1. Definitions
1.1 For the purposes of this Agreement, the following expressions have the following meanings:
Additional Services - any other services requested by the Client not included in the fee proposal;
Agreement the covering letter or letter of the proposal, these Terms and any annexed schedules;
Brief - the latest statement of requirements for the Project issued by the client: at inception; after clarification of the Design Brief; and subsequent development of the Project Brief.
Client - the person, company, authority or other body who instructs the Company to carry out the Services;
Construction Costs - the client’s initial budget for constructing the project; or the latest professionally prepared estimate approved by the client; or the actual cost of construction upon agreement of the final account. Exclusions include VAT; fees; cost of dispute resolution; Client’s legal expenses; loss and/or expense payments to a contractor; adjustment for Client LADs.
Other Persons - any person, company or firm, other than the Architect, including but not limited to consultants, contractors, sub-contractors, specialists, statutory bodies, approving authorities, who have performed or will perform work or services in connection with the Project.
Services - the normal services set out in either schedules, or written proposal submitted by the Company to the Client.
Practice - means Fields of Architecture;
Project - the project referred to within the written proposal;
Terms - means these Standard Terms & Conditions.
Timetable - the Client’s initial programme for performance of the Services, or where no programme is specified it shall be a fair and reasonable period.
1.2 The provisions of this Agreement continue to bind the Client and the Architect as long as necessary to give effect to their respective rights and obligations.
2. Architect’s Services
2.1 The Architect shall exercise reasonable skill, care and diligence in accordance with the standards of the Architect’s profession when discharging obligations under this clause. The Architect’s representative shall have full authority to act on behalf of the Architect.
2.2 The Architect shall keep the client informed of progress and of any issue that may affect the Brief, Construction Cost, timetable or quality of the Project.
2.3 The Architect shall inform the Client upon becoming aware of:
- a need to appoint Other Persons to perform work or services in connection with the Project; and/or
- any information, decision or action required from the Client or Other Persons in connection with the performance of the Services.
2.4 The Architect shall act on behalf of the Client in the matters set out and agreed with the Client but has no authority without the client’s prior approval:
- to enter into any contractual or other commitment on behalf of the Client;
- to terminate the employment of Other Persons appointed by the Client;
- to make or cause any material alteration or addition to or omission from the Services or the approved design.
2.5 The Architect shall have the right to publish photographs of the Project, on the Architect’s website and social media accounts, and the Client shall give reasonable access to the Project for this purpose for two years after practical completion of the works.
2.6 The Architect shall not disclose confidential information unless:
- disclosure is necessary to the performance of the Services, or to take professional advice, or to obtain/maintain insurance;
- it is in the public domain other than due to wrongful use or disclosure;
- disclosure is required by law or due to disputes arising out of or in connection to this Agreement
2.7 Where the Architect undertakes a desktop sketch scheme (Stages 0 & 1) this will be produced using publicly available estate agent plans or a third party measured survey and the Architect will not be liable for any inaccuracies. Structural implications and service strategy will be not be considered until they have been investigated on site by appropriately trained professionals or trades.
3. Client’s Responsibilities
3.1 The Client shall supply their requirements and shall advise priorities of the Brief, Construction Cost and Timetable. The Client shall provide, free of charge, all the information they possess where necessary for the proper and timely performance of the Services and the Architect shall be entitled to rely on such information.
3.2 The Architect shall not be responsible for any instructions issued to Other Persons where the Architect has responsibility to direct and/or co-ordinate services with Other Persons.
3.3 The Client shall instruct the making of applications for consents for planning, building regulations or other statutory requirements. The Client shall pay any statutory charges and fees, expenses and disbursements related to such applications. Failure to make timely payment will result in delay submitting applications.
3.4 Where work or services, aside from those to be undertaken by the Architect, are required, the Client shall appoint Other Persons to perform such work or services and shall require collaboration with the Architect.
The Client shall confirm in writing to the Architect the services to be performed by Other Persons. The Client acknowledges that the Architect does not warrant the competence, performance, work, services, products or solvency of such Other Persons.
Resolving disputes between the Client and Other Persons are not the responsibility of the Architect.
3.5 The Client shall not hold the Architect responsible for the management and operational methods necessary for the proper carrying out and completing construction works in compliance with the building contract.
3.6 The Client acknowledges that the Architect does not warrant:
- that planning permission and other approvals from third parties will be granted, or in accordance with anticipated time-scales;
- compliance with the Construction Cost and/or Timetable, which may need to be reviewed for matter including, but not limited to:
(a) approved variations during design development or by the Client;
(b) variation in market prices;
(c) delays caused by Other Persons or factors beyond the Architect’s control
(d) the discovery at any time of previously unknown conditions.
3.11 The Client shall not disclose confidential information unless:
- disclosure is necessary to take professional advice in relation to this Agreement;
- it is in the public domain other than due to wrongful use or disclosure;
- disclosure is required by law or due to disputes arising out of or in connection to this Agreement
4. Fees and Expenses
4.1 The fees to undertake the Services and/or additional services shall be calculated in accordance with this clause and as specified in the Letter of appointment and will include for disbursements and expenses related to undertaking the Services. In addition to the fees and expenses, the Client shall pay any Value Added Tax (VAT) chargeable on the Architect’s fees and expenses.
4.2 The fee shall be adjusted, including due allowance for loss/expense if:
- material changes are made to the Brief and/or Construction Cost and/or Timetable, save to the extent that any changes arise from a breach of the Agreement by the Architect; and/or
- the services are varied by agreement.
4.3 Extra work or loss and expense incurred for reasons beyond the Architect’s reasonable control entitles the Architect to additional fees calculated on a time basis unless otherwise agreed. Entitlement for additional fees include but are not limited to circumstances where:
- the Architect is required to vary any item of work commenced or completed pursuant to this Agreement or to provide a new design after the Client has authorised the Architect to develop and approved design;
- the nature of the Project requires substantial parts of the design cannot be completed or must be specified provisionally or approximately before construction commences;
- performance of the Services is delayed, disrupted or prolonged; and
- the cost of any work, installation or equipment for which the Architect performs Services is omitted from or not included in the Construction Cost
The Architect shall inform the Client on becoming aware that this clause will apply.
4.4 Where the Client instructed the Architect to prepare a tender package for work or services in relation to the Project, but no tender is made or accepted, the Architect shall be entitled to fees due up to and including Stage 4 applied to the Construction Cost of that part of it relating to the said work or services current at the date of tender invitation.
4.5 The Architect shall issue payment notices at the intervals specified in the fee proposal.
Each notice shall comprise the Architect’s account setting out the sum that the Architect considers due at the payment date, including all accrued instalments of the fee and other amounts due, less any amounts previously paid. The payment due date shall be the date of the Architects 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 any other specified method.
4.6 The Client shall pay within 14 days of the date of issue and shall not delay payment of any undisputed sum. In the event of any amounts are delayed or not paid the Architect shall charge interest on the outstanding sum at the daily rate equivalent to 8% plus the dealing rate of the Bank of England Rate, together with costs reasonably incurred by the Architect including costs of time spent in obtaining payment of sums due under this Agreement.
The Architect’s entitlement to interest at the specified rate also applies in respect to amounts awarded in adjudication, arbitration or legal proceedings.
4.7 Where the client does not make timely payment the Architect may suspend or terminate performance of the Services and other obligations under cl.8 or may commence dispute resolution and/or debt recovery. Where payments are significantly delayed and/or withheld the Architect reserves the right to withdraw any applications for consents.
4.8 The Client shall not withhold any amount due to the Architect under this agreement 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.
All rights of set-off at common law or in equity which the client would otherwise be entitled to exercise are expressly excluded.
4.9 If the Architect or Client suspends performance of any or all the Services or terminates performance of the Services and/or other obligations the Architect shall issue an account of accounts as soon as reasonably practicable and the Architect shall be entitled to:
- payment of any part of the fee and other amounts properly due to the date of the last installment and a fair and reasonable amount up to the date of terminations or suspension; and
- payment of and license fee due; and
- reimbursement of any loss and/or damages caused to the Architect by reason of the suspension or the termination, save where the Client gives notice of suspension or termination by reasons of material breach of the Agreement by the Architect.
4.10 The Client or the Architect shall pay to the other party who successfully pursues, resists or defends any claim or part of claim brought by the other:
- such costs reasonably incurred and duly mitigated (including time spent by employees and advisors) where the matter is resolved by negotiation or mediation;
- such costs as may be determined by any tribunal to which the matter is referred.
5. Copyright and Use of Information
5.1 The Architect shall own all intellectual property rights including the copyright in the original work produced in the performance of the Services and generally asserts the Architect’s moral rights to be identified as the author of such work. No part of any design by the Architect may be registered or used by the Client without the consent of the Architect in writing.
5.2 The Client shall have a licence to copy and use the drawings, documents and all other such work produced by or on behalf of the Architect in performing the Services, hereinafter called the ‘Material’. In the event the Client is in default of payment of monies due to the Architect such licence is agreed to be immediately withdrawn and revoked.
The Material may be used for the construction of the Project, promotion, leasing and/or sale of the Project. The Material may not be used for reproduction or modification of the design for any part of any extension of the Project, and/or for any other project except on payment of a licence fee specified in this Agreement or subsequently agreed.
Copying or use of the Material by an Other Person shall be deemed to be permitted under a sub-licence granted by the Client, whether such Material was issued by the Client or on the Client’s behalf.
The Architect shall not be liable if the material is modified other than by or with the consent of the Architect or used for any purpose other than the purposes for which it was prepared.
6. Assignment of Agreement
6.1 Neither party may assign, sub-contract, sell, novate, sub-let or otherwise dispose of the Agreement or any part thereof, other than the sub-contracts (if any) specified under the Services, without the previous written consent of the other party, which shall not be unreasonably withheld or delayed.
7. Liability and Insurance
7.1 No action or proceedings arising out of or in connection with this Agreement whether in contract, in tort, for negligence or breach of statutory duty or otherwise shall be commenced after the expiry of the period specified in the Project from the date of the last services performed under this Agreement or, if earlier, the date of practical completion of construction of the Project of such earlier date as prescribed by law.
7.2 In any such action or proceedings:
- the Architect’s liability for loss or damage shall not exceed the amount of the Architect’s professional indemnity insurance, providing the Architect has notified the insurers of the relevant claim or claims as required by the terms of such insurance.
- no employee of the Architect, including 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 The liability of the Architect shall not exceed such sum as it is just and equitable for the Architect to pay having regard to the extent of the Architect’s responsibility for the loss and/or damage in question and on the assumptions that:
- all other consultants, contractors and Other Persons have provided to the client contractual undertakings on terms no less onerous than those of the Architect under this Agreement;
- there are no exclusions of or limitation of liability nor joint insurance provisions between the Client and any other person referred to in the clause;
- all the persons referred to in the clause 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.
7.4 The Architect shall maintain until at least the expiry of the period specified in cl.7.1 professional indemnity insurance with a limit of liability of not less than the amount or amounts specified in the Project provided that such insurance continues to the offered on commercially reasonable terms to the Architect at the time when the insurance is taken out or renewed.
Such insurance shall be subject only to such other limitations, exceptions and exclusions as are commonly included in such policies.
7.5 The Architect, when reasonably requested by the Client shall produce for inspection evidence confirming such insurance is being maintained.
7.6 Nothing in this Agreement shall confer or is extended to confer any right to enforce any of its terms on any person who is not party to it other than lawful assignees.
7.7 The Architect holds no liability for any damages caused by inaccuracies in information produced and supplied by others, for instance estate plans and third party measured surveys.
8. Suspension or Termination
8.1 The provisions for suspension are:
- the Client may suspend or end the performance of any or all Services and/or other obligations by giving not less than seven days’ notice in writing to the Architect specifying the Services affected.
- the Architect may suspend performance of any or all its obligations on giving not less than seven days’ notice in writing to the client of the intention and stating the ground or grounds on which it is intended to do so. Such grounds included but are not limited to:
(a) that the client fails to pay any fees or other amounts due by the final date for payment; or
(b) that the Client is in material or persistent breach of the obligations under this Agreement; or
(c) that the Architect is prevented from or impeded in performing the Services for reasons beyond the Architect’s reasonable control; or
(d) force majeure
The Architect shall cease performance of the suspended Services and/or other obligations in an orderly and economical manner on expiry of the notice period after receipt or giving of a notice of suspension.
Where Services are suspended by either party and not resumed within six months the other Party shall have the right to treat performance of the Services or other obligations affected as being terminated on giving at least seven days’ further written notice to the other Party.
8.2 The Client or the Architect may be giving reasonable notice to the other terminating performance of the Services and/or other obligations, stating the reasons for doing so and the Services and obligations affected.
Performance of the Services and/or other obligations may be terminated immediately by notice from either party if:
(a) the other party commits an act of bankruptcy 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; or
(b) the other party becomes unable to perform its obligations through death or incapacity.
On termination of performance of the Services and/or other obligations, a copy of the Materials not previously provided to the Client, shall be delivered on demand to the Client by the Architect, subject to the terms of the licence under cl.5.2 and payment of any outstanding fees and other amounts due plus the Architect’s reasonable expenses.
9. Dispute Resolution
9.1 Provided both parties consider that there is a reasonable prospect of resolving any disputes or differences which arise between them out of or in connection with this Agreement or the Services by way of negotiation between them in good faith, or by way of the procedures referred to below, before resorting to legal proceedings the parties shall attempt to settle the same in any of those ways.
In the event of failure to resolve a matter by negotiations in good faith within 60 days, the parties may agree to resolve such dispute by adjudication under the statutory scheme.
10. Right to Cancel
10.1 The consumer Client has the right to cancel this Agreement for any reason by delivering or sending (including by email) a cancellation notice to the Architect at any time within the period of seven days starting from the date when this agreement was made. The notice of cancellation is deemed to be served as soon as it is sent to the Architect.
10.3 If the Architect was instructed to perform any services before the Agreement was made or before the end of the seven-day period and the instruction or instructions were confirmed in writing, the Architect shall be entitled to any fees and expenses properly due before the Architect receives the notice of cancellation.