Terms and Conditions of Engagement
This document sets out the Terms and Conditions of Engagement (the “Conditions”) which shall govern the appointment of Bradbrook Consulting Limited (“Bradbrook Consulting”) by the Client. The operation of the Conditions may only be varied or excluded by express written agreement between the Parties.
Bradbrook Consulting shall perform the Services described in the Letter of Engagement in accordance with the terms set out therein, save to the extent that such terms are inconsistent with these Conditions, in which case, these Conditions shall prevail.
Bradbrook Consulting shall discuss with the Client any extra or additional services the Client may require Bradbrook Consulting to perform in addition to the Services. Bradbrook Consulting shall be entitled to reimbursement for the performance of any services in addition to the Services detailed in the Letter of Engagement. Reimbursement shall be in accordance with the rates set out in the Letter of Engagement. Where rates are not provided the rates in schedule 1 herein shall be used.
Bradbrook Consulting is entitled to the payment of the Fee (plus VAT) on the basis set out in the Letter of Engagement. In addition to the Fee, Bradbrook Consulting reserves the right to charge for disbursements and expenses (including but not limited to search fees, travel costs and time, subsistence, copying charges and telephone charges) where not expressly included in the Letter of Engagement.
BRADBROOK CONSULTING’S OBLIGATIONS
Skill and Care
In performing the Services (including any Additional Services), Bradbrook Consulting shall exercise the reasonable skill, care and diligence to be expected of a qualified and experienced member of Bradbrook Consulting’s profession undertaking services on works similar in scope and character to the Project.
Bradbrook Consulting may sublet the performance of part of the Services to a specialist Sub-Consultant or Sub-Consultants. Bradbrook Consulting shall integrate such Sub-Consultants’ services into the Services. Bradbrook Consulting shall be responsible for the performance and the payment of any Sub-Consultants directly appointed under this Clause.
Design Elements by Contractors
Bradbrook Consulting may recommend that the detailed design of any part of the Works should be carried out by a Contractor supplier or Sub-Contractor. Consent shall not unreasonably withhold to such recommendation. Bradbrook Consulting shall examine such detailed design in accordance with the provisions of the schedule of services.
Bradbrook Consulting’s Representative
Bradbrook Consulting shall designate a Representative who shall be deemed to have full authority to give and receive notices on behalf of Bradbrook Consulting under this Agreement. The Representative will also be responsible for the daily supervision and administration of the Services and who shall be deemed to have full authority to make decisions on behalf of Bradbrook Consulting under this Agreement.
Bradbrook Consulting have a written complaints procedure that can be provided to the Client if a problem should arise and the Client wishes to make a complaint. In the first instance, any complaint should be addressed to Bradbrook Consulting’s Representative as set out in the Letter of Engagement. Bradbrook Consulting will investigate any complaint promptly, fairly and effectively and, on any complaint being made, Bradbrook Consulting will inform the Client how it will be handled, and the timescale within which the Client will receive a substantive response.
THE CLIENT’S OBLIGATIONS
Information Required by Bradbrook Consulting
The Client shall supply to Bradbrook Consulting, without charge and in such time so as not to delay or disrupt the performance by Bradbrook Consulting of the Services, all necessary and relevant data and information (including details of the services to be performed by any Lead Consultant if Bradbrook Consulting is not so appointed and any other consultants) in the possession of the Client, the Client’s agents, servants, any Lead Consultant if Bradbrook Consulting is not so appointed, any other consultants or any contractors.
The Client shall give the Client’s decisions, instructions, consents or approvals on or to all matters properly referred to the Client by Bradbrook Consulting in such reasonable time so as not to delay or disrupt the performance of the Services by Bradbrook Consulting.
The Client shall designate a Client’s Representative who shall be deemed to have the full authority of the Client.
The Client will not, during performance of the Services and for a period of 12 months after the completion of the Services, seek to entice away from Bradbrook Consulting or solicit the employment, services or engagement in office of any Bradbrook Consulting employee.
If no payment installments are stated in the Letter of Engagement, the due date for payment shall be at the end of each calendar month in respect of the performance of any Services and/or any Additional Services undertaken prior to such due date. Bradbrook Consulting will submit an invoice for sums due following each due date. The final date for payment of an Invoice shall be twenty-eight (28) days following the relevant due date. The Client may, no later than seven (7) days before a final date for payment, given written notice to Bradbrook Consulting specifying the sum that the Client considers to be due on the date the notice is served, and the basis on which that sum is calculated. The Client shall make payment to Bradbrook Consulting on or before the final date for payment.
All sums due under this Agreement are exclusive of Value Added Tax, the amount of which shall be paid by the Client to Bradbrook Consulting at the rate and in the manner prescribed by law.
SUSPENSION AND TERMINATION
Suspension by the Client
The Client may at any time by notice require Bradbrook Consulting to suspend the performance of all or any part of the Services. On notice of suspension of all or any part of the Services, Bradbrook Consulting shall cease such suspended services in an orderly and economical manner compatible with a possible order to restart. If the suspension of the performance of all or any part of the Services exceeds six months in aggregate, Bradbrook Consulting may, by giving four weeks’ notice, treat the Works or the Project or part of the Works or part of the Project as having been abandoned and Bradbrook Consulting’s appointment in respect of all or any part of the Services affected shall be terminated.
Suspension by Bradbrook Consulting
Upon the occurrence of any circumstance beyond the control of Bradbrook Consulting that is such as to prevent or significantly impede the performance by Bradbrook Consulting of the Services under this Agreement, Bradbrook Consulting may, without prejudice to any other remedy, suspend the performance of the Services under this Agreement in respect of all or such parts of the Works as are affected. Bradbrook Consulting may, if the suspension exceeds 6 months in aggregate, terminate its appointment forthwith by a further notice in respect of all or any parts of the Services affected.
Termination by the Client following a breach by Bradbrook Consulting
In the event of a breach of this Agreement by Bradbrook Consulting, the Client may give two weeks’ notice of its intention to terminate the appointment of Bradbrook Consulting; setting out the acts of omissions of Bradbrook Consulting relied upon as evidence of such breach. If Bradbrook Consulting does not, to the reasonable satisfaction of the Client, take expeditious steps to repair the breach during the notice period, the Client may, on the expiry of the notice period, terminate Bradbrook Consulting’s appointment by a further notice, setting out the nature of the outstanding acts of omissions of Bradbrook Consulting.
Termination by Bradbrook Consulting in Certain Circumstances
If circumstances arise for which Bradbrook Consulting is not responsible, and which Bradbrook Consulting considers make it irresponsible for it to perform all or any part of the Services, Bradbrook Consulting shall be entitled to terminate its appointment by two weeks’ notice in respect of all or such part of the Services.
Termination by Bradbrook Consulting following a breach by the Client
In the event of a breach of this Agreement by the Client, Bradbrook Consulting may give two weeks’ notice of its intention to terminate the appointment, setting out the acts or omissions of the Client relied upon as evidence of such breach. If the Client does not, to the reasonable satisfaction of Bradbrook Consulting, take expeditious steps to repair the breach during the notice period, Bradbrook Consulting may on the expiry of the notice period, terminate its appointment by a further notice.
COPYRIGHT AND CONFIDENTIALITY
The copyright in all drawings, reports, specifications, calculations and other documents and information (including any stored electronically) (the “Documents”) prepared by Bradbrook Consulting in connection with the Services shall remain vested in Bradbrook Consulting. Subject to the payment of all fees which become due, Bradbrook Consulting shall grant the Client an irrevocable, non-exclusive licence to use the Documents for any purposes for which they were originally produced. Such a licence shall not entitle the Client to copy and use the Documents for any extension of the Project to which the Services relate, and shall not include a licence to reproduce the designs contained in them for any Project to which the Services do not relate.
Bradbrook Consulting shall not be responsible for the use of the documents for any purpose other than that for which they were originally prepared.
Save as provided in the next paragraph, or as may be necessary for the proper performance of the Services, neither party shall disclose to any other person any information regarding the Services or the Project to which they relate, without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed.
Information regarding the Services or the Project may be disclosed by the Parties to their banks, lenders, legal advisors, accountants or auditors, or may be disclosed as required by law.
LIABILITIES AND INSURANCE
Bradbrook Consulting shall maintain professional indemnity insurance of not less than five million pounds sterling (£5,000,000) for each and every claim for a period of six years, provided that such insurance remains available from a reputable insurance company based within the United Kingdom at commercially reasonable rates and terms.
Limitation of Liability
No action or proceeding under or in respect of this Agreement, whether in contract or in tort or in negligence or for breach of statutory duty or otherwise, shall be commenced against Bradbrook Consulting after the expiry of six years from the completion of the Services.
Notwithstanding anything to the contrary contained in these Terms, and save in respect of (i) death or personal injury caused by Bradbrook Consulting’s negligence, or (ii) fraud or fraudulent misrepresentation:
Bradbrook Consulting’s liability under or in connection with the Services, whether in contract, or in tort, in negligence, for breach of statutory duty or otherwise, shall not exceed the sum of five million pounds sterling (£5,000,000) in aggregate;
Bradbrook Consulting’s liability for any claim or claims arising out of or in connection with pollution or contamination, terrorism and/or asbestos shall be £nil.
Save in respect of (i) death or personal injury caused by Bradbrook Consulting’s negligence, or (ii) fraud or fraudulent misrepresentation, and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of Bradbrook Consulting for any loss or damage in respect of any claims shall not exceed such sum as it would be just and equitable for Bradbrook Consulting to pay having regard to the extent of Bradbrook Consulting’s responsibility for the loss or damage on the basis that other parties responsible for such loss or damage are deemed to 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.
Liability of Employees
The Client shall only look to Bradbrook Consulting, and not to any of Bradbrook Consulting’s personnel, for redress if the Client considers that there has been a breach of this Agreement. The Client agrees not to pursue any claims in contract, in tort or statute (including negligence) against any of Bradbrook Consulting’s personnel, as a result of carrying out of Bradbrook Consulting’s obligations under, or in connection with this Agreement at any time and whether or not any of Bradbrook Consulting’s personnel are named expressly in this Agreement and/or the Letter of Engagement.
Where Bradbrook Consulting has expressly agreed in the Letter of Engagement to provide collateral warranties to third parties, Bradbrook Consulting shall only enter into such collateral warranties provided that it does not give any greater benefit to those to whom they are issued than owed to the Client under this Agreement. It shall be a condition precedent of the provision of such collateral warranties that all fees due to Bradbrook Consulting at the date of execution of the collateral warranty have been paid. Where the form of collateral warranty is not known at the date of entering into the Agreement, the Client undertakes to pay to Bradbrook Consulting £500 per beneficiary for the review and approval of such collateral warranties.
Neither Party may assign the benefit of this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
Any dispute or difference of whatsoever nature arising under or in connection with this Agreement shall be the subject of a meeting between senior management of both Parties within fourteen (14) days of one party giving written notice to the other of such dispute or difference, and the Parties shall use reasonable endeavours to resolve such dispute or difference.
Either Party may give the other written notice of its intention to refer a dispute or difference to Adjudication at any time. The Adjudication shall be conducted in accordance with the TeCSA Adjudication Rules from time to time in force.
The Parties agree the Adjudicator shall subject only to the acceptance by the proposed adjudicator of the proposed appointment be selected from the following list (in any order):
· David Loosemore
· Franco Mastrandrea, Hill International
· Finola O’Farrell QC, Keating Chambers
· John Wright, Goodman Derrick LLP
If the Parties are unable to agree the appointment of any person referred to above then upon the application of either Party, the Chairman of TeCSA shall appoint an Adjudicator.
Any notice to be given under this Agreement shall be in writing and given in person or by sending the same by first class letter to the Client’s Representative on behalf of the Client, or Bradbrook Consulting’s Representative on behalf of Bradbrook Consulting at the addresses stated in the Letter of Engagement. Notices shall take effect when they have been received by the Client or Bradbrook Consulting if delivered by hand, or 2 days after posting by first class post. For the avoidance of doubt, any notice sent by email shall not be an effective notice under the terms of this Agreement.
If any provision of this Agreement is, or becomes to any extent, invalid or unenforceable under any applicable law, then the remainder of this Agreement shall continue in full force and effect.
THIRD PARTY RIGHTS
Nothing in the Contracts (Rights of Third Parties) Act 1999 shall operate to give any third party the right to enforce any provision of these Terms or confer any benefit on any third party.
BRIBERY ACT COMPLIANCE
The Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption practices including the Bribery Act 2010 and any guidance issued under Section 9 of such Act.
The Client shall promptly report to Bradbrook Consulting any request or demand for any financial or other advantage of any kind offered, promised or given to the Client in connection with the performance of this Agreement.
The Client shall notify Bradbrook Consulting in writing in the event that a foreign public official becomes an officer or employee of the Client or acquires a direct or indirect interest in the Client and the Client warrants that no officer, employee or director or indirect owner of it is a foreign public official as at the date of this Agreement.
This Agreement shall be governed by and construed in accordance with the law of England and Wales, and subject to the Dispute resolution clauses above the Parties agree that all differences or disputes of whatever nature arising under or in connection with this Agreement shall be tried in the Technology and Construction Court in London.
Schedule 1: Standard Schedule of Rates for Additional Services
|Executive Director||TBC||Resident Engineer||TBC|
|Technical Director||TBC||3D CAD||TBC|
|Project Director||TBC||Close Out Manager||TBC|
|Chartered Surveyor||TBC||BMS Associate||TBC|
|Associate Director||TBC||BMS Engineer||TBC|
|Senior Surveyor||TBC||CDM Coordinator||TBC|
|Associate Engineer||TBC||Senior CDM Coordinator||TBC|
|Senior Engineer||TBC||LEED Engineer||TBC|
|Intermediate Engineer||TBC||Project Coordinator||TBC|
|Grad Engineer||TBC||Document Controller||TBC|