THE SUPPLIER DOES NOT WARRANT THE VERACITY OF ANY INFORMATION PROVIDED BY IT IN RESPECT OF THE SERVICES.
DOCUMENTATION AND MATERIALS (AND CONTENTS PROVIDED IN RESPECT OF THE SERVICES ARE THEREIN) ARE FOR INFORMATION PURPOSES ONLY AND RELATE ONLY TO THE PROPERTY.
The Customer’s attention is particularly drawn to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
|“Owner”||the owner of the Property.|
|“Property”||the property or site in relation to which the Services are to be conducted as specified on the Purchase Order Form.|
|“Services”||the services, supplied by the Supplier to the Customer as set out in the Purchase Order Form.|
|“Supplier”||Groundsure trading as Mining Searches UK, a limited company registered in the UK with company number 03421028.|
|“Terms & Conditions for Property Owners”||means the terms and conditions entered into by the Owner with the Supplier in relation to the Investigation.|
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its personal representatives, successors or permitted assigns; any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written does not include fax.1.2 Construction. In these Conditions, the following rules apply:
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Subject to clause 2.5, these conditions, together with the Purchase Order Form (once approved by the Supplier) constitutes the entire agreement between the Customer and the Supplier. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract. This clause 2.3 shall only apply if the Customer is a Business.
2.4 Where the Customer is a Business, subject to term 2.3 and 2.5, these Conditions and the Purchase Order Form provided by the Supplier apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Where the Customer is the Owner and the Services involves physical investigation works at the Property, the Supplier also agrees to the Terms & Conditions for Property Owners.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Contract in all material respects and using reasonable care and skill, and in accordance with the Purchase Order Form.
3.2 The Supplier shall use reasonable endeavors to meet any performance dates specified in writing between the Customer and Supplier before the Supplier’s acceptance of the Order, but any such dates
shall be estimates only and unless the Customer and the Supplier have agreed otherwise, a failure to comply with such estimates shall not entitle the Customer to terminate this Contract.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 Any Mining Archive Report is provided to the Customer subject to the following:
3.4.1 The Supplier is not responsible for the accuracy of any information or data used to compile a Mining Archive Report. No promise of any kind, is given in relation to the data used to compile the Mining Archive Report, including any promise of accuracy, merchantability or fitness for the Customer’s purpose.
3.4.2 The Customer recognizes that data used to compile Mining Archive Reports are provided in part by a third party so may be historical in nature, may contain inaccuracies and may not be complete. Accordingly, the Supplier gives no promise as to the completeness or quality of the data.
3.4.3 Error in or corruption of information is possible from a number of causes including, but not limited to, inaccuracy or omission in primary or secondary information, inaccurate processing of information, computer malfunction or corruption of data whilst in the course of conversion, processing by computer or electronic means in the course of transmission by electronic communication link, or printer malfunction. The Supplier cannot accept any liability whatsoever arising out of error, delay or corruption of information arising due to circumstances beyond its control. The Supplier is not responsible for any loss or damage arising as a result of any error, omission or inaccuracy in the information where such error, omission or inaccuracy is caused by any data provided by the Company or any third party including a Customer or any reasonable interpretation of data provided by the Company or any third party.
3.4.4 Mining Archive Reports are prepared for the benefit of the Customer only and the information in them is confidential. Ownership in any report prepared for the Customer remains with the Supplier until the Price has been paid to the Supplier. The Customer shall not share the contents of the Mining Archive Report with anyone other than their legal advisers without the written consent of the Supplier.
3.4.5 The Supplier reserves the right to use any information or material obtained in the course of preparing the Mining Archive Report for any other purpose and without restriction.
3.4.6 In providing search reports and services the Supplier will comply with the requirements of the Council of Property Search Organisations Search Code or such other trade association in respect of which the Supplier is a member.
3.4.7 Where the Supplier is requested to undertake a Coal Mining Report, the Supplier accepts liability for any loss sustained by the Customer if any adverse entries relating to coal mining activity are revealed, where the Supplier has failed to identify those adverse issues which were present in the data supplied by The Coal Authority. For the avoidance of doubt, the Supplier does not accept liability for errors or omissions in the data supplied by The Coal Authority.
3.5 With regard to contaminated land investigations, the following provisions will apply.
3.5.1 The Supplier is not obliged to advise the Customer as to the actual or potential presence of pollution or contamination or as to the risks of such matters having occurred being present or occurring in the future. The Supplier shall not have any duty to consider such matters as influencing any aspect of the provision of the Services except where the Supplier has specifically agreed, in writing, to provide such advice or consideration.
3.5.2 Where the scope of the Services includes a site or environmental assessment, audit, review or investigation which includes the interpretation, interpolation or extrapolation of data from discrete sampling locations and/or discrete times, the Customer accepts and agrees that these
data may not represent actual conditions between these locations or between these times and that the Supplier’s conclusions and recommendations based on such data are statements of professional opinion and not statements of fact.
3.5.3 The Supplier’s investigations will reveal only information which is available at the time of conducting the investigation. Whilst the Supplier will carry out such Services and provide its conclusions and recommendations with reasonable skill, care and diligence, the Supplier accepts no liability if the actual conditions between the locations and times is different to the Supplier’s conclusions or recommendations.
3.6 If the Supplier is to undertake any on-site investigation works. The Supplier’s onsite Terms and Conditions will also apply.
3.7 The Supplier shall not, (unless otherwise notified to the Customer in writing), undertake any survey for hydraulic fracturing; advise on flood risk; advise on Mineral Planning Permissions/Mineral Rights ; Archaeological survey; or Ecological survey [Other exclusions].
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides subsequently to the Supplier are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services and 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 accurate in all material respects;
4.1.3 ensure that any decisions of, or instructions from, the Customer are provided within a reasonable time to ensure that there is no undue delay to the provision of the Services by the Supplier; and
4.1.4 decide on the extent of any pollution and contamination investigation that may be necessary and to investigate whether pollution or contamination may affect the provision of the Services or any site to be used by the Supplier in providing the Services.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Breach”):
4.2.1 the Supplier shall, in addition to its other legal rights, have the right to suspend performance of the Services until the Customer remedies the Customer Breach, and to rely on the Customer Breach to relieve it from the performance of any of its obligations to the extent the Customer Breach prevents or delays the Supplier’s performance of any of its obligations;
4.2.2 the Supplier shall not be responsible for any costs or losses incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Breach.
4.3 If the Customer is a Business, the Customer warrants that it has insurance in place to cover any losses the Customer may suffer in connection with the Services, and/or otherwise in connection with this agreement and that the Customer will make a claim on its insurance in the first instance should it suffer any damage or loss in connection with the Services and/or this agreement.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services (including any Investigation) shall be on a time and materials basis:
5.1.1 the Charges shall be as calculated as set out in the Purchase Order Form.
5.1.2 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, 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.
5.2 The Supplier reserves the right to adjust any fee estimate provided to the Customer from time to time. The Supplier reserves the right to cease investigations and reassess the estimated price for any Services where investigations reveal features, either natural or man-made, which affect the provision of the Services.
5.3 The Supplier reserves the right to increase its standard daily fee rates, provided that such charges cannot be increased more than once in any 6 month period. The Supplier will give the Customer written notice of any such increase four weeks before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within one week of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 5 days written notice to the Customer.
5.4 The Customer shall pay each invoice submitted by the Supplier within 21 days of the date of the invoice and in full and in cleared funds to a bank account nominated in writing by the Supplier.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer 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.
5.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclay’s Bank Plc’s base rate from time to time. Such interest shall accumulate on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
5.8 The Supplier reserves the right to obtain funds in advance before undertaking any work.
5.9 If the Customer thinks an invoice is wrong, it should promptly contact the Supplier to let it know. The Customer will not have to pay interest until the dispute is resolved.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier. The Supplier grants to the Customer a non-exclusive licence of Intellectual Property Rights arising out of the Services.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.3 All materials supplied by the Supplier will remain the exclusive property of the Supplier.
6.4 The Supplier may, acting in its sole discretion, and for a fee to be agreed, grant a licence of such materials to be disclosed to others to be used for other purposes (including, without limitation, any reports).
7. DATA PROTECTION
7.2 If the Customer is a Business, it warrants that it has the correct permissions in order to pass any personal information about the person ordering the mining search and/or the property owners to the Supplier and the Customer will show the Supplier such permissions at our request.
8.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall run for the duration of the agreement and survive termination of the Contract for a period of 5 years.
8.2 Any report or deliverable arising from the Services is confidential to the client named thereon and their professional advisers. The Supplier accepts no liability to any party not named on such report or deliverable. The report or deliverable may not be copied or distributed without the Supplier’s consent. The report or deliverable applies to the Property only and shall not be used for interpreting the condition of any other property.
9. LIMITATION OF LIABILITY- THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or any other liability it would be unlawful to limit or exclude.
9.2 Subject to clause 9.1:
9.2.1 Where the Customer is a Business:
2.1.a. the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
2.1.b. the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £[2,000,000].
2.1.c. The Supplier shall only be liable to the Customer for any sum representing a shortfall between any insurance proceeds paid to the Customer in accordance with clause 4.3 and the losses suffered by the Customer, or such other sum as is agreed between the parties
c. the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.2.2 if the Customer is a Consumer, the Supplier’s total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed
£[2,000,000]; or such other sum as may be agreed in writing between the parties.
9.3 The Supplier shall not be liable for any costs or impacts on effectiveness of the Services which could not have been reasonably foreseen and/or avoided. In particular, in respect of any Investigation, the Supplier accepts no liability for any factors which may impact on the cost or effectiveness of the Services (including the Investigation) which were known to but not divulged by the Customer and/or the Owner.
9.4 This clause 9 shall survive termination of the Contract.
10. ENDING THE CONTRACT
10.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1 the other party commits a serious breach of any term of the Contract and (if such a breach can be remedied) fails to remedy that breach within 7 days of that party being notified in writing to do so;
10.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.4 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
10.1.5 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.1.6 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.2 to clause 10.1.5 (inclusive);
10.1.7 the other party (being an individual) is the subject of a bankruptcy petition or order, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.2 Without limiting its other rights, the Supplier may end the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.
10.3 Without limiting its other rights or remedies, If the Customer does not pay the Business for the Services when it is supposed to, and it still does not make payment within 14 days of the Supplier reminding it that payment is due, the Supplier may suspend supply of the Services until the Customer has paid the outstanding amounts. The Supplier will contact the Customer to tell it that it is suspending supply of the Services. The Supplier will not suspend the Services where the Customer disputes the unpaid invoice. The Supplier will not charge the Customer for the Services during the period for which they are suspended.
10.4 If the Customer is Consumer and the Supplier receives the instructions other than in a face to face meeting at the Supplier’s premises, Under the current legislation the Customer generally has the right to cancel those instructions without any cost to the Customer within 14 days of the day after the Customer receives these Terms and Conditions. If however the Customer has asked the Business to begin to provide the Services within that 14 day period, the Customer must pay for Services provided even if the contract is later cancelled. The payment must be:
10.4.1 based on the supply of the Service for the period for which it is supplied, ending when the Supplier is notified of the Customer’s decision to cancel.
10.4.2 in proportion to what has been supplied in comparison with the full contracted Service.
10.5 To cancel the Contract under clause 10.4 the Customer must deliver a notice in writing to us stating that it wishes to cancel the Contract. It may use post, fax, email, or personal delivery.
11. CONSEQUENCES OF THE CONTRACT ENDING
11.1 On the ending of the Contract for any reason:
11.1.1 the Customer 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 Customer immediately on receipt;
11.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at its end shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of it ending; and
11.1.4 clauses which expressly or by implication survive the ending of this Contract shall continue in full force and effect.
12. EVENTS OUTSIDE OF THE CONTROL OF THE SUPPLIER
12.1 For the purposes of this Contract, “Events outside the control of the Supplier” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or breach of contract of suppliers or subcontractors.
12.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of an Event outside the control of the Supplier. If an Event outside the control of the Supplier prevents the Supplier from providing any of the Services for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13. OTHER IMPORTANT TERMS
13.1 Transfer of the agreement to third parties.
13.1.1 The Supplier may at any time transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights and obligations under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. Where the contract is transferred to a third party the Supplier will ensure the Customer’s rights are not affected.
13.1.2 The Customer shall only transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract with the prior written consent of the Supplier.
13.2 Contact arrangements.
13.2.1 Where the Customer is a business,
2.1.a. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier.
2.1.b. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2.1; if sent by pre-paid first class post or other next working day delivery service, at midday on the second
Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
13.2.2 Where the Customer is a Consumer the parties may contact each other using such details as the other party has supplied.
13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 If a court finds part of this contract is illegal, the rest will continue in force 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 shall not affect the validity and enforceability of the rest of the Contract.
13.4 Delay in enforcing the Contract. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach of the Contract . No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
13.8 Governing law and jurisdiction. These terms are governed by English law and either party can bring legal proceedings in respect of the Services in the English courts. If the Customer is a consumer and lives in Scotland it can bring legal proceedings in respect of the Services in either the Scottish or the English courts. If the Customer is a Consumer and lives in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
13.10 Independent Dispute Resolution. If the Customer makes a complaint and the Supplier is unable to resolve it to the Customer’s satisfaction the Customer may refer the complaint to The Property Ombudsman scheme (web site www.tpos.co.uk, email: firstname.lastname@example.org). The supplier will co-operate fully with the Ombudsman during an investigation and comply with the Ombudsman’s final decision.