International Fire Investigators & Consultants Limited (IFIC Forensics) Standard Terms + Conditions
1. SERVICES – These Standard Terms and Conditions apply to the consultation and/or investigative professional services (“Services”) of IFIC Forensics. The CLIENT will set out in writing the services which it requires IFIC Forensics to provide. IFIC Forensics will confirm in writing that it accepts those instructions. The acceptance of those instructions will constitute a binding contract based on these Standard Terms and Conditions. Any terms and conditions sought to be imposed by the CLIENT at any time before or after an acceptance is issued by IFIC Forensics shall be treated as pro non scripto. These Standard Terms and Conditions shall be referred to as the “Agreement”. IFIC Forensics and CLIENT agree to the terms of the Agreement.
“Additional Services” means such services in substitution for, and/or addition to, the Services which (a) are agreed verbally or in writing with the CLIENT or (b) in circumstances where the CLIENT’s agreement cannot be readily obtained, are deemed necessary and in the CLIENT’s interests by IFIC Forensics to enable the Consultant to properly address issues related to the Services not specifically identified in the Services.
“Advance” means any deposit required to be paid to IFIC Forensics in advance of the commencement of the provision of the Services which shall be applied firstly towards reimbursement to IFIC Forensics of Disbursements incurred and then towards any outstanding Fees.
“CLIENT” is the party at whose request or on whose behalf IFIC Forensics undertakes the Services.
“Consultant” is the investigator or consultant who will provide the Services on behalf of IFIC Forensics.
“Disbursements” means the cost of all photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including travel, refreshments and hotel accommodation where an overnight stay is necessary.
“Fees” means the fees agreed with the CLIENT, and such fees for Additional Services as may be charged, by IFIC Forensics to the CLIENT including any value added or other applicable tax and any Disbursements.
“IFIC Forensics” means International Fire Investigators and Consultants Limited (Scottish Company number SC289747), 220 Ayr Road, Glasgow G77 6DR
“Report” means any report or communication in writing supplied by IFIC Forensics in connection with the Services.
3. STANDARD OF CARE – IFIC Forensics shall perform the Services in a manner consistent with the reasonable level of skill, care and diligence ordinarily exercised by a properly qualified and competent consultant of Consultant’s discipline experienced in performing duties similar to the Services on projects of a similar size, scope and complexity as the Project (“Standard of Care”). For the purpose of the Standard of Care, the degree of competence shall be judged in light of professional knowledge and standards current at the time the service was provided. No other warranty, express or implied is made or is included or intended to be included in this Agreement or in any report, opinion or other information provided by IFIC Forensics, and the same are expressly excluded. The data, interpretations and recommendations of IFIC Forensics are based solely on the information available to IFIC Forensics. IFIC Forensics will not be responsible for interpretation by others of the information, opinions or recommendations developed by IFIC Forensics.
4. LIMIT OF PROFESSIONAL LIABILITY – The CLIENT and IFIC Forensics have discussed the risks and benefits of the engagement and the compensation to be paid to IFIC Forensics. To the maximum extent permitted by law, CLIENT expressly agrees, for itself and anyone claiming by, through or under it that the liability of IFIC Forensics, its subsidiaries, affiliates and subcontractors, including their respective officers, directors, employees, successors and assigns for any and all causes of action whatsoever, including without limitation, tort, contract, strict liability, indemnity or otherwise, arising out of, or in connection with this Agreement or IFIC Forensics’ professional services, shall not exceed the fee paid to IFIC Forensics by the CLIENT in respect of the Services. Neither IFIC Forensics nor the CLIENT will be liable to the other for loss of profits or revenue, loss of use or other opportunity, loss of goodwill or any consequential, incidental, indirect, exemplary, or punitive damages.
CLIENT acknowledges that (i) without the inclusion of this limitation of liability provision, IFIC Forensics would not have performed the Services; (ii) it has had the opportunity to negotiate the terms of this limitation of liability as part of an “arm’s-length transaction”; (iii) the limitation amount may differ from the amount of professional indemnity insurance required of IFIC Forensics under this Agreement; and (iv) the limitation of liability provision is merely a limitation, and not an exculpation, of IFIC Forensics’ liability.
Any claims against IFIC Forensics by the CLIENT shall be deemed to be waived and absolutely time barred upon the expiry of one year from the CLIENT’s receipt of the Report that would be the subject of such a claim or, if earlier, from the CLIENT becoming aware of the circumstances that would give rise to such a claim.
Notwithstanding the forgoing, nothing in this Agreement limits or excludes any liability which cannot legally be limited or excluded, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.
5. INDEMNITY – The CLIENT hereby agrees to defend, indemnify, and hold IFIC Forensics (and its employees, agents and subcontractors) harmless from any claim or liability (including reasonable legal costs) which may be brought or incurred as a result of the performance of the Services in accordance with this Agreement.
6. PAYMENT TERMS AND INVOICES – Compensation for the Services shall be based upon a time-and-expense basis in accordance with the current IFIC Forensics fee rates. IFIC Forensics fee rates are subject to change without notice.
The CLIENT is responsible for all costs incurred during the course of requested and authorised services provided by IFIC Forensics. Under no circumstances is that financial liability transferable, in whole or in part, to any other party.
The CLIENT is responsible for all fees and expenses incurred in preparation for and attendance at court, giving expert evidence or other required testimony, unless IFIC Forensics has received from opposing counsel, advance payment or written confirmation to pay IFIC Forensics’ fees and expenses. Upon notification of a request for IFIC Forensics to attend court or to otherwise give expert evidence, IFIC Forensics will forward to the CLIENT the rates and the anticipated cost thereof, if requested.
The CLIENT is responsible for all fees and expenses incurred in response to any request for production of documents. Upon notification of the request for production, IFIC Forensics will forward to the CLIENT the rates and the anticipated cost of complying with the request for production, if requested.
IFIC Forensics will submit invoices to CLIENT and a final bill if applicable upon completion of Services. CLIENT shall notify IFIC Forensics within ten (10) days of receipt of invoice of any dispute with the invoice. CLIENT and IFIC Forensics will promptly resolve any disputed items. Payment of undisputed invoice amounts (or any part of an invoice amount that is not disputed) is due within thirty (30) days from the date of the invoice. If any amount remains unpaid, IFIC Forensics shall be entitled to charge the CLIENT interest of 4% above the base rate of the Bank of England from time to time, from the invoice date until the full invoice amount has been paid.
If any invoice amount is past due, IFIC Forensics shall have the right to suspend all work under this Agreement, without prejudice. CLIENT will pay all reasonable demobilisation and other suspension costs. CLIENT agrees to pay legal costs, and all other collection costs incurred by IFIC Forensics in pursuit of past due payments.
7. INSURANCE – IFIC Forensics maintains comprehensive general liability insurance coverage that, subject to the limits, terms and conditions of the policy, provides protection against liability arising out of bodily injury and property damage that is the direct result of the nonprofessional negligence of IFIC Forensics.
IFIC Forensics shall effect and maintain Professional Liability Insurance to the level required to meet IFIC Forensics’ liability to the CLIENT.
8. TERMINATION OF SERVICES – This Agreement shall be terminated upon completion of the Services rendered by IFIC Forensics in accordance with the agreed upon scope of work and upon final payment by CLIENT to IFIC Forensics.
This Agreement may be terminated for convenience by either party upon ten (10) days’ written notice. In the event that CLIENT requests termination of the Agreement prior to the completion of the Services, the written notice to terminate shall state the reasons for termination. IFIC Forensics reserves the right to complete such records as are necessary to place its files in order and, where considered necessary by IFIC Forensics to protect its professional reputation, to complete a report on the Services performed to the date of termination. If the engagement is terminated for convenience, CLIENT shall pay and reimburse IFIC Forensics for services rendered and costs incurred up to and including the date of termination.
If the payment terms are based upon a fixed fee price, then IFIC Forensics shall be paid on a pro rata basis in proportion to the contract price based on the level of effort expended up to and including the date of termination, as invoiced by IFIC Forensics.
IFIC Forensics will provide a summary of fees and costs to the CLIENT within seven (7) business days of termination.
9. SCHEDULE/DEADLINES – IFIC Forensics shall endeavour to meet all reasonably imposed deadlines. CLIENT shall inform IFIC Forensics of all pertinent deadlines and dates in order to effectively and efficiently carry out its scope of services. CLIENT shall endeavour to provide IFIC Forensics with reasonable notice and time to complete and/or prepare for investigation, report(s) or other work product, expert evidence, court case or other required testimony. Any work product requested of IFIC Forensics by CLIENT on an expedited time schedule may be subject to increased fees as determined by IFIC Forensics.
The CLIENT agrees to provide IFIC Forensics with all information, instructions, data or materials reasonably requested by IFIC Forensics in a timely manner, where such information, data or materials are required for IFIC Forensics to complete the Services. IFIC Forensics shall not be liable for any delay to the engagement or failure to meet the deadline as a result of the CLIENT’s failure or delay in providing IFIC Forensics with requested information, data or materials.
The CLIENT shall procure all necessary access for IFIC Forensics to goods, premises, vessels, installations and transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. IFIC Forensics shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.
10. DELAYS AND FORCE MAJEURE – If site conditions prevent or inhibit performance of Services or if unrevealed hazardous waste materials or conditions are encountered, Services under this Agreement may be delayed. Delays within the scope of this provision shall, at the option of either party, make the Agreement subject to renegotiation or termination. CLIENT shall not hold IFIC Forensics responsible for damages or delays in performance caused by acts of God, acts and/or omissions of governmental authorities and regulatory agencies or other events that are beyond the reasonable control of IFIC Forensics. For this purpose, such acts or events shall include, but not be limited to, storms, floods, epidemics, war, riot, strikes, lockouts, or other industrial disturbances, pandemic and inability with reasonable diligence to supply personnel information, or material to the engagement. Should such acts or events occur, it is agreed that IFIC Forensics shall use reasonable efforts to overcome difficulties arising and to resume as soon as reasonably possible the normal pursuit and schedule of the Services covered by the Agreement.
11. DISPUTES AND CONTROLLING LAW – All claims and disputes between the parties to this Agreement arising out of or in connection with the performance or breach of any obligation under this Agreement that are not resolved by direct discussions between the parties, shall be submitted to mediation prior to resorting to litigation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. If the parties cannot agree on a selection of a mediator within ten (10) days of the request for mediation, either party may immediately request the appointment of a mediator by CEDR. The parties agree to conduct and conclude mediation proceedings under this paragraph within sixty (60) days from the designation of the mediator or such other timeframe mutually agreed upon in writing by the parties. In the event mediation does not resolve the claim, the parties agree to consider and to consult on the use of arbitration prior to commencing litigation.
This 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 Scotland. Each party irrevocably agrees that the Scottish Courts shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
12. DATA AND INFORMATION – IFIC Forensics shall be entitled to rely upon the reports, data, studies, plans, specifications, documents and other information provided by CLIENT or others in performing the Services, and IFIC Forensics assumes no responsibility or liability for the accuracy or completeness of such. CLIENT waives any claim against IFIC Forensics and agrees to defend, indemnify, and hold IFIC Forensics harmless from any claim or liability for injury or loss allegedly arising from errors, omissions, inaccuracies or incomplete information in reports, data, studies, plans, specifications, documents or other information provided to IFIC Forensics by CLIENT or others. IFIC Forensics will not be responsible for any interpretations or recommendations generated or made by others, which are based, whole or in part, on IFIC Forensics’ data, interpretations or recommendations.
13. EVIDENCE – If the Services should include collection of physical evidence or if CLIENT directs IFIC Forensics to possess or store any evidence at IFIC Forensics’ evidence storage warehouse, such collection and/or storage shall be subject to the terms and conditions of IFIC Forensics’ Evidence Storage Agreement and Liability Statement. The Evidence Storage Agreement and Liability Statement is incorporated by reference herein, forms part of this Agreement and is attached hereto for reference.
14. INTELLECTUAL PROPERTY – All rights to patents, trade marks, copyrights, trade secrets or any other intellectual property (whether registered or unregistered) owned by IFIC Forensics (hereafter, “Intellectual Property”), as well as any modifications, updates or enhancements to said Intellectual Property, during the performance of the Services remain the property of IFIC Forensics and IFIC Forensics does not grant CLIENT any right or licence to such Intellectual Property save as to the licence granted in respect of the Deliverables under paragraph 14.
15. OWNERSHIP OF DELIVERABLES AND RELATED DOCUMENTS – All drawings, plans, designs, reports, field data, field notes, calculations, estimates and other documents prepared by IFIC Forensics (collectively, “Deliverables”), including all Intellectual Property therein, shall remain the property of IFIC Forensics. IFIC Forensics agrees to license the use of the Deliverables to the CLIENT on a non-exclusive, non-transferable basis for the sole purpose of completing the engagement, on the terms of this Agreement. CLIENT agrees that all reports and other work provided to the CLIENT or its agents, which are not paid for on the terms of this Agreement, will be promptly returned upon demand and will not be used by CLIENT for any purpose whatsoever.
IFIC Forensics shall retain records relating to the services performed for a period of five (5) years following submission of its work product, during which period the records will be made available to CLIENT on reasonable notice in writing by CLIENT and subject to strict obligations of confidentiality. Reuse of any instruments of service/Deliverables by CLIENT on extensions of the engagement (or on any other projects) without the permission of IFIC Forensics shall be at CLIENT’s sole risk and CLIENT agrees to indemnify and hold harmless IFIC Forensics from any and all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) arising out of such unauthorised reuse.
16. CONFIDENTIALITY – If CLIENT or IFIC Forensics receives Confidential Information (as defined below) from the other party, whether disclosed in writing or verbally or otherwise, the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees (on a need to know basis), (2) those who need to know the content of such information in order to perform services solely and exclusively for the engagement and who are under an obligations of confidentiality, or (3) its consultants whose contracts include similar restrictions on the use of confidential information. As used herein, “Confidential Information” shall mean information relating to the other party or its business and which is specifically designated by the disclosing party as “confidential” or “business proprietary” or ought reasonably to be understood as confidential. These provisions shall not apply to information in whatever form that is in the public domain (other than through a breach of this paragraph 16), was previously known to and/or generated by the receiving party, nor shall it restrict either party from giving notices required by law or complying with an order to provide information or data when such order is issued by a court, regulatory body or other legitimate authority, or if disclosure is reasonably necessary for IFIC Forensics to defend itself from any legal action or claim.
17. ASSIGNS – Neither CLIENT nor IFIC Forensics may delegate, assign, sub-contract, or transfer the duties, interests or responsibilities set forth herein without the written consent of the other party, although IFIC Forensics may sub-contract any of the Services as it deems necessary to perform its obligations under this Agreement, provided at all times IFIC Forensics shall be liable for the performance of its obligations under this Agreement. Further, IFIC Forensics may continue to use any consultant in order to provide the Services on behalf of IFIC Forensics to the CLIENT.
Nothing under the Agreement shall be construed to give any rights or benefits to any person or entity other than the CLIENT and IFIC Forensics, and all duties and responsibilities undertaken pursuant to this agreement will be for the sole and exclusive benefit of the CLIENT and IFIC Forensics and this Agreement does not give rise to any rights under the Contracts (Third Party Rights) (Scotland) Act 2017 to enforce any term of this Agreement.
18. MISCELLANEOUS – These Standard Terms and Conditions and any documents referenced herein constitute the entire “Agreement” between IFIC Forensics and CLIENT. This Agreement supersedes all other agreements, oral or written. No cancellation, modification, amendment, deletion, addition, waiver or other change in this Agreement shall have effect unless specifically set forth in writing signed by an authorised representative of each parties.
In the event this Agreement is not fully executed by both parties and IFIC Forensics has commenced work at CLIENT’s authorisation, CLIENT’s authorisation of work shall constitute consent to the terms of this Agreement and shall have the same binding effect as if signed by the parties.
All sections of this Agreement that may reasonably be interpreted or construed to survive termination of this Agreement, will survive termination, including, without limitation, Limit of Professional Liability, Payment Terms, Termination of Services, Disputes and Controlling Law, Data and Information, Intellectual Property, Ownership of Deliverables and Related Documents.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
Evidence Storage Agreement + Liability Statement
IFIC Forensics is in possession of and is storing the evidence in connection with services rendered by IFIC Forensics on behalf of and at the request of CLIENT or CLIENT’s agent(s). The evidence is being held in a secure storage facility and storage fees may be charged at the rates set forth in our Standard rates and charges. Evidence stored at IFIC Forensics’ facility is at the risk of the CLIENT. IFIC Forensics does not maintain and will not obtain insurance on the evidence. CLIENT is solely responsible for determining the value of the evidence and obtaining the appropriate insurance coverage.
Retrieval, handling, packaging, shipping, inspection, storage, testing or related activities performed by IFIC Forensics may result in damage or changes to the evidence. IFIC Forensics will perform all testing and activities involving evidence with the appropriate standard of care owed to CLIENT. IFIC Forensics is not responsible for the loss of or any damage to evidence howsoever caused, including damage resulting from alteration, modifications or changes to evidence.
CLIENT waives (and will ensure that its insurers waive) any and all claims against IFIC Forensics, its agents and employees, including any subrogation rights on the part of CLIENT’s insurers for any loss or damage to evidence from any cause. CLIENT agrees to indemnify and hold harmless, IFIC Forensics from any and all liability or claims associated with evidence retrieval, handling, packaging, shipping, inspection, storage, testing and related activities performed on behalf of CLIENT or CLIENT’s agent(s).
IFIC Forensics has the right to refuse the acceptance and storage of evidence. In the event storage fees owed by CLIENT remain unpaid for a period of 90 days or longer from the date of the evidence storage invoice, and no disposal or transmittal instructions have been received from CLIENT, IFIC Forensics shall provide written notice to CLIENT via registered mail of its intent to dispose of evidence (“Notice of Intent to Dispose of Evidence”). If no disposal or transmittal instructions by CLIENT have been made within 60 days of mailing the Notice of Intent to Dispose Evidence, IFIC Forensics has the right to dispose of evidence without further notice to CLIENT. CLIENT waives any and all claims against IFIC Forensics and agrees to indemnify and hold harmless IFIC Forensics from liability and claims, including any claims from the CLIENT’s insurers, arising out of the disposal of evidence for non-payment of storage fees.
A signed copy of this Agreement or instructions for disposal or transfer must be returned immediately to IFIC Forensics. IFIC Forensics only accepts receipt of the evidence under the terms of this Agreement, whether or not CLIENT or its authorised representative signs this Agreement. Due to delays in CLIENT response time, processing and mailing, the terms of this Agreement remain in force at the time CLIENT authorises the transfer of evidence to IFIC Forensics. You will be deemed to have consented to the terms of this Agreement if you do not object to the terms herein within five (5) business days of the date hereof, regardless of whether we have taken any action with respect to evidence you submitted to us. In the event CLIENT rejects the terms of this Agreement, CLIENT is responsible for all costs incurred by IFIC Forensics prior to the receipt of notice of such rejection as well as any costs of returning and transporting any evidence IFIC Forensics already holds on behalf of the CLIENT. Invoices will be sent annually for pre-payment of evidence storage, handling and processing. Evidence will not be released or transferred until all invoices are paid in full, except as authorised by an evidence custodian of IFIC Forensics.