A-squared Studio Engineers Ltd
Standard Terms and Conditions
In the absence of, or supplementary to, any form of appointment, the following Standard Terms and Conditions apply to any services provided and associated deliverables.
Definitions
1. “the Act” shall mean Part II of the Housing Grants, Construction and Regeneration Act 1996 as amended by Part 8 of the Local Democracy, Economic Development and Construction Act 2009 or otherwise.
2. “Additional Services” shall mean the services which the Client requires the Consultant to perform at any time during the Project which do not comprise Standard Services set out in the relevant Project proposal.
3. “Adjudication” shall mean the procedures and the agreement for the appointment of an Adjudicator as set out in the Model Adjudication Procedures published by the Construction Industry Council current at the date of reference. The nominating body shall be the Chartered Institute of Arbitrators or any successor organisation.
4. “the Client” shall mean the party appointing the Consultant.
5. “the Consultant” shall mean A-squared Studio Engineers Limited (company number 09342027), with registered office at Broom House, 39-43 London Rd, Hadleigh, Benfleet, Essex, SS7 2QL, UK.
6. “Days” shall mean calendar days. Where an act is required to be undertaken within a specified period or from a specified date, the period begins immediately after that date. Where the period includes any day which is Christmas Day, Good Friday or a bank holiday in England, that day shall be disregarded.
7. “Fees” shall mean the sums stated to be paid in respect of the Standard Services as stated in the relevant Project proposal and any other sums to be paid under this Agreement in respect of Additional Services.
8. “Intellectual Property Rights” shall mean all intellectual and industrial property rights including (without limitation) patents, trademarks, service marks, registered designs, copyrights, database rights, design rights, moral rights or know-how, howsoever arising, whether or not registered, and any other similar protected rights in any country and any applications for the registration or protection of such rights and all extensions thereof throughout the world.
9. “Materials” shall mean all literature, drawings, diagrams, designs, plans, details, specifications, schedules, reports, calculations, cost plans, budgets, software, computer storage discs, computer printouts, data files, databases, source codes, object codes, estimates, models, photographs, articles or works owned by the Consultant or created, prepared, developed, used or supplied by the Consultant or on behalf of the Consultant (whether by its sub-consultants, employees, agents, or otherwise) in connection with the Services and any data used to generate any of them and any other documents and the contents of any of them and any other information created, prepared, developed, used or supplied by or on behalf of the Consultant (whether by its sub- consultants, employees, agents, or otherwise) in the execution of the Services.
10. “Project” shall mean the project/scheme referered to in any correspondence or proposal issued by the Consultant.
11. “Services” shall mean the Standard Services and any Additional Services performed by the Consultant.
12. “Site” shall mean the development site relevant to the scope of work.
13. “Standard Services” shall mean the Services stated in the relevant Project proposal forming part of this agreement, or as otherwise stated in this agreement, to be carried out, provided or performed by the Consultant (other than those stated to be provided as Additional Services).
14. “Terrorism” shall mean any act or acts including but not limited to:
a. the use or threat of force and/or violence and/or
b. harm or damage to life or to property (or the threat of such harm or damage) including by nuclear and/or chemical and/or biological and/or radiological means caused or occasioned by any person(s) or group(s) of persons or so claimed in whole or in part for political religious ideological or similar purposes.
Services
15. The Consultant will provide the Standard Services and any Additional Services reasonably instructed by the Client in accordance with this agreement. The Consultant’s scope of Services is stated in the relevant Project proposal(s) and any other proposal/instruction in relation to the project.
16. If the Client instructs Additional Services or if the Consultant should undertake services that are beyond the scope of Standard Services, then the Consultant shall be entitled to reimbursement for such services on the basis of a lump sum fee agreed between the parties or, failing such agreement, calculated on the basis of A-squared Studio Engineers Ltd hourly rates.
Fees
17. The total of the Consultant’s Fees is stated in the relevant Project proposal(s). If applicable, VAT shall be paid by the Client to the Consultant at the rate and in the manner prescribed by law.
18. The Fees do not include any costs or charges payable or paid by the Consultant to local or other authorities for seeking and obtaining statutory permissions (or any other third party costs incurred by the Consultant). In the event that any such services are provided by the Consultant, the Client must reimburse the Consultant separately for such items.
19. In the event that the Consultant and the Client agree for Additional Services or certain services to be paid for on a time basis, the Consultant’s hourly/daily rate will be as set in the A-squared Studio Consulting Engineers Ltd hourly rates schedule.
20. The Consultant will submit its invoice to the Client for the Fees, and other agreed costs and expenses, on a monthly basis. Payment shall be due on the date the Client receives the Consultant’s invoice. The invoice will be deemed to have been received by the Client in such timeframe as set out in the Project proposal or 2 days after the date of the invoice, whichever is later.
21. The Consultant’s invoice shall be the payment notice for the purposes of Section 110A(1) of the Act.
22. The final date for payment shall be 28 Days after the payment due date.
23. On or before the final date for payment, the Client shall pay to the Consultant the sum stated as due in the Consultant’s invoice issued.
24. In addition to any remedy implied by statute, late payment shall incur interest at the rate of 8 per cent above the Bank of England base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. In addition the Consultant shall be entitled to compensation and expenses for debt recovery costs in accordance with current legislation.
Intellectual property rights
25. The Consultant’s Intellectual Property Rights in the Materials shall, as the case may be, vest in or remain vested in the Consultant, however the Client shall have a royalty free, non exclusive licence to use and reproduce selected Materials for any purpose related to the Project. Such licence shall enable the Client to use such Materials for the extension of the Project but such use shall not include a licence to reproduce designs contained therein for any extension of the Project or any other purpose. Access to and use of Materials by the Client shall exclude all data files and electronic information produced by use of proprietary software (including but not limited to software input and output files, programmes, spreadsheets, routines, subroutines), which remain exclusive property of the Consultant.
26. The Consultant shall have no liability to the Client for any use or reproduction of the Materials in accordance with the licence in clause 25 for any purpose other than that for which they were prepared.
27. In the event of a default of payment of any fees or amounts due under this agreement, the Consultant may revoke the licence granted herein on giving seven Days notice.
Professional indemnity insurance
28. The Consultant will maintain professional indemnity insurance up to a maximum of £1 million on an each and every claim basis except in relation to a) contamination or pollution where zero cover is provided, b) asbestos where zero cover is provided and (c) claims in relation to Terrorism which are excluded.
29. The obligation in clause 28 will be subject to such professional indemnity insurance being available at commercially reasonable rates and subject to all exceptions, exclusions and limitation to the scope of cover that are commonly included in such insurance at the time the insurance is taken out or renewed, as the case may be.
The Consultant’s duties & limitations on liability
30. The Consultant will exercise reasonable skill and care in the performance of the Services and will only be liable to the Client for any reasonable and mitigated losses to the extent that it fails in that respect.
31. If the Services include visit(s) to site(s) by the Consultant’s personnel, the Client shall be responsible for the safety of the Consultant’s personnel and the Consultant shall be relieved from performance of the Services whilst it considers the site to be unsafe. The Consultant shall not be deemed to have assumed the role of occupier, or otherwise to have assumed control of or responsibility for a site or personnel on it.
32. The Client will only seek recovery of any losses it believes it has suffered as a result of a breach of the obligation in clause 30 above from the Consultant and not any of the Consultant’s former, present or future employees, directors or members of the Consultant.
33. In all circumstances save that referred to in clause 34 below (including but not limited to negligence and breach of this agreement but excluding death or personal injury) the Consultant’s liability to the Client shall not exceed the ten times (10x) the value of the professional services fee on an each and every claim basis save in relation to a) contamination or pollution where the limit of liability is zero, b) asbestos where the limit of liability is zero and c) liability in respect of Terrorism which is excluded.
34. The Consultant shall have no liability to the Client for indirect loss including but not limited to loss of production, loss of profits, loss of business or any consequential losses or damage arising under or in connection with the performance or non performance of the Services.
35. Notwithstanding otherwise anything to the contrary contained in this agreement, such liability of the Consultant for any claim or claims shall be further limited to such sum as it would be just and equitable for the Consultant to pay having regard to the extent of his responsibility for the loss or damage suffered as a result of the occurrence or series of occurrences in question (“the loss and damage”) and on the assumptions that:
a. all Other Consultants and all Contractors and all Sub-Contractors shall have provided contractual undertakings on terms no less onerous than those set out in this Agreement to the Client in respect of the carrying out of their obligations;
b. there are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and any other party who is responsible to any extent for the loss and damage is contractually liable to the Client for the loss and damage; and
c. all Other Sub-Consultants, Consultants and all Contractors and Sub-Contractors have paid to the Client such proportion of the loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss and damage.
Should the Client disregard the net contribution assumptions and criteria set out in this clause (35), the liability of the Consultant shall be limited to zero on each and every claim basis.
Force majeure
36. Neither party to this agreement shall be liable to the other party for delays in performing the Services or for direct or indirect costs resulting from such delays whether arising from strikes, civil commotion riots, acts of terrorism, acts of governmental authorities, exceptionally inclement weather or other natural phenomenon, or any other cause beyond the reasonable control or contemplation of either party.
Warranties
37. The Consultant may on request enter into a maximum of three direct collateral warranties with funders, first purchasers and long lease tenants only. A charge of £750 shall be made for every warranty provided under this clause (37).
38. Further collateral warranties can be requested by the Client for with funders, first purchasers and long lease tenants only up to a maximum of ten in total. A charge of £1500 shall be made for every further warranty provided under this clause (38).
39. Such warranties will be according to the standard forms published by the Construction Industry Council (form CIC/ConsWa/F for funders and form CIC/ConsWa/P&T for purchasers or tenants) first edition 2003 subject to minor amendments.
Client’s duties
40. The Client will provide and will continue to provide the Consultant with all relevant information in the possession of the Client related to the Services and will endeavour to ensure such information is up to date and that the Consultant has the necessary permission to use such information.
41. The Client acknowledges that any delays in the provision of such information may affect the delivery of the Services.
Suspension & termination
42. Without prejudice to any other rights or remedies and in addition to its rights under the Act or otherwise, the Consultant may suspend the performance of the whole or part of the Services and its obligations under this agreement on 3 Days notice where:
a. the Client has failed to pay a sum due to the Consultant in accordance with the Fees section of this agreement; and/or
b. breach of contract by the Client.
Such right of suspension shall cease if such non-payment or breach shall be rectified by the Client.
43. Upon the suspension of the Services, the Consultant shall be entitled to payment of the portion of the Fees up to the date of such suspension on account of Services actually performed by the Consultant prior to such suspension and any other agreed costs and expenses incurred by the Consultant up to the date of such suspension. Upon resumption of the Services any completion date(s) shall be adjusted to take into account any period of suspension and the Consultant shall be entitled to reasonable, additional and actual out of pocket expenses incurred by the Consultant by reason of suspension and subsequent remobilisation of its workforce.
44. Either the Client or the Consultant may terminate this agreement if the other is in breach of this agreement or becomes insolvent or bankrupt. Termination is subject to the giving of 21 Days notice in writing by the terminating party (save where termination is for insolvency or bankruptcy where the terminating party may immediately terminate the agreement by giving notice in writing).
45. In the event of termination, the Client will pay the Consultant:
a. any instalments of the Fees and other sums which have become due to the Consultant prior to the date of such termination and which remain unpaid, and
b. a fair and reasonable proportion of the next following instalment of the Fees commensurate with the Services which the Consultant has performed up to the date of such termination, along with any other agreed costs and expenses incurred by the Consultant up to the date of such termination, and the reasonable costs incurred by the Consultant in consequence of the termination (including for the avoidance of doubt any costs and expenses to which the Consultant is committed at the date of the termination).
The due date for payment shall be the later of the date of termination and the date of issue of the Consultant’s valid VAT invoice for such proportion, costs and expenses and the final date for payment of which shall be 28 Days after the due date.
Specific conditions relating to non-payment of professional services fees
46. In the event of a default of payment of any fees or amounts due under this agreement, the Consultant may revoke the intellectual property license granted herein in accordance with clause 27.
47. In the event of a default of payment of any fees or amounts due under this agreement, the Consultant’s liability is revoked without verbal or written notice on all accounts relating to the Services provided under this agreement. The Consultant’s liability is revoked (and shall remain limited to zero) until the Consultant confirms otherwise in writing (including but not limited to negligence and breach of this agreement but excluding death or personal injury).
48. The Client shall return all material and deliverables (issued by the Consultant to the Client) to the Consultant within 7 Days notice at the Client’s cost.
Dispute
49. In the event that a difference or dispute should arise under or in connection with this agreement it shall in the first instance be referred to the relevant principals of the respective parties with the intention that they shall meet within 10 Days of a written request from either party in an effort to resolve such difference or dispute in good faith.
50. In the event that the principals are unable to resolve the difference or dispute as a result of such meeting either party may refer such dispute or difference to Adjudication.
Third party rights
51. It is not intended that any party not a party to this agreement shall have any rights under this agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
Notices
52. Any notice required to be served under this agreement shall be in writing and delivered by hand or recorded delivery to the registered office addresses stated in this agreement.
53. For the avoidance of doubt, any notice or other communication delivered by hand before 4.30p.m. GMT on a business day is deemed to be received on that day or in any other case, on the next business day after that day. If delivered by recorded delivery any notice or other communication is deemed to be received on the second day after it was posted where that day is a business day or if not, the next business day after that day.
Severability
54. In the event that any competent tribunal or court of Law should decide that one or more of these terms or conditions are unenforceable the remaining terms and conditions shall remain in full force and effect and remain binding upon the Parties (Client and Consultant).
55. In the event that any competent tribunal or court of Law should decide that one or more of these terms or conditions are unenforceable, the Parties (Client and Consultant) hereby agree to honour all such terms and conditions in good faith.
Liability period
56. The period of the Consultant’s liability is from the date hereof to 6 years after completion of the Services (or termination of this agreement if earlier) or such earlier date as may be prescribed by law.
Governing law
57. This agreement shall be governed by and construed in all respects in accordance with the laws and Jurisdiction of England.