1. The Agreement, the Parties and the Services
This Agreement is a contract for supply of services between the following Parties:
- The Client, to whom the proposal (“the Proposal”) is addressed and who may have provided the brief or terms of reference incorporated in the Proposal, and
- Horizon M & E Services Design Ltd, Company Registration No. 436356 who submitted the Proposal and whose principal office is situated at 48 Dunvegan Avenue, Kirkcaldy, KY2 5TG (“the Consultant”).
The Agreement includes these Terms of Agreement and the Proposal and constitutes the entire agreement between the Parties, supersedes any previous agreements between the Parties and applies to the services specified in the Proposal and any other services carried or to be carried out by the Consultant (“the Services”) relative to the project which is the subject matter of the Proposal (“the Project”) unless otherwise agreed in writing.
Unless notified in writing at the time of instructing the Consultant to proceed with the Services that the terms contained in this Agreement are not acceptable the Consultant reserves the right to assume that the Client accepts this Agreement and the terms contained therein these without qualification.
2. Consultant’s Obligations
The Consultant has exercised and will continue to exercise in relation to the performance of the Services all the skill and care reasonably to be expected of an appropriately qualified and competent professional consultant experienced in performing the same services which the Consultant is obliged to perform pursuant to this Agreement. The Consultant shall use reasonable endeavours to perform the Services in accordance with any programme agreed with 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 clause 12 during the persistence of such a condition or circumstance.
3. Third Party Rights
Save as expressly stated in clause 13 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 pursuant to the Contracts (Right of Third Parties) Act 1999.
4. Assignation and Sub-Letting
Neither Party shall assign or otherwise transfer any obligation or benefit under this Agreement without the prior written consent of the other Party which consent shall not unreasonably be delayed or withheld. Assignation shall be by absolute legal assignment only and only to a Party taking on the entire role of the Consultant or Client as the case may be in relation to the Project.
The Consultant may subcontract the Services and take responsibility for the sub-consultant. The Consultant may also recommend that detailed design of any part of the Project be carried out by a contractor/sub-contractor. The Consultant shall examine such design but shall not be responsible for it.
5. Collateral Warranties
Collateral warranties for the benefit of third parties and in respect of the entire project shall not be provided unless by agreement and additional payment. Such warranties shall be in the CIC’s relevant standard form or such other form as agreed with the Consultant, provided that such form shall not give any greater benefit to those to whom they are issued in quantum, duration or otherwise than is given to the Client under the terms of this Agreement. It shall be a condition of such collateral warranties that all fees due to the Consultant at the date of execution of the collateral warranty have been paid.
Insofar as the copyright therein vests in the Consultant and subject to the payment of any fees properly due under this Agreement, the Consultant hereby grants to the Client a non-exclusive, royalty free licence to use the drawings and other documents (“the Documents”) produced by the Consultant in connection with the Services for the purposes described in (or reasonably to be inferred from) this Agreement. 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 the Consultant.
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 for the purposes of carrying out its obligations pursuant to this Agreement or as obliged to do so by law.
7. Obligations of the Client
The Client warrants that it has the right to have the Services performed, and has obtained the 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 Client’s 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:
- any instructions, decisions, consents and approvals, and
- 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.
8. Site Operations
The Consultant in making such site visit(s) as may be agreed as part of the Services shall be the Client’s visitor. The Consultant shall not be deemed to have assumed the role of the occupier or otherwise to have assumed control or responsibility for the site or personnel on it. The Client shall notify any other consultants and contractors on the site (other than the Consultant’s sub-consultants):
- of the presence of the Consultant’s personnel; and
- of the extent (if any) to which the Consultant is authorised to direct/or supervise their work; and
- that the presence (or otherwise) of the Consultant’s personnel does not relieve them of their responsibilities including safety and their obligations under their respective contracts and agreements.
The Consultant shall take reasonable precautions and use reasonable endeavours to minimise damage to property, including utilities and other sub-surface obstructions. If notwithstanding such precautions and endeavours, any such property is damaged, the cost of rectification and all other losses shall be borne by the Client.
9. Estimates, Forecasts and Opinions of Cost
In the event that the Consultant or his personnel provides any indication of the cost of future work by the Consultant, such indications shall not constitute the offer of a fixed fee for the work, except in the case of a written proposal or quotation being provided by the Consultant and accepted in writing by the Client.
In the event that the Consultant or his personnel provides any indication of the cost of future work by others, such as for construction or remedial work, such indications shall not be deemed to guarantee that a contractor will be willing to execute the work at such a cost. The Consultant shall use reasonable skill and care in preparing realistic opinions and estimates which indicate the order of magnitude of future costs. The Client acknowledges that the actual cost of such work will be affected by many factors beyond the Consultant’s control and/or predictability.
The Client shall pay the Consultant for the Services. Unless otherwise agreed:
- Payments of any lump sum fee shall be in equal monthly instalments or as may be detailed in the Proposal but if no lump sum fee is agreed shall be on a time basis in accordance with the hourly rates detailed in the Proposal or subsequently agreed.
- All payments of fees shall be made monthly in arrears
- If the project cost rises then the total fees will be recalculated
Amounts quoted in this agreement exclude any Value Added Tax (“VAT”) payable under the law.
11. Additional Remuneration
If the Consultant has to carry out additional work and/or suffers delay or disruption in the performance of the Services including, without limitation, where the Project is varied by the Client (including changes to the Client’s brief whether as a result of the planning process or otherwise) or because additional services are performed by agreement with the Client or because of any delay by the Client in fulfilling their obligations or in taking steps necessary for the execution of the Project or because the Consultant is delayed by others (or by events which were not reasonably foreseeable) or because of other reasons beyond the control of the Consultant then the Client shall make an additional payment to the Consultant in respect of the additional work carried out and additional resources employed (unless and to the extent that the additional work has been occasioned by the failure of the Consultant to exercise reasonable skill and care) and/or the delay or disruption suffered on the basis of time-based fees as set out in clause 9 unless otherwise agreed.
12. Payment Procedure
The Client shall pay the Consultant each amount invoiced including VAT where applicable subject to correction of any error. If any part of an invoice is not agreed the Client shall promptly pay the other parts(s). If the amount invoiced, subject to any deductions which the Client was entitled to make, is not received by the Consultant within thirty days of the date on which the Consultant issued the invoice, the Client shall also pay to the Consultant interest compounded monthly at a rate equivalent to 4% per annum above the base lending rate of the Bank of Scotland.
13. Termination and Delay
Either Party may give 14 days written notice of termination to the other Party (without prejudice to either party’s right to terminate immediately in the event of insolvency of the other party). Payment to the Consultant in the event of termination shall comprise payments due for such Services carried out up to and including the date of termination together with any disbursements due under clause 9 hereof, the costs for repatriation (if any) and of any commitments entered into by the Consultant on the assumption that this Agreement would run its full course. Payment to the Consultant during the persistence of any delay for reasons beyond the reasonable control of the Consultant shall be all payments due pursuant to clause 9 hereof.
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.
14. 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 not exceed the payments made pursuant to clause 9 hereof due under this Agreement.
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:
- 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 clause 2 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
- 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
- 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 of the limit calculated as aforesaid. The Consultant shall not be liable (whether in contract, delict, or otherwise) for any indirect or consequential loss or for any loss of profit, use, anticipated savings, goodwill, reputation or business.
Save in respect of death or personal injury, the Client will only look to the Consultant (and not to any individual engaged by the Consultant including any directors, employees or members of the Consultant) for redress if the Client considers that there has been any breach of this Agreement. The Client agrees not to pursue any claims in contract, tort or for breach of statutory duty (including negligence) against any individual engaged by the Consultant (including any directors, employees or members of the Consultant) in carrying out its obligations under the Agreement at any time, whether named expressly in the Agreement or not. The Client acknowledges that such individuals are entitled to enforce this term of the Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
15. Expiry of Liability
No action of proceedings under or in connection with this Agreement whether in contract or in delict, in negligence or for breach of statutory duty or otherwise shall be commenced against the Consultant after the expiry of 8 years from the earlier of the date of completion of the Services or the date of practical completion (as defined by the Project construction contract) or such earlier date as may be prescribed by law.
Any notice to be given under this Agreement shall be in writing and given by sending the same by fax or by first class letter to the Client or the Consultant at their registered or principal office address. Notices shall take effect when they have been received by the Client or the Consultant as the case may be.
17. Disputes and Confidentiality
Each party will take all necessary steps to ensure that in the event of a dispute arising out of or in connection with this contract, the facts or details of that dispute will not be disclosed to any third party save where:
- either party has a statutory obligation so to disclose;
- the facts of the dispute enter the public domain through no fault of either party;
- court proceedings are instigated.
Adjudication shall be in accordance with the CIC rules current at the date of the dispute. Final resolution shall be by arbitration. In default of agreement upon the identity of an arbitrator, the nomination shall be by the President of the Chartered Institute of Arbitrators.
18. Governing Law
This Agreement shall be governed by Scottish law and the parties agree to submit to the non-exclusive jurisdiction of the Scottish Courts.
19. Printing Costs
All of Horizons documents and drawings shall be issued electronically as required. If the client requires that these documents are printed, then the costs of printing and delivery shall be charged to the client separately and will be over and above Horizon’s fee proposal. The costs of printing and delivery will be charged at the same rate as what Horizon is paying to the printing company.