SKK Design – Standard Terms and Conditions
14 January 2019
Please read the following important terms and conditions before you ask to buy services from us and check that they contain everything which you want and nothing that you are not willing to agree to.
Summary of some of your key rights:
|The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 say that in most cases, you can cancel this agreement within 14 days. If you agree the service will start within this time, you may be charged for what you’ve used.
The Consumer Rights Act 2015 says:
you can ask us to repeat or fix the service if it’s not carried out with reasonable care and skill, or get some money back if we can’t fix it
if a price hasn’t been agreed upfront, what you’re asked to pay must be reasonable
if a time hasn’t been agreed upfront, the service must be carried out within a reasonable time
This is a summary of some of your key rights. For detailed information from Citizens Advice please visit www.citizensadvice.org.uk or call 03454 04 05 06.
The information in this summary box summarises some of your key rights. It is not intended to replace the agreement below, which you should read carefully.
This contract sets out:
- your legal rights and responsibilities
- our legal rights and responsibilities, and
- certain key information required by law
In this contract:
‘We’, ‘us’ or ‘our’ means SKK Design, a trading name of Senkenken Limited, and
‘You’ or ‘your’ means the person buying services from us
If you don’t understand any of this contract and want to talk to us about it, please speak with our representative or contact us by:
e-mail: firstname.lastname@example.org, and telephone: 01279 873010
Who are we?
|We are registered in England and Wales under company number: 03780616
Our registered office is at: The Mill Stortford Road, Hatfield Heath, Bishop’s Stortford, Hertfordshire, CM22 7DL
Our VAT number is: 724975404
If you buy services from us you agree to be legally bound by this contract.
You may only buy services from us for non-business reasons.
When buying any services you also agree to be legally bound by specific terms which apply to certain services, for example our Letter of Appointment. Where this is the case, we shall supply you with a copy of the specific terms, which form part of this contract as though set out in full here.
Information we give you
By law, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 say that we must give you certain key information before a legally binding contract between you and us is made (see the summary box below). We will give you this information in a clear and understandable way. Typically, our representative will give you this information on paper before you buy the services from us. Some of this information is also set out in this contract, such as information on our complaint handling policy.
Information we will give you:
|the main characteristics of the services you want to buy
who we are, where we are based and how you can contact us
the total price of the services including any taxes (or where this cannot reasonably be worked out in advance, the manner in which we will work out the price)
the arrangements for payment, carrying out the services and the time by which we will carry out the services
how to exercise your right to cancel the contract and the costs of doing so
our complaint handling policy
how long the contract is for and how to end it
If we have to change any key information once a legally binding contract between you and us is made, we can only do this if you agree to it.
Your privacy and personal information
Definitions and Interpretation etc.
Where defined terms are used in this Agreement they are distinguished by an initial capital letter. The following definitions apply to all documents compromising this Agreement and are in addition to those set out elsewhere in this Agreement.
Brief means the latest statement of requirements for the Project issued or approved by you:
At inception, any initial statement by you
After clarification of the objectives, requirements or timelines – an updated Brief; and
Any subsequent development into the Project Brief.
The Brief shall include any information or drawings prepared by or on behalf of us and approved by you during the development of the Brief.
Collaborate means to co-operate with and to provide to or receive from Other Persons information reasonably necessary, as and when requested, for performing the Services or for such Other Persons to carry out their work or services, to consider and, where competent to do so, to comment on such information.
Confidential information means all information relating to your and our business and affairs which either party directly or indirectly acquires from the other party or any representative of the other party either in writing or verbally.
Construction Cost means:
Your target cost for constructing the Project as specified in the Project Data or where no such amount is specified a fair and reasonable amount; or subsequently
The latest professionally prepared estimate approved by you; or where applicable
The actual cost of constructing the Project upon agreement or determination of a final account for the Project; and,
Includes (without limitation):
- The cost as if new of any equipment and/or materials provided or to be provided by you to a contractor for installation or use during construction of the project;
- Any direct works carried out by or on behalf of you; and provision for contractor’s profit and overheads.
- Value Added Tax
- Our Fees
- The costs of resolution of any dispute
- Your legal and in-house expenses
- Any loss and/or expense payments paid to a contractor
- Any adjustments for any liquidated damages deducted by you.
Fee Proposal means the document issued by us prior to commencing the Services which sets out the Services and the fees payable by you to us for the Services.
Letter of Appointment means the letter issued by us prior to commencing the Services and which sets out the details of the Project and the Services.
Other Person means any person, company or firm, other than us or any of our sub-consultants, including but not limited to consultants, sub-contractors, specialists statutory bodies or undertakers, approving or adopting authorities, who have performed or will perform work or services in connection with the Project.
Project is defined in the Project Data
Project Data means the matters set out in the ‘Letter of Appointment’, which may be varied by agreement.
Services means the services to be performed by us as specified in the Fee Proposal which may be varied by agreement.
Timetable means your initial programme for performance of the Services as specified in the Project Data, or where no such programme is specified it shall be a fair and reasonable period. Subsequently, the timetable shall be the latest programme issued to you. We shalll develop and agree a timetable with you.
The headings and notes to the Conditions are for convenience only and do not affect interpretation, Words denoting natural persons include corporations and firms and vice versa.
Any notice or other document required under this Agreement shall be in writing and given or served by any effective means to the address of the recipient specified in this Agreement or such other address, including a postal address, fax number or email address notified to the other party.
Communications between you and us that are not notices or documents may be sent to any other address, including an e-mail address, notified by any other party as appropriate address for specific communications. Communications take effect on receipt, but if not in writing are of no effect unless and until confirmed in writing by the sender or the other party.
Communications sent by special delivery or recorded delivery shall be deemed (subject to proof to the contrary) to have arrived at the appropriate address on the second working day after posting.
Where under this agreement an action is required within a specified period of days from a specified date, that period commences immediately after that date. The period shall include Saturdays and Sundays but shall excluded any day that is a public holiday.
The provisions of this Agreement are without prejudice to the respective rights and obligations of the parties and continue in force as long as necessary to give effect to such rights and obligations.
This Agreement is subject to the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
Application of these terms and conditions
These terms and conditions apply to any Services provided by us to you. They supersede any previously issued terms and conditions of purchase or supply.
No terms or conditions endorsed on, delivered with, or contained in your order, confirmation of order, specification or other document shall apply to the Services except to the extent that we otherwise agree in writing.
No variation of these terms and conditions or to a Letter of Appointment shall be binding unless expressly agreed in writing by a duly authorised representative on behalf of us.
Each request by you to us to supply services shall be an offer to purchase Services subject to these terms and conditions.
We may accept or reject a request for services at its discretion. No binding obligation to supply any services shall arise, until the Letter of Appointment has been issued by us.
Our obligations and authority
Duty of care
We shall exercise reasonable skill care and diligence in accordance with the normal standards of our profession in performing the Services and discharging all the obligations under this contract.
Duty to inform
We shall periodically keep you informed of progress in the performance of the Services and of any issue that may materially affect the Brief, the Construction Cost, the Timetable, or the quality of the Project. We shall inform you upon becoming aware of:
- A need to appoint Other Persons, other than those named in the Project Data, to perform work or services in connection with the Project; and/or
- Any information, decision or action required from you or others in connection with performance of the Services.
We shall act on behalf of you in the matters set out or necessarily implied in this Agreement or in project procedures agreed with you from time to time, but has no authority, without your prior approval:
- to enter into any contractual or other commitment on behalf of you;
- to terminate the employment of Other Persons appointed by you; or
- to make or cause to be made any significant alteration to or addition to or omission from the Services or the approved design.
In the event of an emergency, we may issue instructions to a contractor to prevent danger to persons or material damage to the Project without your prior approval, and shall confirm such action in writing to you without delay.
Our Representative shall have full authority to act on our behalf for all purposes in connection with performance of the Services but not to vary the terms of the Agreement.
We shall have the right to publish photographs of the Project, and you shall give reasonable access to the Project for this purpose for 6 months after Practical Completion (that is the point of handover of the scheme to you) of the construction works.
We shall obtain the consent from you, which consent will not be unreasonably withheld or delayed, before publication of any other information about the project, unless reasonably necessary for performances of the Services.
We shall not disclose to any other person Confidential Information unless:
- disclosure is necessary for the proper performance of the Services, or in order to take professional advice in relation to this Agreement or the Services, or in order to obtain/maintain insurance cover as required by this Agreement.
- it is in the public domain other than due to wrongful use or disclosure; or
- disclosure is required by law or because of disputes arising out of or in connection with this Agreement.
Your obligations and authority
Your Representative shall have the full authority to act on your behalf for all purposes in connection with the matters set out in this Agreement but not to vary the terms of the Agreement.
Information, decisions & approvals
You shall supply an initial statement of your requirements and shall advise the relative priorities of your requirements, i.e. the Construction Cost, Timetable or Quality of Design.
You shall provide, free of charge, all the information which is necessary for the proper and timely performance of the Services and we shall be entitled to rely on such information. This includes but is not limited to accurate .dwg format building plans depicting As Built required information. You shall ensure that all such information is accurate and complete.
You shall give decisions and approvals and shall take such actions necessary for the proper and timely performance of the Services.
You (or the lead consultant, or other consultants designated by you) may issue reasonable instructions to us.
Where we have responsibility to direct and/or co-ordinate the work or Services of or give instructions to Other Persons, such instructions shall be issued only through us and we shall not be responsible for any instructions otherwise.
Applications for consent
You shall instruct the making of applications for consents under planning legislation, building acts, regulations or other statutory requirements and others having an interest in the Project. You shall pay any statutory charges and any fees, expenses and disbursements in respect of such applications.
Appointment of Other Persons
Where work or services, other than those to be performed by us are required, you shall appoint and pay Other Persons under separate agreements to perform such work, services or products and shall require them to Collaborate with us. Such Other Persons shall include Site Inspectors or Clerks of Works.
You shall confirm in writing to us the services to be performed by Other Persons, their disciplines and the expected duration of their services.
You acknowledges that we do not warrant the competence, performance, work, services, products or solvency of any such Other Persons.
You shall hold the contractor appointed to undertake construction works and not us responsible for the management and operational methods necessary for the proper carrying out and completion of the construction works in compliance with the building contract or contracts.
Time and Cost
You acknowledge that we do not warrant:
that the statutory approvals from third parties will be granted at all, or if granted, will be granted in accordance with any anticipated time-scale; or without planning conditions requiring discharge.
compliance with the Construction Cost and/or the Timetable, which may need to be reviewed for such matters as, but not limited to:
approved variations arising from design development or requested by yout; delays caused by any Other Person; and/or any other factors beyond our control.
You shall procure such legal advice and provide such information and evidence as required for the resolution of any dispute between you and any other parties in connection with the Project.
You shall not disclose to any Other Person Confidential Information unless:
- disclosure is necessary to take professional advice in relation to this Agreement or the Services;
- it is in the public domain other than due wrongful use or disclosure; or
- disclosure is required by law or because of disputes arising out of or in connection with this Agreement.
Assignment and sub-contracting
Neither we nor you shall at any time assign the benefit of this Agreement or any rights arising under it without prior written consent of the other, which consent shall not be reasonably withheld or delayed.
With your consent , which consent shall not be unreasonably withheld or delayed, we may appoint a sub-consultant or sub-consultants to perform part of the Services. Any such sub-contracting shall not relieve us of responsibility for carrying out and completing the Services in accordance with this Agreement. Such consent shall not be required in respect of agency or self-employed staff.
If during the performance of the Services it is our opinion that it would benefit you, we may recommend that you appoint Other Persons with appropriate knowledge and experience to perform part of the Services. If you agree to make such an appointment, it shall be made without undue delay. On such appointment the you shall give written notice to us and we shall be relieved of responsibility and liability for that element of Services.
We shall collaborate with such Other Persons.
Fees, disbursements and expenses
Calculation of fees
The fees for performance of the Services and/or any additional services shall be calculated in accordance with this clause and as specified in the Fee Proposal or within the Letter of Appointment.
The Basic Fee for performance of the Services shall be:
Where the Project is for the design and monitoring of construction works, including the specified number of site visits during the construction period:
- a lump sum of sums in accordance with clause ‘Lump Sums’; and/or time charges in accordance with clause ‘Time Charges’; and/or any combination of these; and/or another agreed method, all as set out in the Fee Proposal or within the Letter of Appointment.
For performance of Other Services specified in the Fee Proposal, but not included in the Basic fee, the fee for each service shall be:
- a lump sum or sums in accordance with clause ‘Lump Sums’; and/or
- time charges in accordance with clause ‘Time Charges’; and/or
- another agreed method.
All as set out in the Fee Proposal or contained within the Letter of Appointment
Where this clause applies, the Basic Fee shall be:
- the lump sum or lump sums specified in the Letter of Appointment; or
- a lump sum or lump sums for each work stage calculated by applying the specified percentages to the Construction Cost for the developed design equivalent to that current at the end of RIBA Stage 3 (developed design stage); or
- a lump sum for each work stage calculated by applying the relevant specified percentage to the Construction Cost current at the end of the previous stage.
Where this clause applies, the time-based fee shall be ascertained by multiplying the time reasonably spent in the performance of the Services by the specified hourly or daily rate (refer rates quoted in the Fee Proposal) for the relevant personnel. Time ‘reasonably spent’ includes the time spent in connection with performance of the Services and in time travelling from and returning to our office. Time charge rates are fixed for the duration of a Project.
The Basic Fee:
- shall be adjusted including due allowance for any loss and/or expense if:
- material changes are made to the Brief and/or the Construction Cost and/or the Timetable
Where we, for reasons beyond our reasonable control, incur extra work or loss and expense for which we would not otherwise be remunerated, we shall be entitled to additional fees calculated on a time basis as set out in clause ‘Time Charges’ unless otherwise agreed. Matters in relation to which we shall be entitled to additional fees include but are not limited to circumstances where:
- We are required to vary any item of work commenced or completed pursuant to this Agreement or to provide a new design after you have authorised us to develop an approved design.
- the nature of the Project required that substantial parts of the design cannot be completed or must be specified provisionally or approximately before construction commences;
- performance of the Services is delayed, disrupted or prolonged; (such as extended contract periods)
- We are required to carry out work to drawings, specification and schedules post tender to revise the approved design
We shall inform you on becoming aware that this clause ‘Additional Fees’ will apply. This clause ‘Additional Fees’ shall not apply where any change or extra work or expense arise from a breach of this Agreement by us
If we consent to enter into any supplementary agreement, the terms of which are agreed by us after the date of this Agreement, we shall be entitled to payment of our reasonable costs of so doing, including but not limited to legal advice.
Tender not accepted
Where we are instructed by you to invite a tender or tenders for work or services in connection with the Project but no tender is made or accepted, we shall be entitled to fees due up to and including RIBA Work Stage 4 (technical design stage) applied to the Construction Cost of that part of the Project relating to the said work or services current at the date of invitation to tender.
Expenses and disbursements
You shall reimburse us for expenses in the manner specified in the Fee Proposal.
Any planning fees, Building Control/ Approved Inspector fees, Principal Designer fees, Structural Engineer fees, utility searches, building contracts, etc. related to the Project are not our responsibility.
We shall maintain records of time spent on Services performed on a time basis for the purpose of verifying charges under clause ‘Time Charges’ and shall in addition maintain records or any expenses and disbursements to be reimbursed at net cost. We shall make such records available to you on reasonable request.
Payment under this Agreement shall be made as follows:
- As detailed in our Letter of Appointment
- Payment shall become due to us on the date detailed on our invoice.
- We may submit the final account for fees and any other amounts due when we reasonably considers the Services have been completed.
- Failure to pay may result in suspension of Services without further notice.
- Payments over 14 days will be charged interest at 8% over bank base rate.
You shall give a written notice to us:
within 7 days of the date of issue of an account specifying the amount you propose to pay and the basis of calculation of that amount; and
- In the event of non-payment of any amount properly due to us under this Agreement, we are entitled to interest on the unpaid amounts under the provision of clause ‘Late Payment’, may suspend use of the licence under the provisions of the clause ‘Copyright and Use of Information’, may suspend or terminate performance of the Services and any other obligations under this Agreement, or may commence dispute resolution procedures and/or debt recovery procedures)
- If no such notices are given the amount due shall be the amount stated as due in the account. You shall not delay payment of any undisputed part of the account.
- Within 7 days before the final date for payment of any amount due to us if the you intend to withhold payment of any part of that amount stating the amount proposed to be withheld and the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it.
You shall not withhold any amount due to us under this Agreement unless the amount has been agreed with us. All rights of set-off at common law or in equity which you would otherwise be entitled to exercise are expressly excluded. All payments under this Agreement shall be made in full without discount, deduction, set-off or counterclaim whatsoever.
Payment on suspension or termination
If we or you issue a notice under clause ‘Suspension or termination’ suspending performance of any or all of the Services or terminating performance of the Services and/or other obligations, we shall issue an account or accounts on the expiry date of the notice or as soon as reasonably practicable and we shall be entitled to:
- payment of any part of the fee and other amounts properly due on the expiry of the notice; and
- payment of any licence fee due under clause ‘Copyright and use of information’; and
- reimbursement of any loss and/or expense properly and necessarily incurred by us by reason of the suspension or the termination save where you give notice of suspension or termination by reason of the material or persistent breach of the Agreement by us.
If the reason for suspension is remedied, we shall be entitled to reimbursement of the reasonable costs of resumption of performance of the Services and other obligations.
In the event that any amounts are not paid by the you or us when properly due, the payee shall be entitled to simple interest on such amounts until the date that payment is received at the daily rate equivalent to 8% over the dealing rate of the Bank of England Rate current at that date that payment becomes overdue, together with such costs reasonably incurred and duly mitigated by the payee (including costs of time spent by principals, employees and advisors) in obtaining payment of any sums due under this Agreement.
The payee’s entitlement to interest at the specified rate shall also apply in respect of any amounts that are awarded in adjudication, arbitration or legal proceedings.
In addition to the fees and expenses, you shall pay any Value Added Tax chargeable on our fees.
Copyright and use of information
We shall own the copyright in the original work produced in the performance of the Services and we generally assert our moral rights to be identified as the author of such work.
No part of any design by us may be registered by you without the our consent in writing.
Use of information
You shall have a licence to copy and use and allow Other Persons providing services to the Project to copy and use drawings, documents, bespoke software and all other such work produced by or on behalf of us in performing the Services, hereinafter called the ‘Material’.
The Material may be used for the construction of the Project and for the operation, maintenance, repair, reinstatement, alteration, promotion, leasing and/or sale of the Project. The Material may not be used for reproduction of the design for any part of any extension of the Project, and/or for any other project except on payment of a licence fee specified in this Agreement or subsequently agreed.
We shall not be liable if the Material is modified other than by or with the our consent or used for any purpose other than the purposes for which it was prepared.
- if it is intended to make any permitted use after that date of the last Service performed under this Agreement:
We, following a request from you, shall confirm the degree of completion of the Material.
Email correspondence will be deemed to constitute a written instruction from us and/or you.
Right to cancel this contract
You have the right to cancel this contract within 14 days without giving any reason.
The cancellation period will expire 14 days after the conclusion of the contract.
To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear statement (eg a letter sent by post or email). You can use the model cancellation form set out in the box below, but it is not obligatory.
To SKK Design:
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract for the supply of the following service [*],
Ordered on [*]/received on [*],
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
[*] Delete as appropriate
To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired
We will wait until the 14-day cancellation period in this clause is over before we start to carry out the services, unless:
- you want us to carry out the services during the 14–day cancellation period;
- we have agreed to do so, and
- you have signed a written confirmation (a copy of which is set out in the box below) and given it to our representative or sent it to our representative by email (if you do this, the written confirmation which you sign will form part of this contract as though set out in full here)
Written confirmation to start carrying out the services within the 14-day cancellation period
|Confirmation to start work early:
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 say that in most cases, you can cancel the contract within 14 days. This may happen because you change your mind.
By signing this written confirmation and giving it to our representative, you agree that, on your request, we can start to carry out the services during the 14–day cancellation period.
You still have a right to change your mind and cancel the contract during the 14–day cancellation period, however, we will charge you for the cost of the services carried out by us until the time when you tell us that you want to cancel the contract. The amount we charge you will be in proportion to what we have carried out, in comparison with the full coverage of this contract.
You acknowledge, however, that you will lose the right to change your mind and cancel the contract during the 14–day cancellation period once the services have been fully carried out by us. If this happens, we will charge you for the full cost of the services carried out by us.
To SKK Design
I/We [*] hereby give notice that I/We [*] request you to supply the following service [*] on the following date [*]
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s),
[*] Delete/ insert details as appropriate
Effects of cancellation
If you cancel this contract, we will reimburse to you all payments received from you except where we are allowed to keep such payments such as where we have started carrying out the services within the 14–day cancellation period and you have signed our written confirmation to start carrying out the services within the 14–day cancellation period’ (see above).
We will make the reimbursement without undue delay, and not later than 14 days after the days on which we are informed about your decision to cancel this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
Nature of the services
The Consumer Rights Act 2015 gives you certain legal rights (also known as ‘statutory rights’), for example:
- the services are carried out with reasonable care and skill
- you must pay a reasonable price for the services, and no more if you and we haven’t fixed a price for the services, and
- we must carry out the services within a reasonable time if you and we haven’t fixed a time for the services to be carried out
Your legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’), are set out at the top of this contract. They are a summary of some of your key rights. For more detailed information on your rights and what you should expect from us, pleas contact us using the contact details at the top of this page.
Nothing in this contract affects your legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’). You may also have other rights in law.
Liability and insurance
Limit of liability
The extent of the parties’ liability under or in connection with this Agreement and the Services (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.
Except for any legal responsibility that we cannot exclude in law (such as for death or personal injury) or arising under applicable laws relating to the protection of your personal information, we are not legally responsible for any:
- were not foreseeable to you and us when the contract was formed
- that were not caused by any breach on our part
- business losses
- losses to non-consumers
Our total liability to you shall not exceed the sum of £5,000,000.
No employee of SKK Design, including any officer or Director of a company or a member of a limited liability partnership or any agent of SKK Design, shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services.
Without prejudice to the provisions of clause ‘Limit of Liability’, our liability shall not exceed such sum as it is just and equitable for us to pay having regard to the extent of our responsibility for the loss and/or damage in question and on the assumptions that:
- all other consultants and contractors providing work or services for the Project have provided to you contractual undertakings on terms no less onerous than ours under this Agreement;
- there are no exclusions of or limitations or liability nor joint insurance or co-insurance provisions between you and any other person referred to in this clause; and
- all the persons referred to in this clause have paid to you such sums as it would be just and equitable for them to pay having regard to the extent of their responsibility for that loss and/or damage.
Professional indemnity insurance
We shall maintain for the term of this Agreement professional indemnity insurance with a limit of indemnity of not less than £5,000,000 provided such insurance continues to be offered on commercially reasonable terms to us at the time when the insurance is taken out or renewed.
Such insurance will be:
- limited to the amounts (if any) specified above as in the aggregate in any year of insurance; and
- subject only to such other limitations, exceptions and exclusions as are commonly included in such policies.
We, when reasonably requested by you, shall produce for inspection a broker’s letter or certificate confirming that such insurance is being maintained.
We shall inform you if such insurance ceases to be available at commercially reasonable terms or subsequent to the date of this Agreement an aggregate limit applies to any matters other than those specified in the Project Data in order that we and you can discuss the best means of protecting our respective positions.
Collateral warranties, third party rights schedules and contractor agreements
Where required by scheme funders collateral warranties can be arranged subject to further understanding of the requirements and additional costs.
Where it is specified in the Project Data:
- that a Third Party Rights Schedule in favour of funders, purchasers or first tenants is applicable and appended to this Agreement, the rights of such third parties shall come into effect
- that a supplementary agreement is applicable under which we are to provide services to a contractor appointed by you to complete the design and construction of the Project, and such agreement is appended to this Agreement, we shall enter into such agreement with you and the contractor appointed to complete the design and construction of the project within a reasonable period of being requested to do so by you, providing that all fees and other amounts due have been paid and the terms of such agreement are no less onerous to us than the terms of this Agreement.
Rights of third parties
Except for the rights conferred by above clause, nothing in this Agreement shall confer or is intended to confer any right to enforce any of its terms on any person who is not a party to it other than lawful assignees.
Suspension or termination
The circumstances which may give rise to suspension of the Services are:
- You giving not less than 7 days’ notice to us specifying the Services affected.
- You giving not less than 7 days’ notice to us of the intention and stating the reasons for doing so in the event:
- that you fail to pay any fees or other amounts due by the final date for payment;
- that you are in material or persistent breach of the obligations under this Agreement; or
- that we are prevented from or impeded in performing the Services for reasons beyond our reasonable control.
- We shall cease performance of the Suspended Services and/or other obligations in an orderly and economical manner on expiry of the notice period after receipt or giving of a notice of suspension.
- If the reason for a notice of suspension arises from a default:
- which is remedied within 28 days, we shall resume performance of the Services or other obligations within a reasonable period.; or
- which cannot be remedied or which is not remedied within 28 days by the defaulting party, the other party shall have the right to treat performance of the Services or other obligations affected as terminated on giving reasonable written notice.
- Where Services are suspended by you on notice and not resumed within 6 months we shall have the right to treat performance of the Services and/or other obligations affected as terminated without further notice.
- Any period of suspension arising from a valid notice given under this clause shall be added to the latest Timetable for completion of the relevant Services.
The provisions for termination are:
- You or we may by giving reasonable notice to the other terminate performance of the Services and/or other obligations, stating the reasons for doing so and the Services and obligations affected.
- Performance of the Services and/or other obligations may be terminated immediately by notice from either party if:
- the other party commits an act of bankruptcy or is subject to a receiving or administration order, and/or goes into liquidation, and/or becomes insolvent, and/or makes any arrangements with creditors; or
- We become unable to perform the Services through death or incapacity.
- On termination of performance of the Services and/or other obligations, a copy of the Material not previously provided to you shall be delivered on demand to you by us, subject to the terms of the licence under Clause ‘Use of Information’ and payment of any outstanding fees and other amounts due plus our reasonable copying charges.
Termination, suspension or expiry of this Agreement for any reason shall not affect any accrued rights and liabilities of either party at any time up to the date of termination, suspension or expiry.
Complaints and Dispute resolution
Any complaint regarding the Services should be made in writing to our Directors at the time that it arises. We shall address the complaint and resolve it promptly if possible, or a detailed response will be made within 10 working days.
You and we may attempt to settle any dispute or difference arising under the Agreement by negotiation or mediation, if suitable, or either party may refer the matter to adjudication, arbitration or legal proceedings.
The Provisions for adjudication are:
- Where a dispute or difference is to be referred to adjudication, the parties shall agree who shall act as adjudicator.
- For the avoidance of doubt, the adjudicator may allocate between the parties the costs relating to the adjudication, including the fees and expenses of the adjudicator
This provision is ineffective unless it is confirmed in writing by the referring party to the other party and to the adjudicator after notice is given of the intention to refer the dispute to adjudication.
The Provisions for arbitration are:
Without prejudice to any right of adjudication, where in the Project Data an arbitration agreement is made and either party requires a dispute or difference (except in connection with the enforcement of any decision of an adjudicator) to be referred to arbitration then that party shall serve on the other party a notice of arbitration to that effect and the dispute of difference shall be referred to a person to be agreed between the parties or, failing agreement within 14 days of the date on which notice is served.
Where the law of England and Wales or Northern Ireland is the applicable law:
(a) You or we may litigate any claim for a pecuniary remedy which does not exceed £5000 or such other sum is provided by order under section 91 of the Arbitration Act 1996;
(b) in such arbitration the Construction Industry Model Arbitration Rules (CIMAR) current at the date of the reference shall apply; and
(c) the arbitrator shall not have the power referred to in Section 38(3) of the Arbitration Act 1996.
We shall operate in-house procedures to promptly handle complaints and disputes relating to specific project or performance matters.