1. Client obligations
1.1 You agree to comply in all material respects with your obligations set out, or referred to, in this letter (including but not limited to the key client obligations set out at Schedule 3 and the other obligations in this Schedule 6) and you agree that we may make a reasonable adjustment to our costs and to any timescales as a result of any delay or failure by you in complying with such obligations.
1.2 You must cooperate reasonably with us in all matters relating to the services set out this letter (“Services”) and ensure that any other persons appointed by you in connection with the Project cooperate similarly.
1.3 You must provide us with such information as we may reasonably require in order to supply the Services and ensure that such information is complete and accurate in all material respects.
2. Our authority
2.1 We will be entitled to act on your behalf in respect of matters set out in, or implied by this letter, and as otherwise agreed between us in writing from time to time.
2.2 In emergency situations, we will be entitled to issue instructions to a contractor without your prior authority in order to prevent damage to the Project or danger to individuals. We will notify you of any such action as soon as practicable.
3. Charges and payment
3.1 We may invoice you in accordance with the stage payments set out at Schedule 5. Where any stage is incomplete at the end of a calendar month, we may raise an interim invoice for the proportion of the work which we reasonably assess to be complete at such month-end.
3.2 You must pay our invoices within 21 days of your receipt. In the event of late payment, we will be entitled to suspend the supply of further services to you, apply interest (at the rate specified under the Late Payment of Commercial Debts (Interest) Act 1998) and/or exercise a lien over all documents and deliverables until our invoices are paid in full. If we are required to seek formal recovery of any unpaid amount, you agree that all legal and other costs incurred by us in respect of such recovery will be added to our claim.
3.3 Where services have been suspended due to non-payment of fees, we may charge a remobilisation fee to cover our costs of additional project administration and resourcing.
3.4 You agree that we may charge the travel costs and disbursements set out at Schedule 4. In addition, any other disbursements (such as statutory fees for planning and building regulation applications or Land Registry/Ordnance Survey fees) will be payable by you and we may invoice all such costs and disbursements at any time after we have incurred them.
3.5 You agree that we may charge additional fees (at the hourly rates in Schedule 4) in respect of any additional work required as a result of changes in your instructions, including changes to previously completed drawings or documents, or other changes to the work required that are beyond our reasonable control. In addition, we may charge abortive fees if our services are suspended prior to completion of a stage.
3.6 Where our fees are calculated on the basis of a proportion of the contract sum agreed for the Project, we will be entitled to increase our fees in line with such contract sum (or the final account, if greater).
3.7 All amounts due under the terms of this letter must be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
3.8 Any fees in relation to planning applications will be due upon determination of the submission; upon withdrawal, if a planning application is not determined within 12 months of the validation of the application.
4. Copyright
4.1 All copyright and other intellectual property rights in materials (including but not limited to drawings, designs, plans and other documents) produced in connection with the Services (“Materials”) will be owned by us.
4.2 Subject to your payment in full of our fees, we grant to you a non-exclusive, royalty-free licence to copy and make full use of the Materials for the purposes of the Project, including its design, construction, completion, reconstruction, modification, refurbishment, development, maintenance, facilities management, funding, disposal, letting, fitting-out, advertisement, decommissioning, demolition, reinstatement, building information modelling and repair.
4.3 The Materials may not be used without our prior written consent (for which we may charge a licence fee) for any other purpose, including any extension of the Project or any other project.
4.4 You must keep the Materials confidential and not share them with any third party save as necessary for the purposes listed at clause 4.2 above.
5. Confidentiality and publicity
5.1 Both you and we undertake that we will not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by clause 5.2.
5.2 Each party may disclose the other party’s confidential information:
5.2.1 to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under this letter. Each party must ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause 5; and
5.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.3 Neither you nor we may use the other party’s confidential information for any purpose other than to perform our respective obligations under this letter.
5.4 We may publish photographs of the Project (and you must give us reasonable access to the Project for this purpose for up to two years after practical completion) and we may publish any non-confidential information regarding the Project for the purposes of our publicity and marketing.
6. Limitation of liability
6.1 We will endeavour to maintain professional indemnity insurance with the limit set out on the first page of this letter subject to market availability, current market restrictions, and commercially viable rates. The limits and exclusions in this clause 6 reflect the insurance cover we have been able to arrange.
6.2 Nothing in this letter limits any liability which cannot legally be limited, including liability for:
6.2.1 death or personal injury caused by negligence; and
6.2.2 fraud or fraudulent misrepresentation.
6.3 Subject to clause 6.2:
6.3.1 we will not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any special, indirect or consequential loss, loss of goodwill, or loss of business, arising under or in connection with the Services; and
6.3.2 our total liability to you for loss or damage arising in connection with the Services, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not exceed the amount of our professional indemnity insurance arranged in accordance with clause 6.1 above.
6.4 You may not commence any legal action against us under this letter after six years from the date on which we complete the Services.
6.5 Our liability to you under this letter will be reduced to the extent that we prove we would have been able to recover a contribution pursuant to the Civil Liability (Contribution) Act 1978 from one or more of the other parties engaged by you in connection with the Project (whether consultants, contractors or otherwise), on the assumption that such persons have entered into an agreement with you containing terms generally similar to this letter (having regard to the differing nature of their respective functions in relation to the Project).
6.6 You are engaging Vanguard Technologists Ltd (company no: 13620008) to provide professional services to you. No employee of Vanguard Technologists Ltd will be personally liable to you, nor do they accept or assume personal responsibility to you or any third-party for carrying out any professional services.
6.7 The Services and Materials we provide are personal to you. No other third parties can rely on them without our prior written consent.
6.8 All terms, warranties and conditions implied by statute or otherwise are excluded from the terms of our appointment to the fullest extent permitted by law. Other than set out in this letter, no terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing will apply to our appointment.
6.9 You acknowledge that we are only required to produce the deliverables listed in Schedule 2.
6.10 We do not warrant, and will have no liability for, the competence or work of other persons appointed in connection with the Project.
6.11 We do not warrant that any approvals from third parties (including planning consent) will be granted in any particular timescale, or at all.
6.12 You acknowledge that all timings are subject to review as the Project progresses.
7. Termination
7.1 We may terminate the provision of the Services (and any licences granted by this letter) if:
7.1.1 you fail to pay any overdue sum to us within 30 days of us notifying you that it is overdue: or
7.1.2 you become bankrupt, insolvent, are (or are deemed to be) unable to pay your debts as they fall due or suffer any similar event.
7.2 On termination of the Services, you must immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which will be payable by you immediately on receipt.
7.3 Termination of the Services will not affect any rights, remedies, obligations, or liabilities of either you or us that have accrued up to the date of termination, including the right to claim damages in respect of any breach of contract which existed at or before the date of termination.
8. General
8.1 If you do not instruct us to supply any services in connection with the Project within 3 months of the date of this letter, then this letter will no longer be binding on us, and we will be entitled to issue you with a revised proposal if you subsequently instruct us.
8.2 In respect of the delivery of the Services, we will comply with all relevant codes of conduct that are imposed on us from time to time by the professional bodies to which we are affiliated.
8.3 We will not be in breach of the terms of our appointment nor liable for delay in performing, or failure to perform, any of our obligations if such delay or failure result from events, circumstances or causes beyond our reasonable control.
8.4 Neither you nor we will engage in any activity, practice, or conduct that would constitute an offence under the Bribery Act 2010.
8.5 You may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under this letter without our prior written consent.
8.6 The Project and the terms of this letter and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or contract formation will be governed by and construed in accordance with the law of England.
8.7 Both you and we irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Project or the terms of this letter or their subject matter or contract formation.
8.8 Vanguard Technologists Ltd keeps the right to change the Terms and Conditions at any time. You will be notified of changes to our standard Terms and Conditions and what these mean to you via email. Upon receipt of these we would require a written confirmation that you have acknowledged and you are happy with the changes.