1.1 The Client appoints the Consultant to provide the Services (which include the Basic Services and any additional Services as described in Clause 6 below) and the Consultant accepts such appointment upon and subject to these Conditions (the “Appointment”). The Appointment takes effect on the date when the Consultant first commenced performance of the Services, irrespective of the date of this Appointment.
1.2 The Consultant regularly liaises and consults as necessary with the Contractor and other members of the Professional Team set out in the Appointment Particulars.
2 Standard of Care
The Consultant, when performing the Services, exercises the reasonable skill and care to be expected of an appropriately qualified professional consultant of the same discipline as the Consultant holding itself out as having the competence and resources to perform the Services.
3 Statutory Requirements
When performing the Services, the Consultant complies with the requirements of all statutes and legislation relevant to the Project. In particular, the Consultant complies with the Construction (Design and Management) Regulations 2007, to the extent they apply to the Project.
4 Prohibited Materials
The Consultant, exercising the required standard of care:
(a) does not specify for use in connection with the Project any materials which by their nature or application contravene any British Standard or EU equivalent current at the time of specification or which are otherwise generally known within the construction and engineering industry at the time of specification to be harmful to health and safety or to the durability of works in the particular circumstances in which they are specified for use, and
(b) insofar as reasonably practicable and having regard to the nature and extent of the Services, sees that such materials are not used in the construction of those parts of the Project to which the Services relate.
As consideration for the performance of the Basic Services, the Client pays the Consultant the Fee and the Reimbursable Expenses set out in the Appointment Particulars. The Fee is adjusted if the performance of the Basic Services is materially delayed and/or disrupted for any cause outside the Consultant’s reasonable control. The parties agree the adjustment to the Fee and the timing of its payment. If not agreed, such adjustment is based on the rates set out for the Basic Services and, if no rates are set out, on the rates set out for the Additional Services. The Fee is then the Fee as adjusted.
6 Additional Services
If at any time the Client requires the Consultant to perform any services which are not identified as Basic Services in the services listed in the Schedule (“Additional Services”), the Client pays the Consultant for such Additional Services at the rates set out in the Appointment Particulars unless otherwise agreed. If the Client requires any additional Services, the Consultant informs the Client of the likely additional fee to be charged. Unless otherwise agreed, the additional fee is payable after performance of the relevant Additional Service.
7 Payment of Remuneration and Reimbursable Expenses
7.1 Payment of the Fee, any additional fee payable for Additional Services and the Reimbursable Expenses is due on receipt by the Client of a VAT invoice from the Consultant. Invoices are submitted on each instalment date or on completion of each activity or work stage set our in the Appointment Particulars and are accompanied by such supporting documents, records and receipts reasonably necessary for checking each invoice.
7.2 Not later than 5 days after the payment is due, the Client gives notice in writing to the Consultant specifying the amount it proposes to pay and the basis on which such amount is calculated.
8 Final Date for Payment and Withholdings
8.1 The Client pays all sums properly due under this Appointment to the Consultant not later than 14 days after the date on which the Client receives the Consultant’s VAT invoice (the “final date for payment”).
8.2 The Client does not withhold payment of any sum due after the final date for payment unless it has given prior notice in writing to the Consultant of its intention to withhold payment. Such notice must be given not less than 7 days before the final date for payment and specify the amount which the Client proposes to withhold and the ground for making the withholding. If there is more than one ground, the notice must specify each ground and the amount attributable to it. Provided that this Clause does not apply where the Client is a residential occupier under the Housing Grants, Construction and Regeneration Act 1996.
8.3 Where Clause 8.2 applies, a notice under Clause 7.2 will suffice as a notice of intention to withhold payment if it complies with the requirements of Clause 8.2.
9 Default, Interest and Suspension
If the client fails to pay any sum due and payable to the Consultant under this Appointment in full by the final date for payment and, where Clause 8.2 applies, no effective notice of intention to withhold payment has been given which complies with Clause 8.2:
(a) The Client pays the Consultant simple interest on the unpaid amount for the period from the final date for payment until the date of actual payment, calculated on a daily basis at the rate of 4% above the base rate set from time to time by the Bank of England’s Monetary Policy Committee (or any successor to it);
(b) where such failure continues for 7 days after the Consultant has given the Client notice in writing of its intention to suspend performance of the Services and the ground or grounds on which it intends to suspend performance, the Consultant may suspend such performance until such amount is paid; and/or
(c) the Consultant may by notice in writing to the Client suspend the copyright licence under Clause 12 until such amount is paid.
10 Limitations of Liability
10.1 Except for liability for death or personal injury, the maximum aggregate liability of the Consultant to the Client under or in connection with this Appointment (whether in contract or tort (including negligence) or for breach of statutory duty) is limited to the amount specified in the Appointment Particulars. If no such amount is specified, such liability is limited to the amount of the Consultant’s professional indemnity insurance specified in Clause 11.1.
10.2 Without prejudice to the above limitation or any other exclusion or limitation of liability available to the Consultant, the Consultant’s liability for loss or damage suffered by the Client in the event of any breach of this Appointment is limited to the proportion of such loss or damage that it would be just and equitable to require the Consultant to pay having regard to the extent of responsibility of the Consultant for the same and on the assumptions that:
(a) all contractors and sub-contractors and other members of the Professional Team have provided contractual undertakings to the Client on terms no less onerous than those set out in this Appointment in respect of the carrying out of their obligations in connection with the Project;
(b) there are no exclusions or limitations of liability nor joint insurance or co-insurance provisions between the Client and any such persons; and
(c) all such persons have paid to the Client such sums as it is just and equitable for them to pay having regard to the extent of their responsibility for such loss or damage.
Provided always that the Consultant does not assert that it has no or a reduced liability to the Client under this Appointment solely by reason of the fact that the Contractor accepts responsibility for the design of the Project, to the extent that such design is undertaken by the Consultant.
10.3 No action or proceedings for any breach of this Appointment may be commenced against the Consultant after the expiry of 6 years from practical completion of the Project.
11.1 The Consultant maintains professional indemnity insurance in the sum specified in the Appointment Particulars, subject to such insurance being available in the insurance market on reasonable terms and rates.
11.2 The Consultant produces written evidence that this insurance is being maintained whenever reasonably requested to do so by the Client.
12.1 Copyright in all drawings, plans, details, specifications, bills of quantities, schedules, reports, records, calculations and all other documents including computer software and revisions of the same (“Documents”) prepared by the Consultant for the purposes of the Project remains the property of the Consultant. Subject to Clause 9(c), the Consultant grants to the Client a royalty-free, irrevocable, non-exclusive licence to use and reproduce the Documents and any designs contained in them for any purpose relating to the Project including the construction, completion, maintenance, operation, letting, sale, reinstatement, mortgaging, refurbishment and repair of the Project (but not for any extension of the Project without the Consultant’s written consent).
12.2 The Consultant is not liable for any use of the Documents for any purpose other than that for which they were originally prepared.
13 Suspension of the Services
13.1 The Client may at any time give notice in writing to the Consultant requiring it to suspend all or part of the Services.
13.2 The Consultant resumes performance of the Services which have been suspended as soon as reasonably practicable after it receives written notice to do so from the Client.
13.3 If the suspension continues for more than 3 months, either party may give notice in writing to the other terminating the Consultant’s engagement under this Appointment.
14 Termination of Engagement
14.1 The Client may terminate the Consultant’s engagement under this Appointment at any time by giving the Consultant 14 days’ prior notice in writing.
14.2 If a party is in material breach of its obligations under this Appointment and fails to remedy such breach within 7 days after the other party gives it written notice to do so, the party which gave such notice may immediately thereafter terminate the Consultant’s engagement under this Appointment by giving written notice to that effect to the party in breach.
14.3 If a party becomes insolvent (that is, deemed unable to pay its debts under Sections 123 or 268 of the Insolvency Act 1986), then the other party may immediately terminate the Consultant’s engagement under this Appointment by giving written notice to the insolvent party.
15 Payment upon Suspension or Termination
15.1 Upon any suspension or termination, the Client pays the Consultant in accordance with Clauses 7 and 8 (without prejudice to any rights the Client has in respect of any breach by the Consultant of its obligations under this Appointment):
(a) that part of the Fee, the Additional Services Fee (if any) and any other sums which have accrued due up to the date of suspension or termination (as the case may be) and a fair and reasonable proportion of the next instalment of the Fee and any additional fee payable for Additional Services commensurate with the Services performed, less any amounts previously paid to the Consultant; and
(b) (save where such suspension or termination is due to the Consultant being in breach) all reasonable costs, disbursements and expenses properly and necessarily incurred by the Consultant (including any costs incurred in suspending and/or resuming performance of the Services) as a direct result of such suspension or termination.
15.2 Upon payment of the amount due under Clause 15.1, the Consultant hands over to the Client the Documents, subject to the terms of the copyright licence under Clause 12 and payment of the Consultant’s reasonable copying charges.
15.3 Termination of the Consultant’s engagement under this Appointment does not affect the accrued rights and remedies of the parties.
16 Assignment and Sub-Contracting
16.1 The Consultant does not assign or sub-contract any of its rights or obligations under this Appointment without the prior consent in writing of the Client (which consent is not to be unreasonably withheld or delayed).
16.2 The benefit of this Appointment may be assigned by the Client by way of an absolute legal assignment to any person providing finance or re-finance to the Client in connection with the Project or to any person (A1) acquiring the Client’s interest in the Project and by A1 to another person (A2) acquiring A1’s interest in the Project. No further or other assignment is permitted and, in particular, A2 is not entitled to assign this Appointment.
17.1 Notwithstanding any other provision of this Appointment, either party may at any time refer any dispute under it to adjudication under the Scheme for Construction Contracts (England and Wales) Regulations 1998, Part 1.
17.2 The Adjudicator’s decision is binding until the dispute or difference is finally determined by litigation. The Client and the Consultant attempt to agree the identity of the Adjudicator. If the parties fail to reach such agreement within 5 days after one party notifies the other that it wishes to agree the identity of the Adjudicator, the Adjudicator is appointed by the President or Vice-President for the time being of RICS. Any dispute or difference in connection with the enforcement of a decision of the Adjudicator is referred to the Courts.
18.1 This Appointment supersedes any previous agreements or arrangements between the parties in respect of the Project.
18.2 Nothing in this Appointment confers or purports to confer any right to enforce any of its terms on any person who is not a party to it. Only the Client (and the Client’s permitted assignees) and the Consultant can take action to enforce the terms of this Appointment.
18.3 Any reference to a statute or statutory provision is construed as a reference to that statute or provision as amended, consolidated, supplemented or re-enacted (with or without modifications) from time to time.
18.4 Where any Clause requires an act to be done within a specified period after or from a specified date, the period begins immediately after that date. Where the period includes Christmas Day, Good Friday or a day which, under the Banking and Financial Dealings Act 1971, is a bank holiday in England and Wales, that day is excluded.
19.1 Any notice under this Appointment is deemed to be given if it is in writing and delivered by hand or sent by pre-paid, recorded or special delivery post to the Client or the Consultant (as the case may be) at the address set out for each party in this Appointment or any other address notified by one party to the other in accordance with this Clause.
19.2 Any notice sent by hand is deemed received upon actual receipt by the party to whom it is addressed.
19.3 Any notice sent by a postal method described in Clause 19.1 is deemed received 48 hours after it was posted.
20 Governing Law and Jurisdiction
This Appointment is governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.