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Terms & conditions of contract

TERMS & CONDITIONS OF CONTRACT

DEFINITIONS

In these Conditions the following definitions apply:

RSD: RS Divers Limited.

Conditions: these terms and conditions as amended from time to time in accordance with Condition 25.

Contract: the contract between RSD and the Client for the supply of Works in accordance with these Conditions.

Client: the person or firm who purchases Works from RSD.

Force Majeure Event: means an event beyond the reasonable control of RSD including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of RSD or subcontractors.

Order: the Client's order for Works as set out in the Client's purchase order form or the Client's verbal or written acceptance of RSD's quotation as the case may be.

Works: the works and services to be performed by RSD for the Client.

1 The Order constitutes an offer by the Client to purchase the Works in accordance with these Conditions.

2 The Order shall only be deemed to have been accepted when RSD has sent written confirmation to the Client and on which date the Contract shall come into existence.

3 Any samples, drawings, descriptive matter or advertising issued by RSD, and any descriptions or illustrations contained in RSD's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or have any contractual force.

4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

5 All quotations supplied to the Client shall be subject to these Conditions. Any quotation given by RSD shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.

6 The Client shall comply with all obligations in relation to the Works set out in the quotation or as otherwise agreed in writing.

7 The Client shall be responsible for any and all mobilisation and demobilisation costs associated with the project in their entirety and without exclusion or limitation unless such exclusion or limitation has been agreed by both parties in writing prior to the commencement of the Project or is agreed by both Parties in accordance with the Change Control Mechanism contained within Schedule 1. Any such costs that are the responsibility of the Client shall not be borne or transferred to the Supplier in any manner. Such costs may include, but not necessarily be limited to, dive equipment, diving spread (trailer), other plant and equipment hired by the Supplier on behalf of the Client in order to undertake the Project. The Client is required to arrange and permit any and all appropriate access to such facilities and properties as may be required to allow safe and timely loading and unloading of equipment and any associated costs shall be the responsibility of the Client in their entirety unless otherwise expressly agreed by the Supplier.

8 If the Client requires RSD to hire or purchase plant or equipment then a mark-up at a rate of 20% will be applied to the item cost.

9 If RSD's performance of any of its obligations under the Contract 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) RSD shall without limiting its other rights or remedies have the right to suspend performance of the Works 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 to the extent the Client Default prevents or delays RSD's performance of any of its obligations;

(b) RSD shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the RSD's failure or delay to perform any of its obligations as set out in this Condition 9; and

(c) the Client shall reimburse RSD on written demand for any costs or losses sustained or incurred by RSD arising directly or indirectly from the Client Default.

10 RSD shall use all reasonable endeavors to meet any performance dates agreed in writing with the Client, but any such dates shall be estimates only and time shall not be of the essence for performance of the Works.

11 RSD reserve the right to make any changes which are necessary in their sole opinion to comply with any applicable law, statute or other legal instrument or to conform to recognized best practice or to mitigate any identified Health and Safety risk or which do not materially affect the nature or quality of the Works. Any such change shall be undertaken in accordance with the Change Control Procedure contained in Schedule 1 as soon as is practicable.

12 RSD reserves the right to increase its charges if any of the assumptions upon which the quotation is based are incorrect and subsequently amended to any material extent or if the cost of undertaking the Works increases due to unforeseeable legislative and/or Health and Safety requirements. Any such change shall be undertaken in accordance with the Change Control Procedure contained in Schedule 1 as soon as is practicable. The Client must communicate acceptance of any revised quotation in writing within three working days and such acceptance is not to be unreasonably withheld or delayed by the Client.

13 RSD will not be responsible for any services unless covered by the RSD quotation and will not be liable to any third parties other than the Client. Further, RSD are not liable for the work of any other parties who become involved in the Works to which these Conditions apply.

14 No liability is accepted by RSD for any errors or omissions in documentation and information supplied by other parties upon which RSD services are reliant.

15 Nothing in this Contract will limit RSD's liability for:

(a) Death or personal injury caused by it's negligence, or the negligence of its employees, agents or subcontractors;

(b) Fraud or fraudulent misrepresentation; or

(c) Breach of terms implied by section 2 of the Supply of Goods and Services Act 1982.

16 Subject to Condition 13:

(a) RSD shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;

(b) RSD's total liability to the Client in respect of the all other losses arising under or in connection with the Contract, whether in contract or in tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the fee payable by the Client for the Works; and

(c) the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

This Condition 16 shall survive the termination of the Contract.

17 Cancellation, postponement or suspension of the Works in accordance with the Contract Terms and Conditions, irrespective of whether for a defined or undefined period of time, must be provided in writing by the Client to the Supplier immediately. In the event of any such cancellation, postponement or suspension of works arising, the Client shall be liable in full for any and all charges and expenditure incurred by the Supplier in connection with undertaking the Works. The Supplier shall act in good faith with regard to mitigating the extent of any such charges and expenditure upon receipt of written notification from the Client of any cancellation, postponement or suspension.

18 The copyright of any reports, drawings, calculations and other documents produced by RSD shall remain vested in RSD. The Client shall have license to use such documents in connection with the project to which the Contract relates save that no copies shall be made or used in connection with any other project without approval in writing and upon terms agreed with RSD. RSD shall not be liable in any manner for any unauthorised use by the Client of any reports, drawings, calculations and other documents including without limitation for any purpose other than that for which they were expressly intended and prepared, and any authorised use must only be upon written terms agreed to in advance by RSD. The Client shall indemnify and hold the Supplier harmless from all claims and all direct  liabilities, costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Supplier as a result of or in connection with any claim made against the Supplier in respect of any liability, loss, damage, injury, cost or expense to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the unauthorised use of any reports, drawings, calculations and other documents by the Client, the client’s employees or agents.

19 The Client in placing the Order is deemed to undertake obligations with regard to the Works without charge to RSD unless stated otherwise in RSD's quotation including arranging compliance with all legal and other requirements and payment of fees of any kind necessary to permit RSD access and egress to the site of the Works and to indemnify RSD against any cost, damages or proceedings arising out of non-compliance with any such requirements, and any cost whatsoever of any reinstatement and/or remedial works which are the unavoidable result of the execution of the Works.

20 All site conditions and risk factors, either actual or potential, must be fully disclosed in writing at Tender stage by the Client. The Client agrees to cooperate to the fullest extent possible in the preparation of any and all Health and Safety documentation, including but not necessarily limited to Risk Assessments, Method Statements and Permits to Work, all such assistance not to be unreasonably withheld or delayed. If site conditions differ upon either commencement of or execution of the works to any material extent or if the cost of undertaking the Works increases due to unforeseeable legislative and/or Health and Safety requirements. Any such change shall be undertaken in accordance with the Change Control Procedure contained in Schedule 1 as soon as is practicable. Acceptance of any revised quotation must be communicated in writing by the Client within three working days and such acceptance is not to be unreasonably withheld or delayed by the Client

21 RSD shall not be liable for any damage, injury or accident which may be due to any act or neglect of the Client or his agents or servants.

22 RSD shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents RSD from providing any of the Works for more than 4 weeks, RSD shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

23 Correctly formatted and submitted invoices are to be paid in full within fourteen (14) days of the date stated upon the RSD invoice unless otherwise stated and if payment is not received in full within that period of 14 days interest will be payable as from the fourteenth day after the date of the invoice on the sum due at a rate of 4% above the base rate of the HSBC Bank Plc at the date of the account. Where required by RSD invoices for stage payments will be issued on a monthly basis. If payment is not received within the 14 days RSD will instruct their debt collection service to recover the outstanding funds and any costs incurred by RSD will be added to the outstanding account for payment by the Client.

24 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). RSD may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by RSD to the Client.

25 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; (b) the other party suspends payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) the other party (being an individual) is the subject of a bankruptcy petition or order;

(e) a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(f) an application is made to court, or an order is made, for the appointment of an administrator or if an administrator is appointed over the other party (being a company);

(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has appointed an administrative receiver;

(h) a receiver is appointed over the assets of the other party;

(i) The other party suspends or ceases to carry on all or a substantial part of its business.

(j) Either Party may terminate this Contract at any time during the term of the Contract on the provision of thirty days prior written notice.

26 Without limiting its other rights or remedies, RSD may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.

27 On termination of the Contract for any reason:

(a) the Client shall immediately pay to RSD all of its outstanding invoices and interest;

(b) RSD shall invoice to the Client the value of any Works completed but not yet invoiced at the date of the termination;

(c) the Client shall return all of RSD's materials and any deliverables which have not been fully paid for. If the Client fails to do so, then RSD may enter the Client's premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;

(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of the termination or expiry; and

(e) clauses which expressly or by implication survive termination shall continue in full force and effect.

28 No alteration to any of the Conditions is valid unless and until confirmed in writing by a director of RSD.

29 RSD shall exercise reasonable skill and care in the performance of the Works in conformity with the normal standards of its profession.

30 Any disputes may be referred by either party for adjudication in accordance with the CK Adjudication procedure.

31 RSD may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

32 The Client shall not, without the prior written consent of RSD, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

33 Any notice to be served on any of the parties shall be sent by pre-paid recorded delivery or registered post to the registered office (if it is a company) or its principal place of business (in any other case) or such address as that party may have specified to the

other party in writing in accordance with this clause and shall be deemed to have been received on the third business day following posting.

34 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed delete. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

35 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

36 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any right or remedy, nor shall it prevent or restrict its further exercise of that or any right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

37 A person who is not a party to the Contract shall not have any rights to enforce its terms.

38 This Contract shall be governed by the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.

39.1 Each party (the Recipient) undertakes at all times during the Term and thereafter to keep confidential the Confidential Information of the other party (the Provider) and, other than as set out in clauses 3.2 and 3.3, shall not use, copy or disclose the same or any part thereof except:

(a) insofar as may be necessary for the proper fulfilment of its obligations under or, receipt of the benefit of this Agreement, subject always to the provisions of clause 3.4; or

(b) in the case of this Agreement, only to disclose such Confidential Information to those responsible individual employees required to have knowledge of the same for the purpose of performing its obligations and/or exercising its rights pursuant to this Agreement.  To this end, the Recipient shall ensure that each of its employees to whom any part of such Confidential Information of the Discloser is disclosed is bound by a like obligation of confidentiality and will draw the confidential nature of the Confidential Information to the attention of such employees; and

(c) in the case of this Agreement, to disclose the terms to its professional advisers, agents or representatives for the purpose of obtaining professional advice.  To this end, and where considered necessary in the opinion of the Provider, the Recipient shall ensure that its professional advisers, agents or representatives sign a confidentiality undertaking (on terms no less stringent than those set out in this clause 3) before any disclosure to them; or

39.2 The obligation contained in clause 3.1, shall not apply to Confidential Information which:

(a) is in or comes into the public domain (otherwise than in breach of this Agreement);

(b) the Recipient receives from an independent third party having the right to disclose the same;

(c) the Recipient can show was in its possession by being recorded in its files or records prior to the date of receipt from the Provider;

(d) the Provider has given its prior written consent to the Recipient allowing the disclosure; or

(e) is disclosed on a confidential basis to a bona fide prospective assignee of either party to the extent necessary for the purpose of the proposed assignment; or

(f) is disclosed on a confidential basis to any third party for the purpose of such third party tendering for or proposing to provide any of the Services, Consumables and/or Commodities to the Client.

39.3 If either party is required by law or any regulator to which it is subject or any court of competent jurisdiction to disclose any Confidential Information of the Provider, then it shall be entitled to do so provided that it shall, where reasonably practicable, notify the Provider in writing of the circumstances of the required disclosure and to the extent possible, receive confidentiality undertakings from the entity to whom the Confidential Information is disclosed.

39.4 The Supplier shall ensure that the Supplier Personnel and other persons with whom the Supplier may have dealings in relation to the subject matter of this Agreement shall maintain confidentiality on the foregoing terms. Without prejudice to the foregoing, the Supplier undertakes that it shall only allow access to the Confidential Information to the Supplier Personnel and other persons on a need to know basis.

39.5 The Recipient further agrees in relation to the Confidential Information of the Provider to undertake in writing to the Provider at any time upon its demand that it has complied with its obligations under this clause 3.

40 Entire agreement

i. This Agreement together with the Quotation, which is hereby incorporated by reference, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

ii. Nothing in clause 4.1 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation

41 Rights and remedies

i.The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

42 Force majeure

i. If either party is totally or partially prevented or delayed in the performance of any of its obligations under or pursuant to this Contract by a Force Majeure and if that party gives notice as soon as reasonably practicable to the other party specifying the matters constituting the Force Majeure together with such evidence as it reasonably can give thereof and specifying the period for which it is reasonably estimated that such prevention or delay will continue, the party so prevented or delayed shall, subject to the provisions of clause 6.2, be excused such performance as from the date of the happening of the Force Majeure for so long as such Force Majeure shall continue.  As soon as the Force Majeure ceases, the party affected by it shall immediately notify the other party in writing and shall promptly resume performance of its obligations.

ii. If either party gives to the other party notice under clause 6.1, the party serving such notice and affected by the Force Majeure shall:

(a)use reasonable endeavours to avoid, minimise or mitigate the effect and extent of such Force Majeure and carry out its obligations and duties in such other ways including, without limitation, by way of alternative sources and/or workarounds, as may be reasonably practicable;

(b)use reasonable endeavours to resume performance of the suspended obligation and in the meantime must continue to perform the remainder of its obligations to the best of its ability.

Schedule 1

1.Standard Change Procedure

1.1Whilst proposed changes may be discussed orally between the parties, the procedure set out in this Schedule 1 only starts when one party receives from the other a written and detailed Change Request.

1.2 On receiving a Change Request from the Supplier, the Client shall as soon as reasonable practicable (and in any event within 5 (five) business days after its receipt or such longer period as the parties may mutually agree in writing) submit to the Supplier a completed change control note in respect of it , unsigned.

1.3 A request for a change by the Client to the Supplier shall also be submitted to the Supplier by way of a change request together with a completed and unsigned change control note.

1.4 Each change control note shall be substantially in the form that follows this Schedule 1, shall contain the information set out in that form and any other information that is reasonably necessary to enable the Supplier properly to evaluate the requested change and its implications, shall be prepared by the Client in good faith, acting reasonably, and shall be complete, accurate and not misleading.

1.5 On receiving a completed Change Control Note, the Supplier shall allocate a sequential number to it, shall evaluate it within 5 (five) Business Days or longer as may be mutually agreed in writing between the parties, may request the Client provide further information in relation to it (which the Client shall promptly provide) and may request amendments to it (to which the Client shall promptly respond). Throughout the process described in paragraph 1.5, both parties shall act reasonable. Neither party shall unreasonably withhold or delay its agreement to any change.

1.6 The Supplier shall be entitled to withhold its agreement to any change, which in the reasonable opinion of the supplier will adversely affect the services or will otherwise be prejudicial to the interests of the Supplier.

1.7 A change is only agreed on both parties signing a change control note in respect of it, whereupon this agreement shall be treated as having been amended in accordance with the change control note. Pending signature of the Change Control Note (subject to paragraph 1.9 of this schedule below) the parties shall proceed only in accordance with the latest agreed terms of this agreement and the then signed Change Control Notes.

1.8 No Change Control Note shall be valid unless signed by an authorised representative of each party.

1.9 The implications of the change  (including its implementation) on the charges payable by the Client to the supplier under this agreement shall, if applicable, be calculated, referenced within and agreed by the parties as part of the Change Control Process and documented within the Change Control Notes.

2. Expedited Change Procedures

2.1 If the Supplier reasonably believes that a change is required which is far too urgent for the Standard Change Procedure set out in paragraph 1 above, it shall submit a Change Request (clearly stating that it refers to a request for an expedited change) to the Client who shall within 24 (twenty four) hours review the Change Request and attend a meeting or telephone conference to discuss the request.

2.2 The Client shall, as soon as reasonably practicable (and in any event within 36 (thirty six) hours after its receipt of the Change Request (or such longer period as the parties may mutually agree in writing) submit to the supplier a change control note in respect of it, unsigned.

2.3 The change shall be implemented by the Client within such period as the parties shall agree in good faith and document within the applicable change control note or within 5 (five) days from the date of submission of the changer request if no date is agreed or specified.

2.4 Those provisions of the Standard Change Procedure in this Schedule 1 that do not conflict with the provisions contained in this paragraph 2 shall continue to apply.

 3. Administration Costs

3.1 Each party agrees to bear its own costs in relation to the consideration of a change request and the preparation of any change control documentation.




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