1. Definitions. For the purposes of these General Terms and Conditions (the “Conditions”), the following words have the following meanings:

1.1 “Affiliate” means a Party’s directors, officers, employees, shareholders, agents, independent contractors, parent, subsidiary, or a company under common ownership with the Party;

1.2 “Client” means the party or parties (either directly or through a nominee authorised to act on behalf of the party or parties) entering into the Contract with SEED Environmental Limited;

1.3 “Contract” means the Proposal issued by SEED to Client and the Conditions, as either may be modified in writing by SEED and Client under Clause 20;

1.4 “SEED” means SEED Environmental Limited (incorporating trading divisions Seed Drilling and Seed Asbestos), registered in England and Wales with registered office at Salisbury House, Station Road, Cambridge, England (number 08487834);

1.5 “Party” means SEED or Client, as indicated by the context;

1.6 “Price” means the price set out in the Proposal or determined by Clause 5 (as the case may be), subject to adjustment pursuant to the Contract;

1.7 “Project” means the tasks stated in the Proposal and all additional tasks performed by SEED in connection with the Services;

1.8 “Proposal” means any document howsoever described, including but not limited to emails, letters, reports, quotations and variations thereof, issued by SEED to Client containing the description of the services, including any assumptions, conditions and limitations relating to the Project, in which SEED describes, and offers to perform, the Services;

1.9 “Services” means any work performed or to be performed by SEED for Client under the Contract; and

1.10 “Site” means any site(s) upon which the Services may be conducted or in relation to which the Services may be performed.

 

2. Interpretation. Words in the singular also include the plural and vice versa. Clause headings are for convenience only and shall not limit the meaning or construction of the Conditions. Any reference to a Clause means a clause of the Conditions. Any reference to a specific item as included within a general category shall not exclude items of a broader or similar nature, unless otherwise expressly stated. Unless otherwise agreed in writing, the Conditions shall govern the relationship between SEED and Client to the exclusion of any other terms and conditions put forward by or on behalf of Client.

3. Proposal. The Proposal shall be firm for a period of thirty days from the Proposal date, or for such period as is stated in the Proposal, after which SEED may withdraw or modify the Proposal. Except as otherwise expressly provided in the Proposal, fees, costs and time schedules stated in the Proposal constitute SEED’s estimated probable cost and time for the specified Services. The estimated probable cost shall not be deemed to be a guaranteed maximum price for performing the Services. If SEED at any time considers that a material change to the nature, time or extent of the Services is required or advisable, SEED shall notify Client of such change. No such change shall be made without Client’s consent or oversight, except as necessitated by a sudden event or an emergency, as discussed in Clause 7.

4. Standard of Care. In performing the Services, SEED shall exercise reasonable care and skill ordinarily exercised under similar circumstances at the same time by professionals performing substantially similar services at the same or similar locality.

5. Price. Where payment for the Services is on a time-and-expense or cost reimbursable basis:

5.1 Professional fees, expenses and subcontracting costs incurred in providing the Services shall be charged as indicated in the Proposal. Professional fees apply to all: (i) full-time, part-time, temporary and seconded employees of SEED and its related companies; (ii) temporary employees whose direct compensation is paid by a temporary staffing agency; and (iii) contracted consultants.

5.2 Professional fees stated in the Proposal shall be subject to annual adjustment by SEED on 1 January of each year or annually and, after reasonable notice to Client, at such time as billing rates of SEED personnel are adjusted in order to provide for promotions or salary increases to such personnel. If such professional fees are not stated in the Proposal, then rates shall be SEED’s standard professional fees at the time the Services are provided.

5.3 Expenses incurred in providing the Services shall be charged on the basis of actual cost to SEED and subject to the addition of a handling and administration charge of 15 per cent, or as agreed with Client prior to the contract commencing. Certain vendors and subcontractors offer SEED trade or volume discounts, rebates or other special pricing arrangements that may not be passed through to Client or reflected in invoices.

5.4 If SEED personnel are called or subpoenaed for a deposition, examination, hearing, tribunal, government inquiry or court appearance, or for a similar purpose by whatever name and in whatever jurisdiction in a dispute arising out of the Project and to which SEED is not a named party, Client shall reimburse SEED on a time-and-materials basis at SEED’s then effective professional rates plus 40 per cent. and for all costs incurred in connection therewith in accordance with Clause 5.3. Such Services shall be governed by the Contract.

6. Invoices and Payment.

6.1 Every Client shall undergo a credit check by SEED to ascertain their credit worthiness prior to SEED providing services. Should the Client not be cleared or considered credit worthy then full payment must be made by the Client prior to services being carried out unless written confirmation of payment terms has been agreed by SEED prior to the services commencing.

6.2 Within 5 business days of Client’s delivery to SEED of a signed acceptance of the Proposal, Client will pay the amount stated in the Proposal as SEED’s initial retainer for Project fees and expenses.

6.3 Except as otherwise specified in a Proposal, each invoice is payable by Client within fourteen days of the invoice date, unless alternative payment terms have been agreed with the Client..

6.4 All fees quoted are exclusive of value added tax or similar tax as is applied in the country in which SEED provides the Services, which shall be charged in addition at the prevailing rate. Unless the Parties agree otherwise, all payments by Client to SEED shall be made in British Pounds Sterling and by direct transfer to SEED’s bank account, details of which are set out in the relevant invoice. Invoices may be submitted to Client by SEED electronically.

6.5 Client shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the fees payable to SEED by way of set-off. Notwithstanding any facts and circumstances surrounding the Contract, Client shall pay SEED for the Services rendered to it regardless of whether the Services are intended in whole or in part to benefit a third party.

6.6 This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.

6.7 Unpaid balances shall be subject to interest at the rate of five percent (5%) per month above the current Bank of England base rate, or the maximum amount permissible under applicable law, whichever is less, starting fourteen days from the invoice due date. Payments received will be applied first to any accrued interest, with the balance of the payment then applied to any unpaid fees. In addition, SEED may, after giving two days notice, suspend the Services without liability until all past due accounts (including fees and accrued interest) have been paid. If SEED must take legal action to be  paid for the Services and prevails, all collection and legal costs associated with such action shall be reimbursed by Client.

6.8 Where services are delivered and such services extend beyondthe end of the calendar month, SEED may from time to time raise invoices for the amount of services delivered up to the end of each calendar month, and the Client shall pay each such invoices in accordance with clause 6.1 or in accordance with other written payment terms.

 

7. Force Majeure and Emergencies.

7.1 Price and time commitments under the Contract are subject to equitable adjustments for delays and changed conditions caused by Client’s or the Site owner’s failure to provide complete or accurate information, any required approvals or suitable access to a Site, or for delays and changed conditions caused by unpredictable occurrences or circumstances beyond the reasonable control of either Party, such as fires, floods, earthquakes, strikes, riots, war, kidnapping, terrorism, threat of terrorism and any resulting security measures, acts of God, changes in applicable law or regulations of any governmental authority, or the presence of hazardous materials or waste of a nature or in locations, quantities, concentrations or conditions which could not reasonably have been expected by SEED (“Force Majeure”).

7.2 If SEED determines that, based on circumstances surrounding a Project, the health or safety of its personnel or any subcontractor’s personnel or the environment or property of Client or others is or may be at risk in performing a Project such circumstances shall also constitute a Force Majeure and SEED shall have the right to take whatever measures it deems necessary to prevent any threatened damage, injury or loss and recover the reasonable and actual costs of such measures from Client. Where it is impracticable in an emergency situation to obtain prior Client authorisation, SEED shall be entitled to act pursuant to this Clause at its discretion.

8. Client Responsibilities.

Client shall be responsible for providing all reasonable assistance required by SEED in connection with the Services, including any assistance specified in the Proposal. In particular, where SEED havenot been instructed by the Client to provide the following services, theClient will provide SEED with the following:

8.1 Reasonable access to and egress from the Site by SEED and its subcontractors and their respective personnel and equipment.

8.2 Clean, secure and unobstructed space and areas at the Site for SEED’s and its subcontractors’ equipment and vehicles.

8.3 Specifications (including facility and Site schematics, engineering drawings and plot plans) detailing the construction of facilities located underground or aboveground at the Site that pertain to the stated scope of work or are necessary to assist SEED in performing the Services and in successfully carrying out the Project.

8.4 Approval of each specific location for boring, drilling, excavation or other intrusive work and identification of concealed or underground utilities, structures, obstructions, obstacles or sensitive conditions before SEED commences work at the location. If Client does not identify the location of the concealed and underground items or approve each location of intrusive work, Client shall indemnify and defend SEED against any damage, loss, harm or injury arising therefrom.

8.5 All information related to the Project in Client’s possession, custody or control reasonably required by SEED. SEED has the right to rely, without independent investigation or inquiry, on the accuracy and completeness of any information provided by, on behalf of or at the request of Client or any governmental authority to SEED or anyone providing services for SEED relating to the Services. Client agrees to review all Proposals, designs, schematics, drawings, specifications, reports and other required Project deliverables prepared by SEED for Client for the accuracy and completeness of factual information provided by or on behalf of Client for inclusion therein and to make available to SEED any further information within Client’s possession that

8.6 If the Services involve electronic data files that are maintained by or for Client, Client shall be responsible for maintaining backup copies of all such files.

8.7 It is a condition on which SEED undertakes to provide the Services that Client will not, without SEED’s prior consent in writing, offer to employ or employ any SEED employee who is engaged in the performance of the Services, during the period of employment or during a period of one year after the employee has ceased being employed by SEED.

9. Insurance.

SEED shall maintain policies of insurance for, employer’s liability with a limit of liability of ₤10,000,000 and the following types of coverage each with a limit of liability of ₤1,000,000: (i) combined liability (public and products); (ii) professional indemnity ; and (iii) contractor’s liability.

10. Limitation of Liability.

10.1 To the extent permissible under applicable law, in noevent shall Client and its Affiliates or SEED and its Affiliates, be liable to the other or anyone claiming by, through or under them, including insurers and private property owners, for any lost, delayed, or diminished profits, revenues, production, business, use or opportunities, or any incidental, special, indirect, or economic losses, wasted costs, diminution of value or consequential damages, of any kind or nature whatsoever, however caused.

10.2 To the extent permissible under applicable law, in no event shall SEED and its Affiliates be liable (whether under contract or in negligence or under any other law) to Client and its Affiliates and anyone claiming by, through or under them, including insurers or private property owners, for any amount in excess of One Million Pounds Sterling (£1,000,000) in the aggregate, or ten times the contract value, whichever is the lower value.

10.3 Any and all liability of SEED and its Affiliates in respect of the Services (whether under contract or in negligence or under any other law) shall cease upon the expiry of six years from the date of the final invoice for the Services, save in respect of any claim notified in detail to SEED in writing prior to the expiry of such period, provided that the liability of SEED and its Affiliates shall absolutely determine if legal proceedings in respect of any such claim shall not have been commenced by Client or its Affiliates against SEED or its Affiliates within 12 months after notification of the claim by Client to SEED.

10.4 In the event that the services to be provided by SEED involve testing or analysis on any materials or air, SEED does not make any representation or warranty of any nature, express or implied that such testing and or analysis will achieve any particular results.

10.5 Other than pursuant to Clause 4, no representation, warranty, condition or other term express or implied as to the quality or nature of the Services is given or accepted by SEED, and all such representations, warranties, conditions and other terms are excluded to the fullest extent permitted by law. If the Services include (i) estimating the cost or potential cost of remediation, (ii) estimating the cost of compliance, or (iii) assessing the type, concentration, nature or quantity of any substance, waste or condition at, on or in a Site or structure, based on information provided by Client or a third party or on representative sampling or inspection of any Site or structure conducted by SEED, SEED will prepare such estimate or assessment based upon its experience and, in some instances, the application of a method for estimating or assessing conditions based on representative or random sampling or inspection. Due to the nature of such Services, including, without limitation, the potential for the estimate or assessment to be based on incomplete or inaccurate information or anomalous samples, SEED does not warrant or guarantee the accuracy of any such estimate or assessment.

10.6 Client agrees that SEED and its Affiliates shall not be liable to Client and its Affiliates or any third party for the creation or existence of any type of hazardous or toxic waste, material, chemical, compound or substance, or any other type of environmental hazard, contamination or pollution, whether latent or patent, or the release thereof or the breach of any law or regulation relating thereto, existing at the Site prior to commencement of the performance of the Services (“Pre- Existing Condition”), and Client shall indemnify and hold harmless SEED and its Affiliates from any and all damages sustained by them in connection with any Pre-Existing Condition except to the extent any such Pre-Existing Condition is exacerbated by the negligence or willful misconduct of SEED or its Affiliates.

10.7 The provisions of this Clause 10 shall: (i) apply to the fullest extent allowed by applicable law irrespective of whether liability of SEED or Client or their Affiliates is claimed, or found to be based in contract (including breach of warranty or contract), tort (including negligence or negligent misrepresentation), strict liability, or otherwise, and (ii) survive the completion of the Services or the expiration, cancellation, or termination of this Contract.

10.8 Client acknowledges and agrees that the limits on SEED’s and its Affiliate’s liability in this Clause 10 are agreed by reference to the Price, the financial resources of SEED, the nature and extent of the Services and the availability of professional indemnity insurance on reasonable commercial terms. Accordingly, Client acknowledges and agrees that the provisions of this Clause 10 satisfy any requirement of reasonableness under any law applicable to the Contract and any claims relating to or arising in connection with the Contract.

10.9 Notwithstanding the above provisions, nothing in the Conditions shall in any way be deemed to exclude or restrict either Party’s liability for death or personal injury (for which no financial limit will apply) caused by that Party’s negligence.

11. Hazardous Material and Waste.

Client acknowledges that, whereSEED or its Affiliates or sub-contractors keep, handle, transport or dispose of any hazardous material or waste in the course of providing the Services, they do so as agent for Client. Client shall be deemed to be the producer of and the person responsible under applicable law in respect of such hazardous materials or waste and shall execute all documents and do all such other things as may be necessary to ensure that Client is recognised by the relevant authorities as the producer and responsible person for these purposes. Where SEED so requires, Client shall contract directly with the relevant persons involved in the keeping, transporting, handling or disposal of such hazardous materials or waste in relation to the provision of the Services. Client shall indemnify and hold harmless SEED and its Affiliates in respect of any loss, damage, expense or claim by any person which directly or indirectly results from the handling, transport or disposal of hazardous material or waste in connection with the Services.

12. Termination.

This Contract may be terminated in whole or in part in writing by either Party upon: (i) a breach by the other Party of a material obligation of such Party under the Contract, (ii) a Force Majeure event delaying the provision of the Services for sixty days or more, or (iii) in the event of a petition being presented or meeting convened for the purpose of winding-up the other Party, the other Party becoming the subject of an administration order or entering into liquidation (whether compulsorily or voluntarily) or the other Party compounding with its creditors generally or having an administrator, receiver, or administrative receiver appointed over all or any part of its assets. Provided that, no such termination shall beeffective unless the breaching Party is given: (i) not less than ten calendar days’ written notice of intent to terminate; (ii) an opportunity for consultation with the terminating Party prior to the effective date of such termination; and (iii) a reasonable opportunity to cure any breach to the extent that such breach can be cured. The foregoing notwithstanding, if Client fails to pay any invoice within 2 business days of its due date, SEED may terminate the Contract and stop work on any Project immediately upon dispatch of notice to Client. Client may terminate the Contract for Client’s convenience upon two weeks prior written notice to SEED, in which event Client shall pay, in accordance with the terms of Clause 6, all outstanding payments for the Services accrued up to the date of termination and reasonable costs incurred by SEED as a result of  such termination, including demobilisation costs. SEED shall calculate a final invoice following the effective date of termination.

13. Use of Name.

Client agrees that SEED has authority to use Client’s name as a client and to use a general description of the Project in any published materials or written or oral presentations, provided SEED does not disclose any information which is confidential.

14. Third Parties and Reliance.

14.1 Except for the Parties, any Affiliate of a Party that is specifically identified by name in the Contract, and any SEED Affiliate that provides service relating to the Contract, no other person shall be entitled to: (i) enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999, or (ii) rely on the Services or work product generated by or for SEED pursuant to the Contract (“SEED’s Work Product”). Client agrees to indemnify and hold harmless SEED and its Affiliates from and against any claims resulting from any act or omission by Client or its Affiliates resulting in a third party relying on SEED’s Work Product.

14.2 SEED may grant a limited number of third parties (individually, “Recipient” and collectively, “Recipients”) the right to rely on Work Product, provided that each Recipient is a financial institution or other corporate body, specifically identified by name in the Proposal, any agreed consideration is paid, and each Recipient executes and delivers to SEED a copy of SEED’s standard reliance letter, a copy of which will be provided to Client and each Recipient on request. The reliance letter shall govern each Recipient’s right to rely on Work Product, and the limitation of liability set forth in Clause 10.2 shall apply in aggregate to Client, all Recipients and any third party who relies on Work Product. It is incumbent on Client to raise any request for third party reliance prior to SEED’s delivery of its Proposal to Client.

15. Confidentiality.

All documents, information and advice provided to SEED or its Affiliates in the course of the Services and all confidential information concerning Client or any of Client’s activities or any Site shall be treated by SEED as confidential and shall not be disclosed to any third party (other than SEED’s professional advisers and Affiliates on a need to know basis) unless: (i) Client gives its prior written consent, (ii) SEED is required by law or by any governmental authority to make the disclosure, or (iii) the document or information or advice enters the public domain other than through fault of SEED or was in SEED’s possession prior to the disclosure by Client. Notwithstanding the terms of any separate confidentiality undertaking(s) agreed between SEED and Client, SEED shall always be entitled to retain an archive copy of any work product produced by SEED under the Contract, provided that SEED will treat such information as confidential, as above.

15.1 Under GDPR, SEED has responsibility to clients, suppliers, employees and other third parties as documented in our published GDPR policy for the way in which SEED collects, retains, uses and disposes of information controlled under GDPR. Instruction of these services also forms agreement to and acceptance of SEED’s GDPR policies.

16. Freedom of Information Act 2000 (“FOI”).

If Client is a public authority or SEED, based on the nature of its work is or may be deemed to be a public authority, within the meaning of FOI or similar regulations and either Client or SEED receives a request to disclose any advice, documentation or information relating to the Services, including for the avoidance of doubt a request to disclose whether or not such information is held by Client or SEED, the Party receiving the request will promptly consult the other Party, and take the other Party’s comments into account prior to making any disclosure and, if requested by the other Party, work with the other Party to ensure that exemptions or other legitimate means of ensuring that no disclosure is made are utilised to the extent reasonably possible. All time costs and expenses incurred by SEED in fulfilling or addressing requests for information relating to the Services under FOI or similar regulations shall be reimbursed in full by Client, irrespective of whether such request is made directly to SEED, Client or otherwise.

17. Copyright.

Client acknowledges and agrees that SEED shall retain ownership rights in all work product conceived, developed or made by SEED and its Affiliates in the performance of the Services. SEED agrees to grant to Client a non-exclusive, irrevocable, royalty-free license to use such work product for the purposes specified in or implied by the Proposal. Full payment for the Services is a condition precedent to Client’s rights in SEED work product. Client acknowledges and agrees that SEED shall maintain all ownership rights in technical information, inventions, discoveries, improvements, and copyrightable material, made or conceived by SEED prior to its commencing performance of the Services or developed by SEED outside the scope of the Services.

18. Governing Law and Forum.

The Contract shall be governed by the laws of England and SEED and the Client irrevocably agree that the courts of England have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which arises out of, or in connection with an Agreement.

19. Severability.

Each of the provisions of the Conditions is distinct and severable from the others and if at any time any one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision toany other extent) of the Conditions shall not in any way be affectedor impaired and the Parties agree that they will substitute provisions in a form as similar to the offending provision as is possible without thereby rendering them invalid, unlawful or unenforceable.

20. Miscellaneous.

Upon Client’s acceptance of the Proposal, the terms of the Contract shall constitute the entire understanding between the Parties and the full and final expression of such agreement superseding all prior and contemporaneous agreements, representations or conditions, express or implied, oral or written. A variation of the Contract, other than as contemplated by Clauses 3 and 7, is valid only if it is in writing and agreed by or on behalf of each Party. Notwithstanding the foregoing, a variation to the Contract is valid if Client otherwise consents to, or knowingly accepts the benefit of, SEED’s performing the Services under the Contract subject to the variation. The provisions of Clauses 6, 10, 13 to 18 and any and all provisions of the Contract which by their nature generally would be construed as surviving a termination of the Contract, shall survive the completion of the Services or the expiration, cancellation or termination of any agreement between SEED and Client, and shall apply to the fullest extent permitted by law. A Party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Contract shall give Notice in writing by one of the following methods of delivery, each of which for purposes of this Contract is a writing: (i) personal delivery; (ii) registered or certified mail, return receipt requested and postage prepaid; (iii) internationally recognised overnight courier, all fees prepaid; (iv) facsimile; or (v) email. Notice shall be provided to the persons identified in the Proposal.

21. Additional Conditions.

Set forth on any Addendum attached to and made a part of these Conditions by SEED, or set forth in the Proposal for the Services, are additional provisions (if any) that address issues relating to the Project or certain applicable laws and regulations governing SEED’s performance of the Services.