Arbtech Standard Terms and Conditions for the Appointment of Sub-Consultants
General
Unless otherwise agreed in writing, these Standard Terms and Conditions shall apply to all Sub-Consultancy services to be provided by a Sub-Consultant (“Sub-Consultant”) at the request of Arbtech Consulting Limited (“ACL”).
The Sub-Contract Services
ACL will discuss with the Sub-Consultant at an early stage the brief, scope of work and work programme which together shall comprise the Services. The details of the Services shall be set out in an engagement letter or purchase order (“Engagement Letter”) the contents of which are incorporated herein. The Engagement Letter and these Standard Terms and Conditions shall together comprise the Sub-Consultant’s appointment (“Sub-Consultant’s Appointment”). The Sub-Consultant shall perform the Services including all work incidental thereto and provide such further advice and assistance as may reasonably be required as being necessary to complete the Services and enable ACL to comply with the terms of the appointment between ACL and its client (the “Appointment”).
The Engagement Letter will normally confirm the name and status of the person at the Sub-Consultant who is responsible for the day to day management of the project (“Project Leader”). ACL reserves the right to change the Project Leader and personnel involved with the project. The Sub-Consultant shall use only competent and suitably qualified personnel to act on its behalf in the performance of the Services. The Sub-Consultant will use its best endeavours to ensure that throughout the performance of the Services, the same personnel shall be employed in the performance of the Services.
The Sub-Consultant shall not have any authority whatsoever to act on behalf of ACL or purport to bind ACL to third parties without first obtaining ACL’s prior written approval, from a director.
ACL reserves the right to change the scope of work or work programme or otherwise vary the Services from time to time to reflect any change to the Appointment, the circumstances of the project or the requirements of its client and the Sub-Consultant shall comply with any reasonable instruction or variation in relation thereto. Any change to the Services to be provided will be recorded in an amendment to the Engagement Letter which will be incorporated herein. Any additional work to be undertaken by the Sub-Consultant will require the prior approval of ACL and its client. The Services shall be deemed to include such additional work once approval has been given.
These Standard Terms and Conditions shall be effective from the date of commencement of the Services by the Sub-Consultant notwithstanding that such Services may have commenced prior to the date of the Sub-Consultant’s Appointment.
Programme
The Sub-Consultant shall proceed with the Services regularly and diligently and perform the Services in accordance with the programme of work set out in the Engagement Letter and otherwise as may be necessary or as may be reasonably required by ACL.
Fees and Expenses
The fee payable or the basis of calculation for the proper performance of the Services will be set out in the Engagement Letter together with the payment schedule.
Reimbursement of expenses (if any) shall be on the basis set out in the Engagement Letter. All sums payable due under the Sub-Consultant’s Appointment are exclusive of VAT which, if applicable, will be applied by the Sub-Consultant to all invoices at the prevailing rate.
Payment
The Sub-Consultant shall deliver an invoice to ACL in accordance with the payment schedule in the Engagement Letter. Fees so invoiced shall be due to the Sub-Consultant 30 days following the date of receipt by ACL of the invoice (“the Due Date”).
Notwithstanding any other provision of the Sub-Consultant’s appointment, ACL may in any subsequent payment to the Sub-Consultant delete, correct and/or modify any sum or sums previously paid by it.
In the event that the Sub-Consultant becomes insolvent (which for the purposes of this clause shall mean insolvent as defined by section 113 of the Housing Grants, Construction and Regeneration Act 1996) after the date when in respect of any given invoice ACL could have issued a Pay Less Notice then no monies shall be payable or due to the Sub- Consultant.
In the event that ACL’s client under the Appointment becomes insolvent (which for the purposes of this clause shall mean insolvent as defined by section 113 of the Housing Grants, Construction and Regeneration Act 1996) no further monies shall be payable or due to the Sub-Consultant under the Sub-Consultant’s Appointment.
Copyright and Confidentiality
The copyright in all data, inputs, physical specimens, drawings, specifications, reports, calculations and proprietary or other intellectual property and all other documents (including material in electronic form) (“the Documents”) provided to ACL by the Sub-Consultant shall not remain vested in the Sub-Consultant and ACL shall have an irrevocable, non-exclusive, royalty free licence (and shall be entitled to grant sub-licences to its client and to third parties) to copy and use the Documents and the designs contained in them for all purposes for which they were provided including all purposes connected with the applicable project under the Appointment and for the purposes described in the Appointment. The Sub-Consultant shall not be liable for the use by ACL of the Documents for any purpose other than that for which they were provided.
The Sub-Consultant irrevocably waives any rights it may have by virtue of Chapter IV (Moral Rights) of Part 1 of the Copyright, Designs and Patents Act 1988 in relation to the Documents.
All information passing between the parties in the course of the Sub-Consultant’s Appointment or arising from it shall be considered confidential information. ACL and the Sub-Consultant agree that they shall keep in strict confidence any confidential information belonging to the other party and the Sub-Consultant agrees that it shall keep in strict confidence any confidential information belonging to ACL’s client or agents thereof. Such confidential information shall not be used, reproduced or disclosed to any third party other than to the extent reasonably necessary for the performance of each party’s respective obligations under the Sub-Consultant’s Appointment, without the written consent of the other party unless disclosure is required by law or reasonably required by any regulatory or statutory body or is otherwise in the public domain other than as a result of a breach of the Sub-Consultant’s Appointment.
The obligations of confidentiality shall continue without limit in time and shall survive termination of the Sub-Consultant’s Appointment.
Quality and Insurance
The Sub-Consultant will exercise in the performance of the Services all the reasonable skill, care and diligence as may be expected of a properly qualified and competent Sub-Consultant of the applicable discipline(s) experienced in the provision of professional services for projects of a similar size, scope, value, character and complexity to the Services and the applicable project under the Appointment.
The Sub-Consultant shall comply with all instructions from ACL and shall report to ACL on a timely basis.
The Sub-Consultant shall not approve or specify or use any materials or substances generally known within the Sub-Consultant’s profession to be deleterious at the time of use or which are prohibited by ACL’s client or which do not comply with any applicable British Standard or European Standard or any applicable Code of Practice.
The Sub-Consultant shall comply with all current health, safety and environmental legislation in existence at the time of carrying out the Services including, but not limited to, any duties, obligations or requirements under the Construction (Design and Management) Regulations 2007.
The Sub-Consultant will maintain and keep such records as a competent and professional Sub-Consultant would maintain and keep on a project of a similar size, scope and complexity to the project under which the Services are provided. ACL will at any time, upon request, be granted access to the said records and shall be entitled to take copies.
The Sub-Consultant shall be deemed to have full knowledge of the provisions of the Appointment. A copy of the Appointment (other than details of ACL’s professional indemnity insurance obligations and financial details) shall be supplied by ACL upon request by the Sub-Consultant to the extent that it is not enclosed with the Engagement Letter.
The Sub-Consultant shall so perform the Services and its obligations under the Sub- Consultant’s Appointment such that no act or omission on its part shall constitute, cause or contribute to any breach by ACL of any of its obligations under the Appointment.
The Sub-Consultant shall observe all the conditions and assume and perform all the obligations and liabilities of ACL under the Appointment so far as they relate to the Services.
The Sub-Consultant shall fully and promptly indemnify and hold harmless ACL its agents, servants and employees against all and any liabilities, claims, demands, damages, costs, expenses and proceedings whatsoever and howsoever arising and whether arising either directly or indirectly out of or in the course of or in connection with the provision of (or failure to perform) the Services or any breach by the Sub-Consultant of any provision of the Sub-Consultant’s Appointment. In the event of any such proceedings, the Sub- Consultant will assist ACL with all its reasonable requirements in attending to and dealing with any such proceedings.
The Sub-Consultant shall take out professional indemnity insurance in an amount not less than the sum stated in the Engagement Letter for each and every claim or series of claims arising out of the performance of the Services and the obligations of the Sub-Consultant under this Sub-Consultant’s Appointment and shall maintain such insurance for the period stated in the Appointment Letter.
The Sub-Consultant shall maintain Public Liability Insurance in an amount of not less than the sum stated in the Engagement Letter for any one occurrence or series of occurrences covering the acts of the Sub-Consultant, his employees and agents until completion of the Services.
The Sub-Consultant shall provide satisfactory evidence that the required insurance covers are in place as and when requested to do so by ACL.
Suspension and Termination
ACL may terminate the Sub-Consultant’s Appointment or require the Sub-Consultant to suspend the performance of the Services or any part(s) thereof upon 5 business days notice in writing.
Upon termination or suspension of the Services or any part(s) thereof, the Sub-Consultant shall take immediate steps to bring to an end the applicable Services in an orderly manner. The Sub-Consultant shall use all reasonable speed and economy to ensure that the Documents are delivered to ACL unless otherwise agreed in the case of suspension of the Services or any part(s) thereof.
Termination of the Sub-Consultant’s Appointment shall not prejudice or affect the accrued rights or claims of either party.
The Sub-Consultant’s Appointment may be terminated or suspended immediately in the event of force majeure.
Save in the event of termination due to the Sub-Consultant’s breach, in the event of termination ACL shall pay the Sub-Consultant a fair and reasonable amount of the fees payable commensurate with the agreed payment schedule and the Services properly and satisfactorily performed to the date of termination.
In the event of suspension or termination, ACL shall have no liability to the Sub-Consultant for any loss of profit, loss of business, loss of goodwill or any other losses or expenses of whatsoever nature, however and whensoever arising.
Where a sum due under this Appointment is not paid in full by 5 business days after the Due Date for payment, the Sub-Consultant has the right (without prejudice to any other right or remedy) to suspend performance of any or all of their obligations under the Sub Consultant’s Appointment. This right may not be exercised without first giving ACL at least ten days’ notice of intention to suspend performance, stating the ground or grounds on which it is intended to suspend performance. The right to suspend performance ceases when ACL makes payment in full of the amount due.
Disputes
Without prejudice to other clauses herein, if any dispute or difference shall arise in connection with the Sub-Consultant’s Appointment and/or the Services then the parties shall meet to endeavour to resolve such dispute or difference by negotiation.
Both parties will endeavour in good faith to resolve any dispute arising in connection with the Sub-Consultant’s appointment by mediation.
Either party may refer any dispute arising under the Sub-Consultant’s appointment to adjudication in accordance with (but without prejudice to clauses herein) the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No. 649).
ACL may at any time require that a dispute or difference arising out of the Sub-Consultant’s Appointment which relates to any matter arising out of the Appointment is dealt with together with and/or by the same person who is dealing with the relevant dispute or difference arising out of the Appointment.
Third Party Rights
Nothing in the Sub-Consultant’s Appointment confers or purports to confer on any third party any benefit or right to enforce any terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
Limitation
It is agreed that whatever the manner in which the parties have executed the Sub- Consultant’s Appointment, the period of limitations (in respect of which ACL and the Sub-Consultant hereby waive all and any rights, whether already existing, arising now and/or in the future to raise as a defence to any claim brought under this agreement, the Limitation Act 1980), applicable to any claim or claims arising out of or in connection with the Sub-Consultant’s appointment shall be 12 years from the completion of the whole of the project under the Appointment.
Governing Law and Jurisdiction
The terms of this Sub-Consultant’s Appointment shall be governed by and construed in accordance with English law and any dispute shall be subject to the non-exclusive jurisdiction of the English courts.
Miscellaneous
ACL may require provision of reports in a form suitable for those with disabilities.
The Sub-Consultant may not assign or transfer any benefit or obligation under this Sub-Consultant’s Appointment without the prior written consent of ACL.
Any Notice under this Sub-Consultant’s Appointment shall be in writing and given by sending the same by personal delivery, email, or by first class recorded post. Notice shall take effect when received by ACL or the Sub-Consultant as the case may be. Notice to ACL shall be sent to its Registered Office. Notice to the Sub-Consultant shall be sent to the addressee of the Engagement Letter.
References to any statute (which shall include all regulations and orders made under the relevant statute) or statutory instrument includes any statute, regulations or order amending, consolidating or replacing them.