Contract Conditions

Clauses

1.     General Interpretation

1.1 Where under the Contract an action is required to be taken within a specified period, in calculating a period, a day shall be a calendar day and a date shall be a calendar date. When a period is calculated it shall exclude Saturdays, Sundays and public holidays.

1.2 The provisions of the Contract continue to bind the Client and the Architect as long as it is necessary to give effect to the Parties’ respective rights and obligations.

1.3 The Contract supersedes any previous agreement or arrangements between the Client and the Architect in relation to the Services (whether oral or written) and represents the entire agreement between the Client and the Architect in relation to the services. All additions, amendments and variations to the Contract shall be binding only if in writing and signed by the duly authorised representatives of both the Client and the Architect. The Client and the Architect shall not claim to have relied upon any statements or representations made by the other Party other than those set out in the Contract.

1.4 If any clause or part of any clause of the Contract is ruled by the courts or declared to be invalid or unenforceable in any way, it stall be severed from the Contract and this shall not affect any other clause of the Contract, nor the validity of the remaining clauses of the Contract, which shall remain in full force.

1.5 The Contract is subject to the law of England and Wales and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.

1.6  Subject to clause 3.1 of the Contract Conditions, to the extent that either Party processes personal data, as part of the Contract, the Party undertakes to do so in compliance with the General Data Protection Regulation (GDPR) and to keep such personal data in a secure technological environment.

2       Client’s Responsibilities

2.1 The Client shall:

2.1.1  inform the architect of the project brief, the construction cost, the project programme and the services required and of any subsequent changes required and agree steps to mitigate the consequences.

2.1.2  provide to the architect, free of charge, information in the client’s possession, or which is reasonably obtainable, and which is necessary for the proper and timely performance of the services, and the architect shall be entitled to rely on such information.

2.1.3  make decisions and give approvals as necessary for the proper and timely performance of the services.

2.1.4  appoint or otherwise engage any other client appointments required to perform work or services under separate agreements and require them to collaborate with the architect. the client shall confirm in writing to the architect the work or services to be performed by any other client appointments.

2.1.5  hold the other client appointments, and not the architect, responsible for the proper carrying out and completion of the work or services entrusted to them under any other client appointments.

2.1.6  hold the contractor(s) appointed to undertake construction works, and not the architect, responsible for the proper carrying out and completion of construction works in compliance with the building contract

2.1.7  where the architect is appointed as contract administrator for the building contractor, not deal with the contractor(s) directly or interfere with the architect’s duties under the building contract.

2.1.8  not hold the architect responsible for any instructions issued by the client to the other client appointments or contractor.

2.1.9   pay any statutory charges and any fees, expenses and disbursements in respect of any obligations for planning, building control and other consents.

2.2     The Client may issue reasonable instructions to the Architect. The Client’s name representative, as indicated in item A of the Contract Details, shall have full authority to act on behalf of the Client for all pruposes in connection with the matters set out in the Contract

2.3  The Client acknowledges that the Architect does not warrant

2.3.1  that planning permission and other approvals from third parties shall be granted at all or, if granted, will be granted in accordance with any anticipated timescale.

2.3.2  compliance with any project programme and construction cost, which may need to be reviewed for, but not limited to:

a)  variations instructed by the client

b)  fluctuations in market prices.

c)  delays caused by any other client appointment, the contractor or any other factor that is not the responsibility of the architect under the contract.

d)  the discovery at any time of previously unknown conditions which ere not reasonably foreseeable at the date of the contract.

2.3.3 The competence, performance, work, services, products or solvency of any Other Client Appointments or the Contractor

2.4   The Client shall not disclose Confidential Information unless:

2.4.1  disclosure is necessary to take professional advice in relation to the contract or the services.

2.4.2  it is already in the public domain other than due to wrongful use or disclosure by the client.

2.4.3  disclosure is required by law or because of disputes arising out of or in connection with the Contract

3       Architect’s Responsibilities

3.1 In performance of the Services, and discharging all the obligations under the Contract, the Architect will exercise the reasonable skill, care and diligence to be expected of an architect experienced in the provision of such services for projects of a similar size, nature and complexity to the Project. Notwithstanding anything that may appear elsewhere to the contrary, whether under this contract or otherwise, the Architect’s duties and obligations shall be deemed to be subject to the exercise of such reasonable skill, care and diligence and nothing contained in this Agreement or elsewhere shall be construed as imposing on the Architect any greater duty than the exercise of such reasonable skill, care and diligence.

3.2 The Architect shall:

3.2.1  perform the services with due regard to the project brief

3.2.2 inform the client of progress in the performance of the services and, upon becoming aware, of any issue that may materially affect the project brief, project programme, construction cost or quality of the project, and any information, decision or action required in litigation.

3.2.3 inform the client of a need to make any other client appointments to perform work in connection with the project and/or any information, decision or action performance of the services.

3.2.4 act on behalf of the client in the matters set out in the contract or in relation to any project procedures agreed with the client from time to time, subject to the client’s prior written approval.

3.2.5 if acting as contract administrator for the building contract, exercise impartial and independent judgement when acting as an intermediary between the client and the contractor.

3.2.6 collaborate with any other client appointments named in the contract details or any other parties who might reasonably be expected to perform work or services, and where indicated in the services, the architect shall co-ordinate relevant information received from such persons with the architect’s design, but the architect shall not be responsible for the content of the information received.

3.2.7  make no material alteration to the services or the approved design without the prior written consent of the client, except in an emergency, whereupon the Architect shall confirm such actions to the Client without delay.

3.3 The Architect shall have the right to publish photographs of the Project, and the Client shall give reasonable access to the Project for this purpose for 2 years after Practical Completion. The Architect shall obtain written consent form the Client, which shall not be unreasonably withheld or delayed, before the publication of any information about the Project, unless reasonably necessary for the performance of the Services.

3.4 The Architect shall not disclose Confidential Information unless:

3.4.1 disclosure is necessary for the proper performance of the services, or in order to take professional advice in relation to the contract or the services, or in order to obtain/maintain insurance cover as required by the contract.

3.4.2 it is already in the public domain other than due to wrongful use or disclosure by the architect

3.4.3  disclosure is required by law or because of disputes arising out of or in connection with the Contract.

4       Assignment, Sub-Contracting and Novation

4.1 Neither the Architect nor the Client shall at any time assign the benefit of the Contract or any rights arising under it without the prior written consent of the other. Such consent shall not be unreasonably withheld or delayed.

4.2 The Architect shall not sub-contract performance of any part of the Services without the prior consent of the Client, and such consent shall not be unreasonably withheld or delayed.

4.3 The Parties may, by agreement, novate the Contract on terms to be agreed.

5       Fees and Expenses

5.1 The fees for performance of the Services and/or any additional services shall be calculated in accordance with this clause and as specified in the Contract Details.

5.2 The Basic Fee for performance of the Services shall be as specified in item F of the Contract Details and may be any or a combination of:

5.2.1 the specified percentage or percentages applied to the Construction Cost. Until the actual cost of the building work is known, the percentages are applied to the latest approved estimate of the cost of the building works or the building Contract. The total fee shall be adjusted based on the final Construction Cost on completion of Services. The cost shall exclude VAT, fees and any claims made by or against the Contractor(s)

5.2.2  the separate percentages specified for each RIBA Plan of Work stage applied to the Construction Cost at the end of the previous stage.

5.2.3  the specified lump sum or sums.

5.2.4  the time charges ascertained by multiplying the time reasonably spent in the performance of the Services by the specified hourly or daily rate as set out in item G of the Contract Details. Time ‘reasonably spent’ includes the time spent in connection with performance of the Services in travelling from and returning to the Architect’s office.

5.2.5  any other agreed method.

5.3  Lump sums and rates for time charges, mileage and printing shall be revised every 12 months in accordance with changes in the Consumer Prices Index. Each 12-month period commences on the anniversary of the date of the Contract.

5.4  The Basic Fee shall be adjusted:

5.4.1   including due allowance for any loss and/or expense. If material changes are made to the Project Brief and/or the latest approved estimate of the cost of the building work and/or Project Programme save to the extent that any changes arise form a breach of the Contract by the Architect, and/or the Services are varied by agreement.

5.4.2  where the percentage fees in accordance with clause 5.2.1 or 5.2.2 apply, to compensate for any reduction of the Construction Cost arising solely from deflationary market conditions not prevailing at the date of the Contract.

5.5     If the Architect is involved in extra work or incurs extra expense for reasons beyond the Architect reasonable control, additional fees shall be calculated on a time basis in accordance with clause 5.2.4 at the rate(s) set out in the item G of the Contract Details where:

5.5.1   the cost of any work, installation or equipment, in connection with which the architect performs services is not included in the construction cost

5.5.2   the Architect is required to vary any Service already commenced or completed or to provide a new design after the Client has authorised development of an approved design.

5.5.3   the nature of the Project reasonably requires that substantial parts of the design are not completed or that they are specified provisionally or approximately before construction commences.

5.5.4  performance of the Services is delayed, disrupted or prolonged.

5.6  The Architect shall inform the Client on becoming aware that clause 5.5 shall apply. Clause 5.5 shall not apply to the extent that any change or extra work or expense arises from a breach of the Contract by the Architect.

5.7  The Client shall reimburse the Architect for expenses and disbursements in the manner specified in item H of the Contract Details.

5.8  The Architect shall maintain records of time spent on Services performed on a time basis and for any expenses and disbursements to be reimbursed at net cost. The Architect shall make such records available to the Client on reasonable request.

5.9  Where the Architect is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is submitted or accepted, the Architect shall be entitled to fees due up to and including the receipt of tenders based on the construction work or that part of it relating to the Services current at the date of tender.

Payment Notices

5.10  The Architect shall issue Payment Notices at the intervals specified in item I of the Contract Details.

5.11  In the event of non-payment of any amount properly due to the Architect under the Contract, the Architect is entitled ot interest on the unpaid amounts under the provisions of clause 5.22. The Architect may

5.11.1 suspend use of the copyright licence under the provisions of clause 6

5.11.2 suspend or terminate performance of the services and other obligations under the provisions of clause 9

5.11.3 commence dispute resolutions procedures and/or debt recovery procedures

5.12 Each Payment Notice shall comprise the Architect’s account, setting out any accrued instalments of the fee and other accounts due, less any amounts previously paid, and stating the basis of calculation of the amount specified, which shall be the Notified Sum. The payment due date shall be the date of the Architect’s Payment Notice. Instalments of fees shall be calculated on the Architect’s reasonable estimate of the percentage of completion of the Services or stages or other services or any other specified method.

5.13  The Client shall pay the Notified Sum within 14 days of the date of issue of the relevant Payment Notice (which shall be the Final Date for Payment) unless:

5.13.1 the Architect has become insolvent (as defined in the housing grants, construction and regeneration act 1996) at any time between the last date on which the Client could have issued the notice under clause 5.16 and the final date for payment.

5.13.2 the Client issues a notice under clause 5.16

5.14 The Client shall not delay payment of any undisputed part of the Notified Sum.

5.15 The Architect shall submit the final Payment Notice for fees and any other amounts due when the Architect reasonably considers the Services have been completed.

Notice of Intention to Pay Less

5.16 If the Client intends to pay less than the Notified Sum, the Client shall give a written notice to the Architect not later than 5 days before the Final Date for Payment, specifying

5.16.1 the amount that the client considers to be due on the date the notice is served

5.16.2 the basis on which that sum is calculated

5.16.3 the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it.

5.17 The Client shall, on or before the Final Date for Payment, make payment to the Architect of the amount, if any, specified in the written notice

5.18 If no such notice is given the amount due and payable shall be the Notified Sum stated as due in the Architect’s account. The Client shall not delay payment of any undisputed part of the account.

5.19 If the Client issues such a notice and the matter is referred to an Adjudicator who decides that an additional sum, greater than the amount stated in the notice of intention to pay less, is due, the Client shall pay that sum within 7 days of the date of the decision or the date which, in the absence of the notice, would have been the Final Date for Payment.

5.20  The Client shall not withhold any amount due to the Architect under the Contract unless the amount has been agreed with the Architect or has been decided by any tribunal to which the matter is referred as not being due to the Architect.

5.21  If the performance of any or all of the Services and/or obligations is suspended or terminated, the Architect shall be entitled to:

5.21.1  payment of any part of the fee and other amounts properly due to the date of the last instalment and a fair and reasonable amount up to date of suspension or termination to reflect any work undertaken but not completed at the time of suspension or termination and payment of any licence fee due under clause 6

5.21.2 reimbursement of any loss and/or damages caused to the architect due to the suspension or termination, except where the Architect is in material or persistent breach of the obligations under the Contract.

5.22  In the event that any amounts are not paid when properly due, the Architect shall be entitled to simple interest on such amounts until the date that payment is received at 8% per year over the dealing rate of the Bank of England, current at the date that payment becomes overdue, together with such costs as are reasonably incurred by the Architect (including costs of time spent by principals, employees and advisers) in obtaining payment of any sums due under the Contract.

5.23  The Client or Architect shall pay to the other Party who successfully pursues, resists or defends any claim or part of a claim brought by the other:

5.23.1  such costs as are reasonably incurred (including costs of time spent by principals, employees and advisers) where the matter is resolved by negotiation or mediation.

5.23.2  such costs as may be determined by any dispute resolution body to which the matter is referred.

5.24  In addition, to the fees and expenses, the Client shall pay any VAT chargeable on the Architect’s fees and expenses.

6       Copyright and Licence

6.1  The Architect shall own all intellectual property rights, including the copyright in the drawings and documents produced in performing the Services, and this clause generally asserts the Architect moral right to be identified as the author of such work.

6.2  No part of any design by the Architect may be registered under the Registered Designs Regulations 2001 by the Client without the written consent of the Architect.

6.3   The Client shall have a licence to copy and use such of the drawings and documents for which all fees and other amounts properly due have been paid, only for purposes related to construction of the Project or its subsequent use or sale, but they may not be used for reproduction of the design for any part of any extension of the Project or any other project without the Architect’s written consent.

6.4  Where produced using CAD, BIM or other proprietary software, drawings and documents shall be provided to the Client in PDF format only, unless an alternative format has been agreed and set out in item L of the Contract Details.

6.5  Copying or use of the drawings and documents by any Other Client Appointments providing services to the Project shall be deemed to be permitted under a sub-licence granted by the Client, whether such drawings and documents were issued by the Client or on the Client’s behalf.

6.6  The Architect shall be liable to the Client in respect of any reasonably foreseeable and fully mitigated expenses, losses or damages suffered by the Client as a result of the work of the Architect being in breach of copyright or any other intellectual rights of any third party.

6.7  The Architect shall not be liable for any use of the drawings and documents other than for the purpose for which they were prepared and provided by the Architect.

7       Architect’s Liability

7.1  No action or proceedings arising out of or in connection with the Contract whether in contract, in tort, for negligence or breach of statutory duty or otherwise shall be commenced after the expiry of 6 or 12 years, depending on how the Contract is executed, from the date of Practical Completion or the date of completion of the last Services, whichever is the earlier.

7.2  In any such action or proceedings:

7.2.1  the Architect’s liability for loss or damage shall not exceed the amount of the Architect’s professional indemnity insurance specified in item J of the Contract Details

7.2.2  no employee of the Architect or any agent of the Architect shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services.

7.3 In respect of any claim by the Client under the Contract, and without prejudice to the provisions of clause 7.2.1, the Architect’s liability shall be limited to such sum as shall be agreed between the Parties or adjudged by the court to be the proportion of the loss to the Client caused by the Architect’s failure to exercise reasonable skill, care and diligence in the performance of its duties under the Contract. This proportion is to be calculated on the basis that:

7.3.1 all other consultants, contractors and Other Client Appointments providing work or services for the Project are deemed to have provided to the Client contractual undertakings in respect of their work or services on terms materially no less onerous than those which apply to the Architect under the Contract

7.3.2 there are deemed to be no exclusions or limitations of liability or joint insurance or co-insurance provisions between the Client and any other persons referred to in this clause

7.3.3 all the persons referred to in this clause are deemed to have paid to the Client such sums as it would be just and equitable for them to pay, having regard to the extent of their responsibility for that loss and/or damage.

8       Professional Indemnity Insurance

8.1 The Architect shall maintain, until the expiry of the period specified in clause 7.1, professional indemnity insurance with a limit of indemnity not less than the amount or amounts specified in item J of the Contract Details, provided such insurance continues to be offered on commercially reasonable terms to the Architect at the time when the insurance is taken out or renewed. The Architect shall inform the Client if such insurance ceases to be available on commercially reasonable terms. The Architect, when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such insurance has been obtained and/or is being maintained.

8.2 The Architect shall inform the Client if such insurance ceases to be available on commercially reasonable terms or, subsequent to the date of the Contract, any restrictions are attached to the policy or an aggregate limit applies to any matters other than those specified in the Contract Details in order that the Architect and the Client can discuss the best means of protecting their respective positions.

8.3 Nothing in the Contract confers any right to enforce any of its terms on any person who is not a party to it, other than lawful assignees.

9       Suspension or Termination

9.1 The Client may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving the Architect at least 7 days’ written notice and stating the reason for doing so.

9.2  The Architect may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving the Client at least 7 days’ written notice and stating the grounds on which it intends to do so. Such grounds are limited to:

9.2.1 the Client’s failure to pay any fees or other amounts due by the Final Date for Payment unless, where applicable, the Client has given effective notice under clause 5.16 of the intention to pay less than the amount stated in the Architect’s Payment Notice

9.2.2  that the Client is in material or persistent breach of its obligations under the Contract

9.2.3 that the Architect is prevented from or impeded in performing the Services for reasons beyond the Architect’s control

9.2.4 force majeure

9.2.5  any other reasonable grounds for suspension or termination of the Contract

9.3 In the event of suspension or termination, the Architect shall cease performance of the Services and/or other obligations under the Contract in an orderly and economical manner on the expiry of the notice period after receipt or issue of a notice of suspension or termination.

9.4  If the reason for a notice of suspension or termination arises from a default:

9.4.1  which is remedied, the Architect shall resume performance of the Services and other obligations under the Contract within a reasonable period

9.4.2  which is not remedied by the defaulting Party, the Contract shall be ended by the non-defaulting Party giving at least 7 days’ further written notice.

9.5  Where Services are suspended by either Party, after serving notice under clause 9.1 or clause 9.2 and not resumed within 6 months, the Architect has the right to treat performance of the Services as ended on giving at least 7 days’ further written notice to the Client.

9.6  Any period of suspension arising from a valid notice given under clause 9.1 or clause 9.2 shall be disregarded in computing, for the purposes of any specified time limit, the time taken by the Architect to complete any work directly or indirectly affected by the exercise of the right of the Architect to suspend performance

9.7  Performance of the Services and/or other obligations may be terminated immediately by notice from either Party if:

9.7.1 the other Party becomes bankrupt or is subject to a receiving or administration order, and/or goes into liquidation, and/or becomes insolvent, and/or makes any arrangements with creditors

9.7.2 the other Party becomes unable to perform its obligations through death or incapacity.

9.8  On termination of performance of the Services and/or other obligations under the Contract, a copy of any drawings and documents produced pursuant to the Services and not previously provided by the Architect to the Client shall be delivered to the Client by the Architect, subject to the terms of the licence under clause 6.3 and payment of any outstanding fees and other amounts due plus the reasonable expenses of the Architect.

 10   Dispute Resolution

Mediation

10.1  In the event of any dispute or difference arising under the Contract, the Parties may attempt to settle the dispute, in the first instance by mediation as specified in item K of the Contract Details.

Adjudication

10.2  Where it is stated in item K of the Contract Details that adjudication applies:

10.2.1  Either party may give notice at any time of its intention to refer a dispute or difference to an Adjudicator

10.2.2  The appointment of the Adjudicator shall be made in accordance with the procedure identified in item K of the Contract Details

10.2.3  The referral of the dispute to an Adjudicator shall be made within 7 days of the issue of the notice.

10.2.4  The Parties may agree who shall act as Adjudicator or the Adjudicator shall be a person nominated, at the request of either Party, by the nominating body specified in item K of the Contract Details

10.2.5  The Adjudicator may allocate between the Parties, by the nominating body specified in item K of the Contract Details.

10.2.6  The Adjudicator rules shall be as stated in item K of the Contract Details.

10.3  If the initial/preferred dispute resolution process is not successful, the dispute shall be referred to the final resolution process, as set out in item K of the Contract Details.

Arbitration

10.4  Where it is stated in item K of the Contract Details that arbitration applies as an alternative to litigation:

10.4.1  If either Party requires a dispute or difference (except in connection with the enforcement of any decision of an Adjudicator) to be referred to arbitration, then that Party shall serve on the other Party a notice of arbitration to that effect and the dispute or difference shall be referred to a person to be agreed between

10.4.2 the Client or the Architect may refer to litigation any claim for a financial remedy which does not exceed the financial limit provided by order made under section 91 of the Arbitration Act 1996

10.4.3 in such arbitration the Construction Industry Model Arbitration Rules (CIMAR) current at the date of the referral shall apply

10.4.4 the Arbitrator shall not have the power referred to in section 38(3) of the Arbitration Act 1996.

Litigation

10.5  Where it is stated in item K of the Contract Details that litigation applies, either Party may start court proceedings to settle a dispute.

11   Information Formats

11.1  Provided that all fees and/or other amounts properly due are paid, the Client shall have a licence to copy and use the electronic drawings and documents detailed in item L of the Contract Details only for purposes related to construction of the Project or its subsequent use or sale, and they may not be used for reproduction of the design for any part of any extension of the Project or any other project. Such licence is subject always to clause 6.3.

11.2  Copying or use of the electronic drawings and documents by any Other Client Appointments providing services to the Project shall be deemed to be permitted under a sub-licence granted by the Client, whether such drawings and documents were issued by the Client or on the Client’s behalf.

11.3  The Architect shall not be liable for any use of the electronic drawings and documents other than for the purpose for which they were prepared.

11.4  Without prejudice to the Architect’s obligations under the Contract, the Architect does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with the provisions of item L of the Contract Details.

11.5  The Architect shall have no liability to the Client in connection with any corruption or any unintended amendment, modification or alteration of the electronic drawings and documents which occurs after they have been issued by the Architect.

12   Client’s Right to Cancel

12.1  The Client has the right to cancel the Contract, for any reason, by sending a notice of cancellation to the Architect at any time within 14 days of signing the Agreement.

12.2  The notice of cancellation is deemed to be served as soon as it is posted to the Architect or, in the case of an electronic communication, on the day that it is sent to the Architect.

12.3  If the Architect was instructed to perform any services before the Contract was made or before the end of the 14-day period and the instruction(s) were confirmed in writing, the Architect shall be entitled to any fees and expenses properly due before the Architect received the notice of cancellation.

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