TERMS
1. Please read the Proposal and these Terms and Conditions carefully, in particular the Qualifications. The Proposal is valid for a period of 30 days from the date on the front cover (“the Acceptance Period”). If there is any contradiction between these Terms and Conditions and anything in the Fee Proposal, the latter will prevail
2. It is based upon information, plans, maps and reports supplied to us (“the Brief”) about conditions, topography and climate at the place where we are to carry out the work (“the Site”). Should these prove to be incorrect, we reserve the right to amend our Proposal and/or any delay in s caused may be subject to an additional claim at the Hourly Rate or Daily Rate below as appropriate.
3. Expressions such as a
3.1. “We/ us/ our” refer to Omega Geomatics Limited, a company registered in England and Wales under company number 06995416; having its registered office at 22 New Road Chatham, Kent, England ME4 4QR; regulated by the Royal Institute of Chartered Surveyors; t/f: 01634 751002; e: survey@omegageo.co.uk; www.omegageo.co.uk; VAT no. 123085444
3.2. “You/ Your” refer to you, and if you are an agent for a client, any client of yours, on behalf of whom you are acting (“the Client”). If you are an agent, you warrant that you have the authority of your client to agree these Terms and Conditions and that the Client and Agent are jointly and severally responsible hereon. You may not (either jointly or severally) assign this contract but see below re Letter of Reliance
If You are a consumer (meaning an individual acting for purposes which are wholly or mainly outside your trade, business, craft or profession) and you have entered into a contract with us either at a distance or off our premises, then you may have a right to cancel as outlined below If You are an individual, please note our Data Protection Policies on our website or click here.
3.3. In performing our services and discharging all the obligations under this Terms and Conditions, we shall exercise the reasonable skill care and diligence that would be expected of a competent geomatics surveyor
Fees
4. Unless agreed elsewhere to the contrary and subject to provisions below, you will pay our fees (plus VAT) on or before the date 30 days after our VAT invoice (“the Latest Payment Date”). The fees include our charges for…
4.1. A consideration by us of the best methodology (“Methodology”) to achieve the final data required and any reconsideration of this in the light of circumstances
4.2. All travelling to and from Site (save in relation to keys below) and materials
4.3. The supply to you of 2D AutoCAD file and PDF’s of the survey data. You must be specific if you require anything else, such as another file format or hard copies of drawings
4.4. Survey control markers and reference markers consisting of nails or steel rods in hardstanding and wooden pegs in soft ground. Allowance has not been made for any costs involved in constructing markers or providing additional referencing or protection
4.5. The supply to you, at your request on one occasion only, one copy of our insurances and method statements.
4.6. The supply of data on the standard datum and coordinate system as specified by ourselves. If you require a specific datum or coordinate system, it must be supplied before the work begins.
5. Unless we specifically agree otherwise and subject to provisions below, you also agree to pay us the following additional charges within 30 days of receipt of VAT invoice
5.1. Keys. We will not collect keys from, or return keys to, any particular location (the Key Location”) that is more than 10 miles from our most direct route to the Site or 2 miles in Central London. [Miles are to be measured by road, not “as the crow flies”]. You will have to make other arrangements to give us access. Otherwise …
- Picking up the keys from, or returning them to, the Key Location, then for each mile of the deviation from our direct route to the Site, a charge equal to £4.00 per mile deviated plus VAT
- Posting keys back by recorded delivery, £15 plus VAT per posting
5.2. Failed access. It occasionally happens that we lose a day’s work because a customer
- Is unable to give us access at all on the day as was arranged.
- Has a tenant in the Site who will not allow us access.
- Has not made adequate arrangements for us to access the Site.
- We have been issued the wrong keys or codes.
- The Site or work area is found to be unsafe (in our absolute discretion).
This means that we will have to work an extra unexpected day. This plays havoc with our scheduling and may well inconvenience other customers as we try to re arrange our diary
In these circumstances you will pay us by way of liquidated damages for the days work lost an amount equal to …the total fee for the job …divided by the number of days for which the job was booked … (“the Daily Rate”) …multiplied by the number of teams that were denied access
5.3. Late access/ waiting time. If you are not able to give us access by 0900 hours or we are required to wait whilst You or another of Your contractors finish their work or You or your agent is looking for keys to give us access or You or Your agent arrives later than the agreed time to give us access, we will try (in our absolute discretion) to undertake other works to avoid charging waiting time
- However if this is not possible, then for each hour (or part of hour) thereafter, liquidated damages equal to …the Daily Rate ….divided by 8 … (“the Hourly Rate”) …multiplied by the number of teams that could not get access by 0900 ….multiplied by the number of hours (rounded up to the nearest hour) that they were denied access
- This is because we will have to work late to make up the time and may have to pay our teams over-time rates
- We will notify you as soon as possible of any claim by us under this sub paragraph but in any event within one week.
- Please note our remedies below for non-payment of Our charges, including withholding Our work
5.4. Anti-social hours. For each hour worked by a team as requested or required outside 0900 – 1700 during the week … 1.5 x the Hourly Rate
For each day worked by a team at the weekend………..1.5 x the Daily Rate
5.5. Customer Support. Where the Customer is providing support to the survey parties, either by the provision of transport, labour, accommodation or by issue of data or information on this support is delayed or is not of the type or nature agreed, then any delays thus caused to the survey teams will be subject to charges at the Hourly Rate or Daily Rate as appropriate
5.6. Reliance. The Brief is assumed to have been verified before issue. We will not carry out any checks on it unless specifically agreed and any delays or rector vacation caused by errors will be charged at the Hourly Rate or Daily Rate as appropriate
5.7. Cancellation. If you cancel a day’s work, then liquidated damages equal to the following percentages of the Daily Rate per team cancelled depending upon the number of clear days
notice you give
Clear days notice
0 – 2 = 100%
3 – 4 = 50%
5 – 7 = 20%
5.8. Additional copies. For each hard copy drawing / document requested within 6 months of the
Proposal Date
- A0 – £10+VAT
- A1 – £7+VAT
Thereafter, to be negotiated
5.9. Un-expected Equipment. The cost to us plus a mark up of 20% if we need to hire lighting or access / safety equipment, if we (in our absolute discretion) deem it necessary to carry out the work safely
Difficulties in carrying out the work
6. We reserve the right to stop work (“Stoppage”) and not complete it, without liability or penalty, if any of the following events (“a Reconsideration Event”) occur. You will pay our fees up to Stoppage and we will, if possible, issue a new proposal with a new fee to complete the survey
6.1. The Brief proves (in our opinion) incomplete or incorrect
6.2. You require us to adopt a different Methodology or change the scope of the services
6.3. It becomes apparent that it is not safe for us (in our absolute discretion) to complete the work as envisaged e.g. we risk coming across hypodermic needles, excessive noise, polluted atmospheres, bird droppings, rats, hazardous substances, asbestos, live and unsecured services, vagrants, squatters, animals, aggressive or disaffected occupants or any other risk
6.4. The Site Conditions create delays or obstructions beyond our control e.g. ongoing demolition, site clearance or construction works, excessive vegetation
6.5. Adverse weather conditions
6.6. Act of God, war (whether declared or not), civil war, acts of terrorism, civil commotion riot, legal restraint, governmental or like interference, sabotage, strikes, lock-outs, labour trouble, flood, lightning, droughts, earthquake, fire, explosion, blight, epidemic
Timings
7. Any delivery schedule submitted prior to the award of the contract is given in good faith at the time of submitting the offer is subject to confirmation upon acceptance of the offer
8. All start dates, delivery dates and durations have been estimated to the best of our ability, but you agree that we are not subject to any deadline penalties and further, that we are not liable for delays beyond our control
Intellectual Property
9. We retain copyright design right and other intellectual property rights (“IPR”) in and of all maps, method statements, reports, models, drawings, plans and data produced by us (“the Work”).
9.1. Until you have paid such invoice, you may not use the Work
9.2. Provided you pay us our invoice for the Work on or before the Latest Payment Date, we grant you an irrevocable licence to use the Work and to grant sub-licenses for others to use the work.
9.3. No term in this contract is enforceable under the Contracts (Rights of Third Parties) Act 1999.
9.4. We are not liable if third parties rely upon the Work or if they are used for any purpose other than that originally intended.
9.5. We may use all supplied and created information, photographs, models, drawings and other Work for resale, marketing and illustration on our website
Liability and protection
10. You agree that you are dealing with Omega Geomatics Limited, rather than any individual, and you agree that any claim you have is against Omega Geomatics Limited only
11. All Conditions or warranties implied by common law or statute are hereby excluded to the extent allowed by law.
12. We shall not be liable for losses, costs, claims, damages or expenses in contract or negligence
12.1. To anyone other than you, unless we issue a Letter of Reliance and then only to the person(s) named in it
12.2. Where your claim is made outside the limitation period, which for this purpose shall be considered to end on the earlier of the date 6 years from the date of delivery of our work to you and the date 3 months after completion of your sale of the Site
12.3. Arising from indirect or consequential loss damage or delay
12.4. Calculated by reference to profits or income production
12.5. Arising from use of defective or deficient information provided by you
12.6. In excess of that proportion of the loss and damage that it would be just and equitable to require us to pay, having regard to the extent of our responsibility for that loss and damage, on the assumption that other parties involved in the negligent work have entered into a collateral warranty in your favour containing an obligation to exercise reasonable skill, care and diligence and have paid to you the proportion of your loss and damage that it would be just and equitable to require them to pay, having regard to the extent of their responsibility for that loss and damage. This net contribution clause shall be applied before any cap
12.7. To the extent that these exceed, or are outside the scope of, our professional indemnity insurance cover [We carry £2m cover]
13. Nothing in the preceding clause shall be deemed to seek to exclude liability for death personal injury or fraud
14. Monies paid to us are not covered by the RICS client money protection scheme.
Poaching our Staff
15. Where one of our employees has been assigned by Us to do work for You, You shall not, without Our prior written consent, at any time from the date he finishes such work for 12 months thereafter solicit or entice away from Us or employ or attempt to employ any such person
Any such consent given by Us shall be subject to You paying to Us a sum (“the Compensation”) equivalent to 50% of the then current gross annual remuneration of such employee or, if higher, 50% of the annual remuneration to be paid by You to that employee If You shall not seek such consent but shall nevertheless employ such an employee. You shall pay to Us by way of liquidated damages an amount equal to the Compensation
The parties recognise that the Compensation represents an adequate amount given that We must advertise for new employees, interview them, prepare a shortlist, conduct final interviews and often wait for them to work out a period of notice before they can join Us. Further they need to spend time with Us to learn our business and contribute meaningfully to it
Complaints
16. Complaints should be directed to David Keohane in the first instance.
16.1. In the event that You are alleging that our work is defective is in some way or that we are in breach of contract, You will give Us the opportunity for not less than 30 days following such allegation, to cure such defect or breach (if such is capable of being cured)
16.2. In some circumstances, you may have grounds to lodge a complaint with RICS – see
http://www.rics.org/uk/regulation/complaints/
Letters of reliance/collateral warranties
17. Our obligations (whether under contract, in negligence or otherwise) are owed to you alone
18. The contract cannot be assigned but we will, however, at your request, provide up to two Letters of Reliance in the form set out below, addressed to a third party acknowledging that we owe a duty of care to them. Such Letters of Reliance shall not be assignable
Further or additional work
19. Nothing herein obliges us to act as an expert witness or to appear before a court or tribunal in connection with any dispute that you may in the future have about the Site and Its boundaries.
Further, any request by you to so act/appear or amend, mark up or overlay any plans in connection with such dispute, whether such plans were prepared by us or by anyone else, shall be treated as a request for new work which we may quote for or refuse as we in our absolute discretion deem fit
Procedure
20. If you would like to proceed, you must indicate your Acceptance by completing the form attached and sending it to us within the Acceptance Period (time to be of the essence) and telling us
20.1. The name and address of the Client, if any, if this is not already stated in this Proposal
20.2. To whom our invoice should be addressed (“the Invoicee”). This should only be yourself or the
Client
21. You (on behalf of yourself and the Client, if any) warrant to us that
21.1. You are the duly appointed agent of the Client with authority to engage and instruct us
21.2. The expression “You” herein means both you and the Client jointly and severally
21.3. The Brief is complete and accurate
21.4. You and the Client accept joint and several liability to us hereunder and in particular for payment of our fees
21.5. You and the Client agree to communicate by email and an email satisfies the requirement for a communication to be in writing
21.6. You would like us to start straight away if possible even though any right to cancel may be lost. Please be aware that we reserve the right to carry out credit checks and require payment before starting work or delivering the survey
21.7. You will not be passing on our work to anyone (other than the Client and his subcontractors and advisers) in circumstances where they may seek to rely on it
21.8. You have the permission of the owner of the Site for us to do the work and all other necessary permissions
22. We reserve the right to credit check you and the Client. If we (in our absolute discretion) are unhappy with the results, we may require you to pay the whole fee in advance
23. The contract between us will be formed by our writing to you confirming the start day and time (“the Start Confirmation”). The documents making up the contract between us (which is non assignable) will be the Brief (in so far as it provides information but disregarding any parts thereof which are a term or condition conflicting with those set out herein), the Proposal, these Terms and Conditions, the Acceptance and our Start Confirmation. These form the entire agreement between us and shallnot be varied unless otherwise agreed by us both in writing signed by one of our directors and you. No statements or representations made by either of us have been relied upon by the other in agreeing to enter into that contract. If there is any conflict between the Brief and the Proposal/Terms and Conditions, the latter will prevail
24. If you do not give the Acceptance within the Acceptance Period, this Proposal is deemed withdrawn.
Payment
25. Notwithstanding anything above, we may issue an invoice at any time e.g.
25.1. Before we start work if we decide not to give you credit
25.2. After we have done the work and as a condition of issuing the survey or other output of our work
25.3. At the end of each stage, if the work is to be done in stages
25.4. If you delay or cancel the work
25.5. After a Reconsideration Event
26. You will pay us as soon as possible but, in any case, by the Latest Payment Date. If you do not pay us by then, you agree to pay
26.1. Interest of 8% above base rate (simple interest) on the amount owed from the Latest Payment Date to payment
26.2. The fees of our debt collection agency, being no more than 15% of the amount owed plus VAT
26.3. Compensation for our additional administration at the following levels: for debts of
26.3.1.1.1. less than £1,000, £40
26.3.1.1.2. £1,000 or more but less than £10,000, £70
26.3.1.1.3. more than £10,000, £100
26.4. Any legal fees incurred in our collecting – on an indemnity basis
27. Further you hereby agree that if you do not pay us by the Latest Payment Date (regardless of any time we may give for payment by instalments)
27.1. We may withhold our work until we have been paid in full
27.2. You will not use the Work until we have been paid in full and at any time up to such payment, we may contact the relevant local authority, your planning consultants architects engineers and advisers or consultants to advise them that you do not have the necessary IPR and to request them with your/this authority to surrender to us the Work and their work based upon our Work (for example if they have created drainage plans or proposed layouts from our survey, these too need to be surrendered)
27.3. We may destroy such surrendered items after the date 6 months from the Latest Payment Date
27.4. We may show these Terms and Conditions to such persons by way of evidence of your authority for such surrender and destruction
27.5. We will not be held responsible for any consequential delay in your development or planning application for the same nor for the costs of any such persons in dealing with such surrender or any action once we release IPR (e.g. re-submitting planning application)
28. We shall keep copies on our archive of all data, plans, calculations, drawings, models etc plus any contact details, invoicing details, client & agent details etc for periods of time in line with our GDPR policy. We take no responsibility for the loss of any information if it is requested after it has been deleted in accordance with our GDPR policy.
Controlling Law
29. This Agreement shall be subject to and construed in accordance with English law and you/ we submit to the exclusive jurisdiction of the English courts. In particular, You hereby agree that any dispute between us shall be referred to Medway County Court.
CANCELLATION DOCUMENTATION
Right to cancel
1. You have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract
2. To exercise the right to cancel, you must inform us Omega Geomatics Limited (a company registered in England and Wales under company number 06995416; having its registered office at 22 New Road Chatham, Kent, England ME4 4QR; regulated by the Royal Institute of Chartered Surveyors; Tel/Fax: 01634 751002; email Admin@omegageo.co.uk; web: www.omegageo.co.uk) of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). You may use the model cancellation form below, but it is not obligatory.
3. To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.
Effects of cancellation
4. If you cancel this contract, we will reimburse to you all payments received from you. We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
5. If you requested to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated us your cancellation from this contract, in comparison with the full coverage of the contract
6. If you have made a request to begin the performance of services, you have no right to cancel after the services have been completed.
Further Information. If you are in any doubt as to the effect of the Regulations, including whether they apply to you, please contact us or obtain independent advice.
Model Cancellation Form
To Omega Geomatics Limited: Unit 5, Hoath Business Centre, Hoath Lane, Gillingham, Kent ME8 0BF
Tel/Fax: 01634 751002
I hereby cancel my contract of sale for the following supply of the following service:
Survey of [Site].
Ordered on [date]
Name of consumer:
Address of consumer:
Date:
Signature of consumer
If I have typed my name, please treat that as my signature
LETTER OF RELIANCE
Customer:
Site:
Report: (description)
Report Date: 2017
Beneficiary / You:
We/Us: Omega Geomatics Limited
Fees: £1 + VAT paid by each of the Customer and the Beneficiary
Today:
WHEREAS we prepared the Report on the Property for the Customer on the Report Date pursuant to contractual arrangements between us (“the Contract”)
In consideration of the Fees paid by the Customer and the Beneficiary to us Today (the receipt of which is acknowledged) we hereby agree to allow the Beneficiary to use (pursuant to the licence below) and to rely on the content of, the Report which includes those documents, drawings, calculations and specifications contained or referred to in it which have been prepared by us as if it had been addressed to the Beneficiary
1. WE
1.1. confirm that the Report was prepared by ourselves exercising all reasonable skill, care and diligence in the performance of our duties to be expected of a properly qualified and competent professional geomatic surveyor experienced in measuring and preparing surveys upon properties of a similar size value and character of the property;
1.2. have carried out our instructions in an objective and professionally independent manner and indeed will continue to discharge any further instructions we may have in relation to this matter in the same way;
1.3. grant to the Beneficiary, with immediate effect, an irrevocable, non-exclusive, non-terminable, royalty-free licence to copy and use the Report for any purpose related to the Property. Such licence carries the right to grant sub-licences. We shall not be liable or responsible for any use of the Report for any other purpose other than that for which it was originally prepared and provided
1.4. acknowledge that we owe to you the same (but no greater) duty of care in the preparation of the Report as existed at the date of the Contract;
1.5. agree to supply to the Beneficiary on request additional copies of the Report (subject to payment of our reasonable copying charges);
2. You agree that
2.1. you are dealing with Omega Geomatics Limited, rather than any individual, and you agree that any claim you have is against Omega Geomatics Limited only
2.2. All Conditions or warranties implied by common law or statute are hereby excluded to the extent allowed by law.
2.3. We shall not be liable for losses, costs, claims, damages or expenses in contract or negligence
2.3.1. To anyone other than you, unless we issue a Letter of Reliance and then only to the person(s) named in it
2.3.2. Where your claim is made outside the limitation period, which for this purpose shall be considered to be 6 years from the date of delivery of our work to the original customer
2.3.3. Arising from indirect or consequential loss damage or delay
2.3.4. Calculated by reference to profits or income production
2.3.5. Arising from use of defective or deficient information provided by you
2.3.6. In excess of that proportion of the loss and damage that it would be just and equitable to require us to pay, having regard to the extent of our responsibility for that loss and damage,
on the assumption that other parties involved in the negligent work have entered into a collateral warranty in your favour containing an obligation to exercise reasonable skill, care and diligence and have paid to you the proportion of your loss and damage that it would be just and equitable to require them to pay, having regard to the extent of their responsibility for that loss and damage. This net contribution clause shall be applied before any cap
2.3.7. In excess of the amount in which we would have been liable to our original Customer
2.3.8. To the extent that these exceed, or are outside the scope of, our professional indemnity insurance cover [We carry £2m cover]
2.4. You cannot assign the benefit of this Letter of Reliance
3. If this Letter of Reliance is being given in connection with a transfer/ sale by the Customer or a Beneficiary of the whole of its interest in the Site, such Customer / selling Beneficiary hereby agrees that as from the date of transfer / sale, it shall have no right to sue Us and waives any rights that it may have had
4. Disputes shall be governed by English law as determined by the Medway County Court
Signed by a Director for and on behalf of the Beneficiary
Signed by a Director for and on behalf of the Customer/ selling Beneficiary
Signed by a Director for and on behalf of Omega Geomatics Limited