ACE Agreement 2: Advisory, Investigatory and other Services (for use in Scotland)

Transcription

1 2 ACE Agreement 2: Advisory, Investigatory and other Services (for use in Scotland) for the appointment of a Consultant to undertake any type of services in the built and natural environments except where the Client appointing the Consultant intends to employ a Contractor to construct or install permanent Works designed by the Consultant as part of the services 2009 Edition (Scotland) Association for Consultancy and Engineering Alliance House, 12 Caxton Street, London SW1H 0QL Tel: Fax: consult@acenet.co.uk Website:

2 ACE Agreement 2: Advise and Report (for use in Scotland) Part A: The Memorandum of Agreement BETWEEN ( the Client ) whose address is and ( the Consultant ) whose address is 2 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

3 A1 The following documents and their annexes, if any, shall together constitute this Agreement between the Client and the Consultant and Parts B, C, D, E and F and any annexures are held to be incorporated in and form part of Part A. Part A: The Memorandum of Agreement Part B: The Particulars of Agreement Part C: The Programme for the Services Part D: The Schedule of Fees Part E: The Terms of Contract Part F: The Schedule of Services A2 A3 This Agreement is made on the last date of execution of this Memorandum or the date upon which the Consultant first commenced performance of the Services whichever is the earlier. The Client appoints the Consultant to provide the services described in Part F: The Schedule of Services ( the Services ) in connection with 2 Briefly describe the commission in respect of which the Consultant is providing the Services. ( the Purpose ) 2 Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 3

4 A4 This Agreement shall be governed by and construed in all respects in accordance with the law of Scotland and each party hereby submits to the non-exclusive jurisdiction of the Scottish courts. IN WITNESS WHEREOF these presents consisting of this and the preceding [ ] pages, together with Parts B, C, D, E and F [list any other annexures] 3, under declaration that any insertions and deletions are made prior to execution, are executed as follows: 3 Insert list of annexures and docket each with docket stating This is the [ ] referred to in the foregoing Agreement. They are executed for and on behalf of the Client at on 20 by (print full name) who is a Director/Company Secretary/Person Authorised/Member/Proper Officer/Partner in Firm name/partner/individual 4 authorised to sign these presents for and on behalf of the Client (signature) 4 Delete descriptions which do not apply. Before this witness: Signature of witness: Full name of witness: Address of witness: Occupation: They are executed for and on behalf of the Consultant at on 20 by (print full name) who is a Director/Company Secretary/Person Authorised/Member/Proper Officer/Partner in Firm name/partner/individual 4 authorised to sign these presents for and on behalf of the Consultant (signature) 4 Delete descriptions which do not apply. Before this witness: Signature of witness: Full name of witness: Address of witness: Occupation: 4 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

5 This is Part B referred to in the foregoing Part A: The Memorandum of Agreement Part B: The Particulars of Agreement 1 Insert figure (and words in parentheses). 2 Complete only if E5.4(i) and/or E5.4(ii) apply in respect of pollution/ contamination and/or asbestos and/or terrorism. If the Consultant has no such obligation(s) B2 and/or B3 and/or B4 should be deleted as appropriate. B1 B2 2 B3 2 The total liability of the Consultant under clause E5.1 of Part E: The Terms of Contract shall be 1 ( ) 1 The total liability of the Consultant for pollution and contamination matters under clause E5.4(i) of Part E: The Terms of Contract shall be the lesser of the sum of 1 ( ) 1 or the amount of the Consultant s professional indemnity insurance as set out in clause E5.4(i) of Part E: The Terms of Contract. The total liability of the Consultant for asbestos matters under clause E5.4(i) shall be the lesser of the sum of 1 ( ) 1 or the amount of the Consultant s professional indemnity insurance as set out in clause E5.4(i) of Part E: The Terms of Contract. 1 B4 2 The total liability of the Consultant for terrorism matters under clause E5.4(ii) of Part E: The Terms of Contract shall be 1 ( ) 1 3 Insert number of years in words. B5 The period of the Consultant s liability is from the date hereof to 3 years after completion of the Services (or termination of this Agreement if earlier) or such earlier date as may be prescribed by law. Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 5

6 This is Part C referred to in the foregoing Part A: The Memorandum of Agreement Part C: The Programme for the Services Either [C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is attached to this Agreement] 1 Or 1 Delete as applicable. [C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is described in a separate document referenced: Or and dated ] 1 [C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is as follows: ] 1 6 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

7 This is Part D referred to in the foregoing Part A: The Memorandum of Agreement Part D: The Schedule of Fees Either [D1 The fees for the Services shall be payable on a time basis at the following rates: 1 Delete or complete as appropriate. ] 1 Or [D1 The fee for the Services shall be payable as a lump sum of: 2 Insert figure (and words in parentheses). Or 2 ( ) 2 ] 1 3 For use when the fee is based on a combination of timebased fees and lump sums, or some other fee basis. [D1 The fees for the Services shall be payable on the following basis: 3 ] 1 D2 The fees shall be paid at the following intervals and/or in the following instalments: Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 7

8 D3 4 Additional payment under clause E3.3 of Part E:The Terms of Contract shall be : Either 4 In order to allow clause E3.3 to operate, one of the options under D3 must be completed. Or [on a time basis at the rates stated in D1] 5 [on a time basis at the following rates: 5 Delete and/or complete as appropriate. ] 5 Or [as follows: ] 5 D4 Where time-based fees are to be paid they shall be at the rates set out herein and calculated by multiplying the hourly or daily rates applicable to the persons concerned by the number of hours or days (as the case may be) spent by such persons in performing the Services including time spent travelling in connection with such Services. Either [D5 Out of pocket expenses shall be paid at cost in addition to the fees and shall be invoiced at the following intervals: ] 6 Or [D5 Expenses are included in the fees.] 6 D6 The final date for payment shall be days/weeks 7 after submission of the relevant invoice by the Consultant. 6 Delete as applicable. 7 Insert a figure and amend as required. 8 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

9 This is Part E referred to in the foregoing Part A: The Memorandum of Agreement Part E: The Terms of Contract E1 OBLIGATIONS OF THE CONSULTANT TO THE CLIENT E1.1 The Consultant shall exercise reasonable skill and care in the performance of the Services. E1.2 Subject to matters beyond the Consultant s reasonable control the Consultant shall use reasonable endeavours to perform the Services in accordance with the programme if any set out in Part C: The Programme for the Services. E2 OBLIGATIONS OF THE CLIENT TO THE CONSULTANT E2.1 The Client shall pay the Consultant the fees and expenses set out in Part D: The Schedule of Fees for the performance of the Services. E2.2 The Client shall supply the Consultant without charge and in a timely fashion with all necessary and relevant information in the possession of the Client or any of the Client s agents consultants or contractors and with any necessary instructions decisions consents or approvals. E3 PAYMENT E3.1 Payments due to the Consultant under this Agreement shall become due for payment on submission of the Consultant's invoices therefor and in each case the final date for payment shall be as set out in D6 of Part D: The Schedule of Fees or if no date is inserted in D6 the final date for payment shall be twenty-eight days after submission of the relevant invoice. Interest shall be added to all amounts remaining unpaid thereafter and shall be calculated in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and at the relevant reference rate plus the statutory rate of interest. E3.2 The Client may not withhold any payment after the final date for payment of any sum due under this Agreement unless the Client gives not later than seven days before such final date a 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. E3.3 If the Consultant has to carry out additional work and/or suffers delay or disruption in the performance of the Services for reasons beyond the Consultant s reasonable control the Client shall make an additional payment to the Consultant in respect of the additional work carried out and the additional resources employed and/or the delay or disruption suffered. The additional payment shall be calculated on the basis set out in Part D: The Schedule of Fees. The Consultant shall advise the Client when the Consultant becomes aware that any such additional work is required and shall where practicable and if so requested by the Client give an initial estimate of the additional payment likely to be incurred. E3.4 In the event of the Client being in default of payment of any fees or other amounts due under this Agreement, the Consultant may revoke the licence granted in clause E4.1 on giving seven days notice. Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 9

10 E3.5 All sums due under this Agreement are exclusive of value added tax the amount of which shall be paid by the Client to the Consultant at the rate and in the manner prescribed by law. E4 COPYRIGHT, LICENCE AND CONFIDENTIALITY E4.1 The copyright in all drawings and other documents (including material in electronic form) provided to the Client by the Consultant shall remain vested in the Consultant but subject to clause E3.4 the Client shall have a licence to copy and use such drawings and other documents for all purposes in connection with the Purpose. The Consultant shall not be liable for the use by any person of any such drawings or other documents for any purpose other than that for which the same were provided by the Consultant. E4.2 Neither party shall disclose to any other person any private or confidential information concerning the business of the other party unless so authorised by the other party save in the proper course of that party s duties or to either party s professional advisers or insurers or as required or permitted by law. E5 LIABILITY AND INSURANCE E5.1 Notwithstanding anything to the contrary contained in this Agreement but without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount the total liability of the Consultant under or in connection with this Agreement whether in contract, in delict, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed in aggregate the sum set out in Part B: The Particulars of Agreement. E5.2 Notwithstanding anything to the contrary contained in this Agreement but without prejudice to any provision in the Agreement whereby liability is excluded or limited to a lesser amount the liability of the Consultant if any for any loss or damage ( the loss or damage ) in respect of 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 the Consultant s responsibility for the loss or damage and on the assumptions that: (i) (ii) (iii) (iv) all other consultants and advisers and all contractors and all sub-contractors appointed in connection with the Purpose shall have provided contractual undertakings to the Client on terms no less onerous than those set out in clause E1.1 in respect of the carrying out of their obligations; there are no exclusions of or limitations of liability between the Client and any other party referred to in this clause; there are no joint insurance or co-insurance provisions between the Client and any other party referred to in this clause and that any such other party who is responsible to any extent for the loss or damage is contractually liable to the Client for the loss or damage; and all such other consultants and advisers and all such contractors and subcontractors have paid to the Client such proportion of the loss or damage which it would be just and equitable for them to pay having regard to the extent of their responsibility for the loss or damage. 10 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

11 E5.3 Except where it is expressly stated in Part F: The Schedule of Services that one or more of the matters referred to in this clause comprise the whole or part of the Services the Consultant shall not have any duty to consider such matters as influencing any aspect of the Services to be performed by the Consultant under this Agreement nor shall the Consultant be responsible under this Agreement or otherwise for: (i) (ii) (iii) advising as to the actual or possible presence of pollution or contamination or as to the risks of such matters having occurred, being present or occurring in the future (herein called pollution and contamination matters ); and/or as the case may be advising on matters that 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) (herein called asbestos matters ); and/or as the case may be designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action that may be taken in controlling, preventing, suppressing or in any way relating to an act of terrorism (herein called terrorism matters ); and the liability of the Consultant under or in connection with this Agreement whether in contract, in delict, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) for any claim that may arise out of or in connection with pollution and contamination matters, and/or asbestos matters and/or terrorism matters as the case may be is excluded. E5.4 Where it is expressly stated in Part F: The Schedule of Services that the Services comprise in whole or in part: (i) pollution and contamination matters and/or as the case may be asbestos matters then without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount the total liability of the Consultant under or in connection with this Agreement for any claims arising out of or in connection with pollution and contamination matters and/or as the case may be asbestos matters whether in contract, in delict, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall in each case not exceed in aggregate the lesser of the sum set out in Part B: The Particulars of Agreement or the amount, if any, recoverable by the Consultant by way of indemnity against the claim or claims in question under any professional indemnity insurance policy taken out by the Consultant in respect of such matters and in force at the time the circumstances that may give rise to the claim or claims in question or if later the claim or claims is or are reported to the insurers in question. This latter limitation of liability shall not apply to any such claim or claims if no such amount is recoverable due to the Consultant having been in breach of the Consultant s obligations under clause E5.6 in respect of the Consultant s professional indemnity insurance or of the terms of any such insurance maintained in accordance therewith or having failed to report any such circumstances or the claim to the insurers in question timeously; and/or Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 11

12 (ii) terrorism matters then without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount the total liability of the Consultant under or in connection with this Agreement for any claims arising out of or in connection with terrorism matters whether in contract, in delict, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed in aggregate the sum set out in Part B: The Particulars of Agreement. E5.5 No action or proceedings under or in respect of this Agreement whether in contract, in delict, in negligence, for breach of statutory duty or otherwise shall be commenced against the Consultant after the expiry of the period stated in Part B: The Particulars of Agreement. E5.6 The Consultant shall maintain public liability insurance and professional indemnity insurance in the amounts and for the length of time sufficient to cover the Consultant s liabilities hereunder provided always in either case that such insurance is available at commercially reasonable rates and subject to all exceptions, exclusions and limitations to the scope of cover that are commonly included in such insurances at the time the insurance is taken out or renewed as the case may be. E5.7 Save in respect of personal injury or death, the Client shall look only to the Consultant (and not to any of the Consultant s personnel) for redress if the Client considers that there has been any breach of this Agreement. The Client agrees not to pursue any claims in contract, delict or statute (including negligence) against any of the Consultant s personnel as a result of carrying out the Consultant s obligations under or in connection with this Agreement at any time and whether named expressly in this Agreement or not. E5.8 In this Agreement Consultant s personnel shall mean any employee or member of the Consultant. Any such employee or member includes any officer or director of a company or a member of a limited liability partnership or self-employed or agency personnel working for the Consultant. E6 SUSPENSION AND TERMINATION E6.1 The Client may at any time require the Consultant to suspend the performance of the Services by one week s notice. If the period(s) of suspension exceed three months in aggregate the Consultant may terminate the appointment of the Consultant by two weeks notice. E6.2 The Client may terminate the appointment of the Consultant in the event of a breach of this Agreement by the Consultant or in the event of the insolvency of the Consultant by two weeks notice. E6.3 The Consultant may terminate the appointment of the Consultant in the event of a breach of this Agreement by the Client or in the event of the insolvency of the Client by two weeks notice. E6.4 In this Agreement insolvency shall mean either party becoming bankrupt going into liquidation (either voluntary or compulsory except as part of a bona fide scheme of reconstruction or amalgamation) being dissolved entering into a voluntary arrangement or having a receiver, an administrative receiver or an administrator appointed in respect of the whole or part of its assets. 12 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

13 E6.5 If circumstances arise for which the Consultant is not responsible and which the Consultant considers make it irresponsible for the Consultant to perform all or any part of the Services the Consultant shall be entitled to terminate the appointment of the Consultant by two weeks notice. E6.6 In the event of any suspension or termination, save in the event of termination pursuant to clause E6.2, the Client shall pay the Consultant a fair and reasonable amount on account of the fees due under clause E2.1 commensurate with the Services performed to the date of such suspension or termination and payments in respect of the Services to which the Consultant is irrevocably committed and any outstanding expenses. E6.7 Termination of the Consultant s appointment under this Agreement shall not prejudice or affect the accrued rights or claims of either party. E7 DISPUTES AND DIFFERENCES E7.1 The parties shall attempt in good faith to settle any dispute by mediation. E7.2 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 current at the time of the referral of the dispute. The adjudicator shall be appointed at the request of either party by the Association for Consultancy and Engineering. The statement of case to be sent by the referring party to the adjudicator in accordance with the Procedure shall not exceed eight single-sided sheets of A4 sized paper excluding any attachments. E8 GENERAL E8.1 Neither party may assign or transfer any benefit or obligation under this Agreement without the prior written consent of the other party. E8.2 Save in respect of the benefits or rights conferred on the Consultant s personnel pursuant to clause E5.7 nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement. E8.3 The benefits or rights conferred on the Consultant s personnel pursuant to clause E5.7 of Part F: The Terms of Contract shall vest in the Consultant s personnel on the date of signing of this Agreement. E8.4 The rights of the Client and the Consultant: (i) (ii) (iii) to terminate the Consultant s employment under this Agreement, or to rescind this Agreement; to agree to amend or otherwise vary or to waive any terms of this Agreement; to agree to settle any dispute or other matter arising out of or in connection with this Agreement in each case in or in such terms as they shall in their absolute discretion think fit shall not be subject to the consent of the Consultant s personnel. Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 13

14 E8.5 Where the benefits or rights conferred on the Consultant s personnel have been vested pursuant to E8.3 the Client and the Consultant shall not be entitled without the consent of the Consultant s personnel to amend or vary the express provisions of E8.3 to E8.6. E8.6 The Consultant hereby: (i) (ii) (iii) confirms that any rights will vest in the Consultant s personnel pursuant to E8.3; renounces and waives any objection that these Third Party rights shall not be properly constituted; and accepts that these Third Party rights shall be enforceable against the Client in terms of the Agreement and in addition and without prejudice to the foregoing the Consultant confirms its knowledge of and gives its consent to the Client registering the Agreement in the Books of Counsel and Session for preservation and execution. E9 NOTICES E9.1 Any notice to be given under this Agreement shall be in writing and given by sending the same by fax or first class letter to the Client or the Consultant at the address shown in Part A: The Memorandum. For the avoidance of doubt any notice sent by shall not be an effective notice under this Agreement. Notices shall take effect when they have been received by the Client or the Consultant as the case may be. 14 ACE Agreement 2: Advise and Report (Scotland) Copyright ACE 2009

15 This is Part F referred to in the foregoing Part A: The Memorandum of Agreement Part F: The Schedule of Services F1 The Services to be performed under this Agreement are: 1 Describe the services or state where a description of the Services can be found. F1.1 1 F2 F3 F4 The Consultant shall not provide site staff nor attend site to monitor any investigation or other works unless this is specifically stated in Part F: The Schedule of Services. Where site staff are to be provided, the Client shall be responsible for the cost and provision and the running costs of such local office accommodation, office equipment, protective clothing and transport on site as shall reasonably be required for use by the Consultant's site staff. Where site staff are provided and/or the Consultant attends site during any investigation or other works the Consultant shall monitor that the investigation or other works are being executed generally in accordance with the contract documents and appropriate good practice. Copyright ACE 2009 ACE Agreement 2: Advise and Report (Scotland) 15