Terms of Engagement

Terms of Engagement

Based on the Association of Consulting Engineering Standard Conditions

1.0 General

1.1 These Terms of Engagement and attached fee letter to the Client together with the Client’s written acceptance thereof shall constitute the contract between the Client and Morgan Civil and Structural (“the Agreement”).

1.2 This Agreement shall apply in preference to and supersede any previous terms and conditions referred to, offered or relied upon by the client, whether in writing or otherwise.

1.3 This Agreement shall be governed by and construed and interpreted in accordance with English law, and the parties submit to the non-exclusive jurisdiction of the English courts.

1.4 These Terms of Engagement have been based upon and reflect the main provisions of the ACE Conditions of Engagement.

2.0 Definitions

The following definitions shall apply to this Agreement:

“Client” means the organisation to whom the attached fee letter is addressed.
“Consultant” means Morgan Civil and Structural.
“Individual” means any employee or member of the Consultant, including any officer or director of a company.
“Contractor” means a contractor appointed by the client to execute, co-ordinate and supervise or procure the execution, coordination and supervision of all or part of the Works.
“Works” means the Works, Project or Scope set out in the attached fee letter in connection with which the Client has engaged the Consultant to perform the Services.
“Services” means the services described in the attached fee letter.
“Additional Services” means any services undertaken by the Consultant beyond those defined in the attached fee letter.
“Fee” means the fees for the performance of the Services and Additional Services if any stated in the attached fee letter.
“Insolvency” means either party becoming bankrupt, going into liquidation (either voluntary or compulsory unless as part of a bona fide scheme of reconstruction or amalgamation), being dissolved, compounding with his creditors or having a receiver or administrative receiver or administrator appointed of the whole or any part of his assets.

3.0 Obligations of the Consultant

3.1 The Consultant shall exercise reasonable skill, care and diligence in the performance of the Services and the Additional Services if any. If in the performance of his services the Consultant has a discretion exercisable as between the Client and any contractor, the Consultant shall exercise that discretion fairly.

3.2 The obligations of the Consultant do not include a duty to advise 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 unless the provision of such advice is specifically detailed within the Services.

3.3 The Consultant may sub contract the performance of any of the Services to a sub consultant. The Consultant shall be responsible for the performance and the payment of any such sub consultant.

3.4 Subject always to conditions beyond his reasonable control the Consultant shall use reasonable endeavours to perform the Services in accordance with the programme agreed between the Consultant and Client and any subsequent programmes agreed between the two parties.

4.0 Obligations of the Client

4.1 The Client shall use his reasonable endeavours to provide to the Consultant without charge and in such time so as not to delay or disrupt the performance of the Services by the Consultant all necessary and relevant data and information in the possession of the Client, his agents, servants, other consultants or contractors and give such assistance and make such decisions as shall reasonably be required by the Consultant in the performance of the Services.

4.2 The Client shall appoint Contractors to execute and/or to manage the execution of the Works and require that the Contractors execute the Works in accordance with the terms or the relevant contract. Neither provision of site staff nor periodic visits by the Consultant or his staff to the site shall in any way affect the responsibilities of the Contractors or any Sub-Contractors for constructing the Works in compliance with the relevant contract documents and any instructions issued by the Consultant.

5.0 Payment

5.1 Payment by the Client to the Consultant for the performance of the Services shall comprise the Fees and if so agreed expenses.

5.2 Fees for the performance of the Services and the Additional Services if any shall be paid in accordance with the attached fee letter.

5.3 Payment due to the Consultant under this Agreement shall become due for payment on submission of the Consultant’s invoice and the final date for payment shall be 28 days thereafter. Interest and collection costs shall be charged on all amounts remaining unpaid thereafter in accordance with the Late Payments of Commercial Debts (interest) Act 1998.

5.4 Where time based fees are to be paid, they shall be paid by instalments as set out in the attached fee letter 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 or Additional Services including time spent in travelling in connection with the Works.

5.5 The Client shall not later than five days after the date on which payment becomes due give a notice specifying the amount (if any) of the payment made or proposed to be made and the basis on which that amount was calculated.

5.6 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.

5.7 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.

6.0 Additional Payment

6.1 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 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 a time basis at the hourly rates set out in the attached fee letter and shall be paid monthly. The Consultant shall where practicable and if so requested by the Client give an initial estimate of the additional payment likely to be incurred.

7.0 Limitation of Liability

7.1.1 Notwithstanding anything to the contrary contained elsewhere in this Agreement, and without prejudice to clause 7.1.2 the total liability in the aggregate of the Consultant under or in connection with this Agreement 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 amount equalling 10 (ten) times the Consultant’s fees for providing the Services under this Agreement subject to a maximum cap of £5,000,000 (five million pounds).

7.1.2 The Consultant’s liability in respect of asbestos, pollution or contamination whether in contract or in tort, in negligence, for breach of statutory duty or otherwise (other than in respect of personal injury or death) is excluded.

7.2 No action or proceedings under or in respect of this Agreement whether in contract, tort or in negligence or for breach of statutory duties or otherwise shall be commenced against the Consultant after the expiry of 6 years after the completion of the Services (or termination if earlier) or such earlier date as may be prescribed by law.

7.3 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 this Agreement at any time whether named expressly in this agreement or not.

7.4 Subject to paragraph 7.1, but notwithstanding otherwise anything to the contrary contained in this Agreement, 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 (“the loss and damage”) and on the assumption that:

i) all other consultants and all contractors and sub-contractors shall have provided contractual undertakings on terms no less onerous than those set out in 3.1 to the Client in respect of the carrying out of their obligations;

ii) 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 any such other party who is responsible to any extent for the loss and damage is contractually liable to the Client for the loss and damage; and

iii) 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 and damage.

8.0 Insurances

8.1 The Consultant shall maintain professional indemnity insurance sufficient to cover the Consultant’s liabilities hereafter for any one occurrence or series of occurrences arising out of this Agreement (other than for claims arising out of pollution or contamination which will be in the aggregate) and for the period of six years after completion of the Services, provided always that such insurance is available at commercially reasonable rates.

9.0 Contracts (Rights of Third Parties) Act 1999

9.1 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 pursuant to the Contracts (Rights of Third Parties) Act 1999.

10.0 Copyright, Licence and Publicity

10.1 The copyright in all intellectual property provided by the Consultant in connection with the Works shall remain vested in the Consultant, but the Client shall have a licence to use all completed drawings and other documents issued to the Client, other consultants or contractors for the purpose of the construction, completion, maintenance and repair of the Works. In the event of the Client being in default of payment of any Fees or other amounts due to the Consultant under this Agreement, the Consultant may revoke the licence herein granted on seven days’ written notice to the Client. The Consultant shall not be liable for the use by any person of any such drawings or documents for any purpose other than that for which the same were prepared on behalf of the Consultant.

10.2 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 Works.

11.0 Resolution of Disputes

11.1 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 the Agreement to adjudication in accordance with the Construction 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.

12.0 Termination

12.1 In the event of a material breach of this Agreement by either party or in the event of the Insolvency of one of the parties the party who is not in breach or is not insolvent may terminate this Appointment upon not less than two weeks’ written notice to the other party.

12.2 Upon such termination the Client shall pay the Consultant all monies accrued due to the Consultant up to the date of such termination following submission of the Consultant’s invoice therefore and the provisions of paragraph 5 of this Appendix shall then apply to such payment.

12.3 Termination of the Consultant’s appointment under this Agreement shall not prejudice or affect the accrued rights or claims of either party.

13.0 Assignment

13.1 Neither party may assign or transfer any benefit or obligation under this Agreement without the prior written consent of the other party.