Terms & Conditions
TERMS AND CONDITIONS OF HARDIES LLP (“HARDIES”)
CONDITIONS OF ENGAGEMENT
1 Governing Laws and Basis of Contract
1.1 These Terms and Conditions shall be governed by and construed in accordance with the Law of Scotland.
1.2 The client’s order for services shall be as set out in the Scope of Service and Fee Proposal document specific to Hardies and each client, and such Scope of Service and Fee Proposal incorporates these Terms and Conditions (the Contract). Any reference to the Scope of Service and Fee Proposal document shall be interpreted to mean the scope of service and fee proposal specific to each particular client and Hardies.
1.3 These Terms and 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. The client accepts Hardies’ appointment in accordance with the terms and conditions set out in these Terms and Conditions.
1.4 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2 Client’s Obligations
2.1 Supply of information
The client shall supply to Hardies, without charge, and in such time as not to cause delay or disruption all necessary and relevant information in the possession of the client or the client’s agents, and the client shall ensure that the terms of such information are complete and accurate in all material respects. The client acknowledges that Hardies shall be deemed to have relied on the accuracy of any information provided to Hardies by the client.
The client shall ensure that instructions or approvals shall be given in writing in such reasonable time so as to avoid delay or disruption to the services provided by Hardies.
The client shall not assign or transfer any benefit or obligation under the Contract without the written consent of Hardies, such consent not to be unreasonably withheld or delayed.
2.4 Client representative
The client shall designate a client’s representative who shall be deemed to have authority to make decisions on behalf of the client under the Contract, and who shall be deemed to have responsibility for overall management of the project on behalf of the client. The client shall notify Hardies immediately if the client’s representative is replaced.
Hardies acknowledge that the client may appoint contractors and/or consultants and/or sub-contractors to execute and/or to manage the execution of the project and the works. The client shall be obliged to procure that the contractors and/or consultants and/or sub-contractors execute the project and the works in accordance with the terms of their relevant respective contracts, and Hardies shall be deemed to have relied on the accurate execution of the project and the works by said contractors and/or consultants and/or sub-contractors. Hardies and the client acknowledge that Hardies have no knowledge of the terms of the contracts between the client and said contractors and/or consultants and/or sub-contractors. Neither the provision of site staff nor periodic visits by Hardies’ staff to the site shall in any way affect the responsibilities of the contractors and/or any consultant and/or any sub-contractors for constructing the works in compliance with the relevant contract documents and any instructions issued by Hardies. Hardies shall not be responsible for or be required to check the accuracy of design or workmanship of any contractor and/or consultant and/or sub-contractor, unless so stated in the Services.
The client shall co-operate with Hardies in all matters relating to the services.
The client shall provide Hardies, its employees, agents, consultants and sub-contractors, with access to the client’s premises, office accommodation and other facilities as reasonably required by Hardies.
3 Obligations of Hardies
Hardies shall perform the services listed in Section 3 of the Scope of Service and Fee Proposal document between Hardies and the client. If the client requests any additional services, Hardies will perform such additional services as may be reasonably requested or consented to by the client following agreement between Hardies and the client of an additional fee for such additional services.
3.2 Skill and care
Hardies shall exercise reasonable skill and care in the performance of the services.
Hardies shall not assign or transfer any benefit or obligation made under the Contract without the prior written consent of the client, such consent not to be unreasonably be withheld or delayed.
3.4 Specialist sub-consultants
Hardies may recommend to the client that part of the services should be supplied by a specialist sub-consultant, which may require the client to pay further fees directly to the specialist sub-consultant. The client shall not unreasonably withhold consent to such recommendation.. Hardies shall not be responsible for the work of or defects in the work of such specialist sub-consultants, nor shall they be responsible for checking their work.
3.5 Detailed design by contractors or sub-contractors
Hardies may arrange for the detailed design of part of the works to be carried out by a contractor or sub-contractor in accordance with Hardies’ performance specification. Hardies shall review such detailed design and check that any items covered by Hardies’ certificates have been properly prepared. Hardies shall not be responsible for any aspects of such detailed design, nor shall it be liable for defects in or omissions from it.
Hardies shall co-operate in the co-ordination of the design with any contractor and/or other design consultants appointed by the client but Hardies shall only be responsible for the services Hardies have performed and (if any) design Hardies have provided. Hardies shall attend such team meetings and project or progress meetings as agreed to enable it to properly perform the Services.
Hardies shall not, without the consent of the client, alter the design once approved by the client. Notwithstanding the foregoing, where the design requires to be amended to comply with any applicable law or regulatory requirement, Hardies shall notify the client of same. Save in the event of any emergency, Hardies shall not without the consent of the client issue instructions to any contractor the effect of which would be to alter any design already approved by the client or to incur additional costs to the client beyond whatever limits may have been agreed for such additional costs.
3.8 Construction (Design and Management) Regulations 2015 (“CDM Regulations”)
Hardies confirms to the client that it has the requisite competence and resources to fulfil the obligations of a designer in terms of the CDM Regulations and Hardies will provide to the Principle Designer and other designers all such assistance as may be required to enable such parties to fulfil their own obligations under the CDM Regulations.
4 Intellectual Property
4.1 Intellectual Property Rights
All copyright, patent rights, trademark rights, design rights and any and all other intellectual property rights in all documents prepared by or on behalf of Hardies shall be and shall remain the property of Hardies, but Hardies grant to the client a copyright licence to use said intellectual property rights for any purpose related to the project. Such licence shall enable the client to use Hardies’ intellectual property rights for the furtherance of the project but shall not include a licence to reproduce the designs contained therein. In the event of the client being in default of payment of any fees or other amounts due under the Contract, Hardies may revoke the licence granted herein on giving seven days’ notice. Save as above, the client shall not make copies of any of Hardies’ drawings or other documents or information, nor shall he use any of Hardies’ intellectual property rights in connection with any other works without Hardies’ prior written approval, which shall not unreasonably be withheld or delayed, and upon such terms as may be mutually agreed. Hardies shall not be liable for the use by any person of any of Hardies’ intellectual property rights for any purpose other than that for which the information was originally prepared by Hardies.
4.2 Publication and Confidentiality
Hardies shall not, without written consent of the client, publish alone or in conjunction with any other person, any articles, photographs or other illustrations relating to the project. Notwithstanding the foregoing, Hardies reserves the right to use photographs of the project for marketing purposes, including the use of said photographs on their Website and Social Media.
Neither party shall disclose to any other person any private or confidential information in relation to the project, unless so authorised by the other party, and unless such private or confidential information is disclosed in the proper course of his duties, as required or permitted by law or to his professional advisors.
5.1 Payment of Fees and Expenses
Payment by the client to Hardies shall comprise fees, normal expenses and additional costs, all as detailed in Section 3 of the Scope of Service and Fee Proposal document between Hardies and the client.
5.2 Late payments
Outstanding accounts will be liable for interest charged at the rate of 5% above the current bank base rate, calculated daily and accumulated from the due date until the actual date of payment.
5.3 Services performed by Others
Where Hardies have arranged, on behalf of the client, for the performance by others, of any of the services specified in Section 3 of the Scope of Service and Fee Proposal document, the client shall pay direct to such person or persons their fees and expenses for performing such services. Hardies shall always obtain the prior agreement of the client to such arrangements, and the client shall indemnify Hardies for any expenditure incurred in relation thereto.
5.4 Time Based Fees
Where time based fees are to be paid, they shall be at the rates set out in clause 3.3 of the Scope of Service and Fee Proposal document calculated by multiplying the hourly rates applicable to the persons concerned by the number of hours spent by such persons in performing the services, including time spent in travelling in connection with the project or the works.
5.5 Percentage Fees
Where payment is to be based on a percentage, it shall be a percentage of the final construction cost with payment by instalments based on estimated construction cost. Monthly instalments shall be based upon the work carried out and issued up until the invoicing date.
5.6 Payment by Instalments
The client shall pay Hardies for fees, expenses and any other costs by instalments on a monthly basis, unless otherwise agreed. Monthly instalments shall be based upon the work carried out up until the invoicing date.
5.7 Time for Payment
a) Due date and final date: payments due to Hardies under the Contract shall become due for payment on the day of issue of Hardies’ invoice to the client and the final date for payment shall be 14 days thereafter. Interest shall be added to all amounts remaining unpaid thereafter at 5% above the bank base rate.
b) Pay less notice: the client may not withhold any payment after the final date for payment of any sum due under the Contract unless he gives notice, not later than seven days before such final date, specifying the amount proposed to be withheld and the grounds for withholding payment.
5.8 Variation or Disruption of Consultant’s Work
If Hardies are requested to carry out additional works and/or suffer disruption in the performance of the services due to:
a) the project or brief being varied by the client
b) a delay by the client in fulfilling his obligations under the Contract
c) Hardies being delayed by others; or
d) other reasons beyond Hardies’ control
the client shall make additional payments in respect of the additional work carried out and additional resources employed in accordance with clause 3.3 of the Scope of Service and Fee Proposal document. Whenever possible, Hardies shall give an estimate or quotation for the additional fees before proceeding.
Additionally, a variation in the scope or scale of Hardies’ work will be deemed to have occurred if the agreed construction budget for the project is increased by more than 10%, in which event the value of fees shall be reviewed and adjusted pro rata or by another mutually agreed amount.
5.9 Additional Project Costs
Where the additional project costs are paid by Hardies, a charge for handling, processing and financing these payments will be added to the base cost listed in Clause 3.3 of the Scope of Service and Fee Proposal document. This charge shall be 15% of the base additional project cost.
Where the additional project costs are paid directly by the client, no additional charge will be made.
In the performance of its Services, Hardies may require to hire specialist equipment which is not detailed in Hardies’ Scope of Service and Fee Proposal in respect of a particular project. Any hire of specialist equipment shall be charged by Hardies to the client at cost price together with a fee of 10% of the cost price.
All sums due under the Contract are quoted exclusive of Value Added Tax, the amount of which shall be paid by the client at the rate and in the manner prescribed by law.
6 Liability, insurance and warranties (the Client’s attention is particularly drawn to this clause)
6.1 Professional Indemnity Insurance
Hardies will maintain professional indemnity insurance on an each and every claim basis for the duration of Hardies’ liability to the client in accordance with Clause 6.5 of these Terms and Conditions. The level of professional indemnity insurance which Hardies is required to maintain for each specific project is specified in Clause 5 of the Scope of Service and Fee Proposal document. Hardies shall maintain professional indemnity insurance provided it is available at economically viable rates and terms from the insurance market. Hardies may vary the level of professional indemnity insurance without referring to the client should circumstances in the insurance industry so dictate.
The limit of Hardies’ liability under or in connection with these terms and conditions shall not, under any circumstances, exceed the applicable value of professional indemnity insurance having regard to the level agreed in each Scope of Service and Fee Proposal document for each project.
6.2 Indemnity from the client in relation to asbestos claim
The client will indemnify Hardies against liability for any claim or injury, death, loss or damage wholly, partly, directly or indirectly arising out of or resulting from, or associated in any way with, asbestos or any product or waste that contains asbestos.
6.3 Pollution and Contamination
Hardies’ liability in respect of pollution and contamination is specified in Clause 5 of the Scope of Service and Fee Proposal document.
6.4 Liability of Employees
The client may look only to Hardies and not to any of Hardies’ employees personally for redress if the client considers that there has been any breach of the Contract. The client agrees not to pursue any claims in contract or statute (including negligence) against any of Hardies’ employees personally as a result of carrying out obligations under the Contract.
6.5 Limitation of time within which to bring claims
No action or proceedings in respect of these Terms and Conditions or the Contract, whether in contract or in delict or in negligence or for breach of statutory duty otherwise, shall be commenced after the expiry of the period of 10 years from the date of signing of the Scope of Service document.
6.6 Public Liability Insurance
Hardies shall maintain public liability insurance covering Hardies, and Hardies’ employees, as from the effective date of the Contract until the completion of the services in the sum of £10 million provided always that such insurance is available at commercially reasonable rates.
6.7 Collateral Warranties
When the client and Hardies have agreed in clause 2.5 of the Scope of Service and Fee Proposal before the commencement of the Contract, Hardies may enter into and provide collateral warranties for the benefit of any party providing finance in connection with the project, Associated Companies (as defined under Section 1159 of the Companies Act 2006), first purchasers and first tenants of the project.
It shall be a condition of any provision of such collateral warranties that i) they shall give no greater benefit to; and ii) Hardies shall have no greater liability to, the beneficiary of such collateral warranties than is given to the client under these terms and conditions.
The client shall provide Hardies with the preferred form of collateral warranty, and Hardies shall be entitled to amend the terms of such collateral warranty before signing in accordance with their legal or insurance requirements.
Should the client request alterations to the previously agreed terms of such collateral warranties, or the execution of further collateral warranties in addition to those previously agreed with the client, and Hardies consent to such a request, collateral warranties may be entered into and provided by Hardies for such additional fee or other consideration as the parties may agree.
Where a Collateral Warranty is requested after Hardies’ appointment, Hardies shall be entitled to charge a fair and reasonable fee for providing a collateral warranty.
6.8 Net Contribution Clause
The extent of Hardies’ liability to the client in respect of any loss and/or damage suffered or incurred by the client pursuant to any breach, default or failure under these terms and conditions shall be limited to the proportion of the relevant loss and/or damage suffered or incurred by the client as it would be just and equitable to require Hardies to pay having regard to the extent of Hardies’ responsibility for such loss and/or damage, on the assumption (if not a fact) that the other contractors, consultants and/or sub-contractors engaged by the client in connection with the project have entered into agreements with the client in terms similar to these terms and conditions and have paid to the client the proportion of the relevant loss and/or damage that it would be just and equitable to require them to pay having regard to the extent of their responsibility for such loss and/or damage.
6.9 Indemnity from the client in relation to a claim arising from fire, smoke or evacuation
The client will indemnify Hardies against liability for any claim or injury, death, loss or damage wholly, partly, directly or indirectly arising out of or resulting from, or associated in any way with, fire, smoke or associated toxic gas and shall include trauma or physical injury or death associated with the process of escape.
6.10 Liability for third party design
As part of a design consultation or peer review, Hardies may express comment and make specific recommendations. Hardies shall not be liable for the accuracy of design or works undertaken by any third parties or any contractor and/or consultant and/or sub-contractor or otherwise involved in the project.
6.11 Product suitability
Hardies shall not be responsible for certifying the fire performance of products or materials. Such components should be supported by appropriate test certification made freely available in English from the manufacturer, and supplied by the specifier. Possession of test certification does not in itself confer suitability for use.
6.12 Statutory approvals
If the project requires Building Warrant approval, securing same shall remain the responsibility of the Client prior to the commencement of works. This is an independent process undertaken by Local Authorities in Scotland. Whilst Hardies will work with the Client within the scope of their engagement to secure a positive decision, the outcome of the process cannot be guaranteed. Hardies shall not be liable for any direct or indirect loss arising from the Building Warrant application process, or any delay or termination or cancellation of the project caused by same.
The client shall also obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
6.13. Pay Less Notices
Hardies will not be responsible for issuing a Pay Less Notice to any contractor and/or consultant and/or sub-contractor. Any Pay Less Notice shall be issued by the Client in accordance with the conditions of the applicable contract and Hardies shall hold no liability in respect of the Client failing to issue a Pay Less Notice in accordance with the conditions of the applicable contract.
7 Termination or Suspension
7.1 Termination by the Client following a breach of the agreement by Hardies
In the event of a breach of this agreement by Hardies, the client may give four weeks’ notice of his intention to terminate the appointment setting out the acts or omissions of Hardies relied upon as evidence of such breach. If Hardies do not, to the reasonable satisfaction of the client, take expeditious steps to repair the breach during the notice period, the client may forthwith on the expiry of the notice period terminate the appointment by a further notice.
7.2 Termination by Hardies
If circumstances arise for which Hardies are not responsible, and which Hardies consider makes it irresponsible of Hardies to perform all or part of the services, Hardies may terminate the appointment at any time by giving two weeks’ notice in respect of all or part of the service. Upon said termination, the client shall pay all sums due to Hardies at the date of termination for any services carried out at the date of termination, and all reasonable expenses caused by the termination.
In the event of a breach of the Contract by the client, including non payment of Hardies’ fees by the final date for payment, Hardies may give two weeks’ notice of Hardies’ intention to terminate this appointment setting out the acts or omissions of the client relied upon as evidence of such breach. If the client does not, to Hardies’ reasonable satisfaction, take expeditious steps to repair the breach during the notice period, Hardies may forthwith on the expiry of the notice period terminate the appointment immediately by a further notice. Upon said termination, the client shall pay all sums due to Hardies at the date of termination for any services carried out at the date of termination, and all reasonable expenses caused by the termination.
Hardies shall not be liable for any costs or losses sustained or incurred by the client arising directly or indirectly from Hardies’ failure to perform any of its obligations, and the client shall reimburse Hardies on written demand for any costs or losses sustained or incurred by Hardies arising directly or indirectly from the termination
7.3 Suspension by the Client
The client may at any time by notice require Hardies to suspend the performance of all or any part of the services. Upon said suspension, the client shall pay all sums due to Hardies at the date of suspension for any services carried out at the date of suspension, and all reasonable expenses caused by the suspension. On notice of suspension Hardies shall cease such suspended service 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, Hardies may, by giving two weeks’ notice, treat the works or that part of the works as having been abandoned and the appointment automatically terminated.
7.4 Suspension by Hardies
If Hardies’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the client or failure by the client to perform any relevant obligation under the Contract, including failure to make payment to Hardies, or any other circumstances beyond Hardies’ control, which are such as to prevent or significantly impede Hardies’ performance of the services under the Contract, Hardies may upon not less than two weeks’ notice suspend for a period of up to 26 weeks the performance of the services under the Contract. Hardies shall not be liable for any costs or losses sustained or incurred by the client arising directly or indirectly from Hardies’ failure or delay to perform any of its obligations, and the client shall reimburse Hardies on written demand for any costs or losses sustained or incurred by Hardies arising directly or indirectly from the client’s default.
The appointment of Hardies may be terminated in the event of insolvency of either party. Notice of termination must be given to the party which is insolvent by the other party.
8 Dispute Resolution
8.1 In addition to the parties’ rights at common law, if any dispute or difference arises under or in connection with this Contract either party may refer it to adjudication. .
9 Data Protection
9.1 Both parties will comply with all applicable requirements of the UK Data Protection Legislation relating to personal data and all other legislation and regulatory requirements in force which apply to a party relating to the use of personal data.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the client is the controller and Hardies is the processor.
9.3 Without prejudice to the generality of clause 9.1, Hardies shall, in relation to any personal data processed in connection with the performance by Hardies of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the client unless Hardies is required by law to otherwise process that personal data.
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the client has been obtained and the following conditions are fulfilled:
(i) the client or Hardies has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Hardies complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Hardies complies with reasonable instructions notified to it in advance by the client with respect to the processing of the personal data;
(e) assist the client, at the client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the client without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the client, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and immediately inform the client if, in the opinion of Hardies, an instruction infringes the Data Protection Legislation.
10.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at the address specified in the relevant Scope of Service and Fee Proposal document.
11 Prohibited Materials
11.1 Hardies will not specify for use or consent to the use in the Works of any material, substance, product, process or combination of any of the same which is:
(a) a prohibited, controlled, hazardous, toxic or dangerous substance in terms of any legislation; and/or
(b) not in accordance with British Standards and Codes of Practice (where such exist) or any identified as deleterious, unsatisfactory or unsuitable in the relevant circumstances in the Guidance issued entitled “Good Practice in Selection of Construction Materials” dated 2011 sponsored by the British Council of Offices and the BRE Digest as amended from time to time.
12 Exclusion to Terms & Conditions
12.1 Following the Grenfell disaster the insurance sector has been in dialog with the Royal Institute of Chartered Surveyors (RICS) negotiating their position on the insurance cover surveyors have within their Professional Insurance policies. This dialog remains ongoing and for the for the time being all surveying practices have had restrictions placed on their policies. All surveying practices are allowed to do fire and safety work as normal on buildings up to and including the 4th storey. Basements and mezzanine floors are allowed over and above the 4th storey.
12.2 The insurance sector is however maintaining at this time that all surveying practices are not permitted to carry out fire and safety work to the 5th storey and above. Our insurer’s policy contains the following wording:
Fire combustibility exclusion (5th Storey and above)
We will not cover any claim or claim circumstance arising directly or indirectly out of, or in any way connected with, any actual or alleged failure of any product, material or system used in the construction, alteration, repair, treatment or refurbishment of any building or structure to comply with applicable regulations in respect of the performance of combustibility, fire resistance or fire protection.
12.3 Any works required by clause 12.2 shall be strictly excluded from our service.