Terms & Conditions
Drake QS Limited Terms of Business (October 2012 issue)
1.1 The following defined words have the following meanings:
“Agreement” Means the Consultant’s Letter enclosing the Terms of Business, any appendix thereto and any subsequently agreed variations to the “Agreement” set out in writing.
“Client” Means the person, organization, company or body to which, or whom the Letter is addressed (Also a “party”)
“Consultation” Means Drake QS Limited (Also a “party”)
“Force Majeure” Means any circumstance or condition outside the reasonable control or influence of the Consultant, and includes any deferral in the requirement for the Services by the Client,
“In Writing” Means any communication sent by post or by facsimile transmission (E-mails are not included in this definition).
“Letter” Means any letter and appendices and/or attachments thereto issued to the Client by the Consultant (including there Terms of Business).
“Services” Means the services to be provided for the Client and which the Consultant identifies in the Letter.
“Terms of Business” Means this document which is referred to in the Letter as being applicable to the Agreement.
1.2 The headings hereunder are for convenience only and do not affect the construction of the words.
2.1 The Agreement may be varied with the agreement in writing of the Client and the Consultant and, to the extent the variations require the Consultant to provide services in addition to the Services, and the appertaining fee arrangement is ot specifically detailed the Consultant shall be entitled to fair and reasonable remuneration therefore.
3.1 The Client agrees to supply the Consultant without charge all matters and things necessary for the performance of the Services by the Consultant and also where necessary, to provide facilities and approvals to the Consultant all at such times as not to delay the Consultant in the provision of the Services.
3.2 The Consultant shall, subject to the Agreement, carry out the Services and any variation to the Services and the Client’s continuing instructions will constitute acceptance of the terms and conditions of the Letter. For the avoidance of doubt the Consultant is not instructed to include for any services which relate to asbestos and/or contamination and/or terrorism and/or pollution, and or Property Valuation.
3.3 The Client shall make payment in accordance with the Agreement.
3.4 Unless otherwise agreed in advance, approvals from the Client shall be deemed to have been given unless the Consultant is notified to the Contrary within five working days of such approval having been requested.
4.0 INTELLECTUAL PROPERTY & CONFIDENTIALITY
4.1 The Copyright and all other intellectual property rights in all work prepared or compiled by the Consultant in the performance of this Agreement remains vested in the Consultant but conditional upon payment of all fees and disbursements properly due the Consultant hereby issues a free license to the Client to use such work as is supplied under this Agreement, for the purposes only for which the work was prepared or compiled, always providing that such license shall be limited strictly to the work carried out under this Agreement.
4.2 The Client agrees that any techniques or processes carried out in the course of the Services are confidential information. The Client shall not without the prior written consent of the Consultant divulge to any party details of any confidential information disclosed by the Consultant in the performance of the Services.
5.1 The Consultant undertakes to exercise reasonable skill and care in performing the Services, and shall be liable only for negligent failure in performing the Services.
5.2 In respect of any matter of Force Majeure the Consultant shall have no liability for his failure or delay in the performance of the Services or any part of them so caused. Where relevant, the Client shall not cease payments to the Consultant under this Agreement throughout any period or periods of Force Majeure.
5.3 The Client and the Consultant agree that the total liability of the Consultant arising out of or in connection with this Agreement shall not, unless otherwise agreed in writing, exceed ten times the amount of the Consultant’s Fees due pursuant to this Agreement or £100,000.00 (One Hundred Thousand Pounds), whichever is the greater, howsoever that liability might arise but that in any event the Consultant shall have no liability to the Client in respect of any monies or losses the Client may incur or suffer in relation to pollution, contaminations, terrorism and/or asbestos. Further, notwithstanding any thing in this Agreement to the Contrary in no event shall the Consultant be liable for any direct damages for loss of profit, loss of production, loss of contracts or for any financial loss or for any special, indirect or consequential loss or damages including without limitation damages for loss of profit, loss of production, loss of contracts or for any financial loss however caused including without limitation default, breach of contract (including concurrent or sole and exclusive negligence), breach of duty, strict liability or otherwise and whether a claim is based on contract, tort at law, in equity or otherwise.
5.4 Notwithstanding and provision in this Agreement or the identification of any individual in this Agreement all duties obligations and liabilities arising under or by virtue of this Agreement or which may arise by virtue of common law or statute from the performance of any work contemplated by this Agreement shall be owed or incurred exclusively by the Consultant and not by any employee or member (including any officer or director) of the Consultant. The Client acknowledges that no such individual owes or shall owe any such duty or obligation or shall incur and such liability to the Client and agrees that the Client will not seek to make liable any such individual for any act, default, omission or negligence committed by the individual whatsoever and irrespective of how such liability may arise. This clause shall not operate to include liability for death or personal injury to the Client where the Client is an individual or group of individuals.
5.5 This Agreement does not create any right enforceable to any person, organization, company or body who is not a party to it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
6.0 SUSPENSION AND TERMINATION
6.1 The Client and Consultant agree that without prejudice to any other rights and remedies which the Consultant may possess if the Client shall fail to pay the Consultant in full any amount properly due and payable under this Agreement by the final date for payment as defined 7.4 the Consultant may give the Client seven (7) days notice in writing of the same to suspend its performance and obligations under this Agreement until payment in full occurs, and may thereafter on the occasion of any further breach of the payment obligations terminate the Agreement.
6.2 Any period during which the Consultant shall exercise its right to suspend its performance pursuant to clause 6.1 shall be disregarded in computing for the purposes of any contractual time limit the time taken by the Consultant, or any of the Consultant’s sub-contractors, to complete any Services directly or indirectly affected by the exercise of such right.
6.3 The Client and the Consultant agree that either may give to the other written notice of termination in the following circumstances: –
a) If fourteen days after having received written notice of a breach of the Agreement, no attempt to rectify that breach has been made; or
b) The Agreement has been affected by Force Majeure for at least 40 days.
6.4 In the event of termination under 6.1 and 6.3 of this Agreement, the Client shall pay to the Consultant the following sums: –
a) Such payment as is due for the performance of the Services up to and including the day upon which notice of termination was given;
b) Such payment as is due in accordance with 62 above;
c) Such monies, if any, as would become due and payable in respect of separate arrangements entered into by the Consultant in the performance of the Services.
7.1 The fees set out in the Letter are exclusive of VAT and VAT will be added to these fees at the rate current at the relevant times unless the Consultant is satisfied that VAT is not payable. If applicable, the Consultant may review the hourly charge rates in the letter from time to time and shall notify the Client of any increased rates and the date from which they will become effective. There may be certain disbursements and expenses which the Consultant incurs on behalf of the Client and the Client shall reimburse the Consultant in respect of these (together with an addition of 15% on disbursements) and such VAT as shall be chargeable thereon. (Disbursements include, but are not restricted to, payments to third parties such as Barristers, Couriers, Travel and Hotels. Expenses include, but again are not limited to, photocopying, post charges, car travel and food).
7.2 The Consultant shall be entitled to make application for payment of both fees and disbursements by way of presentation of invoices on a fortnightly basis, further, and at its sole discretion, the Consultant may require the Client from time to time to pay sums of money on account of the fees, disbursement and expenses which are expected in the following weeks or months and may require also an initial payment on account before starting work on the Client’s matter.
7.3 Payment of interim invoices, if any, and of the final invoice is due on the date of the invoice.
7.4 The final date for payment of invoices is the date of the invoice plus 14 days.
7.5 The Client agrees not to issue any notice to withhold payment no later than the date of the relevant invoice plus 7 days.
7.6 Interest pursuant to the Late Payment of Commercial Debt (Interest) Act 1998, or as agreed, shall be added to all amounts remaining unpaid after the final date for payment.
8.1 Any dispute that cannot be settled amicably shall in, the first instance, be referred to the respective Chief Executive of the Client and Matthew Drake for the Consultant who shall attempt in good faith, to resolve the matter.
8.2 In the event of the dispute not being resolved under 8.1 above within 30 days of referral the matter shall be referred to adjudication in accordance with the HGCRA 1996.
8.3 In the event of either the Client of the Consultant not agreeing with the Decision of an Adjudicator under 8.2 above, the dispute may be referred to litigation.
9.1 No party shall directly solicit the services of any employee, agent or representative of another party without prior written consent of that other party during the term of this Agreement or for the period of nine months after the termination of this Agreement. If during the term of this Agreement or for the period of nine months after the termination of this Agreement any employee of one party accepts an offer of employment made by another party the party that made the offer shall pay to the other a sum equivalent to nine months gross salary of the employees concerned including any monetary bonuses payable to that employee during the term of this Agreement or for the period of nine months after termination of this Agreement.
10.0 APPLICATION OF TERMS, APPLICABLE LAW AND JURISDICTION
10.1 The Client’s continuing instructions will amount to acceptance of these Terms and Conditions.
10.2 The Client and the Consultant agree that the construction, validity and performance of the Agreement shall be governed by and construed under English Law, and for all matters arising under, out of, or in connection with the Agreement, they shall submit themselves to the exclusive jurisdiction of the Courts of England and Wales.