Terms and Conditions of Engagement
The following standard condition of engagement will apply to the contract between the parties unless specifically amended in writing by the Firm prior to the commencement of work.
The Client is the person, company, authority, agency or other body who instructs the Firm to carry out work. The Contract is between the Client and the Firm.
The Customer’s attention is particularly drawn to the provisions of clause 8.
“Parties” Pegasus Planning Group Limited (“the Firm”)
1.1 Definitions. In these Conditions, the following definitions apply:
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.6.
Contract: the contract between the Firm and the Client for the supply of Services in accordance with these Conditions.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Client’s order for Services as set out in the Client’s purchase order form, the Client’s written acceptance of a quotation by the Firm, or other agreement, as the case may be.
Services: the services, supplied by the Firm to the Client as set out in the Specification.
1.2 Construction. In these Conditions, the following rules apply:
a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
b) a reference to a party includes its personal representatives, successors or permitted assigns;
c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Contract constitutes the entire agreement between the Parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Firm which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Firm, and any descriptions or illustrations contained in the Firm’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 The Firm shall supply the Services to the Client in accordance with the attached letter which may be amended by agreement between the Firm and the Client.
3.2 The Firm shall use all reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Firm shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Firm shall notify the Client in any such event.
3.4 The Firm warrants to the Client that the Services will be provided using reasonable care and skill.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
a) ensure that the terms of the Order are complete and accurate;
b) co-operate with the Firm in all matters relating to the Services;
c) provide the Firm with such information and materials as the Firm may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.2 If the Firm’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
a) the Firm shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Firm’s performance of any of its obligations;
b) the Firm shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Firm’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
c) the Client shall reimburse the Firm on written demand for any costs or losses sustained or incurred by the Firm arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a time and materials basis:
a) the Charges shall be calculated in accordance with the Firm’s standard hourly fee rates (the scale of rates will be reviewed annually on 1 April and is currently set out in the annexed schedule) or in accordance with any fee arrangement which is agreed in writing between the Firm and the Client.
b) the Firm shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Firm engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Firm for the performance of the Services, and for the cost of any materials. Exceptional items of expenditure will be agreed be the Client and the Firm.
c) Budget guides for the Services will be provided on request. Budget figures will be based on experience but as each scheme is unique the budget figure should be taken as a guide figure only. It is not intended to be a fixed price. The firm will endeavour to advise the Client when a budget guide figure is being reached.
d) All fee proposals exclude Planning Application, Building Regulation and Local Authority consultation fees and survey costs. Such fees will be paid directly by the Client to the Local Authority concerned. Where a fee stage is related to a local Authority decision, this is understood to be a committee resolution rather than the issue of a decision notice which may be related to other legal agreements.
By its nature the Planning Permission itself is beyond the Firm’s control; no guarantee that it will be granted can be given.
5.2 The Firm shall invoice the Client monthly in arrears.
The Client shall pay each invoice submitted by the Firm within 30 days of the date of the invoice and time for payment shall be of the essence of the Contract.
5.3 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Firm to the Client, the Client shall, on receipt of a valid VAT invoice from the Firm, pay to the Firm such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4 If the Client fails to make any payment due to the Firm under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 6% per cent per annum above Barclays Bank PLC base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount. In the event that payment is not made by the due date, the Firm retains the right to stop all work in respect of the Contract.
5.5 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Firm may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Firm to the Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Firm.
6.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on the Firm obtaining a written licence from the relevant licensor on such terms as will entitle the Firm to license such rights to the Client.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Firm’s liability for:
a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
a) the Firm shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
b) the Firm’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid by the client for the Services rendered.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 Outline planning applications are frequently required to be supported with indicative layouts or illustrations of principles of development. Whilst every effort is made to ensure accuracy, these drawings are intended to serve as a guide to the broad nature, density and composition of development and should not be regarded as definitive
8.5 Final development schemes may show more or less development than the original indicative layouts depending on the development control criteria prevailing at the time of implementation of the final scheme.
8.6 The Firm will not be liable for any errors or omissions which may result from the information supplied on planning histories, site survey information etc by Local Authorities, Statutory Undertakers and other relevant bodies.
8.7 Any documents, text or drawings prepared by the Firm under this Agreement that could be affected by either the Property Misdescriptions Act 1991 or the Property Misdescriptions (Specified Matters) Order 1992 should not be included in any statements about land (which includes buildings) offered for sale without the information being cleared with the Director in charge of the project.
8.8 The Client hereby acknowledges the Firm has drawn attention to the duties imposed on the Client by the Construction (Design and Management) Regulations 2007 or updated versions thereof.
8.9 The Firm Undertakes to carry out such designer duties as are applicable to it under Regulation 13 of the Construction (Design and Management) Regulations 2007. The appointment does not include preparation of a Health and safety Plan of Preparation of a Health and Safety File.
8.10 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, the Firm may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
9.2 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 28 days written notice. Termination by the Client will be subject to payment of the outstanding fees and expenses.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
a) the Client shall immediately pay to the Firm all of the Firm’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Firm shall submit an invoice, which shall be payable by the Client immediately on receipt;
b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
c) clauses which expressly or by implication survive termination shall continue in full force and effect.
11. FORCE MAJEURE
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Firm including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Firm or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 The Firm will give immediate notice to the Client of any Force Majeure Event which makes it impracticable to carry out any of the Services and agree a suitable course of action with the Client.
11.3 The Firm shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.1 Assignment and other dealings
a) Neither the Client of the Firm may assign this Agreement without the express written consent of the other party.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
d) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
e) If one party gives notice to the other of the possibility that any provision or part- provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
b) If one party gives notice to the other of the possibility that any provision or part- provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision
12.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Firm.
12.8 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).