The Client hereby appoints Airborne Environmental Consultants Limited (“AEC”) to carry out the work as described, and for the price as estimated, in the written proposal (“the Proposal”) and, if and where applicable, as varied in writing between the Client and a director/authorised representative of AEC prior to the commencement of the work (together “the Services”).
The Client hereby accepts and acknowledges that only a current director / authorised representative of AEC has authority to vary the estimate of fees and expenses, the Services or any of the terms of business including these Standard Terms of Business, and the Client agrees that it shall not seek to rely on any variation to the terms of this agreement which it purports has been agreed with any employee or representative of AEC other than a current director.
In the event of any conflict between these Standard Terms of Business and any purchase order, tender, or like document submitted by the Client, these Standard Terms of Business shall prevail, and such conflicting terms in the Client’s documents are hereby rejected by AEC.
The estimate of fees and expenses for the Services are as provided in the Proposal which has been put forward to the Client by AEC. Both the estimate and the hourly fee rates quoted therein shall remain valid for six (6) months from the date of the Proposal. In the event that the period for the provision of the Services extends for greater than six (6) months from the date of instruction, AEC reserves the right to apply an increased level of fees which, for the avoidance of doubt will include fees for all or any time spent by AEC in providing the Services for the Client, whether at the Client’s premises or elsewhere, including travelling. Unless otherwise agreed, expenses will be charged by AEC to the Client at cost plus a handling charge equivalent to 10 (ten) per cent of the total expenses amount. Unless otherwise stated, all sums quoted or charged are exclusive of VAT and/or equivalent taxes.
Any and all variations to the scope or extent of the Services after commencement thereof requested by the Client (which must be agreed by both parties and confirmed in writing by AEC) will be subject to additional charges payable by the Client, such charges being calculated at the hourly fee rates which have been agreed for the Services, or if no specific hourly rates are agreed by the parties, then the Client agrees to pay the current hourly fee rates charged by AEC for work of the type requested by the Client.
The Client hereby agrees to pay to AEC the fees and expenses for the Services (including the fees and expenses of all or any sub-contractors or similar employed by AEC in the provision of the Services if and where applicable), including all charges and expenses for all or any variations to the Services, and/or additional work undertaken by AEC as agreed and as provided for by these terms. The Client shall be responsible for paying all or any relevant taxes, levies, duties or similar, including VAT or equivalent where applicable.
Unless agreed otherwise, AEC’s payment terms require payment of outstanding accounts by the Client within 30 days of the date of despatch of AEC’s invoice (the “Due Date”). If the Client fails to pay by the Due Date any amount which is outstanding, without prejudice to any other rights which AEC may have, the outstanding amount shall bear interest at monthly rate of 2% above the base lending rate of Barclays Bank Plc accruing on a daily basis from the Due Date until payment is made in full, whether before or after any judgment. Accounts will normally be invoiced by AEC monthly in arrears of the Services being provided to the Client. No payments may be withheld nor may any counterclaims of the Client be set off against any payment due to AEC.
In the event that the Client fails to pay any invoice issued by AEC in full within 10 (ten) days of the Due Date (or any other date as agreed), AEC reserves the right to suspend the Services until the outstanding amount, together with all or any accrued interest, has been received in full and in cleared funds by AEC. No liability is accepted for any loss or damage (including indirect or consequential loss), howsoever suffered by the Client, by virtue of the suspension of the Services by AEC.
In the event of the Client cancelling the contract in advance of AEC attending any location to perform the Services, the Client shall be liable for all and any costs incurred by AEC in relation to the provision of the Services to the Client and, in addition, shall pay a sum equivalent to a proportion of the contract value depending on the degree of notice of termination given. These proportions shall equate to: 10% of the contract value for cancellation within 30 (thirty) days of planned site attendance, 50% for cancellation within 7 (seven) days of planned site attendance and 90 % for cancellation within 24 hours of planned site attendance.
For the duration of the Services, and for a period of 12 (twelve) months after provision and/or termination of the Services, neither the Client, nor any company associated with the Client, shall offer employment to any employee, director and/or officer of AEC without the prior written agreement of AEC.
AEC will exercise such reasonable skill, care and diligence in the provision of the Services as is to be expected of an appropriately qualified and competent environmental consultant experienced in carrying out services of the relevant nature in accordance with the Proposal.
When an assignment requires AEC (and/or any individual director, employee or officer of AEC) to act in a representative capacity on behalf of the Client, AEC shall be deemed to be acting as the Client’s agent. The Client hereby agrees to indemnify AEC (and/or any individual director, employee or officer of AEC) against all or any claims or liabilities, and/or specific exceptional costs, for which they may become liable in relation to their agency for the Client whether by reason of the acts or omission of the Client or otherwise.
The Services may be terminated by either party by the giving of 1 (one) month’s notice in writing, save that AEC reserves the right to terminate the Services without any such notice where the Client is insolvent, and/or fails to make its payments to AEC as they fall due, or where the Client is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or becomes bankrupt, or if a winding up petition is issued against the Client and/or a trustee, receiver, administrator, administrative receiver or similar officer is appointed in respect of any or all the business of the Client.
12. AEC undertakes to maintain adequate cover for Public Liability and Professional Indemnity Insurance during the course of the Services and for one year after completion thereof, providing always that such insurance is available at commercially reasonable rates. Details of these policies are available on request. If such insurance cover ceases to be available to AEC at commercially reasonable rates, then AEC shall promptly notify the Client.
Except in relation to that part of a claim which relates to death or personal injury, AEC’s aggregate liability in tort and/or for breach of contract and/or for misrepresentation and/or for breach of statutory duty in connection with the Services shall not exceed the greater of (1) the sum paid to (and to be kept by) AEC for the Services in relation to which such liability may have arisen and (2) the amount of insurance cover actually provided to AEC to meet the claim. AEC shall have no liability in any case for loss of revenue, profit or indirect or consequential loss. To the extent that the law may prevent such limitation of liability to a third party, the Client will indemnify AEC against any claim in excess of this limit.
Variation to the limit of AEC’s liability may be agreed by AEC with the Client in relation to the Services subject to the availability to AEC of appropriate insurance cover. The Client agrees that, in such circumstances, the increase in the cost to AEC of professional indemnity insurance shall be borne by the Client. Further, any related increase in insurance costs caused by any specific requirements of the Client, and/or to address AEC’s final written report to any third party, shall also be borne by the Client and shall be payable to AEC by the Client.
The copyright in the written materials produced by AEC in relation to the provision of the Services shall remain the property of AEC but AEC shall grant a royalty-free licence to the Client to use all such written materials, including AEC’s final written report, which is terminable by AEC at any time and is at all times subject to payment in full by the Client to AEC of all or any outstanding amounts to AEC in relation to this or any other agreement.
The failure of a party to insist in any one or more instances upon the performance of any provisions of this agreement shall not be construed as a waiver or relinquishment of that party’s right to future performance of such provision and the other party’s obligation in respect of such a future performance shall continue in full force and effect.
The various provisions of this agreement 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 this agreement.
This agreement, together with the final written report issued by AEC and the Proposal, sets out the entire understanding and agreement between the Client and AEC in connection with the Services, including any variation agreed in writing thereto.
Neither party hereto shall be liable or deemed to be liable to the other party for failure or delay in meeting any obligation hereunder due to strikes or lockouts (whether of their own employees or those of others), acts of God, warfare, flood, explosion, fire, terrorism, environmental incident, litigation, acts of Government or regulatory authority or any other cause beyond the control of the party which had a duty to perform.
This agreement shall be governed by and construed in accordance with English law and disputes arising from it shall be subject to the jurisdiction of the English Courts.
* AEC is UKAS accredited for asbestos surveys, air testing and bulk sample analysis only.
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