‘Consultant’ means Hockley & Dawson Consulting Engineers Ltd and its legal successors.
‘Client’ means the person, firm, company or organisation for which the Consultant is performing the Services. ‘Agreement’ means the contract referred to in Clause 2.
‘Services’ means the services to be performed by the Consultant in accordance with the proposal from the Consultant.
‘Project’ means the project or works for which the Client has commissioned the Services.
Unless and until a formal agreement is entered into, the Client’s acceptance of the proposal for Services from the Consultant or a request for some or all the Services to be performed by the Consultant, shall constitute a binding contract between the Client and the Consultant which contract will be subject to any terms and conditions contained or referred to in the aforementioned proposal and these terms and conditions. In the event of any conflict, the terms and conditions in the proposal shall prevail over these terms and conditions.
The Consultant shall exercise reasonable skill, care and diligence in the performance of the Services.
(i) The Consultant shall be liable to pay compensation to the Client arising out of or in connection with this Agreement only if a breach of the duty of care in Clause 3 is established against the Consultant.
(ii) Notwithstanding any other term to the contrary in this Agreement or any related document and whether the cause of action for any claim arises under or in connection with this Agreement in contract or in tort, in negligence of for breach of statutory duty or otherwise, in relation to any and all clauses of action as aforesaid the total liability of the Consultant in the aggregate for all claims shall be limited to the lesser of a multiple of ten times the total of the fees payable to the Consultant by the Client under this Agreement or £1,000,000 (One Million Pounds).
(iii) Without prejudice to any other exclusion or limitation of liability, damages, loss, expense or costs the liability of the Consultant for any claim or claims under this Agreement 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 giving rise to such claim or claims (“the loss and damage”) and on the assumptions that:
(i) all other consultants, contractors, sub-contractors, project managers or advisers engaged in connection with the Project have provided contractual undertakings on terms no less onerous than those set out in Clause 3 to the Client in respect of the carrying out of their obligations; and
(ii) 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
(iii) all such other consultants, contractors, sub-contractors, project managers or advisers have paid to the Client such sum as it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.
(iv) Further and without prejudice to the foregoing the total liability of the Consultant under or in connection with this Agreement for any and all claims in respect of contamination or pollution shall be limited to the lesser of £250,000 (Two Hundred and Fifty Thousand Pounds) or the direct cost incurred by the Client in removing the contamination or pollution.
(v) The Consultant shall have no liability to the Client in respect of any claim for loss or damage arising from acts of war or terrorism, nuclear or radioactive emissions, any incidence of toxic mould, or from or related to asbestos.
(vi) Neither party shall be liable to the other for any indirect, special or consequential loss (including but not limited to loss of profit, loss of production, loss of contracts, loss of use, loss of business, and loss of business opportunity).
(vii) No action or proceedings under or in connection with this Agreement shall be commenced against the Consultant after the expiry of 6 (six) years from completion of the Services.
(viii) Nothing in this clause shall operate to exclude or limit the Consultant’s liability for death or personal injury.
(ix) The Consultant at its discretion may issue warranties to third parties but subject always to a condition that the aggregate liability of the Consultant arising across all warranties and this Agreement shall not exceed the total liability stated in this clause 4.
(x) Construction (Design and Management) Regulations 2015 (CDM) places strict liability on the Client (domestic or commercial) with duties under health and safety responsibilities and communication to the team (designers or contractors etc) undertaking the work on the Client’s behalf. Under a domestic situation the Client duties would be transferred to the principal contractor. Hockley & Dawson under a domestic contract would not accept the role of Principal Designer under CDM 2015. Under a commercial situation the Client would be the Principal Designer unless the Client agrees in writing that other persons undertake this role.
The Client in either domestic or commercial work has strict liability responsibility for health and safety for any named project commission involving construction: i.e. design, construction, future use and maintenance of the structure, and therefore the onus is on the Client to appoint Competent Consultants and Contractors to ensure design considers health and safety risks for the works and future use and maintenance.
The Consultant shall maintain public liability and professional indemnity insurance sufficient to cover the Consultant’s liabilities under this Agreement provided always that such insurance is available in the London market at commercially reasonable rates and terms and subject to all normal exceptions exclusions and limitations to the scope of cover generally in operation at the time of renewal.
The Client shall promptly and without charge provide to the Consultant with all information, further information, approvals, consents and instructions as requested by the Consultant in relation to the Services so as to allow the Consultant to comply with any agreed timetable for the execution of the Services. Whilst the Client may cancel their instruction within 14 days in accordance with Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the Client will be charged for any work undertaken between the date of instruction and the date of any cancellation. Charges will be calculated in accordance with the Consultant hourly rates. In confirming the Consultant instruction the Client is confirming the commencement of work within 14 days.
(i) Our fees are as stated in our fee proposal letter or such later correspondence confirming our appointment and will be invoiced on agreed predetermined dates. On signing this document you agree to payment in full on presentation of the invoice. We reserve the right to charge interest at a rate of 8% above Bank of England base rate or a collection fee of 10% on amounts unpaid, calculated on a daily basis, from the 29th day following the date of invoice. The final date for payment of any sum due including any interest added shall be 56 days after the invoice date. If payment is not made after 56 days of invoice date then the account may be passed to our collections agency after which a charge of 15 % plus VAT on top of the initial invoice amount and interest will be added to the debt. Invoices may be submitted at our discretion proportionate to the work executed but no more frequently than one invoice per month. You agree, as part of this contract, to pay this sum which represents our reasonable costs in collecting the unpaid amounts.
(ii) If a party to this contract disagrees with an invoiced amount that party may give notice to us not later than 14 days after the invoice date specifying the amount (if any) of the payment made or proposed to be made, the amount to be withheld and the basis on which those amounts were calculated. Payment may not be withheld after the final date for Payment, unless an effective notice to withhold payment has been given. In the event of postponement or termination, for whatever cause, we reserve the right to charge for work carried out in accordance with the fee basis agreed for the appointment. Should any invoice not be paid by the final date for payment in accordance with the terms of our appointment and no effective notice has been given we reserve the right to suspend work until payment is made and we shall not be responsible for any additional costs incurred by the Client as a result thereof. Where there are disputed fee invoices this shall not entitle the Client to withhold the payment of undisputed fee invoices or parts thereof. In the event of a dispute under or in connection with this contract any party to the contract has the right at any time to refer the dispute to adjudication.
(iii) The terms of our appointment may only be varied if accepted in writing by a Director of this Company.
If the Consulting Engineer has to carry out additional work and/or suffer disruption in the performance of the Services because:-
(i) The project or the Works or Brief is or are varied by the Client, Architect, QS or Contractor, or of any delay by the above in fulfilling his/their obligations or in taking any other step necessary for the execution of the Project or the Works, or
(ii) The Consulting Engineer is delayed by others (or by events which were not reasonably foreseeable), or
(iii) The Project or Works is damaged or destroyed, or
(iv) Of other reasons beyond the control of the Consulting Engineer The Client shall make an additional payment to the Consulting Engineer in respect of the additional work carried out and additional resources employed (unless and to the extent that the additional work has been occasioned by the failure of the Consulting Engineer to exercise reasonable skill, care and diligence) and/or the disruption suffered. The additional payment shall be calculated (unless otherwise agreed) on the basis of time based fees. The Consulting Engineer shall advise the Client when he/she becomes aware that any such additional work shall be required and shall, if so requested by the Client, given an initial estimate of the additional payment for such additional work likely to be incurred. Where the Client requires that payment for such additional work is to be in the form of lump sums, these lump sums and the intervals at which instalments shall be paid and the amounts of each instalment should be agreed prior to the additional work being commenced.
The legal and beneficial ownership of all intellectual property prepared or developed by or on behalf of the Consultant in connection with the Project shall remain vested in the Consultant. Upon full payment of the fees due under this Agreement, the Consultant shall grant to the Client an irrevocable, royalty-free, non-exclusive licence to use all rights, titles and interest in any such intellectual property in connection with the construction, completion, maintenance, reinstatement, repair, letting, promotion and/or advertisement (whether by the Client or by a third party authorised by the Client) of the Project. Such licence shall enable the Client to use the Consultant’s intellectual property for the extension of the Project but such use shall not include a licence to reproduce the designs contained therein for any extension of the Project. The Consultant shall have no liability for any use of the intellectual property other than for the purposes for which it was originally intended.
In the performance of their obligations under or in connection with this Agreement the parties, their agents and employees shall comply with all applicable laws, rules, and regulations including but not limited to the Bribery Act 2010 and where appropriate the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
If a party is in breach of a material term of this Agreement and, despite written notice of such breach in writing by the other party, the party in breach fails to remedy such breach within 30 days or such other period as may be agreed between the parties, then the non-defaulting party shall be entitled to terminate this Agreement forthwith.
The parties shall attempt to resolve any difference or dispute between them by mutual agreement. If such cannot be resolved then any dispute arising out of or in connection with this Agreement shall be referred to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure current at the time of the referral or dispute. The adjudicator shall be appointed at the request of either party by the Association for Consultancy and Engineering. Such Rules are deemed to be incorporated by reference into this clause. The law governing the arbitration shall be that of England and Wales, the number of arbitrators shall be one and the seat of the arbitration shall be London, England.
This Agreement shall be governed by and construed in accordance with the law of England and Wales.
This Agreement and our fee proposal so formed shall supersede all previous understandings, commitments or agreements whether written or oral between the Client and the Consultant relating to the subject matter hereof.
No person or entity shall have any rights in relation to this Agreement, whether as third parties or otherwise, save the parties to this Agreement.
Should any term or condition of this Agreement be held to be unenforceable then such term or condition shall be disregarded and the remaining terms and conditions shall remain in full force and effect.
Neither the Consultant nor the Client shall, without the written consent of the other, assign or transfer any benefit under this Agreement.