The Employer’s attention is drawn in particular to the provisions of Clause 10 (Limitation of Liability).
These Terms and Conditions of Service will apply to and be incorporated into Quotations and the resultant contractual relationship between the Consultant and Employer.
In these Terms and Conditions of Service:
“Appointment” means the contract between the Consultant and the Employer as outlined in the Quotation and subject to these Terms and Conditions of Service;
“Business Days” means a day other than a Saturday, Sunday or public holiday;
“Consultant” means Firntec Limited (Company Number 13460282);
“Employer” means the person or entity engaging the Consultant’s Services;
“Project” shall have the same meaning as set out in the Quotation;
“Quotation” means the scope of work and fees provided to the Employer, which incorporate these Terms and Conditions of Service;
“Services” means the services set out in the scope of work in the Quotation.
1.1 The Consultant shall perform the Services in connection with the Project,
1.2 The Consultant may carry out such additional services as the Employer may reasonably request and subject to Clause 7 the Consultant shall be entitled to additional payment for services provided.
1.3 Where the Services includes scheduled visits to site, any rescheduling or cancellation requested by the Employer will require a minimum notice period of 7 Business Days otherwise the full site visit fee for the original scheduled site visit will remain payable.
2.1 In the performance of the Services and discharging all the obligations under or arising from the Quotation and/or this Appointment, the Consultant will exercise the reasonable skill, care and diligence to be expected of a Consultant experienced in the provision of such services for projects of a similar size, nature and complexity to the Project. Notwithstanding anything that may appear elsewhere to the contrary, whether under this Appointment or otherwise, the Consultant’s duties and obligations shall be deemed to be subject to the exercise of such reasonable skill, care and diligence and nothing contained in the Appointment or elsewhere shall be construed as imposing on the Consultant any greater duty than the exercise of such reasonable skill, care and diligence.
2.2 Subject to the duty of care at clause 2.1, the:
(a) The consultant shall proceed with the Services regularly and diligently; and
(b) comply with all statutory requirements in force at the time advice was given in the performance of the Services.
3.1 The Consultant where practicable shall keep the Employer properly informed on the progress and performance of the Services.
3.2 The Employer shall, if requested by the Consultant, supply to the Consultant in such time as may be reasonable having regard to the time and nature of any such request any necessary and relevant data and information in the possession of the Employer or which may only be obtained by the Employer. The Employer shall ensure that his decisions, instructions, consents or approvals on all matters properly referred to him shall be given in such reasonable time so as not to delay or disrupt the performance of the Services by the Consultant.
4.1 The Consultant shall comply with all reasonable instructions given by the Employer in writing under or in connection with the Appointment and/or the Services
To the extent that fees and other amounts properly due are paid under the Appointment the Consultant hereby grants the Employer an irrevocable royalty-free non-exclusive licence to use copy and reproduce all documents and information prepared by or on behalf of the Consultant in connection with the Project (whether in hard form or on computer aided disks or otherwise) (the “Documents”) for any purpose whatsoever connected with the Project including (without limitation) the execution, completion, extension, maintenance, letting, management, sale, advertisement, alteration, reinstatement and repair of the Project provided that the Consultant shall not be liable for any such use by the Employer of the Documents for any purpose other than that for which they were prepared or provided by on behalf the Consultant.
5.1 The Consultant shall not assign, charge or transfer the benefit of the Appointment without the Employer’s prior written consent (not to be unreasonably withheld).
5.2 The Employer shall be permitted to assign, charge or transfer the entire benefit of the Appointment with the Consultant’s prior consent (not to be unreasonably withheld).
6.1 The Consultant remuneration for the performance of the Services in accordance with the Appointment (the “Fee”) is set out in the Quotation, plus applicable value added tax and expenses.
6.2 The Employer shall pay the Consultant in accordance with the schedule of fees set out in the Quotation and the provisions of Schedule 1.
6.3 If the Employer wrongfully withholds any amount after the final date for payment that amount shall bear simple interest rate of 4% over the Bank of England base rate for the time being from the final date for payment to and including the date on which such amount is paid or discharged.
7.1 The Employer shall be entitled to instruct additional services under the Appointment (the “Additional Services”) consented by the Consultant.
7.2 In the event of any such Additional Services are instructed:
(a) the Employer will reimburse all reasonable costs which are necessarily and properly incurred by the Consultant (calculated where provided by reference to the hourly rates set out in the Quotation) plus expenses in carrying out any such Additional Services;
(b) they shall be deemed to be part of the Services for the purposes of the Appointment.
7.3 Any additional Services payable by the Employer shall be included in the next invoice following performance.
7.4 If the Consultant is required to modify and/or revise any completed designs, specifications or reports and / or is delayed or interrupted in the performance of the Services the Employer shall make an additional reasonable payment to the Consultant in the respect of any additional work carried out and additional resources employed plus expenses. The additional payment shall be calculated where provided in accordance with the schedule of hourly rates specified in the Quotation plus expenses and be payable at the next instalment date following such modification or delay.
8.1 The Consultant may terminate the Appointment at any time by giving 30 (thirty) Business Days’ notice in writing. The Employer may terminate the Appointment at any time by giving 90 (ninety) Business Days’ notice in writing.
8.2 The Consultant or Employer may immediately terminate the Appointment by giving written notice to the other party if:
(a) the other party is in material breach of its obligations under the appointment and fails to remedy such breach within 10 (ten) Business days of receiving written notice requiring it to do so; or
(b) the other party becomes insolvent as defined in section 113 of the Housing Grants, Construction and Regeneration Act 1996 or:
(i) 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 any of 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; or
(ii) applies to a court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986.
8.3 The Consultant may terminate performance of any or all of the Services and other obligations under the Appointment by giving the Employer at least 7 (seven) days’ written notice where:
(a) the Employer fails to pay any fees or other amounts due by the Final Date for Payment unless, where applicable, the Employer has given effective notice under Schedule 1 of the intention to pay less than the amount stated in the Consultant’s Payment Notice;
(b) the Consultant is prevented from or impeded in performing the Services for reasons beyond the Consultant’s control;
(c) force majeure;
(d) any other reasonable grounds for suspension or termination of the Appointment.
9.1 On termination in accordance with clause 8 of the Employer shall pay:
(a) any amount properly due for payment under the Appointment ast the date of termination together with any expenses and disbursements.
9.2 In addition to the foregoing if the Appointment is terminated:
(a) by the Employer in accordance with clause 8.1; or
(b) by the Consultant in accordance with clause 8.2 or 8.3;
9.3 Termination of the Appointment shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Appointment which existed at or before the date of termination.
9.4 If the performance of any or all of the Services and/or obligations is suspended, the Consultant shall be entitled to
(a) any amount properly due for payment under the Appointment at the date of suspension together with any expenses and disbursements; and
(b) a reasonable amount in respect of costs and expenses reasonably incurred as a result of such suspension and recommencement of the Services.
10.1 Subject to clause 10.2 and 10.3 the Consultant’s total aggregate liability under or in connection with the Appointment shall be limited to the Fee paid by the Employer under the Appointment. In addition to the foregoing the Consultant’s liability under or in connection with the Appointment shall also not exceed, in the aggregate, the amount, if any, recoverable by the Consultant against the claim or claims in question under the professional indemnity insurance taken out and maintained by it.
10.2 The Consultants liability is limited to direct losses only related to the reasonable cost of repair, renewal and / or reinstatement of the Project, to the extent that the Employer incurs that cost and to the proportion that would be just and equitable to require the Consultant to pay having regard to the extent of the Consultants responsibility for causing the same. The Consultant shall not be liable for other losses incurred.
10.3 No actions or proceedings for any breach of the Appointment shall be commenced by either party after the expiry of 6 (six) years from the date when the Consultant last performed Services under the Appointment or such earlier date as may be prescribed by law.
10.4 Each of the parties acknowledges that, in entering into the Appointment, it does not do so in reliance on any representation, warranty or other provision, except as expressly provided in the Appointment. For the avoidance of doubt, nothing in this clause 10 shall (nor is any provision of the Appointment intended by the parties to) limit or exclude any liability in any case of any matter for which liability cannot be limited or excluded by law.
10.5 For the avoidance of doubt, the Consultant shall not be held accountable for or have any design responsibility liability in relation to the Project. The Employer is to ensure that they carry out any necessary due diligence prior to incorporating or implementing such advice.
11.1 The Appointment supersedes any previous agreement and/or arrangement between the parties in respect of the Project or the Services (whether oral or written) and represents the entire understanding between the parties in relation to the Project and/or the Services. Any Services performed by the Consultant prior to the date of the Appointment in relation to the Project shall be deemed to have been carried out under the terms of the Appointment.
11.2 Save in relation to clause 7.1 all additions amendments and variations to the Appointment shall be binding only if in writing and signed by the duly authorised representatives of both of the parties. If any provision of the Appointment is declared to be invalid or unenforceable it shall not affect the validity or enforceability of the remaining provisions of the Appointment.
11.3 The Appointment does not intend to confer and does not confer on any third party any benefit or right to enforce any terms of the Appointment pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.4 The Appointment shall be governed by and construed in accordance with English law and the English courts shall have exclusive jurisdiction over any dispute or difference that may arise.
References in this Schedule 1 to a paragraph are references to such paragraph in this schedule.
2.1 The Consultant shall submit to the Employer written applications for payment in accordance with the Quotation. Such applications will be on a bi-monthly basis and shall set out what the Consultant considers is due on the Due Date (defined below) and the basis of which that sum is calculated. Such applications shall be in such form and with such supporting documentation as the Employer may reasonably require.
2.2 The due date of payment of any monies payable pursuant to the Appointment shall be the date of receipt by the Employer of the Consultants written application for payment of an instalment submitted in accordance with paragraph 2.1 (the Due Date).
2.3 Within five (5) days of the Due Date the Employer shall give notice of hte sum considered to have been due on the Due Date and the basis on which tat sum is calculated (the Payment Notice).
2.4 If the Employer does not issue a Payment Notice in accordance with paragraph 2.3 then the Consultant’s application for payment under paragraph 2.1 shall be treated as the Payment Notice.
2.5 The final date for payment of any sum payable pursuant to the Appointment shall be 14 days after the Due Date (the Final Date for Payment)
2.6 If the Employer wants to pay less than the amount stated in the Payment Notice, or if issued, the Pay Less Notice (defined below) by the Final Date for Payment (defined above)
2.7 Subject to paragraph 2.8, the Employer shall pay the amount stated in the Payment Notice or, if issued, the Pay Less Notice (defined below) by the Final Date for Payment (defined above).
2.8 In the event that the Consultant becomes insolvent (as set out in section 113(2), 113(3), 113(4) or 113(5) Housing Grants Construction and Regeneration Act 1996 (as amended)) the Employer does not have to pay any sum that has become due to the Consultant insofar as the Employer does not have to pay any sum that has become due to the Consultant insofar as the Employer has issued or shall issue a Pay Less Notice in accordance with paragraph 2.6 or if the Consultant becomes insolvent after the date on which the Pay Less Notice in relation to that sum could have been issued in accordance with paragraph 2.6.
2.9 Notwithstanding any other provision of the Appointment the Employer may in any subsequent payment delete, correct and / or modify any sum or sums previously paid.
3.1 Without prejudice to any other remedy or right the Consultant may have and provided that the Consultant gives the Employer at least seven (7) days’ notice of its intention to do so stating the ground or grounds on which the Consultant intends to suspend performance the Consultant may suspend performance of any or all of its obligations under the Appointment if the Employer does not pay any sum properly due and owing under the Appointment by the relevant Final Date for Payment. The Consultant’s right to suspend performance shall cease when the Employer makes payment in full of the relevant amount.
3.2 If the Consultant does suspend any or all of its obligations pursuant to paragraph 3.1 the Consultant shall be entitled to a reasonable amount in respect of costs and expenses reasonably incurred as a result of such suspension and recommencement of the Services.
Either the Consultant or the Employer may refer any difference or dispute arising under the Appointment at any time adjudication. Any such adjudication shall be governed by the Scheme set out in part 1 of the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998 (as amended).
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