Standard Terms of Engagement
“the Appointment” means the email agreement or other agreement entered into between the Client and the Consultant for the performance of the Services upon the Standard Terms.
“the Client” means the person or company who instructs the Consultant to undertake the Services.
“the Consultant” means R. B Furby Ltd trading as Section 106 Management.
“Fees” means the fees and disbursements to be charged by Consultant to the Client pursuant to the Appointment in connection with the provision of the Services.
“the Services” means the services to be provided by The Consultant for the Client pursuant to the Appointment and any variation thereof agreed in writing from time to time.
“the Standard Terms” means these standard terms of engagement.
1. Consultant’s Obligations
The Consultant shall perform the Services as set out in the Appointment: exercising reasonable skill, care and diligence;
2. Client’s Obligations
The Client shall:- 2.1 – provide free of charge such drawings, data and information as may be available to the Client and as may reasonably be required by the Consultant for the performance of the Services; 2.2 – in consideration of the performance of the Services, pay the Consultant’s Fees and reimburse costs and disbursements as set out in the Appointment; 2.3 – provide free of charge to the Consultant the equipment and facilities as set out in the Appointment.
3. Payment Details
3.1 Unless otherwise expressly provided in the Appointment, the Consultant shall submit invoices to the Client at monthly intervals for Fees earned and costs incurred prior to the date of each invoice and payment shall be due on such date. The final date for payment for each invoice shall be 14 days from its date of issue. 3.2 If the Client intends to withhold payment against an invoice it shall notify the Consultant 7 days prior to the final date for payment of the amount to be withheld and the grounds upon which such amount is to be withheld. 3.3 Interest shall be added to all amounts remaining unpaid after the final date for payment at the rate in accordance with the LatePayment of Commercial Debts (Interest) Act 1998. 3.4 All sums mentioned in the Appointment are exclusive of Value Added Tax that will be chargeable in accordance with legislation applicable from time to time.
4. Changed Conditions
4.1 If any event or circumstance beyond the reasonable control of the Consultant materially affects the extent of the services to be performed by the Consultant or the manner of or the time required for performance (including, but not limited to, restrictions on entry to the Site, instructions, directions and changed requirements of the Client, delay by the Client in providing information or data, requirements of public authorities or other third parties with relevant jurisdiction, changes in the law, changes in conditions, or the discovery of any latent obstructions or hazardous materials) the remuneration of the Consultant and the time-scale for performance of the Services shall be adjusted to such an extent as is fair and reasonable to take account of such matters and the Appointment shall be modified accordingly. No such adjustments shall be made to the extent that such matters were brought to the attention of the Consultant in writing prior to the date of the Appointment. 4.2 The Client’s right to order any variation pursuant to Clause 4.1 shall be subject to the right of reasonable objection by the Consultant.
5. Ownership of Documents and Copyright
5.1 The copyright in all drawings, reports, calculations and other documents provided by the Consultant pursuant to or in connection with the Services shall remain vested in the Consultant but, provided all sums due to the Consultant have been fully paid, the Client shall have a non-exclusive licence to use the same solely for any purpose for which they were prepared, subject always to the other provisions of the Standard Terms. Save as aforesaid, the Client shall not make copies of such drawings, reports, calculations or other documents nor use the same for any purpose without the prior written consent of the Consultant and upon such terms as may be agreed between the Client and the Consultant. 5.2 The Consultant may publish alone or in conjunction with any other person any articles, photographs or other illustrations relating to the Services.
6. Services Performed for Client’s Benefit
The Consultant’s performance of the Services is solely for the benefit of the Client and the Client shall indemnify the Consultant against any claims from third parties in respect of the Services save to the extent that: 6.1 – the Consultant has, without being requested to do so by the Client, furnished information or advice direct to such third parties; or 6.2 – the Consultant has, in writing, unconditionally authorised disclosure of information or advice to such third parties.
7. Force Majeure
The Consultant shall be relieved from liability under or in connection with the Appointment to the extent that any failure to perform any of its obligations has been caused or contributed to by a force majeure event or circumstance including Acts of God, war, terrorism, civil disturbance, government action, strikes, lock-outs or labour disputes, computer virus or any other event or circumstance beyond the reasonable control of the Consultant.
8. Professional Indemnity Insurance
The Consultant shall maintain professional indemnity insurance to support its liabilities under the Appointment with the indemnity amount being on an each-and-every-claim basis for a period of six years from the date of the Appointment, provided that in respect of claims for pollution and/or contamination risks such indemnity amount is on an aggregate basis, and provided always that such insurance continues to be available at commercially reasonable rates and terms in the London (UK) insurance market. As and when reasonably requested to do so, the Consultant shall produce for inspection documentary evidence of such insurance in the form of a certificate from its insurance broker.
9.1 The total liability (excluding death or personal injury resulting from the Consultant’s own negligence) of the Consultant under or in connection with the Appointment, whether in contract, in tort, for breach of statutory duty or otherwise, shall not exceed the lesser of five times the fee payable by the Client, twenty five thousand pounds, or the amount if any recoverable by the Consultant under any professional indemnity insurance policy taken out by the Consultant. 9.2 The Consultant’s liability for any delay shall be limited to 10% (ten per cent) of the Fees. 9.3 The Client shall indemnify and keep indemnified the Consultant from and against all claims, demands, proceedings, damages, costs, charges and expenses arising out of or in connection with the Appointment in excess of the applicable liability limit then in force. 9.4 Subject to Clauses 9.1 and 9.2 above but notwithstanding otherwise anything to the contrary contained in the Appointment, such 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 his responsibility for the loss or 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 sub-contractors shall have provided contractual undertakings on terms no less onerous than those set out in Clause 1 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 other consultants and all 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 regards to the extent of their responsibility for the loss and damage. 9.5 The Consultant’s liability relating to any act of terrorism shall be limited to the amount, if any, recoverable by the Consultant under any professional indemnity insurance policy taken out by the Consultant. 9.6 If the Client considers that there has been a breach of the Appointment by the Consultant, the Client agrees that it will only look for redress to the Consultant (and not to its personnel, including directors and officers), except in respect of death or personal injury.
10. Accuracy of Information
The Consultant shall be entitled to rely on the accuracy of drawings, data, information and statements given or made by the Client’s employees and agents and by any third parties through the Client. The Consultant shall have no liability for any reports or advice that it may give to the extent that these are based on any such drawings, data, information or statements which prove to be inaccurate.
11. Matters of Legal Significance
The Consultant makes no representation whatsoever concerning the legal significance of its findings or as to other legal matters touched on in any reports or advice given by it including, but not limited to, questions of ownership of property or the application of any law to matters dealt with in any such reports or advice.
12. Consequential Loss
The Consultant shall not be liable for any indirect, special or consequential loss or damage whatsoever suffered or allegedly suffered by the Client (including but not limited to loss of profits or interruption of business, loss of revenue, loss of use, loss of production, loss of business, loss of business opportunity or loss of goodwill) arising out of or in connection with the Appointment, whether or not the possibility of such loss or damage was known or foreseeable.
13.1 The Consultant shall be entitled to sub-contract any of the Services. 13.2 If the Consultant recommends that the Client should engage other consultants or contractors, the Consultant shall have no liability in respect of or arising out of their engagement.
Neither party may assign its interest in the Appointment or any rights under or arising out of or in connection with the Appointment without the prior written consent of the other party.
15.1 The Client may at any time by giving not less than 30 days notice to the Consultant require the Consultant to suspend performance of the Services. Unless otherwise agreed, and subject always to the provisions of Clause 16, the Client shall give the Consultant not less than 14 days notice of its desire to have the Consultant resume performance of the Services 15.2 If the Client is in breach of any of its obligations under the Appointment and such breach remains unremedied for 14 days after notice thereof has been given to the Client, the Consultant may forthwith suspend the performance of the Services until 14 days after such time as the breach is remedied. 15.3 In the event of any suspension of the Services pursuant to Clauses 15.1 or 15.2, the remuneration of the Consultant and the timescale for performance of the Services shall be adjusted to such extent as is fair and reasonable to take account of the disruption caused by the suspension, and the Appointment shall be modified accordingly.
16.1 The Client may at any time by giving not less than 30 days notice in writing to the Consultant terminate the Consultant’s engagement. 16.2 Either party may terminate the Consultant’s engagement forthwith by notice in writing to the other in the event of a material breach by the other of its obligations under the Appointment which is irremediable or, where remediable, which the other shall have failed to remedy within 14 days after receiving notice specifying the breach and requiring its remedy. 16.3 Either party may terminate the Consultant’s engagement forthwith by notice in writing to the other if the other ceases to trade or enters into liquidation whether voluntarily or compulsorily (other than for the purposes of amalgamation or reconstruction) or compounds with its creditors or has a receiver, administrative receiver, administrator, nominee, supervisor or similar officer appointed over all or any of its assets or its undertaking or any part thereof or if any action, petition, application or proceeding is initiated or resolution passed relating to any of the aforementioned matters. 16.4 If any suspension of the Services lasts for one month or more, the Consultant shall be entitled to terminate its engagement forthwith by notice in writing to the Client. 16.5 Any termination of the Consultant’s engagement shall not prejudice or affect any rights or remedies accrued prior to or in consequence of the termination. 16.6 On any termination of the Consultant’s engagement, the Consultant shall be entitled to payment for all services performed and costs incurred up to the date of termination on the basis of the Fees set out in the Appointment and for taking such steps as reasonably necessary to bring to an end the Services. 16.7 Save where termination arises because of the Consultant’s default or insolvency (or similar grounds referred to in Clause 16.3), the Consultant shall, in addition to payment pursuant to Clause 16.6, be entitled to reasonable compensation for the termination of its engagement.
17.1 In the event of any dispute arising out of, under, or in connection with the Appointment, the parties shall endeavour in good faith to resolve the same amicably. Any such dispute which is not so resolved may at any time be referred by either party to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure. 17.2 If either of the parties is dissatisfied with the decision of the Adjudicator, such dispute or difference, subject to the agreement of the parties, may be referred to the arbitration of a person to be agreed upon between the Client and the Consultant or, failing agreement, nominated by the President (or in his absence any Vice-President) of the Chartered Institute of Arbitrators. Failing agreement to refer such dispute or difference to arbitration, the matter shall be referred to the Courts.
18. Soliciting of Employees
Neither party shall solicit for employment or hire the employees of the other party involved in the management or performance of the Services at any time after the date of the Appointment until the expiry of one year after the completion of the Services or one year after the earlier termination of the Consultant’s engagement.
Any notice to be given pursuant to the Appointment shall be in writing and shall be deemed to be duly given if it is delivered by hand at or sent by registered post or facsimile to the addresses of the parties set out in the Appointment. In the case of notices sent by registered post, the same shall be deemed to have been received two working days after being posted.
No indulgence shown by either party to the other shall prevent that party subsequently insisting upon its rights and remedies under or in respect of the Appointment. If either party shall expressly waive its rights in respect of any breach of the Appointment, such waiver shall not operate as a waiver of any similar subsequent breach or any breach of any other provision of the Appointment.
If any provision or part of a provision of the Appointment shall be or shall become unenforceable, void or invalid (as the case may be), such provision or part thereof shall not affect and shall be deemed to be severed from the remainder of the Appointment to the intent that the remainder of the Appointment shall be or shall continue to be fully enforceable and valid.
The Appointment shall be construed and governed in all respects in accordance with the laws of England and Wales and the parties hereby submit to the non-exclusive jurisdiction of the Courts of England and Wales. Contracts (Rights of Third Parties) Act 1999 Nothing in the Appointment confers or purports to confer on any third party any benefit or any right to enforce any term of the Appointment by virtue of the Contracts (Rights of Third Parties) Act 1999.