Terms & Conditions
Below is a copy our standard working terms & conditions
“Agreement” means the contract between the Company and the Client for the Services which incorporates these terms (and which shall apply to the exclusion of any terms and conditions proposed by the Client).
“Client” means the person or organisation entering into the Agreement with the Company.
“Disbursements” means normal costs and out of pocket expenses incurred and recoverable by the Company, including, but not limited to, telecommunications, postage, printing, travel subsistence and accommodation.
“Fee(s)” means the remuneration for the Services payable to the Company under the Agreement.
“Company” means Avie Consulting Ltd.
“Project” means the (construction) project in respect of which the Services are to be provided.
“Project Cost” means the total cost to the Client of the Project including all amounts payable to contractor(s) by the Client and ancillary costs relating to utilities, etc. (but excluding VAT).
“Services” means the Normal and Additional Services provided by the Company.
“Normal Services” means the services described in the Company’s offer letter dated [Date] to be performed by the Company as agreed in writing with the Client.
“Additional Services” means any further Services not initially covered by the Agreement including revisions to any designs, specifications or reports.
“Warranty” means a warranty to a third party, in a form acceptable to the Company.
2. CARE AND DILIGENCE
The Company shall exercise reasonable skill, care and diligence in the performance of the Services.
3. COMMENCEMENT AND DURATION
The Agreement shall be deemed to commence on the earlier of the Company’s receipt of a letter of instruction from the Client or the date upon which the Company commences performance of the Services and will continue until completion of the Services or earlier termination in accordance with these Conditions.
Where the Company has discretion exercisable as between the Client and any other party, the Company shall exercise that discretion fairly.
The Company shall request, and the Client shall supply, information, assistance and decisions in a timely manner. The Company shall use reasonable endeavours to adhere to the programmes agreed for the Services unless it is unable to do so for reasons beyond its control (including acts or omissions of the Client or third parties).
Copyright in all drawings, reports, specifications, bills of quantities, calculations and other documents and information prepared by or for the Company will remain vested in the Company. The Client, subject to paying all fees and disbursements due under the Agreement, shall have a licence to copy and use all such documents for any purpose related to the Project (but not to reproduce any designs for an extension or for any new construction work). We shall not be liable for the use of any such drawings or documents for any purpose other than that for which the same were prepared by us.
7. POLLUTION, CONTAMINATION, TERRORISM AND ASBESTOS
Unless expressly agreed in writing, the Company shall have no duty to:-
(a) provide advice on actual or possible pollution or contamination or any related risk (whether past, present or future)
(b) design or take measures to prevent or mitigate the effect of terrorism
(c) provide advice in relation to asbestos or materials containing asbestos
(d) or to consider these matters as influencing any aspect of the Services.
The Client is solely responsible for deciding the extent to which pollution, contamination, terrorism or asbestos should be investigated and for taking appropriate steps in that regard.
8. STRUCTURAL INSPECTIONS
Where the Project comprises or includes an inspection of and/or report on existing structures, the Company will not inspect woodwork or other parts of the structures which are covered unexposed or inaccessible, and will therefore be unable to report that any such part of the property is free from defect. No checks will be carried out in respect of insect or fungal infestation.
9. SERVICES BY OTHERS
9.1 The Company may engage other specialist consultants with the Client’s prior agreement, not to be unreasonably withheld. The Company will be responsible for payment of such specialist consultants and costs incurred will be re-charged at cost plus 20%.
9.2 Where the Company as agent for the Client engages other consultants or contractors the Client will be directly responsible for payment of those consultants’ fees and expenses or contractors’ accounts.
9.3 The Company is entitled to rely on the designs prepared by other professionals and specialist sub-contractors/suppliers.
10. SITE STAFF
10.1 The Company will advise the Client on the extent to which Site Staff are to be deployed and the Client will not unreasonably withhold its consent to the Company’s detailed proposals.
10.2 The number, qualifications, duties and duration of engagement of staff on Site shall be agreed in writing in advance.
11.1 The Company maintains professional indemnity insurance and will use all reasonable endeavours to maintain such insurance for so long as it has any liability under the Agreement. Information concerning the Company’s professional indemnity insurance will be supplied upon request.
12.1 Save in respect of death or personal injury you shall only look to us (and not to any Individual) for redress if you consider that there has been any breach of this Agreement. You agree not to pursue any claims in contract, tort or statute (including negligence) against any Individual as a result of them carrying out their obligations under or in connection with this Agreement at any time and whether named expressly in this Agreement or not.
12.2 In no circumstances shall the liability of the Company to the Client (or any third party claiming through the Client) whether in contract or in tort (including but not limited to negligence) or for breach of statutory duty or otherwise (except in respect of death or personal injury) exceed the lesser of:-
(a) 10 times our Fee; or
(b) an amount equal to the proportion of the loss or damage suffered by the Client which is caused by the Company’s negligence or breach of contract calculated on the basis that all other consultants and contractors engaged in relation to the Project shall be deemed to have provided contractual undertakings on terms no less onerous than those of the Company in respect of their respective services or work and shall be deemed to have paid the Client the contribution for which each of them would have been liable pursuant to those undertakings; or
(c) the amount recoverable under our professional indemnity insurance.
12.3 Notwithstanding Clause 12.2, the Company shall have no liability to the Client (or to any third party claiming through the Client) whether in contract or in tort (including but not limited to negligence) or for breach of statutory duty or otherwise for any claim arising in connection with:-
(a) pollution, contamination, terrorism, asbestos or any related risk or
(b) designs or reports prepared by other professionals and specialist sub-contractors/suppliers.
12.4 The limitation period within which proceedings may be commenced under the Agreement shall expire six years after completion of the Services.
12.5 No warranty to a third party is offered. In the event that a Warranty is required an additional fee as noted in Clause 13 will be charged.
13.1 The Client will pay the Company the Fee as specified by the Company in writing and agreed by the Client. The Fee shall be payable in instalments in accordance with the letter of instruction or confirmation of instructions. The Fee may be time-based, lump sum or calculated as a percentage of Project Cost.
13.2 Time-based Fees shall, unless otherwise agreed, be at the hourly rates given in the Company’s offer letter. Time-based Fees shall be payable monthly in arrears. All Fees for Additional Services shall be time based unless agreed otherwise.
13.3 Lump sum Fee
This may be a single lump sum or a lump sum payable by instalments. Disbursements may be charged in addition or included – see Clause 14.
13.4 Percentage Fee
This may be agreed as a percentage of the Project Cost payable in instalments and Disbursements may be charged in addition or included – see Clause 14. Where the Fee is initially based on an estimate of Project Cost, it shall be adjusted to the actual Project Cost.
13.5 The additional fee for a warranty will be 15% of the Fee or £1,000 whichever is the greater.
Statutory fees and other charges which the Company agrees to pay will be recoverable at cost plus 20%
15.1 A credit limit calculated as the value of un-invoiced work in progress and unpaid invoiced amounts will be advised. Payment may be requested prior to the Services being carried out.
15.2 The Company shall send an invoice to the Client for each instalment of the fees and other sums payable under this Agreement. Each invoice shall specify:
(i) the sum that the Company considers will become due on the payment due date under Clause 15.3, and
(ii) the basis on which that sum is calculated.
15.3 Payment shall be due on the date the Client receives the Company’s invoice.
15.4 The Company’s invoice under clause 15.2 shall be the payment notice for the purposes of Section 110 A(1) of the Housing Grants, Construction and Regeneration Act 1996 as amended by Part 8 of the Local Democracy, Economic Development and Construction Act 2009
Final Date for Payment
15.5 The final date for payment shall be 28 days after the payment due date.
15.6 On or before the final date for payment, the Client shall pay to the Company either
(i) the sum stated as due in the Company’s invoice issued under clause 15.2 (“the Notified Sum”) or
(ii) the sum that the Client considers to be due as specified in any Pay Less Notice under clause 15.7.
Pay Less Notice
15.7 Not later than seven days before the final date for payment, the Client may give the Company a Notice that it intends to pay less than the Notified Sum (a “Pay Less Notice”). Any Pay Less Notice shall specify:
(i) the sum that the Client considers to be due on the date the Notice is served; and
(ii) the basis on which that sum is calculated
15.8 Sums due under the Agreement are exclusive of VAT which shall be added by the Client and paid to the Company at the applicable rate with each payment due to the Company.
16. SUSPENSION AND TERMINATION
16.1 The Client may terminate the Agreement or suspend any Services by giving two weeks notice in writing by either first class post or by fax to the Company at any time.
16.2 The Client may terminate the Agreement by notice to the Company if the Company commits a material breach of the Agreement and it fails to take steps to remedy the breach within two weeks of being required to do so in writing.
16.3 The Company may terminate the Agreement by giving two weeks notice in writing by either first class post or by fax to the Client at any time in the event of a breach by the Client which is not remedied within the notice period or in the event of suspension of Services exceeding six months. The Company may suspend any Services if the credit limit has been exceeded.
16.4 On termination or suspension, the Client shall pay for all Services carried out to the date of termination or suspension and (in the case of termination under 16.1 or 16.3) the Client shall reimburse the Company all expenses unavoidably incurred by the Company.
17. RESOLUTION OF DISPUTES
17.1 The parties will endeavour to resolve any dispute amicably. Each of them shall in good faith consider any proposal by the other that a dispute be referred to mediation. However, the Client or the Company may at any time refer any dispute to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure which shall be deemed incorporated in the Agreement. No mediator or adjudicator may be called to give evidence nor will any records of evidence, or of any opinion expressed in any mediation or adjudication proceedings be admissible as evidence in any subsequent proceedings except to the extent that facts have been established and agreed in those records.
17.2 Disputes shall be finally resolved by the English Courts.
18 GOVERNING LAW
The Agreement shall be governed by English law.
Neither party shall assign its interest in the Agreement without the prior written consent of the other.