AIS Environment Limited, being a company registered under the laws of Malta with registration number C-18445, hereinafter referred to as the Service Provider, agrees to supply Services to the Client on the following terms and conditions of sale.
TERMS AND CONDITIONS
1. General Definitions
The following words shall, unless the context otherwise requires, have the following meanings:
- Additional Services shall mean Services which are not foreseen as being required by the Client at the commencement of this agreement with the Service Provider but which are eventually identified as being necessary for the performance of the said agreement;
- Client shall mean a person placing an order with the Service Provider;
- Order shall mean an order for Services made by the Client to the Service Provider under these Terms and Conditions, provided such order has been duly accepted by the Service Provider;
- Other Consultant/s shall mean consultants and specialist advisers, other than the Service Provider, who are appointed or yet to be appointed by the Client in order to perform professional services which cannot be performed by the Service Provider but which relate to the Services;
- Project shall mean the assignment made by the Client to the Service Provider upon which the Services are being or will be provided;
- Proposal shall mean the Service Provider’s proposal to the Client detailing the Services, the cost of those Services and the applicable fees;
- Service/s shall mean the services listed in the Order and any Additional Services as may be requested and consented to by the Client;
- Service Provider shall mean AIS Environment Limited [C-18445] having its registered office at AIS House, 18, St. John Street, Fgura FGR1447, Malta.
2. Exclusion of Other Terms
2.1. Any and all sales of Services made by the Service Provider to the Client shall be subject to these Terms and Conditions and only the said Terms and Conditions shall apply to the estimates, quotations and agreements made. No alteration or qualification of these Terms and Conditions, whether issued by the Client or contained in the Client’s Order or otherwise, shall be effective unless there is the prior written acceptance of the Service Provider.
3. Obligations in the Service Provider
3.1. The Service Provider shall exercise reasonable skill, care and diligence in the performance of the Services. The Service Provider shall designate a Project Leader who shall coordinate the Services on behalf of the Service Provider.
3.2. The date of delivery of Services shall be the date as confirmed by the Service Provider in the Proposal and the Service Provider shall take all reasonable steps to deliver the Services on the date agreed therein, provided that the Service Provider shall not be responsible for any delay in delivery whatsoever unless such delay is due to its gross negligence or wilful misconduct.
3.3. Delivery timeframes detailed in the Service Provider’s Proposal shall commence upon receipt of the deposit from the Client, and are exclusive of the Service Provider’s shutdown periods.
3.4. The safety of the Service Provider’s personnel during the rendering of Services is of paramount importance. Accordingly, no field surveys or outdoor Services will be conducted during adverse weather conditions that may compromise the safety of the Service Provider’s field team. The Service Provider reserves the right to suspend or reschedule field activities based on weather forecasts or assessments, to ensure the safety and well-being of its personnel.
3.5 In the event that delivery is affected in stages, each delivery shall constitute a separate agreement without prejudice to antecedent and/or subsequent deliveries and shall be due for payment from the Client accordingly.
3.6. In the event that the Client requires Additional Services or recommends that Additional Services be provided, the Service Provider shall prepare an additional Proposal to reflect the requested Additional Services. In this regard, the Service Provider may quote a fixed price for the Additional Services or quote its current charging rates per hour or part thereof. Any Additional Services shall be attached as an addendum to the Order documentation and shall be subject to these Terms and Conditions.
3.7. Where the scope of the Services includes a site or environmental assessment, audit, review or investigation which includes the interpretation, interpolation or extrapolation of data from discrete sampling locations and/or discrete times, the Client accepts and agrees that this data may not represent actual conditions between these locations or between these times and that the Service Provider’s conclusions and/or recommendations based on such data are statements of professional opinion and not statements of fact. Consequently, although the Service Provider will carry out such Services and provide its conclusions and/or recommendations with reasonable skill, care and diligence, it shall not be responsible for any discrepancies which may emerge between the actual conditions of the locations and times and the Service Provider’s conclusions and/or recommendations.
3.8. By providing personal data relating to the Client’s employees, agents, servants, Other Consultants and/or contractors to the Service Provider, the Client confirms that he is entitled to disclose that data to the Service Provider in terms of the General Data Protection Regulation (GDPR) and that the Service Provider is thus entitled to process such data for the purposes of providing the Services. The Service Provider will abide by the terms of GDPR using the data only for the purpose of delivering the Services and will keep such data secure.
4. Obligations of the Client
4.1. The Client shall supply to the Service Provider, without charge and in such time so as not to delay or disrupt the performance of the Services, all necessary and relevant data and information, including but not limited to details of the services to be performed by any Other Consultant, in the possession of the Client, his agents, servants, Other Consultants and/or Contractors. For the avoidance of doubt, “necessary and relevant data and information” shall be construed as referring to that data and information without which the Services cannot be provided and/or completed appropriately.
4.2. The Client shall provide, and also ensure that his agents, servants, Other Consultants and/or contractors provide, such assistance as shall be reasonably required by the Service Provider in the performance of the Services.
4.3. The Client shall ensure that any decisions, instructions, consents or approvals, whether made by him or upon his authorisation, in relation to all matters properly referred to him shall be given in such reasonable time so as not to delay or disrupt the performance of the Services.
4.4. The Client shall not assign or transfer any benefit or obligation made in the Order unless he has obtained the Service Provider’s prior written approval.
4.5. The Client shall designate a Client Leader who shall be deemed to have authority to make decisions on behalf of the Client for the Order. Where the Client Leader is to be replaced, the Client shall, at least seven (7) days prior to the date of replacement, notify in writing the Service Provider of such replacement, highlighting the name of the new Client Leader.
4.6. The Client shall appoint contractors and/or Other Consultants to execute and/or manage such work not being part of the Services but which may be required in furtherance of the same. The Client shall require that the contractors and/or Other Consultants execute such work in accordance with these Terms and Conditions, the Order and any agreements relating thereto, including any instructions as may be issued by the Service Provider from time to time. Neither the provision of staff to be present onsite, nor periodic visits by the Project Leader or his/her staff to the site of any work being executed by contractors in furtherance of the Services shall in any way effect the responsibilities of the contractors and/or Other Consultants concerning the execution of such work in full compliance with these Terms and Conditions, the Order and any agreements relating thereto, including any instructions as may be issued by the Service Provider from time to time.
4.7. Effective communication between the Client, his agents, the Client Leader and/or other Client representatives, with the Service Provider’s personnel throughout the duration of the project, is essential. Additionally, for environmental and/or archaeological monitoring Services, the Client (or its appointed delegates) shall provide the Service Provider with a detailed programme of works prior to the commencement of Services and shall ensure that the Service Provider is kept continuously informed of project progress and any updates to the programme. The Service Provider is to be notified of changes to the work schedule at least seven (7) calendar days in advance for Services rendered during standard working hours (Mon-Fri, 08:00-16:00, excl. public holidays), and at least fourteen (14) calendar days in advance for services to be rendered beyond standard working hours. The Service Provider reserves the right to bill in full for the hours originally scheduled, irrespective of whether the Services were rendered, in the event that notification of changes were not made in time.
4.8. The Client agrees to follow all instructions provided by the Service Provider’s personnel throughout the execution of the Services including but not limited to, directives to halt construction activities, the provision of safe and unobstructed access to sampling points, and provision of stable electricity supply, as required by the Service Provider. Failure to do so may lead to incorrect test results or observations, necessitating the repeat of tests carried out or Services rendered, the costs of which are to be borne by the Client.
4.9. The Service Provider’s Proposal provides for the rendering of two (2) draft versions and one (1) final version of reports to submitted as part of the Services. In the event that the relevant feedback is not received within two (2) weeks from the submission of interim reports, and two (2) months from the submission of the final reports, the respective report shall be deemed to have been approved and is concluded.
4.10. The Service Provider shall respond to comments and affect the necessary amendments to the relevant report within four (4) weeks from receipt of all comments, from the Client and/or interested parties, in writing.
4.11. Unless otherwise specified by the Service Provider in the Proposal, the Client shall be responsible for obtaining and providing all necessary permits required to conduct field or monitoring surveys. All permit application fees, administrative fees imposed by relevant authorities, and any required bank guarantees shall be the sole responsibility of the Client.
4.12. Archaeological monitoring will be conducted in accordance with the standard procedures outlined in the Operating Procedures and Standards for Archaeology Services (OPSAS) issued by the Superintendence of Cultural Heritage (SCH). The Client agrees to ensure that all required clearances from SCH are obtained at each designated phase of the construction process prior to proceeding to subsequent phases.
4.13. The Client agrees to maintain a safe working environment at all times, enabling work carried out by AIS personnel within the confines of a construction site or private property, to be performed in strict compliance with all applicable Health and Safety Laws and Regulations. The Client is responsible for carrying out a Risk Assessment covering the rendering of Services by the Service Provider, and make this available to the Service Provider prior to commencement of the Services. Additionally, the Client agrees to provide and maintain a site office with adequate space, sanitary facilities, and air conditioning, for use by the Service Provider’s personnel on a daily basis, during the rendering of the Services.
4.14. Without prejudice to anything contained in these Terms and Conditions, the Service Provider shall not be responsible for any consequences brought about by the Client’s failure to abide by the terms mentioned in the entirety of this Clause (Clause 4).
5. Intellectual Property
5.1. The copyright, trademarks, tradenames, patents and other intellectual property rights used or which feature in all drawings, reports, specifications, bills of quantities, calculations and other documents and information (hereinafter termed ‘Intellectual Property’) prepared by or on behalf of the Service Provider in connection with the Services shall be and remain the sole and exclusive property of the Service Provider.
5.2. Unless there is prior written authorisation by the Service Provider, the Client shall be prohibited from making any use of Intellectual Property in connection with any other works or for any other purpose, including but not limited to the making of copies or transfer to any third party.
5.3. When, prior to the delivery of such Intellectual Property and subject to the Service Provider having received payment from the Client of all fees and disbursements properly due for the Order, there is written authorisation from the Service Provider allowing the Client to make use of the Intellectual Property for purposes directly related to the Services, the Client shall be entitled to copy and use such intellectual property within the limits allowed and expressly specified by the Service Provider. In any case, such entitlement shall not enable the Client to reproduce any conceptual designs or professional opinions contained in the Intellectual Property.
5.4. The Service Provider shall not be liable for the use by any person of any drawings, reports, specifications or other documents or information for any purpose other than that for which the same were prepared by or on behalf of the Service Provider.
5.5. Neither the Service Provider nor the Client shall disclose any information of a confidential nature to any person unless with the prior written consent of the other party.
6. Fees and Payments
6.1. All fees quoted are exclusive of any Value Added Tax (VAT) computations and shall remain valid for a period of thirty (30) days from the date of any written quote. Any discounts which might be offered shall refer to the standard rates applicable to and in force at the time of any written quote.
6.2. The Client shall pay the Service Provider the price for the Services within thirty (30) days from date of invoice except where specific payment terms have been otherwise agreed by virtue of the Order.
6.3. Unless otherwise agreed in writing, the fees and/or rates specified in the Order are valid for a maximum period of six (6) months from Order Confirmation. The Client agrees to adjustments in fees and/or rates being made by the Service Provider should such Services be required beyond the six (6) months validity period.
6.4. For fees quoted at hourly, daily, or unit rates, the quantities provided in the Proposal are indicative and for estimation purposes only. The Client agrees that billing by the Service Provider will be based on the actual amount of Services rendered. Unless otherwise specified by the Service Provider in the Proposal, environmental and archaeological construction monitoring Services afterhours (16:00 to 08:00) and Saturdays are billed at one and a half times the hourly rate, while monitoring on Sundays and public holidays are billed at twice the hourly rate. An additional two (2) hours for Malta or four (4) hours for Gozo/Comino shall be billed for each site inspection or monitoring session, to cover mobilisation of the Service Provider’s personnel.
6.5. For Services quoted at a fixed fee, the Client agrees to the payment of additional charges as quoted for by the Service Provider or at the Service Provider’s prevailing hourly rate in the event that (i) the correct requested documentation or information is not provided to the Service Provider in a timely manner, (ii) the requirements for drafts or final versions of any report as per Clause 4.9 are exceeded, and (iii) if the Service Provider’s anticipated time to be spent on a particular Service is exceeded due to circumstances or issues emanating during the rendering of the Services, which were not and could not be reasonably expected, and which were beyond the control of the Service Provider.
6.6. Any amount or amounts due by the Client to the Service Provider which are not paid when due in virtue of these Terms and Conditions, the Order or any agreements relating thereto shall bear interest at the maximum rate allowed by law from time to time. Such interest shall accrue until the date of effective payment and shall be without prejudice to any other right of the Service Provider. The Service Provider will suspend, definitely or indefinitely, any further Services to the Client, and the Client shall pay any compensation that the Service Provider may suffer due to such suspension.
7. Warranties and Liability
7.1. The Client shall indemnify and hold the Service Provider or its officers and/or employees, harmless from and against any and all claims arising from any negligent, incompetent and/or wilful conduct, act or omission on the part of the Client and/or any of his officials and/or employees, including but not limited to the failure to abide within the limits posed by these Terms and Conditions, and from and against all costs, legal fees, expenses and liabilities incurred in the defence of any such claim or claims or any action or proceeding as is mentioned in this Clause. As a material part of the consideration to the Service Provider, the Client hereby assumes all risk for damage to property or injury to persons in, about or incidental to the Project arising from any cause, and the Client hereby waives all claims in respect thereof against the Service Provider, except for any claim arising out of the Service Provider’s gross negligence or wilful misconduct.
7.2. The Service Provider shall not be liable vis-à-vis the Client, his agents, his servants, Other Consultants and his contractors or otherwise in relation to any third party, including but not limited to individuals, for any losses or damage suffered by any such person, unless such loss or damage is the result of its gross negligence or wilful misconduct. Otherwise, the Service Provider disclaims and excludes any and all liabilities, representations and warranties, whether express or implied, in terms of law and/or custom.
7.3. Without prejudice to anything contained in these Terms and Conditions, the Service Provider’s liability to the Client shall in any event be limited to the total amount of the Service Provider’s invoices submitted for the Order at the date at which any claim is notified to the Service Provider by the Client.
7.4. No cancellation and/or variation of the Order may be made by the Client unless he obtains the prior written consent of the Service Provider. In any case, any cancellation or variation shall be subject to (i) the Client’s settlement of any and all fees and disbursements which might still be due at the time when he has made the request to the Service Provider; (ii) the Client’s payment for Services carried out by the Service Provider as at the date of cancellation, calculated as a proportion of the fees specified in the Order or at the Service Provider’s standard hourly rate, at the discretion of the Service Provider; and (iii) the Client’s full compensation to the Service Provider for any additional costs incurred as a result of such cancellation or variation.
7.5. The Service Provider shall not be liable to the Client for any delay, interference or non-performance of its obligations arising directly or indirectly from or as a consequence of war, civil commotion, strike or any other industrial or political action or dispute, natural disasters or events including earthquakes, flood, fire and bad weather, power outages, accident or stoppage to works, machinery breakdowns, shortage of or difficulty in obtaining labour, materials, equipment, fuel, power transport or by reason of any cause whatsoever beyond the Service Provider’s reasonable control or that of its sub-contractors, carrier or suppliers.
8. Governing Law, Jurisdiction and Dispute
8.1. The Terms and Conditions, the Order and any agreement relating thereto shall be governed exclusively by the laws of Malta.
8.2. In the unlikely event of any dispute arising out of or in connection with these Terms and Conditions, the Order and/or any agreement relating thereto, the Service Provider and the Client commit themselves to resolve the dispute at their earliest possible opportunity and as amicably as possible. In the event that such consensual solution does not resolve the dispute, it shall be referred to the exclusive jurisdiction of the Malta Arbitration Centre composed of a single arbitrator appointed by the same Arbitration Centre.
9. Miscellaneous
9.1. No waiver granted by the Service Provider of any breach of anything contained in these Terms and Conditions by the Client shall be considered as a waiver of any other subsequent breach of the same provision or any other provision.
9.2. In the event that any provision of these Terms and Conditions is determined to be unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by the applicable law. The unenforceable portion shall be deemed to be severed, and its determination shall not affect the validity and enforceability of any other remaining provision.
9.3. The headings herein used are included solely for ease of reference purposes and shall not affect the interpretation of these Terms and Conditions.