- In these Terms and Conditions, the following expressions shall have the following meanings:
“Agreement” the agreement between the Client and the Consultant for the provision of the Services by the Consultant to the Client on the basis of the Engagement Letter and these Terms and Conditions;
“Client” as identified in the Engagement Letter;
“Client’s Consultants” those consultants who may be appointed by the Client (other than the Consultant) in relation to the Project and who have been previously notified to the Consultant from time to time;
“Consultant” as identified in the Engagement Letter;
“Documents” includes any document in writing, map, plan, design, drawing, picture or other image, or any other record of any information in any form;
“DP9 Entity” the Consultant, its employees or agents;
“Engagement Letter” the engagement letter attached to these Terms and Conditions summarising the basis of appointment of the Consultant to provide the Services to the Client;
“Group” in relation to a company, that company, its subsidiaries, any company of which it is a subsidiary (its holding company) and any other subsidiaries of any such holding company; and each company in a group is a member of the group. Unless the context otherwise requires, the application of the definition of Group to any company at any time will apply to the company as it is at that time;
“holding company” and “subsidiary” a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006;
“Insolvency” either party becoming bankrupt, going into liquidation (either voluntarily or compulsory unless as part of a bona fide scheme of reconstruction or amalgamation), being dissolved, compounding with its creditors or having a receiver, administrative receiver or administrator appointed of the whole or any part of its assets;
“Intellectual Property Rights” all intellectual and industrial property rights including (without limitation) patents, trade marks, service marks, registered designs, copyrights, database rights, design rights, moral rights or know-how, howsoever arising, whether or not registered and any other similar protected rights in any country and any applications for the registration or protection of such rights and all extensions thereof throughout the world;
“Project” as identified in the Engagement Letter;
“Project Team” the Client and the Client’s Consultants (together with such other parties as may be notified to the Consultant in writing) and any contractors appointed by the Client in relation to the Project who have been previously notified to the Consultant from time to time;
“Property” the land as identified in the Engagement Letter; and
“Services” the services to be supplied to the Client by the Consultant as set out in the schedule to the Engagement Letter.
- The Services
- The Consultant shall perform the Services subject to and in accordance with this Agreement. Any changes or additions to the Services must be agreed in writing by the Consultant and the Client.
- The Consultant shall exercise reasonable skill, care and diligence in the performance of the Services.
- Nothing in this Agreement precludes the Consultant from taking such steps as are necessary in order to comply with any legal or regulatory requirements or any professional or ethical rules of any relevant professional body of which any DP9 Entity is at the time, a member.
- If at any time the Consultant is delayed or becomes aware of any circumstance which may prevent it from meeting the dates specified by the Client, the Consultant shall as soon as reasonably practicable inform the Client and propose any measures which may be practicable to recover the delay or to avoid or reduce the anticipated delays.
- The Consultant is entitled to assume that instructions and information have been properly authorised by the Client if they are given or purport to be given by an individual or person who is or purports to be and is reasonably believed by the Consultant to be a director, duly authorised employee or authorised agent of the Client.
- If the Consultant has already started work, then the Client agrees that this Agreement applies retrospectively from the start of that work.
- For the avoidance of doubt, unless specifically instructed in writing, we will not provide any Community Infrastructure Levy advice after planning permission has been issued and will not be liable for any consequent outcomes, including but not limited to, the failure to submit relevant forms and notices in accordance with the Community Infrastructure Levy Regulations 2010 (as amended).
- 3. Obligations of the Client
- The Client shall supply (at its own expense) to the Consultant upon request all Documents or other materials, and all other data or information relating to the Services (including, without limitation, copies of documents of title to the Property, documents containing details of the rights of owners of land or buildings adjoining the Property and other pertinent matters) so far as is necessary for the performance of the Consultant’s duties under this Agreement. The Client shall ensure (so far as reasonably practicable) the accuracy of such Documents and information. The Consultant may rely upon such Documents and information in providing the Services and shall not be obliged to conduct any due diligence or research in relation to such Documents and information.
- The Client shall give and shall procure that the Project Team shall give such assistance as shall reasonably be required by the Consultant in the performance of the Services.
- The Client shall ensure that its decisions, instructions, consents or approvals on or to all matters properly referred to herein shall be given in such reasonable time so as not to delay or disrupt the performance of the Services by the Consultant.
- 4. Liability and Professional Indemnity Insurance
- Notwithstanding anything to the contrary contained elsewhere in this Agreement, the Consultant’s total aggregate liability under or in connection with this Agreement (including any third party rights or letters of reliance arising therefrom) for the acts or omission of any DP9 Entity or any consultants and/or subcontractors of the Consultant of whatever nature (whether in contract, tort, negligence or for breach of statutory duty or otherwise) in respect of any one occurrence or series of occurrences arising out of any one original cause, source or event shall not exceed the sum of £10 million. For the avoidance of doubt, if more than one claim arises from the same cause, source or event, all such claims shall be deemed to be one claim and a maximum of £10 million shall be payable in respect of the aggregate of all such claims.
- Nothing in this Agreement shall limit or exclude the liability of the Consultant for:
- death or personal injury resulting from negligence; or
- any damage or liability by any person as a result of fraud or fraudulent misrepresentation by the Consultant.
- No actions or proceedings against the Consultant shall be brought more than six years from the date of completion of the Services or the termination of this Agreement (whichever is earlier).
- Without prejudice to any claim the Client may have against the Consultant, no proceedings may be taken against any DP9 Entity other than the Consultant in respect of any claim that the Client may have in connection with this Agreement.
- The Consultant shall, at its own cost, take out and maintain professional indemnity insurance for the duration of this Agreement and for a period of six years from the date of completion of the Services or the termination of this Agreement (whichever is the earlier) with a limit of indemnity of not less than £10 million for any one occurrence or series of occurrences arising out of any one event in respect of any negligence and/or breach of contract by the Consultant in the performance of the Services, provided that such insurance continues to be available in the market at reasonable premium rates.
- The amount of public liability insurance to be carried by the Consultant under this Agreement shall be £5 million and the amount of employer’s liability insurance to be carried by the Consultant under this Agreement shall be £5 million.
- When reasonably required to do so by the Client the Consultant shall provide to the Client documentary evidence that the insurance required under this Agreement is being maintained.
- Notwithstanding clauses 4.4 to 4.6 (inclusive), the Consultant shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Documents or information or instructions supplied by the Client, its agents, subcontractors, consultants, employees or any member of the Project Team relating to the provision of the Services which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client, its agents, subcontractors, consultants employees or any member of the Project Team.
- Notwithstanding clauses 4.6 to 4.7 (inclusive), the Consultant shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control (including, without limitation, any act or omission of the Client, its agents, subcontractors, consultants, employees or any member of the Project Team).
- Notwithstanding clause 4.1, the Consultant shall not be liable for: (a) losses which arise from the acts or omissions of any person other than a DP9 Entity or any subcontractor or consultant of the Consultant; (b) any loss following a breach by the Client of this Agreement; (c) any loss incurred as a result of third party claims (save where letters of reliance have been entered into in accordance with clause 4.12); (d) loss of goodwill or business opportunity, loss of or corruption to data, loss of revenues, or wasted management or staff time; or (e) any incidental, special, punitive, exemplary, indirect or consequential loss.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
- Subject always to clause 4.1 above, when the Client and the Consultant have so agreed before the commencement of the appointment, the Consultant shall enter into and provide letters of reliance for the benefit of other parties. It shall be a condition of the provision of such letters of reliance that they shall give no greater benefit to those to whom they are issued in quantum, duration or otherwise than is given to the Client under this Agreement. Should the Client request alterations to the previously agreed terms or the execution of letters of reliance in addition to those previously agreed, and the Consultant consents to such a request, these may be entered into and provided by the Consultant for such additional fee or other consideration as the parties may agree.
- The Consultant may, without prejudice to any other rights it may have, set off any liability of the Client to the Consultant against any liability of the Consultant to the Client.
- Ownership of Documents and Copyright
All Intellectual Property Rights which belong to the Consultant (including, without limitation, copyright in all documents, drawings, designs, specifications, material (including computer generated material) and models prepared by the Consultant or by others on its behalf in connection with the Project) shall, as the case may be, vest in or remain vested in the Consultant. The Consultant grants to the Client an irrevocable, freely assignable, non-exclusive, royalty free licence to use those Intellectual Property Rights for any purpose relating to the Project and the completed Project. Such licence shall enable the Client to use the Intellectual Property Rights for the duration of the Project but shall not extend to the reproduction of designs contained therein for any extension of the Project. In the event of the Client being in default of payment of any fees or other amounts due under this Agreement, the Consultant may suspend the licence granted herein on giving seven days’ written notice until all such fees have been paid.
The Consultant shall not be liable for the use by any person of any of the Consultant’s Intellectual Property Rights for any purpose other than that for which the same were originally prepared by or on behalf of the Consultant.
- The Consultant shall not, without the written consent of the Client, publish alone or in conjunction with any other person any articles, photographs or other illustrations relating to the Project.
- Save as may be necessary in the performance by the Consultant of the Services under this Agreement, as the Client may allow in writing, or as may be required by law, court order or any governmental or regulatory authority, the Consultant shall treat as confidential all information relating to this Agreement and the Project, and shall take all reasonable steps to see that any DP9 Entity does likewise; but the foregoing shall not apply to any Documents or other materials, data or other information which are in public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of a DP9 Entity.
- The parties agree that neither of them will use the other’s name, trademarks, service marks, logos, trade names or branding without prior written consent.
- Termination and Suspension
- The Client may terminate the appointment of the Consultant at any time by giving no less than two weeks’ written notice in respect of all or any part of the Services.
- The Client may at any time by written notice require the Consultant to suspend the performance of all or any part of the Services. On giving written notice of suspension of all or any part of the Services the Consultant shall cease such suspended Services in an orderly and economical manner compatible with a possible order to restart. If the suspension of the performance of all or any part of the Services exceeds six months in aggregate the Consultant may by giving four weeks’ written notice treat the Project (or that part of the Project) as having been abandoned and the appointment of the Consultant in respect of all or any part of the Services affected shall be automatically terminated.
- If circumstances arise for which the Consultant is not responsible and which it considers make it irresponsible for it to perform all or any part of the Services the Consultant shall be entitled to terminate its appointment by two weeks’ written notice in respect of all or such part of the Services.
- Upon the occurrence of any circumstance beyond the control of the Consultant which is such as to prevent or significantly impede the performance by the Consultant of the Services under this Agreement, the Consultant may without prejudice to any other remedy and upon not less than four weeks’ written notice suspend for a period of up to twenty-six weeks the performance of the Services in respect of all or such parts of the Project as are affected and at the expiry of the said period of suspension either continue with the performance of the Services under this Agreement or if the Consultant is still prevented from performing such Services for reasons beyond its control terminate its appointment forthwith by a further written notice in respect of all or any part of the Services affected.
- In the event that any invoice is unpaid (whether in whole or in part) by the Client in accordance with this Agreement and remains unpaid for 28 days after written notification of non-payment by the Consultant to the Client the Consultant may terminate its appointment upon written notice.
- Where the Consultant is providing services to the Client for more than one project, if a final bill is not settled in accordance with this Agreement, the Consultant reserves the right to withdraw from providing services to the Client in relation to all current projects. the Consultant may also withdraw from providing services to the Client if a bill is overdue from the Client or anyone connected with the Client under any other project (and “connected” in this Agreement means a person or company controlled by, controlling or under common control with the Client).
- The appointment of the Consultant may be terminated in the event of Insolvency of either party. Notice of termination must be given to the party which is insolvent by the other party.
- If any of the Services are suspended pursuant to this clause 7, the Consultant shall be entitled reasonably to vary its fees for the resumed performance of the Services.
- Termination of the Consultant’s appointment under this Agreement shall not prejudice or affect the accrued rights or claims of either party to the Engagement Letter.
- The Consultant’s fees will be charged on the basis set out in the Engagement Letter or as otherwise notified to the Client.
- The Consultant reserves the right to call on such other specialists as the Consultant may deem necessary for the provision of the Services and the Consultant shall advise the Client of their respective hourly rates if requested to do so by the Client.
- The Consultant’s hourly rates are reviewed each year and the Consultant shall inform the Client of any changes upon the prior written request of the Client.
- Notwithstanding the existence of any arrangement pursuant to which a third party agrees to discharge the fees in relation to the work undertaken for the Client, the Client acknowledges and agrees that it shall remain jointly and severally responsible for the fees, charges and expenses payable in accordance with this Agreement.
- The Consultant reserves the right to charge the Consultant’s expenses incurred in performing the Services in accordance with the Engagement Letter. Unless otherwise agreed, expenses shall be payable in addition to the Consultant’s fees (whether included in an invoice together with those fees or not) and the Consultant reserves the right to charge those expenses to the Client without the need for prior authorisation from the Client. The Consultant’s expenses shall comprise those payments reasonably and properly made by the Consultant for such things as printing, reproduction and purchase of documents, maps, records and photographs, courier charges, fax charges, postage and delivery charges, travelling, hotel expenses and subsistence payments and any other expenses for which repayment is authorised by the Client.
- The timing for payment of fees and expenses shall be of the essence. Payments due to the Consultant under this Agreement shall become due for payment on submission of the Consultant’s invoice and the final date for payment shall be 28 days thereafter. Without prejudice to any other rights that the Consultant may have, interest shall be added to all amounts remaining unpaid thereafter at the rate of 3% above the base rate of The Royal Bank of Scotland from time to time calculated on a daily basis from the date of the relevant invoice until the date of payment in full.
- If the Consultant has to carry out additional work suffers disruption in the performance of the and/or Services due to reasons beyond the control of the Consultant or as a result of the Client’s instructions, the Client shall make an additional payment to the Consultant in respect of the additional work carried out and additional resources employed and/or the disruption suffered, such additional payment to be agreed between the Client and the Consultant acting reasonably. For the avoidance of doubt it is hereby agreed that if the Consultant carries out any work which subsequently becomes redundant, or if the Consultant’s appointment is terminated or suspended in accordance with the provisions of clause 7, the Client shall (unless otherwise agreed) pay the Consultant either on the basis of a proportion of the fees agreed under the Engagement Letter or on the basis of time-based fees, at the discretion of the Consultant.
- All sums charged in connection with the Services, including expenses and disbursements, will be stated exclusive of any taxes. The Client will be responsible for paying any taxes arising from this Agreement for which it is legally liable as well as VAT at the rate in force at the date the liability arises.
- For any unpaid costs the Consultant will have a right to exercise a lien over all documents, drawings, designs, specifications, material (including computer generated material) and models prepared by the Consultant or by others on its behalf in connection with the Project.
Neither party shall, without the prior written consent of the other, offer employment to or solicit the other’s personnel who within six months of such action has been directly involved in the Services or otherwise connected to this Agreement (except where an individual responds directly to a general recruitment campaign).
- Conflicts of Interest
- The Consultant undertakes the Services on the understanding that it shall not be precluded thereby from providing services to any other client in any other matter (now or in the future), even if such services may be for a client with interests different from or in conflict with the Client’s interests and the Consultant shall be entitled to retain any remuneration from such services.
- The Client agrees that no DP9 Entity has any duty to disclose any matter which comes to its notice in the course of its work if doing so would constitute a breach of duty owed to other persons, save as otherwise required by law or applicable regulation.
- The Client shall be entitled to assign or transfer the benefit of the Agreement at any time, subject to such reasonable objections the Consultant may have where the Consultant can demonstrate to the Client that the Consultant has a current or ongoing claim or dispute against the assignee which would create a conflict of interest.
- Save as otherwise provided in this clause, the Consultant shall not, without the written consent of the Client (which consent shall not unreasonably be delayed or withheld), assign or transfer any benefit or obligation under this Agreement.
- Either party may assign or transfer any benefit or obligation under this Agreement to a successor or a member of its Group. The assignor shall procure that such assignee assigns any rights assigned to it in accordance with this clause back to the assignor or another member of the assignor’s Group immediately before it ceases to be a member of the assignor’s Group.
- In this Agreement:
- references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced; and
- any services performed by the Consultant for the Client in connection with the Project shall be treated as having been performed under this Agreement, which supersedes any previous agreement between the parties with regard to the same.
- Save in relation to the DP9 Entities and any subcontractors or consultants of the Consultant as set out herein, nothing contained in this Agreement is intended to confer on any person any right which that person would not otherwise have had but for the Contracts (Rights of Third Parties) Act 1999.
- This Agreement is subject in all respects to the law of England and Wales and the Courts of England and Wales shall have exclusive jurisdiction with regard to all matters arising under or in connection with it.
- If any court or competent authority finds that any provision this Agreement (or part of any provision) is illegal, invalid or unenforceable that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
- Failure or delay by either party in enforcing or partially enforcing any provision of this Agreement will not be construed as a waiver of any of its rights under this Agreement. Any waiver by either party of any breach of, or any default under, any provision of this Agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the other provisions of this Agreement.
- Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.