1.1 In these Conditions unless the context otherwise requires:
“Acknowledgement of Order” means the Company’s written acknowledgement of the Order signed by the Company’s authorised representative.
“the Act” means the Housing Grants Construction & Regeneration Act 1996
“Additional Payment” means payments falling due to the Company under the terms of the Contract in addition to the Contract Price.
“the Client” means the person named in the Quotation for whom the Company has agreed to provide the Design Works
“Commencement Date” has the meaning set out in Clause ( )
“the Company” means Toynbee Associates Ltd whose registered office is at Toynbee Associates Ltd of Unit 2A Chanctonfold Estate, Horsham Road, Steyning, West Sussex, BN44 3AA.
“Confidential Information” means all information designated as such by either party in writing to the other and all such other information which relates to the business, affairs, developments, trade secrets, know-how, personnel, Clients and Companies of either party or information which may reasonably be regarded as the confidential information of the disclosing party.
“Conditions” means the provisions set out in this document.
“Contract” means the Contract for the carrying out of the Works including the Quotation, Acknowledgement of Order, Specification, Designs and Formulae and these Conditions together with any further documents identified in the Quotation as Specification Documents
“Contract Price” means the price for the Works set out in the Quotation/Acknowledgement of Order.
“the Order” means the order or acceptance of Quotation issued by the Client to the Company for the carrying out of the Works
“Quotation” means the Company’s written quotation.
“the Regulations” means the Construction (Design & Management) Regulations 2007
“the Scheme” the Scheme for Construction Contracts (England & Wales) Regulations 1998
“the Site” means the premises to which the Works are to be carried out
“the Specification” means the specification for the Works
“Designs” means the Design to be carried out under the Contract including without limitation all associated construction and other works as stated in the Quotation and/or Specification
“Working Day” means Monday to Friday inclusive excluding bank and public holidays in England and Wales.
In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
In these Conditions references to the masculine includes the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
In these Conditions headings will not affect the construction of the Contract.
2.1 These Conditions apply to all the Designs carried out under the Contract and any variation to these Conditions or the Contract and any representations about the Designs shall have no effect unless expressly agreed in writing and signed by the parties.
2.2 The Company shall sell and the Client shall purchase the Designs in accordance with any Quotation which is accepted by the Client or any written order of the Client which is accepted by the Company by an Acknowledgement of Order, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which the Quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client.
2.3 No Quotation shall be capable of acceptance if the Client’s acceptance in writing is not received within 30 days of the date of Quotation. The Company may withdraw a Quotation at any time prior to acceptance by giving notice in writing to the Client.
3.1 No Order submitted by the Client shall be deemed to be accepted by the Company unless and until confirmed by an Acknowledgement of Order.
3.2 The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order submitted by the Client and for giving the Company any necessary information relating to the Works within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Designs shall be those set out in the Quotation and/or the Acknowledgement of Order, as appropriate.
3.4 If any of the Designs is in accordance with a specification or information submitted by the Client, the Client shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any patent, copyrights, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Client’s specification.
3.5 The Company reserves the right to make any changes in the specification of the Designs which are required to conform with any applicable statutory or EC requirement or which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company on terms that the Client shall indemnify the Company in full against all loss (including loss of profit), Overhead costs (including the cost of all labour and materials used), damages, charges and expenses of whatsoever nature incurred by the Company in connection with such cancellation.
4.1 The Company shall carry out the Designs in accordance with the Contract using reasonable skill and care
4.2 All workmanship standards shall be of the respective kinds and standards described in the Contract or if not specifically described shall be of the kinds and standards appropriate to the Designs.
4.3 The Company shall, using the reasonable skill and care required by clause 4.1 carry out the Designs in accordance with all relevant statutory and regulatory approvals and requirements.
4.4 The Company shall provide all accurate information and where necessary equipment and facilities necessary to comply with its obligations under clause 4.1.
4.5 The Company shall comply with its obligations as Designer and/or Contractor (as appropriate) under the Regulations.
4.6 The Company shall (save where otherwise instructed by the Client or prevented from so doing by circumstances beyond its control) commence the Works on the Commencement Date and use its reasonable endeavours to carry out and complete the Works by the Completion Date.
4.7 The Company shall not be liable for any delay in delivery of information or carrying out of the Works howsoever caused. Time for performance of the Works shall not be of the essence unless agreed as a Special Condition.
5.1 From the Commencement Date, the Client shall provide the Company with full and accurate information appertaining to the Design and the Company shall be held harmless in respect of any inaccurate information provided by the Client.
5.2 The Client shall (and procure that its employees, agents and contractors shall) at all times co-operate with the Company and provide the Company with all such information, assistance, facilities and access as the Company may reasonably request from time to time.
5.3 Without limiting the terms of clause 5.2 the Client shall prior to the Commencement date notify the Company in writing of any known soil/environmental conditions, planning or regulatory requirements or any conditions on Site or otherwise which may affect the Company’s ability to carry out the Works.
6.1 The Client will pay the Company the Contract Price for the Designs in accordance with and subject to the terms of the Contract.
6.2 Any fixed element of the Contract Price and/or any fixed price agreed for variation pursuant to a change order shall be set out in the Quotation/Acknowledgement of Order or change order as appropriate.
6.3 Where the parties agree that any Services will be carried out on a time and materials basis, the time element will be charged at the Company’s fee rates set out in the Quotation/Acknowledgement of Order.
6.4 The Contract Price is exclusive of all the Company’s costs and expenses in carrying out the Designs except such costs and expenses as are expressly stated in the Quotation/ Acknowledgment of Order to be included in the Contract Price.
6.5 For the purpose of the Contract, the Contract Price and any additional charges and expenses are exclusive of value-added tax (“VAT”) or any similar taxes. All such taxes are payable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UK legislation in force at the tax point date.
7.1 The Client may (with the consent of the Company such consent not to be unreasonably withheld or delayed) seek to vary the extent of the Designs. In the event of such variation, the Client and the Company shall endeavour to agree on a fixed price for the variation failing which the variation shall be valued by reference to comparable work included within the Contract Price. Such sums payable in respect of variations shall be Additional Payments to be added to the Contract Price and paid in accordance with clause 9 below.
8.1 The Company shall submit invoices for the Contract Price at the intervals set out in the Quotation. Insofar as any Additional Payment arises under the terms of the Contract then such Additional Payment shall be invoiced within the next invoice following the Additional Payment falling due.
8.2 The due date for payment of each invoice shall be on presentation of the invoice, and all invoices are due for payment on receipt.
8.3 The Client may not later than 5 (five) days after the due date for payment given to the Company written notice stating the amount which the client proposes to pay and the basis upon which that amount is calculated. Where no such notice is given the amount to be paid is the amount stated in the invoice.
8.4 Where the Client intends to withhold payment of any amount stated in the Company’s invoice or in a written notice given by the Client under clause 8.3 above the Client must give such notice to the Company not later than 5 (five) days after the date on the invoice for payment stating the amount to be withheld and the grounds for withholding payment.
8.5 Any amounts due to the Company under this Agreement which remain unpaid by the Client after 28 days from the date of the invoice, a Final Notice will be issued and shall be considered a qualifying debt carrying statutory interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.6 In the event that the Client is in default overpayment of any amount past 28 days from the date of the invoice and no notice of intention to withhold has been given under clause 8.3 the Company may suspend performance of the Works or any part thereof. The right to suspend shall cease when the Client makes the payment due.
8.7 If payment is not made within 7 days of a Final Notice being issued we will issue the paperwork in order to reclaim this “Debt” via a CCJ.
9.1 Toynbee Associates Ltd is required to comply with the regulations of its professional bodies in respect of the maintenance of professional indemnity insurance, provided that it is available at commercially reasonable rates for a period of 6 years from the completion of the services under the building contract. The level of PII offered by Toynbee Associates Ltd will be applicable to the Project and will be stated in the covering letter/email. If no PII limit is stated in the letter/email then cover will be limited to £1m for each and every claim except for claims in relation to asbestos, contamination and pollution where it is in the Aggregate.
9.2 Toynbee Associates Ltd shall have no liability whatsoever or however so arising in respect of any claim, losses, liability, cost, expenses or other costs directly or indirectly arising out of or in connection with Fire Safety Notifications including:
9.2.1 the combustibility, fire protection performance, fire resistance and/or fire retardant characteristic of any external cladding or roofing systems;
9.2.2 any internal fire protection systems; and/or
9.2.3 any aspect of the fire safety or fire performance of a building or structure.
9.3 Toynbee Associates Ltd shall have no liability whatsoever or however so arising in respect of any claim, losses, liability, cost, expenses or other costs directly or indirectly arising out of or in connection with waterproofing systems.
9.4 Toynbee Associates Ltd shall on the written request of the Client provide evidence that the insurance is properly maintained.
9.5 Toynbee Associates Ltd shall immediately inform the Client if the insurance referred to in Clause 9.1 above ceases to be available at commercially reasonable rates in order that the best means of protecting the respective positions of the Client and Toynbee Associates Ltd can be implemented.
10.1 Nothing in the Agreement shall limit the Company’s liability
10.1.1 for death or personal injury caused by the negligence of the Company, its employees, agents or contractors, or
10.1.2 for fraudulent misrepresentation.
10.2 Without prejudice to Clause 9.1, the Company shall not, whether in contract tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise be liable to the Client or any third party (whether or not such loss was foreseeable or the Company had been advised of such loss) for
10.2.1 loss of profits;
10.2.2 loss of business;
10.2.3 depletion of goodwill and/or similar loss;
10.2.4 loss of anticipated savings;
10.2.5 loss of goods;
10.2.6 loss of contract;
10.2.7 loss of use loss and/or corruption of data or information;
10.2.8 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses
10.3 Save in respect of death or personal injury caused by Toynbee Associates Ltd negligence and notwithstanding anything to the contrary contained in this Agreement or any related document and without prejudice to any provision contained within it which excludes or limits liability to a lesser amount, the total liability of Toynbee Associates Ltd under or in connection with this Agreement and any warranties entered into by Toynbee Associates Ltd whether in contract, tort, negligence (or delict) or breach of statutory duty, indemnity, or otherwise shall not exceed in aggregate a multiple of ten times the total of the fees payable to Toynbee Associates Ltd by the Client.
10.4 If Toynbee Associates Ltd is considered to be liable jointly with third parties to the Client the proportion of compensation payable by Toynbee Associates Ltd shall be limited solely to a just and equitable proportion of liability which is attributed to Toynbee Associates Ltd breach and on the assumption that the relevant third parties have paid a just and equitable proportion having regard to the extent of their responsibility. Toynbee Associates Ltd liability shall be limited to and form a part of the total aggregate amount set out in Clause 9.3.
10.5 No action or any proceedings for any breach of the Agreement shall be commenced by either party after the expiry of the period of limitation of 6 years from the completion of the services under the building contract.
11.1 Without prejudice to any other rights or remedies that have accrued in connection with the Contract, the Contract may be terminated immediately by notice in writing by either party if:
11.1.1 the other party is in material or continuing breach of any of its obligations under the Contract and fails to remedy the breach (if capable of remedy) for a period of 21 days after written notice by the other party;
11.1.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
11.1.4 a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
11.1.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
11.1.6 the other party ceases, or threatens to cease, to trade;
11.1.7 the other party takes or suffers any similar or analogous action to those referred to in Clauses 14.1.1 to 14.1.5 inclusive in any jurisdiction in consequence of debt
11.1.8 the other party shall be guilty of a criminal act, misconduct or continual misconduct in connection with or affecting the provision of the Services.
11.2 The Company shall be entitled to terminate the Contract if any sum payable by the Client to the Company shall remain unpaid after the final date for payment.
11.3 In the event that the Client is subject to any of the circumstances referred to in Clause 14.1, without limiting any other right or remedy available to the Company, the Company shall ( )
12.1 Except as required by law both parties shall procure that all Confidential Information disclosed by one party to the other in accordance with the Contract or which may at any time until termination of the Contract come into the other party’s knowledge possession or control shall not be used for any purposes other than those required or permitted by the Contract shall remain confidential and shall not be disclosed to any third party except insofar as this may be required for the proper operation of the Contract and then only under appropriate confidentiality provisions approved by the other party.
12.2 The provisions of Clause 17.1 shall not apply to any information which:
12.2.1 is or becomes public knowledge other than by breach of this Clause 17;
12.2.2 is in the possession of the receiving party without restriction in relation to disclosure prior to the date of receipt from the disclosing party;
12.2.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
12.2.4 is independently developed without access to the Confidential Information.
13.1 The Client shall not without The Company’s prior written approval disclose to any other party any information which the Client directly or indirectly acquires from The Company or its clients. This obligation shall remain in force for a period of five (5) years after completion of the Services or termination of the Contract.
13.2 The ownership of all design documents, drawings, plans, reports and other such documents supplied by The Company to the Client or prepared by the Company in the performance of its Services and all intellectual property rights therein shall be vested in the Company
13.3 Technical information (including drawings, designs, specifications, 3D Model and all associated files, electronically recorded and stored data, computer programs and calculations) developed or arising during the Services or in connection with the performance thereof, including the results thereof, and all intellectual property rights therein shall belong to the Company.
13.4 Notwithstanding the provisions of this clause, all rights of title to, copyright in and ownership of any design rights, patents (including patent applications) and other proprietary rights or technical know-how which the Client provides in relation to the Services and which is merely supplemented, enhanced, modified or adapted in the course of the Agreement or was developed out with the Agreement shall remain with Client.
14.1 Any dispute or difference arising between the parties in connection with this Appointment may be referred to adjudication under the Act such adjudication is to be conducted in accordance with the Scheme.
14.2 Nothing in the above provisions limits the right of either party to commence court proceedings in relation to any dispute arising under the Contract.
(Rights of Third Parties) Act 1999
15.1 Unless expressly provided herein, no term of the Contract is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16.1 No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
16.2 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.1 The Company may assign, sub-contract or transfer any of its rights or duties in whole or in part under the Contract without the written consent of the Client.
17.2 The Client may not assign, sub-contract or transfer any of its rights or duties in whole or in part under the Contract without the written consent of the Company, such consent not to be unreasonably withheld.
18.1 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.1 Toynbee Associates Ltd shall provide up to 2No collateral warranties if required by the Client in the Client’s original enquiry and provided insurance cover is available in accordance with Clause 5 above. Further warranties may be provided by agreement and will be subject to an additional fee of £1,200 per warranty. The form of warranties will be industry-standard Construction Industry Council Consultant Warranty 2018 unless agreed otherwise. Bespoke forms of warranty will be subject to agreement and additional fees.
20.1 Nothing in the Contract shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified by the terms of the Contract.
21.1 Neither party will be liable to the other party for any delay in or failure to perform its obligations under the Contract as a result of any cause beyond its reasonable control, including but not limited to governmental regulations, fire, flood, or any disaster or an industrial dispute affecting a third party. If such delay or failure continues for at least 60 days, either party will be entitled to terminate the Contract by notice in writing to the other party. Subject to the accrued rights that either party shall have against the other at the date that the force majeure event arose, neither party shall have any liability to the other for termination in accordance with this Clause.
22.1 These Conditions, the Quotation/Acknowledgement of Order and the documents annexed hereto or otherwise referred to herein as forming part of the Contract contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
23.1 Notices shall be in writing, and shall be sent to the other party marked for the attention of the Company or Client Representative (as appropriate) at the address set out for such party in the Quotation. Notices may be sent first-class mail or email transmission provide that email transmissions are confirmed within 24 hours by first class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed email transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above.
23.2 Save for the service of notices pursuant to this Contract, the parties agree that communications relating to the subject matter of this Contract may be made by electronic mail.
24.1 The Contract shall be governed by and construed in accordance with English Law and each party hereby submits to the exclusive jurisdiction of the English Courts.