TERMS OF APPOINTMENT:
To the extent that either Party processes personal data, as part of the Contract, the Party undertakes to do so in compliance with the General Data Protection Regulation (GDPR) and to keep such personal data in a secure technological environment.
2.1 The Client shall:
2.2 The Client may issue reasonable instructions to NBA. The Client’s named representative (where applicable), shall have full authority to act on behalf of the Client for all purposes in connection with the matters set out in the Contract.
2.3 The Client acknowledges that NBA does not warrant:
2.4 The Client shall not disclose Confidential Information unless:
3.1 In the performance of the Services, and discharging all the obligations under the Contract, NBA will exercise the reasonable skill, care and diligence to be expected of an Architect/Consultant experienced in the provision of such services for projects of a similar size, nature and complexity to the Project. Notwithstanding anything that may appear elsewhere to the contrary, whether under this Contract or otherwise, NBA’s duties and obligations shall be deemed to be subject to the exercise of such reasonable skill, care and diligence and nothing contained in this Agreement or elsewhere shall be construed as imposing on the Architect/Consultant any greater duty than the exercise of such reasonable skill, care and diligence.
3.2 NBA shall:
3.3 NBA shall have the right to publish photographs of the Project, and the Client shall give reasonable access to the Project for this purpose for 2 years after Practical Completion. NBA shall obtain written consent from the Client, which shall not be unreasonably withheld or delayed, before the publication of any information about the Project, unless reasonably necessary for the performance of the Services.
3.4 NBA shall not disclose Confidential Information unless:
4.1 Neither NBA nor the Client shall at any time assign the benefit of the Contract or any rights arising under it without the prior written consent of the other. Such consent shall not be unreasonably withheld or delayed.
4.2 NBA shall not sub-contract performance of any part of the Services without the prior consent of the Client, and such consent shall not be unreasonably withheld or delayed.
4.3 The Parties may, by agreement, novate the Contract on terms to be agreed.
5.1 The fees for performance of the Services and/or any additional services shall be agreed in writing with the Client.
5.2 The Basic Fee for performance of the Services may be any or a combination of:
5.3 Lump sums and rates for time charges, mileage and printing shall be revised every 12 months in accordance with changes in the Consumer Prices Index. Each 12-month period commences on the 1st January each Calendar year.
5.4 The Basic Fee shall be adjusted:
5.5 If NBA is involved in extra work or incurs extra expense for reasons beyond NBA’s reasonable control, additional fees shall be calculated on a time basis at the rate(s) set out in the Engagement Letter where:
5.6 NBA shall inform the Client on becoming aware that extra work as noted in section 5.5 shall apply. Section 5.5 shall not apply to the extent that any change or extra work or expense arises from a breach of the Contract by NBA.
5.7 The Client shall reimburse NBA for expenses and disbursements in the manner specified in the Engagement Letter.
5.8 NBA shall maintain records of time spent on Services performed on a time basis and for any expenses and disbursements to be reimbursed at net cost.
5.9 Where NBA is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is submitted or accepted, NBA shall be entitled to fees due up to and including the receipt of tenders based on the construction work or that part of it relating to the Services current at the date of tender.
Payment Notices ('Invoices').
5.10 NBA shall issue Payment Notices ('Invoices') at intervals being either:
5.11 In the event of non-payment of any amount properly due to NBA under the Contract, NBA is entitled to interest on the unpaid amounts. NBA may:
5.12 Each Payment Notice ('Invoice') shall state the basis of calculation of the amount specified, which shall be the Notified Sum. Instalments of fees shall be calculated on NBA’s reasonable estimate of the percentage of completion of the Services or stages or other services or any other specified method.
5.13 The Client shall pay the Notified Sum within 14 days of the date of issue of the relevant Payment Notice (‘Invoice’), which shall be the Final Date for Payment, unless:
Notice of Intention to Pay Less.
5.17 The Client shall, on or before the Final Date for Payment, make payment to NBA of the amount, if any, specified in the written notice.
5.18 If no such notice is given, the amount due and payable shall be the Notified Sum stated as due in NBA’s account. The Client shall not delay payment of any undisputed part of the account.
5.19 If the Client issues such a notice and the matter is referred to an Adjudicator who decides that an additional sum, greater than the amount stated in the notice of intention to pay less, is due, the Client shall pay that sum within 7 days of the date of the decision or the date which, in the absence of the notice, would have been the Final Date for Payment.
5.20 The Client shall not withhold any amount due to NBA under the Contract unless the amount has been agreed with NBA or has been decided by any tribunal to which the matter is referred as not being due to NBA.
5.21 If the performance of any or all of the Services and/or obligations is suspended or terminated, NBA shall be entitled to:
5.22 In the event that any amounts are not paid when properly due, NBA shall be entitled to simple interest on such amounts until the date that payment is received at 8% per year over the dealing rate of the Bank of England, current at the date that payment becomes overdue, together with such costs as are reasonably incurred by NBA (including costs of time spent by principals, employees and advisers) in obtaining payment of any sums due under the Contract.
5.23 In the event that NBA successfully pursues, resists or defends any claim or part of a claim brought by the Client, the Client shall pay NBA:
5.24 In addition to the fees and expenses, the Client shall pay any VAT chargeable on NBA’s fees and expenses.
6.1 NBA shall own all intellectual property rights, including the copyright in the drawings and documents produced in performing the Services, and this clause generally asserts NBA’s moral right to be identified as the author of such work.
6.2 No part of any design by NBA may be registered under the Registered Designs Regulations 2001 by the Client without the written consent of NBA.
6.3 The Client shall have a licence to copy and use such of the drawings and documents for which all fees and other amounts properly due have been paid, only for purposes related to the construction of the Project or its subsequent use or sale, but they may not be used for reproduction of the design for any part of any extension of the Project or any other project without NBA’s written consent.
6.4 Where produced using CAD, BIM or other proprietary software, drawings and documents shall be provided to the Client in PDF format only, unless an alternative format and corresponding fee has been agreed.
6.5 Copying or use of the drawings and documents by any Other Client Appointment providing services to the Project shall be deemed to be permitted under a sub-licence granted by the Client, whether such drawings and documents were issued by the Client or on the Client’s behalf.
6.6 NBA shall be liable to the Client in respect of any reasonably foreseeable and fully mitigated expenses, losses or damages suffered by the Client as a result of the work of NBA being in breach of copyright or any other intellectual rights of any third party.
6.7 NBA shall not be liable for any use of the drawings and documents other than for the purpose for which they were prepared and provided by the Architect/ Consultant.
7.1 No action or proceedings arising out of or in connection with the Contract whether in contract, in tort, for negligence or breach of statutory duty or otherwise shall be commenced after the expiry of 6 or 12 years, depending on how the Contract is executed, from the date of Practical Completion or the date of completion of the last Services, whichever is the earlier.
7.2 In any such action or proceedings:
8.1 NBA maintain professional indemnity insurance with a limit of indemnity not less than the £1,000,000 for each and every claim, provided such insurance continues to be offered on commercially reasonable terms to NBA at the time when the insurance is taken out or renewed. NBA shall inform the Client if such insurance ceases to be available on commercially reasonable terms. NBA when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such insurance has been obtained and/or is being maintained.
8.2 NBA shall inform the Client if such insurance ceases to be available on commercially reasonable terms or, subsequent to the date of the Contract, any restrictions are attached to the policy or an aggregate limit applies to any matters other than those specified in the Contract, in order that NBA and the Client can discuss the best means of protecting their respective positions.
8.3 Nothing in the Contract confers any right to enforce any of its terms on any person who is not a party to it, other than lawful assignees.
9.1 The Client may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving NBA at least 7 days’ written notice and stating the reason for doing so.
9.2 NBA may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving the Client at least 7 days’ written notice and stating the grounds on which it intends to do so. Such grounds are limited to:
9.3 In the event of suspension or termination, NBA shall cease performance of the Services and/or other obligations under the Contract in an orderly and economical manner on the expiry of the notice period after receipt or issue of a notice of suspension or termination.
9.4 If the reason for a notice of suspension or termination arises from a default:
9.5 Where Services are suspended by either Party, after serving notice as outlined in section 9.1 or section 9.2 and not resumed within 6 months, NBA has the right to treat performance of the Services as ended on giving at least 7 days’ further written notice to the Client.
9.6 Any period of suspension arising from a valid notice given under section 9.1 or section 9.2 shall be disregarded in computing, for the purposes of any specified time limit, the time taken by NBA to complete any work directly or indirectly affected by the exercise of the right of NBA to suspend performance.
9.7 Performance of the Services and/or other obligations may be terminated immediately by notice from either Party if:
9.8 On termination of performance of the Services and/or other obligations under the Contract, a copy of any drawings and documents produced pursuant to the Services and not previously provided by NBA to the Client shall be delivered to the Client by NBA, subject to the terms of the licence as outlined in section 6.3 and payment of any outstanding fees and other amounts due plus the reasonable expenses of NBA.
10.1 Complaints Handling Procedure.
10.2 In the event of any dispute or difference arising under the Contract, the Parties may attempt to settle the dispute, in the first instance, by mediation.
10.3 Where adjudication applies:
10.4 If the initial/preferred dispute resolution process is not successful, the dispute shall be referred to either arbitration or to litigation.
10.5 Where arbitration applies:
10.6 Where litigation applies, either Party may start court proceedings to settle a dispute.
11.1 Provided that all fees and/or other amounts properly due are paid, the Client shall have a licence to copy and use the electronic drawings and documents only for purposes related to construction of the Project or its subsequent use or sale, and they may not be used for reproduction of the design for any part of any extension of the Project or any other project. Such licence is always subject to the details outlined in section 6.3.
11.2 Copying or use of the electronic drawings and documents by any Other Client Appointments providing services to the Project shall be deemed to be permitted under a sub-licence granted by the Client, whether such drawings and documents were issued by the Client or on the Client’s behalf.
11.3 NBA shall not be liable for any use of the electronic drawings, data and documents other than for the purpose for which they were prepared.
11.4 Without prejudice to NBA’s obligations under the Contract, NBA does not warrant, expressly or impliedly, the integrity of any electronic data.
11.5 NBA shall have no liability to the Client in connection with any corruption or any unintended amendment, modification or alteration of the electronic drawings and documents which occurs after they have been issued by NBA.
12.1 Where the Project is for building work to the Client's home, the Client as a consumer has the right to cancel the Contract, for any reason, by sending a notice of cancellation to NBA at any time within 14 days of signing the Agreement.
12.2 The notice of cancellation is deemed to be served as soon as it is posted to NBA or, in the case of an electronic communication, on the day that it is sent to NBA.
12.3 If NBA was instructed to perform any services before the Contract was made or before the end of the 14-day period and the instruction(s) were confirmed in writing, NBA shall be entitled to any fees and expenses properly due before NBA received the notice of cancellation.
Architect / Nigel Bird Architects (NBA): The organisation that the Client appoints to perform the Services.
Note: ‘Architect’ is a legally protected title in the UK, which can only be used by people registered with the Architects Registration Board (ARB), under the Architects Act 1997.
Basic Fee: The fee for the Services excluding VAT and any additional charges, such as expenses, disbursements, etc.
Building Contract: The contract between the Client and the Contractor for the construction of the Project.
CDM Regulations 2015: The Construction (Design and Management) Regulations 2015 and any guidance as issued, amended or replaced from time to time by the Health & Safety Executive, which govern the management of health, safety and welfare for construction projects.
Client: The Party appointing NBA to undertake the Services. This also includes the Client’s Representative where one is appointed by the Client with full authority to act on behalf of the Client for all purposes in connection with the matters set out in the Contract, except where advised to the contrary.
Confidential Information: All information relating to the Project and the Client and NBA’s business and affairs which either Party directly or indirectly receives or acquires from the other Party or any representative of the other Party whether in writing, by electronic mail or verbally and which is not otherwise already in the public domain.
Construction Cost: The Client’s target cost for the building works as specified in the Project Brief, (being the Client’s initial budget), and subsequently the latest estimate approved by the Client or, where applicable, the actual cost of constructing the Project upon agreement or determination of the final account for the Project. The Construction Cost includes the cost of any equipment and/or materials provided or to be provided by the Client to the Contractor for installation as part of the Project, and any direct works carried out by or on behalf of the Client. The Construction Cost excludes VAT, professional fees, the cost of resolution of any dispute, the Client’s legal and in-house expenses and any loss and/or expense payments made to the Contractor or any adjustment for any liquidated damages deducted by the Client.
Construction Phase: The period of time beginning when construction work on a Project starts and ending when construction work in that Project is completed.
Contractor: The party referred to as the Contractor in the Building Contract.
Final Date for Payment: the date, specified in section 5.13, by which a payment that is due shall be paid.
Health and Safety File: The file required by the CDM Regulations 2015, which contains relevant health and safety information needed to allow future construction works, including cleaning, maintenance, alterations, refurbishment and demolition, to be carried out safely.
Notified Sum: The sum set out in a Payment Notice (‘Invoice’) or in a default notice.
Other Client Appointments: other consultants or services appointments which have been, or will need to be, made by the Client to enable NBA to undertake its work in connection with the Project.
Party/Parties: The Client and/or NBA.
Payment Notice (‘Invoice’): A notice that NBA issues to the Client, in accordance with sections 5.10 to 5.15, showing the payment that NBA considers is due and how it was calculated.
Practical Completion: When the works are so certified under the terms of the Building Contract.
Pre-construction Information: Information in the Client’s possession or which is reasonably obtainable by or on behalf of the Client, which is relevant to the construction work and is of an appropriate level of detail and proportionate to the risks involved.
Pre-construction Phase: Any period of time during which design or preparatory work is carried out for a project and may continue during the Construction Phase.
Principal Contractor: A contractor appointed by the Client as Principal Contractor under the CDM Regulations 2015.
Principal Designer: A designer appointed by the Client as Principal Designer under the CDM Regulations 2015.
Project: As described in the Project Brief of the Letter of Engagement.
Project Brief: The Client’s requirements for the Project, as initially set out in the Letter of Engagement, and including any revisions made by NBA and approved by the Client.
Project Programme: The Client’s initial programme for the Project, as outlined in the Letter of Engagement, and including any revisions made by NBA and approved by the Client.
Schedule of Services: The schedule specifying the Services and additional services to be undertaken by NBA in connection with the Project, as outlined in the Letter of Engagement, or as otherwise agreed between NBA and the Client.
Services: The professional services to be performed by NBA specified in the Letter of Engagement, which may be varied by agreement.