1. INTRODUCTION
1.1 Terms and conditions of business applying to the provision of services by ERD Engineering Inspections Ltd, registered in England and Wales with company number 05653975 (hereafter referred to as ERD or supplier or we or us) to the person or company buying the services (hereafter referred to as you/r or customer).
1.2 Please carefully read the terms and conditions that apply to our appointment by you, as they affect your legal rights. Your agreement to accept and be bound by these terms and conditions is deemed to occur when you accept our quotation or from the commencement date (whichever happens earlier).
1.3 These terms and conditions, our quotation and any contracts are the entire agreement between us and are to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealings.
1.4 The customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the supplier which is not set out in the contract.
1.5 We reserve the right to amend these terms and conditions from time to time as required or in accordance with clause 13.5.
In these conditions the following definitions apply:
2.1 Business Day - means any day other than a Saturday, Sunday or bank holiday in England and Wales.
2.2 Fees - the charges that are payable by the customer for the supply of service in accordance with clause 5.
2.3 Supplier - refers to ERD Engineering Inspections Ltd, it's employees, agents, consultants or sub-contractors.
2.4 Customer - refers to the person engaging the services of the supplier - a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.5 Competent Person - a person having such appropriate knowledge and experience to carry out a thorough examination of plant in accordance with legislation and to assess for defects, weaknesses and their importance in relation to the safety of the plants continued use.
2.6 Quotation - the document outlining the specification and costs for carrying out the services required as per the schedule of plant. Any quotation given by the supplier shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
2.7 Order - the order constitutes an offer by the customer to purchase services in accordance with the quotation or schedule of plant. 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).
2.8 Contract - the agreement between ERD and the customer to supply services in accordance with either the quotation or schedule of plant.
2.9 Commencement Date - the date on which the contract comes into existence, this is either the date of acceptance of our quotation or the first date of any performance of services (whichever happens earlier).
2.10 Renewal Date - the date 12 months from the commencement date and each 12 month anniversary thereafter unless expressly stated otherwise.
2.11 Services - the engineering plant inspection services supplied by the supplier to the customer as set out in the schedule of plant.
2.12 Plant - any plant belonging to the customer which will be subject to the services as described in the schedule of plant.
2.13 Schedule of Plant - the document listing all of the plant belonging to the customer that is to be included in the services.
2.14 Content - any text, graphics, logos, images, audio, video, software, data compilations, page layout, underlying code and software.
2.15 Force Majeure - an event causing the failure or delay in performing our obligations as a result of any cause that is beyond the reasonable control of either party. Including but not limited to industrial action, civil unrest, acts of God (fire, flood, storm or earthquake) acts of terrorism, acts of war, failure of a utility service or transport network, malicious damage, governmental action or compliance with any law or governmental order, accident, breakdown of plant or machinery, or default of suppliers or subcontractors. Or any other event that is beyond the control of either party.
2.16 A reference to writing or written includes faxes and e-mails.
3. SERVICES
3.1 Provision of services by ERD will be provided to the customer in accordance with the quotation and/or schedule of plant in all material respects.
3.2 We warrant that we will use reasonable care and skill in our performance of the services which will comply with the quotation or any specifications.
3.3 We will use our reasonable endeavours to complete the performance of services within the time agreed, however, any date will be estimate only and time will not be of essence in the performance of our obligations.
3.4 The purpose of the services is to identify and assess defects in the workings of the plant and where required by regulation the deterioration that affects the safety of the plant, but not defects in existing designs or in any proposed design changes. The supplier will not undertake the approval or the verification of the fitness for purpose of any design or design features of the plant or any part of the plant and observations and recommendations made by the competent person on aspects of a design that affects safety, shall not imply that the supplier accepts any responsibility for the fitness for purpose of the design. It is solely the customers obligation to ensure that the design of its plant and any part of it is fit for purpose and reasonably safe.
3.5 We can make 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 service. We will notify you of this if necessary.
4. CUSTOMER OBLIGATIONS
4.1 ERD reserve the right to suspend services should they be unable to meet any of their obligations under the contract due to the failure of the customer to meet the obligations set out in the terms and conditions. The supplier accepts no liability as set out in clause 9. Please note: Default of the customer under the terms and conditions shall incur a cancellation fee as specified in clause 5.8.
The Customer shall:
4.2 Ensure that the terms of the order and any information it provides in the specification are complete and accurate.
4.3 Notify the supplier of additions to the schedule of plant or of plant that is permanently withdrawn. Any amendments must be notified in writing as soon as possible and no less than 21 days prior to the commencement of the contract. We will use reasonable endeavours to make any required changes and additional costs will be included in the fee and invoiced to you. In the event of a failure to provide sufficient notification of amendments a fee will be charged as per clause 5.8.
4.4 Give us access to any and all relevant information, properties and other matters which are needed to supply the service and ensure that such information is accurate in all material respects.
4.5 The customer warrants that any plant contained with in the schedule of plant due for inspection under the terms of service is made available at the time of service. Any plant not available may still be charged for and no liability will be accepted in relation to any penalties incurred by the customer for failure of service.
4.6 Provide access to the supplier to the customers premises as is necessary for the inspection of any equipment.
4.7 Have the plant properly cleaned and prepared for examination and shall reassemble the plant afterward.
4.8 Prepare the customer premises for the supply of services and render all assistance reasonably required by the supplier in carrying out the examinations.
4.9 Provide the supplier with safe access where required. Including but not limited to access platforms, scaffolding and safety lines.
4.10 Co-operate with the supplier in all matters relating to the services.
4.11 Obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the services are to start.
4.12 Have in place up to date Health and Safety procedures relating to the plant, its access and location including emergency rescue plans where applicable and provide the supplier with any relevant safety apparatus as required by legislation or recommended in good health and safety practice.
4.13 The customer is responsible (at its own cost) for the care, custody maintenance, repair and control of the plant at all times.
5. FEES
5.1 The fees for services are set out in the quotation or as per our agreed schedule of rates.
5.2 All fees are exclusive of VAT and other levies imposed by any authority.
5.3 ERD reserve the right to revise the quotation or invoice the customer for additional work in the following circumstances, these will be charged in accordance with clause 5.7:
5.3.1 We are required to undertake additional work not forming part of the original quotation
5.3.2 We are required to attend an alternative site not previously agreed.
5.3.3 Upon initial inspection of the plant it is apparent that the original fee quoted is incorrect.
5.3.4 Should a return visit be required due to the failure of the customer to present plant for inspection at the time of service.
5.3.5 There is a change to the original instructions received from the customer.
5.3.6 The supplier is unable to complete the services due to a breach of these conditions by the customer.
5.3.7 The supplier is required to provide services, at the customers request, outside of normal working hours or on a Saturday, Sunday or Bank Holiday, as per clause 5.8.
5.4 The annual fee or schedule of rates will be reviewed prior to each renewal date, such review shall be based upon the suppliers current charges, the assets and the scope of services to be provided.
5.5 In addition to fees, we can recover from you reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses. Unless in an emergency these fees will be agreed upon in advance of the commencement of any services.
5.6 Any services provided by third parties as required by us for the performance of the services are to be charged to the customer, with the addition of our handling fee as agreed in the quotation or as per our schedule of rates.
5.7 Should the supplier be required to provide services outside of the normal business day, urgent services, services outside of the scheduled service frequency or services other than those specified in the quotation, these shall incur a minimum site visit cost equating to half the standard daily rate in addition to the normal service charge.
5.8 Cancellation and Penalties fee is equivalent to half the standard daily rate in addition to the normal service charge. The customer shall reimburse the supplier any other reasonable costs or losses sustained or incurred arising directly or indirectly from the customer default.
5.9 The suppliers standard daily fee rates are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on business days.
5.10 The supplier reserves the right to charge the customer for the provision of additional copies of examination reports or other paperwork.
6. PAYMENT
6.1 We will invoice you for payment of fees either:
6.1.1 When we have completed the services.
6.1.2 Or on the invoice dates as set out in the quotation.
6.2 All fees due are payable by the customer within 30 days from date of our invoice or otherwise in accordance with any credit terms agreed between us.
6.3 All invoices are to be paid in full, without deduction or withholding except as required by law. The customer may not assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount in part or whole. The Supplier may, 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.
6.4 All payments are to be made British Pounds and in cleared funds to the suppliers business bank account as stated on the invoice.
6.5 Should the customer fail to make payment to the supplier under the contract by the due date for payment, the supplier shall have the right to charge interest on the overdue amount at a rate of 5% per annum above the then current base rate of the Bank of England, accruing on a daily basis from the due date until the date of actual payment of the full overdue amount.
6.6 Failure to pay within the time period above may result in the suspension of any further provision of services or cancellation of future services which have been ordered or otherwise arranged by you.
6.7 Receipts for payment will be issued by us only at your request.
7. CANCELLATION AND AMMENDMENT
7.1 We reserve the right to withdraw, cancel or amend a quotation if it has not been accepted by you, or if services have not started, within a period of 14 days from the date of the quotation.
7.2 If, due to circumstances beyond our control, we have to make any changes to the services or how they are provided, we will notify you immediately.
7.3 Either party may cancel the order for any reason with a minimum of 30 days notice prior to the commencement of services. Notification of cancellation by either party is to be given in writing. In the event of a failure to provide sufficient notification of cancellation a fee will be charged in accordance with clause 5.8.
7.4 The supplier may decline to carry out the service if, in our opinion, to do so would pose a risk to the health, safety or welfare of the competent person, to the customer or to any other person who may be affected. In the event of such an occurrence a penalty charge will be incurred as per clause 5.8.
7.5 A service is considered abortive should the competent person be delayed from commencing an inspection by more than 30 minutes due to a failure on behalf of the customer to meet any of their obligations or to prepare or make plant available in accordance with these conditions on a pre agreed date and time. The service will be re-arranged and the customer will be charged a cancellation fee for abortive visit as per clause 5.8.
7.6 We may cancel the provision of services with immediate effect if the customer:
7.6.1 Commits a material breach of the contract or your obligations under these terms and conditions. If such a breach is remediable you will have 30 days from being notified in writing to remedy the breach.
7.6.2 The customer or any employee, agent, contractor or other such person associated with the customer behaves in a threatening or abusive manner towards the Competent Person or any other employee, agent or contractor of the supplier. Any such threatening or abusive behaviour shall constitute a material breach of the contract on the part of the customer.
7.6.3 Are or become, or in our reasonable opinion are about to become the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor.
7.6.4 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.
7.6.5 Suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business.
7.6.6 In the event of death 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.
7.6.7 You fail to pay any amount due under this contract on the due date for payment.
7.7 In the event of a cancellation by either party as laid out above, any cancellation fee and fees chargeable for services rendered up to the date of termination, including any interest accrued, shall be immediatley paid by the customer.
7.8 The accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry.
7.9 Terms and conditions which expressly or by implication have effect after the cancellation of the contract shall continue in full force and effect.
8. INTELLECTUAL PROPERTY
8.1 Our intellectual property rights include but not limited to: any business names, domain names, logos, photographs, diagrams, trademarks and database.
8.2 We reserve all copyright and any other intellectual property rights which may subsist in connection with the provision of services and the use of our website or portal.
8.3 All content included in the provision of our services or on the website is the property of ERD Engineering Inspections Ltd, our affiliates or other relevant third parties.
8.4 By continuing to use our services or the website or portal you acknowledge that any content is protected by copyright, trademarks, database rights and other intellectual property rights.
8.5 You may, for your own use, retrieve, display and view any content of the website or paperwork in relation to the services provided.
8.6 You may not otherwise reproduce, modify, copy, distribute or use any content, trademark, logo without written permission or in agreement with the Copyright, Designs and Patents Act 1988.
8.7 We reserve the right to take appropriate action to restrain or prevent the infringement of our copyright and intellectual property rights.
9. LIABILITY AND INDEMNITY
Our liability under these terms and conditions and in breach of statutory duty, and in tort, misrepresentation or otherwise, shall be set out in this section.
9.1 The total amount of our liability is limited to the total amount of fees payable by you under the contract.
9.2 You must indemnify us reasonable costs against all damages, costs, claims and expenses suffered by us for any loss or damages, including but not limited to equipment, caused by you, your agents, subcontractors or employees.
9.3 We accept no liability, whether caused by our employees, agents or otherwise, for any indirect, special or consequential loss, damage, costs or expenses occurring as a result of the provision of our services or the performance of any of our other obligations.
9.4 We are not liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, in connection with the provision of our services, whether caused by our employees, agents or otherwise for:
9.4.1 Any loss of, or anticipated loss of profits, loss of business or business interruption or loss of reputation or goodwill.
9.4.2 Any delay or failure to perform our obligations as a result of force majeure, If the delay continues for a period of 90 days, either party may terminate the contract. Notice of termination mut be given in writing with no less that 14 days notice.
9.4.3 Any losses, whether directly or indirectly, caused by any failure to comply with or breach in relation to your obligations.
9.4.4 Any loses arising, directly or indirectly, from your choice of services and how they meet your requirements.
9.5 It is the responsibility of the customer to ensure that any inspections that are required by law or any industry regulation to be undertaken by a set date are undertaken on time, ERD accept no liability for any fines or penalties incurred as a result of any failure on the customers part to meet any such dates.
9.6 Nothing in these terms and conditions shall limit or exclude our liability for death or personal injury caused by the suppliers negligence or for any fraudulent misrepresentation or for any other matters where it would be unlawful to exclude or limit liability.
10. DATA PROTECTION
10.2 The parties agree that where such processing of data occurs, ERD shall be the data as defined in the General Data Protection Regulations (GDPR).
10.3 For the avoidance of confusion the terms "personal data" "processing" "data controller" "data processor" and "data subject" shall have the same meaning as in the GDPR.
10.4 ERD will only process data as reasonably required to enable the supply of the services. We will not process any data for our own purposes outside of the provision of service or for any third party purposes.
10.5 ERD will not disclose data to any internal employees, agents, subcontractors or other third parties other than on a strict need to know basis and only under the conditions as set out in applicable legislation or regulations.
10.6 Further information regarding ERDs approach to Data Protection are specified in our Data Protection Policy. For any enquiries regarding data protection please contact us.
11. USE OF WEBSITE AND CUSTOMER PORTAL
11.1 Our website may contain links to other sites, unless expressly stated, the sites are not under the control of ERD, we accept no responsibility for the content of such websites and disclaim liability for any and all forms of loss or damgae arising from their use.
11.2 Any online facilities, tools, services and information that ERD makes available through the website is provided as is. We use reasonable endeavours to ensure the website and portal are free from errors, viruses and other malware, we accept no liability for loss of use or corruption of software, data or information, in that regard all users take responsibility for their own security.
11.3 We accept no liability for any disruption or non availability of the website or portal.
11.4 We reserve the right to alter, suspend or discontinue any part, or the whole of the website. All terms and conditions will continue to apply to any modified version of the website.
11.5 You may not use the website for any of the following purposes:
11.5.1 In any way that causes or may cause damage to, disable or impair the website or interfere with the use by others of the website.
11.5.2 In any way which is unlawful, illegal, abusive, threatening, harassing or harmful
11.5.3 Making copies, transmitting or otherwise storing data or content of the website or show publicly any part of the website without permission from the owner or in agreement with the Copyright, Designs and Patents Act 1988.
11.5.4 In any way that is in breach of any law, regulation or governmental order.
12. SUBCONTRACTING AND ASSIGNMENT
12.1 We can at any time subcontract or delegate any or all of our obligations to any third party with all or any of our rights under these terms and conditions.
12.2 You must not, without our prior written consent, assign, transfer or subcontract or deal in any other manner all or any of your rights or obligations under these terms and conditions.
12.3 Further information regarding ERDs approach to subcontracting are specified in our Subcontracting Policy. For any enquiries regarding our policies please contact us.
13. DISCLAIMERS AND GENERAL
13.1 Waiver - No failure, delay or omission by a party in exercising any right or remedy under the contract or by law will be deemed a waiver of that or any other right or remedy, nor stop its further exercise. A waiver of any right under the contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.
13.2 Severance - If one or more of these terms and conditions is found to be unlawful, invalid or otherwise unenforceable in a court or by any other competent authority, that/those provisions will be deemed severed from the remainder of these terms and conditions, all other clauses within these terms and conditions remain valid and enforceable.
13.3 Unless specifically provided otherwise, rights arising under the contract are cumulative and do not exclude rights provided by law.
13.4 Law and Jurisdiction - This agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
13.5 Variation - Except as set out in these conditions, any variation, including the introduction of any additional terms and conditions, to the contract, shall only be binding when agreed in writing and signed by the supplier.
13.6 Nothing in the contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third Parties - A company or person who is not party to the contract shall not have any rights under or in connection with it.
13.8 Privacy Policy - All services, our website and portal are also governed by our Privacy Policy, which is incorporated into these terms and conditions by this reference. ERDs Privacy Policy is available on our website or upon request.
14. COMMUNICATION
14.1 All notices or other communication under these terms and conditions must be in writing and signed by, or on behalf of, the party giving notice.
14.2 All notices must be addressed to the most recent address, email address or fax number as notified to the other party.
14.3 Notices shall be deemed to have been duly given if:
14.3.1 Delivered personally.
14.3.2 On the fifth business day following mailing, if mailed by ordinary mail.
14.3.3 If sent by fax or email, when a successful transmission report or return receipt is generated.
14.3.4 When delivered, if delivered by courier or other messenger or registered mail during the normal business hours of the recipient.
15. REGISTRATIONS, POLICIES, PROCEDURES AND RAMS
15.1 RAMs for any service applicable to yourselves can be provided upon request.
15.2 ERD and/or its individual employees are registered members of several trade associations and governing bodies, these do no apply to subcontractors.
15.3 ERD Engineering Inspections Ltd works to ISO 9001 quality standards - Further information regarding any or all of ERDs Policies and Procedures can be found in our Integrated Management System Document. For further information please contact us.
16. CONTACT INFORMATION
If you need further information, please contact us:
ERD Engineering Inspections Ltd
Bailea Cottage
Llandrindod Wells
Powys
LD1 5UF
Phone: 01597 850046/07874 959093
Email: erd@erd-eng.co.uk
Registered in England and Wales - company number 05653975.