1. Where quotations are based on information provided by the client, any deviations from information received for estimating purposes may result in additional fees, unless a representative of EMS has visited the site.
2. Our quotation is exclusive of Value Added Tax (VAT) unless stated. VAT will be added to our invoice at the current rate.
3. No work will commence until a written order has been received by post, email or fax. In some circumstances a verbal instruction may be acceptable. Such an instruction is considered an acceptance of our quotation and these terms & conditions.
4. Availability of resources, where quoted, is an estimate based on the programme of work in hand at the time of quotation and it should be noted this can vary from day to day. Time slots will not be allocated until an instruction is received. Where the starting date is critical it should be verified at the time of placing an order.
5. Once a job has been confirmed and a purchase order has been issued and subsequently the job is cancelled at short notice we reserve the right to issue a cancellation charge.
6. EMS has a commitment of confidentiality to our clients and no information will be shared or placed in the public domain unless the relevant permissions are gained or the information has already been made publicly available by the client. The exception to this is where the inspection body is required by law or authorised by contractual Commitments to release confidential information, the client or individual concerned shall, unless prohibited by law, be notified of the information provided. Information about the client obtained from sources other than the client (e.g. complainant, regulators) shall be treated as confidential.
7. Permission for access where necessary must be obtained by the client, for example prior to Pre-purchase surveys. Additional charges maybe incurred for standing time related to gaining access to a property.
8. EMS shall not be held responsible for any loss, damage or injury arising from actions or omission of the client, his agents, servants and independent contractors. The client will indemnify us and keep us indemnified against all claims, costs, damages and expenses arising from such acts or omissions.
9. We shall not he held responsible for any loss, damage or injury arising from undertaking of the work required by the client or his agents, and the client will indemnify us and keep us indemnified against all claims, costs, damages and expenses arising from such loss, damage or injury.
10. Unless otherwise stated the quotation is based on all the conditions of the site being the same as at the time of quotation.
11. Unless stated, all quotations do not allow for the provision of specialist access equipment that may be required. Access up to 3 m will be provided as standard, along with the provision of hand tools and other surveying equipment as laid out in HSG264.
12. Additional access equipment that is not included as standard include, but is not limited to, Mobile Elevated Work Platforms (MEWP), Scaffold towers, access beyond suspected asbestos materials, coring or other excavation equipment to gain access below concrete slabs and equipment for access into confined spaces. These services can be supplied but this must be agreed at quotation stage.
13. Materials suspected of containing asbestos will not be breached unless agreed in advance with the client. Specialist access equipment maybe required or the support of an asbestos contractor which can be arranged with notice.
14. Access below concrete slabs, subsurface investigation and soil sampling are outside the scope of surveys unless otherwise agreed.
15. Quotations assume access will be made available to each area. Unreasonable delay may result in areas being omitted from the survey or additional charges per hour per surveyor. If areas cannot be accessed on the prearranged day a revisit charge will be applicable. Unless otherwise stated EMS has not allowed for the excavation of trial holes or testing for asbestos in soils.
16. Although the utmost care will be taken not to damage materials, localised damaged may be caused during the investigation and/or sampling operations. Unless specifically requested prior to the survey, this will be made ‘safe’ but not necessarily restored. Prior to refurbishment / demolition surveys it is recommended the client is made aware of the intrusive nature of the survey. EMS will assume no specialist arrangements are required for reinstatement and redecoration, any additional work may incur additional cost
17. Plant and machinery that is not part of the buildings function will not be included in the survey, unless there is a known traditional association with asbestos.
18. Quotations values are guaranteed for 3 months. After this period, EMS reserve to right to re-evaluate the fee.
19. An invoice will be issued upon completion of the works and EMS operates a strict 30day payment policy. We reserve our statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if we are not paid according to the agreed credit terms. We do not accept payment on a “Pay when paid” basis.
Terms & Conditions Laboratory Services(ISO17025)
1.1 In these conditions: ‘CLIENT’ means the person who accepts a quotation of the Company for the provision of the services or whose order for the services is accepted by the Company. ‘COMPANY’ means Environmental Management Solutions Ltd. (EMS)‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and the Company. ‘CONTRACT’ means the contract for the provision of the services. ‘OUTPUT MATERIAL’ means data ,drawings, plans, documents, test results and other information prepared by the Company in relation to the Services. ‘SERVICES’ means the provision of Asbestos Bulk Analysis, air sampling and fibre counting services and four stage clearances. ‘WRITING’ includes service by electronic mail, facsimile transmission and comparable means of communication and is taken to be only on company headed notepaper.
1.2 Any reference in these Conditions t oany provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The company shall provide the Services and the Client shall pay for the same in accordance with any written quotation or tender of the Company which is accepted by the Client, or any written order of the Client which is accepted by the Company, subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representative of the Client and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Company in Writing. In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations, which are not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance or offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.5 In situations, which in our opinion give rise to imminent risk to the health and safety of any party, the Client in accepting this agreement also confers on us the authority to deal with matters that would be defined, in criminal law, as being part of the client’s undertaking, as we see fit.
3. Orders and Specifications
3.1 No order submitted by the Client shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.
3.2 The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client and for giving the Company any necessary information relating to the Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The Company reserves the right to make any changes in the specification of the Services which are required to conform with any safety or other statutory requirements.
3.4 No order which has been accepted by the Company may be cancelled by the Client except with the agreement in Writing of the Company and on condition that the Client shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as the result of cancellation.
5. Price of Services
5.1 The price of the Services shall be the Company’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Client, after which time they may be altered by the Company without giving notice to the Client.
5.2 The Company reserves the right by giving notice to the Client at any time before commencement of the Service to increase the price of the Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation,alteration of duties, significant increase in the costs of labour, materials or other costs of processing), or any delay caused by any instructions of the Client or failure of the Client to give the Company adequate information or instructions.
5.3 Value Added Tax (‘VAT’) will be added to all charges at the rate applicable at the tax point at the time of invoice. Where the Client is registered for VAT within the European Union but outside the United Kingdom the work will be zero-rated provided the Company has been notified of the Client’s VAT registration number. If the Client is not registered or the Company has not been so notified, VAT at the rate applicable at the taxpoint shall become payable.
6. Terms of payment
6.1 Subject to any special terms agreed in Writing between the Client and the Company, the Company shall be entitled to invoice the Client for the price of the Services on or at any time after commencement of the same.
6.2 The Client shall pay the price of the Services inclusive of VAT where applicable (but without any other deduction)within 30 days of the date of the Company’s invoice in pounds Sterling. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
6.3.1 Cancel the Contract or suspend any further provisions of the Services to the Client. Any such period of suspension shall be disregarded for the for the purpose of contractual time limits previously agreed for the completion of the services
6.3.2 Under the Late Payment of Commercial Debts(Interest) Act 1998, charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 8% per annum above Lloyds TSB Bank PLC base rate from time to time, until payment in full is made (a part ofa month being treated as a full month for the purpose of calculating interest);and
6.4.3 Charge the Client the costs of recovery of any outstanding amount including legal costs and disbursements and charge any bank charges incurred on representing cheques or requesting special clearance thereof.
6.4.4 The receipt of payment shall not prevent EMS from questioning the correctness of any statement made by the Client in respect of such payments
7. Force Majeur
7.1 The Company shall not be liable to the Client or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’s reasonable control.
8.1 Any results provided by the Company comprising advice data and conclusions are based on Information supplied by the Client and evidence known at the time to the Company. The Client shall supply all necessary information, data, drawings and items necessary to the timescale required by the Company and shall arrange, at the Client’s expense and risk, for the conveyance of all test items to and from the Company’s laboratories unless the conveyance of samples and other items forms an integral part of the Work. All data provided, conclusions reached or recommendations made by the Company rely on scientific and engineering concepts, disciplines and procedures used or adopted by the Company and the Company does not warrant that the same will necessarily be achieved by other parties, or that such conclusions or recommendations will necessarily be valid in circumstances other than those of which the Company has direct experience. Any results are believed to be accurate and reliable subject to the limitations of normal experimental uncertainties.
8.2 Any report produced by the Company for the benefit of the Client relates solely to the goods or samples reported on and not bulk from which the goods or samples were drawn.
9. Confidentiality and Intellectual Property
9.1 The property and any copyright, design rights or other intellectual property rights in any Output material shall, unless otherwise agreed in Writing between the Client and the Company, belong to the Company, but the Client shall be entitled to use the Output material for the purposes of utilising the Services by way of an exclusive licence, subject to payment in full of all sums payable under this contract.
9.2 Any information provided by the Client which is so designated by the Client and any Output material shall be kept confidential by the company, and all Output Material or other information provided by the company which is so designated by the Company shall be kept confidential by the Client: but the foregoing shall not apply to any documents or other materials, data or other information which either party is required to disclose by law or by statutory requirements or which are public knowledge at the time when they are so provided by either party and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
9.3 The Output Material is prepared exclusively for the Client for the purposes of the Contract and may not under any circumstances be used by any third party. The Company is not liable for any Output Material so used and the Client shall indemnify the Company against all liability and loss, damages and expenses awarded against or incurred by the company in connection with any claims by third parties in connection with such use of the Output material.
9.4 While the Company is not aware, to the best of its knowledge, that any Output material is in infringement of any design rights, copyright or other intellectual property rights of any third party, it does not give any particular warranty in this respect
9.5 Re-printing of output material in the event of alterations and adjustments made after the first iteration has been agreed will incur an additional charge.
10. Warranty and Limitation of Liability
10.1 The Company warrants to the Client that it is accredited by UKAS for Asbestos Bulk Analysis and that these Services will be provided in accordance with the procedures accredited by UKAS. All other services will be delivered in compliance with the relevant legislation or standards.
10.2 Except as expressly provided in this Contract and so far as is permitted by statute all warranties, conditions, guarantees or representations, express or implied, statutory or otherwise are hereby excluded and the Company shall not be liable for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise, arising out of or due to or caused by any defects or deficiencies of any sort in the Services, (including any delay in providing or failure to provide the Services)whether such defects or deficiencies are caused by the negligence of the Company or its employees or agents or otherwise.
10.3 The Services are provided to and for the benefit of the Client exclusively and all collateral warranties are here by excluded. The Company shall not be liable to any third party who seeks to use the Services without the Company’s express written permission for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise, arising out of or due to or caused by any defects or deficiencies of any sort in the Services whether such defects or deficiencies are caused by the negligence of the Company or its employees or agents or otherwise.
10.4 The Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Client, which are incomplete ,incorrect, inaccurate or in the wrong form, or arising from their late arrival or non-arrival or any other fault of the Client.
10.5 No liability is accepted by the Company for any loss or damage howsoever caused to any goods or samples submitted for examination by the Client. Following examination of the goods or samples the remainder will only be returned to the Client upon written request. Unless the Company receives notice in Writing to the contrary the Company shall be entitled to dispose of all goods or samples within 6 months of the completion of the Contract.
10.6 Nothing in this Contract shall limit or exclude the Company’s liability for death or personal injury resulting from the negligence of the Company or that of its employees or agents.
10.7 The entire liability of the Consultancy under or in connection with the Agreement shall not exceed a multiple of 10(ten) times the Company’s charges for the provision of the Specific Service under the Contract.
10.8 The Client shall indemnify and keep the Company indemnified against all costs, expenses, damage or other losses incurred or suffered by the Company as a result of any claims made against the Company due to the infringement of any regulation, enactment or legislation by the Client.
10.9 The Client is under a duty to mitigate any losses howsoever caused.
10.10 The Client acknowledges and agrees that the limitation of liability contained in this clause is:
10.10.1 fair and reasonable;
10.10.2 reflected in the level of charges and of insurance cover carried by the Company
10.10.3 just and equitable having regard to the extent of the responsibility of the Company for any loss or damage suffered, on the basis that all other consultants, the contractor and any subcontractors who have a liability shall be deemed to have provided contractual undertakings to the Client on terms no less onerous than those contained in this Contract
11.1 The Company’s name shall not be used in connection with the Contract for purposes of publicity promotion or advertising without the prior written approval of the Company. The Company may publish or join in publishing any description or illustration of the works with the prior consent of the Client.
12 Non-solicitation of Staff
12.1 The Client shall not solicit or entice away or seek to entice away from the Company to work for its business, whether as principal, agent, partner, director, employee, second ee or consultant, any person who is or was employed or engaged by the Company in providing theServices.12.2 Should the Client be in breach of 12.1above, then it shall pay to the Company a sum to cover the Company’s reasonable losses in this matter.
13 Dispute Resolution and Applicable Law
13.1 Any dispute or difference arising out of or in connection with this Contract shall be referable at the option of either party to alternative dispute resolution i.e. mediation, arbitration or adjudication as most appropriate. The person who is to act as the ‘independent party’ shall be agreed between the Client and the Company, the preferred person will be a member of the Chartered Institute of Arbitrators.
13.2 The Contract shall in all respects be subject to and construed in accordance with English Law and the Client submits to the exclusive jurisdiction of the English Courts.
14 Events of Default, Termination, Repossession, Suspension
14.1 if:14.1.1 the Client fails to pay any sums when due or otherwise materially breaches any of the terms of the contract or any other terms agreed with the Company; or
14.1.2 the Client is, or for statutory purposes is deemed to be or appears to be unable to pay its debts as they become due, or the value of its assets is less than the amount of its liabilities (including contingent and prospective liabilities) or the Client otherwise becomes insolvent or suspends payments or threatens to do so or ceases to trade; or
14.1.3 the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation(otherwise than for the purposes of amalgamation or reconstruction); or
14.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or14.1.5 the Client ceases, or threatens to cease, to carry on business; or
14.1.6 where the Client is an individual or partnership, he or any partner dies; or
14.1.7 outside England and Wales anything corresponding to any of the
above occurs; or
14.1.8 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client.
14.2 then in the above cases the Client shall notify the Company forthwith in writing of such event and in all cases the Company may (at its discretion, whether or not it has received notice from the Client as aforesaid and without prejudice to its other rights hereunder or otherwise) at any time by notice to the Client do any one or more of the following:-
14.2.1 terminate, cancel and/or rescind the Contract and other Contracts with the Client
14.2.2 declare immediately due, payable and interest bearing under clause 6.3.2 above, any amounts owed by the Client to the Company under any contract;
14.2.3 suspend the provision of any Services to the Client;
14.2.4 proceed against the Client for any sums owing under the contract and/or damages as appropriate.
15.1 Any notice required or permitted to begiven by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuantto this provision to the party giving the notice
15.2 No waiver by the Company of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.3 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby
15.4 The parties acknowledge that, except as specifically provided in this Contract, it is not their intention that any third party shall be entitled to enforce any term of this contract which mayconfer a benefit on that third party, whether such entitlement would, but forthis provision, arise under the Contracts (Rights of Third Parties) Act 1999 orotherwise.
16 Bulk Asbestos Analysis
16.1 All bulk analysis of samples carried out are based on the Company’s internal method, P1. This method is based on the HSE publication, appendix 2 of HSG 248 Asbestos, the Analysts Guide for Sampling, Analysis and Clearance Procedures.
16.2 The sample submitted for analysis is initially examined using a low powered stereo microscope. Each individual fibre type present in the sample is selected and mounted in a refractive index (RI)liquid chosen to match the most likely asbestos type. The fibres are then positively identified as one of the asbestos types on the basis of their detailed optical properties using polarised light microscopy (PLM) at a magnification of x100.16.3 Each sample submitted is inspected for all possible types of asbestos. The results are then reported as either no asbestos detected or a list of the fibre types positively identified. If asbestos is positively identified within the sample, it will then be classified according to material type.
16.4 The percentage asbestos content within the material is not recorded as part of the standard report. This is outside the scope of the Company’s UKAS accreditation.
16.5 All samples submitted for analysis must be double bagged and clearly labelled with all relevant details regarding the sample. It is the Company’s aim to analyse and produce a report within 2standard working days. If an urgent result is required, please advise in advance and these can be prioritised. Additional charges may apply for expediated samples. Prior warning is also appreciated when submitting batches of greater than 20 samples particularly of textured coating.
16.6 All samples are kept for a period of six months following analysis prior to disposal at a licensed asbestos disposal site. If you wish the sample to be retained for longer, or returned, we must be contacted in writing within this six month period.
Conditions of Contract – Ground Investigation
1. Quotations are based in part on information provided by the client, unless EMS or an EMS representative has visited the site prior to the survey. If information provided by the client is incorrect or incomplete, this may result in the work undertaken being unsuitable for purpose.
2. As the work is mainly of an exploratory nature, our quotation may be in the form of a Schedule of Rates. Any estimated total cost given is provided for guidance only and is based on assumed provisional quantities. The final cost and time of completion of an investigation depends upon the conditions found on site at the time of investigation. If we feel it necessary to exceed the initial quote, we will only do so after gaining permission from the client.
3. EMS cannot guarantee the final depth of boreholes or trial pits. This may be limited by the ground conditions encountered.
4. Our quotation is exclusive of any allowance for Value Added Tax (VAT). Vat will be added to our invoice at the current rate. Payment of accounts without discount or retention will be required within 30 days of submission.
5. EMS reserve our statutory right to claim interest and compensation for debt recovery costs under the ‘late payment’ legislation, if we are not paid according to the agreed terms. We do not accept payment on a “Pay when paid” basis.
6. No work will commence until a written order has been received by post, email or fax. Such order is considered an acceptance of our quotation.
7. Availability of resources where quoted is an estimate based on the programme of work in hand at the time of quotation. This can vary from day to day. Where the starting date is critical it should be verified at the time of placing an order.
8. Once a job has been confirmed and a purchase order has been issued and subsequently the job is cancelled at short notice we reserve the right to issue a cancellation charge to cover any abortive work undertaken and any sub-contractor costs incurred.
9. In the event of our quotation being accepted, the client warrants and undertaken that they have obtained all the necessary certificates, licenses, permits and consents required by Statute or any order or regulation made there under or by any regulation or by-law of any authority or statutory undertaker. Permission for access where necessary must be obtained by the client, for example, prior to pre-purchase surveys.
10. We shall not be held responsible for any loss, damage or injury arising from actions or omission of the client, the client’s agents, servants and independent contractors. The client will indemnify us and keep us indemnified against all claims, costs, damages and expenses arising from such acts or omissions.
11. Unless otherwise stated, the quotation is based on all the conditions of the site being the same as the time of quotation.
12. Except where specifically stated in our quotation, we make no allowance for: payment of any way leave; for reinstatement, for traffic control, for watching, for lighting or for protection of works. If these prove necessary, the client will be notified and an appropriate charge will be added to the works.
13. It is the duty of the client to provide all available knowledge regarding underground services to EMS. EMS will take appropriate actions to reduce the risk of our works to underground services, including ensuring that utility plans are obtained from statutory providers (a cost for this will be included in estimates). EMS will not be held responsible for damage to underground services which are known to the client, when this knowledge has not been passed on to EMS.
14. EMS has a commitment of confidentiality to our clients and no information will be shared or placed in the public domain unless the relevant permissions are gained or the information has already been made publicly available by the client. The exception to this is where EMS is required by law or authorised by contractual Commitments to release confidential information, the client or individual concerned shall, unless prohibited by law, be notified of the information provided. Information about the client obtained from sources other than the client (e.g. complainant, regulators) shall be treated as confidential.
15. EMS provide client’s borehole and trial pit logs to the British Geological Survey. These are placed on a publicly available database which is of great benefit to the geoscience community. Clients are informed of this at the time of report issue, and are given the opportunity to prohibit the release of logs at this time.
1. In these terms and conditions EMS Water Limited will be referred to as “EMS”and the other party will be referred to as “the Client”. These standard terms and conditions of business will be referred to as “the Standard Terms”. Where the Standard Terms refer to as “a duly authorised officer of EMS” that person will be the one who is named as Project Manager in the contract.
2. The Standard Terms will apply to all work undertaken by EMS for the Client and by signing this contract the Client acknowledges that it is bound by theStandard Terms.
3. Variations to any of the Standard Terms shall only be valid if such variations have been agreed in writing and signed by a duly authorised officer of EMS.
4. Any standard terms of business used by the Client are not part of this contract and do not govern its provisions save to the extent that such standard terms have been expressly incorporated by reference to them in this contract and by being actually attached to this contract.
II.SERVICES TO BE PROVIDED UNDER THIS CONTRACT
1. The contract describes the services which EMS have agreed to offer to the Client. EMS is under no liability to the Client to provide any services that are not described in the Contract.
2. EMS may at its absolute discretion engage any independent contractor or consultant at the expense of EMS if in the opinion of EMS that such engagement would assist in the proper performance of the contract by EMS.
3. If EMS shall in the performance of the contract recommend that the Client engage a third party to perform any services of any kind whatsoever EMS shall use all reasonable endeavours to recommend a third party which is suitable for the performance of the services in question but EMS shall be under no liability to the Client for the manner in which such third party performs its services and the Client shall keep EMS totally indemnified against loss damage or injury howsoever arising caused by the provision by the third party of its services to the Client.
III.DISCLOSURE OF INFORMATION AND CONFIDENTIALITY BETWEEN THE PARTIES
1. The Client shall whether or not specifically so requested by EMS ensure that EMS is provided with all information and documents which are or may be relevant to the Client’s operations which are the subject matter of this contract.
2. EMS shall be entitled to assume that all information supplied by the Client relating to its operation is correct and complete. It is not the function of EMS under this contract to verify the accuracy of such information unless this contract expressly provides.
3. EMS shall be entitled to process all data supplied to it for the purposes of this contract and to have such data processed by third parties but in so doing EMS shall use all reasonable endeavours to protect the confidentiality of all such data in accordance with the GDPR policy of EMS.
4. Except for the purpose of data-processing EMS shall not reveal or disclose to any third party any information relating to this contract or to the operations of the Client without the Client’s written consent.
5. EMS shall take all reasonable precautions to ensure the security of all documents and data deposited with EMS by the Client in the performance of this contract and shall return all such material to the Client as soon as reasonably possible after completion of the contract.
6. EMS shall remain solely entitled to the copyright of all material supplied by EMS to the Client in the performance of this contract. The Client will not without the written permission of EMS signed by a duly authorised officer disclose to any third party any material supplied by EMS to the Client except where required to under the Freedom of Information Act.
7. All material supplied by EMS to the Client which is recorded in writing or electronically shall remain the property of EMS until all fees due to EMS under the contract have been paid in full and all material shall be returned by the Client to EMS upon demand at any time whether or not there then be outstanding any fees from the Client to EMS.
8. The work undertaken under this contract by EMS is for the sole benefit of theClient and the Client shall not without written consent of EMS signed by a duly authorised officer assign the benefit of this contract and EMS shall not be liable for any loss, damage or injury whatsoever and howsoever arising incurred by any third party who makes use in any way of any of the material or the recommendations supplied by EMS to the Client in the course of carrying out this contract whether or not EMS shall have given its consent to the disclosure of any such material or recommendation to the third party.
9. EMS will not without the written consent of the Client disclose in any publication that it has performed services for the Client nor will it without such permission disclose the nature of the services.
IV.LIMITATIONS ON LIABILITY OF PRIMARY WATER SOLUTIONS
1. EMS’s aim is to take reasonable care in giving advice to the Client. It is impossible to foresee or to safeguard against every eventuality. For this reason EMS cannot guarantee the effectiveness of the advice it gives. EMS cannot be held responsible for any failure on its part to identify risks that a Client faces or for its failure to suggest measures or the best measures to combat them or for damage, however far-ranging, that may flow from such a failure. The Client therefore agrees with EMS that the total extent of EMS’s liability howsoever arising under the terms of this contract shall be limited to five times the amount of the fee payable by the Client to EMS.
2. The Client further agrees that upon the third anniversary of the date of signature of the contract EMS shall thereafter be under no liability whatsoever to the Client for any matter of any kind arising out of or connected with the contract.
3. The Client agrees to indemnify EMS in respect of all claims and costs by any person whatsoever for injury or damage to persons or property caused by EMS its servants or agents in the performance of the contract or taking any steps ancillary thereto or associated with it.
4. Under no circumstances shall EMS be responsible for any injurious act or default by any employee of EMS unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of EMS his employer nor in any event shall EMS be held responsible for any loss suffered by the Client through the failure of any plant or equipment in respect of which EMS shall have given advice in the course of performing this contract except in so far as such loss is solely attributable to the negligence of EMS’s employees acting within the course of their employment.
The contract and any variations to it made in accordance with the terms of this contract represent the entire agreement between the Client and EMS and no material published by EMS or statements made by or on behalf of EMS shall be treated as a term of this contract or as any variation of it.
The Contract has been made in England and is governed exclusively by English Law whether or not this contract provides for EMS to render services outside England.