Terms & Conditions

Earthworks Testing Limited. Units 6, Eco Park, Eco Way, Dunscroft, Doncaster, DN7 4JJ.
Registered in England and Wales, Company No 14251352

CONDITIONS OF SALE

The following standard conditions apply to every order accepted by or contract entered into by Earthworks Testing Limited (“the Company”) for the provision of testing, investigation, evaluation, consultancy and research services, certification, accreditation and training services.

1. DEFINITIONS

1.1 In these Conditions:-
“Condition” means a condition or clause of these Conditions;
“Conditions” means the Company’s standard conditions of sale set out in this document (which supersede any earlier set of conditions appearing in the Company’s brochure or elsewhere) together with any other special conditions specified on the Quotation or otherwise;
“the Contract” means the Quotation, the Order and the Company’s acceptance thereof, together with the Conditions;
“Delivery” means, where the Services comprise the production of reports or test results, the dispatch by the Company of those results or reports by post or other carrier to the Client and the expression “delivered” shall be construed accordingly;
“the Client” means the person specified on the Quotation whose Order is accepted by the Company;
“the Goods” means the goods, materials and/or other items which may be part of the Contract and upon which the Services are to be conducted and shall include any part of them;
“the Order” means the written order placed by the Client on the Company for the provision of the Services;
“the Quotation” means any written quotation or tender submitted by the Company or any verbal quotation or tender which is subsequently confirmed in writing;
“the Services” means the services described in the Order to be performed by the Company;
“Report” means any report, recommendation or the like issued by the Company in respect of the Services;
“Sample” means any material supplied by the Client to form the basis of a Test; “Services” means the services specified in the Quotation ;
“Test” means any testing, analysis, assay or the like specified in a Quotation or Proposal;
“Test Certificate” means any test certificate, recommendation or the like issued by the Company in respect of a Test.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. OFFER AND ACCEPTANCE

2.1 The Company shall supply and the Client shall receive the Services in accordance with any Quotation which is accepted by the Client, or any Order which is accepted by the Company in writing subject to any variation set out in such acceptance, subject in either case to these Conditions.
2.2 All Quotations are made and all Orders are accepted subject to the Conditions. These Conditions override any other terms, conditions or warranties which the Client may subsequently seek to impose.
2.3 No variation or supplement to the Conditions shall be binding on the Company unless expressly accepted by the Company in writing.
2.4 No Contract shall come into existence until the Client’s Order has been accepted in writing by the Company.
2.5 Quotations shall be available for acceptance for a maximum period of 90 days from the date when given (or such longer period as the Company specifically agrees in writing) and may be withdrawn by the Company within such time period at any time by written or oral notice.
2.6 If any statement or representation has been made to the Client by the Company or its servants or agents upon which the Client relies other than in the documents enclosed with the Quotation or acknowledgement or acceptance of Order then the Client must set out that statement or representation in a document to be attached to or endorsed on the Order and in any such case the Company may confirm, reject or clarify the point and submit a new Quotation.
2.7 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of Order, invoice or other document issued by the Company shall be subject to correction without any liability on the part of the Company.
2.8 The Company shall be at liberty to withdraw from any negotiations or otherwise until such time as the Contract shall have become binding without being under any liability whatsoever to the Client.
2.9 Any advice or recommendation given by the Company or its employees or agents to the Client or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Client’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.

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 for ensuring the accuracy of the terms of the Order and shall give the Company any necessary information to enable the Company to proceed with the Contract. Any failure to do so will allow the Company to charge the Client an additional price for any delay or to terminate the Contract immediately.
3.3 The Client shall indemnify the Company and its sub-contractors against all claims, damages, costs, penalties and expenses incurred by the Company or its sub-contractors to which the Company may become liable if any work done in accordance with the Client’s specifications or requirements involves an infringement of a registered design, trademark, patent or other intellectual property right.
3.4 No Order which has been accepted by the Company may be cancelled by the Client except with the written agreement of the Company and on terms 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 a result of cancellation.
3.5 All Services are confidential to the Client and any report or certificate issued by the Company shall not be issued or reproduced by the Client (in whole or in part) to any third party without the Company’s written authorisation.
3.6 If a Client wishes to copy any report produced by the Company as part of the Services, it must obtain written permission from the Company on each occasion. The Company shall be entitled to withhold its consent in its absolute discretion. Subject as aforesaid only complete reports may be copied and passed to third parties. No omissions or additions are allowed. Results supplied in reports shall not be used in advertising or promotional literature without the Company’s express permission.
3.7 The Client shall and must inform the Company at the outset if the Services are known to be required for the purpose of litigation. If the presence of the Company’s staff will be required at a court or other judicial or quasijudicial hearing, or the report required as evidence in a dispute, ample advance notification is required in order to provide time for discussion between expert witness and legal representatives and/or for consideration of all relevant documentation. The Company must be shown full particulars of any claim which is pursued or defended.
3.8 Results of all tests quoted in reports issued by the company, relate only to the sample supplied and should not be construed or interpreted in any other way. The Client is advised to ensure that a sufficiently large sample, securely packaged and clearly identified, is supplied for the tests required. Any opinion, interpretation or comments marked “Not UKAS” in a report are not included in the UKAS Accreditation Schedule for the Company and are outside the scope of UKAS accreditation.
3.9 Tests marked “Not UKAS” accredited in a report are not included in the UKAS Accreditation Schedule for the Company’s laboratories and are outside the scope of the Company’s accreditation.
3.10 Where a report is produced as part of the Services, the report together with the Contract shall constitute the entire agreement and understanding between the Company and the Client in respect of the Services and supersedes all other agreements, statements, representations or warranties (other than any made fraudulently) which may have been made verbally by or between the parties and all prior representations and expressions of opinion by any party (or its agent) to any other party (or its agent).
3.11 Save as specifically and expressly set out in any written report issued by the Company, the Company gives no warranty that the Goods (being of the Client’s design and manufacture) will be of satisfactory or merchantable quality and/or reasonably fit for their purpose.

4. PRICE

4.1 The price for the Services shall be the price quoted on the Quotation or in the absence of any price being quoted, on the Company’s current list price ruling at the time the Order was made. Until an Order has become binding on the Company all specifications and prices are subject to change without prior notice. A verbal Quotation shall only be binding to the extent it is confirmed in writing.
4.2 All prices are exclusive of value added tax and similar taxes, levies, courier charges or duties, which the Client shall be additionally liable to pay to the Company.
4.3 The Company reserves the right, by giving notice to the Client, at any time before completion of the Services, to increase the price of the Services to reflect any increase in the cost to the Company in executing the Contract due to any factor beyond the reasonable control of the Company (such as, without limitation, any increase in the cost of labour, raw materials, overheads, or currency), any change in completion dates, quantities, or specifications for the Goods arising as a result of any error or omission or changes deemed necessary by the Client, or any delay or interruption in the Contract not attributable to the Company.

5. TERMS OF PAYMENT

5.1 Unless otherwise agreed in writing, the Company shall be entitled to invoice the Client on completion of the Services or, where the Services are of a long term nature, on an interim basis from time to time.
5.2 The Company reserves the right, at its option, to require payment in part or in full for the Services prior to the work being done and reserves the right to withhold any test result or certificate until such payment is received.
5.3 Unless otherwise agreed by the Company in the Contract the terms of payment shall be 30 days from the date of invoice. Receipts for payment will only be issued on request.
5.4 The time of payment of the price shall be of the essence of the Contract.
5.5 No right of set-off shall exist in respect of any claims by the Client against the Company unless and until such claims are accepted in full by the Company in writing and the Client shall not withhold all or any part of any sum which has become due for payment under the Contract.
5.6 If the Client fails to make any payment due to the Company (whether under the Contract or otherwise) on the due date then, without prejudice to any other right or remedy available to the Company, the Company reserves the right to:-
5.6.1 cancel the Contract so far as any Services remain to be performed under it; and
5.6.2 charge the Client interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above Barclays Bank base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

6. EXECUTION OF TESTS

6.1 The Test 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.
6.2 The Client shall supply as much information as possible about each Sample in order to assist in achieving an efficient Service. Where Samples are incorrectly described and the Company is involved in additional work, the Company reserves the right to charge for such additional work.
6.3 Unless specific prior instructions in writing are received by the Company, the 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 Test.
6.4 Methods of carrying out the Test shall be at the sole discretion of the Company unless specific prior instructions in writing are received by the Client specifying a particular procedure which are agreed to by the Company. Charges for such special procedures will be negotiated and agreed to between the Company and the Client prior to carrying out the Test.
6.5 A general description of the method used in the Test shall be given verbally on request. Where written descriptions of detailed procedures are requested, whether as part of the Test Certificate or issued separately, the Company reserves the right to make an additional charge. If the method needed in the Test 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.
6.6 If special standards or equipment are used in the Test, they shall be invoiced in addition to the charge of the Test itself.
6.7 The Company may, at its sole discretion, undertake to give priority in carrying out a particular Test. 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.)

7. RISK

7.1 The risk of damage to or loss of the Goods shall only pass to the Company, in the case of Goods to be delivered at the Company’s premises, at the time when the Goods are unloaded safely and are in the Company’s possession and control.
7.2 Risk shall pass back to the Client ten business days following the date of the Company’s final invoice and the Company shall no longer be responsible for the insurance or storage thereof, save where, and to the extent that, any rules and regulations applicable to the Company provide for or require the Company to store a sample of the Goods with the final report.
7.3 Unless specifically agreed otherwise in writing it shall be at the discretion of the Company as to whether the Services require destructive testing and in such circumstances, where it determines that this is required, the Company shall have the right to destroy the Goods (or part of the Goods).
7.4 Without prejudice to any other right of disposal the Company may have under these Conditions, the Company shall have the right to destroy Goods after the completion of the Services.
7.5 When Goods have not been collected by the Client following a written request to do so from the Company the Company shall be entitled to render a reasonable charge to the Client for the cost of storing and/or disposal of the Goods.

8. TITLE

8.1 Title in the Goods or any part of them shall not pass to the Company, unless the Client has informed the Company to the contrary before delivering them to it.
8.2 It is the Client’s responsibility to deliver the Goods which form part of the Services and to collect them upon completion of the Services.

9. LIMITATION OF LIABILITY

9.1 Where the Goods are delivered to the Company for the Services and such Goods are, under the Contract, returnable to the Client then if the Company is unable for any reason to return the Goods to the Client (taking into account Condition 7.3), the Company’s liability in respect of the missing Goods shall not exceed the replacement cost of goods of the same description, if available in the United Kingdom, or if they are not available there, their cost to the Client.
9.2 Where the Client supplies inconsistent instructions on any matter relating to the Services, the Company shall not be liable for any loss, damage, error or mistake which results from following any of those instructions in good faith.
9.3 Subject to Condition 9.11 the Company shall not be liable to the Client for any loss or damage, whether direct, consequential or otherwise, resulting from any inaccuracy in the results reported unless caused by the Company’s negligence.
9.4 Subject to Condition 9.11 and further to Condition 3.5 and 3.6, the Company shall not be liable to any third parties who rely on the information given in any report produced as part of the Services.
9.5 Reports are based on the law, methods, technology and conventional wisdom and knowledge available or current at the time and the Company shall not be liable to the Client for any changes in the same which become available after the date of any such report.
9.6 Subject to Condition 9.11 in no circumstances shall the Company be liable to the Client, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof:
9.6.1 for any increased costs or expenses;
9.6.2 for any loss of profit, business, contracts, revenues or anticipated savings; or
9.6.3 for any special indirect or consequential damage of any nature whatsoever; arising directly or indirectly out of the provision of the Services or of any error or defect therein, or of the performance, non-performance or delayed performance of the Company.
9.7 The Client agrees with the Company that if the Client shall suffer loss or damage as a result of any breach of any of the terms of the Contract by the Company or its servants or agents or as a result of the negligence of the Company or its servants or agents then the liability of the Company in respect of such loss or damage (taking into account Conditions 9.1 to 9.6) shall be limited to the lower of the following:-
9.7.1 the actual amount of any loss or damage suffered by the Client; or
9.7.2 a sum which is equal to 10 times the price of the Services charged to the Client; or
9.7.3 the sum of one million pounds (£1,000,000)
9.8 The limitation of the liability of the Company as referred to in Condition 9.7 shall subsist indefinitely notwithstanding the termination or completion of the Contract.
9.9 The Client shall be responsible for arranging any insurance cover and paying all premiums to afford protection in respect of any loss or damage which it may suffer as a result of any breach failure or negligence upon the part of the Company or its servants or agents as referred to in Condition 9.7.
9.10 The limitation of liability contained in Condition 9.7 shall extend and apply not only to the Company but also to its servants and duly authorised agents.
9.11 The limitation of liability contained in Condition 9.7 shall not apply to any liability of the Company for any death or personal injury arising as a result of the negligence of the Company, as defined by Section 1.1 of the Unfair Contract Terms Act 1977.

10. ACCEPTANCE OF LIMITATION OF LIABILITY BY THE CLIENT

10.1 the client agrees and accepts that, with regard to the limitation of liability contained in the preceding condition, such limitation of liability is perfectly fair and reasonable having regard, inter alia, to the following circumstances:-
10.1.1 That the potential losses which could or might be caused as a result of any breach or negligence as referred to in condition 10 are greatly in excess and wholly disproportionate to the amount which is being charged by the company to the client in respect of the provision by the company of the various services referred to in the contract;
10.1.2 That the company is anxious to keep its charges in respect of the services provided by it to as low a level as reasonably possible, for the benefit of the client and all the company’s other clients;
10.1.3 That, while the company and the client regard the level of insurance cover held by the company as being adequate and reasonable the cost of additional insurance cover would be disproportionately expensive given the nature of the services and the price being paid by the client.
10.2 The client confirms that:
10.2.1 It has read and fully understands the terms of both condition 9 and condition 10;
10.2.2 It has been offered the opportunity to pay a higher charge for the services in return for the company accepting a higher level of liablity but has declined to do so;
10.2.3 It accepts the limitation of liability in condition 9 on this basis.

11. INDEMNITY

11.1 The Client undertakes to indemnify the Company against all claims relating to or arising from the Services supplied to the Client by he Company in respect of any loss, damage or expense sustained by any third party howsoever caused save for death or personal injury caused in whole or in part by the Company’s negligence.

12. DEFAULT OR INSOLVENCY OF CLIENT

12.1 Condition 12 applies if:-
12.1.1 the Client defaults in any of his commitments with the Company; or
12.1.2 the Client makes any voluntary arrangement with his creditors or becomes subject to an administration order or becomes bankrupt; or (being a company) goes into liquidation (other than for the purposes of amalgamation or reconstruction); or
12.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property and assets of the Client; or
12.1.4 the Client ceases, or threatens to cease, to carry on business; or
12.1.5 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.
12.2 If Condition 13 applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel any uncompleted Contract forthwith and to withdraw any certificates that have been awarded or offered.
12.3 In the event of an occurrence as outlined in Condition 12.1, then the Client shall indemnify the Company against all loss including loss of profit, costs (including the costs of labour and materials used and overheads incurred) and all other expenses and damages connected with the Contract and its cancellation.
12.4 If the Client shall become aware that any of the circumstances mentioned in Condition 12.1 has or is likely to occur, then the Client shall inform the Company of the occurrence or likely occurrence of such event immediately.
12.5 The Client shall indemnify the Company in respect of all legal administration and other costs and expenses resulting from any breach by the Client of these Conditions, or the Contract or its lawful termination by the Company.

13. FORCE MAJEURE

13.1 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 failure to perform, any of the Company’s obligations in relation to the Contract if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:-
13.1.1 Act of God, explosion, flood, tempest, fire or accident;
13.1.2 war or threat of war, sabotage, civil disturbance or requisition;
13.1.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
13.1.4 import or export regulations or embargoes;
13.1.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or a third party);
13.1.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
13.1.7 power failure or breakdown in machinery.
13.1.8 lack of co-operation by the Client.

14. INTELLECTUAL PROPERTY

14.1 All intellectual property including but not limited to copyright in any report or other written material produced by the Company shall belong to the Company and shall not, save as specifically agreed otherwise in writing, be reproduced or copied in whole or in part. Any report delivered to the Client by the Company shall remain the property of the Company.

15. SUBCONTRACTING

15.1 The Company reserves the right to subcontract the fulfilment of the Order or any part of it and may, at its discretion, subcontract the Services to any laboratory that fulfils the regulations in the current UKAS quality system.
For Testing Activities covered by Earthworks Testing Limited accreditation to BS EN ISO/IEC 17025:2000, the client will be notified of the requirement for sub-contracting as part of the standard contract review process.
15.2 The Company shall subject to these Conditions be responsible to the Client for the actions and omissions of subcontractor, save where the Client or a regulatory authority has specified which subcontractor is to be used.
15.3 The Company shall maintain a register of all subcontractors that it uses for tests and a record of the evidence of compliance with regulatory bodies.
15.4 Where any part of the Services are performed by any person as subcontractor or agent for the Company, these Conditions shall, mutatis mutandis apply in respect of the work or services performed by that person.

16. GENERAL

16.1 Any notice or report required or permitted to be given by either party to the other under these Conditions or Services shall be in writing addressed to that other party at its registered office or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice or report.
16.2 No waiver by the Company of any breach of the Contract by the Client shall be considered a waiver of any subsequent breach of the same or any other provision.
16.3 If any of the provisions of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions in question shall not be affected thereby.
16.4 The Contract shall be governed by the laws of England and for the purposes of settlement of any disputes arising out of or in conjunction with these Conditions or the Contract the parties hereby irrevocably submit themselves to the exclusive jurisdiction of the English Courts.
16.5 This Contract is between the Company and the Client and is not assignable without the consent of the Company.
16.6 The breach of any Holding, Subsidiary, or Associated Company (as defined in Section 736 of the Companies Act 1985 as amended) of the Client of any of the terms and conditions of any contract agreement or other arrangement with the Company shall be deemed to be a breach of the terms of the Contract and shall entitle the Company to take or refrain from taking all acts and remedies to which it is entitled under these Conditions as if such default had been a breach or default under the Contract.
16.7 Save in the case of subcontractors, or other agents of the Company no person who is not a party to the Contract shall be entitled to enforce any provision of the Contract and to that extent the Contract (Rights of Third Parties) Act 1999 shall not apply to any provision of the Contract.