1. Definitions

1.1 For the purposes of this Agreement, unless otherwise defined in the covering correspondence, the following expressions have the following meanings

“Additional Services”
any other services reasonably requested by the Client and accepted by the Company in writing, or arising from such circumstances under clause 2.3

“Agreement”
the covering correspondence setting out scope of work and associated fees and these standard terms & conditions

“Client”
the person, company or other body who instructs the Company to carry out services

“Commencement Date”
the date on which the Company commences work on the Project

“Company”
tor&co ltd

Limitation Period

The Limitation Period ends six years after the earlier of:

1. the termination or conclusion of the employment of the Company under this Agreement;

2. the date of completion of the Services by the Company;

3. abandonment of the Services; or

4. termination of this Agreement.

“Project”
project to which the Agreement and Services relate

“Services”
the normal consultancy services set out in the covering written correspondence identifying scope of work and any Additional Services

1.2 Words in the singular include their equivalent in the plural and vice versa.

1.3 The terms of this Agreement shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Client, trade custom, practice or course of dealing.

2. Company’s duties

2.1 The Company will carry out the Services for the Client with reasonable skill, care and diligence. Other than those specified in the Agreement, no other warranty or representation, express or implied, is provided or intended to apply to the Services and shall not do so.

2.2 The Company will endeavour to perform the Services in accordance with the terms of the Agreement.

2.3 The Company will advise the Client if it becomes necessary to vary the Services for any reason as a result of, but not limited to, site conditions, new information or extended timescales. The Client will pay the cost of the Additional Services undertaken at the Company’s standard rates or such rates/fees as otherwise agreed in writing. Additional services will include those instructed by the Client in relation to the project falling outside the scope of the Agreement.

2.4 The Company will carry out a potential ‘conflict of interest’ check when relevant, with reference to the RTPI definition of such, and will inform the Client at the earliest opportunity if the Company considers a conflict to be present.

3. Client’s duties

3.1 The Client will co-operate with the Company and acknowledges that in preparing its proposal and carrying out the Services the Company has and continues to rely on the Client to make full disclosure of all known information in relation to the Project.

3.2 The Client will promptly pass to the Company in writing any new or revised information or data pertaining to the Services being performed by the Company for the Client.

3.3 The Client will pay any fees required under the Agreement promptly and, in any event, pursuant to clause 4.

4. Fees and Payment Terms

4.1 Where the Services or part of them will be charged on a time and expenses basis, invoices will be calculated according to the Company’s standard time charges, unless otherwise agreed, together with disbursements for travel, subsistence, printing and other reasonable expenses. Any time charges and suggested fees contained or referred to in the Company’s written proposal relate to fee rates and price schedules as at that date only. Fee proposals are subject to review in the event of delay, suspension or material extension of the time frame envisaged for provision of the Services under the Agreement. Fees for Additional Services will be charged on a time and expenses basis, unless otherwise agreed.

4.2 Invoices will be submitted monthly, for time spent on the project in the previous month, or in accordance with any written agreed schedule. VAT will be applied at the standard rate to all invoices. Payment is due on receipt of an invoice and all accounts must be settled in full within 30 days (without retention, withholding, deduction or set off), unless otherwise agreed in writing. Late payment interest may be charged and shall be calculated in accordance with the Late Payments of Commercial Debts (Interest) Act 1998 and at the relevant reference rate plus the statutory rate of interest. All queries relating to invoices must be raised within 10 days of receipt and, if not, the invoices will be deemed to be agreed by the Client.

4.3 The Company may by notice to the Client suspend its performance of the Services if an invoice is not paid within 60 days of the date of submission by the Company.

5. Copyright

5.1 All intellectual property rights and copyright associated with the Company’s Services shall remain vested in and the property of the Company. A specific licence for use may be granted by the Company. Any such licence is to be strictly limited to issues associated with the Project or Services. The Company will not accept any liability whatsoever for any use of the materials to which the licence is granted for any purpose other than the original intent. In the event that the Client is in default of payment of monies due to the Company such licence is agreed to be immediately withdrawn and revoked.

6. Indemnity and limitation of liability

6.1 Subject to clauses 6.2, 6.5, 6.6 and 14.3, the Company acknowledges its liability to the Client for any reasonably foreseeable losses, damages, costs, charges or expenses that may be incurred or become due or payable by the Client by reason of the negligence of the Company in the performance of the Services under the Agreement provided that the Company shall only be liable for its due share thereof and the Client shall mitigate any such losses, damages, charges, costs and expenses in so far as reasonably possible.

6.2 The maximum liability of the Company under the Agreement or otherwise in relation to the Project shall be a maximum of £2m as the insured sum under our Professional Indemnity Insurance Policy from the date of the Agreement. The Company shall have no liability for claims made or notified to the Company whether in writing or otherwise after the expiry of the Limitation Period.

6.3 The limit in clause 6.2 shall apply however that liability arises, including, but not limited to, liability arising by breach of contract, arising by tort or arising by breach of statutory duty.

6.4 Notwithstanding clause 6.2, nothing in the Agreement shall exclude or limit the Company’s liability for:

6.4.1 death or personal injury caused by the Company’s negligence; or

6.4.2 fraud or fraudulent misrepresentation.

6.5 In no circumstances shall the Company be liable to the Client for or in respect of indirect or consequential losses, damages or expenses.

6.6 No proceedings may be commenced against the Company under the Agreement or otherwise in relation to the Project or any part thereof outside of the Limitation Period.

6.7 The Company shall maintain the Professional Indemnity Requirements provided such insurance is available in the market place at commercially reasonable rates. The Company shall provide the Client with evidence of such insurance on an annual basis upon request.

6.8 The Client agrees not to pursue any claim or other issue against an individual employee of the Company who has been engaged in carrying out the Company’s obligations under the Agreement, whether such employee is named expressly and referred to in the Agreement or not. The Client acknowledges that such employees are entitled to rely on and enforce this provision of the Agreement between the Company and the Client pursuant to the Contracts (Rights of Third Parties) Act 1999.

7. Confidentiality

7.1 Each party will treat any information of a confidential nature relating to the other party which it comes across as a result of the Agreement, and any information about the Services, as confidential.

7.2 Any report issued by the Company will be addressed and delivered to the Client only unless otherwise agreed or intended. The parties will keep confidential any such report and neither will make it available or disclose its substance or contents to any third party.

7.3 Notwithstanding the foregoing, the Company reserves the right to use an outline description of the work in its promotional literature.

7.4 This clause 7 shall not prevent the publication or disclosure of any such information once it has come within the public domain through no fault of the party which would otherwise owe the duty of confidentiality, nor of information that has been lawfully acquired on a non-confidential basis, nor of information published or disclosed under a duty or obligation owed to or imposed by any court, regulatory or governmental authority or body.

8. Warranties

8.1 Warranties for the benefit of any third party will not be provided unless agreed in writing before the Commencement Date and may be subject to an additional fee.

9. Termination or suspension

9.1 If either party shall become bankrupt, go into liquidation (other than voluntary liquidation for the purposes of amalgamation or reorganization without insolvency only), have a receiver, administrative receiver or administrator appointed over any part of its business or assets, enter into a composition with its creditors or otherwise become, in the reasonable opinion of the other, insolvent (the “Bankrupt Party”), the other party shall be entitled forthwith by notice to the Bankrupt Party to suspend its performance of the Services or terminate the Agreement with immediate effect.

9.2 If the Client fails to pay any sum due under the Agreement within 60 days of the date of submission of the Company’s invoice, the Company may by notice to the Client suspend its performance of the Services and, at the same or a later time, terminate the Agreement with immediate effect.

9.3 If the Client breaches a material term of the Agreement which remains unremedied for 15 days after service of written notice on it specifying such a breach, or if the breach is not capable of remedy or it appears, in the absolute discretion of the Company, that the Client is in breach of a material provision of any statute, statutory instrument or common law, the Company may by notice in writing to the Client suspend the Services and, at the same or a later time, terminate the Agreement with immediate effect.

9.4 If circumstances or events beyond the reasonable control of the Company prevent the proper performance of its obligations under the Agreement for more than 90 days, then either the Client or the Company may immediately terminate the Agreement by written notice to the other.

9.5 If the Company or Client terminates the Agreement, the Client shall pay to the Company such sums as are payable in respect of work done and costs incurred during the period up to the date of termination and such sums or costs as are reasonably expended or incurred by the Company in bringing the Services to an end in a prompt and orderly fashion.

9.6 If the Services are suspended and the Company is required to perform any Additional Services or incur additional costs in connection with the suspension or resumption of the Services, the Client shall pay the Company the sum of the additional costs within 28 days of the suspension or resumption.

9.7 The termination of the Agreement shall not affect or prejudice the obligations, rights, claims or defences of either party accrued up to the date of termination.

9.8 Notwithstanding termination of this Agreement, this clause 9 and clauses 1, 3, 4, 5, 6, 7, 11 and 12 shall survive termination.

10. Assignment of Agreement

10.1 Neither party may assign, sell, novate, sub-let or otherwise dispose of the Agreement or any part thereof without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.

11. Data Protection

11.1 The Company undertakes to abide at all times by the Data Protection Acts 1998 and 2018 and all other relevant legislation and regulations in relation to the discharge by it of its obligations under the Agreement.

12. Company Personnel

12.1 It is a condition of the Agreement that the Client will not directly or indirectly approach or contact with the intention of employing or retaining any employee of the Company engaged on or connected with the Services without the prior written agreement of the Company, in the Company’s absolute discretion. This restriction is to apply at all times during the period of provision of Services and for a period of one year immediately following the completion of the Services.

13. Disputes

13.1 The parties shall attempt to settle any disputes or differences which arise between them out of or in connection with the Agreement or the Services by way of negotiation between them in good faith, before resorting to legal proceedings. In the event a dispute cannot be resolved by negotiations, the parties may refer the dispute to adjudication under the Scheme for Construction Contracts 1998, as amended.

14. General

14.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.

14.2 Subject to clause 13, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

14.3 The Company shall not be liable for any breach of any term of the Agreement that is the result of any cause beyond its reasonable control.

14.4 All notices under the Agreement shall be in writing and may be served by either party upon the other either by sending them by first class post addressed to the other party at its last known address, or by electronic mail to the correct e-mail address valid at the time the email was sent.  Any such notice so sent, in the absence of sufficient evidence to the contrary, shall be deemed to have been received within 72 hours of posting by first class post, or within 24 hours if sent by electronic mail. These provisions relating to service do not apply to the service of any proceedings or other documents in any legal action or, where applicable, adjudication.

14.5 The Agreement constitutes the entire agreement between the Company and the Client with respect to the Services and the Project and supersedes any previous agreements between the Company and the Client in relation thereto.

14.6 Subject to clause 6.8, no third party is intended to have any rights to rely on or enforce any terms of this Agreement under the Contracts (Rights of Third Parties) Act 1999

14.7 The Agreement, including these standard terms and conditions, shall not be varied without the written consent of both parties.

14.8 If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If a provision of the Agreement (or part of any provision) is found to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.