Terms and Conditions of Appointment

1. General

· “the Consultant” is Pottinger Design Engineering Ltd.

· “the Client” is the home owner/occupier who commissions services from the Consultant.

· “the Agreement” means the agreement between the Consultant and the Client including these Conditions of Appointment.

· “contract administrator” may be “the Consultant” as defined above, who is engaged to undertake the duties as outlined in Clause 4 and administer the contract.

· Neither party shall be liable for any delay or failure to perform their obligations under this Agreement due to circumstances beyond their reasonable control, including but not limited to acts of God, war, terrorism, pandemic, or government restrictions (‘Force Majeure’).

· This Agreement constitutes the entire agreement between the parties and supersedes all prior discussions, correspondence or understandings.

2. Consultant’s services

· The Consultant shall provide the services stated in the Schedule of Services found within the provided fee proposal.

· Drawings and documents produced by the Consultant in connection with the services shall be provided to the Client in PDF format only. If other electronic formats are required (e.g. CAD files or BIM models) these are to be agreed to in advance. If paper copies are required these will be at an additional cost, which can be quoted for and agreed at that time.

3. Subjective Satisfaction Disclaimer

· The Client acknowledges that architectural design is a creative and interpretive process, and that personal taste is inherently subjective. The Consultant shall perform their services in accordance with the agreed design brief.

· The Client further acknowledges that satisfaction with the aesthetic or stylistic outcome of the design is subjective and may vary. Provided that the Consultant has acted in accordance with the agreed design brief, has obtained appropriate approvals where required, and has exercised reasonable professional judgment and competence, the Client shall not withhold payment, reduce fees, or assert a claim based solely on dissatisfaction with aesthetic or stylistic elements of the design.

· The Client acknowledges that the design process involves iterative development and agrees to provide timely feedback and approvals at key stages. The Consultant shall not be liable for dissatisfaction where the Client has approved or failed to provide timely feedback on interim designs or proposals.

4. Use and Reliance on Survey Information

· Any measured survey data, drawings, models, or information ("Survey Information") provided by the Consultant is prepared solely for the use of the Consultant in connection with the services described in the Schedule of Services.

· The Survey Information shall not be relied upon by any third party without the Consultant’s prior written consent. No liability shall be accepted by the Consultant for any use or reliance on such information by any party other than the Consultant. The Consultant shall have no responsibility or duty of care to any third party who may receive or access the Survey Information, whether with or without the Consultant’s knowledge or consent.

5. Client’s responsibilities

· The Client will provide a clear explanation of the project requirements and any relevant information requested by the Consultant needed to carry out the agreed Services.

· The Client will provide the Consultant with clear information about the Client’s budget and required timescales for completion of the Consultant’s services and the project. 

· When required, the Client shall appoint any other professional specialist services on the understanding that those fees shall be separate from, and additional to, those charged by the Consultant. The Consultant shall not be responsible or liable for the work of those other professional specialist services.

· The Client will be available at all reasonable times throughout the project in order to give due consideration to the Consultant’s advice and the Consultant’s queries and agrees to provide any required responses and approvals within a reasonable time period.

· Where the Consultant is acting as contract administrator under the building contract, the Client will not impede or interfere in the Consultant’s communication with the Building Contractor or the provision of any certificates issued by the Consultant. It is further agreed that the Client will not give any instructions to the Building Contractor or agree any variation in the Services directly with the Building Contractor without having consulted the Consultant first.

· The Consultant shall not be liable for any loss, delay, cost, or other consequences arising from the discovery of unforeseen ground conditions, including but not limited to contamination, unstable ground, underground obstructions, or variations in soil type or water table. It is the Client’s responsibility to commission appropriate site investigations or surveys where required. Any advice or design provided by the Consultant is based on the information reasonably available at the time and shall not constitute a warranty as to ground conditions.

· The Consultant shall not be liable for any pre-existing structural defects or deficiencies in the property or building elements that could not reasonably have been identified during a non-invasive visual inspection. The Consultant’s services do not include intrusive investigation unless expressly agreed in writing. It is the Client’s responsibility to arrange for any specialist surveys or investigations deemed necessary to assess the condition of existing structures.

6. Consultant’s responsibilities

· The Consultant may, when appropriate, provide the Client with a realistic timetable for the implementation of the project based on the information provided by the Client and the requirements of the project and shall provide details of all reasonable methods to ascertain the estimated costs of the building work.

· Where necessary, the Consultant shall advise the Client of any requirement to appoint other consultants, specialist contractors or sub-contractors to undertake part of the design, inspection or certification of the project.

· The Consultant shall use all reasonable endeavours to integrate into the design for which he is responsible the designs or calculations of the other consultants, specialist contractors or subcontractors, provided always that the Consultant shall not be responsible for the accuracy or errors within such designs or calculations. 

· The Consultant shall not be responsible for the specification, performance or suitability of any products, materials or building methods proposed by the Client, Contractor or third parties.

· The Consultant shall not be responsible for the work of, or design by, the building contractor nor for any failure of the building contractor to complete the building work in accordance with the terms of the building contract.

· Any recommendations made by the Consultant in relation to contractors or third parties are made in good faith, and without warranty as to the performance of such contractors.

· If appointed as contract administrator, the Consultant shall act in a fair and impartial manner as between the Client and the Building Contractor, when administering the building contract.

· The Consultant may act as the Client’s agent to apply for any necessary statutory approvals (such as planning permission and building regulations approval) and will use all reasonable endeavours to obtain them, but cannot guarantee that such approvals will be obtained.

· The Consultant shall exercise reasonable skill, care, and diligence in the performance of the services.

· The Consultant shall have the right to publish photographs and other information of a non-identifiable nature relating to the project, and the Client shall give reasonable access to the Project for this purpose at a mutually convenient time within a period of 2 years after Practical Completion.

7. Fees

· The amount of the Consultant’s fee and dates for invoicing the Consultant’s fee shall be in accordance with the provided fee proposal.

· The Client shall pay the invoiced fees within 7 days of the date of the Consultant’s invoice, unless otherwise agreed.

· The Consultant’s fee shall not include VAT which shall be charged to the Client in addition to the Consultant’s fee, if the Consultant is registered for VAT.

· The Consultant’s fees shall not include local authority fees or charges associated with statutory approvals and other professional or specialist services.

· The amount of any expenses (including but not limited to printing, photography, hotels, travel and subsistence) to be charged to the Client in addition to the Consultant’s fee and shall be agreed between the Consultant and the Client.

· The Consultant shall be entitled to charge interest on any fees that are unpaid after the agreed date for payment. Interest shall be charged at 5% above the Bank of England base rate from time to time.

· If the Client changes the services to be provided by the Consultant, the following shall apply. Changes include but are not limited to Client requests for revised designs (beyond revisions allowed for in the fee proposal), changes in project scope, or repeated requests for information already provided.

- any addition or variation to the Services will entitle the Consultant to charge the Client an additional fee. Details of such additional services and variations and any additional fee due shall be provided in writing by the Consultant and agreed between the Consultant and the Client as soon as possible and will be based on a rate of £85p/h (plus VAT where applicable);

- any reduction to the services will entitle the Client to a reduction in the Consultant’s fee. Such reduction shall be provided in writing by the Consultant and agreed between the Consultant and the Client as soon as possible.

8. Copyright

· The copyright in all designs, drawings, reports, models, specifications, bills of quantities, calculations and any other documents prepared by the Consultant (“the Documents”) shall remain vested in the Consultant. As long as the Consultant has received the payment of any fees properly due and owing, the Consultant grants a licence to the Client to copy and use the Documents for the purposes of the project only (excluding any extension of the project).

· The Client shall not transfer or assign this licence to any third party without the Consultant’s prior written consent. The Consultant reserves the right to revoke the licence in the event of breach of these Terms.

· The Consultant shall not be liable for any use of the Documents for any purpose other than that for which they were prepared and provided by the Consultant.

9. Professional Indemnity Insurance

· Notwithstanding anything to the contrary contained in this Agreement the total liability of the Consultant under or in connection with this Agreement whether in contract or in tort or in negligence or for breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed the sum of ten times the quoted Fee up to a maximum of £1,000,000 for Professional Indemnity Insurance cover.

· The Consultant shall have no liability to the Client under this Agreement after the expiry of six years from the completion of the services.

· The Consultant shall not be liable for any indirect or consequential loss or damage, including but not limited to loss of profit, loss of use, or loss of opportunity, arising out of or in connection with the performance of the services.

10. Termination

· Either the Client or the Consultant may terminate the Agreement by giving thirty days written notice to the other party. The Termination Notice shall not take effect for a further seven days to provide the opportunity for the other party to respond to such Termination Notice. If after these additional seven days, the reasons for the Termination cannot be set aside through written agreement, the Agreement will be terminated and take effect without any further notification.

· The Agreement shall terminate immediately if:

· the Client (or any one of them if there is more than one) is adjudged to bankrupt or enters into a voluntary arrangement with creditors;

· the Consultant dies or becomes incapacitated unless there are business arrangements in place to address this by the Consultant’s Practice.

· Upon termination of the agreement, the Client will pay the Consultant’s fee for those services provided up to the date of termination of the Agreement.

· The Consultant reserves the right to suspend performance of the services if the Client fails to make any payment when due or otherwise defaults in any of its obligations under this Agreement.

11. Disputes

· In the event of a dispute, the parties agree to first seek resolution through mediation before commencing adjudication or other legal proceedings

· The Client or the Consultant may refer a dispute arising out of this Agreement between them to an Adjudicator if the complainant notified the other party of the dispute within four weeks of becoming aware of it, and a period of four weeks have passed since the notification without the dispute being resolved.

· The Adjudicator is to be selected from a recognised construction dispute resolution body (such as the ICE Dispute Services Panel or CIAT Dispute Resolution Scheme).

12. Law

· The laws of England and Wales apply to the Agreement.