Terms and Conditions

1. Definitions and interpretation

1.1 In these Conditions the following words have the following meanings:

(a) “Conditions” means these terms and conditions;

(b) “Contract” means the contract between the Consultant and the Client for the Services, comprising the Proposal, these Conditions and any variations agreed under clause 8;

(c) “Deliverables” means the reports, data, drawings, calculations, designs, advice and other materials prepared by the Consultant for the Client under the Contract;

(d) “Fees” means the charges for the Services set out in, or calculated in accordance with, the Proposal;

(e) “Proposal” means the Consultant’s fee proposal, quotation or scope of works to which these Conditions are attached or in which they are referred to;

(f) “Services” means the environmental consultancy services described in the Proposal;

(g) “Site” means the land or premises at which, or in relation to which, the Services are to be performed.

1.2 A reference to a statute or statutory provision includes any subordinate legislation made under it and any amendment or re-enactment. “Writing” and “written” include email. Headings are for convenience only and do not affect interpretation.

2. The contract and order of precedence

2.1 These Conditions apply to and are incorporated into every Contract and prevail over any other terms, subject to clause 2.4.

2.2 The Proposal constitutes an offer by the Consultant which, unless stated otherwise, is open for acceptance for 30 days from its date, after which it lapses.

2.3 A Contract is formed, and these Conditions are accepted by the Client, on the earliest of: (a) the Client’s written acceptance of the Proposal; (b) the Client instructing the Consultant to proceed; or (c) the Consultant beginning to perform the Services. Issuing a purchase order or instruction referable to the Proposal constitutes acceptance of these Conditions.

2.4 Order of precedence. The Contract consists only of the Proposal and these Conditions. If there is any conflict, the Proposal prevails over these Conditions. These Conditions prevail over, and no account shall be taken of, any purchase order, terms, conditions or other document put forward by the Client at any time (and any provision in them that purports to give them precedence or to exclude the Consultant’s terms shall be of no effect), unless expressly agreed and accepted in writing signed by a director of the Consultant.

2.5 No variation of the Contract is effective unless agreed in writing in accordance with clause 8.

3. The services

3.1 The Consultant will perform the Services described in the Proposal in accordance with clause 4.

3.2 The Services are limited to the scope set out in the Proposal. The Consultant is under no obligation to consider, report upon or advise on any matter outside that scope, and any service not expressly included is excluded.

3.3 Any programme or completion dates given are estimates only. Time for performance of the Services is not of the essence, and the Consultant is not liable for delay to the extent caused by matters outside its reasonable control or by the Client (see clauses 5 and 16).

4. Standard of care

4.1 The Consultant will exercise the reasonable skill, care and diligence to be expected of a competent professional providing services of a similar nature, and accepts responsibility only for loss caused by a failure to do so, proven by the Client.

4.2 No fitness for purpose. The Consultant does not warrant, and it is not a term of the Contract, that the Services or Deliverables will be fit for any particular purpose or will achieve any particular outcome (including any planning permission, regulatory approval, discharge of a planning condition, or acceptance by any third party). Any warranty, condition or term as to fitness for purpose, satisfactory quality, or any standard higher than clause 4.1 — whether implied by statute or common law or contained in any Client document — is excluded to the fullest extent permitted by law.

4.3 All advice and opinions are given on the basis of the information available to the Consultant and the standards, guidance and legislation current at the date they are given.

5. Client obligations, information and site access

5.1 The Client shall, promptly and free of charge, provide the Consultant with all information, drawings, plans, surveys and data relevant to the Services, including accurate “as-built” drawings showing the location of underground services and utilities, and all information known to the Client about the history, condition and use of the Site.

5.2 The Client shall disclose all hazards and potential hazards known or suspected by it, including the presence or possible presence of contamination, toxic, explosive, flammable or radioactive materials, asbestos, biological hazards, underground tanks, structures, cables and pipes.

5.3 The Client shall provide safe, timely and unhindered access to the Site for the Consultant and its subcontractors, and shall make any site rules known to the Consultant in writing.

5.4 The Consultant is entitled to rely on the accuracy and completeness of information provided by or on behalf of the Client and by third parties, and shall have no liability for any Deliverable or advice to the extent it is based on information that is inaccurate, incomplete or not disclosed.

5.5 Delay and standing time. If the Consultant or its subcontractors are delayed, prevented, interrupted or stood down as a result of the Client’s acts or omissions, unsafe or unready site conditions, denial or restriction of access, or the late or inadequate provision of information, the Consultant is entitled to a fair and reasonable adjustment to the Fees (including standing time and abortive costs) and to the programme.

5.6 Site readiness. The Client shall ensure that, at the scheduled time, the Site is available, ready and safe for the Services and that all necessary access, permissions, permits, keys, escorts, service and utility information, and any traffic-management or security arrangements, are in place.

5.7 If, on or before attendance, access is denied, delayed or restricted, the Site is not ready or safe, or any permission or item under clause 5.6 is missing, the Consultant may (without liability) postpone, curtail or abandon the visit and remove its personnel and equipment from Site, in which case:

(a) the Consultant is entitled to standing time at its standard rates for time lost, together with all waiting, abortive and re-mobilisation costs; and

(b) if the effect is equivalent to a short-notice cancellation or postponement, the charges in clause 10 also apply.

5.8 The Consultant is not responsible for any delay, cost or consequence arising from restricted or unsafe access or from the Site not being ready, and the Fees and programme shall be adjusted accordingly.

6. Deliverables, reliance and reproduction

6.1 The Deliverables are prepared solely for the Client and solely for the purpose and the Site stated in the Proposal.

6.2 Reliance. No person other than the Client may rely on the Deliverables, and the Consultant accepts no duty of care or liability to any third party. Reliance may be extended to a named third party only under a separate written reliance agreement, which may be subject to an additional fee.

6.3 Currency of Deliverables. The Deliverables are given as at their date of issue and are based on the information, ground and site conditions, guidance and legislation current at that time. The Consultant is under no obligation to update a Deliverable after issue unless separately instructed. The Deliverables should not be relied upon after 12 months from issue, or if site conditions, the use of the Site or applicable law or guidance change.

6.4 Sampling and ground conditions. Where the Services involve sampling or testing, the Consultant’s opinions relate only to the specific samples taken or tested and do not extend to the bulk or to areas not sampled. Ground and site investigation samples discrete locations only; the Consultant gives no warranty as to conditions between or below sampling points, or as to contamination or hazards not revealed by the agreed scope of works.

6.5 Reproduction. The Deliverables may be reproduced only in full and verbatim. Any extract, summary or quotation requires the Consultant’s prior written consent. If the Client (or anyone authorised by it) publishes any extract or summary that misrepresents the Consultant’s findings, the Client shall indemnify the Consultant against any resulting loss, damage or claim, to the extent permitted by law.

6.6 Integrity of Deliverables. The Consultant will not amend, and may decline any request to amend, a Deliverable in any way that would render it inaccurate or misleading, or that would omit matters a competent professional would properly report.

6.7 Any draft or interim Deliverable is issued for information only, is subject to change, and may not be relied upon.

6.8 Final report withheld until paid. Where any Fees remain outstanding, the Consultant may issue the final report in draft only, watermarked and marked “draft — not for reliance / not issued”, for the Client’s review. The final, issued report — the version on which the Client is entitled to rely — is released only on payment of all outstanding sums. A draft confers no right of reliance and is not the Consultant’s issued professional opinion.

6.9 Use before payment is at the Client’s risk. The Consultant’s duty of care in respect of the final report attaches to the issued version released under clause 6.8. If the Client relies on, discloses or acts on any report or draft before payment of all sums due, it does so at its own risk and in breach of clauses 6.2, 9.7 and 10.2, and shall indemnify the Consultant against any claim arising from such unauthorised use, to the extent permitted by law.

7. Sub-contracting

7.1 Sub-contracting and sub-consultancy. The Consultant may sub-contract or delegate any part of the Services to competent subcontractors and subconsultants, including resource-dependent elements (such as drilling, sampling, monitoring and laboratory analysis) and specialist disciplines (such as flood risk assessment and ecology), where this is necessary to perform the Services or forms part of the Consultant’s quality-assured delivery.

7.2 Resilience partner. As part of its ISO 9001 quality-management arrangements, the Consultant may also engage a vetted resilience or partner organisation to undertake or continue the Services where the Consultant is unable, or is prevented, from doing so, so as to maintain continuity of service.

7.3 Vetting and insurance. The Consultant vets each subcontractor, subconsultant and partner organisation it engages and requires each to hold insurance appropriate to the work and consistent with the Consultant’s own insurance requirements.

7.4 Consent. The Client’s acceptance of these Conditions is its written consent to the Consultant’s use of subcontractors, subconsultants and partner organisations in accordance with this clause 7, and no further consent to sub-let is required.

7.5 Responsibility. The Consultant will exercise reasonable skill and care in selecting and supervising any subcontractor, subconsultant or partner organisation but, subject to clause 12, is not liable for any act, omission, delay or default of any of them except to the extent directly caused by the Consultant’s own negligent selection or supervision.

8. Variations and additional services

8.1 Either party may propose a variation to the Services. A variation is effective only when agreed in writing (email sufficient).

8.2 The Consultant is entitled to a fair and reasonable adjustment to the Fees and the programme in respect of any variation or additional or “extra-over” service (for example asbestos quantification, additional monitoring visits or waste classification), any unforeseen ground or site conditions, or any change in law or guidance.

8.3 If the Client instructs the Consultant to proceed with additional work before the fee for it has been formally agreed, the Consultant is entitled to reasonable additional remuneration for that work.

9. Fees, expenses and payment

9.1 The Fees are as set out in the Proposal and are exclusive of VAT (which is payable in addition at the applicable rate) and of disbursements and expenses unless the Proposal states otherwise.

9.2 Where no Fee has been agreed in advance, the Consultant is entitled to reasonable remuneration for the Services performed together with expenses reasonably incurred.

9.3 Invoicing. Unless the Proposal states otherwise, the Consultant may invoice at monthly intervals and/or on completion of stages or milestones, for Services performed and costs incurred to the date of the invoice. Invoices are not conditional on the Client’s approval, inspection or acceptance of any Deliverable.

9.4 Payment. Unless a different period is stated in the Proposal or on the relevant invoice, the Client shall pay each invoice in full, in cleared funds, within 30 days of the invoice date. Where the Proposal or the invoice so states, an invoice may be payable in advance — including before the Services (or a stage) commence, or before the final report is issued under clause 6.8 — and the Consultant is not obliged to commence or continue the Services, or to release the relevant Deliverable, until that invoice has been paid in full. All payments shall be made without deduction, withholding, counterclaim or set-off, save for any amount the Client is required by law to withhold or a sum that is the subject of a bona fide dispute notified to the Consultant in writing within 5 working days of the invoice date. Time for payment is of the essence.

9.5 Late payment. Without prejudice to any other right, the Consultant is entitled to interest, fixed-sum compensation and reasonable recovery costs on overdue amounts under the Late Payment of Commercial Debts (Interest) Act 1998 (interest accruing at 8% above the Bank of England base rate). These statutory entitlements are expressly reserved and are not displaced by any lower or other rate.

9.6 Suspension for non-payment. If any sum remains unpaid after its due date, the Consultant may, on 7 days’ written notice and without prejudice to its other rights, suspend the Services and/or withhold any Deliverable until payment is made in full, with a fair adjustment to the Fees and programme for the effect of the suspension.

9.7 Title and reliance until paid. Ownership of and copyright in the Deliverables remain with the Consultant, and the Deliverables may not be used or relied upon by the Client or any other party, until all sums due under the Contract have been paid in full.

9.8 Weighting of invoices. Invoicing under clause 9.3 shall be weighted so that the majority of the Fees are invoiced on or before completion of the fieldwork and receipt of laboratory data, with only a final balancing instalment payable on issue of the final report. Payment is not deferred until, nor made conditional upon, issue or acceptance of the final report.

9.9 Completion and payment not conditional on acceptance. The Services (or any stage) are complete when the Consultant has performed them with reasonable skill and care and has made the corresponding Deliverable (including in draft under clause 6.8) available to the Client. Completion and the obligation to pay are not conditional on the Client’s inspection, approval, acceptance or subjective satisfaction, or on the outcome being acceptable to the Client or any third party.

9.10 Disputed sums and sole remedy. If the Client considers any part of the Services defective or incomplete, it shall notify the Consultant in writing within 5 working days of the relevant Deliverable, giving reasons. The Client may withhold only the part of an invoice genuinely and reasonably in dispute and shall pay the balance by the due date. The Consultant’s sole obligation for any proven defect is to re-perform the deficient part within a reasonable time, and this is the Client’s exclusive remedy for it (subject to clause 11). An allegation that the Services are “incomplete” is not a valid ground to withhold payment where the Consultant has performed the scope set out in the Proposal.

10. Cancellation and postponement

10.1 Once any site works, site visit, mobilisation or other resource-dependent element of the Services has been scheduled, the Client may cancel or postpone it, but the following cancellation charges then apply, calculated as a percentage of the Fees for the Services (or the relevant part of them) scheduled to be carried out:

(a) 100% of those Fees where notice is given 24 hours or less before the scheduled start;

(b) 50% of those Fees where notice is given more than 24 but not more than 48 hours before the scheduled start;

(c) 25% of those Fees where notice is given more than 48 hours but not more than 7 days before the scheduled start.

10.2 Where the Fees are quoted as a single lump sum, the Consultant shall apportion them on a fair and reasonable basis to the element cancelled or postponed for the purpose of this clause.

10.3 In addition to any charge under clause 10.1, the Client shall pay in full all committed or incurred third-party and abortive costs that the Consultant cannot reasonably avoid or recover, including drilling and plant standby or cancellation charges, laboratory booking charges, equipment hire, and travel and accommodation.

10.4 Where notice is given more than 7 days before the scheduled start, no charge is payable under clause 10.1, but clause 10.3 still applies.

10.5 The parties agree that the charges in this clause are a genuine pre-estimate of the loss the Consultant suffers when booked resources that cannot be redeployed at short notice are cancelled or postponed, and that they protect the Consultant’s legitimate interest in that booked capacity. Notice of cancellation or postponement is effective only when received by the Consultant in writing, and any cancellation charge is payable within 30 days of invoice.

11. Intellectual property

11.1 The Consultant retains all intellectual property rights (including copyright) in the Deliverables and in its methods, systems, software and know-how.

11.2 On payment of all sums due, the Client is granted a non-exclusive, non-transferable licence to use the Deliverables for the purpose and the Site stated in the Proposal, and for no other purpose.

11.3 Materials provided by the Client remain the Client’s property. The Client warrants that it is entitled to provide them and shall indemnify the Consultant against any third-party intellectual property claim arising from their use in accordance with the Contract.

11.4 The Consultant may use the general knowledge, skills and experience it acquires, and may (with the Client’s consent, not to be unreasonably withheld) refer to the project as a reference or case study.

12. Liability

12.1 This clause 12 sets out the entire financial liability of the Consultant (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of the Contract.

12.2 Subject to clause 12.7, the Consultant’s total aggregate liability arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the lesser of £1,000,000 and the amount of the Consultant’s professional indemnity insurance cover then available (which the parties agree is a reasonable limit having regard to the Fees and to the level of the Consultant’s professional indemnity insurance). Where the Contract covers more than one service, this limit applies to each service by apportionment of the Fees.

12.3 Net contribution. The Consultant’s liability for any loss or damage shall be limited to the proportion of that loss or damage which it would be just and equitable for the Consultant to bear, having regard to the extent of its responsibility, and on the assumptions that all other consultants, contractors and advisers engaged in connection with the Site have provided the Client with equivalent undertakings, are not protected by any limitation of liability, and have paid to the Client the proportion of the loss it would be just and equitable for them to pay.

12.4 Excluded loss. The Consultant is not liable for any loss of profit, revenue, business, contracts, anticipated savings, goodwill or opportunity, or for any indirect or consequential loss, in each case however arising.

12.5 Time limit. No proceedings may be commenced against the Consultant after the expiry of 6 years from completion of the Services (or, if earlier, from the date on which the Services should have been completed).

12.6 Claims against individuals. The Client agrees to bring any claim in connection with the Contract only against the Consultant, and not against any individual director, employee or subcontractor of the Consultant. Every such person may rely on the exclusions and limitations in these Conditions, which the Consultant holds on their behalf under the Contracts (Rights of Third Parties) Act 1999.

12.7 Liability that cannot be limited. Nothing in the Contract excludes or limits the Consultant’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be excluded or limited. Such liability is not subject to the limit in clause 12.2.

12.8 Any indemnity given by the Consultant is subject to clauses 12.2, 12.3 and 12.4. To the extent that third-party claims relating to the Services exceed the limit in clause 12.2, the Client shall indemnify and hold the Consultant harmless against the excess, save to the extent such claims arise from the Consultant’s fraud or from liability that cannot lawfully be limited.

13. Insurance

13.1 The Consultant shall maintain professional indemnity insurance with a limit of not less than £1,000,000 in the aggregate, together with public liability and employers’ liability insurance as required, with reputable insurers, for the duration of the Services and for 6 years afterwards, provided that such insurance remains available at commercially reasonable rates.

13.2 Cover in respect of pollution or contamination risk may be provided on an aggregate basis for any one period of insurance rather than on an each-and-every-claim basis.

13.3 The Consultant shall, on reasonable written request, provide evidence that the required insurance is in force.

13.4 The Consultant’s liability under the Contract is neither increased nor reduced by, and does not depend upon, the existence or amount of any insurance recovery.

14. Health, safety and CDM

14.1 Each party shall comply with the Health and Safety at Work etc. Act 1974 and all applicable health and safety legislation.

14.2 Where the Construction (Design and Management) Regulations 2015 apply, the parties’ respective duty-holder roles shall be as set out in the Proposal or otherwise agreed in writing.

14.3 The Client is responsible for providing a safe Site and safe access. The Consultant may suspend the Services or withdraw its personnel from the Site where it reasonably considers conditions to be unsafe, without liability for any resulting delay, and clauses 5.5 and 5.7 shall apply.

15. Data protection

15.1 Each party shall comply with the UK GDPR and the Data Protection Act 2018 in respect of any personal data processed in connection with the Contract.

16. Confidentiality

16.1 Each party shall keep confidential the other party’s confidential information and the terms and Fees of the Contract, and shall not disclose them except: (a) to its staff and professional advisers on a need-to-know basis; (b) information that is or becomes public other than through its breach; or (c) as required by law or a regulatory authority.

16.2 This clause 16 survives termination of the Contract.

17. Force majeure

17.1 Neither party is liable for any delay in or failure to perform its obligations (other than an obligation to pay) caused by events beyond its reasonable control, including adverse weather, fire, flood, epidemic or pandemic, industrial action, civil unrest, the actions of protesters or third parties, acts of public authorities, and unforeseen ground or site conditions. The Fees and programme shall be adjusted fairly to reflect the effect of such an event, and the Consultant shall be reimbursed any additional costs and expenses reasonably incurred as a result. If such an event continues for more than 60 days, either party may terminate the Contract, in which case clause 18.3 applies.

18. Suspension and termination

18.1 Either party may terminate the Contract by written notice if the other commits a material breach that is not remedied within 14 days of written notice requiring it to be remedied, or if the other becomes insolvent, enters administration or liquidation, or has a receiver or administrative receiver appointed.

18.2 The Consultant may suspend or terminate the Contract for non-payment (clause 9), for failure to provide safe access, or for failure to provide information reasonably required to perform the Services.

18.3 On termination under clause 18.1 or 18.2, the Client shall pay the Consultant for all Services performed, and all costs and commitments reasonably incurred, up to the date of termination, including reasonable abortive and demobilisation costs. Any provision that by its nature is intended to survive termination continues in force.

18.4 Termination for convenience. The Client may stop or terminate the Services for its own convenience only by written notice. On any such termination, the Client shall pay the Consultant — whether or not any report or other Deliverable has been issued or completed:

(a) all Fees for Services performed up to the date of termination, valued on a fair and reasonable basis by reference to the proportion of the Services completed, and not conditional on the issue or completion of any report;

(b) all costs and liabilities the Consultant has committed to or incurred, including subcontractor, laboratory, plant and mobilisation costs, and abortive and demobilisation costs; and

(c) a fair and reasonable amount for work in progress.

18.5 On payment under clause 18.3 or 18.4 the Consultant is relieved of all responsibility for the partial or incomplete Services, and any partial or draft Deliverable is provided for information only and may not be relied upon. Sums due under clause 18.4 are payable within 30 days of invoice.

19. Anti-bribery

19.1 Each party shall comply with the Bribery Act 2010 and shall not engage in any activity that would constitute an offence under it.

20. Non-solicitation of staff

20.1 If, within nine months of the Services last being performed, the Client directly or indirectly engages any employee of the Consultant who was involved in the Services, the Client shall pay the Consultant an introduction fee equal to 50% of that person’s first year’s gross remuneration, which the parties agree is a genuine pre-estimate of the Consultant’s loss and cost of replacement and introduction.

21. General

21.1 The Client may not assign, transfer or sub-contract the benefit or burden of the Contract without the Consultant’s prior written consent. The Consultant may sub-contract in accordance with clause 7 and may assign the Contract to a group company or on a sale of its business.

21.2 The Contract is the entire agreement between the parties and supersedes all prior discussions and representations. Neither party has relied on any statement not set out in the Contract, save that nothing limits liability for fraud.

21.3 No failure or delay in exercising any right is a waiver of it. If any provision is or becomes unenforceable, it shall be severed and the remainder shall continue in force. Nothing in the Contract creates a partnership, joint venture or agency between the parties.

21.4 Notices must be in writing and may be sent by email or post to the addresses stated in the Proposal or otherwise notified. Except as stated in clause 12.6, no term of the Contract is enforceable by any person who is not a party to it under the Contracts (Rights of Third Parties) Act 1999.

22. Disputes, governing law and jurisdiction

22.1 The parties shall first seek to resolve any dispute by discussion between senior representatives within 14 days and, failing resolution, by mediation under the CEDR Model Mediation Procedure before commencing court proceedings, except that either party may at any time seek injunctive relief or take steps to protect a limitation period.

22.2 The Contract and any dispute or claim arising out of or in connection with it (including any non-contractual dispute or claim) are governed by and construed in accordance with the law of England and Wales.

22.3 The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.