The Client's attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
1.1 Definitions. In these Conditions, the following definitions apply:
|Additional Charges||has the meaning set out in clause 5.1.|
|Additional Services||has the meaning set out in clause 5.1.|
|Business Day:||a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.|
|Charges:||the charges payable by the Client for the supply of the Services in accordance with clause 8.|
|Client:||the person or firm who purchases Services from the Consultant.|
|Commencement Date:||has the meaning set out in clause 2.2.|
|Conditions:||these terms and conditions as amended from time to time in accordance with clause 16.8.|
|Consultant:||Acres Building Consultants Limited registered in England and Wales with company number 07768324.|
|Consultant Materials:||all materials, equipment, documents and other property of the Consultant.|
|Contract:||the contract between the Consultant and the Client for the supply of Services in accordance with these Conditions.|
|Deliverables:||the deliverables produced by the Consultant for the Client in relation to the Project.|
|Fee Rates:||the fee rates set out in the Order Form or subsequently notified in writing by the Consultant to the Client.|
|Intellectual Property Rights:||all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|Order Form:||the Consultant’s order form.|
|Payment Schedule:||the payment dates, intervals or stages set out in the Order Form or subsequently agreed in writing between the Consultant and the Client.|
|Services:||the services, including the Deliverables, supplied by the Consultant to the Client as set out in the Order Form.|
|Time Scale for Services:||the period set out in the Order Form|
1.2 Construction. In these Conditions, the following rules apply:
- 1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- 1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
- 1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference
to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or
- 1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and
shall not limit the sense of the words preceding those terms; and
- 1.2.5 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order Form constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The terms contained in the Order Form shall only be deemed to be accepted when the Consultant signs the Order Form at which point and on
which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise,
representation, assurance or warranty made or given by or on behalf of the Consultant which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Consultant, and any descriptions or illustrations contained in the Consultant's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in
them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied
by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Consultant shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Consultant shall supply the Services to the Client in accordance with the description or specification set out in the Order Form in all material
3.2 The Consultant shall use all reasonable endeavours to meet the Time Scale for Services, but any dates shall be estimates only and time shall
not be of the essence for performance of the Services.
3.3 The Consultant shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety
requirement, or which do not materially affect the nature or quality of the Services, and the Consultant shall notify the Client in any such event.
3.4 The Consultant warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 The Consultant holds professional indemnity insurance as set out in the Order Form.
3.6 Except as permitted under clause 4 in respect of surveying services in respect of below ground structures, the Consultant is not required to
undertake any action that would risk damage to person or property.
4. SPECIFIC PROVISIONS REGARDING BUILDING SURVEYING SERVICES
4.1 Inspection: The Consultant shall inspect as much of the surface area as is possible but will not inspect those areas that are covered,
inaccessible or unexposed, unless instructed to do so and, if so instructed, and opening up works or damage is necessary, the Client shall be
responsible for engaging a suitable contractor for making good and the cost of the contractor and making good.
4.2 If instructed to do so by the Client, the Consultant shall lift loose floorboards or trap doors not covered by heavy objects or fitted floor coverings. Heavy items of furniture shall not be moved. It is the Client’s responsibility to arrange for heavy items to be moved prior to provision of the Services. If the Client instructs the Consultant to lift up fitted floor coverings, the Client shall be responsible for arranging for fitted floor coverings
to be refitted and the cost of refitting.
4.3 This sub-clause applies if roof inspection is within the scope of the Services. The Consultant shall inspect roof spaces not higher than three (3)
metres above ground level if suitable hatches are present. Other roofs shall be inspected using binoculars, except if the Consultant (at his sole 1
discretion) is satisfied by evidence provided by the Client or the Client’s contractor that such roofs are not fragile, there are no other risks
including asbestos and that safe means of access has been provided.
4.4 The inspection shall include boundaries, grounds and permanent outbuildings, if requested.
4.5 The Consultant shall carry out a visual inspection of the service installation where accessible, carry out a limited check that it is in working order
(if requested) and advise if specialist tests are required. The Consultant will not test or assess the efficiency of electrical, gas, plumbing, heating
or drainage installations, or compliance with current regulations, or the internal condition of any chimney, boiler or other flue.
4.6 The Consultant shall identify any areas that were unable to be included in the inspection but are recommended for further investigation. The Consultant will not inspect woodwork or other parts of the structure which are covered, unexposed or inaccessible. All such areas will be assumed to be sound and in good repair and free from defects. The Consultant will not express an opinion about, nor will it advise on the condition of uninspected parts. This does not imply any representation or statement about such parts. The Consultant is unable to comment on
the condition of inaccessible areas.
4.7 If requested by the Client, the Consultant may drill holes in elements of the property but shall not be obliged to do so and in any case, will not
drill holes greater than 10mm in diameter. The Client shall be responsible for making good such holes.
4.8 If requested by the Client, for units forming part of a larger building or group or related buildings the inspection shall also include:
- 4.8.1 the remainder of the exterior of the building in which the property is situated;
- 4.8.2 the common services and communal areas serving the property; and
- 4.8.3 any garages and substantial outbuildings forming part of the larger property.
4.9 The Consultant will carry out non-destructive inspection. The Consultant will advise the Client if opening up works are required in order to report fully and provide a diagnosis of an issue. The Client shall be responsible for instructing a suitable contractor under a separate contract directly with such contractor and the provisions of clause 4.18 shall apply.
4.10 Hazardous material: The Consultant shall assume that no deleterious or hazardous materials or techniques have been used in the construction of the property but shall advise the Client of any opinion that such conditions exist and require further investigation.
4.11 Ground conditions: The Consultant shall not be required to comment on the existence of contamination but shall recommend further investigation by a specialist if necessary.
4.12 Consents, approvals and searches: If the Consultant is given a copy of the lease for the property, the Consultant shall report on any unusual or onerous restrictions. Otherwise, the Consultant shall be entitled to assume that the property is not subject to any unusual or onerous restrictions.
4.13 The Consultant shall be entitled to assume that all planning, building regulations and other consents required for the property have been obtained and is not required to verify any information in this respect.
4.14 Drawings and plans supplied to the Consultant by the Client shall be inspected by the Consultant at the Consultant’s absolute discretion.
4.15 Report (if agreed as part of the scope of the Services): The Consultant shall be entitled to assume that the property is unaffected by any matters that would be revealed by a Local Search, replies to the usual enquires or by a Statutory Notice, and that the condition, use or intended
use of the property is lawful.
4.16 The report shall advise the Client on the visible condition of the property with reference to any significant defects, hazards or other problems
that are likely to have a material effect on its use or value.
4.17 The report shall include statements on:
- 4.17.1 the main aspects of the property including the site, location, design, structural framework, fabric and services;
- 4.17.2 any serious defects;
- 4.17.3 repairs required in the immediate or near future;
- 4.17.4 any material defect or hazard that may affect the use or value of the property;
- 4.17.5 the grounds, boundaries and environmental aspects relevant to the property;
- 4.17.6 any compliance issues arising in connection with fire, environmental health or disability regulations;
- 4.17.7 any other issues requiring further investigation.
4.18 The report may include a schedule of works in relation to the Consultant’s recommendations, indicating costs and a total cost for works based on costs supplied by a contractor of the Client’s choice or suggested by the Consultant. If contractors are appointed:
- 4.18.1 The engagement of the contractor constitutes a separate contract between the Client and the contractor; and
- 4.18.2 The Client shall be responsible for paying such contractor; and
- 4.18.3 The Consultant shall not be a party to the contract between the Client and the contractor; and
- 4.18.4 The Client acknowledges and agrees that the Consultant shall not be liable to it for any losses (whether direct or indirect), including
loss of profit, arising in connection with any act or omission of any such contractor. For the avoidance of doubt, this shall not affect the
Client’s right to pursue such contractors directly; and
- 4.18.5 The Client acknowledges and agrees that we shall not be liable to the Client for any losses (whether direct or indirect), including loss
of profit, arising from the Consultant’s reasonable reliance on the advice or any material, document or information produced by any
such contractor. For the avoidance of doubt, this shall not affect the Client’s right to pursue such contractors directly.
4.19 The report is for the sole use of the Client and their appointed professional advisors only. The Client must not disclose the contents or any part
thereof to any other third party without the written permission of the Consultant.
4.20 The report may advise that further specialist investigation is required for which Additional Charges will be chargeable.
5. ADDITIONAL SERVICES
5.1 If at any time the Client requires the Consultant to perform any services which are not identified in the Order Form (Additional Services), the
Client shall pay the Consultant for such Additional Services at the Consultant’s Fee Rates unless otherwise agreed. If the Client requires any Additional Services, the Consultant shall inform the Client of the estimated additional fee to be charged (Additional Charges). Unless otherwise agreed, the Additional Charges will be payable on completion of the Additional Services in accordance with clause 8.
6. CLIENT'S OBLIGATIONS
6.1 The Client shall:
- 6.1.1 ensure that the terms set out in the Order Form and any information it provides are complete and accurate;
- 6.1.2 co-operate with the Consultant in all matters relating to the Services;
- 6.1.3 provide the Consultant, its employees, agents, consultants and subcontractors, with access to the Client's premises, office
accommodation and other facilities as reasonably required by the Consultant;
- 6.1.4 provide the Consultant with such information and materials as the Consultant may reasonably require in order to supply the Services,
and ensure that such information is accurate in all material respects;
- 6.1.5 prepare the Client's premises for the supply of the Services;
- 6.1.6 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services
are to start; and
- 6.1.7 keep and maintain the Consultant Materials at the Client's premises in safe custody at its own risk, maintain the Consultant Materials
in good condition until returned to the Consultant, and not dispose of or use the Consultant Materials other than in accordance with the
Consultant's written instructions or authorisation.
6.2 If the Consultant's performance of any of its obligations under the Contract is prevented or delayed or the conclusion or recommendations of
the Consultant affected by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
6.2.1 the Consultant shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the
Client Default prevents or delays the Consultant's performance of any of its obligations; 2
6.2.2 the Consultant shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Consultant's failure or delay to perform any of its obligations or from conclusions or recommendations of the Consultant affected as set out in this clause 6.2; and
6.2.3 the Client shall reimburse the Consultant on written demand for any reasonable costs or losses sustained or incurred by the Consultant arising directly or indirectly from the Client Default.
7. CANCELLATION AND ABORTIVE FEES
7.1 In the event of cancellation by the Client, the Charges shall be:
- 7.1.1 on a time and materials basis plus any expenses incurred under clause 8.3 if the cancellation notice is received after the
Commencement Date and before the scheduled start date of the Services;
- 7.1.2 75% of the Charges if the report type ordered is a full report and the cancellation notice is received after a survey or inspection has
been carried out; or
- 7.1.3 100% of the Charges if the report type ordered is an email-style report and the cancellation notice is received after a survey or inspection
has been carried out,
8. CHARGES AND PAYMENT
8.1 The Charges for the Services shall be as set out in the Order Form. The Consultant shall be paid in accordance with the terms of the Contract.
8.2 Where the Services are provided on a time and materials basis, as indicated in the Order Form:
- 8.2.1 the Charges shall be calculated in accordance with the Consultant's Fee Rates;
- 8.2.2 the Consultant's Fee Rates for each individual are calculated on the basis that Services will be provided during the hours 8.00 am to
5.00 pm on Business Days;
- 8.2.3 the Consultant shall be entitled to charge an overtime rate of 25 per cent of the Fee Rates on a pro-rata basis for each part hour or for
any time worked by individuals whom it engages on the Services outside the hours referred to in clause 8.2.2; and
- 8.2.4 the Consultant reserves the right to increase its Fee Rates, provided that such charges cannot be increased more than once in any 12 month period. The Consultant will give the Client written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Client, it shall notify the Consultant in writing within 2 weeks of the date of the Consultant's notice and the Consultant shall have the right without limiting its other rights or remedies to terminate the Contract by giving 4 weeks'
written notice to the Client.
8.3 The Consultant shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Consultant engages in
connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Consultant for the performance of the Services, and for the cost of any materials.
8.4 The Consultant shall be entitled to vary the Charges to take account of any additional work, in addition to any fixed charges or limit agreed with the Client and set out in the Order Form, required to complete the Services which was not anticipated on the Commencement Date and any variation shall be notified to the Client in writing by the Consultant.
8.5 Where it is stated in the Order Form that the Time Scale for Services is less than 45 days, the Consultant shall be entitled to apply for payment of the Charges upon completion of the Services. Where it is stated in the Order Form that the Time Scale for Services is more than 45 days, or where the duration is not stated, the Consultant shall be entitled to apply for payment of the Charges by instalments on the dates or at the intervals or upon completion of the stages stated in the Order Form.
8.6 The Consultant shall submit to the Client a payment notice (Payment Notice) stating the sum that the Consultant considers will become due on the date in the Payment Schedule and accompanied by such supporting detail and information as the Client may reasonably require.
8.7 Payment shall become due on the date the Client receives each Payment Notice (Due Date). Subject to clause 8.8 and unless otherwise set
out in the Order Form, the Client shall pay the Contractor within 14 days of the Due Date (Final Date) the sum stated in the Payment Notice in
cleared funds to a bank account nominated in writing by the Consultant. Time for payment shall be of the essence of the Contract.
8.8 No later than 5 days before the Final Date, the Client may give the Consultant notice that it intends to pay less than the notified sum (Pay Less Notice), specifying the sum the Client considers to be due to the Consultant on the date in the Payment Schedule and the basis on which that sum is calculated. Where a Pay Less Notice is given, the sum due for payment to the Consultant shall be the sum stated in the Pay Less Notice.
8.9 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Consultant to the Client, the Client shall, on receipt of a valid VAT invoice from the Consultant, pay to the Consultant such additional amounts in respect of VAT as are chargeable on the supply of the
Services at the same time as payment is due for the supply of the Services.
8.10 Without limiting any other right or remedy of the Consultant, if the Client fails to make any payment due to the Consultant under the Contract
by the Final Date, the Consultant shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current The Co-Operative Bank P.L.C.'s base rate accruing on a daily basis from the Final until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
8.11 The Consultant shall also be entitled to recover all reasonable costs and expenses incurred in obtaining payment from the Client where any payment due to the Consultant is late.
8.12 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Consultant in order to justify withholding payment of any such amount in whole or in part. The Consultant may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Consultant to the Client.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Consultant.
9.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Consultant obtaining a written licence from the relevant licensor on such terms as will entitle the Consultant to license such
rights to the Client.
9.3 All Consultant Materials are the exclusive property of the Consultant.
10. DAT A PROTECTION
10.1 The Consultant shall process personal data in accordance with its Fair Processing Notice attached to the order form.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Consultant's liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 Subject to clause 12.1, the following types of loss are wholly excluded by the parties: 3
- 12.2.1 loss of profits and revenue;
- 12.2.2 loss of sales or business;
- 12.2.3 loss of agreements or contracts;
- 12.2.4 loss of anticipated savings;
- 12.2.5 loss of use or corruption of software, data or information;
- 12.2.6 loss of or damage to goodwill; and
- 12.2.7 indirect or consequential loss.
Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges and Additional Charges payable under the Contract, or for a claim covered by the Consultant’s professional indemnity insurance, five million pounds (£5,000,000).
12.4 The Consultant’s total liability to the Client in respect of any claim for which the Consultant is indemnified under the Consultant’s professional indemnity insurance policy shall in no circumstances exceed the cover level stated in the Order Form.
12.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.6 Unless the Client notifies the Consultant that it intends to make a claim in respect of an event within the notice period, the Consultant shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 The Services are intended only for the Client and no liability is assumed towards any other party and nothing in the Contract shall confer or purport to confer on any third party a benefit or right to enforce any provision of these Conditions.
12.8 This clause 12 shall survive termination of the Contract.
13. TERMINATION AND SUSPENSION
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- 13.1.1 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
- 13.1.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- 13.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- 13.1.4 the other party (being an individual) is the subject of a bankruptcy petition or order;
- 13.1.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged
within 14 days;
- 13.1.6 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an
administrator is given or if an administrator is appointed over the other party (being a company);
- 13.1.7 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has
appointed an administrative receiver;
- 13.1.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other
- 13.1.9 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause 13.1.1 to clause 13.1.8 (inclusive);
- 13.1.10 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
- 13.1.11 the other party’s financial position deteriorates to such an extent that in the Consultant’s opinion the Client’s capability to adequately
fulfil its obligations under the Contract has been placed in jeopardy;
- 13.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing
his own affairs or becomes a patient under any mental health legislation; or
- 13.1.13 the other party is in material breach of its obligations under the Contract and fails to remedy that breach within 30 Business Days of
receiving written notice requiring it to do so.
13.2 Without limiting its other rights or remedies, the Consultant may terminate the Contract with immediate effect by giving written notice to the
Client if the Client fails to pay any amount due under this Contract on the Final Date for payment.
13.3 Without limiting its other rights or remedies, the Consultant shall have the right to suspend provision of the Services under the Contract or any
other contract between the Client and the Consultant if the Client becomes subject to any of the events listed in clause 13.1.1) to clause 13.1.12, or the Consultant reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the Final Date for payment.
14. CONSEQUENCES OF TERMINATION
14.1 On termination of the Contract for any reason:
- 14.1.1 the Client shall immediately pay to the Consultant all of the Consultant's outstanding unpaid invoices and interest and, in respect of
Services supplied but for which no invoice has been submitted, the Consultant shall submit an invoice, which shall be payable by the
Client immediately on receipt;
- 14.1.2 the Client shall return all of the Consultant Materials and any Deliverables which have not been fully paid for. Until they have been
returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract. If the Client fails to return such Consultant Materials and Deliverables, then the Consultant may enter the Client's premises and take possession of them;
- 14.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- 14.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15. COMPLAINTS AND ALTERNATIVE DISPUTE RESOLUTION
15.1 In the event that the Client has a complaint regarding the standard of service that has been provided, the Client shall follow the Consultant’s formal complaint handling procedure, a copy of which is available on request from the Director of the Consultant, and the parties shall attempt in good faith to resolve the complaint.
15.2 Without prejudice to clause 15.1, either party may at any time refer any dispute arising under the Contract to adjudication under the Scheme for Construction Contracts (England and Wales) Regulations 1998, Part 1. The parties shall attempt to agree the identity of the adjudicator. If the parties fail to reach such agreement within 5 days after one party notifies the other that it wishes to agree the identity of the adjudicator, the adjudicator shall be appointed by the President or Vice-President for the time being of the Royal Institution of Chartered Surveyors. The
to clauses 12.1 and 12.2, the Consultant’s total liability to the Client in respect of all losses arising under or in connection with the 4 adjudicator’s decision shall be binding on the parties provided that any dispute in connection with the enforcement of a decision of the adjudicato shall be referred to the court.
16.1 Force majeure:
- 16.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Consultant including
but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Consultant or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Consultants or subcontractors.
- 16.1.2 The Consultant shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- 16.1.3 If the Force Majeure Event prevents the Consultant from providing any of the Services for more than 26 weeks, the Consultant shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
16.2 Assignment and subcontracting:
- 16.2.1 The Consultant may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights
under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or
- 16.2.2 The Client shall not, without the prior written consent of the Consultant, assign, transfer, mortgage, charge, subcontract, declare a trust
over or deal in any other manner with all or any of its rights or obligations under the Contract.
- 16.3.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered personally or sent by prepaid first-class post, recorded delivery or by commercial courier to its principal place of business as stated in the Order Form or subsequently notified to the other party in writing, or sent by fax to the other party's main fax number or by e-mail to the e-mail address specified in the Order Form.
- 16.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax or e-mail, on the next Business Day after transmission.
- 16.3.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- 16.4 Waiver:
16.4.1 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 16.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- 16.5 Severance:
- 16.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- 16.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.6 No partnership or agency: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.7 Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract,
shall only be binding when agreed in writing and signed by the Consultant.
16.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation
(including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and subject to clause 15 the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales in respect of such disputes or claims.