Terms of Engagement
Company Details:
Name: Smoke Ventilation Consultancy Ltd.
Registered Office: Middleborough House, 16 Middleborough, Colchester, Essex, CO1 1QT
Company Number: 11698381
Standard Terms and Conditions of Smoke Ventilation Consultancy Ltd. for the Supply of Services
Please read these Conditions carefully before engaging our Services. They form the basis of every agreement between Smoke Ventilation Consultancy Ltd and its clients. By accepting a Proposal or instructing us to commence work, you acknowledge and agree that these Conditions govern the Agreement to the exclusion of all other terms and conditions, including any terms you may seek to impose.
1. Definitions
1.1 In these Conditions, the following expressions have the meanings set out below:
"Agreement" means the binding contract for the supply and acquisition of the Services, formed in accordance with Clause 3, subject always to these Conditions and the terms set out in the Proposal.
"Client" means the individual, company, partnership or other legal entity identified in the Proposal as the recipient of the Services, whose acceptance of the Proposal constitutes entry into the Agreement.
"Conditions" means these standard terms and conditions, together with any Special Conditions agreed in writing between the parties.
"Confidential Information" means any information of a confidential or commercially sensitive nature disclosed by one party to the other under or in connection with this Agreement (whether orally or in writing and whether or not marked as confidential), including but not limited to the terms of this Agreement, technical data, reports, findings, client lists, pricing and business methods.
"Consultant" means Smoke Ventilation Consultancy Ltd (Company Number 11698381), whose registered office is at Middleborough House, 16 Middleborough, Colchester, Essex, CO1 1QT.
"Deliverables" means all documents, materials (including drafts), opinions, advice, recommendations, assessments and reports developed or produced by the Consultant or its agents, subcontractors or employees in connection with the Services, including but not limited to the Proposal(s) and the Report(s).
"Force Majeure Event" means any event or circumstance beyond the reasonable control of either party, including but not limited to war, terrorism, civil commotion, riot, acts of governmental or regulatory authority, fire, flood, earthquake or other natural disaster, epidemic or pandemic, and failure of utilities or telecommunications infrastructure.
"Intellectual Property Rights" means all patents, inventions, copyright, database rights, registered and unregistered design rights, trade marks (whether registered or unregistered), trade names, logos, trade secrets, know-how and all other intellectual or industrial property rights subsisting anywhere in the world, together with all applications for and renewals or extensions of such rights.
"Proposal" means the written proposal submitted by the Consultant to the Client, setting out the scope of the Services, the fee and the programme.
"Relevant Information" means all information in the possession or control of the Client, or otherwise available to the Client, that relates to the Services or the Site, including but not limited to drawings, specifications, as-built records, previous surveys or investigations, planning conditions, building regulations approvals, fire strategies, hazardous substances and any applicable health and safety information.
"Report" means any written report, assessment, review, opinion or other Deliverable produced by the Consultant as the principal output of the Services.
"Services" means the professional fire engineering consultancy services described in the Proposal, which may include smoke ventilation strategy review, compliance assessment, expert advice, witnessing of tests and attendance at meetings, but which expressly exclude any design services save where the Proposal expressly states otherwise.
"Site" means the premises or area(s) in respect of which the Services or any part of the Services are to be provided, as detailed in the Proposal.
"Special Conditions" means any additional or amended conditions agreed in writing between the Client and the Consultant as forming part of the Agreement.
1.2 In these Conditions:
(a) references to a statute or statutory provision include that statute or provision as amended, consolidated or re-enacted from time to time;
(b) the singular includes the plural and vice versa; references to one gender include all genders; references to persons include bodies corporate, partnerships and unincorporated associations;
(c) 'writing' or 'written' includes email unless stated otherwise;
(d) clause headings are for convenience only and shall not affect interpretation.
2. Formation of Agreement
2.1 The Consultant's Proposal constitutes an invitation to the Client to enter into an Agreement on these Conditions. The Agreement is formed when the Client accepts the Proposal in writing, or when the Consultant commences the Services, whichever is earlier. Any purported acceptance on different terms shall be of no effect unless expressly agreed in writing by an authorised representative of the Consultant.
2.2 No employee, agent or subcontractor of the Consultant has authority to make any representation, give advice or amend these Conditions unless confirmed in writing by an authorised representative of the Consultant.
2.3 The Client is responsible for providing the Consultant with all information and instructions necessary to enable the Consultant to perform the Services within sufficient time. The Consultant shall not be liable for any delay or failure arising from the Client's failure to do so.
2.4 Any typographical or other error or omission in the Proposal or any other documentation issued by the Consultant may be corrected without liability on the Consultant's part.
3. Scope of Services
3.1 The Consultant provides professional fire engineering consultancy services specialising in smoke ventilation. The Services are consultancy, advisory and review services only. Unless the Proposal expressly states that design services are included, the Consultant does not accept responsibility for the design of smoke ventilation systems or any other building services systems.
3.2 The Consultant will perform the Services generally in accordance with the Proposal. Where it becomes reasonably necessary to vary the Services due to site conditions, changes in applicable standards or guidance, or information discovered in the course of the Services that materially affects the scope of work, the Consultant will notify the Client promptly, including details of any additional fees. The Client shall pay any additional fees so notified.
3.3 Where the Client requests a variation to the Services, the Consultant will endeavour to accommodate such request but is not obliged to do so. Any agreed variation shall be confirmed in writing and the Client shall pay any additional fees agreed.
3.4 The Consultant may use subcontractors or subconsultants to perform all or part of the Services without prior consent of the Client, provided that the Consultant takes reasonable care to ensure that any such third parties are appropriately qualified and experienced.
4. Consultant's Obligations
4.1 The Consultant shall perform the Services with the reasonable skill, care and diligence to be expected of a competent professional fire engineering consultant specialising in smoke ventilation, having regard to the scope and complexity of the Services and the standards and guidance current at the time the Services are performed.
4.2 Time for performance of the Services is not of the essence. The Consultant will use reasonable endeavours to meet any programme stated in the Proposal, but shall not be liable for any delay unless caused by the Consultant's own breach.
4.3 Where the Services are performed in stages or instalments, each stage or instalment shall constitute a separate agreement for the purposes of performance and payment, and failure in respect of one stage shall not entitle the Client to treat the Agreement as a whole as repudiated.
4.4 The Consultant will maintain adequate records of the Services and, where requested, shall provide the Client with reasonable updates on progress.
5. Client's Obligations
5.1 The Client shall co-operate fully with the Consultant in all matters relating to the Services.
5.2 The Client acknowledges that the Consultant relies on the accuracy and completeness of the Relevant Information provided to it. The Client shall disclose all Relevant Information in its possession or control and shall promptly notify the Consultant of any new or changed Relevant Information that may materially affect the Services.
5.3 The Client shall provide the Consultant (and, where applicable, its subcontractors and agents) with free and safe access to the Site and to all Relevant Information necessary for the performance of the Services.
5.4 Where the Consultant requires access to any premises to carry out the Services, the Client shall: (a) ensure the premises are maintained in a safe condition; (b) inform the Consultant of all applicable health and safety rules, regulations and security requirements before access is granted; and (c) obtain any consents or permissions necessary to allow such access.
5.5 If the Client considers at any time that any part of the Services is not being performed in accordance with the Agreement, the Client shall notify the Consultant promptly in writing, giving reasonable particulars, and shall allow the Consultant a reasonable opportunity to investigate and, where appropriate, take corrective action before seeking any other remedy.
5.6 If the Consultant's performance of its obligations is prevented or delayed by any act, omission or default of the Client (or anyone for whom the Client is responsible), the Consultant shall not be liable for any resulting costs, losses or delays, and the Client shall reimburse the Consultant for any additional costs reasonably incurred as a result.
6. Relevant Information
6.1 All Relevant Information provided to the Consultant shall be used solely for the purpose of performing the Services. Upon completion of the Services or termination of the Agreement, the Consultant shall, upon request, return or destroy (at the Client's election) any original documents provided by the Client, save that the Consultant may retain copies for its own records and for professional indemnity purposes, subject to the confidentiality obligations in Clause 8.
7. Intellectual Property and Use of Reports
7.1 All Intellectual Property Rights in the Deliverables shall at all times remain vested in and owned by the Consultant.
7.2 Subject to payment in full of all fees due in respect of the Services, the Consultant grants the Client a non-exclusive, royalty-free, non-transferable licence to use and reproduce the Report for the purposes for which it was commissioned, as stated in the Report. The Report shall be used only in its entirety, including the Consultant's name, qualifications and any limitations or caveats stated therein.
7.3 The Client may share the Report with its professional advisers, funders, statutory authorities, building control bodies or other persons directly involved in the project to which the Report relates, provided that: (a) such recipients are made aware of and accept the limitations and conditions attached to the Report; (b) the Consultant's Intellectual Property Rights in the Report are not prejudiced; and (c) the Report is not modified or used out of context.
7.4 The Client shall not use any Deliverable for any purpose other than the purpose for which it was produced without the prior written consent of the Consultant. In particular, the Report shall not be relied upon by any third party other than as permitted by this Clause 7 and neither the Consultant nor any member of its team accepts any duty of care to any such third party.
7.5 The Client acknowledges that the Services are consultancy and review services. Any Deliverable reflects the professional opinion of the Consultant at the time of issue based on the information available. The Consultant is not responsible for the implementation or execution of any recommendations made.
8. Confidentiality
8.1 Each party shall keep confidential the Confidential Information of the other party and shall not disclose it to any third party without the prior written consent of the other, except as permitted by this Clause 8.
8.2 The duty of confidentiality in Clause 8.1 shall not apply to information which the receiving party can demonstrate: (a) was already in the public domain at the time of disclosure; (b) entered the public domain after disclosure through no act or omission of the receiving party; (c) was already known to the receiving party prior to disclosure, as evidenced by written records; or (d) was independently developed by the receiving party without reference to the Confidential Information.
8.3 Either party may disclose Confidential Information to the extent required by law, regulation, court order or the order of any competent regulatory or governmental body, provided that (to the extent permitted by law) the disclosing party first gives the other party as much advance written notice as possible and co-operates reasonably to seek confidential treatment of the information.
8.4 Each party shall ensure that its employees, agents and subcontractors who have access to the other party's Confidential Information are bound by obligations of confidence no less stringent than those in this Clause 8.
8.5 The Consultant may refer to the Client's name and the general nature of the project as a case study or portfolio reference, unless the Client notifies the Consultant in writing that it objects to such reference.
9. Fees and Payment
9.1 The fees for the Services shall be as stated in the Proposal. Where no fee is stated, the Consultant's standard hourly rates current at the time the Services are performed shall apply.
9.2 The Client shall also pay any reasonable disbursements and out-of-pocket expenses incurred by the Consultant in connection with the Services (including travel, accommodation and printing), as set out in the Proposal or notified to the Client in advance.
9.3 The Consultant may also charge additional fees in respect of any additional work arising from: (a) variations to the Services requested by the Client; (b) delays or additional costs caused by the Client's failure to provide Relevant Information, access or instructions in a timely manner; or (c) changes in the scope of the project or in applicable standards or regulations after the date of the Proposal. Additional fees shall be agreed or notified to the Client in advance where reasonably practicable.
9.4 The Consultant shall invoice the Client in accordance with the programme set out in the Proposal, or, where no programme is agreed, monthly in arrears. Where an advance or mobilisation payment has been agreed in the Proposal and the Client subsequently does not proceed, the Consultant shall refund any advance payment less all costs properly incurred.
9.5 All invoices shall be paid within thirty (30) days of the date of invoice. Time for payment is of the essence.
9.6 All fees and other sums payable are exclusive of VAT, which shall be payable by the Client in addition at the applicable rate.
9.7 If the Client fails to make payment in full by the due date, the Consultant may, without limiting any other right or remedy: (a) suspend the Services until payment is made in full; (b) apply any sums received to any outstanding invoices as the Consultant sees fit; and (c) charge interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate, accruing daily from the due date until the date of actual payment, whether before or after judgment.
9.8 The Consultant may set off any amount owed by it to the Client against any amount owed by the Client to the Consultant.
9.9 The Client shall not be entitled to withhold or set off any payment due to the Consultant on account of any alleged defect in the Services unless the Consultant has acknowledged the defect in writing or it has been established by a binding determination.
10. Liability
10.1 Nothing in this Agreement limits or excludes either party's liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded by applicable law.
10.2 Subject to Clause 10.1, neither party shall be liable to the other for any indirect or consequential loss, loss of profit, loss of revenue, loss of business, loss of anticipated savings, loss of goodwill or reputation, or business interruption, even if advised of the possibility of such losses.
10.3 Subject to Clauses 10.1 and 10.2, the total aggregate liability of the Consultant to the Client under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the lesser of: (a) the total fees paid or payable by the Client under this Agreement; or (b) two million pounds (£2,000,000).
10.4 The Consultant's liability shall be reduced to the extent that any loss or damage is caused or contributed to by the Client's own acts, omissions or failure to comply with its obligations under this Agreement.
10.5 The Client shall give written notice to the Consultant of any circumstance likely to give rise to a claim under or in connection with this Agreement within sixty (60) days of becoming aware of such circumstance. Failure to give notice within this period shall bar any claim to the extent the Consultant has been prejudiced by the delay.
10.6 Any claim by the Client against the Consultant shall be brought within six (6) years of the date on which the relevant Services were completed, after which all claims shall be time-barred.
10.7 The Services are consultancy and review services only. The Consultant does not accept liability for the performance, safety or compliance of any smoke ventilation system or other building services system designed or installed by any third party.
11. Professional Indemnity Insurance
The Consultant shall maintain professional indemnity insurance throughout the period of this Agreement and for a minimum of six (6) years following completion of the Services or termination of the Agreement, provided such insurance is available in the market on commercially reasonable terms. The Consultant shall provide evidence of such insurance to the Client upon reasonable written request. The existence of insurance shall not limit the Consultant's liability under this Agreement.
12. Force Majeure
12.1 Neither party shall be in breach of this Agreement or otherwise liable for any delay or failure to perform its obligations to the extent that such delay or failure is caused by a Force Majeure Event.
12.2 The party affected by a Force Majeure Event shall: (a) notify the other party as soon as reasonably practicable; (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event; and (c) resume performance of its obligations as soon as the Force Majeure Event has ceased.
12.3 If a Force Majeure Event continues for more than ninety (90) consecutive days, either party may terminate this Agreement by giving twenty (20) days' written notice to the other. In such event, the Consultant shall be entitled to payment for all Services performed and expenses reasonably incurred up to the date of termination.
13. Termination
13.1 Either party may terminate this Agreement by giving not less than twenty (20) days' written notice to the other if the other party commits a material breach of this Agreement and (where the breach is capable of remedy) fails to remedy it within that notice period.
13.2 Either party may terminate this Agreement immediately by written notice if the other party: (a) makes any arrangement or composition with its creditors, or becomes subject to an administration, receivership or liquidation; (b) is unable to pay its debts as they fall due; (c) ceases or threatens to cease to carry on business; or (d) undergoes any analogous event in any jurisdiction.
13.3 The Consultant may suspend or terminate this Agreement immediately if the Client fails to make any payment when due, and such failure is not remedied within ten (10) days of written notice from the Consultant.
13.4 On termination for any reason: (a) the Client shall immediately pay all outstanding fees and expenses due to the Consultant, including a fair and reasonable proportion of any fixed fee for Services performed to the date of termination; (b) any provisions of this Agreement that by their nature should survive termination (including Clauses 7, 8, 9, 10 and 19) shall continue in full force and effect.
14. Data Protection
14.1 Each party shall comply with all applicable data protection legislation, including the UK General Data Protection Regulation and the Data Protection Act 2018.
14.2 Where the Consultant processes personal data in the course of providing the Services, it shall do so only to the extent necessary for the performance of the Agreement and shall implement appropriate technical and organisational measures to protect such data.
14.3 The Consultant's privacy policy, available on request, sets out further details of how it processes personal data.
15. Notices
15.1 Any notice required under this Agreement shall be in writing and shall be delivered by hand, first class pre-paid post or email to the addresses set out in the Proposal (or such other address as a party may notify to the other from time to time).
15.2 Notices shall be deemed received: (a) if delivered by hand, at the time of delivery; (b) if sent by first class post within the United Kingdom, two (2) business days after posting; (c) if sent by email, at the time of successful transmission, provided no delivery failure notification is received. Legal proceedings shall be served in accordance with applicable procedural rules.
16. Non-Solicitation
During the term of this Agreement and for twelve (12) months following its expiry or termination, the Client shall not, without the prior written consent of the Consultant, directly or indirectly solicit, recruit or engage any employee or subcontractor of the Consultant who was involved in the delivery of the Services. This restriction shall not prevent the Client from responding to a general recruitment campaign not specifically targeting the Consultant's personnel.
17. Anti-Bribery and Ethical Conduct
Each party shall comply with all applicable anti-bribery, anti-corruption and anti-money laundering legislation, including the Bribery Act 2010. Neither party shall engage in, or permit any person acting on its behalf to engage in, any activity, practice or conduct that would constitute an offence under such legislation.
18. General
18.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, representations and understandings. Each party acknowledges that it has not relied on any representation, statement or undertaking that is not expressly set out in this Agreement.
18.2 Variation. No amendment or variation of this Agreement shall be effective unless agreed in writing and signed by authorised representatives of both parties.
18.3 Waiver. No failure or delay by either party in exercising any right or remedy shall constitute a waiver of that or any other right or remedy, nor prevent its future exercise.
18.4 Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable, that provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall continue in full force and effect.
18.5 Assignment. Neither party may assign, transfer or sub-contract any of its rights or obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except that the Consultant may assign its right to receive payment without consent.
18.6 Third Party Rights. This Agreement does not confer any rights on any third party under the Contracts (Rights of Third Parties) Act 1999.
18.7 No Partnership. Nothing in this Agreement creates a partnership, joint venture or employment relationship between the parties.
19. Governing Law and Dispute Resolution
19.1 This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
19.2 In the event of any dispute arising under or in connection with this Agreement, the parties shall first attempt to resolve it by good faith negotiation between senior representatives of the parties within twenty-one (21) days of a written request by either party.
19.3 If the dispute is not resolved by negotiation within the period specified in Clause 19.2, it shall be referred to arbitration by a sole arbitrator. If the parties cannot agree on the appointment of an arbitrator within fourteen (14) days of a proposal to do so, the arbitrator shall be appointed by the President for the time being of The Institution of Fire Engineers. The arbitration shall take place in London, shall be conducted in English and shall be subject to the Arbitration Act 1996 and the laws of England and Wales.