Terms & Conditions

1. General

(a) Pavement & Airfield Concrete Testing Limited (P.A.C.T.) trades under the following Terms & Conditions and is referred to herein as ‘the Company’. The person, company, firm or other entity with whom the Company contracts to supply the Services is referred to as ‘the Client’.

(b) ‘The Services’ means laboratory and/or on-site sampling and/or testing of any kind, and any other works agreed to be carried out, including the production of the Report, as more particularly detailed in the Quotation and as may be amended by agreement of the parties.

(c) ‘Quotation’ means the quotation, tender, submission or other document (in whatever form) produced by the Company and sent to the Client.

(d) ‘Report’ means the factual report or reports and/or a data file of the results arising out of the Services produced by the Company.

(e) Unless otherwise expressly agreed in writing signed by one of the Company’s directors or other authorised official, the Company shall supply the Services only upon the terms and conditions herein, which shall prevail over any conflicting terms, conditions or stipulations contained in any document originated by the Client.

(f) To the extent that the Company’s contract with the Client includes the supply of Services other than testing services, any additional terms will be agreed on an individual contract basis and unless agreed in writing by a director or authorised official, these Terms and Conditions will apply and prevail.

(g) The Report will remain the property of the Company until payment has been made in full. Copyright in the content of the Report is retained permanently by the Company in accordance with the provisions of Clause 8.

(h) If any court or competent authority finds that any provision of these Terms and Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions shall not be affected. If any invalid or unenforceable provision would be valid and enforceable if some part of it were deleted, the parties shall negotiate in good faith to amend such provision to achieve the parties’ original commercial intention.

2. Scope and Standard of Work

(a) All laboratory analyses and in-situ workings shall be undertaken subject to the availability of the necessary equipment and personnel, and all such activities shall be undertaken subject to appropriate notice being given by the Client to the Company.

(b) The Company shall carry out the Services using reasonable skill and care.

(d) The Client shall provide all reasonable assistance to the Company so that the Company may comply with its obligations under these Terms and Conditions and shall provide such information and materials as the Company may reasonably require. The Client shall ensure that such information is accurate in all material respects.

(e) The Report shall be factual only and the Company shall not interpret or comment upon the results in the Report unless otherwise agreed in writing.

3. Charges

(a) The Client shall pay the agreed charges for the Services in accordance with Clause 5 herein. All rates and prices are given in pounds sterling and are exclusive of VAT unless otherwise stated.

(b) Quantities shall be re-measured on completion of the Services unless otherwise agreed in writing.

(c) The Client shall pay extra charges based on actual staff time expended (at cost plus 110% in respect of overheads and profit), together with any additional charges at cost plus 15% in respect of services supplied to the Company by Third Parties, where additional work is made necessary or special arrangements have to be made in any of the following circumstances:

I. At the Client’s request to expedite early completion of the Services; and/or

II. As a result of the unsatisfactory condition or unusual nature of the samples provided by the Client, or of the testing environment, which were not reasonably foreseeable at the time of providing the Quotation.

(d) All charges are subject to review in April each year, or as otherwise notified by the Company in writing.

(e) A minimum charge of £0.00 applies against any order and any invoice unless otherwise agreed in writing.

(f) Unless otherwise agreed in writing, all charges exclude VAT. The Client shall pay any applicable VAT at the rate ruling at the tax point, in addition to the charges payable.

4. Time for Completion

(a) Unless a period of time or a date for completion of the Services is specifically agreed in writing, the Company shall be obliged only to complete the work within a reasonable time.

(b) Any estimate of the time likely to be required for completion of the Services is given in good faith for guidance only. The Company shall have no liability to the Client for compensation for any loss or damage arising if the Company does not complete the work within the time estimated.

(d) Force Majeure. Should the Company be prevented or hindered in supplying the Services or any part thereof by reason of war, riot, explosion, flood, fire, strike, lockout, industrial dispute, shortage of materials or labour, equipment breakdown, or any other cause whatsoever beyond the Company’s control, the time for delivery or performance shall be extended by the period during which the said event prevented or hindered delivery or performance. The Company shall use its reasonable endeavours to reduce the period of delay so far as practicably possible.

5. Payment

(a) Unless otherwise agreed in writing, the Company is entitled to invoice for the Services and any applicable VAT when the Report is ready for delivery. For ‘cash’ accounts, payment is due at the time of order. For credit accounts, the due date for payment is 30 days from the date of invoice. The final date for payment is 7 days after the due date and shall be strictly net without discount or retention.

(b) No later than five days after payment becomes due, the Client shall notify the Company of the amount (if any) it proposes to pay and the basis on which that amount is calculated.

(c) The Client shall only withhold payment of a sum due after the final date for payment if it has notified the Company of its intention to do so. Such notice shall be effective if given not less than two days before the final date for payment and it specifies the amount proposed to be withheld and the reason(s) for withholding payment.

(d) A notice under Clause 5(b) shall suffice as a notice of intention to withhold payment if it complies with the requirements of Clause 5(c).

(e) The Client shall pay the Company interest on any overdue amount at the rate of 5% above Barclays Bank base rate for the period from the final date for payment until the date the debt is discharged.

(f) If the Client fails to pay in full any sum due by the final date for payment and has not given a notice of intention to withhold payment, the Company may suspend performance of its services by giving not less than seven days’ written notice to the Client stating its intention and the reason(s) for doing so.

(g) In the event of a lawful suspension of work, the Client accepts that the Company has the right at its absolute discretion to raise additional charges in respect of all expenses and disbursements properly and necessarily incurred in demobilisation and remobilisation.

(h) Further, the Company shall have the right to recover possession of and remove from the Client’s premises all plant and equipment of any kind belonging to the Company. The Client shall afford the Company free access and such facilities as may be necessary to effect such recovery.

6. Set Off

(a) The Client is not entitled to set off any claim of any kind whatsoever against payment of the contract price or other amounts owing to the Company.

7. Liability

(a) Where the Client supplies instructions on any matter relating to testing work, the Company shall not be liable for any loss, damage, error or mistake which results from following any of those instructions in good faith. Unless otherwise agreed in writing, the Client is responsible for selecting the specific tests required on site and in the laboratory. Where tests are undertaken on-site, the Client is responsible for selecting the locations and depths at which tests shall be performed and the specific requirements for samples to be taken.

(b) The Company’s liability to the Client in respect of the aggregate of all claims for negligent performance arising out of a single contract shall not exceed £25,000, or five times the value of that contract, whichever is the lesser.

(c) The Company shall not in any circumstances whatsoever be liable for any loss of profit or other consequential or economic loss suffered by the Client.

(d) Nothing in these terms acts to limit the Company’s liability for death or personal injury resulting from the Company’s negligence.

(e) The Company accepts no duty or liability in tort to the Client.

(f) No personal liability in either contract or tort is accepted by any of the individual Directors or staff of the Company in relation to any acts, omissions or defaults arising out of the provision of the Services to the Client.

8. Copyright

(a) The copyright in the content of the Report and all other documents provided by the Company as part of the Services shall remain vested in the Company. The Client shall have a non-exclusive licence to copy and use the Report and other documents for the purpose for which they were prepared and provided by the Company, but for no other purpose, subject to payment having been made in full of all fees for the Services.

(b) Unless otherwise agreed, the Report is confidential and is not to be disclosed to third parties. It may not be reproduced, except in full and in accordance with Clause 8(a), without the Company’s written permission. Test results and/or data shall not be extracted by others for any purpose whatsoever without the Company’s written permission, and under no circumstances shall any material amendment be made to the Report.

9. Samples

(a) The Company will retain, free of charge, all samples taken for the Client or submitted directly by the Client for testing or examination up to the date of test. Untested samples will be retained for a period of four weeks after submission of the Report. Should longer retention be required, the Client must request this within the standard four-week retention period; otherwise the samples will be disposed of at the Company’s discretion without further notification, at a cost of £1.00 per sample plus VAT. Longer retention will be subject to a charge for additional storage at a rate to be agreed at the time of the request.

(b) The Client will notify the Company of all significant hazards relating to the work to be undertaken which are known, or which the Client could reasonably ascertain, including the presence or suspected presence of asbestos or contaminated and hazardous material. Any related unforeseeable additional costs of sampling, testing and/or storage are to be agreed in advance.

(c) Notwithstanding the above, where samples are found during testing to be contaminated such as to require, by law, disposal to an ‘appropriate’ licensed site, the full cost of such disposal shall be an additional charge to the Client.

10. Concrete Cube Testing

(a) All test cubes are disposed of immediately after test at no charge, unless their return or retention is requested by the Client in writing before test.

(b) All test cubes failing to reach the strength specified by the Client will not be retained after test, unless the Client issues written instruction to the contrary. The Company reserves the right to charge for retained test cubes thereafter at a rate to be agreed at the date of the instruction.

(c) Unless the Client’s written instruction to the contrary is received prior to test, spare test cubes will only be retained when associated test cube results are suspect. Spare test cubes will otherwise be disposed of without being tested. Spare test cubes will only be retained where the Client fully completes the cube test sample form or specifies this in writing.

(d) Spare test cubes will be charged at the agreed rate whether tested or not.

(e) Test cubes due for test on a Sunday or Public Holiday will be tested on the next available working day following the holiday.

(f) It is the responsibility of the Client to fully complete the cube test sample form(s).

(g) An additional premium of 0% of the original cube rate will be applied when the Client requests a 56-day test.

(h) If the Client requests the programmed test date be brought forward, a ‘pull out charge’ of £15 per cube will be applied.

(i) One copy of the Report will be supplied to the Client. Additional copies will be subject to a charge of £50 each to cover the cost of production, unless the Company has expressly agreed otherwise in writing. Specialist reinstatement can be arranged by request at additional cost.

(j) Where Clause 11(a) applies, the Client shall obtain all necessary consents, licences and other rights (whether regulatory or proprietary in nature) necessary for the Company to provide the Services and shall provide evidence of such consents, licences or other rights to the Company.

11. Abortive Visits & Cancellation

(a) Where a scheduled visit is cancelled or aborted through no fault of the Company, the following cancellation charges apply:

I. Cancellation within 24 hours of the scheduled work time: Full charges apply.

II. Cancellation before 24 hours of the scheduled work time: No charges apply.

(b) The Company reserves the right to levy fees for costs incurred in the event of cancellation by the Client. In the event of non-payment by the due date, the Company reserves the right to levy an interest charge at the rate of 2.5% per month on the total value of the outstanding debt.

12. Concession and Waiver

(a) Any concession or waiver allowed by either party to the other at any time does not prevent that party from subsequently exercising its full rights under these Terms and Conditions in other respects.

13. Contracts (Rights of Third Parties) Act 1999

(a) Notwithstanding any other provision of these Terms and Conditions, nothing herein confers or purports to confer any right to enforce any of the Terms and Conditions on or by any person who is not a party to the contract.

(b) The Client shall indemnify the Company against all liability (including the cost of defending unsuccessful actions by Third Parties) arising as a result of the Company undertaking testing work in strict accordance with the Client’s instructions which infringes or is alleged to infringe any rights of any third party not notified to the Company by the Client in advance of commencement of the Services.

14. Temination

(a) The Client may terminate the contract in whole or in part at any time by written notice. In that event, the Client will pay the full cost of work done up to and including the date of termination.

(b) In the event that the Client terminates the contract prior to its completion, the Company shall have the right to complete such of the Services as are necessary to place its records in order, and where considered necessary to protect its professional reputation, to produce a report on the work performed to date. An additional charge not exceeding 20% of all charges incurred up to the date of the termination notice may, at the discretion of the Company, be made.

15. Termination Following Breach of Contract

(a) In the event of a breach of condition, either party may give ten working days’ written notice to the other setting out the acts or omissions relied upon as evidence of such breach, notifying its intention to terminate the contract unless the other party takes reasonable and expeditious steps to remedy the breach during the notice period. The party giving the notice may, on the expiry of the notice period without remedy of the breach, terminate the contract forthwith by a further written notice.

(b) If the Client shall become bankrupt or shall be served with or issue a bankruptcy petition; or if the Client being a company goes or is put into liquidation (otherwise than by voluntary liquidation for the purpose only of amalgamation or reconstruction); or if the Client shall enter into any arrangement or composition with its creditors; or if a Receiver of the Client’s assets or undertaking or any part thereof is appointed – the Company may at its option terminate the contract and refuse to make any further performance of the Services, without prejudice to any claim or right it may otherwise have or exercise.

16. Disputes and Differences

(a) Negotiation. The parties shall attempt in good faith to settle any dispute by discussion and negotiation, or mediation if appropriate and acceptable to both parties.

(b) Adjudication. Where the contract is a ‘construction contract’ within the meaning of the Housing Grants, Construction and Regeneration Act 1996 (as amended), either party may refer a dispute arising under the contract to adjudication at any time in accordance with the Construction Industry Council Model Adjudication Procedure.

(c) Litigation. All disputes arising under or in connection with the contract which cannot be resolved by negotiation, mediation or adjudication shall be referred to litigation in the English Courts.

17. Applicable Law

(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

(b) The Contract and these Terms and Conditions shall be governed by and construed in all respects in accordance with the Laws of England, and each party hereby submits to the exclusive jurisdiction of the English Courts.