Terms + Conditions

1 / Definitions

In these terms and conditions, the following expressions shall have the following meanings:

“Agreement” means the agreement between the Client and the Consultant for the provision of the Services by the Consultant to the Client on the basis of these Terms and Conditions;

“Brief” a description of the requirements for the Project and the Works and for the relevant Services to be performed by the Consultant;

“Client’s Consultants” means those consultants who may be appointed by the Client (other than the Consultant) in relation to the Project and who have been previously notified to the Consultant from time to time;

“Consultant” means Century Surveying Associates Ltd trading as Century Associates;

“Contractor” a contractor appointed by the Client to execute or procure the execution of all or part of the Project or the Works and to co-ordinate and supervise or to procure the co-ordination and supervision of such execution;

“Documents” includes any document in writing, map, plan, design, drawing, picture or other image, or any other record of any information in any form;

“Insolvency” either party becoming bankrupt, going into liquidation (either voluntarily or compulsory unless as part of a bona fide scheme of reconstruction or amalgamation), being dissolved, compounding with its creditors or having a receiver administrative receiver or administrator appointed of the whole or any part of its assets;

“Intellectual Property Rights” all intellectual and industrial property rights including (without limitation) patents, trademarks, service marks, registered designs, copyrights, database rights, design rights, moral rights or know-how, howsoever arising, whether or not registered and any other similar protected rights in any country and any applications for the registration or protection of such rights and all extensions thereof throughout the world;

“Lead Consultant” a person or firm who may be appointed by the Client to co-ordinate the work of the Client’s Consultants;

“Project Team” means the Client and the Client’s Consultants (together with such other parties as may be notified to the Consultant in writing) and any contractors appointed by the Client in relation to the Project who have been previously notified to the Client from time to time;

“Services” the services to be supplied to the Client by the Consultant in accordance with these Terms and Conditions; and

“Sub-Contractor” means a firm or person who may be appointed by or on behalf of a Contractor to execute part of the Project or of the Works or to manufacture or supply material for incorporation therein.

2 / The Services

The Consultant shall perform the Services as described in the instruction letter subject to and in accordance with the terms and conditions appearing below. Any changes or additions to the Services must be agreed in writing by the Consultant and the Client.
The Consultant shall exercise reasonable skill, care and diligence in the performance of the Services.
The Consultant reserves the right to make any amendments to the Services which are necessary to comply with any applicable safety or other statutory requirements from time to time in force which do not materially affect the nature or quality of the Services.
If in the performance of the Services, the Consultant has a discretion exercisable as between the Client and a Contractor or Sub-Contractor the Consultant shall exercise that discretion fairly.

3 / Obligations of The Client

The Client shall supply (at its own expense) to the Consultant upon request all Documents or other materials, and all other data or information relating to the Services (including, but without limitation, copies of documents of title to the Site, documents containing details of the rights of owners of land or buildings adjoining the Site and other pertinent matters) so far as is necessary for the performance of the Consultant’s duties under these Terms and Conditions. The Client shall ensure (so far as reasonably practicable) the accuracy of such Documents and information.
The Client shall give and shall procure that the Project Team shall give such assistance as shall reasonably be required by the Consultant in the performance of the Services.
The Client shall ensure that his decisions, instructions, consents or approvals on or to all matters properly referred to herein shall be given in such reasonable time so as not to delay or disrupt the performance of the Services by the Consultant.
The Client shall appoint a representative (the “Client’s Representative”) who shall be deemed to have authority to make decisions on behalf of the Client under these Terms and Conditions and the Client shall notify the Consultant immediately of such appointment to the Consultant. In the event that the Clients’ Representative is replaced, then the Client shall notify the Consultant immediately. The Clients’ Representative may from time to time appoint any other person to act as his deputy in connection with these Terms and Conditions. In that event the Client Representative shall notify the Consultant in writing of the deputy’s appointment and the scope of his authority and such deputy may give instructions to the Consultant under these Terms and Conditions within the scope of his authority so notified. No person other than the Client Representative (or any deputy appointed pursuant to this clause) will have any authority to bind the Client under or in connection with these Terms and Conditions.

4 / Programme Requirements

The Client shall immediately inform the Consultant of any dates relating to the completion of the Works or stages of the Works which may be established by the Client as will any variations to any dates so specified from time to time.
If at any time the Consultant is delayed or becomes aware of any circumstance which may prevent him from meeting the dates specified by the Client, he shall immediately inform the Client and propose any measures which may be practicable to recover the delay or to avoid or produce the anticipated delays.

5 / Liability and Professional Indemnity Insurance

Notwithstanding anything to the contrary contained in these Terms and Conditions, the liability of the Consultant under or in connection with this Agreement for any claim or series of claims arising out of the same occurrence or series of occurrences whether in contract or in tort, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed the sum of £2,000,000. The Client should liaise with the Consultant if an increased liability is required.
The total liability of the Consultant in respect of all such claims under or in connection with this Agreement arising out of or in connection with pollution and contamination shall not exceed that sum;
Such pollution or contamination liabilities determined by the aggregate or balance thereof under Clause 5.1.1 shall be further limited to the lessor of;
(a) the direct costs reasonably incurred by the Client in cleaning up the site of the Project or the Works as the case may be or any part thereof;
(b) the amount (if any) recoverable by the Consultant under any professional indemnity insurance policy taken out by the Consultant.
The period of the Consultant’s liability is 6 years from the date of this Agreement.
The amount of professional indemnity insurance to be carried by the Consultant for any one occurrence or series of occurrences is £2,000,000. The Client should liaise with the Consultant if an increased level of insurance is required.
The period for which Professional Indemnity Insurance is to be maintained is 6 years from the date of this Agreement. If for any period such insurance is not available on commercially reasonable terms the Consultant shall forthwith inform the Client in writing and shall obtain in respect of such period such reduced professional indemnity insurance as is available and as would be fair and reasonable in the circumstances for the Consultant to obtain. If the Consultant fails to comply with any requirement of this clause or if the Consultant becomes insolvent, the Client shall be entitled to recover from the Consultant any premiums reasonably incurred to effect insurance (such as inherent defects insurance or other suitable cover) in order to obtain suitable alternative protection.
When reasonably required to do so by the Client the Consultant shall provide to the Client documentary evidence that the insurance required under these Terms and Conditions is being maintained.
Notwithstanding clauses 5.1 to 5.5, the Consultant shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Documents or information or instructions supplied by the Client relating to the provision of the Services which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
Subject to Clause 5.6 and notwithstanding otherwise anything to the contrary contained in these Terms and Conditions, such liability of the Consultant for any claim or claims shall be further limited to such sum as it would be just and equitable for the Consultant to pay having regard to the extent of his responsibility for the loss or damage suffered as a result of the occurrence or series of occurrences in question (“Loss”) and on the assumptions that:
All the Client’s Consultants and all Contractors and Sub-Contractors shall have provided contractual undertakings on terms no less onerous than those set out in these Terms and Conditions to the Client in respect of the carrying out of their obligations; and
There are no exclusions of or limitations of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and any such other party who is responsible to any extent for the Loss is contractually liable to the Client for the Loss; and
All Other Consultants and all Contractors and Sub-Contractors have paid to the Client such proportion of the loss and damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the Loss.
Notwithstanding Clauses 5.1 to 5.7 above, the Consultant shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control.
Without prejudice to the foregoing clauses, save in respect of death or personal injury the Client shall look only to the Consultant (and not to any individual) for redress if the Client considers that there has been any breach of these Terms and Conditions. The Client agrees not to pursue any claims in contract tort or statute (including negligence) against any individual as a result of carrying out its obligations under or in connection with the appointment at any time.
5.10.When the Client and the Consultant have so agreed before the commencement of the appointment, the Consultant shall enter into and provide collateral warranties for the benefit of other parties. It shall be a condition of the provision of such warranties that they shall give no greater benefit to those to whom they are issues in quantum, duration or otherwise than is given to the Client under these Terms and Conditions. Should the Client request alterations to the previously agreed terms or the execution of warranties in addition to those previously agreed, and the Consultant consents to such a request, these may be entered into and provided by the Consultant for such additional fee or other consideration as the parties may agree.

6 / Ownership of Documents and Copyright

Intellectual Property Rights which belong to the Consultant shall, as the case may be, vest in or remain vested in the Consultant but the Client shall have a licence to use those Intellectual Property Rights for any purpose related to the Project. Such licence shall enable the Client to use the Intellectual Property Rights for the duration of the Project but shall not extend to the reproduction of designs contained therein for any extension of the Project. In the event of the Client being in default of payment of any fees or other amounts due under these Terms and Conditions, the Consultant may revoke the licence granted herein on giving seven days’ Notice. Save as above, the Client shall not make copies of any of the Consultant’s drawing or other documents or information, nor shall he use any of the Intellectual Property Rights in connection with any other works without the prior written approval of the Consultant which shall not unreasonably be withheld and upon such terms as may be agreed between the Client and the Consultant. The Consultant shall not be liable for the use by any person of any of the Consultant’s Intellectual Property Rights for any purpose other than that for which the same were prepared by or on behalf of the Consultant.
The Consultant shall not, without the written consent of the Client, publish alone or in conjunction with any other person any articles, photographs or other illustrations relating to the Project.
Save as may be necessary in the performance by the Consultant of the Services under these Terms and Conditions, or as the Client may allow in writing, the Consultant shall treat as confidential all information relating to these Terms and Conditions and the Project, and shall take all reasonable steps to see that his employees do likewise; but the foregoing shall not apply to any Documents or other materials, data or other information which are in public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.

7 / Termination and Suspension

The Client may terminate the appointment of the Consultant at any time by giving written notice in respect of all or any part of the Services.
If circumstances arise for which the Consultant is not responsible and which he considers make it irresponsible for him to perform all or any part of the Services, the Consultant shall be entitled to terminate his appointment by two weeks’ written notice in respect of all or such part of the Services.
The Client may at any time by written notice require the Consultant to suspend the performance of all or any part of the Services. On giving written notice of suspension of all or any part of the Services the Consultant shall cease such suspended Services in an orderly and economical manner compatible with a possible order to restart. If the suspension of the performance of all or any part of the Services exceeds twelve months in aggregate the Consultant may by giving four weeks’ written notice treat the Project (or the Works or that part of the Project or the Works) as having been abandoned and the appointment of the Consultant in respect of the all or any part of the Services affected shall be automatically terminated.
In the event of a breach of these Terms and Conditions by the Consultant the Client may give two weeks’ written notice of his intention to terminate the appointment of the Consultant setting out the acts or omissions of the Consultant relied upon as evidence of such breach. If the Consultant does not, to the reasonable satisfaction of the Client, take expeditious steps to remedy the breach during the notice period the Client may forthwith on the expiry of the notice period terminate the appointment of the Consultant by giving written notice to the Client.
Upon the occurrence of any circumstance beyond the control of the Consultant which is such as to prevent or significantly impede the performance by the Consultant of the Services under this Agreement, the Consultant may without prejudice to any other remedy and upon not less than four weeks’ written notice suspend for a period of up to twenty-six weeks the performance of the Services under the Terms and Conditions in respect of all or such parts of the Project or the Works as are affected and at the expiry of the said period of suspension either continue with the performance of the Services under this Agreement or if he is still prevented from performing such Services for reasons beyond his control terminate his appointment forthwith by a further written notice in respect of all or any part of the Services affected.
In the event of a breach of the Terms and Conditions by the Client the Consultant may give two weeks’ written notice of his intention to terminate the appointment of the Consultant setting out the acts or omissions of the Client relied upon as evidence of such breach. If the Client does not, to the reasonable satisfaction of the Consultant, take expeditious steps to repair the breach during the notice period the Consultant may forthwith on the expiry of the notice period terminate the appointment of the Consultant by a further written notice. Notwithstanding the foregoing, in the event of the failure of the Client to make any payment properly due to the Consultant in accordance with the provisions of Clause 8 by the final date for payment the Consultant may, upon not less than two weeks’ written notice, terminate his appointment.
The appointment of the Consultant may be terminated in the event of Insolvency of either party. Notice of termination must be given to the party which is insolvent by the other party.
Termination of the Consultant’s appointment under this Agreement shall not prejudice or affect the accrued rights or claims of either party.

8 / Charges

Subject to any special terms agreed, the Client shall pay the Consultant such fee in respect of the performance of the Services as shall be calculated by reference to the time spent in dealing with matters on the Client’s behalf and on the basis of hourly rates.
The time spent in dealing with matters on the Client’s behalf shall include the time spent in meetings, on telephone calls, dealing and reviewing such paperwork as may be supplied by the Client, drafting documentation, correspondence, notes of meetings and travel. Although time is a major component of the fees, there are several other factors which the Consultant may take into account in calculating the fees, including the importance, urgency and complexity of the matter, the values involved and any specialist skills which may be required. It is only at the conclusion of the matter that these factors can properly be assessed and included in the final bill rendered to the Client.
The Consultant reserves the right to call on such other specialists as the Consultant may deem necessary for the provision of the Services and the Consultant shall advise the Client of their respective hourly rates if requested to do so by the Client.
All charges quoted to the Client for the provision of the Services are exclusive of VAT for which the Client shall be liable in addition at the applicable rate from time to time.
The fee shall be invoiced at such intervals as may be agreed between the Client and the Consultant/upon completion of the Services.
The hourly rates are reviewed each year and the Consultant shall inform the Client of any changes upon the prior written request of the Client.
Notwithstanding the existence of any arrangement pursuant to which a third party agrees to discharge the fees in relation to the work undertaken for the Client, the Client acknowledges and agrees that he shall remain jointly and severally responsible for the fees, charges and expenses to be payable in accordance with these terms and conditions.
The Consultant reserves the right to charge the Consultant’s expenses incurred in performing the services. Unless otherwise agreed, expenses shall be payable in addition to the Consultant’s fees (whether included in an invoice together with those fees or not) and the Consultant reserves the right to charge those expenses to the Client without the need for prior authorisation from the Client. The Consultant’s expenses shall comprise those payments reasonably and properly made by the Consultant for such things as printing, reproduction and purchase of documents, maps, records and photographs, courier charges, fax charges, postage and delivery charges, travelling, hotel expenses and subsistence payments, any other expenses for which repayment is authorised by the Client.
The Consultant shall maintain records of all time spent by his professional and technical staff performing each service performed by such staff under these Terms and Conditions. The Client may request copies of such records as the Client may reasonably require.
If any part of any invoice submitted by the Consultant is contested, payment shall be made in full of all that is not contested.
Payments due to the Consultant under this Agreement shall become due on submission of the Consultant’s invoice and the final date for payment shall be 30 days thereafter. Interest shall be charged on a daily basis at the official rate payable on judgment debts on any amounts which remain unpaid after 30 days of the submission of the invoice.
The Client shall, no later than five days after the date on which a payment becomes due from him under these Terms and conditions, or would have become due if the Consultant had carried out his obligations under this Agreement; and
No set off or abatement was permitted by reference to any sum claimed to be due under one or more other contracts;
Give a written notice specifying the amount (if any) of the payment made or proposed to be made and the basis on which that amount was calculated.
The Client may not withhold any payment after the final date for payment of any sum due under these Terms and Conditions unless he gives, not later than seven days before such final date, a written notice specifying the amount proposed to be withheld and the ground for withholding payment or if there is more than one ground, each ground and the amount attributable to it.
If the Consultant has to carry out additional work and/or suffers disruption in the performance of the Services because:
the Project or the Works or Brief is or are varied by the Client; or
of any delay by the Client in fulfilling his obligation or in taking any other step necessary for the execution of the Project or the Works; or
the Consultant is delayed by others (or by events which were not reasonably foreseeable); or
the Project or the Works is damaged or destroyed; or
of other reasons beyond the control of the Consultant
the Client shall make an additional payment to the Consultant in respect of the additional work carried out and additional resources employed (unless and to the extent that the additional work has been occasioned by the failure of the Consultant to exercise reasonable skill, care and diligence) and/or the disruption suffered. The additional payment shall be calculated (unless otherwise agreed) on the basis of time based fees with payment by instalments. The Consultant shall advise the Client when he becomes aware that any such additional work shall be required, or disruption shall be suffered and shall if so requested by the Client given an initial estimate of the additional payment likely to be incurred. Where the Client requires that payment for such additional work or disruption is to be in the form of lump sums, these lump sums and the intervals at which instalments shall be paid and the amounts of each instalment should be agreed prior to the additional work being commenced. For the avoidance of doubt, it is hereby agreed that if the Consultant carries out any work which subsequently becomes redundant, or if the Consultant’s appointment is terminated or suspended in accordance with the provisions of Clause 7, the Client shall (unless otherwise agreed) pay the Consultant on the basis of time based fees as set out in these Terms and Conditions.
Should the Client request the Consultant to execute letters of reliance in favour of any third party in relation to the Services, the Consultant will charge a fee of £750 + VAT for each and every letter of reliance.

9 / Assignment

Neither the Client nor the Consultant shall, without the written consent of the other party (which consent shall not unreasonably be delayed or withheld), assign or transfer any benefit or obligation under the Agreement.

10 / Disputes and Differences

The Consultant operates a Complaints Handling Procedure. A copy of our complaints handling procedures document is available upon request.
The parties shall attempt in good faith to settle any dispute by mediation.
Should business clients request external advice they also have recourse to the RICS Dispute Resolution service www.rics.org. For private individuals the Surveyors Ombudsman Scheme (SOS) can offer additional external help and guidance. The website for this is www.surveyors-ombudsman.org.uk.
Where this Agreement is a construction contract within the meaning of the Housing Grants, Construction and Regeneration Act 1996, either party may refer any dispute arising under this Agreement to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure.

11 / General

In these Terms and Conditions:
References to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced; and
References to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires; and
Headings will not affect the construction of these Terms and Conditions. Any services performed by the Consultant for the Client in connection with the Project shall be treated as having been performed under these Terms and Conditions, which supersede any previous agreement between the parties with regard to the same.
Save where expressly agreed between the parties in writing between the parties, no term of these Terms and Conditions shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
These Terms and Conditions are subject in all respects to English law and the English courts shall have jurisdiction with regard to all matters arising under or in connection with it.
.If any provision of these Terms and Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of these Terms and Conditions and the remainder of such provision shall continue in full force and effect.
Failure or delay by either party in enforcing or partially enforcing any provision of these Terms and Conditions will not be construed as a waiver of any of its rights under these Terms and Conditions.
Any waiver by either party of any breach of, or any default under, any provision of these Terms and Conditions will not be deemed a waiver of any subsequent breach or default and will in no way affect the other Terms and Conditions.
The Consultant is committed to being an organisation that makes full use of the talents, skills, experience, and different cultural perspectives available in a multi-ethnic and diverse society. We will ensure that staff, suppliers and clients are treated fairly regardless of race, colour, nationality, national or ethnic origins, sexual orientation, gender, disability or age. We will follow the recommendations of the Statutory Codes of Practice of the Equality and Human Rights Commission, in all our employment policies, procedures and practices.
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