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i. Additional Work – means any additional or varied services which are not already covered by the Services set out in the Proposal, and which are instructed by the Client and agreed by the Supplier.
ii. Business Day – a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
iii. Client – any company, firm or individual or agent thereof who purchases Services from the Supplier.
iv. Client Materials – any documents, data, text, building plans, sections, elevations, information, specifications, drawings and any other materials provided by the Client to the Supplier;
v. Commencement Date – has the meaning given in Clause 3.2.
vi. Conditions – these terms and conditions as amended from time to time in accordance with Clause 18.11.
vii. Contract – the contract between the Supplier and the Client for the supply of Services in accordance with these Conditions.
viii. Data Protection Legislation – the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
ix. Deliverables – the deliverables as set out in the Proposal produced by the Supplier for the Client.
x. Fee – the charges payable by the Client to the Supplier for the supply of the Services in accordance with
Clause 8.
xi. Force Majeure – any event, act, omission or accident beyond the reasonable control of the party claiming the force majeure event including acts of God, flood, earthquake, windstorm or other natural disasters; epidemic or pandemic; war, the threat of or preparation for war, riot, civil commotion, terrorist activities; fire, explosion, the collapse of the building structure; or any prohibition or restriction by any governments or other legal authority which materially affects a party’s ability to perform its obligations under this Contract and which is not in force at the date of this Contract;
xii. Intellectual Property Rights – any intellectual property right, including all patents, rights to interventions, copyright and related rights, trademarks, 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 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.
xiii. Order – the Client’s order for Services as set out in the Proposal or other instruction to proceed with the supply of services offered in the Proposal issued by the Supplier to the Client.
xiv. Personal Data – personal data shall have the meaning ascribed to it under the GDPR.
xv. Premises (or part thereof) – The address/s of the premises or proposed premises as defined in the Proposal and provided by the Client.
xvi. Proposal – any tender, fee proposal or quotation for works submitted by the Supplier to the Client.
xvii. Purpose – the purpose for which the Deliverables are produced or Services are prepared by the Supplier as set out in the Proposal.
xviii. Services – the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Proposal.
xix. Specialist – any third-party specialist engaged by the Supplier pursuant to Clause 5 (Engaging a Specialist).
xx. Specification – the description or specification of the Services provided in writing by the Supplier to the Client.
xxi. Supplier – Black Mountain Fire Ltd registered in England and Wales with company number 14098944.
xxii. Term – the time from the commencement date (as per Clause 3.2) to completion of the Order.
xxiii. UK Data Protection Laws – all applicable data protection and privacy legislation in force from time to time in the UK, including the General Data Protection Regulation (EU) 2016/679 as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and any other similar national privacy law in force from time to time, along with any codes of practice or guidance issued by the applicable data protection regulators from time to time within the UK.
2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision
2.2 The words include, includes, including and in particular shall be construed as if they were followed by the words “without limitation”. Words in the singular shall include the plural and vice versa and references to one gender include the other gender. Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.
2.3 A reference to writing or writing includes fax and email.
3.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
3.2 The Order shall only be deemed to be accepted when the Client confirms the Proposal in writing, at which point the Contract shall come into existence (Commencement Date).
3.3 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.
3.4 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.
3.5 Any proposal given by the Supplier shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue
4.1 The Supplier shall supply the Services to the Client in accordance with the Proposal in all material forms.
4.2 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
4.3 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
4.4 The Supplier’s report/advice is based on the information provided at the time the Services were performed and the Supplier shall not be responsible for any deficiencies due to a lack of relevant information or due to subsequent changes being made to the building or the management of the building.
4.5 The Supplier is deemed to have no knowledge or control over those areas of the premises to which the Supplier was not given access. If the Supplier is not given access to an area of the premises, the Supplier will detail within the Deliverable that access to an area was requested but was subsequently denied by the Client. The Client may request that the Supplier revisit the premises to assess the area where access was previously denied, however, the Supplier will be entitled to charge for the Additional Works in accordance with Clause 4.11.
4.6 The Supplier has no control over the following at any time and has knowledge of the following only at the time of the site visit so far as could be reasonably established or when the Client makes the Supplier aware:
i. any changes made to the premises;
ii. any faults in the equipment, including any equipment checked by the Supplier at the time of the site visit in undertaking the Service, but not subsequently;
iii. any deterioration in the premises or equipment;
iv. ongoing management of the premises or of persons within the premises;
v. moveable items brought into the premises;
vi. staffing levels and or training that the Client gives to their staff;
vii. implementation of any recommendations made by the Supplier.
4.7 The Supplier reserves the right to amend the 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.
4.8 If the Supplier identifies clear and obvious risks that pose a danger to relevant persons at a Premises and the nature of the risks falls unequivocally within the Scope of the Proposal, the Supplier will endeavour to highlight these to the Client in writing although it may not be an exhaustive list (e.g. where risks are mentioned in general (rather than specific) terms or where risks posed are hidden or comprised of factors the Supplier could not have known about at the time of the assessment). However, with regard to risks outside the Scope of the Proposal, the Supplier is under no contractual obligation whatsoever to identify the aforementioned risks, therefore, this does not represent an obligation under Article 5(3) of the Fire Safety Order 2005. Furthermore, the Supplier is in no way liable or responsible for rectifying/remedying such risks.
4.9 The Supplier’s Assessment does not include advice/information relating to The Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEAR).
4.10 The Supplier has a duty to inform the Local Authority Fire Service if at any material time during the delivery of the Services, conditions at the Premises are considered to be immediately dangerous to relevant persons and cannot be remedied or significantly improved to reduce the risk to a tolerable level at the material time.
4.11 The Supplier shall notify the Client in writing as soon as it becomes aware that any Additional Work will be required, because of:
i. Changes in the design, size, scope or complexity of the project;
ii. Changes in the timing or programming of the project;
iii. A failure by the Client to comply with its obligations under this contract;
iv. Additional meetings and/or visits and/or other work is required.
4.12 The Fee for Additional Work shall be calculated on the basis of the time properly and necessarily spent by the Supplier in performing the Services at the rates provided in the Proposal.
4.13 Services and Deliverables may only be relied upon by the Client.
5.1 If as part of the Service it is necessary for the Supplier to engage a third-party specialist, the Client authorises the Supplier to engage such Specialist on its behalf as its agent. The Client authorises the Supplier to agree to the terms of the Specialist’s engagement and to manage the Specialist input in respect of the Service on its behalf.
5.2 Unless the Supplier states that the Fees include the Specialist’s charges, the Specialist’s charges shall be payable by the Client in addition to the Fees. Where charges shall be payable by the Client in addition to the Fees, the prior approval of the Client will be obtained. The Supplier shall either request that the Specialist invoices the Client directly in respect of its charges or include the Specialist’s charges in its own invoice to the Client.
6.1 Black Mountain Fire Ltd may subcontract any part of the Services and any Additional Work, with the prior approval of the Client, not to be unreasonably withheld or delayed.
6.2 Except for a Specialist appointed (as per Clause 5) or a subcontractor contracted for the Services (as per Clause 6.1) by the Supplier, Black Mountain Fire Ltd shall not be responsible for the supervision of any contractor or subcontractor, nor shall Black Mountain Fire Ltd have any liability for ensuring the performance or adequate standard of workmanship of any contractor or subcontractor.
6.3 Black Mountain Fire Ltd is wholly independent and does not receive any referral fees from subcontractors and, where any are recommended to perform remedial services flowing from the Services, no responsibility or liability whatsoever, whether in contract or negligence, will be taken for these recommendations.
7.1 The Client shall:
i. Ensure that the terms of the Proposal and any information within it are complete and accurate.
ii. Ensure that the Premises (or part thereof) is clearly defined within the Proposal in order to highlight the extent of the area which falls under the Contract (e.g. ensure the accuracy of the name and address, floor numbers (if applicable) and provide a plan to assist where boundaries/areas of work relating to the Proposal are not immediately clear).
iii. Co-operate with the Supplier in all matters relating to the Services.
iv. Provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Supplier.
v. Provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
vi. For existing buildings, the Client will notify the Supplier of any fire safety details that the Client deems relevant to the conducting of the Service and/or that the Supplier has requested.
vii. 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.
viii. Unless otherwise specified in the Proposal the Client shall be responsible for obtaining any parking permits and making any local authority applications, arranging access and equipment or other arrangements as may be necessary in respect of the Service unless specifically covered in the Proposal.
ix. Be responsible for the on-going management of the premises. The decision to allow the premises to be used for its present purpose, remains (within an existing building) with the Responsible Person, not the Supplier unless the Proposal stipulates otherwise.
x. The Client shall give its decision (in writing, if so requested) on all sketches, drawings, reports, recommendations, tender documents and other matters properly referred to it for decision by the Supplier within such time as the Supplier may reasonably stipulate from time to time so as not to delay or disrupt the performance of the Services.
xi. Comply with all applicable laws, including health and safety laws.
7.2 If the Supplier’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Client, or the Client’s agents, subcontractors, Suppliers or employees this will be deemed Client Default. In the case of Client Default, without prejudice to any other right or remedy it may have, the Supplier shall:
i. without limiting or affecting any other right or remedy available to it, have the right to suspend the performance of the Services until the Client remedies the cause of 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;
ii. be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
iii. 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 7.2; and
7.3 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.
7.4 The Client acknowledges and agrees that the Services are provided solely for the Purpose.
7.5 Where you have explained to us the purpose for which you require our advice, we consent to its use solely for that purpose. If you rely on our advice for any other purpose, we shall not have any liability to you for any losses caused by you using our advice for that other purpose.
CHARGES AND PAYMENT
8.1 The Charges for the Services shall be calculated on a time and materials basis:
i. The Charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Proposal;
ii. The Supplier’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
iii. The Supplier shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in Clause 8.1ii; and
iv. The Supplier shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. These costs will be set out in the Proposal.
v. The Supplier shall be entitled to charge the Client the full cost of any additional professional indemnity insurance taken out specifically to accord with the Client’s requirements.
8.2 The Supplier shall invoice the Client on completion of the Services.
i. Once the Deliverable has been written the Supplier will raise their invoice with the Client. Once payment has been received by the Supplier, the Supplier will then release the Deliverable.
8.3 The Client shall pay each invoice submitted by the Supplier:
i. Within 30 days of the date of the invoice;
ii. 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; and
8.4 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.
8.5 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 15, 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 Clause 8.5 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%.
8.6 The Client must give a minimum of 48 hours’ notice to the Supplier in writing for postponement/cancellation of meetings or site visits. The Supplier reserves the right to charge the Client payment in full if the Client does not adhere to the stipulations of this Clause.
8.7 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).
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 9, Applicable Laws means the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Supplier is the processor.
9.3 Without prejudice to the generality of Clause 9.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of Clause 9.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
i. process that personal data only on the documented written instructions of the Client unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
ii. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
iii. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
iv. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
a. the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
b. the data subject has enforceable rights and effective legal remedies;
c. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
d. the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
v. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the
Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
vi. notify the Client without undue delay on becoming aware of a personal data breach;
vii. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the Contract unless required by Applicable Law to store the personal data; and
viii. maintain complete and accurate records and information to demonstrate its compliance with this Clause 9 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
9.5 Either party may, at any time on not less than 30 days’ notice, revise this Clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
10.1 The Supplier shall, provided it is available at commercially reasonable rates, maintain professional indemnity insurance and public liability insurance, subject to any limitations, exceptions and/or exclusions from cover as are commonly included in professional indemnity insurance and public liability insurance policies.
11.1 The extent of the Supplier’s liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this Clause 11.
11.2 Subject to Clauses 11.6 and 11.7, the Supplier’s total liability shall not exceed the sum of:
i. Public Liability: £2,000,000 Per Claim (excluding all claims arising out of or in any way connected with or related to any cladding, panelling or façade (including without limitation any core, filler or insulation) or any system incorporating any of the same).
ii. Professional Indemnity: £2,000,000 Per Claim (excluding all claims arising out of or in any way connected with or related to any cladding, panelling or façade (including without limitation any core, filler or insulation) or any system incorporating any of the same).
iii. For all other Claims not covered by the above or otherwise excluded in this Clause 11, the total aggregate liability of the Supplier to the Client under or in relation to this Contract shall not exceed 10 times the Fees in the Proposal for the Services.
11.3 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding:
i. Public Liability: £2,000,000 Per Claim
ii. Professional Indemnity: £2,000,000 Per Claim
iii. The insurance cover EXCLUDES all claims arising out of or in any way connected with or related to any cladding, panelling or façade (including without limitation any core, filler or insulation) or any system incorporating any of the same. For claims arising in this category, the total aggregate liability of the Supplier to the Client under or in relation to this Contract shall not exceed 10 times the Fees in the Proposal for the Services.
11.4 During the Term, the Supplier shall maintain suitable insurance with a reputable provider, sufficient to cover the liability of the Supplier in accordance with Clause 11.3.
11.5 The limits and exclusions in this Clause reflect the insurance cover the Supplier has been able to arrange, and the Client is responsible for making its own arrangements for the insurance of any excess loss.
11.6 The restrictions on liability in this Clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.7 Neither party may benefit from the limitations and exclusions set out in this Clause in respect of any liability arising from its deliberate default.
11.8 The Supplier has given commitments as to compliance of the Services with relevant specifications in Clause 4. In view of these commitments, the terms implied in 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.
11.9 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation and;
ii. breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.10 This Clause 11.10 sets out specific heads of excluded loss and exceptions from them:
i. Subject to Clause 11.7, the types of loss listed in Clause 11.10iii are wholly excluded by the parties, but the types of loss and specific losses listed in Clause 11.10iv are not excluded.
ii. If any loss falls into one or more of the categories in Clause 11.10iii and also falls into a category, or is specified, in Clause 11.10iv, then it is not excluded.
iii. The following types of loss are wholly excluded:
a. loss of profits
b. loss of sales or business.
c. loss of agreements or contracts.
d. loss of anticipated savings.
e. loss of use or corruption of software, data or information.
f. loss of or damage to goodwill; and
g. indirect or consequential loss.
iv. The following types of loss and specific loss are not excluded:
a. sums paid by the Client to the Supplier pursuant to the Contract, in respect of any Services not provided in accordance with the Contract;
b. wasted expenditure;
c. additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials.
d. losses incurred by the Client arising out of or in connection with any third-party claim against the Client which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the Supplier’s personnel, regulators and Clients of the Client
11.11 Save in respect of death or personal injury, the Client acknowledges and agrees that it may make a claim or bring any proceedings only against the Supplier and it may not bring a claim personally against the Supplier’s staff, including its Directors or Specialists. The Client agrees that none of the Supplier’s staff shall have any personal liability to the Client in respect of the provision of the Service.
11.12 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.13 No liability for claims not notified within 3 months.
11.14 This Clause 11 shall survive termination of the Contract.
12.1 Each party and/or its third-party licensors shall retain ownership of any Intellectual Property Rights owned by it and/or its third-party licensors prior to the Commencement Date.
12.2 The Supplier and its licensors shall retain ownership of all Intellectual Property Rights owned by it and/or its third-party licensors prior to the Commencement Date.
12.3 For the avoidance of doubt the Client shall not make any variation to a Deliverable without the prior written consent of the Supplier. No variation to any Deliverable shall be valid unless it is in writing and agreed in writing on behalf of both the Client and the Supplier.
12.4 The Client retains all intellectual Property Rights, whether owned or licensed, in the Client Materials. The Client hereby grants to the Supplier for the duration of the Contract, a royalty-free, non-exclusive, non-transferable and non-sub-licensable license to use the Client Materials to enable the Supplier to provide the Service contemplated by this Contract.
12.5 The Supplier may with the prior written consent of the Client use the Deliverables for agreed purposes after termination of this Contract provided that the Deliverables are redacted to protect the identity of the Client and any commercially sensitive information is deleted.
13.1 The Client acknowledges and agrees that the Supplier will retain all files and documents (including but not limited to the Client Materials) relating to the provision of the Service for a reasonable period after the termination of this Contract which in any event will not be more than 15 years. The Client agrees that the Supplier may destroy all files and documents relating to the Service at the end of that period.
13.2 The Supplier shall securely store and file any documents referred to in Clause 13.1 during the storage period. If during the storage period, the Client wishes the Supplier to retrieve or make copies of any documents then the Supplier may make a reasonable charge for its time and expense in doing so.
14.1 If the Client is not satisfied with the Supplier’s performance of the Services or any Additional Work, the Client shall advise the Supplier in writing within 5 Business Days of becoming aware, or should have reasonably become aware of the concern.
14.2 If the concern is not able to be resolved to the mutual satisfaction of both parties privately, the Client and the Supplier shall consider in good faith whether any dispute or difference between them is suitable for resolution by mediation, and if so, shall take the appropriate steps with a view to resolving the dispute or difference by mediation.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 1 month’s written notice. If the Client terminates the Contract but fails to give 1 months’ written Notice, the Client will be liable for the full amount specified in the Contract.
15.2 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:
i. 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 7 days of that party being notified in writing to do so;
ii. 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), 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 [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
iii. 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
iv. 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.
15.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Client if:
i. the Client fails to pay any amount due under the Contract on the due date for payment or
ii. there is a change of control of the Client.
15.4 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 the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in Clause 15.2ii to Clause 15.2iv, or the Supplier reasonably believes that the Client is about to become subject to any of them.
16.1 On termination of the Contract:
i. 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;
ii. the Client shall return all of the Supplier Materials and 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.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
17.1 This Clause 17 applies only when the Service provided by the Supplier to the Client are undertaken for the purposes of compliance with the Regulatory Reform (Fire Safety) Order 2005.
17.2 THE RESPONSIBLE PERSON
i. The Client acknowledges that at no time the Supplier is the ‘Responsible Person’ as defined by Article 3 of the FSO. Unless expressly stated otherwise in writing the Client is to be regarded as the Responsible Person.
17.3 ARTICLE 5(3) OF THE FSO – ‘PERSON WITH CONTROL’
i. The Supplier acknowledges that under Article 5 (3) of the FSO those responsibilities and duties imposed by the FSO on the Responsible Person are also to be imposed on any other person, who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
17.4 EXTENT OF THE SUPPLIER’S CONTROL, DUTIES AND OBLIGATIONS
i. The Supplier shall only be considered to be liable under Article 5(3) of the FSO in relation to matters that fall under his control pursuant to the terms of the Contract between the Client and the Supplier.
ii. The extent of the Supplier’s control and the duties and obligations imposed upon the Supplier shall be specified in Schedule 3 of the Proposal.
17.5 PERIOD OF VALIDATION
i. The Fire Risk Assessment is only valid for a maximum period of 24 months from the date of the report. However, the actual period of validation will be stated in the Fire Risk Assessment itself. Under Article 9(3)(b) of the FSO the Responsible Person is under a duty to review the Fire Risk Assessment.
17.6 SIGNIFICANT FINDINGS/ACTION PLAN SUMMARY
i. The Supplier’s recommendations are outlined in their Significant Findings/Action Plan Summary. The Client is responsible for the implementation of the recommendations unless the Contract stipulates otherwise.
17.7 CO-OPERATION AND CO-ORDINATION
i. Both the Supplier and the Client will co-operate and co-ordinate in order to comply with their respective obligations as per the Contract in order to satisfy the FSO. Where the Client requires the Supplier’s co-operation and co-ordination in accordance to Article 22 the Client must:
a. Request confirmation in writing and allow the Supplier the opportunity to respond.
17.8 FIRE SAFETY TRAINING
i. Where the Supplier provides fire safety training as part of the Proposal, the Supplier is in no way liable if the Client or an Employee of the Client does not carry out tasks relating to Fire Safety in connection with the Premises in accordance with the specialist training provided by the Supplier.
18.1 FORCE MAJURE
i. 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.
18.2 ASSIGNMENTS AND DEALINGS
i. 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.
ii. 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.
18.3 CONFIDENTIALITY
i. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by Clause 18.3ii.
ii. Each party may disclose the other party’s confidential information:
a. to its employees, officers, representatives, 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, subcontractors or advisers to whom
it discloses the other party’s confidential information comply with this Clause 18.3;
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
c. as may be required for audits of quality assurance of the Supplier as conducted by external quality assurance or industry bodies from time to time.
iii. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
iv. In the event of any inconsistency between this Clause 18 and Clause 9 in respect of Personal Data, the relevant provisions of Clause 9 shall prevail.
18.4 VARIATION
i. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and agreed in writing by the parties (or their authorised representatives).
18.5 WAIVER
i. 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.
18.6 SEVERANCE
i. If any provision or part-provision of the Contract 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 18.6 shall not affect the validity and enforceability of the rest of the Contract. This will be notified to the Client in writing.
18.7 NOTICES
i. 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 (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Proposal.
ii. Any notice or communication shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
b. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
c. 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 18.7iic, business hours means 0900 to 1700 Monday to Friday on a day that is not a public holiday in the place of receipt.
iii. This Clause 18.7 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.
18.8 WARRANTIES
i. Each party represents, warrants and undertakes that it has capacity to enter into this Contract and to grant the rights and licenses it purports to grant under this Contract.
ii. Save in this Contract where it is stated to be the responsibility of the Client, the Supplier warrants to the Client that it shall at all times have and maintain all necessary licenses and consents and comply with all relevant laws in relation to the provision of the Service.
18.9 THIRD PARTIES
i. No-one has any right to enforce any term of this contract under the Contracts (Rights of Third Parties) Act 1999. It is agreed and acknowledged that the Supplier shall not be required to enter into any collateral warranties with any third parties, provide any letters of reliance and/or grant any rights to any third parties under or in connection with this contract.
ii. The parties to this Contract may amend or terminate this Contract without requiring the consent of a third party even if that should result in the changes or removal of the rights of any third party.
iii. Requests for documents or work output from the Services in the Contract to be disclosed to Third Parties must be submitted by the Client to the Supplier for agreement.
iv. Where it is agreed between the Supplier and Client that work is disclosed to a Third Party this is permitted without assumption of any legal liability to that third party.
v. The Client shall on demand indemnify, hold harmless and keep indemnified the Supplier against all liability, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Suppler arising out of or in connection with any claim made against the Supplier
for actual or alleged infringement of a third party’s Intellectual Property Rights or other rights arising out of, or in connection with the use of the Client Materials or any materials provided by a third party acting on behalf of the Client.
vi. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.10 ENTIRE AGREEMENT
i. 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.
ii. 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 or negligent misstatement based on any statement in the Contract.
iii. Nothing in this Clause shall limit or exclude any liability for fraud.
18.11 GOVERNING LAW
i. This 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 (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
ii. Nothing in this Contract is intended to, or shall be deemed to create or imply the existence of a partnership or joint venture between the parties nor any arrangement which would impose liability on the Supplier for the acts or omissions of the Client and vice versa. In particular each party acknowledges that it does not have authority to, and agrees that it shall not, at any time without the other party’s prior written consent make or enter into any commitments on behalf of the other party.
18.12 JURISDICTION
i. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of or in connection with this Contract or its subject matter or formation.
Your agreement to these terms and conditions can be signalled by way of type signing this document and the Proposal form and returning them in pdf format by email. Alternatively, you can reply “Yes, I agree” to the email sending these documents. By doing so you consent to do business electronically under the electronic signature legislation in force from time to time