Johns Slater & Haward – Standard Terms and Conditions
Any engagement or agreement between the Client and the Consultant for the provision of Services shall be on the basis of these terms and conditions of engagement to the exclusion of any other agreement or terms and conditions.
Definitions:
Fee
The fee payable for the Services as set out in the Fee Proposal as may be adjusted in accordance with these Terms and Conditions.
Consultant
Johns Slater and Haward Limited (registered in England under Company Number 5065591)
Client
A person, partnership or company who instructs the Consultant to undertake the Services.
Fee Proposal
The Consultant’s letter to the Client (to which these Terms and Conditions are attached) specifying the Services which the Consultant proposes to carry out and the proposed fee for providing those Services.
Revised Proposal
Any Fee Proposal revised in accordance with these Terms and Conditions.
The Services
The services set out in the Fee Proposal which the Consultant agrees to carry out for the Client, as may be adjusted in accordance with these Terms and Conditions.
Documents
Records, reports, documents, papers and other materials originated by or on behalf of the Consultant pursuant to this agreement.
1. Consultants Obligations
The Consultant shall in providing the Services exercise reasonable skill and care in conformity with the normal standards of Consulting Building Services Engineers subject to the reasonable instructions of the Client so long as the Services are within the range of services ordinarily provided by the Consultant and subject to there being no commercial regulatory or legal reason for not providing the Services.
The Consultant shall exercise reasonable skill, care and diligence in the provision of the Services and shall only be liable if and to the extent that the Consultant has been negligent in their provision. The Consultant shall use reasonable endeavours to perform the Services in accordance with any programme agreed with the Consultant from time to time.
The Consultant shall have no liability for any failure or delay in the provision of the Services or any part thereof resulting from any condition or circumstance beyond the reasonable control of the Consultant and the Client shall pay the Consultant in accordance with Condition 5 during the persistence of such condition or circumstance.
The Consultant and the Client both acknowledge that in respect of all services performed for the Client prior to the date of this agreement such services shall have been deemed to have been performed under these terms of engagement.
2. Fee
The Fee and fees quoted in the Fee Proposal and any Revised Fee Proposal are in pounds sterling and are exclusive of VAT unless stated otherwise.
3. Acceptance of the Fee Proposal
The Fee Proposal shall be open for acceptance by the Client for a period of 60 days from the date stated thereon. The Consultant shall not be bound by the Fee Proposal if accepted by the Client outside the 60-day acceptance period but shall after such period be entitled to amend the Fee Proposal at its discretion. The Consultant shall not be obliged to commence the Services until such time as the Fee Proposal is accepted by the Client.
4. Invoicing
Unless otherwise agreed in writing, the Consultant may submit invoices monthly in arrears to cover fees on a percentage complete basis, determined by the Consultant, which shall be based on Services completed up to the time of submission of the invoice (and if applicable, any additions to the Fee pursuant to Condition 24). Invoices shall also include charges for sub-contractor services where applicable.
5. Payment
The due date for payment shall be from the date of the invoice, and the Client shall not be entitled to defer or withhold payment on the grounds of any claim or counterclaim. All rights of set off which the Client may otherwise exercise or purport to exercise are hereby expressly excluded. The final date for payment shall be 28 days from the date of the invoice.
Payment shall be made in pounds sterling by bank transfer to the bank account indicated by the Consultant. Where sums due are not paid in full by the due date the Consultant shall have the right to charge interest at a reasonable commercial rate, being 5% per annum above the Bank of England base rate on unpaid fees from the date payment is due until the date of payment and to charge any reasonable expenses incurred associated with collection of fees and interest including but without limitation legal costs court fees and collection agency fees.
If the Consultants account is 30 days or more overdue in addition to any other rights or remedies the Consultant reserves the right to suspend the Services without liability until such time as all outstanding amounts are paid in full.
Where the Client is also a consultant, or reliant on Third Party funding, the payment of The Fees cannot be subject to payment of their fees, or funding, for the project i.e. “pay when paid”.
Cybercrime Alert: Beware of Fraudsters – Please be aware that there is a significant risk posed by cyber fraud, specifically affecting email accounts and bank account details. Please note that our bank account details will not change during the course of a transaction, and we will not notify you of a change of our bank details via email.
Please be careful to check account details with us in person if in any doubt. We will not accept responsibility if you transfer money into an incorrect account. If you are advised that our bank details have changed – Do not send any money and please contact our office immediately.
6. Client Variations
If the Client requests variations to the Services, the Consultant will submit a Revised Fee Proposal incorporating such variations and clearly indicating the effect on the Fee. The Consultant shall not be obliged to carry out any requested variations to the Services until such a time as the Revised Fee Proposal is accepted by the Client. Upon acceptance by the Client the Revised Fee Proposal shall replace (or, where it is so stated, have effect in addition to) any previous Fee Proposal or Revised Fee Proposal.
7. Security Passes and Work Permits
Where necessary, the Client shall prepare security passes, work permits and official entry or exit documents in advance of the date that the Consultant is due to commence the Services. If the Consultant is delayed in carrying out the Services as a result of failure to provide such passes and/or other documents, the Consultant shall be entitled to payment in accordance with Condition 4.
8. Access
Where necessary, the Client shall ensure the Consultant has the necessary access in order to carry out the Services.
9. Client Obligations
The Client shall make a full disclosure of all relevant information in connection with the performance of the Services. The Consultant shall be entitled to rely on the accuracy of any drawings data information and statements made by the Client or its third parties and shall have no liability for any reports or advice if based on any such information that proves to be inaccurate.
The Client shall provide all relevant information relating to site conditions especially those which may be considered prejudicial to safe working practices including information concerning ground conditions, underground installations, pipe work, cables, drains or other service media. Without prejudice to the foregoing the Client shall ensure that conditions of work on site are such as to enable the Consultant, its employees and sub-contractors to carry out the Services and in particular without injury to any person or loss or damage to any property.
The Client shall observe and perform all its obligations under the Construction (Design and Management) Regulations 2015 or any amendment thereof and any other relevant statutes and byelaws relating and maintain appropriate insurance for the duration of this Agreement.
The Client warrants that it has the right to have the Services performed and has obtained necessary licences and approvals. The Client shall indemnify and hold harmless the Consultant from and against all consequences of any failure in this respect. The Client shall arrange such rights of access to the property and use of the Clients’ facilities as described in (or reasonably inferred from) this Agreement. The Client shall use reasonable endeavours to supply to the Consultant promptly and free of charge:
a) Any instructions, decisions, consents and approvals and
b) Any relevant data and information in the possession of the Client or any of his agents, consultants or contractors which the Consultant may require in order to carry out the Services.
Both parties shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010.
10. Documentation
Each Party shall retain the copyright in their works including their drawings, software programmes and other documents (“the Documents”). The Documents shall only be used by the other Party for the purposes described in (or reasonably to be inferred from) this Agreement and shall not be used for other purposes. In the event of the Client being in default of payment of any fees due under the Agreement the Consultant may revoke the licence herein granted. The Consultant shall not be liable for any use made of the Documents other than that for which the same were prepared by or on behalf of that party.
Each Party shall maintain the confidentiality of any Documents and other information received from the other Party which are confidential. Such recipient shall not release or disclose such Documents or information or permit release or disclosure, except as authorised by the other Party or as obliged to do so by law.
11. Health and Safety
The Consultant’s personnel shall not be obliged to work in unsafe conditions. If site conditions become unsafe during the progress of the Services, then the Consultant may recall personnel at the Client’s cost.
12. Suspension
The Client may at any time by giving not less than 30 days’ notice to the Consultant require the Consultant to suspend performance of the Services. Unless otherwise agreed, and subject always to the provisions of this Clause below, the Client shall give the Consultant not less than 14 days’ notice of its desire to have the Consultant resume performance of the Services. The Consultant shall be under no obligation at that stage to continue the Services for the Client or to adhere to any timescale or fee previously agreed.
If the Client is in breach of any of its obligations under this Agreement and such breach remains unremedied for 14 days after notice thereof has been given to the Client, the Consultant may forthwith suspend the performance of the Services until 14 days after such time as the breach is remedied.
In the event of any suspension of the Services pursuant to the above Clauses, the remuneration of the Consultant and the timescale for performance of the Services shall be adjusted to such extent as is fair and reasonable to take account of the disruption caused by the suspension, and the Fee Schedule shall be modified accordingly.
The Consultant reserves the right to suspend the Services on giving 7 days’ notice to the Client if full information enabling it to proceed is not received by the Consultant. Any costs or losses incurred as a result of such suspension shall be recoverable from the Client to the extent, they are reasonably and properly incurred. This Condition shall not affect any statutory right of suspension that may be available to the Consultant.
13. Termination
The Consultant may terminate this agreement on giving 7 days’ notice to the Client in the event of non-payment in accordance with Condition 5 or the insolvency of the Client or of a material breach by the Client of its obligations under this Agreement which is irremediable or, where remediable, which the Client shall have failed to remedy within 14 days after receiving notice specifying the breach and requiring its remedy. Any costs or losses incurred as a result of such termination shall be recoverable from the Client to the extent, they are reasonably and properly incurred and evidenced.
If any suspension of the Services lasts for one month or more, the Consultant shall be entitled to terminate its engagement forthwith by notice to the Client.
Termination of the Consultant’s appointment under this agreement shall not prejudice or affect the accrued rights or claims of either Party to this agreement.
Either party may terminate the Consultant’s engagement forthwith by notice to the other if the other ceases to trade or enters into liquidation whether voluntarily or compulsorily (other than for the purposes of amalgamation or reconstruction) or compounds with its creditors or has a receiver, administrative receiver, administrator, nominee, supervisor or similar officer appointed over all or any of its assets or its undertaking or any part thereof or if any action, petition, application or proceeding is initiated or resolution passed relating to any of the aforementioned matters.
On any termination of the Consultant’s engagement, the Consultant shall be entitled to payment for all services performed and costs incurred up to the date of termination on the basis set out in the Fee Proposal and any costs which the Consultant is contractually obligated to incur notwithstanding the termination, and for taking such steps as reasonably necessary to bring to an end the Services.
The Consultant may upon the occurrence of any circumstances beyond the control of the Consultant (which for the avoidance of doubt includes any pandemic and/or epidemic) (“Force Majeure”) which prevents or significantly impedes the performance of the Services, without prejudice to any other remedy and upon the giving of not less than [four weeks’] Notice, suspend for a period of up to [twenty-six weeks] the performance of the Services in respect of all or part of the Services affected. For the avoidance of doubt, the Consultant shall not be in breach of this Agreement and shall have no liability under or in connection with this Agreement as a result of:
a) any act, omission, or default
b) any failure to perform the Services in accordance with this Agreement and/or
c) any prolongation or delay to the Services, to the extent it is caused or contributed to by any Force Majeure.
14. Cancellation
In the event of cancellation of the Services through no fault of the Consultant, the Client shall pay the Consultant a proportion of the Fee based on the Services carried out, any outstanding expenses and any losses to the Consultant which are incurred as a result of the cancellation, including but not limited to costs to which the Consultant is committed in respect of planned future work on the Services.
15. Agreement
The Client may assign any of its rights and benefits under this agreement twice only with the consent of the Consultant, such consent not to be unreasonably withheld, provided that the Client remains joint and severally liable for any obligations under the terms of the agreement assigned to the assignee.
16. Events beyond the Consultant’s Control
In the event that the Consultant shall be affected by any circumstances whatsoever beyond its control which prevent, hinder or delay the Consultant’s performance of its obligations, provided that such event or circumstances is unforeseeable. It shall give prompt notice thereof to the Client. Non-performance or delay in performance of the obligations Services caused by, or resulting from or owing to those circumstances shall be deemed not to breach the agreement between the Consultant and the Client, and the Consultant shall carry out the Services in accordance with the variation to be agreed between the parties as regards the programme to perform the Services within a reasonable time taking account of any such non-performance or delay and shall be entitled to payment in accordance with Condition 4. For clarity, any adjustment to the programme and fees arising under this clause shall be limited to what is fair and reasonable in the circumstances.
17. Professional Liability
Notwithstanding any other provisions of this Agreement, the total liability in aggregate of the Consultant under or in connection with this Agreement, whether in contract or in tort, in negligence or for breach of statutory duty or otherwise (other than in respect of death or personal injury) shall be limited to the sum set out in Condition 18. In the event of professional indemnity insurance cover for any of the services under this appointment no longer being commercially available, the Consultants liability to the Client will be limited to £250,000 in the aggregate.
The Consultant shall have no liability for claims arising out or in connection with acts of terrorism.
The liability of the Consultant hereunder for any claim or claims shall be further limited to such sum as the Consultant ought reasonably to pay having regard to his responsibility for the loss and damage suffered and on the basis that:
a) all consultants and all other parties providing design management or financial services or labour or materials plant or equipment for incorporation in the project or executing the project or any part thereof shall be deemed to have provided contractual undertakings on terms no less onerous than that set out in Condition 1 of this Agreement to the Client (whether or not they have been so provided to the Client) in respect of the provision of their services or labour or materials or plant or equipment in respect of executing the project or any part thereof, and
b) there are no limitations on liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and
c) all such other consultants and all such contractors and sub-contractors have paid to the Client such proportion which it would be just and equitable for them to pay having regard to the extent of their responsibility
The Client shall indemnify and hold harmless the Consultant from and against any claims liabilities costs and expenses in excess to the limit calculated as aforesaid.
Save in respect of death or personal injury, no claims in contract, tort or breach of statutory duty (including negligence) arising out of or in connection with this Agreement shall be brought personally against any of the Consultant’s employees or directors or members involved in the provision of Services (whether expressly named or not in this Agreement) and any such employees, directors and members may rely on this sub-clause.
18. Insurance / Limitation on Liability
Notwithstanding anything to the contrary in this Agreement, the liability of the Consultant under or in connection with this Agreement whether in contract or in tort, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed in aggregate the sum of one million pounds (£1,000,000). If no amount is inserted above, the liability of the Consultant shall not exceed in aggregate a multiple of ten times the total of the fees payable to the Consultant by the Client in respect of the Services.
Pollution, Contamination and Asbestos Exclusion – Notwithstanding anything to the contrary in this Agreement and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount the Consultant is not responsible under this Agreement or otherwise for:
a) advising as to the actual or possible presence of pollution or contamination or as to the risks of such matters having occurred, being present or occurring in the future (herein called “pollution and contamination matters”); and/or as the case may be.
b) advising on matters that wholly, partly, directly or indirectly arise out of or result from asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or product or waste that contains asbestos) (herein called “asbestos matters”); and/or as the case may be and the liability of the Consultant under or in connection with this Agreement whether in contract, in tort, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) for any claim that may arise out of or in connection with pollution and contamination matters, and/or asbestos matters as the case may be is excluded.
Fire Safety Liability – Without prejudice to any other provision of this Agreement, the Consultant shall have no liability whatsoever or however so arising in respect of any claim, losses, liability, cost, expenses or other costs directly or indirectly arising out of or in connection with:
a) the combustibility, fire protection performance, fire resistance and/or fire retardant
characteristic of any external cladding or roofing systems.
b) any internal fire protection systems; and/or
c) any aspect of the fire safety or fire performance of a building or structure.
No action or proceedings under or in respect of this Agreement whether in contract, in tort, in negligence, for breach of statutory duty or otherwise shall be commenced against the Consultant after the expiry of 6 years from the date of completion of Services or the termination of the Services if earlier.
Further and notwithstanding anything to the contrary contained in this Agreement and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of the Consultant, if any, for any loss or damage (“the loss or damage”) in respect of any claim or claims shall not exceed such sum as it would be just and equitable for the Consultant to pay having regard to the extent of the Consultant’s responsibility for the loss or damage and on the assumptions that:
a) all other consultants and advisers, contractors and sub-contractors involved in the Project shall have provided contractual undertakings to the Client on terms no less onerous than those set out in this Agreement in respect of the carrying out of their obligations in connection with the Project; and
b) there are no exclusions of or limitations of liability nor joint insurance or coinsurance provisions between the Client and any other party to the Project and that any such other party who is responsible to any extent for the loss or damage is contractually liable to the Client for the loss or damage: and
c) all the parties referred to in (i) above, have paid to the Client such proportion of the loss or damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss or damage.
Unless otherwise agreed in writing the Services are performed exclusively for the Client. No liability will be assumed for any interest in or reliance on the Services by any third party.
To the maximum permitted by law the Consultant shall not have any liability to the Client for any lost profits, loss of use, cost of procurement of substitute services or any special indirect punitive or consequential damages however caused whether in contract tort or any theory of liability and whether or not the Consultant has been advised of the possibility of such damage.
To the maximum permitted by law any implied terms and warranties are excluded.
To the maximum permitted by law no claims shall be against the officers, employees of the Consultant. For the avoidance of doubt, the exclusions in this clause shall not apply to losses arising directly from the Consultant’s fraud or deliberate default.
If due to force majeure or any other circumstances beyond its control the Consultant is or is likely to be unable to perform a material obligation or is or is likely to be delayed or prevented from performing its obligations under this Agreement the Consultant shall be relieved from liability under or in connection with this Agreement.
19. Language
All communications between the Consultant and the Client shall be in the English language.
20. Entire Agreement
The Services are carried out on these Terms and Conditions which supersede all previous agreements between the Consultant and the Client. These Terms and Conditions, the Fee Proposal or any Revised Fee Proposals form the entire agreement between the Consultant and the Client.
21. Client’s Standard Terms and Conditions
Only a duly authorised representative of the Consultant has the authority to bind the Consultant or agree to vary or supplement these Terms and Conditions.
22. Severability
In the event that any Condition or any part of any Condition contained in these Terms and Conditions is declared invalid or unenforceable by the judgement or decree by consent or otherwise of a court or body of competent jurisdiction from whose decision no appeal is or can be taken, all other Conditions or parts of Conditions contained in these Terms and Conditions shall remain in full force and effect and shall not be affected thereby.
23. Law
The agreement between the Consultant and the Client shall be construed in accordance with English Law and shall be deemed to have been made in England and both parties agree to submit to the exclusive jurisdiction of the English Courts.
24. Additions to the Fee in the event of delay
If the Client is not able to notify the Consultant three (3) days in advance about the impossibility to carry out the Services for any of the reasons stated in Conditions 7, 8, 9, 11 or 16 hereof, the Consultant shall be entitled to payment for any days during which it is unable to carry out the Services through no fault of its own, including but not limited to any one or more of the reasons stated in Conditions 7, 8, 9, 11 or 16 hereof, at the rate specified in the Fee Proposal and shall be entitled to any additional expenses or other consequential costs incurred as a result of the delay. Any such payment shall be limited to reasonable and demonstrable costs directly resulting from the delay.
25. Disputes
Any difference or dispute arising out of this Agreement shall be referred by either of the parties to arbitration by a person to be agreed between the parties or failing agreement within 14 days after either party has given the other a written request to concur in the appointment of an arbitrator, a person to be nominated at the request of either party by the President of the Chartered Institute of Arbitrators and such arbitration shall be conducted in accordance with the Arbitration Act 1996. For the avoidance of doubt, nothing in this clause shall prevent either party from seeking urgent injunctive or interlocutory relief through the courts.
26. Interpretation
All headings used herein are for guidance and reference purposes only and shall not in any way affect the interpretation of these Terms and Conditions or any part thereof. Words importing the singular include the plural and vice versa. Words importing a gender include every gender and references to persons include corporations, partnerships and other unincorporated associations or bodies of persons. References to Conditions are, unless the context otherwise requires, references to Conditions in these Terms and Conditions.
27. Assignment and Sub-contracting
Neither the Consultant nor the Client shall assign the whole or any part of the benefit of or in any way transfer the obligation of this Agreement without the prior written consent of the other.
The Consultant shall not sub-contract any of the Services without the consent of the Client such consent not to be unreasonably withheld or delayed.
28. Confidentiality
Save as may be necessary for the proper performance of the Services or as otherwise compelled by law or regulatory authority neither party shall not disclose to any third party, other than their officers, employees’ professional advisors and consultants and other agents, any information arising out of the Services which is reasonably designated as confidential by the other. Such confidential information shall not include information, which is or becomes public (other than by breach of these terms), was known to the other party before this agreement, or is independently developed by or becomes available to the other party.
29. Intellectual Property Rights
Copyright in the Documents prepared by the Consultant in connection with the Services shall remain vested in the Consultant but provided full payment has been made for the Services the Client may upon written authorisation by the Consultant have a transferable licence for the whole period for which copyright is to subsist without payment of any further fee to use the Documents for the purposes for which they were provided.
The Consultant shall not be liable for any use of the Documents for any purpose other than that for which the same were intended.
30. Collateral Warranties
The Consultant may agree to enter into collateral warranties subject to full payment of fees, an agreed form and wording, and appropriate fees being agreed for this provision. The minimum Consultants fee per warranty to be entered into if not stipulated in the fee letter is £700 plus VAT for standard warranties, or £2,500 plus VAT for bespoke warranties.
31. Notices
Any notices served under or in connection with this Agreement shall be in writing and be properly served if sent by recorded delivery or registered post to the address of the party receiving it as notified from time to time by either party to the other.
32. Contracts (Rights of Third Parties) Act 1999
Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement.
33. Waiver Unless otherwise agreed no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that or any other right or remedy. Consent by a party where required.