The BNG Guy

Terms


TERMS     
THIS DOCUMENT MAY CHANGE ON OCCASION. PLEASE ALWAYS ASK US BEFORE ACTING ON ANY MATTER.

Acceptance

  • The commissioning of Scott Latham Ecological Biodiversity Ltd (hereinafter “The BNG Guy or WE/US”) to carry out any services includes acceptance of these standard terms of trading. The services performed and any resultant data and opinions are for the sole use and benefit of the clients.

Access and Site Boundaries

  • Access to the site by The BNG Guy personnel will always be free and unhindered. This includes hours of darkness for work involving nocturnal species. Requirements to notify clients’ site staff or their agents in advance of site visits can only be honoured if details are received by The BNG Guy at the time of commissioning. The BNG Guy may make an additional charge for any time costs or expenses incurred which are wasted because of the client for any reason not making the site available.
  • Clients must ensure that a base map showing complete and accurate site boundaries is provided at the time of commissioning. The BNG Guy may make a supplementary charge for any additional base maps which have to be drawn or obtained.

Safety

  • It is the client’s responsibility to declare in advance any known dangers of the site or its environs such as, but not limited to, shooting subsidence, mine shafts and unsafe structures, bulls, polluted waters, chemical toxicity and dangerous substances. The BNG Guy will perform its duties subject to its obligations under the Health and Safety at Work Etc. Act 1974 and amends. The BNG Guy may if it thinks fit require and as a condition of starting or continuing the performance of the services a preliminary risk survey accompanied by the client or its representative. If The BNG Guy believes that the site is dangerous then it may decline to continue or may renegotiate additional terms/safeguards as a condition of continuing. If The BNG Guy declines to continue the client shall pay for any work done to date on a fair and reasonable basis. In any event, the client shall pay for The BNG Guy’s time in respect of such a risk survey.

Allocation of personnel

  • The BNG Guy reserves the right to allocate appropriate project managers and other personnel to contracts. Names of staff and qualifications can be provided on request but may be changed as circumstances require. The right is also reserved to sub-contract elements of the services wherever needed for the satisfactory execution of a contract.

Liability and Insurance

  • The BNG Guy does not exclude or limit liability for the death of any person caused by the negligence of itself its employees or contractors nor for any liability created by fraud.
  • The BNG Guy is covered by appropriate insurance.
  • Under no circumstances shall The BNG Guy be liable for any loss of profits revenue goodwill third-party claims nor any liability like an indirect or consequential loss.
  • The BNG Guy does not accept liability howsoever caused which the client may suffer or for which the client may become liable arising out of or in connection with any services carried out on behalf of the client by The BNG Guy save insofar as the loss damage costs or expenses arose as a foreseeable consequence of the negligence of The BNG Guy or its direct employees or contractors for whom it is responsible.
  • The BNG Guy shall professionally perform the services using all reasonable care and skill. If the services provided are shown to be below this standard, then The BNG Guy shall wherever possible remedy the defect by re-performing the services.
  • Without prejudice to the above, if there is a default by The BNG Guy then there shall be no liability for damages, nor shall any right of termination accrue in the case of a default that is remediable by The BNG Guy unless The BNG Guy has been given written notice of the default and have failed within 30 days thereof to remedy the same.
  • Clients acknowledge that such limitations and exclusions are fair and reasonable having regard to the nature of the services the cost thereof and the liability which would accrue in the event of a breach. The BNG Guy may consider accepting higher levels of liability in exchange for increased fees reflecting matters such as the degree of risk and/or the costs of additional insurance.
  • The exclusions and limitations shall apply to any claim whether in contract tort including negligence or other recognised legal liability.
  • The exclusions and limitations shall apply equally to any such contractor or other person employed by The BNG Guy in the provision of the services.

Confidentiality

  • The BNG Guy will respect the commercial confidentiality of clients’ affairs and will not release details of any studies or reports which are not in the public domain to third parties without clients’ permission other than as a list of client names and an unrelated list of project titles used in presenting The BNG Guy’ record of experience.

Copyright and Title

  • The title to all techniques, processes, programs, databases, research and related intellectual assets created, produced or developed by The BNG Guy or its personnel remains the sole property of The BNG Guy. Copyright to all the practice’s written or recorded work howsoever held on whatever medium is vested in The BNG Guy. On settlement of all agreed fees written work produced specifically for clients is thereafter regarded as joint copyright between the clients and The BNG Guy. The BNG Guy shall be entitled subject to the clause above (confidentiality) to reproduce elements of a general nature in providing services to other clients or for research purposes.

Completion

  • The BNG Guy will use its best endeavours to complete the services by the agreed date, but this is an estimate only and time is not of the essence. Moreover, it must be clearly understood that environmental and ecological work is subject to vagaries of weather seasonality migration and dispersion of species and other factors. Completion is therefore subject to such environmental variables and to other events of force majeure which shall include but is not to be limited to any event beyond The BNG Guy’s reasonable control: flood, lightning or fire, industrial action or lock-outs; the act or omission of government highways authorities planning authorities or other competent authority; war military operations or riot; the act or omission of any party for which The BNG Guy are not responsible. The BNG Guy shall not be liable in respect of any breach of contract due to any such or similar cause beyond its reasonable control.
  • Clients are asked to note that reports are normally provided by electronic mail in Portable Document Format (PDF). If additional paper copies or an alternative digital format is/are exceptionally required instructions should be given when the work is commissioned. All paper or additional digital copies requested will carry an administrative. Third-party reports submitted to The BNG Guy for review will normally be returned as supplied but The BNG Guy can accept no liability for accidental loss or damage and clients should therefore keep a full set of all originals.
  • Where significant revisions to reports are requested by the client or where the original instructions are altered by the client or additional instructions are given then The BNG Guy may accordingly charge for any resulting extra time spent or work done.
  • Because the natural environment is dynamic ecological reports, and other communications generally have a limited period of currency. Many statutory authorities regard two years as the maximum time that should elapse before a report survey or other study needs to be updated and this period may be significantly less.
  • Ecological reports often require further studies at additional cost dependent on what was found on site. Surveys commonly identify notable habitats, species or situations that must be assessed in greater detail through more specialist studies to meet planning requirements legislation other guidelines or criteria. Unless stated otherwise in writing, all such additional works are at extra cost and are expressly excluded from The BNG Guy’s initial quotations or proposals.

Variations

  • Should it become apparent during a contract that material amendments to instructions are required, The BNG Guy undertakes to inform clients to agree on material changes before proceeding.  Reduction of charges resulting from a reduction in the contracted services shall be at the discretion of The BNG Guy depending on the commitments of staffing equipment and other resources already made. All variations must be first agreed in writing to be valid but this last does not apply to any variations arising because of a client’s urgent requirements.
  • After acceptance of a commission The BNG Guy will be entitled to charge clients for time lost because of delays caused by the client or if any other conditions are applied by the client or any other factors not originally agreed and beyond the reasonable control of The BNG Guy. This includes, but is not limited to, time lost or delays caused because keys or access to the site are not provided, the client does not respond to communications, extra health safety or other requirements are imposed or necessary site plans or files are not supplied as agreed etc.

Payment

  • Except in cases of emergency (where in the absence of agreement we shall be entitled to charge a fair and reasonable charge) our charges are based on the terms set out in our proposal or other engagement document.
  • Unless otherwise expressly agreed, services are performed on a time and material basis. Settlement is strictly proforma. All costs for collection of overdue accounts are chargeable to clients and interest on all overdue accounts will be charged with interest at 2.5% per month or at our option as provided by the Late Payment of Commercial Debts Interest Act 1998. Quotations are open for acceptance for 60 days or as otherwise stated in written proposals.
  • The BNG Guy reserves the right to request an advance payment on acceptance of a quotation or fee proposal.
  • Charges made by third parties for ecological data are clients’ responsibilities unless otherwise stated. The BNG Guy holds the right to make an administrative handling charge for processing these.
  • The BNG Guy shall have the right without prejudice to suspend services if payment to The BNG Guy is seven days beyond the payment due date. The BNG Guy shall have the right at its option if the client shall become bankrupt, make or propose any arrangement with its creditors, go into liquidation, become the subject of any administrative receivership or similar action have an encumbrancer take possession or ceases to carry on business to (a) suspend performance pending it being satisfied that the client can pay its past and any future payments (and if not so satisfied terminate); or (b) terminate immediately.

Cancellation

  • Should the contract be cancelled for any reason at any stage by either party, The BNG Guy shall be entitled to be paid forthwith for all outstanding fees. In the case of a single fee payment structure, The BNG Guy will be entitled to fair and reasonable payment for services performed to the date of termination not exceeding the originally agreed fee. Furthermore, cancellation or termination of a contract for any reason shall be without prejudice to the rights and remedies relating to any error omission or negligence by either party.

Law and Courts

  • These terms and any contract to which they relate shall be governed and construed following English law and all disputes arising in connection therewithin shall subject to clause twelve be submitted to the jurisdiction of the English Courts.

Third Party Rights

  • Services are provided for the benefit of the person or entity which is the client contracting party.
  • The Contracts (Rights of Third Parties) Act 1999 shall not apply to the contract. Clients shall indemnify The BNG Guy where it passes results or reports to a third party and a third-party act against The BNG Guy. These terms and conditions shall equally apply to any group company of The BNG Guy which directly or indirectly provides services. Neither party may assign the benefit or burden without the express written consent of the other.

General

  • Headings are for convenience and do not affect the interpretation of provisions.
  • References to statutes include regulations and include any re-enactments thereof.
  • Provisions which are held by a court or competent authority to be severable shall not affect the remainder of these terms which shall remain in force and effect.
  • No delay or inaction shall constitute a waiver or release of any past and/or future liability.
  • In these Terms of Trading “The BNG Guy” includes any names under which Scott Latham trades or may trade.