Terms of Contract

The parties to this contract are as stated in the Letter of Engagement.

The Consultant shall provide the services stated in the attached letter of engagement (“the Letter of Engagement”) and any additional services as may be requested by or agreed with the Client (together “the Services”).
If there is any conflict between the clauses of these standard terms of contract and the Services and/or any documents attached to it, the clauses of these standard terms of contract (the “Contract”) shall prevail.
Reference in the Contract to any act of Parliament, statute, statutory instrument or code of practice (“Legislation2) shall refer to and be such Legislation as in force at the date of this Contract.
The date of this Contract shall be the earlier of the date of the Letter of Engagement or the date on which the Consultant first began performance of the Services.
If an action is required to be undertaken within a specified period, unless otherwise stated in the Letter of Engagement, in calculating a period, a day shall be a calendar day, and a date shall be a calendar date. When a period is calculated, it shall exclude public holidays.
The Contract supersedes any previous agreement or arrangement between the Client and the Consultant in relation to the Services (whether written or oral) and represent the entire agreement between the parties in relation to the Services. All additions, amendments and variations to the Contract shall be binding only if agreed in writing by the duly authorized representative of the Consultant.
If any cause or part of any clause of the Contract is ruled by the courts or declared to be invalid or unenforceable in any way, it shall be severed from the Contract and this shall not affect any other clause of the Contract, nor the validity of the remaining clauses of the Contract, which shall remain in full force.
To the extent that either party has to process personal data as part of the Contract, the party undertakes to do so in compliance with the General Data Protection Regulations (GDPR) and to keep such data in a secure technological environment.
In the performance of the Services and discharging the obligations, the Consultant shall exercise reasonable skill and care in the performance of the Services. Notwithstanding anything that may appear elsewhere in the Contract, or the Letter of Engagement, the Consultant’s duties and obligations shall be deemed to be subject to the exercise of the reasonable skill and care and nothing contained in the Letter of Engagement, or this Contract, shall be construed as imposing on the Consultant any greater duty than the exercise of such reasonable care and skill.
Unless expressly stated in the Letter of Engagement or otherwise agreed in writing by the Client and the Consultant, the Consultant shall not act as the principal designer for the purposes of the Construction (Design and Management) Regulations 2015.
Subject to clause 11, the Consultant shall perform the Services in compliance with the Construction (Design and Management) Regulations 2015.
Unless expressly set out in the Letter of Engagement or otherwise agreed in writing by the Client and the Consultant, the Consultant shall not act as “Principal Designer” for the purposes of the Building Regulations 2010.
Subject to clause 13, the Consultant shall comply with and fulfill the duties of a “Principal Designer” imposed by the Building Regulations 2010 Part 2A Dutyholders and Competence, regulations 11A to 11Q (the “Dutyholder Regulations”) (in so far as they related to the project and the Services being undertaken), and shall provide a signed statement that includes the information required by the Dutyholder Regulations confirming that it has fulfilled its duties as a “Principal Designer” under the Dutyholder Regulations.
The Consultant shall comply with and fulfill the duties of a “designer” imposed by the Dutyholder Regulations in respect of the project for which the Consultant has been appointed to undertake the Services.
In carrying out the Services, the Consultant shall co-operate with the relevant Principle Designer who has been appointed by the Client under the Dutyholder Regulations.
In carrying out the Services, the Consultant shall co-operate with the Client to enable the Client to comply with its duties under the Dutyholder Regulations.
The Consultant warrants that:
(i) it is competent to act as designer, and Principal Designer (if appointed), under the Dutyholder Regulations; and

(ii) it has the skills, knowledge, experience, behaviours necessary and organisational capability to perform the obligations imposed on it under this Contract in respect of the Dutyholder Regulations;

(iii) it has and will continue to allocate adequate resources to enable it to perform all functions and duties required of it under the Dutyholder Regulations; and

(iv) the Consultant shall provide such information as the Client requires or is reasonably considered necessary to enable the Client to satisfy itself as regards the Consultant’s continuing competence under the Dutyholder Regulations
The Client shall ensure that its decisions, instructions, consents or approvals on or to all matters properly referred to it shall be given in such reasonable time so as not to delay or disrupt the performance of the Services by the Consultant.
The Client shall not disclose any confidential information unless (i) disclosure is necessary to take professional advice in relation to the Contract or Services, (ii) it is already in the public domain other than due to wrongful use or (iii) disclosure by the Client, or disclosure is required by law or because disputes arising out of or in connection with the Contract.
The Consultant shall own all intellectual property rights including the copyright in all drawings and other documents (including material in electronic form) produced or provided to the Client by the Consultant and this clause generally asserts the Consultant’s moral right to be identified as the author of such work. The copyright shall at all times remain vested in the Consultant but the Client shall have a license to copy and use such drawings and other documents for the purposes for which they were provide In the event of the Client being in default of payment of any fees or other amounts due under this Contract or the Letter of Engagement, the Consultant may revoke the license (and any sub-license (if applicable)) herein granted on giving seven days’ notice. The Consultant shall not be liable for the use by any person of any such drawings or other documents for any purpose other than that for which the same were provided by the Consultant.
Without prejudice to the Consultant’s obligations under this Contract, the Consultant does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with the provision of the Services.
The Consultant shall have no liability to the Client in connection with any corruption or unintended amendment, modification or alteration of the drawings and documents in digital format which occurs after they have been issued by the Consultant.
The Consultant’s total liability under or in connection with this Contract whether in contract or in tort or in negligence or for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall be limited to £2,000,000 (two million pounds) save in respect of claims for pollution and/or contamination and/or claims arising out of the USA/Canada where the limit shall be one million pounds less the total amount of all claims already made in the relevant insurance period for pollution and/or contamination.
Without prejudice to clause 24, the liability of the Consultant for any claim or claims shall be further limited to such sum as it would be just and equitable for the Consultant to pay having regard to the extent of the Consultant’s responsibility for the loss and damage suffered as a result of the occurrence or series of occurrences in question (“the loss and damage”) and on the assumptions that:
- all other consultants and all contractors and all sub-contractors appointed in connection with the project in question shall have provided contractual undertakings on terms no less onerous than those set out in clause 10 above to the Client in respect of the carrying out of their obligations;
- there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and any such other party who is responsible to any extent for the loss and damage is contractually liable to the Client for the loss and damage; and
- all such other consultants and all such contractors and sub-contractors have paid to the Client such proportion of the loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.
This Contract is made between the parties as stated in the Letter of Engagement, and no separate contractual or other liability is owed to the other party by any individual director, member, partner or employee of the Consultant.
No actions or proceedings arising out of or in connection with this Contract and/or the Letter of Engagement, whether in contract or in tort or in negligence or for breach of statutory duty or otherwise, shall be commenced after the expiry of 6 years, from the date of completion of the Services.
The Client shall pay the Consultant for the performance of the Services the fees and expenses set out in the Letter of Engagement plus the fee for any additional services and VAT. Unless otherwise agreed between the parties, the fee for the performance of any additional services shall be calculated on a time spent basis.
The Client shall not withhold any amount due to the Consultant under the Contract unless the amount has been agreed with the Consultant or has been decided by any tribunal to which the matter is referred as not being due to the Consultant.
All rights of set-off at common law or in equity which the Client would otherwise be entitled to exercise are expressly excluded.

(i) Unless otherwise stated in the Letter of Engagement, the Consultant shall submit invoices on a monthly basis to the Client.

(ii) Amounts under this contract shall become due for payment on submission of the Consultant’s invoice (“Due Date”).

(iii) Not later than 5 days after the Due Date, the Client shall notify the Consultant of the sum that it considers to be due and the basis on which that sum has been calculated (“Payment Notice”). The final date for payment (“Final Date”) shall be 25 days after the Due Date.

(iv) Unless the Client has served a Pay Less Notice (as defined below), the Client shall pay the Consultant the sum referred to in the Payment Notice (“Notified Sum”). If the Client has not served a Payment Notice, the Notified Sum shall be the amount stated in the invoice. The Client shall pay the Consultant the Notified Sum on or before the Final Date.

(v) Not less than 5 days before the Final Date (“Prescribed Period”), the Client may give the Consultant notice that it intends to pay less than the Notified Sum (“Pay Less Notice”). Any Pay Less Notice shall specify the sum that the Client considers to be due on the date the Pay Less Notice is served, the basis on which that sum is calculated and the ground for doing so, or if there is more than one ground, each ground and the amount attributable to it.

(vi) Should the Consultant become insolvent (as defined in section 113 Housing Grants, Construction and Regeneration Act 1996) after the Prescribed Period, the Client shall still be required to pay the Notified Sum.

(vii) Should the Client fail:

1. to pay in full by the Final Date any sum due to the Consultant under this Contract;
2. serve a Pay Less Notice;

the Consultant may suspend the performance of any or all of the Services and its other obligations under this Contract by giving not less than 7 days’ written notice to the Client of the Consultant’s intention to do so and stating the grounds on which it intends to suspend performance.

31. Interest shall be added to all amounts remaining unpaid after the Final Date and shall be calculated at the rate of 8% above the Bank of England base rate from time to time in force. In the event that the Consultant has to use debt collection procedures to recover any sums properly due to it under this contract, the Consultant shall charge the Client such costs as are reasonable and proportionate to the debt owed (including for the avoidance of doubt any costs in time spent by the principals, employees and advisors).

32. If the Consultant agrees to appoint sub-consultants on the Client’s request, the Client shall pay the Consultant for the sub-consultants’ services as part of the payment procedures set out in this Contract at cost (plus an arrangement fee) which the Consultant will agree with the Client in advance. In employing sub-consultants on the Client’s behalf, the Consultant does not accept any liability to the Client for such sub-consultant’s services or for any consequential costs arising therefrom. The Consultant can if required request a letter of reliance in the Client’s favour from the sub-consultant warranting their service.

33. The Client acknowledges that the Consultant does not warrant (i) that approvals from third parties (if applicable) shall be granted at all, or if granted, will be granted in accordance with any anticipated timescales; (ii) compliance with the project programme and construction cost, which may need to be reviewed for, but not limited to (a) variations instructed by the Client; (b) fluctuations in market price; (c) delays caused by other Client appointments, the contractor or any other factor that is not the responsibility of the Consultant under the Contract; (d) the discovery at any time of previously unknown factors which were not reasonably foreseeable at the date of the Contract; and (iii) the competence, performance, work, services, products or solvency of any other Client appointments or the Contractor.

34. Either party may terminate this Contract by giving two weeks’ notice if:

1. the other party fails to pay an amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
2. the other party commits a material breach of any term in this Contract (if such breach is remediable) and fails to remedy that breach within a period of 14 days after being notified in writing to do so or such other period as is reasonable taking the material breach and circumstances into consideration;
3. the other party becomes insolvent as defined in section 113 of the Housing Grants, Construction and Regeneration Act 1996;
4. commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) 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;
5. applies to a court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
6. the other party repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
7. the other party suspends or ceases, or threatens to suspend or cease, carrying on business; or
8. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.

35. The Client shall be entitled to suspend the Services or any part thereof by giving two weeks’ notice in writing (the “Suspension Notice”). The Consultant shall cease such suspended Services in an orderly and economical manner. If the Client has not asked the Consultant to restart its services within 6 months following receipt of the Suspension Notice, the Consultant may make a written request for the Services to be resume If the Client does not confirm in writing within two weeks of the Consultant’s request that the Services should be resumed, this contract shall then terminate.

36. Upon the occurrence of any circumstance beyond the control of the Consultant which is such as to prevent or significantly impede the performance by the Consultant of the Services, the Consultant may suspend the Service by giving two weeks’ written notice for up to twenty-six week The Consultant shall cease such suspended Services in an orderly and economical manner. At the end of the specified period, the Consultant shall either continue with the provision of the Services or, if the Consultant is still unable to continue the provision of the Services for reasons beyond its control, the Consultant shall terminate its engagement under this Contract on two weeks’ notice in writing.

37. In the event of any suspension or termination in accordance with clauses 30(vi), 32, 34 or 35, the Client shall pay the Consultant a fair and reasonable amount commensurate with the Services performed to the date of such termination and any outstanding invoices and expense.

38. The direct or indirect effect of any suspension period arising from a valid Suspension Notice shall be taken into account for the purposes of assessing compliance by the Consultant with the project programme.

39. Neither party shall assign or transfer the benefit of this contract without the prior written consent of the other party.

40. Any notice under this contract shall be in writing and given by sending the same by hand or Royal Mail special delivery to the Client or the Consultant at the address shown in clause 1. For the avoidance of doubt, any notice sent by an attachment to an e-mail shall not be an effective notice under this Contract unless the original notice is then sent to the recipient by personal delivery or Royal Mail special delivery at the address shown in clause 1. Notices shall take effect when they have been received by the Client or the Consultant as the case may be.

41. This contract shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English Court.

42. Where this contract is a construction contract within the meaning of the Housing Grants, Construction and Regeneration Act 1996 either party may refer any dispute arising under this contract to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure current at the time of referral.

The work will be carried out on the understanding that these Standard Terms of Contract have been read and agreed to.