Terms and conditions
a) ‘Act’ means Part II of the Housing Grants, Construction and Regeneration Act 1996 (and any subsequent amendments).
b) ‘Client’ means the person (which may be a body of persons corporate or unincorporated) named or identified as the person contracting with the Consultant in the covering letter. “Persons” are to be construed accordingly;
c) ‘Consultant’ means King Welsh Partnership Limited; (company number 10325054) a company registered in England and Wales whose registered office is at The Old carriage Works, Moresk Road, Truro, Cornwall, TR1 1DG. United Kingdom;
d) ‘covering letter’ is a reference to a document of that form in hard copy or electronic form;
e) ‘Expenses’ means any expenses and disbursements not included as part of the Fee and stated as such in the covering letter or any document appended to the covering letter. Where there is no reference to Expenses in the covering letter or any document appended to the covering letter then all expenses shall be deemed to be included in the Fee.
f) ‘Fee’ means the sum of money stated in the covering letter, or in a document appended to the covering letter, that is to be payable to the Consultant by the Client in consideration for the Consultant’s performance of the Services.
g) ‘Services’ means the services to be performed by the Consultant for the Client and are more particularly described in the covering letter or in a document appended to the covering letter.
2. THE AGREEMENT
The Agreement means either:
a) the agreement recorded by the covering letter (and includes any documents referred to in the covering letter insofar as they are not inconsistent with these terms and conditions) any documents appended to the covering letter and these terms and conditions; or
b) the agreement evidenced by the performance of the Services carried out in accordance with the covering letter, (including any documents referred to in the covering letter insofar as they are not inconsistent with these terms and conditions) any documents appended to the covering letter and these terms and conditions provided the Client has notice of these terms and conditions prior to the commencement of the Services; or where the Services have commenced the Client agrees that these terms and conditions shall apply.
3. PERFORMANCE OF THE SERVICES
The Consultant shall perform the Services exercising reasonable care and skill.
a) The Client shall pay the Consultant the Fee and Expenses (if any) and any applicable VAT. Except where the covering letter provides otherwise, the Consultant shall be entitled to monthly instalment payments of the Fee, based on the Consultant’s estimate of the proportion of the Services performed in the month and accordingly may issue monthly invoices for payment.
b) Payment shall be due on the date of the invoice (the ‘Due date’). Within 5 days after the Due Date the Client shall give notice of the amount of any payment to be paid and the basis on which the amount was calculated. The final date for payment (the ‘Final Date’) shall, unless otherwise stated in the covering letter, be fourteen days from the Due Date. The Consultant shall endeavor to submit invoices at the end of the month in which the Services were performed.
c) If the Consultant performs any additional services or if the Services are materially delayed or disrupted for reasons beyond the reasonable control of the Consultant, the Consultant shall be entitled to additional fees as are fair and reasonable in the circumstances. If the Consultant is prevented from completing the Services by an act of the Client then the Client shall pay the Consultant for its loss of profit for that part of the Services that would have been performed but for the Client’s act of prevention.
d) The Client shall not withhold payment unless an effective notice to withhold has been given no later than five days before the Final Date. For the purposes of this clause 4, an effective notice to withhold is a notice specifying the amount to be withheld and the ground or grounds for withholding payment. If there is more than one ground, the notice must state each ground and the amount attributable to it.
e) If the Client fails to pay any sum due by the Final Date and no effective notice has been issued, then the Consultant shall have the right to suspend the performance of its obligations under the Agreement. Prior to exercising this right, the Consultant shall first give the Client seven days’ notice of the Consultant’s intention to suspend performance of its obligations and shall state the ground or grounds on which it intends to suspend its performance. The Consultant shall resume the performance of its obligations when the Client makes payment in full of the payment due.
f) Notwithstanding the Consultant’s right to suspend performance of its obligations as set out in clause 4e), if the Client fails to pay any sum due by the Final Date and no effective notice has been issued, the Client shall pay to the Consultant, in addition to the sum due, (i) simple interest at a rate of 5% above the rate (as of the date of the Final Date) announced from time to time by the Monetary Policy Committee of the Bank of England as being the rate at which the Bank of England is willing to enter into transactions for providing short term liquidity in the money markets; and (ii) the appropriate fixed sum compensation arising out of late payment pursuant to section 5A of the Late Payment of Commercial Debts (Interest) Act 1998.
5. INTELLECTUAL PROPERTY RIGHTS
Where in the performance of the Services, reports and any like documentation are produced (the ‘Documents’), or where the purpose of the Services is the production of Documents, the Consultant shall be the owner of any copyright in the Documents but grants the Client, provided the rights are capable of being granted, a non-exclusive copyright license to use the Documents for purposes connected only with the primary purpose behind the procurement of the Services.
The rights to, or under, the Agreement may not be assigned by either the Client or the Consultant without first obtaining the written consent of the other.
7. PRESCRIPTION, LIMITATION OF ACTIONS AND LIMITATION ON LIABILITY
a) Provided the Services are performed in England and Wales, no action or proceedings under or in connection with the Agreement shall be commenced against the Consultant after the expiry of six years from the date of completion of the Services. If the Services are being performed in Scotland, the Prescription and Limitation (Scotland) Act 1973 shall apply in relation to the extinction of obligations.
b) Save in respect of death or personal injury, or where the covering letter states a different sum the total liability of the Consultant in respect of loss or damage caused by breach of contract, tort, delict or breach of statutory duty arising under and in connection with the Agreement shall be limited to one million pounds. (£1,000,000.)
If either the Consultant or the Client materially or persistently breaches its obligations under the Agreement, the other party may, by written notice, forthwith terminate the Agreement. Termination of the Agreement shall not affect any accrued rights and remedies that existed prior to the termination.
9. DISPUTE RESOLUTION
Where the Agreement is subject to the Act, any dispute that arises under the Agreement may be referred to adjudication. Any such adjudication shall be governed by the Technology and Construction Solicitors Association (TeCSA) adjudication rules 2002 version 2.0. (or any later amendment). Where the Services are performed in Scotland, the TeCSA adjudication rules shall be appropriately amended to enable the adjudication to be carried out under Scots law.
10. RIGHTS OF THIRD PARTIES
Any rights of any person who is not a party to the Agreement to enforce the terms of the Agreement are excluded.
11. GOVERNING LAW
English law shall govern the Agreement unless the Services are performed in Scotland, in which case, Scots law will govern the Agreement.
King Welsh Ltd is regulated by RICS for the provision of surveying services. This means we agree to uphold the RICS Rules of Conduct for Firms and all other applicable mandatory professional practice requirements of RICS, which can be
found at www.rics.org. As an RICS regulated firm we have committed to cooperating with RICS in ensuring compliance with its standards. The firm’s nominated RICS Responsible Principal is Clare King, Director contact details office +44(0)1752 898938.
King Welsh Ltd operate a Complaints Handling Procedure details of which will be made available on request.
The designated ADR provider is CEDR as approved by the RICS.