These conditions (“Conditions”), which are construed to be under English Law, are applicable to the appointment of jnpgroup (“the Firm”) by the “Employer” for the provision of Consulting Engineering Services on the Project. They should be read in conjunction with other documents and/or the correspondence comprising the Firm’s offer and these documents shall collectively comprise the contract (“Contract”) between the Firm and the Employer. Where there is any discrepancy between clauses in different documents, the clauses in this document shall apply.
- Provisions of Services: The Contract for the provision of Consulting Engineering Services (”Services”) incorporates the Association of Consulting Engineers Agreement as referred to in the quotation documentation, except where they are amended by the Conditions herein.
- Firm’s Total Liability: The Firm’s total liability for the provision of Services is limited to £1 million (unless agreed otherwise) each and every claim, or any other amount stated in the Contract, whichever is the lesser.
- Firm’s Fees: The Firm’s fees are exclusive of any allowance for VAT. When payment is made VAT, as appropriate, is to be added at the current standard rate.
- Commencement of work: The Firm require written agreement of the fee by the Employer prior to commencement of work. Once this has been received, we will continue work unless given written instruction to stop. If we have already started the work, we have the right to invoice the work carried out to date.
- Clearance of Payment: The Firm reserve the right to request clearance of payment prior to issue of reports or calculations. We have secure card payment options or, if preferred, BACS payment is possible.
- Accounts: Accounts will be rendered monthly as the Services proceed and will reflect a fair and reasonable proportion of the Services completed. Payment of accounts without retention or discount is required within twenty-eight days from the date of invoice, interest being chargeable on overdue accounts at 2% above the Average Base Lending Rate of the four major clearing banks.
- Payment and Suspension: The Employer shall not withhold any fee properly due to the Firm without giving the Firm full details and reasons of his intention to withhold payment no later than 4 days prior to the date which on payment becomes due. If payment is withheld and no such fully detailed notice is issued in accordance with the above timescales, the Firm reserves its right to suspend all or part of the services until such time as it is fully paid up by the Employer, subject to issue of 7 days notice to the Employer stating the grounds on which the services are to be suspended.
- Offer Period: The Firm’s offer will remain open for acceptance for a period of 30 days from the date on our covering letter (unless agreed otherwise). If for any reason the Firm is not permitted to commence the Work within 30 days of acceptance of our offer, we reserve the right to re-negotiate.
- Geographical Limitation: Any prices or rates quoted, or standard schedules included, relate to the Services being carried out within the United Kingdom unless specifically stated to the contrary.
- Firm’s Documents: All reports, drawings, bending schedules, calculation sheets and all other documents prepared by the Firm (“Designs”) are private and confidential between the Employer and the Firm and they may not be used or relied upon by any other party without the prior consent of the Firm.
- Title of Documents: Title in the Designs, together with all the information contained therein, and all data generated under the Contract between the Firm and the Employer, shall remain vested in the Firm but when the Employer has discharged all its obligations under clauses 3 and 6 above, a non exclusive licence to use the Documents shall be granted to the Employer, the Firm assuming no obligations to third parties and having no liability in relation to the use of the Documents other than for the purposes for which they were originally prepared.
- Copyright: Notwithstanding Condition 10 above, the Employer will nevertheless be granted a licence to reproduce the Designs for the purposes of completing the project for which they were intended.
- Consequential Loss: Under no circumstances shall the Firm be liable to the Employer for any indirect or consequential loss suffered by the Employer relying on the information included in the Designs prepared by the Firm including (without limitation) loss of profit, loss of contracts or pure economic loss.
- Termination of Services: In the event that the Employer terminates our services, without just cause, the Firm reserves the right to charge for loss of revenue in line with the ACE Conditions including costs of re-direction of resources and loss of profit.
- Disputes: Where the Employer intends to use any Designs or information provided by the Firm in any litigation or dispute resolution procedure of any kind then the Employer will both advise the Firm in writing and seek the Firm’s approval prior to using them. The Firm reserves the right to refuse to provide copies of Designs for use in litigation or other disputes involving the Firm.
- Adjudication: The Employer accepts that any disputes can be referred to Adjudication as set out in the current version of The Housing Grants, Construction and Regeneration Act 1996
- Total Liability: The total liability of the Firm to the Employer whether as to specie, quantum or duration of liability, is set out in the Contract and no other obligations are to be implied into the Contract, whether as to the giving of bonds, warranties or guarantees.
- Completion Dates: The Firm will use all reasonable endeavour to meet quoted completion dates. However, time is not the essence of the Contract and the Firm will not be liable in cases of late reporting, however caused, nor shall lateness be deemed to be a breach of Contract or an act of negligence.
- Changes to Designs: Changes to any Designs completed or part completed requested by the Employer, or any other party beyond our control, will be charged to the Employer on a time basis at agreed rates.
- Exclusion from Fee: Unless specifically stated, the Firm’s fees do not include for the costs of any services or data which may be required from other Consultants, Authorities or Specialists such as site investigations, traffic counts, flood data, sewer records and the like, or any other services or data not specifically referred to in correspondence between the Firm and the Employer, but which are deemed to be necessary by the Firm for the proper execution of the Services.
- Exclusion of Services: Unless specifically covered in the fee offer, all other services are deemed to be expressly excluded.
- 3rd Party Information: The Firm will rely on the accuracy of all third party information provided by the Employer or Employers Representative in all aspects of the Services and will not carry out checks on the correctness of the supplied information. Should the information which is suppled not be correct this may affect the outcome of the services provided by the Firm. The Firm cannot accept any responsibility or liability due to the consequences of the supplied information being incorrect.
We may visit the site as part of our familiarisation process, but whilst there, we will not specifically check the validity of any 3rd party information provided to us. The liability for the accuracy and completeness of all third party information remains entirely with the providers of that information.
Any changes to third party information may affect the outcome of the services provided by the Firm and as such must be referred back to the Firm for comment, the Firm cannot accept any responsibility or liability due to the consequences of changes to this information which have not been referred back to us.
In the event of 3rd party information not being issued or a delay in receipt of 3rd party information this will affect the programme and the Firm reserves the right to charge for any additional costs incurred.
- Collateral Warranties: If the Firm is required to enter into any collateral warranties, the Firm reserves the right to charge 5% of the fee associated with those Services requiring warranties or a minimum of £750 to cover management and insurance costs.
- Net Contribution Clause: The Firm’s liability for costs under the Contract and any collateral warranties shall be limited to that proportion of such costs which it would be just and equitable to require the Firm to pay having regard to the extent of the Firm’s responsibility for the same and on the basis that all other designers including specialist sub-contractor designers shall be deemed to have provided similar contractual undertakings to the Employer (or, under any collateral warranty, to the beneficiary) and shall be deemed to have paid such proportion which it would be just and equitable for them to pay having regard to the extent of their responsibility.
- Disbursements: The Firm will provide the Employer with an estimate of disbursements and expenses prior to incurring them. Such items include but are not limited to travel, printing, mapping, photocopying, surveys, audits, applications, third party contractors and other regulatory fees.
Disbursements and expenses may be charged to you as soon as they are known and approved. In all circumstances in which your instructions involve a significant amount of administration such as printing, photocopying, binding etc, the Firm shall be entitled to add an administration charge to our bills to cover such expense.
All 3rd party costs paid by the Firm on behalf of the Employer shall incur a 20% administration fee (unless agreed otherwise).
- Acceptance of Documents: The Firm will not accept any consequences caused by the delivery of any drawings by others, either in electronic or hard-copy format, if they are not:
• accompanied by a formal Document Issue Register
• clearly annotated to show what revisions have been made since their previous issue
The Firm will require, free of any charge to the Firm, hard copy back-up prints or PDF electronic copy of any drawings by others that are sent to us in electronic format. This is to enable us to check that third party e-drawings look as they are intended by their originator should we open or print them.
- CDM Regulations 2015: It is assumed that the Employer is fully aware of his obligations as ‘Client’ under the CDM Regulations, and that he will comply with those obligations. The owner of the site, or any party recognised as the ‘Client’ under the current CDM Regulations, has a duty under the CDM Regulations to investigate the site and provide the gathered information, with assistance from the Principal Designer, to the Firm at the outset of the Firm’s engagement. This is a duty that cannot be delegated to the Firm. The Employer remains responsible for ensuring that the ‘Client’s’ duties are met (Industry Guidance and clause 4 of the CDM Regulations). Further information can be found here.
Geo-Enviornmental Conditions of Contract
- Site Investigation quotations are necessarily in the form of a schedule of rates or a Bill of Quantities. The estimated total value given is provided for guidance only and is based on assumed provisional quantities, based on what we currently know/infer about the site and likely ground conditions. The final value and time for completion will depend on the actual work undertaken. If unexpected or unforeseen ground conditions are encountered at the site that necessitate different or additional investigation techniques to address, this would be identified to the Employer, and additional cost proposals would then be provided to investigate the issue.
- Site Investigation Conditions of Contract: Site Investigation site works and testing will be carried out in accordance with the ICC Infrastructure Conditions of Contract: Ground Investigation Version (2011), or such later edition or reprint published by the Association of Consulting Engineers and the Civil Engineering Contractors Association, except where amended by the Firms Conditions of Contract, which shall take precedence over all other terms and conditions.
- Abnormal Working: Exploratory hole formation operations are to be performed without interruption in one visit during our normal working hours unless stated otherwise. The Firm has made no allowance for any abnormal working such as night or Saturday / Sunday working. The Firm shall require payment at an hourly rate detailed in our offer for all delays due to circumstances beyond our control including, but not limited to, the consequences of working in inter-tidal areas.
- Traffic Management: Unless the Firm has specifically stated otherwise, no allowance has been made for the provision of any traffic control, watching, lighting or protection of the work. In the event of these proving necessary, the Firm shall require to be paid for the above at Dayworks Rates in the Current Schedule of Dayworks of the Civil Engineering Contractors Association.
- Unavoidable Damage: Whilst the Firm will confine its site investigation operations to the minimum extents required for access and working areas, it cannot be held liable for any damage caused whilst at, or in gaining access to each exploratory hole or test position.
- Access and Continuity: Any offer for site testing is based on drivable access being available for all our plant and equipment. In addition we require to be able to work continuously from one test position to the nearest adjacent test position and all such positions must be suitable for immediate and unobstructed access for the plant and equipmentstated in our offer. We shall charge for all additional costs incurred plus 20% (unless agreed otherwise) if this condition is not met.
- Services: During site investigation fieldwork the Firm shall not be held responsible for, and the Employer shall indemnify the Firm against, any claims arising from any damage or the consequence of any damage to mains and services such as cables, pipes, sewers, etc., the positions and nature of which are not clearly indicated in writing to us prior to the commencement of the Works. The rights and obligations under this condition shall be unaffected by any electronic or other searches we have made.
- Reinstatement: Except where expressly stated, our offer makes no allowances for removal of turf, breaking out surface coverings or subsurface obstructions. Similarly, no allowances have been made for reinstatement other than the replacement of cut cores or sections and their temporary securing with site mixed grout or concrete as appropriate. The Firm’s rates include for backfilling exploratory holes and pits with arisings only as a safety measure, and not in a manner that is equivalent to the strength of the original ground. The Firm have not allowed for any further reinstatement subsequent to the original backfilling and accepts no liability for any loss or damage as a consequence of reusing arising material as backfill. The rates for backfilling with grout, if quoted, are based on grouting the theoretical borehole volume per metre. Should loss of emplaced grout occur the Firm require reimbursement at the standing time rate plus materials and any additional plant at cost plus 20% (unless agreed otherwise).
- Security of Monitoring Installations: Where long term tests or instrumentation have to be left unattended, the Employer is required to provide adequate watching, lighting and security. All losses and damage to our equipment or instrumentation would be charged at replacement cost plus 20% (unless agreed otherwise). In this connection we require the Employer’s representative to accept in writing and take responsibility for all completed installations as soon as they have been commissioned and remain responsible for any consequences of damage thereto.
- Personal Protection Equipment: On contaminated land sites; should we consider that additional personal protective / safety equipment, ablution facilities etc are necessary, then the additional charges will be levied at cost plus 20% (unless agreed otherwise) with all delays chargeable at the appropriate hourly rate. Additionally, we would reserve the right to renegotiate the rates for execution of the Works.
- Adequacy of testing: The Firm accepts no liability as to the adequacy of testing (including Waste Acceptance Criteria testing) instructed by others. Unless otherwise expressly stated, the Firm shall not be responsible for interpretation of any such testing.
- Testing Liability: The Firm’s liability under any contract for testing shall be strictly limited to the invoice value of the analyses performed.
- Management of Hazardous Soils: Our offer makes no allowance for the containment of arisings and/or disposal of samples and/or arisings from a site which are deemed hazardous under the European Waste Catalogue 2002 (and subsequent updates). All such material shall be collected and disposed of by the Employer, at no cost to the Firm.
- Laboratory Testing Programmes: Unless specifically defined otherwise in our offer, laboratory test results will generally be reported within 10 working days (14 calendar days) of receipt of the samples for test or the testing schedules, whichever is later. Turnarounds can be expedited, but only upon an instruction from the Employer, and agreement of additional fees.