Corporate Terms & Conditions

SKK Design Standard Terms and Conditions

14 January 2019

Definitions and Interpretation etc.

Definitions

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 the Client:

At inception, any initial statement by the Client

After clarification of the objectives, requirements or timelines – an updated Brief; and

Any subsequent development into the Brief.

The Brief shall include any information or drawings prepared by or on behalf of SKK Design and approved by the Client during the development of the Brief.

Client means the person or organisation who purchases the Services from the SKK Design and whose details are set out in the Letter of Appointment

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 the Client’s and SKK Design’s 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:

The Client’s 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 the Client; 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 the Client to a contractor for installation or use during construction of the project;
Any direct works carried out by or on behalf of the Client; and provision for contractor’s profit and overheads.

Excludes:

Value Added Tax
SKK Design’s Fees
The costs of resolution of any dispute
The Client’s legal and in-house expenses
Any loss and/or expense payments paid to a contractor
Any adjustments for any liquidated damages deducted by the Client.

Fee Proposal means the document issued by SKK Design prior to commencing the Services and which sets out the details of the Services and the fees payable by the Client for the Services

Letter of Appointment means the letter issued by SKK Design 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 SKK Design or any sub-consultant of SKK Design, 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 SKK Design specified in the Fee Proposal, which may be varied by agreement.

SKK Design means Senkenken Limited, a company registered in England and Wales with registration number 03780616 and whose registered office is at The Mill Stortford Road, Hatfield Heath, Bishop’s Stortford, Hertfordshire, CM22 7DL

Timetable means the Client’s 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 the client. SKK Design will develop and agree a timetable with the Client

Interpretation

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.

Communication

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 the Client and SKK Design 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.

Public Holidays

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.

Duration

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.

Applicable law

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 SKK Design to the Client. They supersede any previously issued terms and conditions of purchase or supply.

No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order, specification or other document shall apply to the Services except to the extent that SKK Design otherwise agrees 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 SKK Design.

Each request by the Client to SKK Design to supply services shall be an offer to purchase Services subject to these terms and conditions.

The Supplier 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 SKK Design.

Obligations and authority of SKK Design

Duty of care

SKK Design shall exercise reasonable skill care and diligence in accordance with the normal standards of SKK Design’s profession in performing the Services and discharging all the obligations under this condition.

Duty to inform

SKK Design will periodically keep the Client 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. SKK Design shall inform the Client 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 the Client or others in connection with performance of the Services.

SKK Design’s authority

SKK Design shall act on behalf of the Client in the matters set out or necessarily implied in this Agreement or in project procedures agreed with the Client from time to time, but has no authority, without the Client’s prior approval:

to enter into any contractual or other commitment on behalf of the Client;
to terminate the employment of Other Persons appointed by the Client; 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, SKK Design may issue instructions to a contractor to prevent danger to persons or material damage to the Project without the Client’s prior approval, and shall confirm such action in writing to the Client without delay.

SKK Design’s Representative

SKK Design’s Representative shall have full authority to act on behalf of SKK Design for all purposes in connection with performance of the Services but not to vary the terms of the Agreement.

Photography

SKK Design shall have the right to publish photographs of the Project, and the Client shall give reasonable access to the Project for this purpose for 6 months after Practical Completion of the construction works.

Publicity

SKK Design shall obtain the consent of the Client, which consent is not unreasonably withheld or delayed, before publication of any other information about the project, unless reasonably necessary for performances of the Services.

Confidentiality

SKK Design 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.

Obligations and authority of Client

Client’s representative

The Client’s Representative shall have the full authority to act on behalf of the Client 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

The Client shall supply an initial statement of the Client’s requirements and shall advise the relative priorities of the Client’s requirements, i.e. the Construction Cost, Timetable or Quality of Design.

The Client shall provide, free of charge, all the information which is necessary for the proper and timely performance of the Services and SKK Design 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. The Client shall ensure that all such information is accurate and complete.

The Client shall give decisions and approvals and shall take such actions necessary for the proper and timely performance of the Services.

Instructions

The Client (or the lead consultant, or other consultants designated by the Client) may issue reasonable instructions to SKK Design.

Where SKK Design has 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 SKK Design and SKK Design shall not be responsible for any instructions otherwise.

Applications for consent

The Client 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. The Client 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 SKK Design, are required, the Client shall appoint and pay Other Persons under separate agreements to perform such work, services or products and shall require them to Collaborate with SKK Design. Such Other Persons shall include Site Inspectors or Clerks of Works.

The Client shall confirm in writing to SKK Design the services to be performed by Other Persons, their disciplines and the expected duration of their services.

The client acknowledges that SKK Design does not warrant the competence, performance, work, services, products or solvency of any such Other Persons.

The client shall hold the contractor appointed to undertake construction works and not SKK Design 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

The Client acknowledges that SKK Design does 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 the Client; delays caused by any Other Person; and/or any other factors beyond the control of SKK Design.

Legal Advice

The Client shall procure such legal advice and provide such information and evidence as required for the resolution of any dispute between the Client and any other parties in connection with the Project.

Confidentiality

The Client 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

Assignment

Neither SKK Design nor the Client 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.

Sub-contracting

With the consent of the Client, which consent shall not be unreasonably withheld or delayed, SKK Design may appoint a sub-consultant or sub-consultants to perform part of the Services. Any such sub-contracting shall not relieve SKK Design 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.

Specialist services

If during the performance of the Services it is in SKK Design’s opinion that it would benefit the Client, SKK Design may recommend that the Client appoints Other Persons with appropriate knowledge and experience to perform part of the Services. If the Client agrees to make such an appointment, it shall be made without undue delay. On such appointment the Client shall give written notice to SKK Design, who shall be relieved of responsibility and liability for that element of Services.

SKK Design 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 contained within the Letter of Appointment.

Basic Fee

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 contained within the Letter of Appointment.

Other fees

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

Lump Sums

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.

Time Charges

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 SKK Design’s office. Time charge rates are fixed for the duration of a Project.

Fee adjustment

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

Additional fees

Where SKK Design for reasons beyond SKK Design’s reasonable control incurs extra work or loss and expense for which SKK Design would not otherwise be remunerated, SKK Design 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 SKK Design shall be entitled to additional fees include but are not limited to circumstances where:

SKK Design is required to vary any item of work commenced or completed pursuant to this Agreement or to provide a new design after the Client has authorised SKK Design 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)
SKK Design is required to carry out work to drawings, specification and schedules post tender to revise the approved design

SKK Design shall inform the Client 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 SKK Design

Supplementary agreements

If SKK Design consents to enter into any supplementary agreement, the terms of which are agreed by SKK Design after the date of this Agreement, SKK Design shall be entitled to payment of SKK Design’s reasonable costs of so doing, including but not limited to legal advice

Tender not accepted

Where SKK Design is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is made or accepted, SKK Design 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 it relating to the said work or services current at the date of invitation to tender.

Expenses and disbursements

The Client shall reimburse SKK Design for expenses in the manner specified in the Fee Proposal or in the Letter of Appointment.

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 the responsibility of SKK Design.

Maintain records

SKK Design 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. SKK Design shall make such records available to the Client on reasonable request.

Payment

Payment under this Agreement shall be made as follows:

As detailed in our letter of appointment
Payment shall become due to SKK Design on the date detailed on our invoice.
SKK Design may submit the final account for fees and any other amounts due when SKK Design 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.

Payment notices

The Client shall give a written notice to SKK Design:

within 7 days of the date of issue of an account specifying the amount the Client proposes to pay and the basis of calculation of that amount; and

In the event of non-payment of any amount properly due to SKK Design under this Agreement, SKK Design is 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. The Client 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 SKK Design if the Client intends 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.

Set-off

The Client shall not withhold any amount due to SKK Design under this Agreement unless the amount has been agreed with SKK Design. All rights of set-off at common law or in equity which the Client 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 SKK Design or the Client issues 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, SKK Design shall issue an account or accounts on the expiry date of the notice or as soon as reasonably practicable and SKK Design 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 SKK Design by reason of the suspension or the termination save where the Client gives notice of suspension or termination by reason of the material or persistent breach of the Agreement by SKK Design.

If the reason for suspension is remedied, SKK Design shall be entitled to reimbursement of the reasonable costs of resumption of performance of the Services and other obligations.

Late payment

In the event that any amounts are not paid by the Client or SKK Design 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.

VAT

In addition to the fees and expenses, the Client shall pay any Value Added Tax chargeable on SKK Design’s fees.

Copyright and use of information

Copyright

SKK Design shall own the copyright in the original work produced in the performance of the Services and generally asserts SKK Design’s moral rights to be identified as the author of such work.

No part of any design by SKK Design may be registered by the Client without the consent of SKK Design in writing.

Use of information

The Client 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 SKK Design 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.

SKK Design shall not be liable if the Material is modified other than by or with the consent of SKK Design or used for any purpose other than the purposes for which it was prepared.

Provided that:

if it is intended to make any permitted use after that date of the last Service performed under this Agreement:

SKK Design, following a request from the Client, shall confirm the degree of completion of the Material.

Email Communication

Email correspondence will be deemed to constitute a written instruction from SKK Design and/or Client.

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.

Subject to the exceptions stated below, neither party’s total liability shall exceed the sum of £5,000,000.

SKK Design shall not be liable for consequential, indirect or special losses.

SKK Design shall not be liable for any of the following (whether direct or indirect):

loss of profit;
loss or corruption of data;
loss of use;
loss of production;
loss of contract;
loss of opportunity;
loss of savings, discount or rebate (whether actual or anticipated); or
harm to reputation or loss of goodwill.

Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:

death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
any other losses which cannot be excluded or limited by applicable law;

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.

Net contribution

Without prejudice to the provisions of clause “Limit of Liability”, the liability of SKK Design shall not exceed such sum as it is just and equitable for SKK Design to pay having regard to the extent of SKK Design’s 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 the Client contractual undertakings on terms no less onerous than those of SKK Design under this Agreement;
there are no exclusions of or limitations or liability nor joint insurance or co-insurance provisions between the Client and any other person referred to in this clause; and
all the persons referred to in this clause have paid to the Client 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

SKK Design 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 SKK Design 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.

SKK Design, when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such insurance is being maintained.

SKK Design shall inform the Client 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 SKK Design and Client can discuss the best means of protecting their respective positions.

Collateral warranties, third party rights schedules and contractor agreements

Where it is specified in the Project Data:

that SKK Design will be required to enter into a collateral warranty or warranties in favour of funders, purchasers or first tenants and the terms of the warranty together with the names or categories of other parties who will sign such agreements are appended to this Agreement, SKK Design shell enter into such agreement or agreements within a reasonable period of being requested to do so by the Client, providing that such warranties give no greater benefit to the beneficiaries than is given to the Client under this Agreement and all fees and other amounts properly due to SKK Design have been paid;
that a Third Party Rights Schedule (see Note 5) 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 SKK Design is to provide services to a contractor appointed by the Client to complete the design and construction of the Project, and such agreement is appended to this Agreement, SKK Design shall enter into such agreement with the Client and the contractor appointed to complete the design and construction of the project within a reasonable period of being requested to do so by the Client, providing that all fees and other amounts due have been paid and the terms of such agreement are no less onerous to SKK Design 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

Suspension

The circumstances which may give rise to suspension of the Services are:

The Client giving not less than 7 days’ notice to SKK Design specifying the Services affected.
SKK Design giving not less than 7 days’ notice to the Client of the intention and stating the reasons for doing so in the event:
- that the Client fails to pay any fees or other amounts due by the final date for payment;
- that the Client is in material or persistent breach of the obligations under this Agreement; or
- that SKK Design is prevented from or impeded in performing the Services for reasons beyond SKK Design’s reasonable control.

SKK Design 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, SKK Design 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 the Client on notice and not resumed within 6 months SKK Design 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.

Termination

The provisions for termination are:

The Client or SKK Design 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
SKK Design becomes 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 the Client shall be delivered on demand to the Client by SKK Design, subject to the terms of the licence under Clause “Use of Information” and payment of any outstanding fees and other amounts due plus SKK Design’s 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

Complaints

SKK Design shall operate in-house procedures to promptly handle complaints and disputes relating to specific project or performance matters. Any complaint of this nature should be made in writing to the Directors of SKK Design at the time that it arises. SKK Design will address the complaint and resolve it promptly if possible, or a detailed response will be made within 10 working days.

The Client and SKK Design 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.

Adjudication

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.

Arbitration

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) The Client or SKK Design 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

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