“Consultant” means Carbon Plan Ltd and its legal successors.
“Client” means the person, firm, company or organisation for whom the Consultant is performing the Services.
“Agreement” means the contract referred to in Clause 2.
“Services” means the services to be performed by the Consultant in accordance with the Proposal.
“Project” means the project or works for which the Client has commissioned the Services.
“Proposal” means in the Proposal submitted by the Consultant setting out the services to be performed by the Consultant for the Project.
The Client’s acceptance of the Proposal or the commencement by the Consultant of any of the Services, shall constitute a binding contract between the Client subject to and comprising of the Proposal and these terms and conditions. In the event of any conflict, the Proposal shall prevail over these terms and conditions.
- PERFORMANCE OF SERVICES AND SCOPE
- (i) The Consultant shall perform the Services using the degree of skill care and diligence to be expected from a consultant experienced in the provision of services the same as the Services for projects of similar scope size and complexity to the Project.
- (ii) The Consultant shall proceed with the performance of the Services in a timely manner and shall use reasonable endeavours to comply with any programme, timetable or schedule of deliverables as agreed between the Client and the Consultant.
- (iii) The fee contained in the Proposal is for the Services set out in the Proposal. If not already contained in the Proposal the Consultant and the Client shall agree as an initial activity an integrated Project Services programme (“Programme”) to include the activities of all the parties to the Project relevant to the Services. The Programme shall identify the key dates for the Client’s delivery of final information to the Consultant so as to enable the Consultant to carry out the Services in an efficient once through manner facilitating achievement of Programme anticipated delivery dates.
- (i) The Consultant shall be liable to pay compensation to the Client arising out of or in connection with this Agreement only if a breach of the duty of care in Clause 3(i) is proven against the Consultant.
- (ii) Subject to Clause 4 (iii) and 4 (iv), and notwithstanding any other term to the contrary in this Agreement or any related document and whether the cause of action for any claim arises under or in connection with this Agreement in contract or in tort, including claims for misrepresentation, in negligence or for breach of statutory duty or otherwise, in relation to any and all causes of action as aforesaid the total liability of the Consultant in the aggregate for all claims shall be limited to a sum equivalent to 110% of
- (iii) Further and without prejudice to the aforesaid limit of liability any such liability of the Consultant for any loss or damage (“the loss or damage”) in respect of any claim or claims shall be limited to such sum or sums as it would be just and equitable for the Consultant to pay having regard to the Consultant’s responsibility for the same and on the basis that:
- a) all other parties appointed or to be appointed by the Client to perform related services in connection with the Project shall be deemed to have provided undertakings on terms no less onerous than this Agreement and shall be deemed to have paid to the Client such contribution as it would be just and equitable for them to pay having regard to their responsibility for the loss or damage; and
- b) it shall be deemed that all such other parties have not limited or excluded their liability to the Client for the loss or damage in any way which may be prejudicial to the Consultant’s liability under this clause.
- (iv) Save for the Client’s liability to pay the Consultant’s fees and any interest due for late payment, neither party shall be liable to the other for:-
(a) any indirect, special or consequential loss;
(b) any loss of profit, loss of business or business opportunity, loss of goodwill, loss of anticipated savings, loss of production, loss of contracts, loss of use,.
- (v) No action or proceedings under or in connection with this Agreement whether for loss or damage or otherwise may be commenced against the Consultant after the expiry of 6 (six) years from completion of the Services.
- (vi) Nothing in this clause shall operate to exclude or limit either party’s liability for death, personal injury or fraud.
- (vii) The Consultant at its discretion may issue warranties to third parties but subject always to a condition that the aggregate liability of the Consultant arising across all warranties and this Agreement shall not exceed the total liability stated in this Clause 4.
The Consultant shall maintain public liability and professional indemnity insurance sufficient to cover the Consultant’s liabilities under this Agreement provided always that such insurance is available in the UK market at commercially reasonable rates and terms and subject to all normal exceptions exclusions and limitations to the scope of cover generally in operation at the time of renewal.
- CLIENT'S OBLIGATIONS
The Client shall promptly and without charge provide to the Consultant all information, further information, approvals, consents and instructions as requested by the Consultant in relation to the Services so as to allow the Consultant to seek to achieve any anticipated timetable for the execution of the Services. Notwithstanding any approval or consent by the Client in respect of the Services, the Consultant shall not be relieved thereby of any obligation or liability arising under this Agreement save to the extent that the Consultant shall be entitled to rely upon any instruction or direction issued by the Client in respect to the Services. The Client acknowledges that the Consultant will rely on the accuracy, sufficiency and consistency of all information provided to the Consultant by or on behalf of the Client.
(i) The Client shall pay the Consultant for the Services fees as set out in the Proposal and this Agreement. If the Consultant performs any additional services or if the Services are delayed or disrupted for reasons beyond the reasonable control of the Consultant then the Consultant shall be entitled to such additional fees and additional time for performance as is fair and reasonable in all the circumstances. The Consultant may render an invoice at monthly intervals for Services. Payment of an invoice shall become due upon the date of issue of such invoice by the Consultant. The final date for payment shall be 21 days after payment becomes due. If payment is not received by the final date for payment the Consultant may suspend performance of the Services until such time as payment is received and/or charge interest on the overdue payment at the rate of 3% above the base rate of National Westminster Bank Plc compounded at weekly rests from the final date for payment until actual payment.
(ii) The Client shall not withhold any payment of any sum or part of a sum due to the Consultant under the Agreement by reason of claims or alleged claims against the Consultant. All rights of set off at common law, in equity or otherwise which the Client may otherwise be entitled to exercise are hereby expressly excluded.
- INTELLECTUAL PROPERTY RIGHTS
The legal and beneficial ownership of all intellectual property prepared or developed by or on behalf of the Consultant in connection with the Project shall remain vested in the Consultant. Upon full payment of the fees due under this Agreement, the Consultant shall grant to the Client an irrevocable, royalty-free, non-exclusive licence to use all rights, titles and interest in any such intellectual property in connection with the construction, completion, maintenance, reinstatement, repair, letting, promotion and/or advertisement (whether by the Client or by a third party authorised by the Client) of the Project. The Consultant shall have no liability for any use of the intellectual property other than for the purposes for which it was originally intended.
- ETHICAL CONDUCT OF THE PARTIES
In the performance of their obligations under or in connection with this Agreement the parties, their agents and employees shall comply with all applicable laws, rules and regulations including but not limited to the Prevention of Corruption Acts 1889 to 1916 and the Bribery Act 2010.
If a party commits a material breach of this Agreement and despite a notice from the non-defaulting party specifying the breach and requiring its remedy, the defaulting party fails to remedy such breach within 28 days of the notice then the non-defaulting party may give notice to the defaulting party terminating the Agreement with immediate effect. In the event of termination under this Clause all Services performed but un-invoiced shall be invoiced immediately by the Consultant and all invoices of the Consultant shall be payable immediately as at the date of termination.
- DISPUTE RESOLUTION
The parties shall attempt to resolve any difference or dispute between them by mutual agreement. If such cannot be resolved then any dispute arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the LCIA Rules current at the time of the referral under this clause. Such Rules are deemed to be incorporated by reference into this clause. The law governing the arbitration shall be that of England and Wales, the number of arbitrators shall be one and the seat of the arbitration shall be London, England.
- COMPLIANCE WITH LAWS
This Agreement shall be governed by and construed in accordance with the law of England and Wales.
- WHOLE AGREEMENT
The Agreement so formed shall supersede all previous understandings, commitments or agreements whether written or oral between the Client and the Consultant relating to the subject matter hereof and may be amended only in writing signed by duly authorised representatives of both parties.
- THIRD PARTY RIGHTS
No person or entity shall have any rights in relation to this Agreement, whether as third parties or otherwise, save the parties to this Agreement.
Should any term or condition of this Agreement be held to be unenforceable then such term or condition shall be disregarded and the remaining terms and conditions shall remain in full force and effect.