| 1 |
|
INTERPRETATION |
| 1.1 |
|
In these conditions (the "Conditions"), unless the context requires otherwise: |
| 1.1.1 |
|
the following words and expressions have the following meanings: |
| |
|
|
| |
|
"Fees" means the fees for the Services as set out in the Letter of Engagement;
"Commencement Date" means the date of the Letter of Engagement or such other date as is agreed by the parties in writing;
"Contract" means any agreement between DPP and the Client for the Services comprising the signed and completed Letter of Engagement, these Conditions and any
other document which DPP and the Client agrees in writing forms part of the Contract;
"DPP" means DPP Consulting Limited, a limited company registered in England and Wales with registered number 7791137 whose registered office is at
West One, 63-67 Bromham Road, Bedford, MK40 2FG;
"Client" means the person, firm or company signing or validly authorising the signature of a Letter of Engagement;
"Intellectual Property Rights" means all intellectual property rights, whether registered or unregistered (including any application), including copyright, know-how,
confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, design rights, database rights and all rights
in the nature of unfair competition rights or rights to sue for passing off;
"Letter of Engagement" means the letter from DPP to the Client, or any other form of communication from DPP to the Client, within which the Services are set out;
"Property" means the site in respect of which the Services are to be provided as specified in the Letter of Engagement;
"Services" means the services to be provided by DPP to the Client as set out in the Letter of Engagement;
"Termination" has the meaning given it in condition 7;
"VAT" means value added tax chargeable for the time being and any similar replacement or additional tax;
"Work" means any work produced by DPP under the Contract. |
| |
|
|
| 2 |
|
TERM AND APPOINTMENT |
| 2.1 |
|
Any signature by the Client on the Letter of Engagement or the Client's permission for DPP to commence the provision of the Services, shall signify the Client's unconditional agreement
to and acceptance of DPP's appointment to provide the Services in accordance with the Contract. |
| 2.2 |
|
The Contract constitutes the whole agreement between DPP and the Client. No other terms apply to the supply of the Services unless clearly agreed to form part of the Contract by
DPP in writing. |
| 2.3 |
|
Unless otherwise agreed, in the event of any inconsistency between the terms of the Letter of Engagement and the Conditions (and any other document forming part of the Contract),
the Conditions shall prevail. |
| 2.4 |
|
Any variation to the Letter of Engagement or the Conditions and any representations made by any party about the Services shall have no effect unless expressly agreed in writing by
DPP. |
| |
|
|
| 3 |
|
CLIENT OBLIGATIONS |
| 3.1 |
|
Prior to the Commencement Date: |
| 3.1.1 |
|
the Client shall inform DPP of any information, actions or precautions that DPP should be reasonably made aware of in order to enable DPP to commence the Services on the
Commencement Date; and |
| 3.1.2 |
|
to the extent such access is requested by DPP, the Client shall allow DPP access to the Property to enable DPP to familiarise itself with the Property and the Services to be carried out at
the Property. |
| 3.2 |
|
The Client shall ensure that the Property remains safe and suitable at all relevant times to enable DPP, or its employees, agents or sub-contractors to provide the Services. |
| 3.3 |
|
The Client shall: |
| 3.3.1 |
|
co-operate with DPP in all matters relating to the Services; |
| 3.3.2 |
|
provide and keep provided, DPP, in a timely manner and at no charge, with such information and materials as DPP may reasonably require to allow it to comply with its obligations
under the Contract; |
| 3.3.3 |
|
allow access to such facilities as are requested by DPP for the purpose of DPP's efficient provision of the Services. |
| 3.4 |
|
If DPP's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, DPP shall have no
liability for the consequences suffered by the Client and DPP shall be granted additional reasonable time to complete the Services. |
| |
|
|
| 4 |
|
DPP OBLIGATIONS |
| 4.1 |
|
DPP shall provide the Services in accordance with the Contract and the Client's reasonable requirements, provided that such requirements are consistent with the Contract. |
| 4.2 |
|
DPP shall, to the extent that it is practical to do so, observe the reasonable and proper health and safety rules and regulations and security requirements that it is aware apply at the
Property. |
| 4.3 |
|
On the Client's request, DPP shall confirm its public liability insurance cover. |
| 4.4 |
|
DPP may review its charges periodically and shall notify the Client of any such increase in its charges. DPP shall also notify the Client of any alteration to the Fees applying as from the
date the change in its charges occurs. The Fees shall, to that extent, be deemed to be varied in accordance with such notification. |
| |
|
|
| 5 |
|
ORDERING |
| 5.1 |
|
On the Client wishing to order the provision of the Services, the Client shall notify DPP and provide DPP with: |
| 5.1.1 |
|
details of the Services the Client requires DPP to carry out; |
| 5.1.2 |
|
the date upon which DPP is to begin providing the Services; and |
| 5.1.3 |
|
the deadline for the completion of such Services to be provided. |
| 5.2 |
|
DPP shall then without unreasonable delay provide the Client with a Letter of Engagement confirming: |
| 5.2.1 |
|
details of the Services that DPP has agreed to provide to the Client; |
| 5.2.2 |
|
timescales DPP will provide the Services in (where appropriate); and |
| 5.2.3 |
|
Fees payable by the Client for the Services. |
| 5.3 |
|
The Client's subsequent signature of the Letter of Engagement provided or the receipt of the Client's purchase order shall constitute the Client's acceptance of DPP's offer to provide
the Services. If, after 14 days of the date of the Letter of Engagement should DPP have failed to receive a signed copy of the Letter of Engagement from the Client, DPP will assume
that all the details are acceptable to the Client. DPP will confirm this to the Client in writing. |
| |
|
|
| 6 |
|
INVOICING AND PAYMENT |
| 6.1 |
|
The Client shall pay in full DPP's invoices within 28 days of the date of the invoice. However, if an invoice passes on the costs of work or materials from a sub-contractor or supplier to
DPP, such invoices must be paid immediately by the Client. If any invoice is overdue for payment, DPP may suspend work until payment is made in full, may require payment in
advance for all future Fees and shall be entitled to reasonable additional time to complete the Services. Unless otherwise stated, all Fees shall be exclusive of any applicable VAT and
disbursements. |
| 6.2 |
|
If any invoice is overdue for payment, DPP is entitled to charge interest on such outstanding amounts at a rate of 4 per cent above the base rate of HSBC Bank plc, from the date on
which payment falls due until such time as payment is received in full. |
| 6.3 |
|
Where DPP agrees to provide a service which is in addition to those set out in the Letter of Engagement, those services shall be supplied on the basis that DPP's then standard rates of
charges apply to such service unless otherwise agreed in writing. |
| 6.4 |
|
Without prejudice to any right to claim for interest, all sums payable to DPP under the Contract shall become due immediately upon Termination of the Contract for any reason. |
|
|
|
| 7 |
|
TERMINATION |
| 7.1 |
|
Either party may terminate the Contract at any time by giving 7 days written notice to the other party. |
| 7.2 |
|
Without prejudice to any other rights or remedies to which it may be entitled, either party may by written notice to the other party terminate the Contract at any time with immediate
effect, if the other party commits a material breach of any of the terms of the Contract and, in the case only of such a breach being capable of remedy, fails to remedy that breach
within a further 3 days of being specifically required in writing so to do by the other party. |
| |
|
|
| 8 |
|
CONSEQUENCES OF TERMINATION |
| 8.1 |
|
On Termination, for any reason (notwithstanding condition 6), DPP may submit invoices in respect of: |
| 8.1.1 |
|
Services supplied; and/or |
| 8.1.2 |
|
in respect of which DPP has made a commitment in order to be able to comply with the Contract, but for which no invoice has been submitted;
which shall be payable by the Client immediately upon receipt. |
| 8.2 |
|
The accrued rights of the parties at Termination and any provision of the Contract expressly stated to survive or implicitly surviving Termination, shall not be affected by Termination. |
| |
|
|
| 9 |
|
FORCE MAJEURE |
| 9.1 |
|
DPP shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts,
events, omissions or accidents beyond its reasonable control (including strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war,
riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or
default of suppliers or subcontractors). |
| |
|
|
| 10 |
|
PROPERTY |
| 10.1 |
|
Subject to 10.2, the Client shall permit DPP, its employees and its agents to access the Property solely for the purposes of delivering the Services. |
| 10.2 |
|
DPP shall notify the Client with details of such persons it wishes to have access to the Property. |
| 10.3 |
|
All rights of access given in respect of the Property by the Client to DPP, its employees and agents will terminate immediately upon the expiry or Termination of the Contract. |
| 10.4 |
|
The Client shall notify DPP in a timely manner of the details of the Client's Health and Safety Policy and any other policies (in force from time to time) which apply to persons permitted
access to the Property and DPP shall communicate such policies to such persons permitted access to the Property. |
| 10.5 |
|
Access to the Property will be subject to DPP’s compliance with the policies referred to in this condition 10 and the Client reserves the right to exclude any person from the Property in
the event of an actual or threatened breach of such condition or such policies. |
| |
|
|
| 11 |
|
INTELLECTUAL PROPERTY RIGHTS |
| 11.1 |
|
The Intellectual Property Rights in any unique elements of the Work (to the extent an employee of DPP is the author) shall vest in the Client on payment of any invoices in full and
cleared funds. Until all invoices have been paid, DPP retains all Intellectual Property Rights in the Work. |
| 11.2 |
|
DPP shall indemnify the Client against all damages, losses and expenses reasonably and directly arising as a result of any proven claim against the Client that the Intellectual Property
Rights of a third party have been infringed by the production or subsequent use by the Client of the Work. |
| 11.3 |
|
To the extent that the Services incorporate work or materials submitted by the Client, the Client shall indemnify DPP against all damages, losses and expenses arising as a result of any
action or claim that the Intellectual Property Rights of a third party have been infringed by the use by DPP of such work or materials. |
| 11.4 |
|
The indemnity provided for by conditions 11.2 and 11.3 are subject to the following conditions: |
| 11.4.1 |
|
the indemnified party must, within 7 business days of receiving notice of an action or claim notify the other party in writing of the same; |
| 11.4.2 |
|
the indemnified party makes no admissions or settlements without the other party's prior written consent; |
| 11.4.3 |
|
the indemnified party gives the other party all information and assistance that the other party may reasonably require; and |
| 11.4.4 |
|
the indemnified party allows the other party complete control over the litigation and settlement of any action or claim. |
| 11.5 |
|
The indemnities in conditions 11.2 and 11.3 may not be invoked where the action or claim arises out of the indemnifying party's compliance with any designs, specifications or
instructions of the indemnified party. |
| 11.6 |
|
Once the Intellectual Property Rights have vested in the Client pursuant to condition 11.1 DPP shall not have any rights in any data or other written or graphical information which is
produced under the Contract for the Client. |
| |
|
|
| 12 |
|
LIMITATION OF LIABILITY |
| 12.1 |
|
This condition 12 sets out the entire financial liability of DPP to the Client (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of: |
| 12.1.1 |
|
any breach of the Contract; |
| 12.1.2 |
|
any representation, tortuous act or omission (including negligence) arising under or in connection with the Contract. |
| 12.2 |
|
DPP shall have no liability in respect of a claim made by the Client in relation to Services provided to the Client unless the Client informs DPP in writing of the subject matter of the
claim within 14 days of the matter arising and where appropriate gives DPP a reasonable time to remedy the matter. |
| 12.3 |
|
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. |
| 12.4 |
|
Nothing in the Contract limits or excludes the liability of DPP: |
| 12.4.1 |
|
for death or personal injury resulting from DPP's negligence; or |
| 12.4.2 |
|
for any damage or liability incurred as a result of fraud or fraudulent misrepresentation by DPP. |
| 12.5 |
|
Subject to conditions 12.2 and 12.4, DPP shall not be liable, whether in contract or tort (including for negligence or breach of statutory duty), misrepresentation or otherwise for: |
| 12.5.1 |
|
loss of profits; or |
| 12.5.2 |
|
loss of business; or |
| 12.5.3 |
|
depletion of goodwill and or similar losses; or |
| 12.5.4 |
|
loss of anticipated savings; or |
| 12.5.5 |
|
loss of goods; or |
| 12.5.6 |
|
loss of contract; or |
| 12.5.7 |
|
loss of use; or |
| 12.5.8 |
|
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
whatsoever (and howsoever) caused which arise out of or in connection with the Contract. |
| 12.6 |
|
DPP's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or
contemplated performance of the Services shall be limited to the maximum liability covered by DPP's insurance cover. |
| |
|
|
| 13 |
|
ACKNOWLEDGEMENT |
| 13.1 |
|
The parties acknowledge that DPP is entitled to rely on any documents from, or statements made by or on behalf of, the Client as being true, complete and accurate. |
| |
|
|
| 14 |
|
DISPUTE RESOLUTION |
| 14.1 |
|
In the event of any dispute arising between the parties in connection with the Contract which is not resolved between the parties within 30 days of the dispute arising, such dispute
shall be referred to an independent person to be appointed (on the application of either party) by the President from time to time of the Royal Town Planning Institute (the "Expert"),
who shall decide upon the disputed matter. The decision of the Expert shall be final and binding on the parties and the costs of the Expert shall be borne in such proportions as the
Expert may determine to be fair and reasonable in the circumstances. |
| |
|
|
| 15 |
|
SET OFF |
| 15.1 |
|
Where either party has incurred any liability to the other party, whether under the Contract or otherwise, each party may set off the amount of such liability against any sum that would
otherwise be due to the other party under the Contract. |
| |
|
|
| 16 |
|
SEVERANCE |
| 16.1 |
|
If any provision (or part provision) of the Contract shall be found (including after Termination) by any court or administrative body of competent jurisdiction to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions or the rest of the provision (as the case may be) of the Contract, which shall remain in
full force and effect. |
| 16.2 |
|
If any provision (or part provision) of the Contract is so found to be illegal, invalid or unenforceable but would be legal, valid or enforceable if some part of it were to be deleted or
modified, such provision (or part provision) shall apply with such deletion(s) and/or modification(s) (as the case may be) as may be necessary to make it legal, valid and enforceable. |
| |
|
|
| 17 |
|
WAIVER AND REMEDIES |
| 17.1 |
|
The failure (including after Termination) by either party to exercise or any delay in exercising any right, power or remedy whether provided by the Contract or otherwise does not
constitute a waiver of or impair such right, power or remedy or constitute a waiver of any other right, power or remedy. The rights and remedies of either party provided in the
Contract are not exclusive of any rights or remedies provided by law. |
| |
|
|
| 18 |
|
NOTICES |
| 18.1 |
|
All notices given by either party to the other pursuant to the Contract shall be in writing. |
| 18.2 |
|
Notices shall be deemed to have been duly given by one party to the other: |
| 18.2.1 |
|
when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the receiving party; |
| 18.2.2 |
|
when sent, if transmitted by fax or email and a successful report or return receipt is generated; or |
| 18.2.3 |
|
on the third business day following mailing, if mailed by national ordinary mail, postage prepaid
providing in each case such notice is properly addressed to the receiving party's address, email address, or facsimile number as provided to the other party from time to time. |
| |
|
|
| 19 |
|
THIRD PARTY RIGHTS |
| 19.1 |
|
The Contract are made for the benefit of the parties and their successors and permitted assigns and are not intended to benefit or create any right enforceable by any other person
(whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise). |
| |
|
|
| 20 |
|
GOVERNING LAW AND JURISDICTION |
| 20.1 |
|
The Contract and any dispute or claim arising out of or in connection with them or their subject matter shall be governed by and construed in accordance with the laws of England and
the parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or their subject matter. |
|
|
|