These Ground Investigation Terms and Conditions govern the provision of any Ground Investigation (as defined below), and incorporate the Groundsure Standard Terms and Conditions (the Conditions) in their entirety. Capitalised terms used but not defined in these Ground Investigation Terms and Conditions will have the meaning given to them in the Conditions.
If there is any inconsistency between the terms of an Order, the Conditions and these Ground Investigation Terms and Conditions, the documents shall be interpreted in the following order of precedence:
- terms of an Order which expressly state the Customer and Groundsure’s intention to supersede specific terms in these Ground Investigation Terms and Conditions;
- the Ground Investigation Terms and Conditions (including the Estimate);
- the Conditions; then
- the Order.
In these Ground Investigation Terms and Conditions, unless the context otherwise requires, the following additional definitions shall apply:
Conditions: the Groundsure standard Terms and Conditions
Customer: The person or organisation on behalf of which Groundsure is carrying out the Services.
Ground Investigation: The on-site investigation or other groundworks undertaken on the Property as part of the Services either by Groundsure or by the Customer as set out in the Estimate.
Ground Investigation Area: The area of the Property at which the Ground Investigation will take place.
Estimate: The description of activities and/or deliverables to be provided as part of the Services, as provided by Groundsure.
Owner: The owner of the Site.
Services: The Groundsure Consultancy & Geology Services as further set out in the Estimate.
Site: The property on which the Ground Investigation is to be conducted.
- Groundsure shall ensure that the Services are undertaken using reasonable skill and care and in accordance with these Ground Investigation Terms and Conditions.
- The Customer acknowledges that the Ground Investigation may be conducted by Groundsure (or Groundsure’s appointed subcontractors) or by the Customer (or the Customer’s appointed subcontractors). The party responsible for conducting the Ground Investigation will be set out in the Estimate.
- Where the Ground Investigation is carried out by Groundsure or its subcontractor as part of the Services:
- Groundsure shall use reasonable endeavours to perform the Services in accordance with any performance dates agreed in writing, but any such dates shall be estimates only and time shall not be of the essence in relation to the performance dates for Groundsure;
- Groundsure shall be responsible for all acts and omissions of any subcontractors as if such acts and omissions were its own; and
- the Customer shall provide, for Groundsure and its subcontractors, in a timely manner and at no charge, access to the Site and other facilities as reasonably required by Groundsure.
- Where the Ground Investigation is carried out by the Customer or a third party Customer Contractor:
- the Ground Investigation shall not form a part of the Services and Groundsure’s role (and the Services) shall be limited solely to proposing to the Customer or its subcontractors locations within the Ground Investigation Area for the Customer or its subcontractor to review and decide themselves whether such locations are suitably clear of underground cables and services and otherwise safe to conduct the Ground Investigation. For the avoidance of doubt, unless expressly agreed between the parties, Groundsure shall not undertake any client, principal designer or principal contractor roles under the Construction (Design and Management) Regulations 2015 (as amended from time to time);
- the Customer shall at its own cost be responsible for taking out and maintaining in force policies of insurance covering the liabilities which may be incurred by the Customer arising out of the acts or omissions of the Customer or its subcontractors in connection with such Ground Investigation; and
- the Customer shall be responsible for all acts and omissions of any subcontractors as if such acts and omissions were its own.
- The Customer warrants to Groundsure that: (a) it is the lawful owner of the Site and has the legal right to permit the Ground Investigation to take place; or (b) it has the express permission of the Owner to permit the Ground Investigation to take place.
- Where the Customer is not the Owner (including leasehold scenarios), the Customer shall ensure that the Owner consents to the Ground Investigation being carried out and signs, and returns to Groundsure, the disclaimer agreement set out in the appendix to these Ground Investigation Terms and Conditions.
- The Customer shall (or where the Customer is not the Owner, the Customer shall procure that the Owner shall) notify their insurer of the proposed Ground Investigation prior to commencement of the Ground Investigation. The Customer agrees that non-disclosure of the proposal to investigate and the result of the Ground Investigation may affect any future insurance claim, policy or premium.
- Whilst reasonable endeavours shall be made to avoid contact with any buried services or infrastructure during the course of Ground Investigations Groundsure accepts no liability to the Customer or Owner for any loss or damage suffered or incurred by the Customer to or in connection with any such buried services or infrastructure.
- Groundsure shall not be held responsible for dealing with, or for any defects caused as a result of, nor shall be liable for any loss or damage suffered or incurred in connection with striking artesian water. Artesian water is a naturally occurring resource that cannot be readily predicted.
- If the Site:
- is structurally connected to any neighbouring property, the Customer shall ensure that the owner of such property(ies) is / are made aware of any proposed Ground Investigation(s) and shall inform them to notify their insurers (or owner of the property if the occupier of the neighbouring property is a tenant) before the commencement of the Ground Investigation;
- shares foundations or other structural support with other properties that are not the subject of the Ground Investigation (e.g. flats), the Customer shall obtain written permission to proceed with the Ground Investigation from the party responsible for such foundations or supports before the commencement of the Ground Investigation;
- is a leasehold, the Customer shall obtain written permission to proceed with the Ground Investigation from all relevant parties before the commencement of the Ground Investigation;
- has a structure (e.g. wall, floor) which constitutes a “Party Structure” under the Party Wall Act 1996, the Customer shall inform the neighbours of the Site and comply with the requirements of that Act. Note that the Customer is advised to seek guidance from a party wall surveyor if this applies.
11. The Customer shall (or shall procure that the Owner, where different, shall):
- co-operate with Groundsure and its subcontractors in all matters relating to the Ground Investigation as requested by Groundsure;
- provide Groundsure and its subcontractors with such information as Groundsure or subcontractors may reasonably require in order to undertake the Ground Investigation, and ensure that such information is accurate, as far as they are aware, in all material respects (including, but not limited to, the location of all services and structures on the Site) below ground level;
- keep and maintain all materials, equipment, documents and other property of Groundsure or any subcontractors at the Site in safe custody until collected by Groundsure or its subcontractors;
- comply with the reasonable instructions of Groundsure or its subcontractors in connection with the Ground Investigation; and
- ensure that children, pets and other individuals not directly involved in the Ground Investigation are kept away from the Ground Investigation Area.
12. If Groundsure’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer, its subcontractors, or the Owner:
- Groundsure shall without limiting its other rights or remedies have the right to suspend the Ground Investigation until the Customer and / or Owner rectifies such act or omission; and
- Groundsure shall not be liable for any costs or losses sustained or incurred by the Customer (or Owner of the Site if different) arising directly or indirectly from the Customer’s, its subcontractors’, or the Owner’s, as applicable, failure to perform or delay in performing any of its obligations.
13. Groundsure will use reasonable endeavours to ensure that excavations are supervised by a suitably qualified employee or appointed representative.
14. Where a Ground Investigation is carried out by means of either machine or hand excavated trial pits/trenches, these excavations will be backfilled prior to leaving the Site. The Customer acknowledges that any Ground Investigation involving excavation may cause some disruption, and following backfilling, settlement of any trial pits/trenches must be expected.
15. Groundsure will not be liable for the following loss or damage whether in contract, tort (including negligence), breach of statutory duty or otherwise, howsoever caused and even if foreseeable by Groundsure:
a. any contamination or pollution that is aggravated, released or spread during any Ground Investigation;
b. any loss or damage suffered or incurred in connection with any such contamination or pollution or any damage to property or surrounds resulting from the Ground Investigation;
c. loss of profits;
d. loss of business;
e. loss or corruption of data or information;
f. business interruption;
g. any loss resulting from any advice, act or omission of the Customer, Owner or other third party; or
h. any kind of special, indirect or consequential loss.
16. Subject to the provisions of Conditions 15 and 17, Groundsure’s aggregate liability to the Customer under these Ground Investigation Terms and Conditions whether in contract, tort (including negligence) or otherwise, for any damages, losses or expenses will be limited to: (a) an amount equal to 100% of the Fees paid by the Customer for the Ground Investigation Works; or (b) such other amount as agreed in writing between the parties and set out expressly in the Contract.
17. Nothing in these Ground Investigation Terms and Conditions limits or excludes the liability of Groundsure for breach of its obligations under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982, or for death or personal injury caused by its negligence; for fraud or fraudulent misrepresentation; or for any other liability which cannot be validly limited or excluded at law.
18. Groundsure shall not be held responsible in the event that during the Ground Investigation, whether by the use of hand or machine excavation of trial pits or trenches or by the use of probing or borehole methods or otherwise, a mining feature or other natural or man-made feature is discovered and which, at the time or later as a result of the disturbance of the feature, causes settlement or subsidence, and Groundsure shall not be liable for any loss or damage suffered or incurred in connection with any such settlement or subsidence.
19. The Customer acknowledges that these exclusions are reasonable and accepts these terms.