Client Offer - General T&Cs
A. Definitions
A.1 Agreement: the agreement between the Client and the Consultant/Designer consisting of Parts 1, 2, 3 and 4 of this document and all attachments listed.
A.2 Brief: Statements, plans, drawings, blueprints, charts and other materials and documents assembled by the Client with the Consultant/Designer’s assistance to summarise the Client’s initial requirements, to address the Client’s preferences and priorities, and to summarise the impact of context, environment and prevailing legislation at the time of signing this agreement.
A.3 Construction Cost: The latest professionally prepared estimate for the final cost of constructing all elements of the Project designed or specified by the Consultant/Designer, including:
· Any contingencies for changes in work or design reserve cost allowances
· The cost of any equipment and/or materials provided (as if new) or to be provided by the Client to a contractor for installation during construction of the Project
· Any direct costs carried out by, or on behalf of, the Client
· Provision for contractor’s profit and overheads.
The Construction Cost shall not include:
· Sales, property, use, VAT, (or other applicable tax)
· Design fees
· Cost of the land
· Any loss and/or expense payments paid to a contractor
· Any liquidated damages deducted by the Client
· The costs of resolution of any dispute
· The Client’s legal and in-house expenses.
A.4 Consultant/Designer: The person, company or firm identified as the consultant/designer in Part 1 of this Agreement.
A.5 Client: The person, company or firm identified as the Client in Part 1 of this Agreement.
A.6 Consultant: A person, company or firm appointed by the Client to perform professional services in connection with the Project.
A.7 Fee Proposal: The fee structure set out in Part 1 of this Agreement that is payable to the Consultant/Designer as agreed by the Client and the Consultant/Designer.
A.8 Hourly Rates: The hourly charge-out rates of the Consultant/Designer set out in section G of Part 1 of this Agreement.
A.9 Party, Parties: Either or both of the Consultant/Designer and the Client.
A.10 Project: The project identified in Part 1 of this Agreement, more specifically detailed in section C of Part 1 of this Agreement.
A.11 Project Schedule: The period of time agreed by the Client and the Consultant/Designer for completion of the Services as set out in section E of Part 1 of this Agreement.
A.12 Services: The Services to be performed by the Consultant/Designer as specified in the Part 2 of this Agreement. Services may be varied by the Client in accordance with this Agreement.
A.13 Site: the premises where the Works are to be carried out.
A.14 Works: any permanent or temporary structure, building, fixture or access constructed or required to be constructed on the Site as part of the Project.
A.15 Additional Services: services additional to or different from the Services described in Part 2, including any redesign, re-submission, additional attendance or additional co-ordination arising after the date of this Agreement.
A.16 Other Client Appointments: any consultant, specialist, contractor, sub-contractor or supplier appointed by or on behalf of the Client in connection with the Project.
A.17 Project Programme: the target programme, milestones and dates stated in Part 1 or otherwise agreed in writing.
A.18 Client Information: all information, surveys, drawings, reports, approvals, title information and other data supplied by or on behalf of the Client.
A.19 Statutory Roles: any appointment as Contract Administrator, Lead Consultant, CDM Principal Designer, Building Regulations Principal Designer or similar statutory or project role.
B. Consultant/Designer’s Obligations
B.1 The Client and the Consultant/Designer shall work together in a spirit of mutual trust and co-operation. In relation to the Services, either Party shall advise the other upon becoming aware of:
B.1.1 A need to vary the Services, the Project Schedule or Construction Cost, the fees and/or any other part of this Agreement.
B.1.2 Any incompatibility with any of the Client’s requirements in the Brief or between the Brief, any Client’s instructions, the Construction Cost, the Project Schedule and/or the approved design or any need to vary any part thereof.
B.1.3 Any information or decisions required from the Client or others in connection with the performance of the Services.
B.1.4 A need to engage consultants or other persons to design or carry out any part of the Works or to provide specialist advice or additional inspection services in connection with the Project, and the Parties shall agree how to deal with the matter.
B.2 The Consultant/Designer shall provide the Services set forth in this Agreement exercising and limited to a reasonable level of skill and care ordinarily provided by Consultant/Designers practicing in the same or similar locality under the same or similar circumstances. Nothing within this agreement shall be construed as a fitness for purpose obligation.
B.3 The Consultant/Designer shall perform the Services with due regard to any schedule, including the Project Schedule, and/or budget agreed with the Client. Notwithstanding the aforesaid, the Consultant/Designer does not warrant that the Services or the Project will be completed in accordance with any such schedule or budget, nor does the Consultant/Designer warrant that approvals from third parties will be granted.
B.4 In no event shall the Consultant/Designer be responsible for conditions at the building which are subsurface or otherwise concealed from reasonable view before or after the start of construction.
B.5. In no event shall the Consultant/Designer be responsible for existing conditions on other parts of the site that are not directly being constructed or altered as shown in this Consultant/Designer construction drawings.
B.5 The Consultant/Designer shall have no responsibility for the discovery, presence, handling, removal, or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances.
B.6 The Consultant/Designer shall have no responsibility for conditions at the site resulting from lack of normal and proper maintenance of any and all new and existing construction components before, during or after the construction. Normal and proper maintenance in accordance with product manufacturer’s instructions and accepted maintenance standards is the responsibility of the owner, owner’s agent, owner’s construction contractors and/or the owner’s maintenance contractors.
B.7 The Consultant/Designer shall not be taken to have accepted any Statutory Role unless that role is expressly identified in Part 1 and the fee has been adjusted accordingly.
B.8 The Consultant/Designer may rely on Client Information and on information prepared by Other Client Appointments without responsibility for verifying its accuracy, completeness or suitability unless expressly engaged to do so.
B.9 Site inspections, reviews or attendances by the Consultant/Designer are periodic only and do not constitute continuous supervision or verification of the contractor’s work.
C. Client’s Obligations
C.1 The Client shall supply the Consultant/Designer with the Brief and shall advise the Consultant/Designer of the relative priorities of the Brief, the Construction Cost and the Project Schedule by way of meetings and written directions or communications as necessary to ensure complete understanding of such Project priorities by the Consultant/Designer.
C.2 The Client will directly appoint all other consultants required by the Project which may include, but is not limited to a cost consultant, a landscape Consultant/designer, engineers and surveyors. The Client will require that said Consultants maintain professional liability insurance as appropriate to the services provided. Upon the Consultant/Designer’s request the Client shall furnish the Consultant/Designer with copies of the Consultant’s scope of service.
C.3 The Client shall directly appoint the contractor and where required subcontractors and require that said contractor and subcontractors maintain professional liability insurance as appropriate to the services provided. Upon the Consultant/Designer’s request, the Client shall furnish the Consultant/Designer with copies of the contractor’s and subcontractors’ scope of service.
C.4 The Client shall hold each such Consultant/subconsultant/contractor/subcontractor, however appointed, and not the Consultant/Designer, responsible for the proper performance of their services and shall require such other Party(s) to cooperate with the Consultant/Designer to enable the Consultant/Designer to properly and effectively perform the Services.
C.5 Where decisions are required of the Client, such decisions shall be given in a reasonable time to the Consultant/Designer to enable the Consultant/Designer to perform the Services properly and in a timely manner.
C.6 The Client shall commit adequate resources to the Project to enable the Consultant/Designer to perform the Services properly and in a timely manner.
C.7 The Client warrants that it has accurately stated whether it is acting as a domestic consumer, owner-occupier, business client, developer or landlord and shall promptly notify the Consultant/Designer of any change to that status.
C.8 The Client shall provide all Client Information in a timely manner and the Consultant/Designer shall be entitled to rely upon such information.
C.9 The Client shall be responsible for procuring all surveys, investigations, consultant appointments, approvals, licences and consents not expressly included within the Services.
C.10 Where the Client comprises more than one person, the Client shall nominate one person with authority to issue instructions and approvals on behalf of all Client parties.
D. Fees
D.1 The Client must pay to the Consultant/Designer, in accordance with Part 1 of this Agreement, all fees due plus applicable taxes, and expenses as specified in Part 1 of this Agreement. The Fee Proposal is based on the Project Schedule stated therein. If the Services covered by this Agreement have not been completed within the period allowed under the Project Schedule through no fault of the Consultant/Designer, an extension of the Consultant/Designer’s Services beyond that time shall be compensated as additional services and chargeable by the Consultant/Designer on an hourly basis at the Hourly Rates.
D.2 In addition, the Fee Proposal covers only the Services set out in Part 2 of this Agreement. Any additional services required to be performed by the Consultant/Designer over and above such Services shall also be chargeable on an hourly basis at the Hourly Rates or by way of additional fixed fee agreed. The Consultant/Designer shall advise the Client as soon as practicable that additional services have been, or are being, carried out and that, as a consequence, additional fees are payable.
D.3 All fees are to be due in advance of each deliverable set out in Part 1 of this Agreement. Payments are due upon receipt of invoice. Interest on late payments will be charged at a rate of [10%] per annum above the Bank of England base rate. Interest will be applied pro rata on the outstanding balance by dividing the rate by 365 to obtain a daily rate and multiplying that percentage by the number of days the balance is overdue. If the fees are not cleared in the Consultant/Designer’s bank account by the due date, the Consultant/Designer does not guarantee to continue to provide the Services.
D.4 The Client has the right to cancel the Agreement within 14 days of paying the deposit, provided no work has started. If the Client wishes for work to being within this 14 day period, then they must provide written confirmation waiving their right to cancel. Once waived and work has commenced, the deposit remains non-refundable. Each stage of the Services shall be paid in full in advance. The Consultant/ Designer will not commence work on any stage until the relevant advance payment is received. If the Client chooses not to proceed with any further stages, the Consultant/ Designer shall be entitled to (i) full payment of all completed or commenced stages; and (ii) a termination fee equal to 20% of the remaining unpaid fees. Payments are due upon receipt of invoice. Any discounts (if applicable) will be applied to the final invoice.
D.5 In the event that the Project is paused at the Client’s request for a period exceeding six weeks, a reactivation fee of £500 plus VAT will apply upon instruction to restart. This fee covers the time required to review project progress, reallocate resources and re-establish workflow and coordination with consultants or contractors. The Consultant/ Designer reserves the right to reassess the project timeline and delivery dates based on resource availability at the time of restart.
D.6 Where the performance of the Services is extended, disrupted or made more onerous through no fault of the Consultant/Designer, including by Client delay, third-party delay, statutory processes, redesign, tender extensions or project suspension, the Consultant/Designer shall be entitled to additional fees and an appropriate extension of time.
D.7 Any Additional Services shall be charged at the Hourly Rates stated in Part 1 unless the Parties agree another fee basis in writing.
D.8 If the Client cancels the Project or terminates this Agreement for convenience, the Consultant/Designer shall be entitled to payment for all Services performed, all work in progress, all committed costs and the termination fee stated in Part 1.
D.9 The Consultant/Designer may suspend performance of the Services on not less than 7 days written notice where any invoice remains unpaid after the due date and shall have no liability for any resulting delay.
E. Set Off
E.1 The Client may not deduct, reduce or withhold any payments due to the Consultant/Designer under this Agreement by reason of claims or alleged claims against the Consultant/Designer.
F. Copyright and Licence
F.1 The Consultant/Designer retains copyright in all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, CAD materials and any other materials provided by the Consultant/Designer in connection with the Project (the “Materials”).
F.2 The Consultant/Designer hereby grants, subject to payment of all outstanding fees due to the Consultant/Designer under this Agreement, to the Client a non-exclusive, limited license to use and reproduce the Materials for all purposes relating to the Project.
F.3 The Consultant/Designer shall have no liability for any use of the Materials other than that for which the same were originally prepared and provided and then only to the extent provided in this Agreement.
F.4 Such limited license shall, in any case, not extend to the Client developing (whether itself or through a third party) any models or merchandise based on the Materials. Any such activity would be subject to separate terms, including an entitlement of the Consultant/Designer to suitable royalties.
F.5 If the Consultant/Designer rightfully terminates the Agreement for causes as specified in section K, the license granted under section F will be revoked.
F.6 The licence granted under this clause is limited to use of the Materials for this Project only. The Client shall not amend, reproduce, transfer, assign or re-use the Materials for any extension, repeat project, other site or by any third party without the Consultant/Designer’s prior written consent and payment of all sums due.
G. Publicity
G.1 The Client shall, where required by the Consultant/Designer and subject to section F above, participate in any publicity relating to the Project and credit the Consultant/Designer as Consultant/Designer.
G.2 The Consultant/Designer shall be entitled to royalties on any invention, new product or exploitation of any images arising out of the Services and/or the Materials.
G.3 The Consultant/Designer shall have the right to publish photographs and any information about the Project in its practice brochure/website/social media and other promotional material.
H. Insurance
H.1 The Consultant/Designer shall take out and use reasonable endeavours to maintain the following insurances for the duration of the period of liability referred to in clause I.4:
H.1.1 Professional Indemnity Insurance in the sum of not less than £500,000 for each claim.
H.1.2 Evidence of such insurance shall be provided to the Client on reasonable written request, subject to availability from the insurer or broker.
I. Liability
To the maximum extent permitted by law:
I.1 Subject to the remaining clauses of this section, the Consultant/Designer’s total liability to the Client under this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, is limited to the maximum amount (after deducting any excess payable) the Consultant/Designer is entitled to recover under any of the contracts of insurance set out in section H in respect of any fact, matter or circumstance giving rise to the liability.
I.2 The extent of the Consultant/Designer’s liability, whether in contract, in tort, in equity, under statute or otherwise, is reduced proportionately to the extent that the Client and/or any other person, including any third party, has contributed to the claim, liability, damage, loss or expense and irrespective of whether such contribution arises in contract, tort or otherwise.
I.3 If the Consultant/Designer is liable to the Client, whether in contract, in tort, in equity, under statute or otherwise, the Consultant/Designer will only be liable for any reasonable foreseeable and fully mitigated damage, loss or expense incurred by the Client, caused directly by a breach of the Consultant/Designer’s legal obligations. The Consultant/Designer has no liability to the Client in respect of any indirect, consequential, punitive or special losses (including loss of profit, loss of business, opportunity and payment of liquidated sums, or damages under any other agreement) nor for any acts or omissions caused by ordinary negligence.
I.4 The Consultant/Designer has no liability in respect to the Services after the expiration of [1 years] from the completion of the Services subject to any compulsory limitation of action provisions which cannot by law be excluded or restricted in any contracts made between the Parties.
I.5 In the circumstances where the Services (as described in Part 2 of this Agreement) are reduced, limited or varied by later agreement or the Agreement is terminated prior to the completion of the Services, the Consultant/Designer’s liability will attach only to those services actually performed and then only to the extent that the reduction of that part of the Services has not compromised or not denied the Consultant/Designer the opportunity to correct the performed services or to otherwise mitigate the Client’s loss.
I.6 The Consultant/Designer is not liable for any damage, loss or expense incurred by the Client as a consequence of any change that the Client or any other person makes to the Consultant/Designer’s construction documents without prior written notice to or approval by the Consultant/Designer or due to any changes to the approvals, consents or authorisations received in connection with the construction or occupancy of the Works or the Project not made known to the Consultant/Designer in writing.
I.7 The Consultant/Designer shall not be liable to any person other than the Client, and disclaims responsibility, in tort or otherwise, for any liability, damage, loss or expenses suffered or incurred by such person. In the event that the Project to which the Services relate is leased, transferred, sold, or otherwise disposed of in part or whole to other persons, then the Client warrants that such persons shall be advised in writing that the Consultant/Designer accepts no responsibility in law to them. In the event of breach of this clause, the Client and in the case of a company, its directors, shall fully indemnify the Consultant/Designer against any claim by such persons, whether such claim is in tort or otherwise.
I.8 The Client shall indemnify, defend and hold the Consultant/Designer harmless against the adverse effects of all claims including claims by third parties which arise out of or have a connection with this Agreement and are made after the expiry of the period of liability referred to in clause I.4 subject to any compulsory limitation of action provisions which cannot by law be excluded or restricted in any contracts made between the Parties. For avoidance of doubt the foregoing indemnity includes claims in negligence made against the Consultant/Designer.
I.9 The Client acknowledges that the Consultant/Designer operates through employees, directors, officers, agents and sub-consultants and agrees that no reliance has or will be placed on them personally by the Client in connection with this Agreement on the performances of the Services.
I.10 The limitations of liability as described above will confer, to any extent relevant, a benefit on the employees, directors, officers, agents or sub-consultants of the Consultant/Designer.
I.11 If any of these clauses is void as a result of any applicable legislation, or any regulations or rules promulgated thereunder, then the Consultant/Designer’s liability for a breach of a condition or warranty is limited to the:
· Supplying of the relevant services again or
· Payment of the cost of having the relevant services supplied again.
I.12 To the extent permitted by law, the Consultant/Designer’s liability shall be limited to the proportion of loss and damage that it would be just and equitable for the Consultant/Designer to pay having regard to the extent of its responsibility for the same.
J. Assignment
J.1 Neither the Consultant/Designer nor the Client shall assign the whole, nor any part, of the Agreement without the consent of the other in writing. Such consent shall not be unreasonably withheld.
K. Termination or Suspension
K.1 In the event of a material breach by the Consultant/Designer of its obligations under this Agreement which has not been cured within [20] days from the written notice given by the Client specifying the nature of the breach, the Client may suspend the performance of any or all of the Services, by giving not less than [7 days] written notice to the Consultant/Designer, specifying the service or services to be suspended.
K.2 The Consultant/Designer may suspend performance of the Services and its obligations under this Agreement by giving [7 days] written notice to the Client of the intention to do so and the grounds for doing so, in the event that the Client is in default of payment of any fees, or other amounts due, or is otherwise in default of its obligations hereunder. When the reason for the suspension is removed or resolved, the Consultant/Designer shall resume performance of the Services and its obligations.
K.3 If any period of suspension arising from a valid notice served either by the Client on the Consultant/Designer, or served by the Consultant/Designer on the Client, exceeds [3 months], the Consultant/Designer shall be entitled to treat this Agreement as being terminated with immediate effect.
K.4 The rights to terminate this Agreement shall not prejudice any other right or remedy of either Party in respect of any breach or cause of action accrued at the date of termination.
K.5 Upon suspension or termination, the Consultant/Designer may retain and/or suspend further issue of the Materials until all sums due have been paid.
K.6 Suspension or termination shall not affect any accrued rights, obligations, payment entitlements, limitations of liability or dispute resolution provisions.
K.7 Following any suspension, the Consultant/Designer shall be entitled to a reasonable extension of time and to any reactivation fee or additional fee stated in Part 1.
L. Dispute Resolution
L.1 The Parties shall seek to resolve any dispute or difference arising under this Agreement in good faith.
L.1A Before commencing formal proceedings, either Party may require a senior representative of each Party to meet or confer in good faith within 14 days in an attempt to resolve the dispute.
L.2 If the Parties cannot resolve such dispute or difference within [14 days] of either Party serving notice on the other that a dispute has arisen, then either Party may submit the dispute to mediation by delivering to the other a written proposal of mediation.
L.2.1 A proposal of mediation must state the name of the mediator accredited by an appropriate professional body in the state or territory of the law that applies; who is independent and willing to act.
L.3 If the Parties are unable to agree on the choice of a mediator, or if the chosen mediator is unable or unwilling to act, then within [7 days] after the proposal is delivered, the Royal Institute of Chartered Surveyors (RICS) must be requested to nominate a mediator.
L.4 Any agreement between the Parties shall be recorded in writing and, once signed by representatives of the Parties, shall be binding on the Parties.
L.5 The Parties will bear their own costs of preparing and submitting evidence to the mediator. If the mediator finds that the mediation has been initiated or conducted frivolously or vexatiously then the mediator shall have the power to order the Party so initiating or conducting the mediation to pay the reasonable costs of the other Party for preparing for and attending the mediation. If such costs cannot be agreed, then these costs will be assessed by the mediator whose decision shall be binding on the Parties.
L.6 If the Parties are unable to resolve the dispute or difference by mediation, confirmed by the mediator in writing, any dispute or claim that cannot be resolved by mediation arising out of or related to this Agreement, its performance, breach, or interpretation (including issues about its validity or enforceability), will thereafter be exclusively (except as provided below) resolved by binding Adjudication before the the Royal Institute of Chartered Surveyors (RICS) before a single mutually-agreeable neutral Adjudication. The Adjudication will not award Solicitor’s fees, or punitive, indirect, incidental, special, consequential, treble or other multiple or exemplary damages, and the Parties hereby agree to waive and not seek such damages. All costs of adjudication shall be borne by the losing party. The losing party shall be the party designated as such by the Adjudication. In the event both Parties prevail on certain issues and lose on others the adjudication costs shall be apportioned between the Parties in any manner the Adjudication orders. Either Party may seek judicial relief to compel the other Party to comply with the provisions of this clause [L.6], or seek injunctive or other equitable relief as long as (unless prohibited by applicable law) the remainder of the dispute or claim is submitted to arbitration. The adjudication will be held in Northern Ireland. Both Parties hereby give their irrevocable consent to the processes of the the Royal Institute of Chartered Surveyors (RICS) in Northern Ireland, as well as the jurisdiction of the courts of Northern Ireland for enforcement purposes. Awards will be final, binding and non-appealable (except on the minimal grounds required under the applicable law). All awards may be filed with one or more courts, state, federal or foreign, having jurisdiction over the Party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.
M. General
M.1 The law applicable to this Agreement shall be the law of the state of the Consultant/Designer’s address stated in this Agreement other than with respect to its conflicts of laws principles.
M.2 The Consultant/Designer shall be entitled to rely upon the accuracy and completeness of:
· the information furnished by the Client and
· the Client’s approvals.
M.3 The Consultant/Designer is not responsible for ensuring the Project complies with the building contract documents, but when engaged for contract administration services, is required to instruct the building contractor regarding requirements of the building contract documents, according to the contract terms.
M.4 The Consultant/Designer gives no express or implied warranty that the Project is fit for the Client’s purpose.
M.5 Any natural materials selected for the Project may change in appearance and dimension following exposure to use or climatic conditions and this is normal behaviour for such materials.
M.6 The scope of the Services does not include any services in relation to asbestos, other hazardous materials, or any other site contaminant.
M.7 Upon the completion of the Project, the Client is responsible for ongoing and regular maintenance of the Project, including its systems, finishes and equipment.
M.8 Nothing makes ineffective, or reduces, any protection at law from liability which the Consultant/Designer is entitled to in the state of the applicable law.
M.9 This Agreement supersedes all prior agreements, written or oral, relating to the Services for the Project, and does not apply to any services provided by the Consultant/Designer before the formal execution of the Agreement.
M.10 Unless otherwise provided in the Agreement, no modification or waiver of any of the provisions, or any future representation, promise or addition shall be binding upon the Parties unless made in writing and signed by both the Parties.
M.11 This Agreement constitutes the entire agreement between the Parties in relation to the Services and supersedes prior proposals, discussions and representations, save for fraudulent misrepresentation.
M.12 No oral statement, site conversation, message or email shall vary this Agreement unless the variation is confirmed in writing by the Parties or clearly instructed by the Client and accepted by the Consultant/Designer as an Additional Service.
M.13 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
M.14 The Parties may sign this Agreement in counterparts and by electronic signature, each of which shall be treated as an original and together shall form one agreement.
M.15 Each Party shall comply with applicable data protection law in relation to personal data processed in connection with the Project.
N. Notice of Defects
N.1 If, during the term of the Agreement or after completion of it, the Client becomes aware of any problem with the design, fault or defect in the Project, or non-compliance with the Project’s contract documents, the Client must promptly, but not later than 7 business days after becoming aware of it, notify the Consultant/Designer about it in writing. If the Client does not do this, the Client will be treated as having waived any claim the Client may have against the Consultant/Designer (in contract, tort or otherwise) in relation to the problem, fault or non- compliance.