1. The Agreement, the Parties and the Services

 

This Agreement is a contract for supply of services between the following Parties: The Client. who has requested professional services in connection with a matter ("the Task") and to whom the proposal ("the Proposal") for certain services specified in the Proposal ("'the Services") is addressed and who may have provided the brief or terms of reference incorporated in the Proposal, and SoilSafe Ltd ("SoilSafe Ltd"), who submitted the Proposal and whose registered office is at 50 Trinity Way, Salford, Manchester, M3 7FX.This Agreement includes these Terms of Engagement and the Proposal.

2. Commencement and Duration Notwithstanding the date of this Agreement, the effective date of the appointment of SoilSafe Ltd shall be the date upon which this Agreement was executed by the Parties or the date when SoilSafe Ltd first commenced performance of the Services, whichever is the

earlier. Unless terminated, the appointment of SoilSafe Ltd shall come to an end when SoilSafe Ltd has performed the Services required under this Agreement.

3. SoilSafe Ltd's Obligations

a. SoilSafe Ltd shall exercise reasonable skill care and diligence in the provision of the Services hereunder. SoilSafe Ltd shall use reasonable endeavours to perform the Services in accordance with any programme agreed with SoilSafe Ltd from time to time. SoilSafe Ltd shall have no liability for any failure or delay in the provision of the Services or any part there of resulting from any condition or circumstance beyond the reasonable control of SoilSafe Ltd and the Client shall pay SoilSafe Ltd in accordance with this Agreement during the existence of such condition or circumstance. Notwithstanding any other provision of this Agreement,SoilSafe Ltd shall have no greater obligation under or in connection with the Agreement than to exercise reasonable skill and care.

b. SoilSafe Ltd shall effect and maintain professional indemnity insurance for the period of six years from the date of completion of the Services in an amount not less than the lesser of the two amounts calculated in accordance with Clause 19 (a) and (b) in respect of the Services, unless such cover is not available to SoilSafe Ltd at commercially reasonable rates and subject to all exceptions, exclusions and limitations to the scope of cover that commonly are included in such insurance at the time the insurance is taken out or renewed,as the case may be. If such insurance cover is not available, SoilSafe Ltd shall promptly notify the Client. Without prejudice to the generality of the foregoing SoilSafe Ltd shall in particular not be under any obligation to take out or maintain insurance against liability arising out of or resulting from or associated in any way with asbestos or any structure, building, product, waste or other material that contains asbestos.

4. Obligations of the Client

a. The Client warrants that it has the right to have the Services performed and has obtained

all necessary licences and approvals. The Client shall indemnify and hold harmless

SoilSafe Ltd from and against all consequences of any failure in this respect.

b. The Client shall use reasonable endeavours to supply to SoilSafe Ltd, promptly and free of

charge: a) any instructions, decisions, consents and approvals, and b) any relevant data

and information in the possession of the Client or any of his agents consultants or

contractors which SoilSafe Ltd may require in order to carry out the Services.

c. The Client shall provide to SoilSafe Ltd such use of the Client's facilities and access to the

site as is necessary to complete the Services and shall do all things necessary to make

such access effective, save that such access may be subject to such reasonable

restrictions as are necessary to protect any property rights of the Client.

d. SoilSafe Ltd has in place policies and procedures relating to compliance with legislation

concerning bribery and corruption, modem slavery, data protection and health and safety

and shall provide copies of these on request. The Client shall comply with all applicable

legislation.

5. Site Operations

a. The· Services may include visits to site(s) by SoilSafe Ltd, who shall then be the Client's

visitor. SoilSafe Ltd shall not be deemed to have assumed the role of occupier or otherwise to

have assumed control or responsibility for the site or the personnel on it. The Client shall

notify any other consultants and contractors on the site (other than SoilSafe Ltd's subconsultants):

(a) of the presence of SoilSafe Ltd's personnel; and (b) of the extent (if any) to

which SoilSafe Ltd is authorised to direct and/or supervise their work; and (c) that the

presence (or otherwise) of SoilSafe Ltd's personnel does not relieve them of their

responsibilities including safety and their obligations under their respective contracts and

agreements.

b. SoilSafe Ltd shall take reasonable precautions and use reasonable endeavours to minimise

damage to property, including utilities and other sub-surface obstructions. If,

notwithstanding such precautions and endeavours, any such property is damaged, the cost

of rectification and all other losses shall be borne by the Client.

6. Intellectual Property Rights

a. All intellectual and industrial property rights including (without limitation) patents, trade

marks, service marks, registered designs, copyrights, database rights, design rights, moral

rights or know-how, howsoever arising and whether or not registered ("Intellectual Property

Rights") created by SoilSafe Ltd in the performance of the Services, including but not limited

to Intellectual Property in models, shall vest or remain vested in SoilSafe Ltd.

b. The Client shall have a licence to use all final copies of reports, test results, opinions and

other documents prepared by or on behalf of SoilSafe Ltd ('the Documents") for the sole

purpose for which the same were prepared and provided by SoilSafe Ltd. In the event of the

Client being in default of payment of any fees or any other amounts due under this

Agreement SoilSafe Ltd may revoke the licence granted herein on giving seven days' Notice.

SoilSafe Ltd shall not be liable for the use by any person of any Document for any purpose

other than that, for which the same were prepared by or on behalf of SoilSafe Ltd. Unless

agreed otherwise, building information models produced in performing the Services

("Models") are for SoilSafe Ltd's use only. The Client shall indemnify SoilSafe Ltd against any

losses, claims, costs, damages or expenses arising out of or in connection with the use

and/or reliance on any Models by the Client or any third party.

c. The Client warrants and undertakes that it will not reproduce any Document in whole or in

part without the prior written approval of SoilSafe Ltd.

d. The Client warrants and undertakes to advise any other party or individual to whom he

passes any Document that they may not rely upon any such Document.

e. The Client acknowledges that any emails and attachments to them that have originated

from SoilSafe Ltd are intended only for the party to whom they are addressed. They may

contain confidential information or Documents that are the copyright of SoilSafe Ltd. The

Client may only use the emails and attachments for the purpose for which they were first

prepared by or on behalf of SoilSafe Ltd. They shall not be disclosed or passed on to any

other party in any form in whole or in part without SoilSafe Ltd's express permission. Due to

the nature of email transmissions SoilSafe Ltd is not liable for any virus or similar infection

and/or compromise of security and/or breach of confidentiality as a result of email

transmission.

7. Remuneration

a. The Client shall pay SoilSafe Ltd for the Services, unless otherwise agreed in writing, the

remuneration to SoilSafe Ltd for the performance of the Services shall comprise time-based

fees, test fees and the reimbursement of disbursements and shall be subject to a minimum

fee of £200.

b. Amounts quoted in this Agreement exclude any Value Added Tax ("VAT) payable under

law.

c. SoilSafe Ltd reserves the right to revise test fees and hourly rates for time-based fees with

effect from 1 November annually. The revised rates apply to all Services performed on or

after 1 November and to any work ongoing as at 1 November.

8. Time-Based Fees

a. Subject to the provisions of clause 9(c) the rates payable for time-based fees shall be as

specified in the Proposal.

b. Subject to the provisions of clauses 10(c) • (e), the time-based fees shall be calculated

by multiplying the hourly or daily rates applicable to the persons concerned by the number

of hours or days as the case may be spent by such persons in performing those Services.

c. In the event SoilSafe Ltd is required to attend a meeting of experts or a meeting or

conference with the Client's legal or professional advisors, or is required to provide

evidence under oath or to attend legal proceedings (whether to give expert evidence or

otherwise), a minimum of seven hours' time shall be payable for the first day of any such

attendance or provision of evidence. Subsequently a minimum of three hours shall be

payable for each attendance or provision of evidence, however short. Travelling time will

also be payable at the hourly rate applicable to the person concerned. In the event of the

cancellation of a hearing or of legal proceedings, a cancellation fee shall be payable. Where

less than 2 weeks' notice of cancellation is given to SoilSafe Ltd by the Client, the cancellation

fee shall be calculated based on standard hourly or daily rates. For a notice of 2-4 weeks,

the cancellation fee shall be calculated based on 50% of the standard hourly or daily rates

for the time allocated for the attendance of SoilSafe Ltd personnel.

d. Where the Services are to be performed in the UK, daily rates are based on an 8 hour

day. Time in excess is chargeable pro-rata based on the hourly rates applicable. Daily rates

apply to all time spent in places other than SoilSafe Ltd's own offices or laboratories (including

but not limited to time spent on-site) and during mobilisation and demobilisation, including

any delays to scheduled public transportation services. Daily rates shall apply to time spent

on standby when available for work but unable to work due to reasons beyond SoilSafe Ltd's

control.

e. Where the whole or any part of the Services are to be performed outside the UK

("Overseas Work") the daily rates shall be as stated in clause 10(d) but the working day

shall commence and finish at the UK air, rail or seaport with all travelling or working hours

in excess of 8 hours per calendar day being charged pro-rata at the daily rate.

f. Where fees under this Agreement are on a fixed or lump sum basis as specified in the

Proposal, and without prejudice to clause 17(d), if SoilSafe Ltd is required:

(i) to modify and/or revise any completed designs, specifications or reports;

(ii) to carry out additional services (other than the Services); and/or

(ii) is delayed or disrupted in either case for reasons other than any default of

SoilSafe Ltd, then the Client shall pay to SoilSafe Ltd such sum as is fair and reasonable in accordance

with the hourly rates, set out in the Proposal, to cover the additional resources employed by

SoilSafe Ltd in respect of such additional work. 

g. If any additional or varied services are performed as a result of (i) any change in any law

(ii) the UK ceasing to be a member state of the European Union ("Brexit’) and/or (iii) any

delay to and/or the cancellation of Brexit, SoilSafe Ltd shall be entitled to additional payment

and an extension to any agreed programme in accordance with clause 10(f).

9. Report and Test Fees

a. Rates for all reporting and test fees for routine British and other national or international

standard or in-house test procedures cover the testing of materials and products received

from the Client in appropriate sizes and conditions for test and for the provision of one copy of a factual report or certificate devoid of either interpretation or opinion.

b. Time spent and any disbursements incurred in any preparatory work necessary to obtain samples or specimens of the appropriate or specified size and/or condition for test may be chargeable.

c. Test fees shall be charged for all control tests and any other supplementary tests which in SoilSafe Ltd's judgement are necessary to assure the reliability of the test results.

d. Rates for non-standard tests and investigative testing procedures and for preparatory work required pursuant to clause 11 (b) shall be based on time-based fees for the grades of staff involved plus any disbursements.

e. In the event that any test or other equipment is provided on-site by SoilSafe Ltd, the Client shall pay hire-out rates at the prevailing SoilSafe Ltd hire-out rates for ex-stock or hired equipment. Specially purchased equipment may be charged to the Client as a disbursement.

10. Disbursements

a. The Client shall reimburse SoilSafe Ltd in respect of all disbursements reasonably and

properly incurred in the provision of the Services including but not limited to the following:

(I) drawing, production, printing, translation, reproduction, copying (including any necessary

to facilitate in-house reviews and discussions) of documents, drawings, maps, records,

slides and photographs; (ii) Storage and/or removal of test samples beyond two months from the date of the final report. (iii) External contracting or other like services other than those referred to in clause 14. (iv) Provision of second and subsequent copies of Documents. (v) Facsimile, international telephone, car and mobile phone calls. (vi) Courier and postage charges (except in the case of items weighing less than 250g sent by ordinary inland First-Class post). (vii) Visa, medical, mobilisation, travelling, travel insurance, accommodation, subsistence, local transport, demobilisation and all other reasonable expenses together with other related disbursements, provided always• that (a) Travel costs in the UK to include for rail travel (First Class for all professional grade staff), air travel, mileage at Civil Service rates or car hire (whichever is the most appropriate), with hotel accommodation of a standard appropriate to the grade of staff involved; (b) International travel costs to include for Business Class minimum for professional grade staff and for any senior grade technical staff required, and for hotels of international standard for all staff grades. (vii) Any insurance required by the Client or considered essential by SoilSafe Ltd to supplement that normally maintained by it. (ix) For Overseas Work, the cost of any local dues, taxes, or any other imposts, either for individuals or for SoilSafe Ltd as a firm.

b. Disbursements that are settled by SoilSafe Ltd in the first instance will be charged at cost

plus 10%.

11. Budgets, Estimates, Forecasts and Opinions of Cost

a. Where an estimated budget has been provided by SoilSafe Ltd and approved by the Client, SoilSafe Ltd will inform the Client as soon as is reasonably practicable of any expected overrun giving the reasons therefor and requesting authority to continue.

b. In the event that SoilSafe Ltd or its personnel provides any indication of the cost of future work by SoilSafe Ltd, such indications shall not constitute the offer of a fixed fee for the work, except in the case of a written proposal or quotation stating that it is a fixed price.

c. In the event that SoilSafe Ltd or its personnel provides any indication of the cost of future work by a laboratory or sub-contractor ("a Contractor''), such indications shall not be deemed to guarantee that a Contractor will be willing to execute the work at such a cost. SoilSafe Ltd shall use reasonable skill and care in preparing realistic opinions and estimates which indicate the order of magnitude of future costs. The Client acknowledges that the actual cost of such work will be affected by many factors beyond SoilSafe Ltd's control and/or predictability.

12. Sub-Contracting of Tests

SoilSafe Ltd reserves the right to sub-contract tests within the UKAS rules for so doing and for which it does not itself hold UKAS accreditation without referral to the Client. The Client hereby consents to such sub-contracting. SoilSafe Ltd shall integrate such sub-contracted services with its own.

13. Appointment of SoilSafe Ltd as Agent in Relation to Contractors and Third Parties

SoilSafe Ltd may recommend to the Client that additional services are carried out by a

Contractor. The Client irrevocably authorises and appoints SoilSafe Ltd to act as, and have all

the powers of, an agent of the Client in respect of selecting any Contractor and determining

the terms of any contract, entering into any contract and administering any contract with any

such Contractor. If it becomes apparent that substantial extra work or payment shall be

incurred by a Contractor SoilSafe Ltd will inform the Client as soon as reasonably practicable.

SoilSafe Ltd may direct at its discretion whether a Contractor shall invoice the Client directly or

whether the invoice shall be sent to SoilSafe Ltd and paid by SoilSafe Ltd on the Client's behalf.

SoilSafe Ltd shall exercise fairly any discretion as between the Client and a Contractor. The

Client shall indemnify and hold harmless SoilSafe Ltd from and against any claims, liabilities,

costs and expenses incurred by SoilSafe Ltd in connection with anything done as agent for the Client pursuant to this authority.

14. Payment Procedure

a. Invoices shall be submitted on interim and final or final-only basis as deemed appropriate

by SoilSafe Ltd or as may otherwise be requested and agreed and shall be subject to Value

Added Tax where relevant at the prevailing rates.

b. The Client shall pay SoilSafe Ltd each amount invoiced including VAT where applicable

subject to correction of any error ("Notified Sum"). The due date for payment of SoilSafe Ltd's

invoices will be the date of submission of an invoice by SoilSafe Ltd to the Client ("Due Date")

and the final date for payment shall be 30 days thereafter ("Final Date for Payment''). Not

later than 7 days before the Final Date for Payment, the Client may give SoilSafe Ltd a notice

that it intends to pay less than the Notified Sum (a "Pay Less Notice"). Any Pay Less Notice

shall specify the sum that the Client considers to be due on the date the Pay Less Notice is

served and the basis on which that sum is calculated. If the Notified Sum invoiced, or the

sum stated in a valid Pay Less Notice which the Client was entitled to make, is not received

by SoilSafe Ltd by the Final Date for Payment, the Client shall also pay to SoilSafe Ltd simple

interest calculated at the rate of 8% per annum above the base lending rate of the National

Westminster Bank plc.

c. If any part of an invoice is not agreed the Client shall promptly pay the other part(s) of the

Notified Sum by the Final Date for Payment of the invoice. The provisions at 16(b) above in

relation to interest to be accrued shall apply to such remainder and also to the disputed or

questioned items to the extent that they shall subsequently be agreed or determined to

have been due to SoilSafe Ltd.

d. Where the Client is new to SoilSafe Ltd or the Client's office of payment is outside the UK

or where the Services include Overseas Work, the Client shall make an advance payment

of all the estimated fees and disbursements. Advance payment of disbursements and fees

shall be a condition precedent to the commencement of the Services or phase of the

Services.

e. Notwithstanding anything to the contrary contained in this Agreement all sums due under

this Agreement shall be paid in pounds sterling without deductions (including but not limited

to bank charges and transfer fees).

f. Notwithstanding any other provisions of this Agreement and without prejudice to any other

remedy that SoilSafe Ltd might have, in the event of non-payment, if the Client does not pay

to SoilSafe Ltd the Notified Sum or the Sum specified as due in a Pay Less Notice in full by

the Final Date for Payment, SoilSafe Ltd may suspend the performance of any or all of its

obligations under this Agreement by giving not less than 7 days' notice to the Client of its

intention to do so and stating the ground or grounds on which it intends to suspend

performance.

g. SoilSafe Ltd shall be entitled to suspend performance of the Services on 7 days' notice if

due to circumstances outside of SoilSafe Ltd's control; it is impossible or impractical to

perform the Services.

h. Where there is a failure to pay any sum properly due to SoilSafe Ltd the Client agrees to

pay in addition the reasonable costs incurred by SoilSafe Ltd in seeking recovery of such sum.

15. Termination and Delay

a. Either Party may give 14 days' written notice of termination to the other Party.

b. The appointment of SoilSafe Ltd may be terminated in the event of either Party becoming

bankrupt, going into liquidation (either voluntarily or compulsory unless part of a bona fide

scheme of reconstruction or amalgamation), being dissolved, compounding with creditors or

having a receiver, administrative receiver or administrator appointed over either the whole

or part of its assets ("Insolvency"). Notice of termination must be given to the Party which is

insolvent by the other Party.

c. In the event of termination of this Agreement the Client shall pay SoilSafe Ltd a fair and

reasonable amount on account of the fees due under clauses 10 and 11 commensurate

with the Services performed to the date of such termination and any outstanding

Disbursements due under clause 12, together with any costs of repatriation of any

SoilSafe Ltd personnel. If a fair and reasonable amount cannot be agreed between SoilSafe Ltd

and the Client, then the issue will be determined under clause 24 'Dispute Resolution'.

d. Except in the event of any termination by the Client following a breach of this Agreement

by SoilSafe Ltd or the Insolvency of SoilSafe Ltd, the Client will also pay SoilSafe Ltd a sum for

loss and costs of disruption (calculated on the basis of the loss to SoilSafe Ltd of fees for

services which the Client had asked SoilSafe Ltd to provide and the costs to which SoilSafe Ltd

is committed in respect of future planned work).

e. Termination of SoilSafe Ltd's appointment under this Agreement shall not prejudice or

affect the accrued rights or claims of either Party to this Agreement.

f. Upon such termination, SoilSafe Ltd may retain any Documents they have prepared or are

in the course of preparing for the Client until payment in full has been received.

16. Professional Liability

Notwithstanding any other provisions of this Agreement, the total liability in aggregate of

SoilSafe Ltd under or in connection with this Agreement, whether in contract or in tort, in

negligence or for breach of statutory duty or otherwise (other than in respect of death or

personal injury) shall be limited to the lesser of a) ten times the total fee (exclusive of Disbursements and VAT) paid and/or due to SoilSafe Ltd under this Agreement; or

b) one million pounds plus half the total fee (exclusive of Disbursements and VAT) due

under this Agreement. The liability of SoilSafe Ltd hereunder for any claim or claims shall be further limited to such sum as would be just and equitable for SoilSafe Ltd to pay having regard to its responsibility

for the loss and damage suffered and on the basis that: (I) all other persons providing

professional services, design management or financial services (or labour or materials or

plant or equipment for incorporation in works) related to the Task or executing such works

or any part thereof shall be deemed to have provided contractual undertakings on terms no

less onerous than those set out in clause 4 of this Agreement to the Client (whether or not

they have been so provided to the Client) in respect of the provision of their services or

labour or materials or plant or equipment in respect of executing such works or any part

thereof; and (ii) there are no exclusions or limits of liability nor joint insurance or coinsurance

provisions between the Client and any other party referred to in this clause and

any such party who is responsible to any extent for the loss or damage is contractually

liable to the Client for the loss and damage; and (iii) all other parties referred to in this

clause shall be deemed to have paid to the Client such proportion of the loss and damage

which it would be just and equitable for them to pay having regard to the extent of their

responsibility for the loss and damage. The Client shall indemnify and hold harmless

SoilSafe Ltd from and against any claims, liabilities, costs and expenses in excess of the limit

calculated as aforesaid. SoilSafe Ltd shall not in any circumstances be liable in contract, in

tort (including negligence), for breach of statutory duty or otherwise for (a) any loss of

investment, loss of contract, loss of production, loss of profits, loss of time or loss of use;

and/or (b) any consequential or indirect loss sustained by the Client.

17. Expiry of Liability

No action or proceedings under or in connection with this Agreement whether in contract or

in tort, in negligence or for breach of statutory duty or otherwise shall be commenced

against SoilSafe Ltd after the expiry of 6 years from the date of completion of the Services or

such earlier date as may be prescribed by law.

18. Individual Liability

Save in respect of personal injury or death the Client shall look only to SoilSafe Ltd (and not to

any employee or member of SoilSafe Ltd) for redress if the Client considers that there has

been any breach of this Agreement. The Client agrees not to pursue any claims in contract,

tort or statute (including negligence) against any employee or member of SoilSafe Ltd as a result of their work in assisting SoilSafe Ltd provide Services under this Agreement at any time and whether expressly named in this Agreement or not.

19. Assignment and Sub-Letting

Neither Party shall assign sub-let or otherwise transfer any obligation or benefit under this Agreement without the prior written consent of the other Party which consent shall not

unreasonably be delayed or withheld. Assignment shall be by absolute legal assignment only.

20. Asbestos

a. SoilSafe Ltd is not responsible under this Agreement or otherwise for designing or advising on or otherwise taking measures in any way relating to asbestos or any structure, building, product, waste or other material that contains asbestos (including without limitation testing for, monitoring, abatement, mitigation , removal, remediation or disposal of asbestos or any product or waste that contains asbestos). '

b. Further and notwithstanding anything to the contrary contained in this Agreement and without prejudice to the generality of clause 19, save in respect of personal injury or death,

any liability whether in contract or in tort, in negligence, for breach of statutory duty or otherwise, for any claim for loss or damage wholly, partly, directly or indirectly arising out of or resulting from or associated in any way with asbestos or any product or waste that contains asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or any product or waste that contains asbestos) is excluded.

c. The Client shall indemnify and keep indemnified SoilSafe Ltd against any and all actions,

claims, demands, proceedings, costs, expenses, fines, losses and liabilities for injury,

death, loss or damage wholly, partly, directly or indirectly arising out of or resulting from or

associated in any way with asbestos or any structure, building, product, waste or other material that contains asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or any structure, building, product, waste or other material containing asbestos).

21. Dispute Resolution

If any dispute arises in connection with this agreement, a director or other senior representative of the Parties with authority to settle the dispute will, within 30 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

22. English Law

This Agreement shall be deemed to have been made in England and shall be governed by and construed in accordance with the laws of England and Wales and each party hereby submits to the exclusive jurisdiction of the Courts of England and Wales.

23. Notices

Any notice to be given under this Agreement shall be in writing and given by sending the same by fax or by first class letter to the Client or SoilSafe Ltd at their registered addresses. Notices shall take effect when they have been received by the Client or SoilSafe Ltd as the case may be.