In these Terms and Conditions “the Company” means Hixtra Ltd. “The Client” is the person or entity (or their authorized agent) with which the Company contracts to supply goods or services.
The Quotation constitutes an offer by the Company to provide Services and/or carry out a Test subject to these Conditions. Acceptance is based on the receipt of a booking to attend site, an instruction in writing or verbally or receipt of sample(s) by the Company.
Except in accordance with these Conditions no variation of the Contract will be accepted unless agreed in writing by the Company.
No condition, statement or representation contained in any advertisement or brochure or in any trade or promotional circular or other literature, nor the terms or conditions of any trade association or other body, or which would or might but for this sub-paragraph be implied or incorporated by custom or trade, usage, negotiations, course of dealing or otherwise shall be deemed to be incorporated in the Contract and all of the same are hereby expressly excluded from the Contract.
In addition to the amount specified in the Quotation the following shall be payable if appropriate:
any applicable goods and services tax;
package, insurance, parking, tolls, freight, travel costs, bank charges, storage charges and disbursements incurred on behalf of the Client, whether on the Company’s premises or elsewhere, and to include storage charges on the Company’s premises, if any Sample or materials supplied by the Client are not removed within seven days of the date of notification to the Client that they are ready for collection;
insurance incurred by the Company, in its absolute discretion, in respect of any property belonging to the Client in the possession of the Company;
with prior notice, the cost of all sub-contractors employed by the Company unless included in the Quotation; and
any additional costs incurred by the Company and/or any charges imposed by the Company in accordance with these Conditions.
any special standards or specifications required for the performance of the Service.
All terms and conditions apply to all work undertaken by the Company unless otherwise agreed in writing.
To the extent that the Company’s Contract with the Client includes the supply of goods or services other than testing services, any additional terms will be agreed on an individual contract basis and unless agreed in writing by a Director, the Company’s Standard Terms and Conditions shall apply.
The Company will not indemnify the Client in respect of any claim arising directly or indirectly from in consequence or contributed to or aggravated by asbestos in whatever form or quantity whether alleged or actual.
2. Rates & Charges
Quantities, rates and estimates in the Company’s offer are based on information made available in writing at the time of preparation of the offer. Actual charges will be made on the basis of measurement of work carried out. Significant differences between estimated quantities and quantities ordered might result in an increase in unit rates. Fixed price lump sum offers may be subject to variation if significant increases occur in the works ordered.
Rates are defined as those rates provided to the client in writing by the Company in the format of a formal quotation.
Unless stated otherwise prices quoted are valid for a period of 30 days from the date of quotation.
The minimum charge for any order will be £75.00 +VAT.
Retentions, bonds or back-to-back payment structures are not applicable to the Company’s services. Further charges may be incurred if either is enforced unless specifically agreed to by the Company prior to their application.
Charges for attendance at meetings and associated expenses will be made at rates to be notified if the occasion arises.
No work will be carried out on samples taken, or delivered, if they proven (or suspected to be), without notification at offer stage, to be contaminated such that they are considered a risk to the Company’s employees, until additional costs and charges have been agreed. If work is cancelled for any reason charges for costs to date will be made along with any sample return or disposal costs.
3. Execution of Services
Tests shall be carried out singly unless prior written instructions from the Client are received for replicates or unless the Company considers replicates are necessary or desirable. The Company reserves the right to charge for replicates even if the original result is confirmed.
The Client shall supply as much information as possible about each Sample and/or Service requirement in order to assist in achieving an efficient service. Where information relating to the Sample and/or the Service requirements is incorrect and the Company is involved in additional work, the Company reserves the right to charge for such additional work.
Unless specific prior instructions in writing are received by the Company any Test shall be carried out on the Sample in the state in which the sample is received. The Company reserves the right to charge for any work required to be carried out to the Sample prior to the performance of any Service.
Methods of carrying out the Service shall be at the sole discretion of the Company unless prior instruction in writing is received from the Client specifying a particular procedure. Charges for such special procedures will be agreed between the Company and the Client prior to carrying out the Service.
A general description of the method used in the performance of the Service shall be given verbally on request. Where written descriptions of detailed procedures are requested, whether as part of the Report or issued separately, the Company reserves the right to make an additional charge. If the method referenced in the Report represents the end product of development work carried out at the Company’s expense, the method shall only be revealed at the discretion of the Company.
The Company may, at its sole discretion, undertake to give priority in carrying out a particular Service. A surcharge may be imposed by the Company for the carrying out of priority work (Details of these arrangements will be issued by the Company on request)
If a suite of tests is specified by the client then the company reserves the right to complete all testing specified regardless of any interim of first measured parameter result indications.
Results of site tests can be given verbally to the Client at the Client’s own risk. Only test results provided by the Company on a formal official test certificate shall be deemed to be the actual test results.
4. Samples subject of legal proceedings
If the Sample is, or is potentially, the subject of legal proceedings, this fact must be notified to the Company in writing before the Service is carried out. If that fact is not disclosed to the Company at that stage, the Company shall not necessarily be prepared to provide expert testimony
5. Laboratory Testing
Rates for laboratory testing assume that samples of appropriate size and condition for test will be provided to the Company’s place of testing at no charge to the Company. Collection of samples from site may be subject to additional charge. Extraordinary preparatory work will be charged at an hourly rate with prior agreement from the Client.
Samples will be retained free of charge for 7 days after testing after which they shall be disposed of. Storage of samples for longer periods will be subject to extra charges. The Client shall provide notice prior to testing should they wish to collect remaining samples or have the Company retain them for a period longer than 7 days after testing.
Rates for laboratory testing include for provision of a factual report only.
Samples in progress which the client then cancels prior to completion shall be charged at the rate agreed for the completion of the test.
6. Site Works
All site works will be carried out within the number of attendance visits to site stated in the offer (if appropriate) and during normal working hours (08.00-17.00, Monday to Friday including travel) unless stated otherwise in writing with the offer.
It is the responsibility of the Client to notify the Company prior to site works commencing of any site specific hazards which may exist and which may affect the Company’s operations or could potentially put at risk the health and safety of the company’s employees or agents. The Company shall be entitled to be paid, at the agreed rate for completion of the tests, for aborted visits caused by lack of notification of site hazards.
The Company retains the right to refuse to enter any area on the site which they deem, at their sole discretion, presents a potential risk to the health and safety of the Company’s employees or agents. The Company shall be entitled to be paid, at the agreed rate for completion of the tests, for aborted visits caused by this refusal.
Where the client requires the Company to disturb the fabric of a building as part of the works the Client shall provide information regarding the presence of any asbestos containing or other hazardous materials within the work area.
Working areas will be clean, clear and prepared for test by others at no cost to the Company prior to the Company’s arrival on site. The Company shall be entitled to payment for preparatory work carried out in order to prepare areas for test.
The Client will obtain at no cost to the Company, all necessary licenses, access, permits, rights, approvals, wayleaves, sanctions and authorities as may be required for the execution of the Company’s works.
All reasonable care will be taken to avoid damage to building fabrics, construction plant provided as a reaction load, underground cables, pipes, drains and other services, installations and structures. The Company shall not be liable for any costs due to damage to the same. No reinstatement of any kind shall be provided unless explicitly provided for in the Company quotation for the works.
The Client shall indemnify the Company against all claims, demands, proceedings, damages, costs and expenses arising from any damage, delays, costs and expenses necessarily and unavoidably caused to any party by the Company in carrying out the work ordered.
The Company provides safety equipment and training for employees in order to carry out work in a safe manner. However this offer does not allow for the costs of providing a safe working environment unless agreed in writing at the time of offer.
Access, including access plant and operatives, scaffolding work platforms etc will be provided at no cost to the Company unless specifically identified by the Company as being included within the quotation.
If during the course of the work it is deemed that any access arrangements are unsafe work will be stopped immediately. Charges will be made, at the agreed rate for completion of the tests irrespective of whether the work was completed or not.
Standing time charges for each operative will be made at a rate of £45.00 + VAT per operative per hour or part thereof plus any costs for associated travel, accommodation, equipment and such like for any delays to the provision of Company services that are suffered, but can be accommodated, that are deemed, in the sole view of the Company, to be unreasonable and not the fault of the Company.
The Company reserves the right to abandon the provision of services if for any reason, beyond the control of the Company, the Services cannot commence within two hours of arrival on site.
Should site attendance be cancelled or postponed within 24 hours of its planned start time the Company shall be entitled to be paid a cancellation fee equivalent to the rate and quantity agreed for the portion of works planned to be carried out plus any other costs incurred due to the cancellation or postponement.
Should, during site attendance, the Company be unable to provide the services ordered by the Client due to the lack-of or unsuitability of Client provided goods and services the Company shall be entitled to be paid a cancellation fee equivalent to the rate and quantity agreed for the portion of works planned to be carried out plus any other costs incurred due to the cancellation or postponement.
An employee of the Company may be required to work at locations controlled by the Client as part of the service provided. If the Client employs such an employee of the Company directly during the Contract or within twelve months of the end of it an introduction fee equal to six times the monthly wage of that employee will be payable to the Company by the Client.
All testing to be carried out is assumed to be at ground level. The Company makes no provision for tests not at ground level and has the right to cancel, charge for an aborted visit or re-quote the work at it’s sole discretion if testing is required that is not at ground level.
Standing time due to weather disruption such as but not limited to wind, rain, snow and frost, which prevent the services being executed in accordance with the test specification or good practice or compromise health and safety shall be charged at £45.00 per hour and shall be agreed by the Client as fair and reasonable. If, in it’s sole discretion, the Company believes the weather conditions will not allow the services to be executed in full compliance with the test specification or good practice or compromise the health and safety of the operative or potentially damage equipment then The Company has the right to charge for an aborted visit in accordance with Clause 6.13.
For site based CBR Testing and Plate Bearing Testing, no more than eight individual tests shall be carried out on each attendance visit to site. No more than one attendance to site shall be made during any 24 hour period.
Unless otherwise agreed in writing the Company is entitled to invoice for goods and services when they are ready for delivery or on an interim monthly basis determined by the proportion of the goods and services completed.
Invoices are due for payment within 30 days of the invoice date.
For non-account Clients payment is due at the time of order.
The Client shall pay the Company interest at a rate equal to Lloyds’ base lending rate plus 8% on all overdue payments from the date such payment becomes overdue until the date that payment is made in full.
In the event of any invoice not being paid by the due date the Company shall be entitled to suspend or cancel the supply of goods or services or withhold the results of tests or of subsequent tests and not attend site until a payment has been received to settle all invoices outstanding at the time regardless of whether they are overdue for payment.
The Company shall, at its sole discretion, also be entitled to add one or more debt handling fees to the outstanding amount should the invoice not be paid within 30 days of invoice
8. Time for Completion
Unless otherwise agreed in writing the Company shall be obliged only to complete work within a reasonable time having regard to the Company’s workload at the time.
Estimates of the time likely to be required for work are given in good faith but are for guidance only and the Client shall not be entitled to compensation for loss or damage arising from late completion of the Company’s work.
Time shall not be of the essence of the Contract and the Client shall not be entitled to cancel the Contract solely on the basis of the Company’s failure to comply with such a term.
Where the Client supplies instructions on any matter relating to the Company’s work the Company shall not be liable for any loss, damage, error or mistake which results from following such instructions in good faith. Unless otherwise agreed in writing the Client shall be responsible for selecting tests required and where tests are carried out on site the Client is responsible for selecting the locations and depths of those tests.
The Company shall not be liable to the Client or any other party for any loss or damage of any kind whatsoever resulting from any inaccuracy in the results reported, late attendance or non attendance to site.
In any event the Company’s liability, if any, proven at court, to the Client for the aggregate of all claims in respect of the matters above arising out of a single Contract shall not exceed the value of that individual Contract to the Company.
The provisions of this clause set out the entire liability of the Company, its employees, agents and sub-contractors to the Client howsoever arising.
The Company hereby excludes, to the fullest extent permitted by law, any and all liability to the Client whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit, loss of business, loss of market, loss of contract, damage to goodwill, loss of anticipated savings, loss of revenue or any indirect or consequential loss howsoever caused.
The Client accepts that time shall be of the essence in investigating any claim made in respect of the Services carried out hereunder and subject to the other provisions of these Conditions any claim by the Client against the Company shall be made in writing and notified to the Company within 90 days of completion of the Services under the Contract by the Company to the Client, failing which the Client shall be deemed thereby to have waived his rights and/or to have irrevocably discharged and released the Company in respect of any and all liability in respect of such claim.
All Services are undertaken in good faith, to a reasonable standard of care and on a confidential basis. Reports are issued on the basis of information known to the Company at the time that the Services are carried out. Although the Company will use all reasonable endeavours to ensure accuracy, the Services depend, inter alia, on the effective co-operation of the Client, its staff and on the information submitted to the Company. Save as required by law, no representation or warranty, whether express or implied or otherwise as to the accuracy of a Report is given by the Company. In consequence, all Reports are prepared on the basis that:
there is no responsibility to any person or body other than the Client,
they are not carried out for any particular purpose and no statement is to be deemed, in any circumstances to be or give rise to a representation, undertaking, warranty or contractual condition unless specifically stated;
they are determined solely by the professional analysis undertaken by the Company’s staff on each individual Contract and any forecasts by the Company of the results is an estimate only and the Company is entitled to be paid the Price irrespective of the results or conclusions reached;
the results of the Services shall address the items and information submitted only and are not to be regarded as representative of any larger population from which the Sample was taken; and
the results are final and approved by the Company. The Company shall be under no liability where the Client has acted on preliminary, unapproved results or advice.
All time limits, if any, for the provision of the Services or Tests are estimates and no undertaking is given to carry out the Services or to despatch any Report within any period of time.
The Company shall not be liable to the Client or be 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. Without prejudice to the generality of the foregoing, causes beyond the Company's reasonable control shall include an Act of God, explosion, flood, tempest, fire, accident, war or threat of war, acts or threats of terrorism, sabotage, insurrection, civil disturbance, requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
All warranties, conditions, or other terms, whether expressed or implied under statute, common law, commercial usage, equity or any general applicable principles of law or otherwise, including implied warranties of merchantability, condition, quality or fitness for a particular purpose (whether or not such purpose is made known to the Company), are hereby excluded and negated to the fullest extent permitted by law.
The Client acknowledges that the above provisions are reasonable and reflected in the price which would be higher without those provisions and the Client will accept such risk and/or insure accordingly
10. Obligations of Client
The Client shall not reproduce or replicate any Report other than in full without the written consent of the Company.
The Client shall be bound to inform the Company in writing prior to the carrying out of any Service on a Sample or material on-site that is, or potentially is, of a dangerous, unstable or hazardous to human health nature and provide instruction on the safe handling and/or site operation. For clarity this shall include any suspected or known presence of asbestos. The Client shall indemnify the Company from and against all loss or damage suffered by the Company, including, without prejudice to the generality of the foregoing, all damage to the Company’s property and all claims in respect of injury to or deaths of any of the Company’s employees, sub-contractors or agents or of any third party, directly or indirectly arising from or in connection with the failure of the Client to inform the Company of the dangerous or unstable nature of a Sample and/or to provide adequate instruction on the safe handling of the Sample.
The Client agrees to indemnify, keep indemnified and hold harmless the Company from and against all losses, liability, costs, claims, expenses, actions and proceedings which the Company may suffer or incur arising out of or as a result of any breach or negligent performance or failure in performance by the Client of the terms of the Contract or breach of any law or any claim threatened or made against the Company by any third party arising out of the Services or out of any delay in performing or failure to perform the Services.
Where Services are provided at the premises of the Client, the Client will be responsible for providing a safe system of work for the Company and its employees while providing the Service and the Client shall be responsible for all costs necessarily required in discharging this obligation and shall indemnify the Company, its employees, sub-contractors and agents in respect of all claims, costs, damages and loss suffered as a result of any breach by the Client hereof.
Where the Client is providing or undertaking activities or materials at the company’s premises in support of the Services, the Client acknowledges that he is responsible for providing a safe system of work for himself, his agents, subcontractors, the Company and its employees while providing the activity or material and the Client shall be responsible for all costs necessarily required in discharging this obligation and shall indemnify the Company, its employees, sub-contractors and agents in respect of all claims, costs, damages and loss suffered as a result of any breach by the Client hereof.
11. Risk and Property in relation to Tests
Unless stated in the Quotation, Samples are and remain at all times whilst at the Company's works and during transportation to and from the Company's works at the entire risk of the Client who shall be responsible for effecting and maintaining its own insurance cover in relation thereto, it being hereby acknowledged by the Client that the charges of the Company do not include insurance.
Unless expressly stated to the contrary in the Contract, Samples of a stable nature shall be retained for 14 days from the date of their receipt and then destroyed. Samples shall be returned to the Client only if prior instructions in writing in that regard are received by the Company and the Client shall be charged for all costs associated therewith (including carriage).
Where Samples are, in the sole opinion of the Company, too bulky or too unstable to allow long storage time, it will be at the absolute discretion of the Company as to the length of time such samples are kept.
12. Ownership, copyright and patents In relation to Services
All copyright in records, scientific documentary, primary data or electronic means of handling data produced during any Service shall belong to and remain the property of the Company unless otherwise agreed as part of the Contract.
Ownership and copyright in the Report shall remain with the Company until the Client has discharged all its obligations under the Contract, including payment of the price, whereupon the title, ownership and copyright shall pass to the Client unless the Company is forced to part with any such report, or information of any nature, to any body exercising its statutory powers.
The Client hereby warrants that it will not use the Report or any other reports, results, or information supplied by the Company for the purposes of advertisement or publication to third parties. Any such issue of the Report or other reports, results or information is permitted under the Contract only with the prior written consent of the Company who shall have the right to increase the Price where it consents to such advertisement and/or publication.
The Client hereby undertakes to abide by any regulations imposed by Certification Authorities, Standard Owners, Accreditation Bodies or any governmental or regulatory body relating to marks, emblems or logos attached to the Reports or any other documents issued under the service.
All inventions arising from the Contract and any applications for patents or similar protection, whether in the UK or elsewhere shall be the property of the Client (once all payments due to the Company under contract have been discharged), but the Company is hereby granted an irrevocable royalty free licence, with the right to sub-licence, to apply them or any information gained to work outside the specific field in which the development for the Client took place.
13. Sub-contracting and Assignment
Unless otherwise restricted by the terms of the Contract and/or obligations under any accreditation or governing approval, the Company shall be entitled, in its absolute discretion, to sub-contract the whole of or any part of the Service.
The Company may assign, delegate, licence or hold on trust, all or any part of its rights or obligations under the Contract.
The Contract is personal to the Client which may not assign, delegate, licence, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
The Client shall not terminate the Contract without the written consent of the Company which may be subject to such terms, as in the Company’s absolute discretion, recompense the Company for all loss it may suffer as a result of termination.
The Company may terminate the Contract and any other contract with the Client forthwith, without prejudice to any other right or remedy available to the Company and without the Company incurring any liability to the Client, in the following circumstances:
if the Client shall commit a breach of any terms of the Contract or any other contract with the Company unless such breach is capable of remedy and the Client has failed to comply with a notice requiring remedy within the period specified in the said notice;
if the Client fails to make payment of the Price within the specified time;
the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
an encumbrance takes possession, or a receiver or administrator is appointed, of any of the property or assets of the Client:
the Client ceases, or threatens to cease, to carry on business: or
the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
Notwithstanding that the Company terminates the Contract, this shall be without prejudice to the accrued rights and remedies of the parties prior to termination of the Contract and any rights or remedies under these Conditions, which shall remain in force, including the right to suspend all further Services to be made under any other contract with the Client (and in such event the Client shall not be released from any of its obligations to the Company under any other contract) and the right for the Company to receive full compensation for its loss under the Contract or any other contract with the Client.
All Confidential Information shall be kept by the Client in the strictest confidence. Save for the purposes of fulfilling its obligations under the Contract, the Client shall not, without the prior written consent of the Company, disclose, divulge or grant access to the Confidential Information which it has received and shall not permit any of its employees, agents or officers to disclose, divulge or grant access to such Confidential Information.
Notwithstanding the Client may disclose Confidential Information which it has received if:
it is required to do so by any governmental or regulatory authority or by law (but then only to extent it is strictly required to do so);
it is strictly necessary for the purpose only of obtaining professional advice in relation to the Contract;
it is already known to the Client prior to the time of disclosure by the Company (given the Client can prove the same with documentary evidence); or
it is information which subsequently becomes public knowledge other than by breach of the Contract by the Client.
The obligations of the parties under this Clause shall continue to apply without limit of time.
Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
Nothing in the Conditions shall create or be deemed to create a partnership between the parties.
These Conditions, the Quotation and the Contract contain all the provisions which the parties have agreed in relation to the subject matter of the Contract and supersede any prior written or oral agreements, representations or understandings between the parties. The Client agrees that it has not been induced to enter into these Conditions or the Contract by a statement or promise which they do not contain save that these Conditions shall not exclude any liability which the Company would otherwise have to the Client in respect of any statements made fraudulently by the Company.
In the event of one or more of the provisions of these Conditions being held by a competent authority to be invalid, illegal, or unenforceable, in whole or in part, the validity, legality or enforceability of the remaining provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
From time to time, the company, at its sole discretion may vary the conditions. The Client accepts and agrees to the conditions last published on www.hixtra.com or by reference to in any company correspondence issued to the Client. The Client further accepts that the last conditions available at www.hixtra.com supersede all other conditions previously issued or any other agreement or understanding whether verbal or written.
All notices to be served by one party on the other shall be deemed duly delivered or served two days after first class post delivery.
No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.
19. Law and Jurisdiction
These Conditions and the Contract shall be governed by and construed in accordance with the laws of the United Kingdom
20. Third Party Rights
For the purpose of the Contracts (Rights of Third Parties) Act, these Conditions do not and are not intended to give any rights or any right to enforce any of its provisions to any person who is not a party to it