Terms & Conditions

  1. The parties hereto shall be Datrys Consulting Engineers Limited (“DCEL”) and the person, persons, corporate or organisation (“the Client”) to whom is addressed the offer letter (“the Offer”) accompanying these terms of appointment.
  2.  The Offer, any written acceptance from the Client and these terms of appointment shall together constitute the contract (“the Appointment”).
  3.  The Offer contains a description of the services to be provided by DCEL (“the Services”) and sets out the fee and a scale of rates to be used if time charge fees apply and in the circumstances described in paragraph 5.
  4.  DCEL shall exercise all reasonable skill, care and diligence in the performance of the Services.
  5.  If any additional work is carried out or additional costs are incurred by DCEL because of any variation to the Service, project, works or brief by the Client or any other parties engaged by the client on the project or because of delay by the Client or because DCEL is delayed by others or by particular events which were not reasonably foreseeable or because the project or works are damaged or destroyed or because of other reasons beyond the control of DCEL, DCEL shall be entitled to additional payment therefor calculated on the basis of the rates set out in paragraph 3 and paragraphs 20 to 28 inclusive shall apply thereto.
  6.  The Client shall provide DCEL without charge and within reasonable time all pertinent data and information and give such assistance and make such decisions as shall reasonably be required for the carrying out by DCEL of the Services and DCEL and the Client shall exercise all reasonable expedition and despatch in carrying out the provisions of the Appointment.
  7.  Notwithstanding anything to the contrary within the Appointment the total liability of DCEL under or in connection with the Appointment for any claim arising out of the same occurrence or series of occurrences whether in contract or in tort, in negligence or for breach of statutory duty or otherwise shall be limited to such sum as DCEL ought reasonably to pay having regard to its responsibility for the total loss or damage suffered as a result of the occurrence or series of occurrences in question, on the assumption that (i) all other parties providing professional services in respect of the project or labour or materials or plant or equipment for incorporation in the project or executing the project or any part thereof shall have provided contractual undertakings on terms no less onerous than those set out in paragraph 4 hereof to the Client; (ii) that there are no limitations on liability nor joint insurance or coinsurance provisions between the Client and any other party referred to in this paragraph in respect of the carrying out of their obligations and (iii) all other parties referred to in this paragraph have paid to the Client such proportion which it would be just and equitable for them to pay having regard to the extent of their responsibility.
  8.  In particular but without prejudice to the generality of paragraph 7 hereof the total liability of DCEL under or in connection with the Appointment for any claim arising out of the same occurrence or series or occurrences whether in contract or in tort, in negligence or for breach of statutory duty or otherwise arising out of or in connection with pollution or contamination shall be limited to the lesser of: (a) The direct costs reasonably incurred by the Client in cleaning up the site of the project or works or any part or parts thereof, or (b) a sum equal to forty per cent of the sum set out in paragraph 7 or if a lesser the amount, if any, recoverable in respect of such matters under DCEL’s professional indemnity insurance policy.
  9.  Save in respect of death or personal injury the Client shall look only to DCEL and not to any employee, officer or director of DCEL for redress if the Client considers that there has been any breach of the Appointment. The Client agrees not to pursue any claim in contract, tort or statute (including negligence) against any employee, officer or director of DCEL whether named expressly in the Appointment or as a result of his or her carrying out DCEL’s obligations under or in connection with the Appointment.
  10.  DCEL shall maintain professional indemnity insurance from the commencement of the Services until nine years from the date of completion of the Services in an amount sufficient to cover DCEL’s liabilities under the Appointment for any of the Appointment, provided that within that amount any amount stated in the relevant insurance policy in respect of claims for pollution and contamination shall be on an aggregate basis, and provided always that such insurance is available at commercially reasonable rates.
  11.  No action or proceedings under or in respect of the Appointment, whether in contract or in tort, in negligence or for breach of statutory duty or otherwise, shall be commenced against DCEL after the expiry of nine years from the date of completion of the Services or such earlier date as may be prescribed by law.
  12.  In the event of a breach of the Appointment by DCEL, the Client may give fourteen calendar days’ notice in writing of its intention to determine Appointment setting out acts or omissions of DCEL relied upon as evidence of such breach. If DCEL does not, to the reasonable satisfaction of the Client, take expeditious steps to repair the breach during the notice period the Clients may forthwith on the expiry of the notice period determine the Appointment forthwith by a further notice in writing.
  13.  Upon the occurrence of any circumstances beyond the control of DCEL, which is such as to prevent or significantly impede the provisions of the Services, DCEL may without prejudice to any other remedy and upon written notice to the Client suspend for a reasonable period of up to eight calendar weeks the provision of all or any part of the Services and at the expiry of the said period of suspension either continue with the provision of the Services or if they are still prevented from providing all or any part of the Services for reasons beyond their control determine the Appointment forthwith by further notice in writing.
  14.  In the event of a breach of the Appointment by the Client, DCEL may give fourteen-calendar days’ notice in writing of its intention to determine the Appointment setting out the acts or omissions of the Client relied upon as evidence of such breach. If the Client does not, to the reasonable satisfaction of DCEL, take expeditious steps to repair the breach during the notice period DCEL may forthwith on the expiry of the notice period determine the Appointment by a further notice in writing.
  15.  The Appointment may be terminated in the event of insolvency by either party. Notice of termination must be given in writing to the party which is insolvent by the other party.
  16.  If circumstances arise for which DCEL is not responsible and which DCEL reasonably considers make it irresponsible to perform all or any part of the Services, DCEL shall be entitled to terminate the Appointment by two weeks’ notice in writing in respect of all or such part of the Services.
  17.  All reports drawings specifications bills of quantities calculations and other similar documents prepared and provided by DCEL under the Appointment are the property and copyright of DCEL but the Client shall have a licence to copy and use the same for the project, works or brief for which the Services are being provided. The Client shall not be entitled to make use of any documents belonging to DCEL in connection with any project, works or brief unrelated to the Appointment without prior agreement from DCEL in writing. In the event of the Client being in default of payment of any fees due under the Appointment DCEL may revoke the licence granted herein on seven calendar days’ prior written notice. DCEL shall not be liable for the use by any person of such documents for any purpose other than that for which the same were prepared by or on behalf of DCEL.
  18.  Neither the Client nor DCEL shall without consent of the other party assign the benefit or in any way transfer the obligations of the Appointment or any part thereof. Termination of the Appointment shall not prejudice or affect the accrued rights or claims of either party to the Appointment.
  19.  The Client or DCEL may, with the other party’s prior written consent, publish alone or in conjunction with any other person any article photographs or other illustrations relating to the project provided proper acknowledgement is made to the parties to the Appointment.
  20.  For time charge fees DCEL has a scale of rates referred to in paragraph 3, which is amended at the commencement of each calendar year. However DCEL reserves the right to amend such scale of rates at an interim date should exceptional circumstances so require.
  21.  Unless otherwise agreed in writing first invoice shall be rendered on the completion of the Services or at the end of the calendar month in which the Services commenced whichever is the sooner and any subsequent invoices shall be rendered at calendar monthly intervals. Invoices will be rendered in proportion to the service completed.
  22.  Where the Client has agreed that parts of the Services are sub-contracted by DCEL to a third party DCEL may render separate interim invoices at calendar monthly intervals in respect of those parts of the Services and the terms contained in paragraphs 20, 21 and 23 to 28 inclusive shall where appropriate apply thereto.
  23.  VAT, where applicable, shall be applied at the rate current at the date of the invoice.
  24.  Payments under the Appointment are due on the date of the invoice (“the Due Date”) and the final date for payment shall be thirty calendar days after the Due Date. In the event of any disputed item the final date for payment of the undisputed part of the invoice shall be thirty calendar days after the Due Date.
  25.  Where time charge fees apply the amount due for each person at each payment interval shall be the sum calculated by multiplying the hourly or daily rates applicable to the person concerned by the number of hours or days spent by such person during the interval in question.
  26.  The Client may not withhold any amount after the final date for payment unless the Client gives DCEL not later than seven calendar days before such final date a notice specifying the amount proposed to be withheld and the ground for withholding payment or if there is more than one ground each ground and the amount attributable to it.
  27.  Where payment is delayed for more than thirty calendar days from the Due Date, DCEL reserves the right to charge interest daily from the Due Date at ten per cent per annum above Lloyds Bank plc’s base rate prevailing from time to time.
  28.  Where a sum due under the Appointment is not paid in full by the final date for payment and no effective notice to withhold payment has been given DCEL has the right to suspend performance of its obligations under the Appointment provided that notice in writing stating the ground or grounds on which it is intended to suspend is given to the Client at least seven calendar days prior to the date of such suspension.
  29.  No set off or abatement by reference to any sum claimed to be due under one or more other contracts shall be applied to any payment due under the Appointment.
  30.  External third party costs incurred by DCEL which are reimbursable will be charged at cost plus 20%.
  31.  Save in respect of the benefits or rights conferred on any employee, officer or director of DCEL pursuant to paragraph 9 nothing in the Appointment confers or purports to confer on any third party any benefit or any right to enforce any term of the Appointment under the Contracts (Rights of Third Parties) Act 1999.
  32.  Any notice in writing shall be deemed to be duly given if it is delivered by hand, by facsimile transmission (fax) or sent by registered or recorded delivery. For the avoidance of doubt notices sent by e-mail shall be deemed not to have been duly given.
  33.  Further and notwithstanding anything to the contrary contained in this Agreement and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, the liability of DCEL under or in connection with this Agreement whether in contract or in tort, in negligence, for breach of statutory duty or otherwise for any claim shall not exceed the amount, if any, recoverable by DCEL by way of indemnity against the claim in question under professional indemnity insurance taken out by DCEL and in force at the time that the claims or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question.
  34.  No actions or proceedings under or in respect of this Agreement whether in contract or in tort in negligence or for breach of statutory duty or otherwise shall be commenced against DCEL after the expiry of 6 years following completion of the services or such earlier date that may be prescribed by law.
  35.  Further and not withstanding anything to the contrary contained in this Agreement and without prejudice to any provision in this Agreement whereby liability is excluded or limited to a lesser amount, any liability under or in connection with this Agreement, whether in contract or in tort, in negligence, for breach of statutory duty or otherwise, for any claim for loss or damage wholly, partly, directly or indirectly arising out of or resulting from or associated in any way with asbestos or any product or waste that contains asbestos (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any asbestos or product or waste that contains asbestos) shall not exceed the amount, if any, recoverable by DCEL by way of indemnity against the claim in question under professional indemnity insurance take out by DCEL and in force at the time the claim or (if earlier) circumstances that may give rise to the claim is or are reported to the insurers in question. This limitation shall not apply if no such amount is recoverable due to DCEL having been in breach of its obligations to maintain reasonable and effective professional indemnity insurance or having failed to report the claim or such circumstances to the insurers in question timeously.
  36. The Appointment shall be governed by English law, and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.
  37. Unless expressly stated otherwise inspections and surveys will not include uncovering, intrusive investigations or excavations.

 

DATRYS

Caernarfon: 01286 671027

Mold: 01352 706205

Email: info@datrys.coop

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Constructionline BSI iso-9001,-14001