Interpretation
1 In these Conditions:-
“Authorised Person” means an employee of DSC holding the office of project manager in relation to the Services, an employee holding the office of director or a legally appointed director of DSC
“Client” means the party named in the Quotation for whom DSC has agreed to provide the Services;
“DSC” means DSC Environmental Services Limited, a company incorporated under the Companies Acts (Company Registration Number 10933866), having its registered office at Suite 2, 70 Queens Way, Hemel Hempstead, Hertfordshire, HP2 5HD;
“Quotation” means DSC’s quotation for the Services provided to and accepted by the Client; and
“Services” means the services to be provided by DSC to the Client as set out in the Quotation and, where applicable, as varied under these Conditions.
The Services
2.1 DSC will carry out the Services with all the reasonable skill, care and diligence to be expected from a professional person or firm in the performance of similar services under these Conditions and in accordance with relevant industry standards current at the time. DSC may provide the Services using members of staff from various geographic locations across the United Kingdom.
2.2 DSC will promptly notify the Client if any aspect of the Services is found to be, or expected to be, significantly different from that addressed in the Quotation as a result of (a) site conditions; (b) new information; and/or (c) safety and/or environmental factors if this is likely to have an effect on the fees and expenses payable by the Client or schedule of the Services. In such circumstances, DSC reserves the right to vary the Services on the basis that the Client agrees to bear the costs of additional work in accordance with the terms of clause 3.4
2.3 Unless otherwise agreed between the Client and DSC, all reports produced in the performance of the Services will be addressed to the Client only. Reports shall only be used by the Client for the purpose set out in the Quotation and shall not be relied upon or used for any other purposes or by any other party without the prior written permission of an Authorised Person.
Charges and Payment
3.1 In consideration for the provision of the Services, the Client shall pay to DSC the fees (including the fees of sub-contractors where appropriate), inclusive of VAT, and expenses specified in the Quotation.
3.2 The estimate of fees and expenses for the Services are as set out in the Quotation. Both the estimate and the charge out rates and expenses quoted in the Quotation will remain valid for a period of 30 days from the date of the Quotation. DSC reserves the right to apply an increased level of fees (such increase to be notified to the Client) in the event that the period during which the Services are provided extends beyond a period of 6 months.
3.3 Unless otherwise stated in the Quotation:-
3.3.1 the charge out rates quoted shall be charged for all consultant time spent on the provision of the Services, including travelling time; and
3.3.2 all expenses will be charged at cost plus a reasonable handling charge.
3.4 Any increase in the scope or extent of the Services from that specified in the Quotation will be subject to additional charges, such charges being calculated at the charge out rates agreed in respect of the Services, or, if no specific rates were agreed for that specific type of work, at the charge out rates charged by DSC for that type of work.
3.5 DSC reserves the right to charge a cancellation fee for any work cancelled at short notice. The cancellation fee will apply as follows:
- 100% fee Same day cancellation
- 75% fee Cancellation on the working day prior to the scheduled works
- 50% fee Cancellation 3 working days prior to the scheduled works
3.6 Fees and expenses in respect of the Services provided will be invoiced to the Client upon completion of the Services. Notwithstanding this, DSC may issue interim fees to the Client if DSC, in its sole discretion, considers it reasonable and appropriate to do so in the circumstances. Payment of each invoice shall be due by the Client within 14 days of the date of the invoice.
3.7 In the event that the Client fails to pay any invoice in full within 14 days of the due date, DSC reserves the right (without prejudice to the terms of clause 10.2 below) to:-
3.7.1 charge interest on the amount outstanding at the rate of 5% per annum over the base rate from time to time of the Bank of England. Notwithstanding this, DSC may in the alternative claim interest at its discretion under the Late Payment of Commercial Debts (Interest) Act 1998; and
3.7.2 suspend the provision of the Services until the amount outstanding has been paid, it being expressly agreed that DSC shall have no liability for any loss, injury or damage suffered by the Client or any other person as a result of the suspension of provision of the Services pursuant to this clause.
Confidentiality
4.1 Neither party will, at any time, disclose any information of a confidential nature relating to the other party acquired during the performance of the Services to any third party (other than to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under the Quotation) without the prior written consent of the other unless (a) such information is already in the possession of the third party prior to its disclosure (other than as a result of the breach of any obligation of confidence owed to the party in question); (b) such information is already common knowledge or becomes so through no fault of that party; or (c) either party is compelled to disclose such information under a duty or obligation owed to or imposed by any court of competent jurisdiction, regulatory or government authority or body.
4.2 For the avoidance of doubt, the duty of confidentiality set out in clause 4.1 shall continue to apply without limit of time after the completion or termination of the provision of the Services subject to the exclusions detailed in that clause.
Intellectual Property
5.1 All copyright, trademark, patent and other intellectual property rights in all original drawings, designs, proposals, reports, recordings and other original works, discoveries or inventions made by DSC in the course of the provision of the Services or otherwise as a result of the provision of the Services shall belong to and remain vested in DSC and shall be treated as confidential by the Client in accordance with clauses 4.1 and 4.2.
5.2 DSC will grant a personal, non-exclusive, non-transferable royalty free perpetual licence in favour of the Client to use the same for the purposes specified in the Quotation subject always to the right of DSC to terminate the licence in the event that the Client fails to make payment of DSC’s fees and expenses on the due date.
DSC Personnel
6.1 During the provision of the Services, and for a period of 12 months after termination of the provision of the Services, neither the Client nor any company associated with the Client, shall offer employment to any member of staff of DSC involved in the provision of the Services nor solicit or attempt to entice away any such employee without the prior written agreement of a director of DSC.
Liability and Insurance
7.1 Other than in respect of death or personal injury caused by DSC’s negligence, DSC shall not be responsible for any loss, damage, delay, loss of market, costs or expenses of whatsoever nature or kind and howsoever sustained or occasioned, except as provided for in these Conditions.
7.2 Subject to clause 7.1, DSC shall under no circumstances whatever be liable to the Client, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss howsoever arising.
7.3 DSC’s liability shall be limited to the extent of any damage, injury or loss that is directly attributable to the failure of DSC, its employees, subcontractors and/or agents to comply with the obligations on the part of DSC as provided in these Conditions. For the avoidance of doubt, DSC shall have no liability to indemnify the Client in respect of any indirect or consequential losses or damages whatsoever and howsoever arising.
7.4 The Client acknowledges and accepts that the fees and expenses do not contain a premium sufficient to cover DSC’s risk of unlimited liability in respect of the Services and that a limitation of liability is reasonable bearing in mind the relevant circumstances, including the cost and availability or otherwise of insurance cover. Without prejudice to the remainder of this clause, DSC shall be liable to the Client for such direct losses of the Client as are attributable directly to DSC’s work limited to an aggregate amount equivalent to ten times the fees charged subject always to a maximum of £5,000,000.
7.5 DSC will maintain cover in respect of public liability and professional indemnity insurance during the course of provision of the Services and for a period of one year thereafter, provided always that such insurance is available at commercially reasonable rates. Details of the policies are available on reasonable request. In the event that DSC ceases to carry such cover as a result of it ceasing to be available at commercially reasonable rates, DSC will promptly notify the Client of that fact.
7.6 Where in the provision of the Services any employee of DSC is required to act in a representative capacity by carrying out instructions or acting on behalf of the Client, DSC shall be deemed to be acting as the Client’s agent. The Client hereby agrees to indemnify both DSC and DSC’s employee(s) against any claim for which DSC and DSC’s employee(s) may be liable for as a result of acting as the agent of the Client by reason of the acts or omissions of the Client.
Force Majeure
8.1 If DSC is delayed in the provision of the Services by any act or default of the Client or any other party or by any cause beyond the reasonable control of DSC, the period of completion of the Services shall be extended by a reasonable period and DSC will be entitled for payment of any additional costs reasonably incurred which are attributable to the delay.
8.2 Neither party shall be liable or deemed liable to the other party for failure or delay in meeting any obligation hereunder due to acts of God, warfare, industrial dispute (whether of its own employees or those of others), acts of terrorism, flood, fire, environmental incident, any other natural disaster, acts of Government or regulatory authority or any other cause beyond the reasonable control of the party which has a duty to perform provided that the affected party has given the non-affected party prompt written notice, with full details, following the occurrence of the cause relied upon. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations provided that if the period of delay or non- performance continues for 90 days, the non-affected party may terminate the provision of the Services by giving not less than 14 days’ written notice to the other party.
Communication
9.1 DSC frequently makes use of e-mail when communicating with clients and any other advisers or parties involved in providing the Services. The Client authorises DSC to use e-mail communication as DSC see fit in the course of providing the Services. The Client understands and acknowledges that the electronic transmission of information by e-mail on the Internet or otherwise has inherent risks and that such communications may become lost, delayed, intercepted, corrupted or be otherwise altered, rendered incomplete or fail to be delivered. DSC shall use reasonable endeavours to ensure that electronic communications that are sent are free from viruses and any other material which may cause inconvenience or harm to any other computer system and the Client undertakes to do likewise with any electronic communications they may send to DSC. However, because the electronic transmission of information cannot be guaranteed to be secure or error-free and its confidentiality may be vulnerable to access by unauthorised third parties, DSC shall have no responsibility or liability to the Client on any basis other than our bad faith or wilful default in respect of any error, omission, claim or loss arising from or in connection with the electronic communication or information to the Client (or the Client’s reliance on such information). Without prejudice to the foregoing, DSC may advise the Client from time to time of methods of authentication and validation of electronic communications which DSC may wish to use and which DSC may also require the Client to use.
9.2 All correspondence shall normally be by first class mail, facsimile or electronic mail other than correspondence dealing with termination, which shall be by recorded delivery.
Termination
10.1 Either party may terminate the provision of the Services by serving one month’s written notice on the other party.
10.2 DSC may terminate the provision of the Services, without liability, by serving written notice on the Client where:-
10.2.1 the Client fails to make any payment of an invoice on the due date; or
10.2.2 the Client is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or being an individual or partnership is declared bankrupt; or
10.2.3 a trustee, receiver, administrative receiver or similar officer is appointed in respect of the whole or any part of the business or assets of the Client.
10.3 In the event of termination under this clause 10, the Client will pay DSC for the Services performed up to and including the date of termination.
Status of These Conditions
11.1 These Conditions constitute the entire agreement and understanding between DSC and the Client and supersedes any previous arrangement, understanding or agreement between the parties relating to the provision of the Services.
11.2 No variation to these Conditions shall be binding unless agreed in writing and signed on behalf of DSC by an Authorised Person.
11.3 No rights or obligations may be assigned or delegated by either party without the prior written agreement of the other party.
11.4 No waiver by DSC of any breach of these Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.5 The provisions of these Conditions are severable and if any provision is held to be invalid or unenforceable by any court of competent jurisdiction, then such invalidity or unenforceability shall not affect the remaining provisions of these Conditions.
11.6 These Conditions shall be governed by and construed in accordance with English Law. The Client agrees that the English Courts shall have exclusive jurisdiction over any dispute that arises between the parties.