I.SCOPE OF APPLICATION, TERMS OF BUSINESS OF CONTRACTING PARTY, ORAL AGREEMENTS
1. In these terms and conditions EMS Water Limited will be referred to as “EMS”and the other party will be referred to as “the Client”. These standard terms and conditions of business will be referred to as “the Standard Terms”. Where the Standard Terms refer to as “a duly authorised officer of EMS” that person will be the one who is named as Project Manager in the contract.
2. The Standard Terms will apply to all work undertaken by EMS for the Client and by signing this contract the Client acknowledges that it is bound by the Standard Terms.
3. Variations to any of the Standard Terms shall only be valid if such variations have been agreed in writing and signed by a duly authorised officer of EMS.
4. Any standard terms of business used by the Client are not part of this contract and do not govern its provisions save to the extent that such standard terms have been expressly incorporated by reference to them in this contract and by being actually attached to this contract.
II.SERVICES TO BE PROVIDED UNDER THIS CONTRACT
1. The contract describes the services which EMS have agreed to offer to the Client. EMS is under no liability to the Client to provide any services that are not described in the Contract.
2. EMS may at its absolute discretion engage any independent contractor or consultant at the expense of EMS if in the opinion of EMS that such engagement would assist in the proper performance of the contract by EMS.
3. If EMS shall in the performance of the contract recommend that the Client engage a third party to perform any services of any kind whatsoever EMS shall use all reasonable endeavours to recommend a third party which is suitable for the performance of the services in question but EMS shall be under no liability to the Client for the manner in which such third party performs its services and the Client shall keep EMS totally indemnified against loss damage or injury howsoever arising caused by the provision by the third party of its services to the Client.
III.DISCLOSURE OF INFORMATION AND CONFIDENTIALITY BETWEEN THE PARTIES
1. The Client shall whether or not specifically so requested by EMS ensure that EMS is provided with all information and documents which are or may be relevant to the Client’s operations which are the subject matter of this contract.
2. EMS shall be entitled to assume that all information supplied by the Client relating to its operation is correct and complete. It is not the function of EMS under this contract to verify the accuracy of such information unless this contract expressly provides.
3. EMS shall be entitled to process all data supplied to it for the purposes of this contract and to have such data processed by third parties but in so doing EMS shall use all reasonable endeavours to protect the confidentiality of all such data in accordance with the GDPR policy of EMS.
4. Except for the purpose of data-processing EMS shall not reveal or disclose to any third party any information relating to this contract or to the operations of the Client without the Client’s written consent.
5. EMS shall take all reasonable precautions to ensure the security of all documents and data deposited with EMS by the Client in the performance of this contract and shall return all such material to the Client as soon as reasonably possible after completion of the contract.
6. EMS shall remain solely entitled to the copyright of all material supplied by EMS to the Client in the performance of this contract. The Client will not without the written permission of EMS signed by a duly authorised officer disclose to any third party any material supplied by EMS to the Client except where required to under the Freedom of Information Act.
7. All material supplied by EMS to the Client which is recorded in writing or electronically shall remain the property of EMS until all fees due to EMS under the contract have been paid in full and all material shall be returned by the Client to EMS upon demand at any time whether or not there then be outstanding any fees from the Client to EMS.
8. The work undertaken under this contract by EMS is for the sole benefit of theClient and the Client shall not without written consent of EMS signed by a duly authorised officer assign the benefit of this contract and EMS shall not be liable for any loss, damage or injury whatsoever and howsoever arising incurred by any third party who makes use in any way of any of the material or the recommendations supplied by EMS to the Client in the course of carrying out this contract whether or not EMS shall have given its consent to the disclosure of any such material or recommendation to the third party.
9. EMS will not without the written consent of the Client disclose in any publication that it has performed services for the Client nor will it without such permission disclose the nature of the services.
IV.LIMITATIONS ON LIABILITY OF PRIMARY WATER SOLUTIONS
1. EMS’s aim is to take reasonable care in giving advice to the Client. It is impossible to foresee or to safeguard against every eventuality. For this reason EMS cannot guarantee the effectiveness of the advice it gives. EMS cannot be held responsible for any failure on its part to identify risks that aClient faces or for its failure to suggest measures or the best measures to combat them or for damage, however far-ranging, that may flow from such a failure. The Client therefore agrees with EMS that the total extent of EMS’s liability howsoever arising under the terms of this contract shall be limited to five times the amount of the fee payable by the Client to EMS.
2. The Client further agrees that upon the third anniversary of the date of signature of the contract EMS shall thereafter be under no liability whatsoever to the Client for any matter of any kind arising out of or connected with the contract.
3. The Client agrees to indemnify EMS in respect of all claims and costs by any person whatsoever for injury or damage to persons or property caused by EMS its servants or agents in the performance of the contract or taking any steps ancillary thereto or associated with it.
4. Under no circumstances shall EMS be responsible for any injurious act or default by any employee of EMS unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of EMS his employer nor in any event shall EMS be held responsible for any loss suffered by the Client through the failure of any plant or equipment in respect of which EMS shall have given advice in the course of performing this contract except in so far as such loss is solely attributable to the negligence of EMS’s employees acting within the course of their employment.
The contract and any variations to it made in accordance with the terms of this contract represent the entire agreement between the Client and EMS and no material published by EMS or statements made by or on behalf of EMS shall be treated as a term of this contract or as any variation of it.
The Contract has been made in England and is governed exclusively by English Law whether or not this contract provides for EMS to render services outside England.