TERMS AND CONDITIONS

Last updated: 25 September 2020

1.0    General
1.1    All work between Fraigneux Limited registered in England and Wales with company number 06921535 ("the Company") and the person who has approached the Company ("the Client") for the provision of fire safety consultancy services which have or will be documented in correspondence between the Client/its agent and the Company ("the Services") will be subject to the following terms and conditions (“the Conditions”).
1.2    By instructing the Company to proceed with the Services, the Client or his agent agrees to these terms and conditions ("the Agreement").
1.3    Notwithstanding anything which may have been or will be communicated between the Client/its agent and the Company the Agreement supersedes and replaces all previous agreements and shall comprise the entire terms and conditions of engagement of the Company in respect of the Services and no person or employer of the Company shall be entitled to vary, alter, amend or waive any of these conditions unless approved in writing by a director of the Company.
1.4    If any part of these conditions and definitions is deemed to be invalid or unenforceable they shall not affect the validity or balance of the conditions. These conditions and all orders and contracts as regard validity performance and construction thereof shall be governed by the Laws of England and a reference to any enactment includes any statutory consolidation, re-enactment, amendment, replacement of it or any subordinate legislation under it.
1.5    The Company's duty to the Client is limited to the exercise of reasonable skill, care and diligence of a properly qualified and competent consultant fire engineer experienced in the provisions of like services.
1.6    It is hereby agreed between the parties that provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement and thus no liability to any third party to this contract whatsoever will be accepted under matters arising directly and/or indirectly from the Agreement.
1.7    The Company shall not act as a "CDM Co-ordinator" as defined in the Construction (Design and Management) Regulations 2007 ("the CDM Regulations") for the Services. If so instructed the Company shall prepare a report which will set out the principles of the fire safety measures to be employed by the Client. The Company does not accept any responsibility or liability for the design of such measures, which shall be carried out by other parties engaged by the Client.
1.8    The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Agreement, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
1.9    Neither the Client or Company shall at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party for any purpose other than to perform our respective obligations under this appointment, except as required by law, court order or any governmental or regulatory authority.
1.10    The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England.
1.11    Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
2.0    Force Majeure
2.1    Neither the Client or Company shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
3.0    Copyright
3.1    The copyright in all drawings and documents, including material in electronic format, (together “Material”) provided by the Company to the Client remains vested in the Company.
3.2    The Company shall grant to the Client a non-exclusive, royalty-free licence to copy and use the Material for any purpose relating to the Project, but not to reproduce the Material. The Client shall not sub-license, assign or otherwise transfer the rights granted by this Clause.
3.3    The Company shall not be liable for use of the Material for any purpose other than that for which it was prepared and/or provided.
3.4    The Client grants the Company a non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Company for the term of the Agreement for the purpose of providing the Services to the Client.
4.0    Client’s Obligations
4.1    The Client shall:
(a)    be responsible for the checking of documents, details, specifications, drawings or revisions except insofar as the client instructs the Company, in writing, to provide these services as part of the Services;
(b)    provide the Company with such information as the Company may reasonably require to provide the Services, and the Client shall ensure that such information is complete and accurate in all material respects; and
(c)    obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
4.2    If the Company’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a)    without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
(b)    the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this Clause; and
(c)    the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
4.3    The Client shall be responsible for preparing the construction phase plan and health and safety file and obtaining all necessary approvals for the installation of any fire safety provisions but the Company may at its absolute discretion assist the Client in respect thereof.
5.0    Fire Risk Assessment (if so instructed by the Client)
5.1    It is assumed by the Company that the Client has made sure that the building and its use are in accordance with all valid Building Regulations Approvals to the full satisfaction of the applicable building control body and that there are no outstanding statutory notices in connection with the premises.
5.2    No enquiry or investigation will be made by the Company or responsibility or liability whatsoever will be assumed by the Company regarding the following matters that are specifically excluded from the fire risk assessment and any associated report: Local Authority Planning and Building Regulations consents or lack of consents and proposals, Land Registry details, boundary positions & ownerships, freehold and leasehold property rights, restrictions, disputes, below ground condition type and stability, environmental searches and investigations, radon gas, underground services, tunnels, or similar, any aspect of legal title, any aspect of above or below ground pollution and/or contamination whatsoever and associated directly and/or indirectly to the subject property and/or area.
5.3    Unless where specifically stated otherwise, the fire risk assessment and any associated report will be based upon a visual inspection of the property only on the following terms and delimited and defined thereby as follows: no destructive investigation of the building will be carried out, thus without limitation to the generality of the foregoing the Company will not remove or move carpets and floor coverings, furniture and contents, floorboards, ducting, panelling, fixtures and fittings and the like and no wall plaster or finishes will be removed.
5.4    Unless where specifically stated otherwise, parts of the interior and exterior of the building that are hidden from view, covered, unexposed, inaccessible, locked and/or built into the structure or finishes of the building will not be inspected by the Company and will be assumed to be sound and in good repair. The fire risk assessment may include an inspection of a sample of service areas, only if access to such areas is readily available. Unless where specifically stated otherwise, roofs, ceiling voids, roof voids, wall voids will not be inspected. Unless where specifically stated otherwise the fire risk assessment will not include an assessment or inspection of the external walls or attachments. The assessment report will not purport to express an opinion about or to advise upon the condition of the uninspected parts and should not be taken as making any implied representation or statement about such parts.
5.5    The Company is not responsible for the examination and/or testing of the fire extinguishers, door furniture and fittings, fire alarm, smoke control or ventilation, electrical, lighting, heating, air handling, plumbing and drainage installations and the associated and ancillary major and minor components. Any comment made regarding these installations shall not imply or confirm that any examination or testing whatsoever has been carried out. The Company will not accept any liability or responsibility whatsoever for any such matters.
5.6    Any conclusions drawn or statements made by the Company regarding the standard and/or performance of elements of construction, including doors, and any other construction materials, will be based on a visual inspection of the available aspect of those elements using the Company's professional judgment and experience. Any statements made regarding the fire performance or fire resistance of any building element or feature are intended only to indicate the likely nominal fire performance standard or period of fire resistance and do not guarantee that those elements will achieve the stated performance standard or period of fire resistance when exposed to any fire or any test.    
5.7    The Services and associated fee may be revised if it is found, on arrival at the property, that it differs substantially from the description previously given to or assumed by the Company and in such circumstances the Company shall not be obliged to carry out any of the Services until agreement with the Client in writing concerning these matters has been reached.
5.8    Any recommendations made by the Company should be implemented by Competent Persons as defined by the Regulatory Reform (Fire Safety) Order 2005. Any priorities and/or implementation/due dates included in our report are only suggestions and may or may not be appropriate, depending on individual circumstances such as financial constraints and requirements of enforcing authorities. The Company accepts no liability whatsoever for matters arising directly and/or indirectly from any priorities or implementation/due dates included in our report.
5.9    Where a fire risk assessment report includes a re-assessment and/or review date and/or period, this is the date and/or period at which the Company recommends that the fire risk assessment should be re-assessed and/or reviewed by the Company. This recommendation is made following a evaluation of fire risk at the time of the assessment and assumes that the controls in-place at the time of the assessment will be kept in-place until the re-assessment and/or review date. Regardless of any recommendation made by the Company, the fire risk assessment should be reviewed regularly so as to keep it up to date and particularly but without limitation to the generality of the foregoing if:
(a)    there is reason to suspect that the fire risk assessment is no longer valid; or
(b)    there has been a significant change in the matters to which the fire risk assessment relates, including when the premises, special, technical and organisational measures, or organisation of the work undergo significant changes, extensions, or conversions.
5.10    The Company’s obligations do not extend to knowledge or control over any changes to the premises, subsequent to the completion of the Services, including but not limited to:
(a)    deterioration of the premises or equipment;
(b)    ongoing management of the premises or of persons within the premises;
(c)    moveable items brought into the premises;
(d)    the level of staffing and/or training that any employer gives to their staff;
(e)    the implementation of any recommendations made by the Company; and
(f)    advice in respect of building materials, fixtures and fittings or design of the premises
6.0    External Wall Fire Safety Assessment (if so instructed by the Client)
6.1    It is assumed by the Company that the Client has made sure that the building and its use are in accordance with all valid Building Regulations Approvals to the full satisfaction of the applicable building control body and that there are no outstanding statutory notices in connection with the premises.
6.2    No enquiry or investigation will be made by the Company or responsibility or liability whatsoever will be assumed by the Company regarding the following matters that are specifically excluded from the fire risk assessment and any associated report: Local Authority Planning and Building Regulations consents or lack of consents and proposals, Land Registry details, boundary positions & ownerships, freehold and leasehold property rights, restrictions, disputes, below ground condition type and stability, environmental searches and investigations, radon gas, underground services, tunnels, or similar, any aspect of legal title, any aspect of above or below ground pollution and/or contamination whatsoever and associated directly and/or indirectly to the subject property and/or area.
6.3    Unless where specifically stated otherwise, parts of the interior and exterior of the building that are hidden from view, covered, unexposed, inaccessible, locked and/or built into the structure or finishes of the building will not be inspected by the Company and will be assumed to be sound and in good repair. Unless where specifically stated otherwise, roofs, ceiling voids, roof voids will not be inspected. The assessment report will not purport to express an opinion about or to advise upon the condition of the uninspected parts and should not be taken as making any implied representation or statement about such parts.
6.4    The Company is not responsible for the examination and/or testing of the fire extinguishers, door furniture and fittings, fire alarm, smoke control or ventilation, electrical, lighting, heating, air handling, plumbing and drainage installations and the associated and ancillary major and minor components. Any comment made regarding these installations shall not imply or confirm that any examination or testing whatsoever has been carried out. The Company will not accept any liability or responsibility whatsoever for any such matters.
6.5    Any conclusions drawn or statements made by the Company regarding the standard and/or performance of elements of construction, including doors, and any other construction materials, will be based on a visual inspection of the available aspect of those elements using the Company's professional judgment and experience. Any statements made regarding the fire performance or fire resistance of any building element or feature are intended only to indicate the likely nominal fire performance standard or period of fire resistance and do not guarantee that those elements will achieve the stated performance standard or period of fire resistance when exposed to any fire or any test.    
6.6    The Services and associated fee may be revised if it is found, on arrival at the property, that it differs substantially from the description previously given to or assumed by the Company and in such circumstances the Company shall not be obliged to carry out any of the Services until agreement with the Client in writing concerning these matters has been reached.
6.7    Any recommendations made by the Company should be implemented by Competent Persons as defined by the Regulatory Reform (Fire Safety) Order 2005. Any priorities and/or implementation/due dates included in our report are only suggestions and may or may not be appropriate, depending on individual circumstances such as financial constraints and requirements of enforcing authorities. The Company accepts no liability whatsoever for matters arising directly and/or indirectly from any priorities or implementation/due dates included in our report.
7.0    Fire Engineering (if so instructed by the Client)
7.1    Unless where specifically stated otherwise the Services exclude the following but this list is not exhaustive:
(a)    Use of computer modelling software;
(b)    Detailed calculations and design of specified systems;
(c)    Preparation of drawings and specifications;
(d)    Checking drawings or designs for compliance with our report and/or design note;
(e)    Providing construction systems or component detailing advice beyond agreed work stage and that covered in our report and/or design note;
(f)    Additional work following issue of our report and/or design note not identified in the Services;
(g)    Commenting on alterations and issues outside the Company's agreed scope of works.
8.0    Fees and Payment
8.1    Payment due to the Company under this Agreement shall become due for payment on submission of the Company's invoice therefor and the final date for payment shall be 15 days thereafter. Interest shall be added to all amounts remaining unpaid thereafter and shall be calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the relevant reference rate plus the statutory rate of interest.
8.2    The Company reserves the right to instruct a debt collection agency in respect of any unpaid invoices seven days after the due date for payment and all fees incurred with the said agent shall be charged to and paid by the Client forthwith.
8.3    The Client shall pay the fees whether or not the project relating to the Services is suspended, cancelled or amended and without prejudice to the generality of the foregoing the Client shall pay the Company for all Services actually rendered or to be rendered pursuant to this Agreement whether or not the Client proceeds with the proposed project to which they relate.
8.4    The Client may not withhold payment of any invoice or other amount due to the Company by reason of any right of set off or counter-claim which the Client may have or allege to have or for any other reason whatsoever.
8.5    In the event of the Client terminating this Agreement or suspending performance of the Services for any part thereof for any reason whatsoever it shall pay fees for all work properly and reasonably due for all work undertaken by the Company.
8.6    If the Client fails to pay a fee on the due date for payment the Company shall be entitled to suspend or cancel further provision of Services and the Client shall forthwith pay the Company's reasonable costs and expenses relating thereto.
9.0    Liability
9.1    Notwithstanding anything to the contrary contained in the Agreement or elsewhere the total liability of the Company under or in connection with this Agreement whether in contract or in tort of in negligence or for breach of statutory duty or otherwise shall not exceed the total sum of fees paid to the Company by the Client for the Services.
9.2    The Company’s liability for the following types of loss is excluded in its entirety:
(a)    Loss of profits or loss of sales or business;
(b)    Loss of agreements or contracts;
(c)    Loss of use or corruption of software, data or information;
(d)    Loss of or damage to goodwill;
(e)    Indirect or consequential loss;
(f)    Any loss (direct or indirect) resulting from advice in relation to external walls/cladding to any premises;
(g)    Any loss (direct or indirect) arising from advice and/or information provided by a third party.
9.3    We have no control over the fire safety arrangements of the premises, other than information provided to you.  For the avoidance of doubt, we have no control over any matters arising from the findings of a fire risk assessment, external wall fire safety assessment and/or design reports.
9.4    Responsibility for the on-going management of the premises and even, if necessary, the decision to allow the premises to be used for its present purpose, remains with the Responsible Person as defined by the Regulatory Reform (Fire Safety) Order 2005.
9.5    Any report provided by the Company should not be relied upon by any person other than the Client.
9.6    The Client shall not request from the Company and the Client acknowledges they are not entitled to the issue of warranties in favour of third parties or the novation of this Agreement and duties to an alternative client. In the event the Company is requested to provide collateral warranties or agree a novation and the Company so agrees (which it shall be under no obligation to do so) the Client shall pay the Company's legal and other professional expenses incurred in negotiating the terms of the said warranties or novation and reserves the right to charge additional fees for time engaged reviewing the warranties. The Company shall also be entitled to renegotiate the level of fees referred to herein to reflect the liabilities attaching thereto.
9.7    The Client accepts the Company's liabilities do not extend to the Client’s property or contents thereof or if appropriate the property and contents of the Client’s customer at the site where the Services have specifically been provided.
9.8    The Client shall not commence any legal action against the Company under the Agreement after one year from the date completion of the Services.
10.0    Termination
10.1    Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than 14 days of written notice.
10.2    Without affecting any other right or remedy available to it, the Company may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment.
10.3    On termination of the Agreement the Client shall immediately pay to the Company all the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.
10.4    Termination of the Agreement shall not affect any rights, remedies, obligations and 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 the Agreement which existed at or before the date of termination.
10.5    Any provision of the Agreement that expressly or by implication is intended to have effect after termination shall continue in full force and effect.