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Terms and Conditions

TERMS & CONDITIONS FOR 

THE PROVISION OF SERVICES BY ENERGIST UK LIMITED 

  1. DEFINITIONS 

“Agreement” means the agreement between you and us which comprises these  terms and conditions and the Written Proposal. 

“Project” means the project and associated address relating to this fee proposal. 

“We”, “our” or “us” means Energist UK Limited whose registered office is at College  Farm, Tetbury Road, Cirencester, Gloucestershire, England, GL7 6PY; 

“You”, “your” or “the client” means any person or entity who or which purchases or  receives services from us; 

“Services” means the services to be provided by us as set out in the Written Proposal; 

“Written Proposal” means the Written Proposal form that we have supplied to you  setting out the scope of the services we will provide and which is signed or submitted  by you requesting the purchase of services from us. 

1.1. Where a conflict exists between these terms and conditions and the Written Proposal,  the Written Proposal shall prevail. 

  1. GENERAL TERMS 

2.1. This Agreement will apply to your purchase of any Services from us and will form the basis  of the contract between us. These terms and conditions will prevail over any other terms. 

2.2. You agree to accept these terms by signing or submitting the Written Proposal to us or if you  receive any of the Services from us or make any payment to us in advance of the supply of  any Services 

2.3. Except as set out in these terms, no variation of this Agreement shall be effective unless it is  in writing and signed by the parties (or their authorised representatives). 

2.4. Your right to receive the Services is personal to you and cannot be assigned to any third party  without our written consent. 

  1. SERVICES TO BE PROVIDED BY US 

3.1. Subject to these terms, we will supply the Services to you. We and you will nominate a Project  Lead who will be responsible for ensuring an orderly conduct the project of which the Services  form part. 

3.2. We shall exercise reasonable skill and care in the performance of the Services and shall use  reasonable endeavours to meet any performance dates set out in the Written Proposal. If no  such time is stipulated, we shall do so within a reasonable time. However, all timescales set 

out are approximate only and time shall not be of the essence.  

3.3. We will be under no liability for any loss or damage whatsoever arising directly or indirectly  out of delay in or lateness of performance, whether due to our fault or not, nor shall such  delay or lateness be a breach or repudiation of the contract. 

3.4. To the extent to which we are either obliged to specify or approve products or materials for  use in works relating to our Services or do so specify or approve, we shall exercise reasonable  skill and care not to specify or approve any products or materials which are identified in The  British Council for Offices, Good Practice in the Selection of Construction Materials 2011 as  being deleterious. 

3.5. Where you require us to carry out work or provide services in addition to or beyond those set  out in the Written Proposal we reserve the right to make additional charges and will endeavour  to supply details of such additional charges to you before the extra work is carried out  wherever practicable. 

3.6. We will take instructions only from the Project Lead referred to in clause 3.1above or from  such other person who you may nominate in writing. 

3.7. All written plans you supply to us in connection with the carrying out of the project or Services  will be retained or disposed of by us and will not be returned to you. Any price or fees set out  in the Written Proposal are subject to your obligations as set out in clause 4. If you fail to  comply with your obligation under clause 4 we shall be entitled to increase the price to reflect  any increase in cost resulting from the delay or additional work required as a result. 

3.8. In the case of Services being carried out at your property or a third-party property, we will  ensure our staff or agents take reasonable care and attention whilst on those premises, but  it remains wholly your responsibility to ensure any such premises are safe and do not contain  any unreasonable risks or hazards to health and safety. You will give to us or procure that we  are given full and unrestricted access for the purpose of data collection and required testing  and we reserve the right to refuse to continue to provide the Services if we deem the property  to be unsafe for our employees, agents or representatives to enter. In such circumstances a  cancellation charge will be payable by you. 

3.9. Except as otherwise set out in these terms, it is expressly agreed that no representation,  condition or warranty, expressed or implied, statutory or otherwise is given or deemed to be  given by us in respect of the work carried or services supplied to you. 

3.10. All descriptions, drawings, illustrations, particulars of weights and measures, ratings,  standards, performance figures, specifications or other descriptive matter given within the  Written Proposal, or verbally or in writing, whether or not contained in a contract document,  are approximate only and shall not form part of the description of the Services. Further, the  content of any catalogues, price lists, advertisements, or other published matter are intended  to present a general idea of our goods and services and shall not form part of the contract  between us or be considered a collateral warranty or a representation inducing the same. 

3.11. We do not provide a design service and only provide advice based upon the designs you or  third parties supply to us. As such we accept no responsibility for the accuracy or efficacy of  any design and provide no design warranties in any respect.

3.12. Notwithstanding any other provision of this agreement or the signature by the Us of any  BREL Report (or other report), you undertake to perform the dependencies or obligations on  the You (including any responsibilities in respect of photographic evidence) as set out in our  Written Proposal. You acknowledge and accept that We shall not be liable for any claims  arising from any BREL report (or other report) to the extent that such claim(s) arise directly or  indirectly from Your failure to comply with their dependencies or obligations or from the  content contained in any report provided by the You. 

3.13. You shall indemnify Us against any liabilities, costs, expenses and losses (including legal costs  (calculated on a full indemnity basis)) and all other reasonable professional costs suffered or  incurred by Us arising out of or in connection any claim from a third party against the Us as a  result of the Your breach of their responsibilities under Our Written Proposal or of content  contained in any report provided by You.  

  1. YOUR OBLIGATIONS 

4.1. You shall co-operate fully with us in all matters relating to the Services and supply us with such  information and instructions as we may reasonably require in a timely manner and ensure that  such information is complete and accurate in all material respects.  

4.2. Unless expressly stated to be part of our Services, you shall be responsible for obtaining and  maintaining all necessary licences, permissions and consents which may be required for the  Services before the date on which the Services are to start. 

  1. FEES AND PAYMENT 

5.1. Unless otherwise stated in the Written Proposal, the fees quoted are approximate, are given  for guidance purposes only and are not intended to be a fixed fee. We will endeavour to work  within the authorised financial limit but reserve the right to make charges based on the actual  cost of providing the Services. If at any time it becomes clear that the Services cannot be  completed within any authorised financial limit from you we will notify you and limit  expenditure to the authorised amount pending further instructions from you. In the event of  the suspension of the project by your instructions, or as a result of a lack of instructions from  you, any extra expense thereby incurred will be charged to you. 

5.2. The fees quoted within the Written Proposal shall, unless expressly specified, be deemed to  be exclusive of all duties and taxes in respect of the provision of Services and exclusive of  any export and/or import duties on any goods involved in the supply of Services, all of which  duties and taxes shall be paid by you. 

5.3. Unless otherwise agreed by us in the Written Proposal, you will pay to us the full amount of  the fees set out in the Written Proposal for the supply of Services at the time of signing or  submitting the Written Proposal to us. We reserve the right not to start supplying any of the  Services until we have received full payment from you. We will invoice you on or at any time  after delivery of the Services. 

5.4. The due date for payment of each invoice is the date stated on the invoice. The final date for  payment is 30 days of the date of our invoice or otherwise in accordance with such credit  terms as may have been agreed in writing between us. 

5.5. Where the period for providing the Services is to exceed, or is likely to exceed, two months 

we shall be entitled to submit monthly interim invoices which you will pay within 30 days of  the date of invoice. 

5.6. If, by reason of any rise or fall in the cost of materials, fuel, power, overheads, equipment,  labour or transport, or of confirming to any Act of Parliament or any order, regulation, or by law made with statutory authority by Government Departments or by local, or other,  authorities after the date of quotation the cost to us of performing our obligations under the  contract or providing the Services shall be increased, then a fair and reasonable estimate of  the amount of such increase shall be added to the fees due from you, provided that no  account shall be taken of any amount by which any cost incurred by us has been incurred as  a result of our default or negligence. 

5.7. If you intend to pay less than the sum stated due our invoice, not later than 10 days before  the final date for payment, you will give us written notice of that intention, stating the sum that  you consider to be due to us and how such amount has been calculated. Where such notice  has been given, the sum to be paid on or before the final date for payment shall not be less  than the amount stated as due in the notice. 

5.8. If you fail to make any payment to us by the final date for payment, we are entitled to charge  you interest at the rate of 4% per annum above the base rate of the Bank of England on any  outstanding amounts and we will be entitled to recover from you all legal and professional  charges we may incur in pursuing full payment from you. 

  1. INTELLECTUAL PROPERTY RIGHTS 

6.1. For the purpose of this clause 6 

6.1.1. “Intellectual Property Rights” means: all copyright and all neighbouring and database  rights and moral rights, registered designs, registered and unregistered design rights,  or any rights or property similar to the foregoing in any part of the world whether  registered or unregistered together with the right to apply for the registration of such  rights in any part of the world and the rights to current applications for registration of  any such intellectual property referred to above. 

6.1.2. “Documents” means: all drawings, designs, charts, specifications, plans, software and  any other documents or materials in any medium created and/or developed by us for  you in the course of performing the Services. This does not include drafts or other  documents produced for internal use only 

6.2. Subject to the following provisions of this clause 6 all Intellectual Property in the Documents  will remain vested in us. 

6.3. Upon payment of all fees due to us we shall grant to you an irrevocable royalty-free non exclusive licence (such licence to remain in full force and effect notwithstanding the completion  of the Services) to use and to reproduce all Documents for their intended purpose, in  connection with the Development. The licence allows you to use but not reproduce the  Documents in relation to the extension of the Development.  

6.4. We will not be liable for any use you may make of the Documents for any purpose other than  their intended purpose. 

6.5. In the case of a project sponsored by two or more Clients, any such Intellectual Property 

Rights shall be vested in us or a subsidiary company nominated by us. 

6.6. You will not in any publication or publicity materials at any time make use of any report or  statement issued by us, nor any extract therefrom, nor refer to the fact that any product or  process has been the subject of a contract with us, in any publication or publicity material  without our express written permission, (unless legislation requires us to provide the report  for public inspection). 

  1. PROFESSIONAL INDEMNITY INSURANCE  

7.1. We will, at our own cost, take out and maintain professional indemnity insurance with a limit  appropriate to the scope of work which we are undertaking, from the date of this Agreement  until 6 years after the completion of the Services and shall provide you with evidence (on your  reasonable request) that such insurance is being maintained.  

  1. TERMINATION 

8.1. Either party may immediately terminate this Agreement by written notice if the other party is  insolvent as defined by the Insolvency Act 1986 (or such legislation as may supersede that  act).  

8.2. Either party may terminate this Agreement by giving 14 days written notice if they are unable  to comply with their obligations for reasons beyond their reasonable control (force majeure). 

8.3. Either party may terminate this Agreement if the other party is in material and persistent breach  of their obligations under this Agreement and fails to remedy the same after receiving a written  14 day notice specifying the breach and requiring its remedy The terminating party shall be  entitled by written notice to the party at breach to immediately terminate their engagement in  connection with the Development.  

8.4. On termination of this Agreement you shall immediately pay to us all outstanding unpaid  invoices and interest and, in respect of Services supplied but for which no invoice has been  submitted, we shall submit an invoice, which shall be payable by you by the final date for  payment in accordance with clause 5.4. 

8.5. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of  the parties that have accrued up to the date of termination, including the right to claim damages  in respect of any breach of this Agreement which existed at or before the date of termination 

8.6. Any provision of this Agreement that expressly or by implication is intended to come into or  continue in force on or after termination of this Agreement shall remain in full force and effect. 

  1. LIMITATION OF LIABILITY 

9.1. We will not be liable for any damage or loss suffered by you or any of your clients as a result  of any breach by us of any of these terms (whether express or implied) caused other than by  our negligence or wilful default, and in any event our liability for any such loss and damage  shall not exceed the level of our Professional Indemnity insurance however that liability might  arise.. 

9.2. No action or proceedings for any breach of this agreement shall be commenced against us  after the expiry of 6 years from the earlier of practical completion of the Development and the  last date on which we perform the Services.

9.3. We will not be liable for any loss or damage to documents, electronic data, equipment as a  result of any transmission from us. 

9.4. We will not be liable under any circumstances for any indirect or consequential loss of profit  or other economic loss that you or any of your guests may suffer however that may be caused. 

9.5. Nothing in these terms affects our liability for personal injury or death suffered by you as a  result of our negligence. 

  1. AGREEMENT GOVERNED BY ENGLISH LAW 

10.1.These terms and the contract between you and us shall be governed in all respects by the  laws of England and Wales and any dispute arising in relation to it shall be subject to the  exclusive jurisdiction of the English Courts. 

  1. MISCELLANEOUS 

11.1. Collateral Warranties 

11.1.1. Where indicated in our Written Proposal that we will provide collateral  warranties in respect of this Development, we shall use reasonable  endeavours to execute and deliver to you duly executed collateral warranties  substantially in the same form of this Agreement in favour of: 

(a) the freehold owner or landlord of the property for which providing the Services (if  not the you);  

(b) any person or institution providing finance in connection with or secured upon the  Development or any part of it. 

11.1.2 Where the Written Proposal is silent on collateral warranties we will consider  providing collateral warranties to the parties set out above and will provide you  with a fee of providing the same. 

11.2. Joint and Several Liability  

11.2.1. In the case of a contract between us and two or more Clients the obligations of  such Clients shall be joint and several and the provisions of these terms and  conditions shall apply thereto, allowing for any necessary changes, and in  particular we shall have the rights set out in clause 5 and 6 above upon the  occurrence of any event described therein with respect to one only of such 

Clients. 

11.2.2. In the event that any of the provisions of this contract or these terms are held  to be invalid or unenforceable in whole or in part, all other provisions will  nevertheless continue to be valid and enforceable with the invalid or  unenforceable parts severed from the remainder of this contract. 

11.3. Third Parties 

Nothing in the agreement between us and you confers or purports to confer on any  third party any benefit or any right to enforce any term of this agreement pursuant to 

the Contracts (Rights of Third Parties) Act 1999. 

11.4. Communication 

Unless you notify us to the contrary, by instructing us you agree that communication may be  made by email. Email is not a confidential means of communication: by using it to  communicate with us and by allowing us to use it to communicate with you, you accept the  risk that the contents of such communications may become known to others. 

11.5. Entire Agreement 

11.5.1. This Agreement constitutes the entire agreement between the parties and supersedes  and extinguishes all previous agreements, promises, assurances, warranties,  representations and understandings between us, whether written or oral, relating to  its subject matter. 

11.5.2. Each party acknowledges that in entering into this Agreement it does not rely on, and  shall have no remedies in respect of any statement, representation, assurance or  warranty (whether made innocently or negligently) that is not set out in this Agreement.  Each party agrees that it shall have no claim for innocent or negligent  misrepresentation or negligent misstatement based on any statement in this  Agreement. 

11.6. Data Protection 

We undertake that personal data will be dealt with in accordance with the prevailing data  protection legislation and will only be processed for the purpose of providing email, phone or  post information relating to our services and developments, technology, news or events that  we consider may be of interest to you. You may ask us to amend, correct or update personal  data held about you which we will do within a reasonable amount of time.

 

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