terms of business
Obligations of the Engineer
- Davidson Walsh Ltd will perform the services outlined in our letter of Appointment.
- We shall exercise reasonable skill, care and diligence in the performance of our services.
- All fees and expenses are subject to VAT at the standard rate.
- All expenses and disbursements will be recovered at cost.
- Our terms are for payment within 14 days of the date of the invoice. We reserve the right to charge interest on late payment of 4% per annum above Bank of England Base Rate.
Third Parties, Warranties and Liabilities
- Nothing in the Agreement with you, “The Client” confers or purports to confer on any third party any benefit or any right to enforce any terms of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
- The Client confirms entering into this Agreement wholly on his or her own behalf and not on behalf of or for the benefit of any other party and agrees that in the event of any claim for breach of contract arising out of or in connection with this Agreement he or she will be entitled to recover from us only the losses, if any, they have themselves suffered.
- No warranties for the benefit of third parties will be entered into unless these warranties are agreed at the time of our appointment. No assignments shall normally be allowed for such agreements.
- This agreement is non-assignable without our specific permission.
- Notwithstanding otherwise anything to the contrary contained in this Agreement, our liability for any claim or claims shall be limited to such sum as we ought reasonably to pay having regard to our responsibility for the loss or damage suffered as a result of the occurrence or series of occurrences in question and on the assumptions that:
- all Other Consultants and all Contractors and Sub-Contractors have provided contractual undertakings on terms no less onerous than those set out in this agreement to the Client in respect of the carrying out of their obligations;
- there are no limitations on liability nor joint insurance or co-insurance provisions between the Client and any other party referred to in this clause; and
- all Other Consultants and all Contractors and Sub-Contractors 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.
- Notwithstanding anything to the contrary in the letter of appointment, our liability under or in connection with this appointment whether in contract or in tort [delict], in negligence, for breach of the statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed in aggregate a multiple of ten times the total of the fees payable to Davidson Walsh Limited by [the Client].
- Further and notwithstanding anything to the contrary contained in the letter of appointment and without prejudice to any provision in this appointment whereby liability is excluded or limited to a lesser amount, our liability under or in connection with this appointment whether in contract or in tort [delict], in negligence, for breach of statutory duty or otherwise for any claim or series of claims arising out of the same occurrence or series of occurrences shall not exceed the amount, if any, recoverable by [the Consultant] by way of indemnity against the claim or claims in question under Professional Indemnity Insurance taken out by [the Consultant] and in force at the time that the claim or claims 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 [the Consultant] having been in breach of his obligations to maintain Professional Indemnity Insurance under [this Agreement] or the terms of any Insurance maintained in accordance therewith or having failed to report the claim or such circumstances to the Insurers in question timeously.
- No action or proceedings for any breach of this Agreement shall be commenced against us after the expiry of 6 years from the date of practical completion of the project or completion of a report by us.
Construction (Design and Management)Regulations
- Construction projects are subject to the Construction (Design and Management) Regulations 2015 (CDM). Unless specifically stated in our proposal and covered in our appointment letter we will not act as Principal Designer for the project, whether notifiable or not and our appointment assumes that the Client has separately made the necessary arrangements for the appointment of all required duty holders.
- We will assume the duties of “designer” in relation to the CDM Regulations once appointed on both Notifiable and non-notifiable projects.
- The Client should be aware that the Party Wall etc. Act 1996 applies to works involving a party wall or excavations near to a party wall, which stipulates the actions that need to be taken prior to work commencing. We do not act as Party Wall Surveyors and in such cases it is a condition of our appointment that an independent consultant is appointed by the client to deal with all aspects of the Party Wall Act.
- Subject to Licence below, the copyright of all drawings, reports, specifications, calculations and other documents provided by Davidson Walsh Ltd shall remain vested in us. The Client upon payment of fees due, shall have a licence to copy the drawings and documents and to use such drawings and other documents for the purpose of construction, extending, repairing and maintaining the works. The licence to copy or use the documents does not include a licence to produce the designs contained therein for any extension of the project. The drawings and documents may not be used for any other project. Davidson Walsh will not be liable for the use by any person of any such drawings and documents for any purpose other than that for which they were prepared.