Terms and Conditions of Appointment

Introduction

Rev.4 Last updated: June 2024

We request that you confirm acceptance of the terms and conditions below in writing, provided that whether or not we receive such confirmation any instruction from you to us, Thirteen Consulting Ltd trading as Thirteen Structures, to commence and/or continue the performance of the Services will amount to agreement by you to the terms and conditions below and shall form a binding contract on the basis of the terms and conditions below, to the exclusion of any other terms or conditions that may have been or may be proposed by you. Any amendments to the terms and conditions below will only be effective if agreed in writing by us.

For the purposes of these terms and conditions, the term “Services” shall mean the services described in the quotation and Appointment and all other services performed by us in connection therewith and the term “Appointment” shall mean our proposal detailing the Services that we propose to perform for you, these terms and conditions and your acceptance thereof.

Parties, Obligations

1. We shall exercise reasonable skill, care, and diligence in the performance of our obligations under or in connection with the Appointment and shall exercise reasonable endeavours to perform the Services to any programme agreed in relation thereto. Notwithstanding any other provision of the Appointment, we shall have no greater obligation under or in connection with the Appointment than to exercise reasonable skill, care, and diligence.

2. You shall give us all relevant data and information available to you in relation to the Services and such assistance, decisions and access as may be required by us and in sufficient time to enable the performance of the Services in accordance with any agreed programme. You shall comply with your obligations as “client” under the Construction (Design and Management) Regulations 2015.

3. Unless otherwise agreed in writing, our duties and obligations shall be limited to the role of the Designer and the duties of the Designer in accordance with The Building Regulations etc. (Amendment) (England) Regulations 2023. The Client shall be responsible for appointing a Principal Designer unless it is explicitly agreed in writing that we perform these duties.

Payment

3.1 Unless otherwise agreed in writing, we shall issue invoices at pre-agreed intervals and on termination or completion of the Services. You shall pay our invoices in full upon receipt and no later than fourteen (14) days after the invoice date or, if the Appointment is a “construction contract” for the purposes of Section 104 of the Housing Grants, Construction and Regeneration Act 1996 (as amended), in accordance with clause 3.2.

3.2 Our invoices shall state the sum we consider to be due at the payment due date (“Notified Sum”) and the basis on which that sum is calculated. All sums due under the Appointment are exclusive of Value Added Tax, the amount of which shall be paid by you at the rate and in the manner prescribed by law. On or before the final date for payment you shall pay (i) the Notified Sum; or (ii) if you notify us of your intention to pay less than the Notified Sum no later than seven (7) days before the final date for payment specifying the sum you consider to be due and the basis on which it is calculated, the sum stated as due in such notice of intention to pay less.

3.3 In the event of late payment, we may

(a) charge statutory interest calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 together with all other costs reasonably incurred by us; and/or

(b) without prejudice to Section 112(2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended) if the Appointment is a “construction contract” or to clause 10, suspend the Services until payment of the arrears plus applicable interest is received in cleared funds. All sums due under the Appointment are exclusive of Value Added Tax, the amount of which shall be paid by you at the rate and in the manner prescribed by law.

3.4 In the event that we receive reasonable instructions from you or on your behalf to perform services additional or different to those stated in our proposal and/or such additional or varied services are necessary in the circumstances and/or we suffer delay or disruption in the performance of the Services for reasons outside our reasonable control (including without limitation for any reasons relating to disease, epidemics and/or pandemics and/or government advice in relation thereto), you shall make additional payment to us for the additional, different or varied services performed and/or the additional resources employed and/or the delay or disruption suffered and/or all costs and expenses in relation thereto (including without limitation demobilisation and remobilisation costs) and any agreed programme shall be extended accordingly. The additional payment shall be calculated on a fair, reasonable and commercial basis (and which shall include reasonable profit), having due regard to how we charge for such additional, different or varied services performed and/or the additional resources employed and/or the delay or disruption suffered for a project which is similar to the project to which the Services relate (the “Project”).

Insurance and Liability

4.1 Provided always that such insurance remains available in the market at commercially reasonable rates, and subject to all exceptions, exclusions and limitations to the scope of cover that are commonly included in such insurance at the time it is taken out or renewed as the case may be, we shall maintain professional indemnity insurance with an aggregate limit of indemnity in the same amount as the Limit of Liability.

4.2 Our total liability (other than for personal injury or death resulting from negligence or for fraudulent misrepresentation) under or in connection with the Appointment, howsoever arising (including without limitation legal costs and interest) and whether arising in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed in the aggregate the total fee due to us under the Appointment (the “Limit of Liability”).

4.3 Without prejudice to clauses 4.2 or any other exclusion or limitation of liability available to us, our liability shall be further limited to:

(a) such sums as we ought reasonably to pay having regard to our responsibility for the loss and damage suffered on the assumptions that any other consultants, contractors and sub-contractors shall be deemed to have provided you with contractual undertakings on terms no less onerous than those set out in this Appointment and paid you such proportion of loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility; and

(b) the extent of any loss, damages, injury, expenses, costs (including legal costs) that are directly caused by our negligence or the negligence of our employees, sub-contractors, sub-consultants, and/or agents hereunder. In no circumstances whatsoever shall we be liable to you for any loss of profit or revenue or savings (actual or anticipated), business interruption, loss caused by delay, wasted management time, increased supervision costs, diminution in value, financing charges, loss of goodwill, loss of reputation, loss of market share, loss of data, ex gratia payments of any kind (including without limitation if any of the same are direct losses) and/or any indirect or consequential loss whether caused by negligence, breach of duty (statutory or otherwise), breach of contract or otherwise and whether or not such losses were foreseeable at the time of entering into the Appointment.

4.4 You agree not to pursue any claims in contract, tort (including negligence) breach of statutory duty or otherwise

(a) after the expiry of six (6) years following the completion of the Services or such earlier date as may be prescribed by law; and/or

(b) (save in respect of death or personal injury resulting from negligence) against any individual employee, officer, director, partner or member of ours as a result of them carrying out the Services.

Confidentiality

5. We shall both treat the details of the Appointment and any written or oral information about the Services (including any know-how, techniques or processes used in the course of carrying out the Services) as private and confidential and neither of us shall publish or disclose any details thereof to any third party unless prior written consent has been given by the other. This duty of confidentiality shall not apply to information which the receiving party can show by reasonable documentary proof

(a) to have been in the public domain at the time of receipt by the receiving party; or

(b) to have been lawfully known by the receiving party prior to its receipt; or

(d) to have become known to the public through no fault of the receiving party after receipt thereof; or

(e) is required to be disclosed pursuant to applicable laws or a legally binding order of any competent judicial, governmental, or regulatory body. Before disclosure pursuant to clause 5(e), the disclosing party will (to the extent permitted by law) inform the receiving party of the circumstances and the details of the information to be disclosed at the earliest possible opportunity.

Intellectual Property Rights

6. Copyright in all drawings, designs, documents, models and materials of any nature prepared by us for you (the “Intellectual Property”) shall remain vested in us but you shall have a license to copy and use the Intellectual Property for the purposes for which it was prepared by us, subject always to us having received full payment for the Services in accordance with the Appointment. We shall not be liable for the use of any Intellectual Property for any purpose other than that for which it was originally prepared by us. Unless agreed otherwise, building information models produced in performing the Services (“Models”) are for our use only. You shall indemnify us against any losses, claims, costs, damages, or expenses arising out of or in connection with the use and or reliance on any Models by you or any third party.

Hazardous Materials

7.1 Unless included in the Services, we are not responsible for advising on matters which wholly, partly, directly or indirectly arise out of or result from asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or product or waste that contains asbestos) or pollution and contamination (including without limitation by naturally occurring or man-made substances, forces or organisms or any combination of them whether permanent or transitory and however occurring) or any fungus or spore or any substance, vapour or gas produced by or arising out of any fungus or spore (herein called "asbestos, toxic mould and pollution and contamination matters") and our liability if any under or in connection with the Appointment whether in contract, tort (including negligence), breach of statutory duty or otherwise for any claim which may arise out of or in connection with asbestos, toxic mould and pollution and contamination matters is excluded.

Site Operations

8.1 In the event of our personnel visiting a site to which the Services relate (the “Site”), they shall be regarded for all purposes as being your visitors and we shall not be deemed to have assumed the role of occupier or otherwise to have assumed control of or responsibility for the Site or any persons on it. You shall maintain a safe workplace and environment at the Site which is to our reasonable satisfaction and a failure to do so shall be regarded as a material breach of the Appointment.

Construction Administration Services

9.1 We shall

(a) be entitled to rely and act upon the advice of your consultants (both before and after any novation of such consultants’ respective appointments);

(b) not be responsible for or liable for any design prepared by you or by your consultants, the contractor and/or any sub-contractors (“Third Parties”), and

(c) not be liable for the approval of any drawings prepared or to be prepared by you or any Third Parties or for the quality of or performance of the Project. We shall not be held responsible for any construction means or methods under or in connection with the Appointment. Nothing in the Appointment shall impose or give rise to any fitness for purpose obligation, warranty, or guarantee.

9.2 You shall procure that the appointment of each of your other consultants includes an obligation on such other consultants to confirm to us in a timely fashion (so as not to delay or disrupt the performance of the Services) that the Project has been carried out in accordance with the employer’s requirements and/or the building contract and completed in accordance with all necessary approvals. Notwithstanding such confirmation being given to us by your other consultants, we shall be entitled to refuse to issue a statement of practical completion or a statement of making good defects under a building contract when patent defects are present.

Termination

10.1 Either of us may terminate the Appointment

(a) immediately upon written notice to the other if the other has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or enters into liquidation (whether voluntary or compulsory) or if any proceedings are commenced relating to its insolvency or possible insolvency

(b) by written notice to the other if, within two weeks of receipt of a written notice identifying a material breach of the Appointment by the other, the other has not taken all reasonable steps to rectify such breach or

(c) at any time by giving not less than one month’s written notice to the other. We shall be entitled to suspend performance of the Services on 7 days’ written notice if due to circumstances outside our control it is impossible or impractical to perform the Services.

10.2 In the event of any suspension or termination for any cause whatsoever, we shall be entitled to be paid for all Services performed up to the date of termination and not yet paid for by you. Save where any suspension or termination is due to our being in breach, we shall also be entitled to be paid for all costs, disbursements and expenses reasonably incurred by us (including any costs incurred in suspending and/or resuming performance of the Services) as a direct result of such suspension or termination.

Third Party Rights

12.1 The Appointment is personal to you and cannot be assigned to any third party.

12.2 The Appointment shall not confer and shall not purport to confer on any third party any benefit or any right to enforce any term of the Appointment for the purposes of the Contracts (Rights of Third Parties) Act 1999 or otherwise. This includes collateral warranty and/or reliance agreement (as the case may be).

12.3 Subject to clauses 12.1 and 12.2, we will have no liability to any third party whether in contract, tort (including negligence) or otherwise in relation to the services provided under this Appointment or any work produced pursuant to it.

Governing Law and Dispute Resolution

13.1 If at any time a dispute arises under the Appointment which cannot be settled amicably between us, either of us may refer the dispute to adjudication in accordance with the Construction Industry Council (“CIC”) Model Adjudication Procedure current at the date the dispute arises. Both of us shall agree a sole adjudicator or failing such agreement, the CIC will nominate a sole adjudicator. The adjudication shall be conducted in English under the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction with regard to all disputes under or in connection with the Appointment. The Appointment shall be governed by and construed in accordance with the laws of England and Wales.

13.2 If any term or provision in the Appointment is or becomes invalid, illegal, or unenforceable, the remainder shall survive unaffected. The Appointment represents the entire agreement and understanding between us relating to the subject matter of the Appointment. You acknowledge that you have had an opportunity to negotiate the terms and conditions of the Appointment prior to the commencement of the Services.

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