Terms and Conditions
ELICYON LIMITED: CONDITIONS OF AGREEMENT
- DEFINITIONS AND INTERPRETATION
1.1 Defined terms in these conditions shall have the meanings set out below:
“Agreement” means the Proposal Letter and these Conditions, including any appendices.
“Budget Cost Plan” means the Consultant’s initial indicative estimate of what the costs for completing the Project could be as set out in Appendix 5, which will be based upon the recommendations and assumptions that the Consultant makes following its initial meeting(s) with the Client but before any concept or detailed design has been carried out. Once the Project design commences and gets approved by the Client the initial costs will need to be amended and approved by the Client and as such the Budget Cost Plan will not represent the outturn cost of completing the Project and is to be used for initial guidance only.
“Business Day” means a day (excluding Saturday) on which banks generally are open in the City of London for the transaction of normal banking business.
“Client” means the person identified in the Proposal Letter.
“Client’s Representative” means the person identified in the Proposal Letter or such other representative as the Client may from time to time appoint for the purposes of performing this role.
“Confidential Information” means the contents of this Agreement and/or any and all information which is proprietary and (whether technical, commercial, personal, financial or otherwise) disclosed directly or indirectly by either party to the other (the “Recipient”) or obtained by the Recipient directly or indirectly from the other party and which is marked or designated “confidential” or “proprietary” or by its nature or circumstances surrounding its disclosure should reasonably be regarded as personal or confidential (which for the avoidance of doubt shall include but not be limited to all designs, drawings, plans specifications, details photographic representations or images produced by the Consultant or on its behalf under or pursuant to this Agreement and all personal information about the Client).
“Construction Contracts” means the contracts entered into or to be entered into by the Client with a construction manager, building contractor or other contractors (including trade contractors), professional consultants and/or advisors for the design and construction of the Project.
“Construction Costs” means all costs, charges fees and expenses incurred by the Client in respect of the Project under or pursuant to, inter alia, the Construction Contracts.
“Consultant” means Elicyon Limited (company number 09081186) whose registered office is at Quadrant House, Floor 6, 4 Thomas More Square, London E1W 1YW.
“Disbursement Costs” means any fees representing the expenses and costs incurred by the Consultant in performing the Services which are payable in accordance with the profile set out in Appendix 2. This Disbursement Cost excludes any and all international travel which will be reimbursed at cost. International flights to be business class and hotel accommodation to be no lower than 4 star.
“FF&E” means fixtures, fittings and equipment, (including loose furniture, joinery, curtains, carpets and materials) as procured by the Consultant on behalf of the Client pursuant to the Agreement
“FF&E Costs” means any costs incurred by the Consultant on behalf of the Client in procuring the FF&E.
“FF&E Fee” means the Consultant’s commission for procuring FF&E as set out in condition 6.3
“Group” means any holding company, subsidiaries, subsidiary undertakings and associated companies from time to time of the Consultant.
“Hourly Rates” means the hourly charge out rates applicable for each individual category of staff set out at Appendix 2 hereto.
“Incurred Costs” means all fees, costs and expenses incurred by the Consultant (if any) for the benefit of the Client prior to the date hereof including any VAT thereon.
“Longstop Date” means the date identified in the Programme.
“Other Consultants” means the construction manager, building contractor(s), trade contractor(s), professional consultants and/or advisors employed by the Client under the Construction Contracts and any other person employed by the Client to supply goods or services in relation to the Project.
“Payment Profile” means the payments set out in Appendix 2 and payable in accordance with the provisions of condition 6 below.
“Programme” means the Consultant’s indicative programme for the Project as set out in Appendix 4, which will be based upon the recommendations and assumptions that the Consultant makes following its initial meeting(s) with the Client and shall be updated following the appointment by the Client of the building contractor or construction manager (as applicable). The Programme is to be used for guidance only.
“Project” means the interior works to be carried out at the Site as more particularly set out in the Scope of Works appended hereto at Appendix 3.
“Project Cost” means the costs and fees incurred by or due to the Consultant in performing the Services, as calculated in accordance with condition 6.2 below.
“Project Fee” means the sum set out in Appendix 2 as adjusted in accordance with conditions 4 and 6 of this Agreement.
“Project Manager” means the project manager to be appointed by the Client and whose identity is notified to the Consultant.
“Proposal Letter” means the letter of appointment and fee proposal from the Consultant to the Client setting out the basis of the Agreement.
“Services” means the duties and activities of the Consultant as set out in Appendix 1 (as such Services may be amended in writing by the parties, acting reasonably, if the Client decides to use a different method of procurement from that on which the Services are based after the date of this Agreement).
“Site” means the site identified in the Proposal Letter.
“Specification” means the designs, drawings, plans and details setting out the Client’s approved concept design as this is developed by the designs, drawings, plans, details and specifications that are produced pursuant to this Agreement and as may be amended from time to time in accordance with condition 4.
“VAT” means Value Added Tax as chargeable under the Value Added Tax Act 1994.
1.2 In this Agreement unless otherwise specified, reference to:
- (a) a party means a party to this Agreement and includes its permitted assignees or other transferees under this Agreement and/or the successors in title to substantially the whole of its undertaking and, in the case of an individual, to his or her estate and personal representatives;
- (b) a person includes any person, individual, company, firm, corporation, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
- (c) a statute or statutory instrument or any of their provisions is to be construed as a reference to that statute or statutory instrument or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
- (d) recitals, conditions, paragraphs or appendices are recitals, conditions and paragraphs of and appendices to this Agreement. The appendices form part of the operative provisions of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the recitals and the appendices; and
- (e) words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
- (f) headings in this Agreement are for information only and are to be ignored in construing the same.
- OBLIGATIONS OF THE CONSULTANT
2.1 The Consultant shall perform the Services to manage the design and construction of the Project in accordance with the terms and conditions of this Agreement.
2.2 The Consultant shall keep the Client regularly informed of the progress and cost of the Project. The Consultant shall provide the Client with a monthly update summarising the progress and Construction Costs incurred on the Project during that month. The Consultant shall have no liability whether under this Agreement or otherwise for meeting any of the Construction Costs.
2.3 This Agreement supersedes any previous agreements or arrangements between the parties in respect of the Project or the Services and represents the entire understanding between the parties in relation thereto.
2.4 The Consultant warrants to the Client that in performing the Services it has exercised and will continue to exercise the standard of reasonable skill and care to be expected of a designer who is experienced in providing services similar to the Services in relation to projects of a size and complexity equivalent to the Project.
2.5 Prior to practical completion of the Project as certified pursuant to the Construction Contracts the Client shall ensure that the Consultant has unrestricted access to the Site. Following practical completion, access to the Site for the Consultant shall to be via keys issued to it by the Client and the Consultant shall always confirm access availability after practical completion with the Client before entering the Site.
2.6 The Consultant shall use reasonable endeavours to perform the Services in accordance with the Programme provided always that the Consultant shall not be in breach of this condition 2.6 if it is prevented from complying with the Programme for reasons outside of its control (including but not limited to delays to the Project caused by the Other Consultants).
2.7 The Consultant shall be the principal route of communication between the Client and the Other Consultants and shall facilitate communications between the Client and such persons whenever appropriate.
2.8 Subject to condition 4.3, the Client authorises the Consultant to act for it in its name and on its behalf to the extent necessary or desirable for the proper provision of the Services. In particular, the Client acknowledges that there will be circumstances where the Consultant is reasonably required to enter into contracts with third party suppliers, consultants and/or contractors (especially in the procurement of FF&E) on the Client’s behalf. The Client acknowledges that any costs incurred by the Consultant on the Client’s behalf shall be recoverable under condition 6.3 of this Agreement. The Consultant shall not be liable to the Client in respect of any liability, loss incurred or monies already spent as a result of any act, omission, default or the insolvency of any supplier, consultant or contractor engaged by the Consultant on the Client’s behalf provided that the Consultant has exercised the reasonable skill and care referred to in condition 2.4 in the selection of such supplier, consultant or contractor.
2.9 The Consultant warrants that it is competent for the purposes of the Construction (Design and Management) Regulations 2015 (the CDM Regulations). The Consultant shall carry out and fulfil the duties of a “designer” under the CDM Regulations and will comply with all general duties set out therein.
- OBLIGATIONS OF THE CLIENT
3.1 The Client shall appoint the Client’s Representative to act as its agent in relation to all matters concerning this Agreement and the Consultant shall in performing its duties hereunder deal exclusively with the Client’s Representative and all references to information or details being either sent to or received from the Client and to approvals or consents being given by the Client shall be deemed to be references to the Client’s Representative.
3.2 The Client warrants and undertakes that it shall carry out and fulfil the duties of a “client” under the CDM Regulations and will at all times comply with all general duties set out therein
3.3 The Client shall liaise with the Consultant (as reasonably required by the Consultant) so that the Consultant can perform the Services in accordance with this Agreement. The Client shall attend such meetings with the Consultant as are reasonably required to ensure the progress of the Project in accordance with the Programme. The location of such meetings shall be reasonably selected by the Client and agreed between the parties and subject to the Client meeting the Consultant’s reasonable costs for travel outside the M25 (for the avoidance of doubt locations may include, without limitation, international locations, subject to the payment of the Consultant’s reasonable travelling expenses in accordance with these Conditions and the Consultant being given reasonable notice of international locations). Dates of such meetings shall be agreed between the Consultant and the Client prior to commencement of the works at the Site but may be amended at the request of either party acting reasonably, provided that a suitable alternative date can be agreed. The time and duration of such meetings shall be agreed between the Client and the Consultant acting reasonably. The Client acknowledges that it may be required to attend meetings more frequently than once per month, depending on the progress of the Project and agrees to make itself available for such additional meetings at the reasonable request of the Consultant. If the Client fails to attend any such meeting(s), the Client acknowledges that acknowledges that the progress of the Project may be delayed and the Consultant may be entitled to an increased Project Fee in accordance with condition 6.9.
3.4 The Consultant shall set up a Project bank account for the purpose of paying for all items of expenditure that the Consultant is required to incur on behalf of the Client under this Agreement. The Consultant shall be entitled to incur expenditure to that account provided that such expenditure is within any budget allowances that have been agreed between the Client and the Consultant. The Consultant shall advise the Client of the initial amount required to be deposited into the account and any subsequent sums as they become necessary and the Client will make such payments within 5 days of the Consultant’s request to do so and must notify the Consultant if, for any reason, it has not done so.
3.5 The Client will indemnify and keep indemnified the Consultant from and against any and all loss, damage and liability whether criminal or civil and legal fees and costs incurred by the Consultant in the proper performance of the Services and arising from:
3.5.1 any neglect or default of the Client or its agents, employees, licensees or customers;
3.5.2 any lawful act of the Consultant acting as the Client’s agent pursuant to clause 5.1; and
3.5.3 any claim made against the Consultant by any of the Other Consultants in connection with any matter(s) arising from the performance of the Services, except in each of the above cases to the extent that the claim or any liability in respect of it arises as a result of any negligence or wilful breach of duty on the part of the Consultant.
3.6 The Client shall provide the Consultant with such information as the Consultant shall reasonably require for the performance of the Services (including, without limitation, all relevant base build information and drawings). The Client shall provide such information to the Consultant within a reasonable time and so as not to delay the Consultant in the performance of the Services.
3.7 The Consultant will submit from time to time information, drawings, designs and/or other documentation to the Client for its information and/or approval (whether by email, fax and/or in hard copy). Subject to conditions 4.1 and 4.2, if no written objection is received by the Consultant within 5 Business Days of the submission of such information, drawings, designs and/or other documentation, they will be deemed to have been accepted by the Client. The Client acknowledges and agrees that the Consultant shall not be liable for any delay in the Programme arising out of any delay by the Client in issuing its approval.
3.8 Where the Client wishes to nominate any consultant and/or supplier in connection with the Project after the date of this Agreement, the Client shall so notify the Consultant in writing within a reasonable time and, in any event, so as not to delay or disrupt the progress of the Project (by reference to the Programme(s). The Client shall remain fully responsible for such consultant or supplier and the Consultant shall have no responsibility whatsoever in respect of that consultant or supplier).
- SPECIFICATION AND APPROVALS
4.1 The Consultant will submit from time to time to the Client for approval, drawings, specifications, details and programmes (“Details”) relating to the Project and the Client’s settled design brief. The Client shall either issue its approval to such Details or submit detailed reasons for objection in writing within 5 Business Days of receipt of such Details. If no written objection is received by the Consultant within the 5 Business Days period the Details will be deemed to have been accepted by the Client and such Details will form part of the Specification or an amendment to the Specification. These Details will be subject to a maximum of one presentation, with an allowance for minor or de-minimis variations only. Any subsequent minor or de-minimis variations or variations required by the Client which are more comprehensive will be subject to an additional Project Fee charged on an hourly basis at the Consultant’s then current prevailing hourly rates.
4.2 The Client may submit to the Consultant requestls (“Change Requests”) for the amendment of the Specification whereupon the Consultant shall prepare and submit to the Client a written initial estimate of the effect the Change Request will have on the Project Fee, the Construction Cost and the Programme (“Estimate”). Following receipt of the Estimate the Client shall either issue its unqualified approval (at which point the Specification, Project Fee and Construction Cost shall be amended in accordance with the Estimate) or its rejection, in writing within 5 Business Days of receipt of the Estimate. If no written rejection is received by the Consultant within the 5 Business Days period the Estimate will be deemed to have been accepted by the Client and the Specification, Project Fee and Construction Cost shall be amended in accordance with the Estimate and the Client shall be responsible for the payment of the amended Project Fee and Construction Cost attributable to any Estimate approved or deemed to be approved pursuant to this condition 4.2, on the terms of these Conditions.
4.3 The Consultant shall not without the prior written consent of the Client (such consent not to be unreasonably withheld or delayed) make or approve or do anything which would or might:
- (a) waive or prejudice any rights which the Client may have against the Other Consultants; and/or
- (b) increase the cost of the Project by more than £5,000 in respect of any item separately identified in the Budget Cost Plan; and/or
- (c) extend the time required for completion of the Project or any part of the Project (by reference to the Programme).
4.4 Where the Consultant reasonably believes that either:
- (a) the cost of the Project in respect of any item separately identified in the Budget Cost Plan is likely to be increased by more than £5,000; or
- (b) the time required for completion of the Project (or any part of the Project) by reference to the Programme is likely to be extended, the Consultant shall liaise with the Client as necessary to obtain the Client’s prior written approval to any such increase in cost or extension to the time required for completion of the Project (such approval not to be unreasonably withheld or delayed).
4.5 Subject to conditions 4.1 and 4.2 and for the avoidance of doubt, the Consultant shall be entitled to issue instructions and approve or do anything that might increase the cost of the Project in respect of any item separately identified in the Budget Cost Plan by up to £5,000 without the Client’s prior approval.
5.1 If instructed to do so, the Consultant will act as the Client’s agent in regard to the advice on and/or supply, procurement, delivery and/or installation of FF&E. Unless specifically agreed otherwise in writing the Consultant shall act in the capacity of a disclosed agent for an unidentified principal.
5.2 The Consultant shall apply the standard of care provided for in condition 2.4 of the Agreement in regard to advising upon and acting as the Client’s agent in regard to FF&E including in regard to (as appropriate) the supply, procurement, delivery and/or installation of the FF&E.
5.3 Other than as provided for in condition 5.1 and 5.2 above, the Consultant shall have no liability in respect of the FF&E and any related Services including (but not limited to) as to whether the FF&E:
5.3.1 conforms with its description or specification;
5.3.2 is free from material defects in design, material and workmanship:
5.3.3 is of a satisfactory quality (within the meaning of the Sale of Goods Act 1979); and/or
5.3.4 is fit for any purpose held out by the FF&E supplier.
5.4 Unless otherwise expressly agreed, the Consultant shall have no liability to any third party in regard to the making of any payments to the third party in regard to FF&E. This includes not being liable to make payment to suppliers, installers or other parties of FF&E. The Client is responsible for all costs of ordering, packing, transportation, delivery and insurance for all FF&E.
5.5 The Client agrees to indemnify and keep indemnified the Consultant from and against all and any losses, costs, claims, liabilities, damages, demands and expenses suffered or incurred by the Consultant and/or arising from failure of the Client to discharge any liabilities of the Client under an agreement with a supplier, deliverer, installer or other third party in connection with FF&E on any grounds.
5.6 The Consultant is appointed as the Client’s exclusive agent for the purchase of FF&E for the Project. Where a supplier has been introduced to the Client by the Consultant the Client will not during the Term of this Agreement and (unless terminated due to the fault of the Consultant), for a period of six (6) months thereafter, either itself or via any third party, seek to purchase from such supplier directly or indirectly,
- a) any FF&E required for the Project; or
- b) any goods of the type described in the Budget Cost Plan.
6.1 The Project Cost means the total cost of the Project
6.2 The Project Cost (plus VAT if applicable) is payable to the Consultant for the performance of its obligations hereunder and shall be calculated to be an amount equal to the aggregate of:
(a) the Incurred Costs;
(b) the Disbursement Costs;
(c) the Project Fee; For the avoidance of doubt, this includes all phone calls, travel within the M25, and first class post. The Project Fee does not include any other disbursements or third party costs and the Client shall remain completely responsible for meeting all such costs and disbursements incurred by the Consultant in the performance of the Services, provided that they have been approved by the Client in writing before being incurred;
(d) any other additional fees, costs and expenses properly incurred by the Consultant (including VAT) in delivering the Project (including, without limitation, any costs expended by the Consultant in the acquisition of the FF&E) subject always to supplying the Client with copies of all invoices to which such expenditure relates and subject further to any single item of expenditure over £500 requiring the prior written consent of the Client. For the avoidance of doubt, costs and disbursements that are not included within the Fee shall include (but not be limited to) international travel, couriers, specific samples requested by client (where these cost over £50), model making, additional computer generated images, photographers, equipment, shipping, taxes, production, printing, copy writing, translation, audio/video cast production, website hosting and programming.
6.3 The Consultant shall in the performance of the Services use its reasonable endeavours to make cost savings from the published retail price of the items that it is required to procure for the FF&E pursuant to the provisions of this Agreement. The Consultant shall be entitled to and the Client shall pay a 20% commission (the FF&E Fee) calculated on the actual price paid (inclusive of VAT and any transaction charges and delivery costs) by the Consultant on behalf of the Client for such FF&E procurement.
6.4 The Consultant shall be entitled to raise invoices from time to time but no more frequently than once per month or in such amounts and times as are set out in Appendix 2 and/or where the Consultant has incurred costs, including FF&E Costs or other additional fees and expenses incurred on the Client’s behalf in accordance with this Agreement, in an amount greater than that set out in Appendix 2 to enable it to fund any such Incurred Costs or additional fees and expenses including, for the avoidance of doubt, any VAT.
6.5 The Client shall, subject to the provisions of condition 6.4 above, pay the Project Fee and the Disbursement Fee in accordance with the Payments Profile and shall reimburse the FF&E Costs and pay any FF&E Fee in accordance with the provisions for payment of invoices.
6.6 The final date for payment of any invoice issued under or pursuant to this Agreement shall be 10 Business Days after the date of receipt by the Client of such invoice. The Client shall pay to the Consultant without any deduction the amount stated as due under any such invoice together with VAT, if any, by electronic wire transfer.
6.7 If the Client fails to pay properly any amount, or part thereof, due to the Consultant by the final date for its payment:
6.7.1 the Client shall pay to the Consultant in addition to the amount not properly paid simple interest thereon for the period until such payment is made. Payment of such simple interest shall be treated as a debt due by the Client to the Consultant. The rate of interest payable shall be five per cent (5%) over the Base Rate of Barclays Bank which is current at the date the payment by the Client became overdue. Any payment of such simple interest shall not be construed as a waiver by the Consultant of its right to proper payment of the principal amount due from the Client to the Consultant; and
6.7.2 the Consultant may suspend the Services until such time as the amount due, including interest on such overdue accounts calculated in accordance with condition 6.7.1 is paid in full (and if the Programme is delayed as a result of such suspension the provisions of clause 6.9(c) shall apply).
6.8 If the Client fails to pay properly any amount, or part thereof, due to the Consultant by its due date, the Consultant shall have the right to and is hereby authorised to deduct from any procurement monies it is holding on account for the Client, the amount due, including interest on such overdue accounts calculated in accordance with condition 6.7.1.
6.9 The Project Fee shall be subject to increase in the following circumstances:
(a) Where the Consultant is required to perform additional services over and above the Services at the Client’s specific request (or as a result of a request made by the Consultant that has been approved in writing by the Client), the Consultant shall be paid such amount as
may be agreed between the parties or failing agreement on a time spent basis at the Consultant’s currently prevailing hourly rates;
(b) Any variations to the Project or the Programme pursuant to condition 4.1 or 4.2;
(c) Where the Consultant reasonably and properly incurs additional time and resources arising out of any delay to the Programme caused by any act or omission by the Client or any Other Consultant (except where such delay arises out of a breach of the terms of this agreement by the Consultant);
(d) The Client acknowledges that the Project Fee includes an allowance for the Consultant’s fees dealing with the permissions, consents, approvals or other input required from third parties (the Allowance). If the Consultant incurs fees over and above the Allowance plus 5% (the Additional Fees) the Consultant shall notify the Client in writing (providing a breakdown of the applicable Allowance and the reason for the increase if requested to do so) and the Client shall pay the Additional Fees at the Consultant’s standard rates for time and materials in force at the time of the notice;
(e) Where practical completion of the Project under the building contract or construction management agreement (as applicable) has not been achieved by the Longstop Date, the Consultant shall be paid such amount as may be agreed between the parties or failing such agreement at the Consultant’s then prevailing hourly rates;
(f) Where the Client decides to use a different method of procurement from that on which the Services are based after the date of this Agreement, the Client shall pay to the Consultant such additional fees and expenses as are agreed between the parties (acting reasonably) and which are reasonable in the circumstances based upon the nature and extent of the additional activities being carried out by the Consultant based on the Consultant’s then prevailing hourly rates;
(g) Where the Client fails to attend any meeting(s) with the Consultant on the dates agreed pursuant to condition 3.3, the Consultant shall be entitled to be paid such amount as may be agreed between the parties or failing such agreement at the Consultant’s then prevailing hourly rates for the time incurred in any abortive work and/or where the Consultant has carried out any additional services over and above the Services because the Client’s failure to attend such meeting(s) has delayed the progress of the Project (by reference to the Programme).
Provided always that the Consultant shall not be able to benefit from any of the above provisions where its entitlement arises as a result of a breach by the Consultant of its duties and obligations under this Agreement.
6.10 The Consultant’s total aggregate liability under or pursuant to this Agreement whether under contract, tort, statute or otherwise shall not exceed the Project Fee (other than for any liability incurred in respect of death or personal injury which shall not be restricted). For the avoidance of doubt the Consultant shall not be responsible for the effects of any defect, error or omission in any works to the existing structure at the Site, the Project works or the state and condition of the Site may have on the Project.
7.1 The Client may not assign or otherwise transfer its rights hereunder (whether or not accrued) without the prior written consent of the Consultant (not to be unreasonably withheld).
8.1 No action or proceedings arising out of, or in connection with, the Agreement, whether in contract, tort, statutory duty or otherwise, shall be commenced after the period of six years after completion of the Project or such earlier date as prescribed by law.
8.2 In any action or proceedings:
8.2.1 no agent or employee of the Consultant, including any officer or director of a company or a member of a limited liability partnership, shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services;
8.2.2 nothing in the Agreement shall limit or exclude the Consultant’s liability for:
(a) death or personal injury caused by the negligence of the Consultant’s employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach by the Consultant of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach by the Consultant of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987 subject to which the Consultant shall not 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 Agreement.
8.3 The Consultant’s total liability to the Client in respect of all losses (except those specified in Conditions 8.2.2(a)- 8.2.2(e)) arising under or in connection with the Agreement, whether in contract, tort (including negligence), delict, breach of statutory duty, or otherwise, shall not exceed the lesser of: (a) the value of the Project Fee paid to the Consultant during the previous 12 months of the agreement; or (b) the amount of professional indemnity insurance as specified in the Proposal Letter that the Consultant is required to maintain in accordance with Condition 9.
8.4 Without prejudice to the provisions of Condition 8.2 and 8.3, the liability of the Consultant shall not exceed such sum as it is just and equitable for the Consultant to pay having regard to the extent of the Consultant’s responsibility for the loss and/or damage in question and on the assumptions that:
8.4.1 all other consultants, contractors and suppliers providing work or services or supplies for the Project have provided to the Client contractual undertakings on terms no less onerous than those of the Consultant under the Agreement;
8.4.2 there are no exclusions or limitations of liability, joint insurance or co-insurance provisions between the Client and any other person referred to in this Condition 8.4; and
8.4.3 all the persons referred to in this Condition 8.4 have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extent of the responsibility for that loss and/or damage.
8.5 If either party to the Agreement (“the Affected Party”) is prevented, hindered or delayed in, or from, performing any of its obligations under the Agreement by an event of force majeure, it shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations and the time for performance shall be extended accordingly. The Affected Party shall use all reasonable endeavours to mitigate the effect of the force majeure event on the performance of its obligations. If the event prevails for a continuous period of two months, then either party may terminate the Agreement upon giving 7 days’ written notice to the other and on expiry of that notice period the Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Agreement.
9.1 The Consultant shall obtain professional indemnity insurance in respect of the Services for not less than the amount stated in the Proposal Letter.
9.2 The Consultant shall maintain such insurance until the expiry of the period stated in the Proposal Letter provided such insurance remains available to the Consultant on commercially reasonable rates and terms, failing which the Consultant will inform the Client in order that the parties can discuss the best means of protecting their respective positions in the absence of such insurance.
9.3 Unless otherwise expressly agreed, the Consultant shall be entitled to proceed on the basis that the Client has taken out and will maintain insurance in the joint names of the Consultant and the Client covering the carrying out of the Project including any building works and covering the risk of any expense, liability, loss, claim or proceedings whatsoever in respect of personal injury to, or death of, any person, or loss or damage to the Project or any property or the existing structure or contents of the Site/Premises.
9.4 The Consultant and the Client, as the case may be, shall produce on the request of the other evidence that the insurance required under the Agreement is in place and is being maintained.
- CONFIDENTIALITY AND COPYRIGHT
10.1 The parties hereby agree:
(a) to keep (and procure that its directors, employees and agents keep) in strict confidence the Confidential Information of the other party;
(b) not to use, reproduce or reduce to writing all or part of the other party’s Confidential Information except as necessary for the performance of its obligations under this Agreement; and
(c) save to the extent specifically required to do so by law or by any governmental or other regulatory authority (but then only to the extent so required) or as may be necessary to comply with its obligations under this Agreement, not to disclose the other party’s Confidential Information to any third party and to limit access to the Confidential Information to those of its employees and professional advisers who require such access in the performance of this Agreement.
10.2 Without prejudice to the generality of condition 10.1, each party agrees not to publish, cause to publish, make any commercial use of or otherwise exploit (whether or not for its own benefit) the Confidential Information of the other party, except as contemplated by this Agreement.
10.3 The confidentiality provisions of this Agreement shall remain in full force and effect both during and for a period of twelve years after the completion of the Services or earlier date of termination of this Agreement.
10.4 For the avoidance of doubt the legal and beneficial ownership of copyright and all other intellectual property and design rights in all designs, drawings, plans, specifications, details and models produced by the Consultant or on behalf of the Consultant under or pursuant to this Agreement (the “Design Details”) shall at all times be vested in the Consultant and the Client shall have no right to use, copy or recreate any of the Design Details other than in respect of the normal operation and maintenance of the completed Project.
10.5 Following completion of the Services, the Consultant shall be entitled to take photographs of any FF&E (including but not limited to fixtures and fittings) which have been designed or procured by the Consultant in the performance of the Services and (with the Client’s prior written approval, such approval not to be unreasonably withheld or delayed) of the completed Project. The Client agrees that the Consultant may use such photographs for commercial use.
11.1 The Client may by written notice require the Consultant to suspend the performance of any or all of the Services for a maximum of three months. The Consultant shall be paid for the suspended Services up to the date of suspension, together with any costs and expenses it may incur as a result of such suspension.
11.2 The Consultant shall resume the performance of any suspended Services if instructed by the Client, provided that such instruction is received no later than one months following the date of suspension. If the Programme is delayed as a result of such suspension the provisions of clause 6.9(c) shall apply.
11.3 Following any suspension of the Services under condition 11.1.
11.3.1 the Client shall pay to the Consultant any remobilisation costs incurred by the Consultant; and
11.3.2 the Consultant shall use reasonable endeavours to re- allocate the original members of the project team to the performance of the Services, however if such individuals have been allocated to a different project during such suspension the Client acknowledges that the Consultant shall be entitled to substitute alternative individuals who have similar experience and/or qualifications.
11.4 If the Client fails to pay any amount, or part thereof, properly due to the Consultant by the due date for payment the Consultant shall have the right to suspend performance of all or any of the Services by giving not less than 7 days’ prior notice in writing to the Client. The
Consultant’s right to suspend shall cease on payment in full of any such amount and the Consultant shall resume performance following a 14 calendar days remobilisation period.
11.5 If the Client fails to pay any amount, or part thereof, properly due to the Consultant with one month of the date of the notice of Suspension, the Consultant may terminate this Agreement by giving written notice.
12.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
12.1.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
12.1.2 the other party commits a material breach of this Agreement and (if the breach is capable of remedy) fails to remedy that breach within a period of  days after being required in writing to do so;
12.1.3 an event of insolvency occurs in respect of the other party;
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts within the meaning of the Insolvency Act 1986;
(b) the other party 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 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;
(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) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(g) the other party (being an individual) is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition (i) to condition (viii) (inclusive);
12.1.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
12.1.5 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
12.1.6 there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010); or
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement on giving not less than three months’ written notice to the other party.
12.3 Following termination of the Consultant’s appointment for any reason or suspension pursuant to clause 11.1, the Consultant shall invoice the Client in respect of any instalments of the Project Fee, Disbursement Fee and any Incurred Costs commensurate with the Services which have been properly performed up to the date of termination or suspension. The Client shall pay such invoices in accordance with condition 6.
12.4 Termination of the Consultant’s appointment shall be without prejudice to the rights and remedies of either party in relation to any default, negligence or breach of contract of the other prior to such termination.
13.1 Any notice, demand or other formal communication given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered personally or sent prepaid first class post (air mail if posted to or from a place outside the United Kingdom) to the address set out in the Proposal Letter or by email the Consultant at email@example.com or to the Client at such email address as may be specifically notified to the Consultant for the service of notices or as otherwise provided by the Client or the Client’s Representative for use in its usual course of its business and shall be deemed to have been duly given or made as follows:
- (a) if personally delivered, upon delivery at the address of the relevant party, subject to a signed receipt;
- (b) if delivered by email, at the time of delivery subject to a read receipt;
- (c) subject to proof of posting, if sent by first class post, two Business Days after the date of posting; and
- (d) subject to proof of posting, if sent by air mail, five Business Days after the date of posting; provided that if, in accordance with the above provision, any such notice, demand or other communication would otherwise be deemed to be given or made after 5.00 p.m. Greenwich Mean Time such notice, demand or
other communication shall be deemed to be given or made on the next Business Day.
13.2 A party may notify the other party to this Agreement of a change to its name, relevant addressee, address provided that such notification shall only be effective on the date notification of the change is given or, if later, the date specified in the notification as the date on which the change is to take place.
14.1 The waiver or forebearance or failure of a party in insisting in any one or more instances upon the performance of any provision of this Agreement shall not be construed as a waiver or relinquishment of that party’s rights to future performance of such provision and the other party’s obligations in respect of such future performance shall continue in full force and effect.
- THIRD PARTY RIGHTS
15.1 The Contracts (Rights of Third Parties) Act 1999 (the “Act”) shall not apply to this Agreement and no other person or party shall have any rights under the Act, nor shall this Agreement be enforceable under the Act by any other person or parties.
If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- GOVERNING LAW AND DISPUTE RESOLUTION
17.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with English law.
17.2 Should either party so require, any dispute or difference arising out of or in any way relating to this Agreement shall in the first instance be referred to adjudication in accordance with the Scheme for Construction Contracts SI 1998 No 649.
17.3 Subject to condition 17.2, each of the parties to this Agreement irrevocably agrees that the courts of England shall have exclusive jurisdiction to hear and decide any suit, action or proceedings and/or to settle any disputes which may arise out of or in connection with this Agreement and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England.
17.4 The Consultant shall have no liability (whether under contract, tort, statute or otherwise) to the Client under or pursuant to this Agreement after the later of the date of issue of the last certificate of making good defects under the Construction Contracts (or the date it should have been issued if one is not issued) or the date the Services have been completed.