and approximate timescales for delivery. Such changes may be agreed by email, fax or letter and shall be binding upon both You and Us from the date of such agreement.
3 Services
3.1 We shall supply the Services in accordance with the applicable Quotation either Ourselves or by Our authorised agents or subcontractors provided that We shall remain fully liable for the acts or omissions of such agents or subcontractors as though We had made such acts or omissions Ourselves.
3.2 You agree that You are solely responsible for obtaining access to the Premises and that You will give Us written notice at the earliest opportunity to advise Us of any change by You of the Survey Date. In this event, We may arrange a new Survey Date in accordance with Clause 2.3, except as provided by Clause 3.3.
3.3 In the event that You provide Us with written notice of a change by You of the Survey Date in accordance with Clause 3.2 above and such notice is less than forty-eight (48) hours prior to such Survey Date, We reserve the right to: Page 1 of 5
a invoice the Services Fee as detailed in the applicable Quotation by way of liquidated damages and You hereby agree this is a genuine pre-estimate of loss that Your failure to provide Us with more than forty-eight (48) hours notice would cause Us, and/or
b terminate the Contract with immediate effect.
3.4 You agree that in the event that We arrive at the Site on the Survey Date and We are unable to perform or complete the Services for any reason, including but not limited to the following:
a You omitted to notify Us that the Survey Date was no longer acceptable to You in accordance with Clause 3.2; or
b You are unable to provide Us with access to the Site or Premises or the areas within such Site or Premises as required in order to perform the Services; or
c if conditions at the Site are not in our reasonable opinion suitable for us to proceed with the work due to Your failure to comply with the requirements of these Terms and Conditions and/or the Quotation; or d You are unable to provide Us with access to the relevant personnel at the agreed date and time then We shall arrange a new Survey Date in accordance with Clause 2.3 and We reserve the right to invoice You for the Services Fee as detailed in the applicable Quotation by way of liquidated damages and You hereby agree this is a genuine pre-estimate of loss that Your failure to comply with the terms of these Terms and Conditions and/or the Quotation would cause Us.
3.5 Where appropriate, We shall carry out a risk assessment prior to commencing work and We reserve the right to refuse to perform the Services if We believe, acting reasonably, that performance would result in injury to Our staff or other persons. In this event You shall make arrangements at Your expense to minimise such risk and We shall arrange a new Survey Date in accordance with Clause 2.3. We reserve the right to invoice You for additional Site visits at Our then current daily rate.
3.6 You acknowledge that the extent of any survey provided as part of the Services will be bound by the limits of reasonable access and may therefore be limited to those areas to which safe access is available.
3.7 Where stated in the applicable Quotation, We shall produce the Report for You in accordance with the terms of such applicable Quotation.
4 Your Co-operation
4.1 You shall provide co-operation and support to Us in Our efforts to deliver the Services. Such co-operation and support shall include, but not be limited to:
a reasonable level of responsiveness to Our requirements and communications;
b the timely transmittal and release to Us of any documentation reasonably requested by us;
c granting to Us access to the Site during hours agreed in the Quotation on the Survey Date to enable Us to perform the Services in accordance with the Quotation;
d the making available of facilities including but not limited to safe, high-level access to roofs and ceiling spaces when and to the extent as is reasonably requested by Us;
e the making available of competent personnel to assist Us when and to the extent as is reasonably requested by Us;
f the removal of people and property from the Premises if applicable as stated in Quotation; and
g the performance of Your specific obligations as set out in any applicable Quotation.
4.2 You agree that if You do not perform Your obligations under the Contact, including but not limited to the obligations set out in the Special Provisions, and such non-performance affects Our ability to perform, We shall not be considered in default under the Contact to the extent so affected.
4.3 If You are unable to provide access as set out in Clause 4.2(d) we may, at Our discretion, provide such equipment as is required to allow such access for the purpose of performing the Services and invoice You Our reasonable expenses in doing so, which will be calculated at the costprice to Us, plus ten percent (10%).
5 SPECIAL PROVISIONS
5.1 Each Quotation shall contain Special Provisions. Your attention is specifically drawn to such Special Provisions as they are critical for the effective performance of the Services.
5.2 You agree that We shall have no liability in respect of damage to property and/or equipment incurred as a result of the proper performance of the Services, and You hereby agree to indemnify Us in full against any third party claims in respect thereof.
5.3 You agree that We shall have no liability in respect of delay, costs or damages incurred by You as a result of Your failure to comply with the Special Provisions and You hereby agree to indemnify Us in full against any third party claims in respect thereof.
6 Personnel
6.1 You shall advise Our staff, agents and subcontractors of all rules, regulations and practices with which they should comply while on Your Premises. Our staff, agents and subcontractors shall comply with such rules and regulations whenever they are on Your Premises. You shall take reasonable precautions to ensure the health and safety of Our staff, agents and sub-contractors while they are on Your Premises.
7 Fees & Payment. Page 2 of 5
7.1 We may invoice the Services Fee, the Sample Fees (if applicable), and fees for any additional Site visits, on completion of Site Works or as otherwise set out in the Quotation.
7.2 Unless stated otherwise by Us in the Quotation, You hereby agree to pay Our invoices within thirty (30) days of the date thereon.
7.3 You shall be liable for any other agreed upon fees, any value added, sales, excise or other taxes or customs duties applicable. You shall pay an interest charge on any undisputed sum outstanding to Us at the rate of 8% above Barclays Bank Sterling base rate as at the date of invoice. You shall notify Us in writing within 10 days of receipt of an invoice that the invoice is in dispute.
7.4 If payment of the Services Fee or any part thereof is overdue then unless You have notified Us in writing that such payment is in dispute within 10 days of the receipt of the corresponding invoice We may at Our option: a suspend all work in progress in respect of provision of the Services and the Report (if applicable) until such payment is made in which case any expenses to Us occasioned by such suspension and subsequent resumption shall be added to the consideration and any project timescales shall be delayed accordingly; or b treat such as a material breach and terminate these Terms and Conditions or the applicable Contract in accordance with Clause 10.2(a).
8 Warranties
8.1 Subject to the provisions of Clause 3.6, We hereby warrant that the Services will be carried out by personnel who are suitably skilled and experienced for the tasks to which they are allocated and that the Services will be performed in accordance with the applicable Quotation and the Regulations.
8.2 You hereby agree that Your sole remedy in respect of any non-conformance with the warranty in Clause 8.1 shall be that We will re-perform the Services in question in order to remedy the non-conformance and if in Our reasonable opinion, We are unable to remedy such nonconformance then We will refund the corresponding Services Fee, if paid.
8.3 The warranty given in Clause 8.1 is provided subject to Our limit of liability as set out in Clause 9 and shall not apply to the extent that the warranty claim arises from any of the following:
a Inaccuracy, incompleteness or lack of timeliness in the documentation provided to Us by You for the preparation of the Report (if applicable); or
b Any breach by You of these Terms and Conditions or the Special Provisions.
8.4 Save as expressly provided in Clause 8.1, We specifically exclude but without limitation all other conditions, warranties, representations or other terms relating to the Contract and any Schedules hereto including any conditions, warranties, representations or other terms that might otherwise be implied or incorporated into the Contract, such as those of satisfactory quality, fitness for a particular or any purpose, or ability to achieve any particular result.
9 Limitation of Liability.
9.1 Nothing in these Terms and Conditions or any Contract shall exclude or limit Our liability for (i) fraud or other criminal act, (ii) personal injury or death caused by the negligence of Our employees or subcontractors in connection with the performance of their duties hereunder or by defects in any Services supplied pursuant to the Contract, or (iii) any other liability that cannot be excluded by law.
9.2 Subject to Clause 9.1, in no event will We be liable under these Terms and Conditions or any Contract for any damages resulting from: (i) loss of, damage to or corruption of data, (ii) loss of use, (iii) lost profits, (iv) loss of anticipated savings, (v) loss of or damage to property or buildings incurred during the provision of Services where such loss or damage occurs as part of the proper provision of the Services in accordance with the Special Provisions; and/or (vi) any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen.
9.3 In the event of loss of or damage to property or buildings incurred as a result of Our negligence in the provision of Services, We reserve the right to remedy such loss or damage Ourselves or via Our subcontractors. At Our sole discretion We may permit You to remedy such loss or damage Yourselves or via Your subcontractors at Our expense subject to Our prior written approval.
9.4 We hereby agree to indemnify You against any costs and damages awarded by a Court or agreed to be paid by Us to a third party in settlement of the claim of that third party in respect of damage or loss of that third party’s property resulting from Our negligence in the delivery of Services, provided that You promptly notify Us in writing of the claim, allow Us to control the defence or any related settlement negotiations and cooperate with Us in the defence of any claim, provided that We will not affect any settlement unless such settlement provides You with a full release.
9.5 Except as provided in Clause 9.1, Clause 9.2, Clause 9.3 and Clause 9.4 Our maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 125% of the Services Fee paid and payable by You in respect of the Contract that is the subject of Your claim.
9.6 We hereby exclude all liability that We have not expressly accepted in these Terms and Conditions.
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These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this Clause 9 “We” includes Our
employees, sub-contractors, licensors and suppliers who shall therefore have the benefit of the limits and exclusions of liability set out in this Clause in terms of the Contracts (Rights of Third Parties) Act 1999.
9.7 No action, regardless of form, arising out of transactions occurring under or contemplated under any Contract may be brought by either party more than two (2) years after the cause of action has accrued.
9.8 Save as provided in Clause 9.9 You shall have no remedy in respect of any representation (whether written or oral) made to You upon which You relied in entering into the Contract (“Misrepresentation”) and We shall have no liability to You other than pursuant to the express terms of these Terms and Conditions and the Quotation.
9.9 Nothing in these Terms and Conditions or the Quotation shall exclude or limit Our liability for any Misrepresentation made by Us fraudulently.
10 Duration & Termination.
10.1 Each Contract shall become effective on the date of signature of the corresponding Quotation or the date of Our receipt of Your applicable Order, whichever occurs first. Each Contract shall continue until it expires in accordance with Clause 10.3 or is terminated in accordance with the provisions of Clause 3.3(b), Clause 7.4(b) and/or Clause 10.2.
10.2 Either party (“the Initiating Party”) may forthwith terminate the Contract at any time:
a on giving written notice to the other party if the other party commits any material breach of any term of the Contract and in the case of a breach which is reasonably capable of remedy fails to remedy that breach to the reasonable satisfaction of the Initiating Party within thirty (30) days of a written request to remedy the same; or
b if the other party has had appointed an administrator, receiver and manager, or administrative receiver, or has itself appointed an administrator, in any such instance over its undertaking or part thereof, or has passed an extraordinary resolution for a creditors' voluntary winding up or has been put into compulsory liquidation by a court having an insolvency jurisdiction for the company in respect of which the winding up order has been made, or has entered into a corporate voluntary arrangement as defined by the Insolvency Act 1986, or has ceased or threatened to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction.
10.3 Each Contract shall expire without need for notice, when the obligations set out in that particular Contract have been completed and all sums due have been paid.
10.4 The expiry of any Contract or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of either of the parties accrued prior to such termination.
11 Confidentiality.
11.1 Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to Our or Your business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances, including but not limited to the Report and all results of testing of Samples,
11.2 Each party undertakes that for a period of five years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the Contract. Each party hereby agrees that it shall treat the other's Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this clause.
11.3 The provisions of Clause 11.2 shall not apply to:
(a) any information in the public domain otherwise than by breach of the Contract;
(b) information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party;
(c) information lawfully obtained without restriction from a third party; and
(d) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.
11.4 We may publicise Our involvement with You with Your prior written consent (to include by email) such consent not to be unreasonably withheld or delayed. Page 4 of 5
11.5 If the Contract is terminated, each party shall, at the other party’s option, return or destroy all Confidential Information of the other party.
12 Assignment.
You may not assign these Terms and Conditions or any Contract or otherwise transfer any rights or obligations under these Terms and Conditions or any Contract or except with Our prior written consent.
13 Force Majeure.
Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder. Dates or times by which each party is required to render performance under these Terms and Conditions or any Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.
14 Notices.
All notices made pursuant to these Terms and Conditions or any Contract must be made in writing. Any written notice to be given or made pursuant to the provisions of these Terms and Conditions or any Contract shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party's address stated above and shall be marked for the attention of the Company Secretary. Unless otherwise provided in these Terms and Conditions, all notices shall be deemed as given on the day of their receipt by the receiving party.
15 Entire Agreement.
These Terms and Conditions, the Quotation and the Order constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written. These Terms and Conditions and the Quotation shall prevail notwithstanding any variance with the terms and conditions of any Order submitted by You. In the event of any conflict between the terms and conditions set out in this document and any Quotation, this document shall take precedence unless the Quotation specifically excludes or amends any term or condition herein by reference to its clause number.
16 Dispute Resolution, Law & Jurisdiction.
16.1 In the event of any dispute arising under these Terms and Conditions or any Contract the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed by the parties, the mediator will be appointed by CEDR. Save in respect of late or non-payment of undisputed invoices, no party may commence court proceedings in respect of any dispute arising out of these Terms and Conditions or any Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
16.2 Subject to the provisions of Clause 16.1 each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any disputes of whatever nature arising out of or relating to these Terms and Conditions or any Contract.
16.3 Notwithstanding the provisions of Clause 16.1, nothing in these Terms and Conditions shall limit either party’s right to seek injunctive relief.
16.4 These Terms and Conditions and all Contracts shall be governed by English law.
17 Survival.
17.1 The following clauses shall continue to be in effect after the termination or expiration of these Terms and Conditions or any Contract: 1, 2.1, 4.2, 7, 8, 9, 10.4, 11, 14 - 18 inclusive.
18 General.
18.1 If any provision of these Terms and Conditions or any Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of these Terms and Conditions or any Contract shall not be affected thereby, and that the remainder of these Terms and Conditions or any Contract shall remain valid and enforceable. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof or the exercise of any such power or right under these Terms and Conditions or any Contract. These Terms and Conditions and each Contract may not be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of the Parties. A person who is not a party to these Terms and Conditions or any Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions or any Contract except as explicitly provided by Clause 9.6 herein but this does not affect any right or remedy of a third party that exists or is available apart from the Act.