Conditions of Engagement
- Site Surveying Service’s obligations, hereafter known as (S.S.S)
1.1 S.S.S shall perform the services with reasonable skill, care and diligence, but:
- no liability shall attach to S.S.S in respect of the services except such liability as ought to be covered by the professional indemnity insurance referred to in the Appointment Agreement for Land Surveying Services;
- Such liability shall be limited to the sum specified in the Appointment Agreement for Land Surveying Services;
1.2 S.S.S shall promptly inform the client in writing of the likely effect of anything relating to S.S.S’s scope of work as defined herein which S.S.S believes would materially vary the works, increase the cost of, or time taken to complete, the works.
1.3 Site Surveying Services Standard Specification shall apply amended as per our quote or written order.
- Payment for S.S.S’s services
2.1 S. S. S shall be entitled to submit a fee invoice:
- Monthly, or at the conclusion of agreed service stages, whichever is the more frequent.
- At suspension or termination of the services;
- When work proves to be abortive, in respect of that work;
- At conclusion of the services.
2.2 Payments invoiced shall be calculated by reference to:
- agreed hourly or unit rates;
- agreed service stage payments or lump sums; or
- a fair proportion of agreed service stage payments or lump sums.
2.3 The client shall pay S.S.S for the performance of the services the fees and charges in such instalments as are set out in the Appointment Agreement for Land Surveying Services. All fees and charges under the Agreement are exclusive of Value Added Tax (VAT) which if due shall be paid concurrently in addition. The “due date for payment” shall be 30 (thirty) days (see clause 15.3 below) after the date of the submission of the invoice. S.S.S when submitting his or her invoice shall on each invoice confirm the basis on which the stated amount is calculated.
2.4 The client must, not later than 5 (five) days after the due date for payment, give to S.S.S written notice stating the amount which the client proposes to pay and the basis on which that amount is calculated.
Where no such notice is given the amount to be paid is that stated in the invoice.
2.5 Where the client intends to withhold payment of any amount either stated in S.S.S’s invoice or in a written notice given by the client under clause 2.4 above, the client must give written notice to S.S.S not later than 5 (five) days before the final date for payment, stating the amount to be withheld and the grounds for withholding payment.
2.6 Any amounts due to S.S.S under this Agreement which remain unpaid by the client after the final date for payment shall bear interest at a rate of 4% (four per cent) above the base rate, in force from time to time at the bank holding S.S.S’s current account, calculated from the date for final payment or from the date 7 (seven) days after publication of an adjudication settlement, whichever is the later.
2.7 In the event that the client is in default over payment of amounts at the final date for payment and no notice of intention to withhold payment from such amount has been given under clause 2.5 above, S.S.S may suspend performance of any or all of the services. This right is subjected to S.S.S first giving the client not less than 7 (seven) days’ written notice of such intention and stating the grounds for suspension. The right to suspend performance shall cease when the client makes payment of the amount due. Any such period of suspension shall be disregarded for the purpose of contractual time limits previously agreed for the completion of the services. Such suspension shall not be treated as a suspension under clause 5 below.
2.8 Any late payments referred to our debt recovery firm will incur further costs that you the client will become liable for.
2.9 The specified fees do not include, and S.S.S shall be entitled to reimbursement of expenditure comprising:
- the reasonable cost of producing or reproducing documents, drawings, maps, photographic and other records and presentation materials;
- Reasonable travel and hotel expenses (including mileage for car travel and travel time);
- Unit charges (but not standing charges) for communications by telephone, telex, facsimile transmission, post, messenger, etc;
- Any other fees or expenses which the client has authorized S.S.S in writing to incur.
2.10 Unless expressly agreed to the contrary the specified fees do not include, and S.S.S shall be entitled to payment at the specified hourly rate for, any work arising out of or in connection with:
- preparing maintenance manuals or other documents (drawings, maps, photographic and other records, models and presentation materials)
- varied instructions resulting in additional or abortive work;
- Defects in materials or in the work of others;
- Resurvey/setting out of work altered by others
- overrun of a contract administered by S.S.S where such overrun is beyond
2.11 On written demand by the client, S.S.S shall provide as appropriate:
- Time sheets where the fee is based on time charges;
Original receipts or other appropriate evidence of expenses or disbursement.
2.11 All fees are exclusive of VAT.
2.12 S.S.S shall notify the client in writing as soon as it becomes reasonably apparent that any work additional to the subject of the Agreement will be required.
2.13 Where S.S.S is involved in additional work because of:
- Changes in the scope of works; and/or
- Changes in the programme of the works; and/or
- Changes instructed to the services; and/or
- the commencement of adjudication, arbitration or litigation, the client shall pay to S.S.S additional fees calculated (unless otherwise agreed) on the time charge basis set out in the Appointment Agreement.
- Professional Indemnity Insurance (PII)
3.1 Site Surveying Services will carry PI up to £250000 with standard RICS exclusions as specified in our policy.
- 4. Communications between the client and S.S.S
4.1 If the client’s representative has ceased for any reason to act as such, the client shall promptly inform S.S.S in writing of the identity of the new representative.
4.2 All the client’s instructions to S.S.S with regard to the services (including those to vary, add to or suspend the services) shall be given to S.S.S in writing, or, if given orally, confirmed in writing within 7 (seven) days.
4.3 The client shall promptly convey to S.S.S any decision or information held by the client necessary for the proper performance of the services.
4.4 Any formal notice shall be deemed to have been duly given if mailed by registered post to the representative at the address specified in the Appointment Agreement for Land Surveying Services.
- Suspension and termination
5.1 The client may suspend performance by S.S.S of all or any of the services by giving 7 (seven) days’ notice to S.S.S. If the services have been suspended for a period of more than 12 (twelve) months, either party may terminate the Agreement by giving written notice to that effect.
5.2 The client may terminate the appointment of S.S.S under this Agreement by giving 7 (seven) days’ written notice to S.S.S.
5.3 Where the services have been suspended by the client and the Agreement has not been terminated, the client may, by giving reasonable notice to S.S.S, require S.S.S to resume the performance of the services.
5.4 If the client materially breaches their obligations under this Agreement, S.S.S may serve on the client a notice specifying the breach and requiring its remedy within 28 (twenty-eight) days, and if the client thereafter fails to remedy that breach within that period, S.S.S may terminate this Agreement given written notice to the client.
5.5 If either party:
- commits an act of bankruptcy or has a receiving or administrative order made against it; and/or
- goes into liquidation; and/or
- becomes insolvent; and/or
- makes any arrangements with its creditors;
The other may suspend performance of the services or may terminate the appointment by giving written notice.
5.6 These rights are in addition to those granted to Site Surveying Services under clause 2 above.
- Consequences of suspension and termination
6.1 If performance of the services has been suspended under clause 2 or clause 5 above, or the Agreement has been terminated pursuant to the provisions of clause 5 above:
(a) The client shall pay S.S.S any instalments of the fees due to S.S.S up to the date of suspension or termination together with a fair and reasonable proportion of the next following instalment commensurate with the services performed by S.S.S.
(b) Unless the Agreement has been terminated by the client because of a material breach by S.S.S, the client shall pay S.S.S within 28 (twenty-eight) days of written demand the consequential costs necessarily incurred as a result of the suspension or termination.
6.2 Termination of the Agreement shall be without prejudice to the rights and remedies of the parties.
7.1 In the event that the client has a complaint in respect of the performance of S.S.S’s services under this Agreement, without prejudice to any other remedy available under the Agreement, he or she shall be entitled to have access to the complaints handling procedure maintained by S.S.S, written copies of which should be available on request from S.S.S.
8.1 Unless otherwise agreed in writing, S.S.S shall retain copyright in and ownership of, all specifications, or other documents, drawings, maps, photographic and other records, models and presentation materials prepared by S.S.S.
8.2 S.S.S may publish or join in publishing any description or illustration of the works with the prior consent of the client.
- Assignment (England and Wales)
9.1 The client may assign or transfer all (but not part) of this Agreement upon giving written notice to S.S.S to that effect and upon payment of an agreed fee of £250, which shall be payable with the assignment notice, for the notice to be valid
9.2 S.S.S may assign or transfer all or part of this Agreement but only with the prior written consent of the client, which shall not be unreasonably withheld.
10.1 No acquiescence in a breach shown by either the client or S.S.S shall prevent the other subsequently insisting upon his or her rights and remedies under this Agreement.
11.1 If a dispute arises out of this Agreement, the client and S.S.S shall attempt to reach a settlement in good faith. The internal complaints procedure mentioned in clause 7.1 of the Selection and Appointment Advice should facilitate this for disputes less than £50,000.
11.2 If the dispute is not thus resolved, either the client or S.S.S may at any time give notice to the other that he or she wishes to refer the dispute to an adjudicator, provided the contract is in writing. The person who is to act as the adjudicator shall be agreed between the client and S.S.S within 28 (twenty-eight) days of such notice having been given or, failing agreement at the end of that period, be a person appointed by the President or Vice-President of the Chartered Institute of Arbitrators (or in Scotland, the Chairman or Vice-Chairman of the Chartered Institution of Arbitrators (Scottish Branch)) within 5 (five) days of such notice having been given. The referring party shall refer the dispute in writing to the adjudicator with 7 (seven) days of such notice having been given.
11.3 The adjudication shall be conducted in accordance with the Construction Industry Council Model Adjudication Procedures (subject to amendments if the adjudication is in Scotland – see clause 4.3 on p.8) current at the time of entering into this Agreement. Clause 30 of the Construction Industry Council Model Adjudication Procedures shall be amended to add the following sentence:
“No party shall be entitled to raise any right of set-off, counterclaim and/or abatement in connection with any enforcement proceedings”.
11.4 The adjudicator shall act impartially and may take the initiative in ascertaining the facts and the law.
11.5 The adjudicator shall reach a decision:
(a) Within 28 (twenty-eight) days of the referral of the dispute to the adjudicator; or
(b) Within 42 (forty-two) days of the referral of the dispute to the adjudicator if the referring party so consents; or
(c) In a period exceeding 28 (twenty-eight) days from referral of the dispute to the adjudicator as the client and S.S.S may agree after such a referral.
11.6 The adjudicator is not liable for anything he or she does or omits to do so in the discharge or purported discharge of his or her functions as adjudicator unless the act or omission is in bad faith. Any employee or agent of the adjudicator shall be similarly protected from liability.
11.7 The decision of the adjudicator shall, subject to the provisions of clauses
11.8 and 11.9 below, be binding until the dispute is finally determined by arbitration either under the contract, or as part of S.S.S’s internal complaints procedure for disputes less than £50,000.
11.8 The client and S.S.S may agree to accept the decision of the adjudicator as finally determining the dispute.
11.9 If the client or S.S.S is dissatisfied with the decision of the adjudicator, then:
(a) The dispute may be determined by agreement between the parties; or
(b) The dispute may be referred at the instance of either of the parties to be determined by an arbitrator in accordance with clause 12 below.
11.10 The client agrees not to commence any proceedings in litigation or arbitration against S.S.S arising out of, under, or in connection with, any adjudication award until the award has been finally determined by legal proceedings by arbitration or by agreement between the parties, and/or until the work subject to the project in connection with which S.S.S is appointed shall be completed, whichever is the later, and irrespective of whether the project is completed by the original contractor or any subsequent contractor or by the client.
11.11 Enforcement of awards
It is hereby agreed that:
(a) Non-payment of any award without cause will constitute a separate breach of the contract contained herein; and
(b) Any award may be enforced as a judgement.
It is hereby agreed that “stating that the provisions of the Construction Act 1996 have been incorporated into contracts effected by simple exchange of letters and may be incorporated by reference in telephone conversations to the use by the parties of a standard form of Land contract.”
12.1 Any dispute under this Agreement, including those for more than £50,000 and/or those where adjudication would not apply, may be referred at the instance of either of the parties to be determined by an arbitrator. The person who is to act as an arbitrator shall be agreed between the parties within 28 (twenty-eight) days of the one giving written notice of his or her wish to refer the decision to an arbitrator or, failing agreement at the end of that period, shall be a person appointed by the President or Vice-President of the Chartered Institute of Arbitrators at the instance of either party. The arbitration shall be conducted in accordance with the Construction Industry Model Arbitration Rules current at the time of entering into this Agreement.
13.1 The liability of S.S.S shall be limited to such sum as it would be just and equitable for S.S.S to pay having regard to the extent of the responsibility of S.S.S for the loss or damage suffered, on the basis that all other consultants, the contractor and any subcontractors who have a liability shall be deemed to have provided contractual undertakings to the client on terms no less onerous than those applying in the case of this Agreement. They shall be 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 such loss or damage.
13.2 The liability of S.S.S shall be limited to the amount of the Professional Indemnity Insurance required by virtue of clause 3.1 above.
14.1 Any notice to be given under this Agreement shall be in writing and delivered by hand or sent by recorded delivery post to the party at the address shown in the Agreement or to such an address as the other party may have specified from time to time by written notice to the other.
14.2 Such notice shall be deemed to have been received on the day of delivery if delivered by hand and otherwise on the next working day.
14.3 Where under this Agreement an act is required to be completed within a specified period of days after or from a specified date, the period shall begin immediately after that date. Where the period would include a day which is Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is a bank holiday, that day shall be excluded.