The Client appoints the Consultant (Ballykelly Consulting Limited) to provide the Services (which include the Basic Services and any Additional Services as described in Clause 5) and the Consultant accepts such appointment upon and subject to these Conditions (the ‘Appointment’). The Appointment takes effect on the date when the Consultant first commenced performance of the Services, irrespective of the date of this Appointment.
Standard of care
The Consultant, when performing the Services, exercises the reasonable skill and care to be expected of an appropriately qualified professional consultant of the same discipline as the Consultant holding itself out as having the competence and resources to perform the Services (the ‘Requisite Standard’). Notwithstanding any term or condition to the contrary in this Appointment, any documents referred to in this Appointment or otherwise, the Consultant has no higher standard of responsibility other than to exercise the Requisite Standard in the performance of its obligations under this Appointment.
When performing the Services, the Consultant complies with the requirements of all statutes and legislation relevant to the Project.
As consideration for the performance of the Basic Services, the Client pays the Consultant the Fee and the Reimbursable Expenses set out in the Appointment Particulars. The Fee is adjusted if the performance of the Basic Services is materially delayed and/or disrupted for any cause outside the Consultant’s reasonable control. The parties agree the adjustment to the Fee and the timing of its payment. If not agreed, such adjustment is based on the rates set out for the Basic Services and, if no rates are set out, on the rates set out for the Additional Services. The Fee is then the Fee as adjusted.
If at any time the Client requires the Consultant to perform any services that are not identified as Basic Services in the services listed in the Schedule (‘Additional Services’), the Client pays the Consultant for such Additional Services at the rates set out in the Appointment Particulars unless otherwise agreed. If the Client requires any Additional Services, the Consultant informs the Client of the likely additional fee to be charged. Unless otherwise agreed, the additional fee is payable after performance of the relevant Additional Service.
Payment of remuneration and Reimbursable Expenses
The Consultant submits to the Client a VAT invoice in respect of the Fee, any additional fee payable for Additional Services and the Reimbursable Expenses monthly, or on completion of each activity or work stage set out in the Appointment Particulars. All invoices are accompanied by such supporting documents, records and receipts reasonably necessary for checking each invoice. The invoices and supporting documents, records and receipts (if any) specify the sum that the Consultant considers to be due to it on the payment due date under this Clause and the basis on which that sum is calculated. The payment due date is the date the Client receives the relevant invoice (the ‘due date’).
Limitations of liability
- Except as otherwise provided in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the provision of the Services or to this Agreement are excluded to the fullest extent permitted by law.
- Without limiting the generality of Clause 7.1, except where this Agreement provides otherwise, the Consultant’s total liability for any claim for loss, damage or expense incurred or suffered by the Client, whether arising under or in connection with or incidental to this Agreement, including the performance or non-performance of the Consultant’s obligations under this Agreement or anything incidental to it, and whether by way of indemnity, by statute, in tort (for negligence or otherwise) or on any other basis in law or in equity will be limited to the total Fees paid by the Client for the Services provided by the Consultant to the Client under this Agreement preceding the date on which the loss, damage or expense arose.
- Where any law implies in this Agreement any term, condition or warranty (Implied Term) and that law voids or prohibits provisions in a contract excluding or modifying the Implied Term, the Implied Term will be deemed to be included in this Agreement but the liability of the Consultant for any breach of the Implied Term will be limited, at the option of the Consultant, to any one or more of the following:
(a) the supply of the Services again; or
(b) the payment of the costs of having the Services supplied again.
- The Client must not commence proceedings against any of the Consultant’s Personnel in respect of the facts, matters or circumstances giving rise to any loss, damage or expense under Clause 7.2 and this Clause 7.3 may be pleaded in bar to any such proceedings.
- Despite any other provision in this Agreement, the Consultant will not be liable for any consequential, indirect or special loss, such as loss of profits or revenue, loss of business opportunity, loss of production or loss of goodwill, suffered by the Client whether arising under or in connection with or incidental to this Agreement, including the performance or non-performance of its obligations under this Agreement or anything incidental to it, and whether by way of indemnity, by statute (to the extent that it is possible to limit such liability), in tort (for negligence or otherwise), or on any other basis in law or in equity.
- The provision to the Consultant of any documents or information evidencing or relating to any relationship, arrangement, contract or understanding between the Client and any third party is for information purposes only and does not affect and must not be used to interpret the scope of the Consultants engagement to perform the Services under this Agreement.
- The Consultant does not assume any responsibility to any third party or undertake to discharge any duty or responsibility of the Client to any third party by performing the Services or providing any Deliverables to the Client.
- The Consultant assumes no responsibility in respect of, and is not liable for any error, omission, discrepancy or defect in any materials, documents, information or instructions provided by the Client or the Client’s Personnel to the Consultant. The Client must pay the Consultant at the Standard Rates for the performance of any additional Services by the Consultant due to any such error, omission, discrepancy or defect in the materials, documents, information or instructions.
- The Client indemnifies the Consultant from and against any and all loss, damage or expense directly or indirectly arising from or in connection with any breach of this Agreement by the Client or any unlawful, negligent or wilfully wrong act or omission by the Client or the Client’s Personnel.
- The Consultant maintains relevant professional indemnity insurance, subject to such insurance being available in the insurance market on commercially reasonable terms and rates.
- The Consultant produces written evidence that this insurance is being maintained whenever reasonably requested to do so by the Client.
- Copyright in all documents prepared by the Consultant for the purposes of the Project remains the property of the Consultant. Subject to suspension for non-payment of Fees, the Consultant grants to the Client a royalty-free, irrevocable, non-exclusive licence to use and reproduce the documents for any purpose relating to the Project including the construction, completion, maintenance, operation, letting, sale, reinstatement, mortgaging, refurbishment and repair of the Project (but not for any extension of the Project without the Consultant’s written consent).
- The Consultant is not liable for any use of the documents for any purpose other than that for which they were originally prepared.
- The Consultant may publish or join in publishing any description or illustration of the works for marketing purposes.
Suspension of the Services
- The Client may at any time give at least seven days’ notice in writing to the Consultant requiring it to suspend all or part of the Services.
- The Consultant resumes performance of the Services that have been suspended as soon as reasonably practicable after it receives written notice to do so from the Client.
- If the suspension continues for more than three months, either party may give notice in writing to the other terminating the Consultant’s engagement under this Appointment.
- If the Client fails to make payment to The Consultant on the due date then the Consultant has the right to suspend the Services and charge interest on any overdue sum at a rate of 8% per annum above the Bank of England base rate from time to time, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
Termination of engagement
- The Client may terminate the Consultant’s engagement under this Appointment at any time by giving the Consultant 14 days’ prior notice in writing.
- If a party is in material breach of its obligations under this Appointment and fails to remedy such breach within seven days after the other party gives it written notice to do so, the party
that gave such notice may immediately thereafter terminate the Consultant’s engagement under this Appointment by giving written notice to that effect to the party in breach.
- If a party becomes insolvent (that is, is deemed unable to pay its debts under Sections 123 or 268 of the Insolvency Act 1986), the other party may immediately terminate the Consultant’s engagement under this Appointment by giving written notice to the insolvent party.
Payment upon suspension or termination
- Upon any suspension or termination, the Client pays the Consultant in accordance with Clauses 6 and 7 (without prejudice to any rights the Client has in respect of any breach by the Consultant of its obligations under this Appointment): a) that part of the Fee, the additional fee payable for the Additional Services (if any) and any other sums that have accrued due up to the date of suspension or termination (as the case may be) and a fair and reasonable proportion of the next instalment of the Fee and any additional fee payable for Additional Services commensurate with the Services performed, less any amounts previously paid to the Consultant; and b) (save where such suspension or termination is due to the Consultant being in breach) all reasonable costs, disbursements and expenses reasonably incurred by the Consultant (including any costs incurred in suspending and/or resuming performance of any or all of the Services) as a direct result of such suspension or termination.
- Upon payment of the amount due under Clause 14.1, the Consultant hands over to the Client the documents prepared by the Consultant, subject to the terms of the copyright licence under Clause 9 and payment of the Consultant’s reasonable copying charges.
- Termination of the Consultant’s engagement under this Appointment does not affect the accrued rights and remedies of the parties.
- Notwithstanding any other provision of this Appointment, either party may at any time refer any dispute under it to adjudication under Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (as amended).
- The Adjudicator’s decision is binding until the dispute or difference is finally determined by litigation. The Client and the Consultant attempt to agree the identity of the Adjudicator. If the parties fail to reach such agreement within two days after one party notifies the other that it wishes to agree the identity of the Adjudicator, the Adjudicator is appointed by the President or Vice-President for the time being of RICS. Any dispute or difference in connection with the enforcement of a decision of the Adjudicator is referred to the Courts.
- This Appointment supersedes any previous agreements or arrangements between the parties in respect of the Project.
- Nothing in this Appointment confers or purports to confer any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms on any person who is not a party to it. Only the Client (and the Client’s permitted assignees) and the Consultant can take action to enforce the terms of this Appointment.
- Any reference to a statute or statutory provision is construed as a reference to that statute or
provision as amended, consolidated, supplemented, or re-enacted (with or without modifications) from time to time.
- This Appointment is governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.