1.1. Herrington Consulting Limited shall be referred to as “the Consultant” and the person, organisation or company instructing the Consultant and entering into this contract shall be referred to a “the Client”.
1.2. “Offer” means the offer to provide Services for the Price quoted, including any appendices and/or attachments thereto issued to the Client by the Consultant.
1.3. The “Price” is the fee quoted to provide the Services as set out in the Offer.
1.4. “Agreement” means the Consultant’s Offer as accepted by the Client enclosing these Terms of Business, any Appendices to the Offer, and any subsequently agreed variations to the Agreement.
1.5. “Services” means the services or scope of work to be provided for the Client and which the Consultant identifies in the Offer.
1.6. “In writing” means any communication sent by mail, email or facsimile transmission.
1.7. “Force Majeure” means any circumstance or condition outwith the reasonable control or influence of the Consultant and includes any deferral in the requirement for Services by the Client.
2.1. No variation of any kind to this Agreement may be made without the agreement in writing of the Client and of the Consultant.
3.1. Unless agreed in writing otherwise the Client shall supply to the Consultant without charge all matters and things necessary for the performance of the Services by the Consultant.
3.2. The Consultant shall subject to the Agreement carry out the Services in the Offer and any variation to the Services.
3.3. The Client shall make payment in accordance with the Agreement.
4. Intellectual property, confidentiality and publicity
4.1. The copyright and all other intellectual property rights in all work prepared or compiled by the Consultant in the performance of this Agreement remains vested in the Consultant but conditional upon payment of all fees and disbursements properly due the Consultant hereby issues a free license to the Client to use such work as is supplied under this Agreement, for the purposes for which the work was prepared or compiled, always providing that such license shall be limited to the works carried out under this agreement.
4.2. The Client shall not without the prior written consent of the Consultant divulge to any party details of any confidential information disclosed by the Consultant in the performance of the Services.
4.3. The Client agrees that the Consultant may use work and the results of the work carried out by the Consultant in the provision of the Services for publicity purposes. The Client will consult with the Consultant when issuing publicity which concerns work that has been directly carried out by the Consultant. The Consultant shall not use any information that the Client has stated in writing to be confidential.
5.1. The Consultant undertakes to exercise reasonable skill care and diligence in performing the Services, and shall be liable only for negligent failure in performing the Services.
5.2. The Consultant has no liability for the actions advice or omissions of independent specialists by whomsoever instructed.
5.3. In respect of any matter of Force Majeure the Consultant shall have no liability for his failure or delay in the performance of the Services or any part of them. Where relevant, the Client shall not cease payment to the Consultant under this Agreement throughout any period or periods of Force Majeure.
5.4. The Consultant holds professional indemnity insurance and certificates of verification can be provided upon request.
5.5. 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.
6. Suspension and termination
6.1. The Client and Consultant agree that without prejudice to any other rights and remedies which the Consultant may possess if the Client shall fail to pay the consultant in full any amount properly due and payable under this Agreement by the final date for payment as defined in 7.2 the Consultant may after giving the Client seven days notice in writing of the same suspend its performance and obligations under this Agreement until payment in full occurs.
6.2 If in the event of a change in circumstances the Client no longer requires the Services written instruction of notice of termination must be issued to the Consultant. Upon receiving this no further work will be undertaken by the Consultant and best endeavors will be used to limit the costs incurred by any independent specialists instructed by the Consultant on behalf of the Client.
6.3. The Client and Consultant agree that either may give to the other written notice of termination in the following circumstances:- i) if fourteen days after having received written notice of a breach of the Agreement, no attempt to rectify that breach has been made; or ii) the Agreement has been affected by Force Majeure for at least 60 days.
6.4. In the event of termination under 6.2 or 6.3 of this Agreement, the Client shall pay to the Consultant the following sums: – i) such payment as is due for the performance of the Services up to and including the day upon which notice of termination was given; ii) such payment as due to independent specialists; iii) such monies, if any, as would become due and payable by the Consultant in respect of separate arrangements entered into by the Consultant in the performance of the Services.
7.1. Payment of interim invoices, if any, and of the final invoice is due on the date of the invoice.
7.2. The final date for payment of invoices is the date of the invoice plus the number of days stated on the invoice.
7.3. Where the deliverable of the Services comprises a technical report and on issue of the draft, the Services are substantially complete, the Consultant reserves the right to invoice for the Services in full.
7.4. In the event of a project being delayed for reasons outside of the control of the Consultant, the Consultant reserves the right to issue an interim invoice for the Services undertaken.
7.5. The Client agrees to issue any notice to withhold any payment in writing no later than the date of the invoice plus 14 days.
7.6. Interest, at the rate of 4% over the base rate of the HSBC Bank Plc shall be added to all amounts remaining unpaid after the final date for payment.
8.1. Any dispute which cannot be settled amicably shall, in the first instance, be referred to the respective Chief Executive/Director of the Client and the Consultant who shall attempt, in good faith, to resolve the matter.
8.2. In the event of a dispute between the Client and the Consultant each party shall have the right to refer the same to adjudication in accordance with the Construction Industry Council Model Adjudication Procedure current at the time of referral.
8.3. In the event of either the Client or the Consultant not agreeing with the decision of an Adjudicator, the dispute shall be referred to arbitration in accordance with the Institution of Civil Engineers’ Arbitration Procedure.