1. Definitions and interpretation etc.
1.1 Where defined terms are used in the Agreement they are distinguished by an initial capital letter. The following definitions apply to all documents comprising this Agreement and are in addition to those set out elsewhere in the Agreement.
Brief means the latest statement of requirements for the Project issued or approved by the Client:
- At inception any initial statement by the Client;
- After clarification of the objectives, the Design Brief (or Output Specification); and
- And any subsequent development into the Project Brief.
The Brief shall include any information or drawings prepared by or on behalf of the Architectural designer and approved by the Client during the development of the Brief.
Collaborate means to co-operate with and to provide to or receive from Other Persons information reasonably necessary, as and when requested, for performing the Services or for such Other Persons to carry out their work or services, to consider and, where competent to do so, to comment on such information.
Confidential Information means all information relating to the Client’s and the Architectural designer’s business and affairs which either party directly or indirectly receives or acquires from the other party or any representative of the other party either in writing or verbally.
Construction Cost means:
- The client’s target cost for constructing the Project as specified in the Project data or where no such amount is specified a fair and reasonable amount; or subsequently
- The latest professionally prepared estimate approved by the client; or where applicable
- The actual cost of constructing the Project upon agreement or determination of a final account for the Project; and
includes (without limitation):
- The cost as if new of any equipment and/or materials provided or to be provided by the Client to a contractor for installation during construction of the project;
- Any direct works carried out by or on behalf of the Client; and
- Provision for contractor’s profit and overheads; and
- Value Added Tax;
- The costs of resolution of any dispute;
- The Client’s legal and in-house expenses;
- Any loss and/or expense payments paid to a contractor;
- Any adjustment for any liquidated damages deducted by the Client.
Other Person means any person, company or firm, other than the Architectural designer or any sub-consultant of the Architectural designer, including but not limited to consultants, contractors, sub-contractors, specialists, statutory bodies or undertakers, approving or adopting authorities, who have performed or will perform work or services in connection with the Project.
Project is defined in the Project Data.
Project Data means the matters set out in the ‘Project Data’ schedule, which may be varied by agreement.
Services means the services to be performed by the Architectural designer specified in the ‘Services’ schedule, which may be varied by agreement.
Timetable means the Client’s initial programme for performance of the Services as specified in the Project Data, or where no such programme is specified it shall be a fair and reasonable period. Subsequently, the Timetable shall be the latest programme approved by the Client.
1.2 The headings and notes to the Conditions are for convenience only and do not affect interpretation.
Words denoting natural persons include corporations and firms and vice versa.
1.3 Any notice or other document required under the Agreement is to be in writing and given or served by any effective means to the address of the recipient stated in the Agreement or such other address, including a postal address or fax number or email address notified to the other party.
Communications between the Client and the Architectural designer that are not such notices or document may be sent to any other address, including an e-mail address, notified to the other party as an appropriate address for specific communications. Communications take effect on receipt, but if not in writing are of no effect unless and until confirmed in writing by the sender or the other party.
Communications sent by special delivery or recorded delivery are deemed (subject to proof to the contrary) to have arrived at the appropriate address on the second working day after posting.
1.4 Where under this Agreement an action is required within a specific period of days, that period includes Saturdays and Sundays but excludes any day that is a public holiday.
1.5 The provisions of this Agreement continue to bind the Client and the Architectural designer as long as necessary to give effect to their respective rights and obligations.
1.6 This Agreement is subject to the law of England and Wales or Northern Ireland or Scotland as specified in the Project Data and subject to clause 9.3 the parties submit to the exclusive jurisdiction of the specified jurisdiction.
2. Obligations and authority of the Architectural designer
Duty of care
2.1 The Architectural designer exercises reasonable skill care and diligence in conformity with the normal standards of the Architectural designer’s profession in performing the Services and discharging all the obligations under this clause 2.
Duty to inform
2.2 The Architectural designer shall keep the Client informed of progress in the performance of the Services and of any issue that may materially affect the Brief, the Construction Cost, the Timetable, or the quality of the Project.
2.3 The Architectural designer shall inform the Client upon becoming aware of:
2.3.1 A need to appoint Other Persons, other than those named in the Project Data, to perform work or services in connection with the Project; and/or
2.3.2 Any information, decision or action required from the Client or others in connection with performance of the Services.
2.4 The Architectural designer shall Collaborate with Other Persons named in the Project Data, or whose appointment is foreseeable and, as applicable, shall co-ordinate and integrate the information received into the Architectural designer’s work.
Architectural designer’s authority
2.5 The Architectural designer shall act on behalf of the Client in the matters set out or necessarily implied in this Agreement or in project procedures agreed with the Client from time to time, but has no authority, without the Client’s prior approval:
2.5.1 to enter into any contractual or other commitment on behalf of the Client;
2.5.2 to terminate the employment of Other Persons appointed by the Client; or
2.5.3 to make or cause to be made any material alteration to or addition to or omission from the Services or the approved design.
In the event of an emergency, the Architectural designer may issue instructions to a contractor to prevent danger to persons or material damage to the Project without the Client’s prior approval, and shall confirm such action in writing to the Client without delay.
Architectural designer’s Representative
2.6 The Architectural designer’s Representative shall have full authority to act on behalf of the Architectural designer for aII purposes in connection with performance of the Services but not to vary the terms of the Agreement.
2.7 The Architectural designer shall have the right to publish photographs of the Project and the Client shall give reasonable access to the Project for this purpose for 2 years after practical completion of the construction works.
2.8 The Architectural designer shall obtain the consent of the Client, which consent is not unreasonably withheld or delayed, before publication of any other information about the Project, unless reasonably necessary for performance of the Services.
2.9 The Architectural designer shall not disclose to any other person Confidential Information unless:
2.9.1 disclosure is necessary for the proper performance of the Services, or in order to take professional advice in relation to this Agreement or the Services, or in order to obtain/maintain insurance cover as required by this Agreement;
2.9.2 it is in the public domain other than due to wrongful use or disclosure; or
2.9.3 disclosure is required by law or because of disputes arising out of or in connection with this Agreement.
3. Obligations and authority of the Client
3.1 The Client’s Representative shall have full authority act on behalf of the Client for all purposes in connection with the matters set out in this Agreement but not to vary the terms of the Agreement.
Information, decisions, approvals, etc
3.2 The Client shall supply the Initial statement of the Client’s requirements and shall advise the relative priorities of the Client’s requirements, the Brief, the Construction Cost and the Timetable.
3.3 The Client shall provide free of charge, aII the information in the Client’s possession, or reasonably obtainable,which is necessary for the proper and timely performance of the Services and the Architectural designer shall be entitled to rely on such information.
3.4 The Client shall give decisions and approvals and shall take such actions necessary for the proper and timely performance of the Services.
3.5 The Client (or the Lead Consultant or other consultant designated by the Client) may issue reasonable instructions to the Architectural designer.
3.6 Where the Architectural designer has responsibility to direct and/or co-ordinate the work or services of or give instructions to other Persons, such instructions shall be issued only through the Architectural designer and the Architectural designer shall not be responsible for any instructions issued otherwise.
Applications for consent
3.7 The Client shall instruct the making of applications for consents under planning legislation, building acts, regulations or other statutory requirements and others having an interest in the Project. The Client shall pay any statutory charges and any fees, expenses and disbursements in respect of such applications.
Appointment of other Persons
3.8 Where work or services, other than those to be performed by the Architectural designer, are required, the Client shall appoint and pay Other Persons under separate agreements to perform such work services or products and shall require them to Collaborate with the Architectural designer. Such Other Persons shall include site inspectors or clerks of works.
The Client shall confirm in writing to the Architectural designer the services to be performed by Other Persons, their disciplines and the expected duration of their employment.
The Client acknowledges that the Architectural designer does not warrant the competence, performance,work, services, products or solvency of any such Other Persons.
3.9 The Client shall hold the contractor appointed to undertake construction works and not the Architectural designer responsible for the management and operational methods necessary for the proper carrying out and completion of the construction works in compliance with the building contract or contracts.
Time and cost
3.10 The Client acknowledges that the Architectural designer does not warrant:
3.10.1 That planning permission and other approvals from third parties will be granted at all, or if granted, will be granted in accordance with any anticipated time-scale;
3.10.2 Compliance with the Construction Cost and/or the Timetable,which may need to be reviewed for such matters as, but not limited to:
(a) Approved variations arising from design development or requested by the Client;
(b) Delays caused by any Other Person; and/or
(c) Any other factors beyond the control of the Architectural designer.
3.11 The Client shall procure such legal advice and provide such information and evidence as required for the resolution of any dispute between the Client and any other parties in connection with the project.
3.12 The Client shall not disclose to any Other Person Confidential Information unless:
3.12.1 Disclosure is necessary to take professional advice in relation to this Agreement or the Services;
3.12.2 It is in the public domain other than due to wrongful use or disclosure; or
3.12.3 Disclosure is required by Iaw or because of disputes arising out of or in connection with this Agreement.
4. Assigning and sub-contracting
4.1 Neither the Architectural designer nor the Client shall at any time assign the benefit of this Agreement or any rights arising under it without the prior written consent of the other, which consent shall not to be unreasonably withheld or delayed.
4.2 With the consent of the Client, which consent is not unreasonably withheld, the Architectural designer may appoint a sub-consultant or sub-consultants to perform part of the Services. Any such sub-contracting does not relieve the Architectural designer of responsibility for carrying out and completing the Services in accordance with this Agreement. Such consent is not required in respect of persons such as agency or self-employed staff.
4.3 If during performance of the Services it is the Architectural designer’s opinion that it would benefit the Client the Architectural designer may recommend that the Client appoints other Persons with appropriate knowledge and experience to perform part of the Services. If the Client agrees to make such appointment it shall be made without undue delay. On such appointment the Client shall give written notice to the Architectural designer, who shall be relieved of responsibility and Iiability for that element of the Services.
The Architectural designer shall Collaborate with such Other Persons.
5. Fees and expenses
Calculation of fees
5.1 The fees for performance of the Services and/or any additional services shall be calculated in accordance with this clause 5and as specified in the schedule of Fees and expenses.
5.2 The Basic Fee for performance of the Services shall be:
5.2.1 Where the Project is for the design and carrying nut of construction works, including the specified number of site visits during the construction period:
(a) A percentage or percentages applied to the Construction Cost in accordance with clause 5.4) and/or
(b) A lump sum or sums in accordance with clause 5.5, and/or
(c) Time charges in accordance with clause 5.5, and/or
(d) Any combination of these; and/or
(e) Another agreed method.
5.2.2 For other professional services:
(a) A lump sum or sums in accordance with clause 5.5.1,* and/or
(b) Time charges in accordance with clause 5.5,’ and/or
(c) Another agreed method.
5.3 For performance of Other Services specified in the Services schedule, but not included in the Basic Fee, the fee for each service shall be:
5.3.1 A lump sum or sums in accordance with clause 5.5.1,. and/or
5.3.2 Time charges in accordance with clause 5.5,. and/or
5.3.3 Another agreed method.
5.4 Where this clause 5.4 applies, the Basic Fee shall be calculated by applying:
5.4.1 The specified percentage applied to the final Construction Cost; or
5.4.2 The relevant specified percentage for each work stage to the Construction Cost at the end of the previous stage.
5.5 Where this clause 5.5 applies, the Basic Fee shall be:
5.5.1 The specified lump sum or lump sums; or
5.5.2 A lump sum or lump sums for each work stage calculated my applying the specified percentages to the Construction Cost for the developed design current at the end of RIBA Stage 4; or
5.5.3 A lump sum for each work stage calculated by applying the relevant specified percentage to the Construction Cost current at the end of the previous stage.
5.6 Where this clause 5.6 applies, the time-based fee shall be ascertained by multiplying the time reasonably spent in the performance of the Services by the specified hourly or daily rate for the relevant personnel. Time ‘reasonably spent’ includes the time spent in connection with performance of the Services and in traveling from and returning to the Architectural designer’s office.
Revision of lump sums and other rates
5.7 Every 12 months, lump sums complying with clause 5.5, less any amounts previously claimed, and rates for time charges shall be revised in accordance with changes in the Average Earnings Index and rates for mileage and printing shall be revised in accordance with changes in the Consumer Price index.
Each 12-month period shall commence on the anniversary of the Effective Date of this Agreement specified in the Project Data, or where clause 5.5.2 or 5.5.3 applies the date of calculation of the lump Sums.
5.8 The Basic Fee:
5.8.1 Shall be adjusted including due allowance f0r any loss and/or expense if:
(a) material changes are made to the Brief and/or the Construction Cost and/or the Timetable and/or
(b) the Services are varied by agreement.
5.8.2 Shall not be adjusted for any reduction of the Construction Cost arising solely from deflationary market conditions not prevailing at the Effective Date. The Basic Fee shall continue to be based on the Construction Cost current prior to the date cf such reduction.
5.9 Where the Architectural designer for reasons beyond the Architectural designers reasonable control incurs extra work or loss and expense for which the Architectural designer would not otherwise be remunerated, the Architectural designer shall be entitled to additional fees calculated on a time basis as set out in clause 5.5 unless otherwise agreed. Matters in relation to which the Architectural designer shall be entitled to additional fees include but are not limited to circumstances where:
5.9.1 The Architectural designer 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 Architectural designer to develop an approved design;
5.9.2 The nature of the Project requires that substantial parts of the design cannot be completed or must be specified provisionally or approximately before construction commences;
5.9.3 Performance of the Services is delayed, disrupted or prolonged; and
5.9.4 The cost of any work, installation or equipment for which the Architectural designer performs Services is omitted from or not included in the Construction Cost.
This clause 5.9 shall not apply where any adjustment under clause 5.8.1 applies to the same events.
The Architectural designer shall inform the Client on becoming aware that this clause 5.9 will apply. This clause 5.9 shall not apply where any change or extra work or expense arises from a breach of this Agreement by the Architectural designer.
5.10 If the Architectural designer consents to enter into any supplementary agreement the terms of which are agreed by the Architectural designer after the date of this Agreement the Architectural designer shall be entitled to payment of the Architectural designer’s reasonable costs of so doing, including but not limited to legal advice, and the amount of any additional professional indemnity insurance premium.
Tender not accepted
5.11 Where the Architectural designer is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is made or accepted, the Architectural designer shall be entitled to fees due up to and including RIBA Work Stage 6 applied to the Construction Cost or that part of it relating to the said work if services current at the date of invitation to tender.
Expenses and disbursements
5.12 The Client shall reimburse the Architectural designer for expenses in the manner specified in the Schedule of Fees and expenses.
5.13 The Architectural designer shall maintain records of time spent on Services performed on a time basis for the purpose of verifying charges under clause 5.6 and shall in addition maintain records of any expenses and disbursements to be reimbursed at net cost. The Architectural designer shall make such records available to the Client on reasonable request.
5.14 Payment under this Agreement shall be made as follows:
5.14.1 Payment shall become due to the Architectural designer on the date of issue of the Architectural designer’s account. The final date for payment of any amount due to the Architectural designer shall be 28 days from the issue of the relevant account.
5.14.2 The Architectural designer shall issue accounts at intervals of not less than one month or as specified in the schedule of Fees and expenses setting out any accrued instalments of the fee and other amounts due, less any amounts previously paid and stating the basis of calculation of the amounts due. Instalments of fees shall be calculated on the Architectural designer’s reasonable estimate of the percentage of completion of the Services or stages or other services or any other specified method.
5.14.3 The Architectural designer shall submit the final account for fees and any other amounts due when the Architectural designer reasonably considers the Services have been completed.
5.15 The Client shall give a written notice to the Architectural designer:
In the event of non-payment of any amount properly due to the Architectural designer under this Agreement the Architectural designer is entitled to interest on the unpaid amounts under the provisions of clause 5.19, may suspend use of the licence under the provisions of clause 6, may suspend or terminate performance of the Services and other obligations under the provisions of clause 8, or may commence dispute resolution procedures and/or debt recovery procedures.
5.15.1 Within 5 days of the date of issue of an account specifying the amount the Client proposes to pay and the basis of calculation of that amount; and
5.15.2 Not later than 5 days before the final date for payment of any amount due to the Architectural designer if the Client intends to withhold payment of any part of that amount stating the amount proposed to be withheld and the grounds for doing so or, if there is more than one ground, each ground and the amount attributable to it.
If no such notices are given the amount due shall be the amount stated as due in the account. The Client shall not delay payment of any undisputed part of the account.
5.16 The Client shall not withhold any amount due to the Architectural designer under this agreement unless the amount has been agreed with the Architectural designer or has been decided by any tribunal to which the matter is referred as not being due to the Architectural designer.
AII rights of set-off at common law or in equity which the Client would otherwise be entitled to exercise are expressly excluded.
Payment on suspension or termination
5.17 If the Architectural designer or the Client issues a notice under clause 8 suspending performance of any or aII of the Services or terminating performance of the Services and/or other obligations,the Architectural designer shall issue an account or accounts on the expiry date of the notice or as soon as reasonably practicable and the Architectural designer shall be entitled to:
5.17.1 Payment of any part of the fee and other amounts properly due on the expiry date of the notice and
5.17.2 Payment of any licence fee due under clause 6; and
5.17.3 Reimbursement of any loss and/or expense properly and necessarily incurred by the Architectural designer my reason of the suspension or the termination, save where the Client gives notice of suspension or termination my reason of the material or persistent breach of the Agreement by the Architectural designer.
5.18 If the reason for suspension is remedied the Architectural designer shall be entitled to reimbursement of the reasonable costs of resumption of performance of the Services and other obligations in-accordance with clause 8.1.4 (a).
5.19 In the event that any amounts are not paid by the Client or the Architectural designer when properly due, the payee shall be entitled to simple interest on such amounts until the date that payment is received at the daily rate equivalent to 8% over the dealing rate of the Bank of England Rate current at the date that payment becomes overdue, together with such costs reasonably incurred and duly mitigated by the payee (including costs of time spent by principals, employees and advisors) in obtaining payment of any sums due under this Agreement.
The payee’s entitlement to interest at the specified rate shall also apply in respect of any amounts that are awarded in adjudication, arbitration or legal proceedings.
Recovery of costs
5.20 The Client or the Architectural designer shall pay to the other party who successfully pursues, resists or defends any claim or part of a claim brought by the other:
5.20.1 Such costs reasonably incurred and duly mitigated (including costs of time spent by principals, employees and advisors) where the matter is resolved by negotiation or mediation; or
5.20.2 Such costs as may be determined by any tribunal to which the matter is referred.
5.21 In addition to the fees and expenses, the Client shall pay any Value Added Tax chargeable on the Architectural designer’s fees and expenses.
6. Copyright and use of information
6.1 The Architectural designer shall own the copyright in the original work produced in the performance of the Services and generally asserts the Architectural designer’s moral rights to be identified as the author of such work.
6.2 No part of any design by the Architectural designer maybe registered by the Client without the consent of the Architectural designer in writing.
Use of information
6.3 The Client shall have a licence to copy and use and allow Other Persons providing services to the Project to copy and use drawings, documents, bespoke software and all other such work produced by or on behalf of the Architectural designer in performing the Services, hereinafter called ‘the Material’.
The Material may be used for the construction of the Project and for the operation, maintenance, repair, reinstatement, alteration, promotion, leasing and/or sale of the Project. The Material may not be used for reproduction 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.
The Architectural designer shall not be liable if the Material is modified other than by or with the consent of the Architectural designer or used for any purpose other than the purposes for which it was prepared.
6.3.1 If it is intended to make any permitted use after the date of the last Service performed under this Agreement:
(a) The Architectural designer, following a request from the Client, shall confirm the degree of completion of the Material; and
(b) The Client shall pay to the Architectural designer any specified licence fee or a reasonable licence fee;
6.3.2 If at any time the Client is in default of payment of any fees or other amounts properly due, the Architectural designer may suspend further use of the licence on giving 7 days’ notice of the intention of doing so. Use of the licence may be resumed on receipt of such outstanding amounts;
6.3.3 the Client obtains or ensures that any third party obtains any necessary licence and pays any fees arising for access to any software used to produce any of the Material.
6.4 The Basic Fee for performance of the Services shall include alI royalties, licence fees or similar expenses in respect of the making, use or exercise by the Architectural designer of any invention or design for the purpose of performing the Services.
7. Liability and insurance
Time limit for action or proceedings
7.1 No action or proceedings arising out of or in connection with this Agreement whether in contract in tort, for breach of statutory duty or otherwise shall be commenced after the expiry of the period specified in the Project Data from the date of the last Services performed under this Agreement or, if earlier, the date of practical completion of construction of the Project or such earlier date as prescribed by law.
Limit of liability
7.2 In any such action or proceedings:
7.2.1 The Architectural designer’s liability for loss or damage shall not exceed the amount of the Architectural designer’s professional indemnity insurance specified in the Project Data, providing the Architectural designer has notified the insurers of the relevant claim or claims as required by the terms of such insurance.
7.2.2 No employee of the Architectural designer including any officer or director of a company or a member of a limited liability partnership or any agent of the Architectural designer shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services.
7.3 Without prejudice to the provisions of clause 7.2, the liability of the Architectural designer shall not exceed such sum as it is just and equitable for the Architectural designer to pay having regard to the extent of the Architectural designer’s responsibility for the loss and/or damage in question and on the assumptions that:
7.3.1 AII other consultants and contractors providing work or services for the Project have provided to the Client contractual undertakings on terms no less onerous than those of the Architectural designer under this Agreement;
7.3.2 There are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other person referred to in this clause; and
7.3.3 All the persons referred to in this 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.
Professional indemnity insurance
7.4 The Architectural designer shall maintain until at least the expiry of the period specified in clause 7.1 professional indemnity insurance with a limit of indemnity of not less than the amount or amounts specified in the Project Data provided such insurance continues to be offered on commercially reasonable terms to the Architectural designer at the time when the insurance is taken out or renewed.
Such insurance shall be:
7.4.1 Limited to the amounts (if any) specified in the Project Data as in the aggregate in any year of insurance; and
7.4.2 Subject only to such other limitations, exceptions and exclusions as are commonly included in such policies.
7.5 The Architectural designer, when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such Insurance is being maintained.
7.6 The Architectural designer shall inform the Client if such insurance ceases to be available at commercially reasonable terms or subsequent to the date of this Agreement an aggregate limit applies to any matters other than those specified in the Project Data in order that the Architectural designer and Client can discuss the best means of protecting their respective positions.
7.7 Where it is specified in the Project Data:
7.7.1 That the Architectural designer will be required to enter into a collateral warranty or warranties in favour of funders, purchasers or first tenants and the terms of the warranty together with the names or categories of other parties who will sign such agreements are appended to this Agreement the Architectural designer shall enter info such agreement or agreements within a reasonable period of being requested to do so by the Client, providing that such warranties give no greater benefit to the beneficiaries than is given to the Client under this Agreement and aII fees and other amounts properly due to the Architectural designer have been paid;
7.7.2 That a Third Party Rights Schedule in favour of funders, purchasers or first tenants is applicable and appended to this Agreement, the rights of such third parties shall come into effect on the date of receipt by the Architectural designer of a notice from the Client stating the name of each interested party and the nature of the interest in the Project; and/or
7.7.3 That a supplementary agreement is applicable under which the Architectural designer is to provide services to a contractor appointed by the Client to complete the design and construction of the Project, and such agreement is appended to this Agreement, the Architectural designer shall enter into such agreement with the Client and the contractor appointed to complete the design and construction of the project within a reasonable period of being requested to do so by the Client, providing that aIl fees and other amounts due have been paid.
Rights of third parties
7.8 Except for the rights conferred by clause 7.7.2, nothing in this Agreement shall confer or is intended to confer any right to enforce any of its terms on any person who is not a party to it other than lawful assignees.
8. Suspension or termination
8.1 The provisions for suspension are:
8.1.1 The Client may suspend the performance of any or aIl of the Services and/or other obligations by giving not less than 7 days’ notice in writing to the Architectural designer specifying the Services affected.
8.1.2 The Architectural designer may suspend performance of the Services and/or other obligations on giving not less than 7 days notice to the Client of the intention and stating the reasons for doing so in the event:
(a) That the Client fails to pay any fees or other amounts due by the final date for payment unless, where applicable, the Client has given effective notice under clause 5.15.2 of the intention to withhold payment of any part of an Architectural designer’s account; or
(b) That the Client is in material or persistent breach of the obligations under this Agreement; or
(c) That the Architectural designer is prevented from or impeded in performing the Services for reasons beyond the Architectural designer’s reasonable control; or
(d) Of force majeure.
8.1.3 The Architectural designer shall cease performance of the suspended Services and/or other obligations in an orderly and economical manner on the expiry of the notice period after receipt or giving of a notice of suspension.
8.1.4 If the reason for a notice of suspension arises from a default:
(a) Which is remedied,the Architectural designer shall resume performance of the Services or other obligations within a reasonable period; or
(b) Which is n0t remedied by the defaulting party, the other party shall have the right to treat performance of the Services or other obligations affected as terminated on giving reasonable written notice.
8.1.5 Where Services are suspended by the Client and not resumed within 6 months the Architectural designer shall have the right to treat performance of the Services and/or other obligations affected as terminated on giving at least 7 days further written notice to the Client.
8.1.6 Any period of suspension arising from a valid notice given under clause 8.1.1 or clause 8.1.2 shall be added to the latest Timetable for completion of the relevant Services.
8.2 The provisions for termination are:
8.2.1 The Client or the Architectural designer may by giving reasonable notice to the other terminate performance of the Services and/or other obligations, stating the reasons for doing so and the Services and obligations affected.
8.2.2 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 Architectural designer becomes unable to perform the Services through death or incapacity.
8.2.3 0n termination of performance of the Services and/or other obligations, a copy of the Material not previously provided to the Client shall be delivered on demand to the Client by the Architectural designer, subject to the terms of the licence under clause 6.3 and payment of any outstanding fees and other amounts due under clause 5.19 plus the Architectural designer’s reasonable copying charges.
9. Dispute resolution
9.1 The Client and the Architectural designer may attempt to settle any dispute or difference arising under the Agreement by negotiation or mediation, if suitable, or either party may refer the matter to adjudication, arbitration or legal proceedings as specified in the Project Data.
9.2 The provisions for adjudication are:
9.2.1 Where a dispute or difference is to be referred to adjudication,the parties may agree who shall act as adjudicator, or the adjudicator shall be a person nominated at the request of either party by the nominator specified in the Project Data.
9.2.2 For the avoidance of doubt, the Adjudicator may allocate between the parties the costs relating to the adjudication, including the fees and expenses of the adjudicator, in accordance with the provisions of clause 5.20.
This provision is ineffective unless it is confirmed in writing by the referring party to the other party and to the adjudicator after notice is given of the intention to refer the dispute to adjudication.
9.3 The provisions for arbitration are:
9.3.1 Without prejudice to any right of adjudication, where in the Project Data an arbitration agreement is made and either party requires a dispute or difference (except in connection with the enforcement of any decision of an adjudicator) to be referred to arbitration then that party shall serve on the other party a notice of arbitration to that effect and the dispute or difference shall be referred to a person to be agreed between the parties or, failing agreement within 14 days of the date on which the notice is served, a person appointed by the appointor specified in the Project Data on the application of either party.
9.3.2 Where the law of England and Wales or Northern Ireland is the applicable law:
(a) The Client or the Architectural designer may litigate any claim for a pecuniary remedy which does not exceed £5,000 or such other sum as is provided by order made under section 91 of the Arbitration Act 1096;
(b) In such arbitration the Construction industry Model Arbitration Rules (CIMAR) current at the date of the reference shall apply; and
(c) The arbitrator shall not have the power referred to in Section 38(3) of the Arbitration Act 1996.
9.3.3 Where the law of Scotland is the applicable law such arbitration shall be conducted under the rules set out in the current edition of the Scottish Arbitration Code for use in Domestic and International Arbitration.
10. Consumer’s right to cancel
10.1 The consumer Client has the right to cancel this Agreement for any reason by delivering or sending (including by electronic mail) a cancellation notice to the Architectural designer at anytime within the period of 7 days starting from the date when this Agreement was made.
10.2 The notice of cancellation is deemed to be served as soon as it is posted or sent to the Architectural designer or in the case of an electronic communication on the day it is sent to the Architectural designer.
10.3 If the Architectural designer was instructed to perform any services before the Agreement was made or before the end of the 7 day period and the instruction or instructions were confirmed in writing, the Architectural designer shall be entitled to any fees and expenses properly due before the Architectural designer receives the notice of cancellate.
11. Measured Surveys:
In order to draw the existing elements and propose the new development, Design extension will conduct an Architectural site survey to collect essential site information. We will make visual inspections. Information collected will include; positions and dimensions of possible existing structures, locations of utility services, photographs etc. There will be times when it is not possible to obtain easy access to all structures and utilities, in which case it may be necessary for the Client to obtain a more detailed survey from a Surveyor. The information/data will be collected using instruments belonging to Design extension. Instruments include; measuring tapes, lasers, cameras etc. We will need access to all areas of the property including building interiors. All recorded data is, and remains, the property of Design extension. Design extension are not employed to carry out manual tasks. Tasks excluded from the survey are items such as; lifting up drain hatches, disconnecting service mains supplies, participating in manual construction where specialist traders would normally be appointed, entry into manholes, entry into depressions submerged in fluids, entry into areas with danger warning signs, entry into areas with dangerous animals. This is not an exhaustive list but indicative of the sorts of things which are excluded. This is because each site has its own specific and particular character and potential challenges.