Dzign House Architecture ltd (DHA) Terms of Engagement/Terms and Conditions
Definitions
Where defined terms are used in this Agreement they are distinguished by an initial written correspondence (letter, text or email). The following definitions apply to all
documents compromising this Agreement and are in addition to those set out elsewhere in this Agreement.
Brief means the latest statement of requirements for the Project issued or approved by the Client:
• At inception, any initial statement by the Client
• After clarification of the objectives, requirements or timelines – an updated Brief; and
• Any subsequent development into the Brief.
The Brief shall include any information or drawings prepared by or on behalf of DHA and approved by the Client during the development
of the Brief.
Client means the person or organisation who purchases the Services from the DHA and whose details are set out in the Letter of
Appointment
Collaborate means to co-operate with and to provide to or receive from Other Persons information reasonably necessary, as and when
requested, for performing the Services or for such Other Persons to carry out their work or services, to consider and, where competent
to do so, to comment on such information.
Confidential information means all information relating to the Client’s and DHA’s business and affairs which either party directly or
indirectly acquires from the other party or any representative of the other party either in writing or verbally.
Construction Cost means:
• The Client’s target cost for constructing the Project as specified in the Project Data or where no such amount is specified a fair and
reasonable amount; or subsequently
• The latest professionally prepared estimate approved by the Client; or where applicable
• The actual cost of constructing the Project upon agreement or determination of a final account for the Project; and,
Includes (without limitation):
• The cost as if new of any equipment and/or materials provided or to be provided by the Client to a contractor for installation or
use during construction of the project;
• Any direct works carried out by or on behalf of the Client; and
• provision for contractor’s profit and overheads.
Excludes:
• Value Added Tax
• Professional fees;
• DHA Fees;
• The costs of resolution of any dispute
• The Client’s legal and in-house expenses
• Any loss and/or expense payments paid to a contractor
• Any adjustments for any liquidated damages deducted by the Client.
Fee Proposal means the document issued by DHA prior to commencing the Services and which sets out the details of the services and
the fees payable by the Client for the services via email, telephone or in written form.
Letter of Appointment means the letter issued by DHA prior to commencing the services and which sets out the details of the Project
and the Services.
Other Person means any person, company or firm, other than DHA or any sub-consultant of DHA, including but not limited to
consultants, sub-contractors, specialists statutory bodies or undertakers, approving or adopting authorities, who have performed or will
perform work or services in connection with the Project.
Project is defined in the Project Data
Project Data means the matters set out in the “Letter of Appointment”, which may be varied by agreement.
Services means the services to be performed by DHA specified in the Fee Proposal, which may be varied by agreement.
DHA means Dzign House rchitecture ltd, a company registered in England and Wales with registration number 09801350 and whose
Oakwell House, 643a Roundhay Road, Leeds, West Yorkshire, England, LS8 4BATimetable means the Client’s initial programme for performance of the Services as specified in the Project Data, or where no such
programme is specified it shall be a fair and reasonable period. Subsequently, the timetable shall be the latest programme issued to the
client. DHA will develop and agree a timetable with the Client where required
Interpretation
The headings and notes to the Conditions are for convenience only and do not affect interpretation, Words denoting natural persons
include corporations and firms and vice versa.
Communication
Any notice or other document required under this Agreement shall be in writing and given or served by any effective means to the
address of the recipient specified in this Agreement or such other address, including a postal address, or email address notified to the
other party.
Communications between the Client and DHA that are not notices or documents may be sent to any other address, including an e-mail
address, notified by any other party as appropriate address for specific communications. Communications take effect on receipt, but if
not in writing are of no effect unless and until confirmed in writing by the sender or the other party.
Communications sent by special delivery or recorded delivery shall be deemed (subject to proof to the contrary) to have arrived at the
appropriate address on the second working day after posting.
Public Holidays
Where under this agreement an action is required within a specified period of days from a specified date, that period commences
immediately after that date. The period shall include Saturdays and Sundays but shall excluded any day that is a public holiday.
Duration
The provisions of this Agreement are without prejudice to the respective rights and obligations of the parties and continue in force as
long as necessary to give effect to such rights and obligations.
Applicable law
This Agreement is subject to the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England
and Wales.
Application of these terms and conditions
These terms and conditions apply to any Services provided by DHA to the Client. They supersede any previously issued terms and
conditions of purchase or supply.
No terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, order, confirmation of order,
specification or other document shall apply to the Services except to the extent that DHA otherwise agrees in writing.
No variation of these terms and conditions or to a Letter of Appointment shall be binding unless expressly agreed in writing by a duly
authorised representative on behalf of DHA.
Each request by the Client to DHA to supply services shall be an offer to purchase Services subject to these terms and conditions.
The Supplier may accept or reject a request for services at its discretion. No binding obligation to supply any services shall arise, until
the Letter of Appointment has been issued by DHA.
Obligations and authority of DHA
Duty of care
DHA shall exercise reasonable skill care and diligence in accordance with the normal standards of DHAs profession in performing the
Services and discharging all the obligations under this condition.
Duty to inform
DHA will periodically keep the Client informed of progress in the performance of the Services and of any issue that may materially affect
the Brief, the Construction Cost, the Timetable, or the quality of the Project. DHA shall inform the Client upon becoming aware of:
• A need to appoint Other Persons, other than those named in the Project Data, to perform work or services in connection with
the Project; and/or
• Any information, decision or action required from the Client or others in connection with performance of the Services.
Collaboration
DHA shall Collaborate with Other Persons named in the Project Data, or whose appointment is foreseeable and, as applicable, shall
co-ordinate and integrate the information received into DHA’s work where agreed.
DHA authority
DHA shall act on behalf of the Client in the matters set out or necessarily implied in this Agreement or in project procedures agreed with
the Client from time to time, but has no authority, without the Client’s prior approval:
• to enter into any contractual or other commitment on behalf of the Client;
• to terminate the employment of Other Persons appointed by the Client; or
• to make or cause to be made any significant alteration to or addition to or omission from the Services or the approved design.In the event of an emergency, DHA may issue instructions to a contractor to prevent danger to persons or material damage to the
Project without the Client’s prior approval, and shall confirm such action in writing to the Client without delay.
DHAs Representative
DHAs Representative shall have full authority to act on behalf of DHA for all purposes in connection with performance of the Services
but not to vary the terms of the Agreement.
Photography
DHA 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 of the construction works.
Publicity
DHA shall obtain the consent of the Client, which consent is not unreasonably withheld or delayed, before publication of any other
information about the project, unless reasonably necessary for performances of the Services.
Confidentiality
DHA shall not disclose to any other person Confidential Information unless:
• disclosure is necessary for the proper performance of the Services, or in order to take professional advice in relation to this
Agreement or the Services, or in order to obtain/maintain insurance cover as required by this Agreement.
• it is in the public domain other than due to wrongful use or disclosure; or
• disclosure is required by law or because of disputes arising out of or in connection with this agreement.
Obligations and authority of Client
Client’s representative
The Client’s Representative shall have the full authority to act on behalf of the Client for all purposes in connection with the matters set
out in this Agreement but not to vary the terms of the Agreement.
Information, decisions & approvals
The Client shall supply an initial statement of the Client’s requirements and shall advise the relative priorities of the Client’s
requirements, i.e. the brief, the Construction Cost, Timetable or Quality of Design.
The Client shall provide free of charge, all the information in the Client’s possession, or reasonably obtainable, which is necessary for
the proper and timely performance of the Services and the DHA shall be entitled to rely on such information. This includes but is not
limited to accurate .dwg or PDF format drawings depicting any ‘As Built’ required information. The Client shall ensure that all such
information is accurate and complete and that all copyrights have been agreed for their use by DHA.
The Client shall give decisions and approvals and shall take such actions necessary for the proper and timely performance of the
Services
The approval of any planning conditions associated with approved schemes are the responsibility of the client and not of Dzign House
Architecture ltd unless otherwise agreed in writing.
All works are to be carried out in accordance with CDM regulations. CDM regulations require that a principle designer is appointed for
each project, Dzign House Architecture ltd do not provide this service unless otherwise agreed in writing.
Combustibility or fire safety requirements of any cladding, glazing, doors, external and internal wall system of any building or structure;
including any component or material used in their manufacture, assembly or construction are excluded from liability and cover. For fire
safety, the client is advised to appoint a fire safety specialist or engineer to take on future liability for any fire safety advice or
specification.
Structural calculations are to be provided by and suitably qualified structural engineer and are not the responsibility of DHA. DHA shall
not be responsible for the accuracy or errors within such designs or calculations.
DHA shall not be responsible for the work of the building contractor nor for any failure of the building contractor to complete the building
work in accordance with the terms of the building contract or drawings as provided.
Instructions
The Client (or the lead consultant, or other consultants designated by the Client) may issue reasonable instructions to DHA.
Where DHA has responsibility to direct and/or co-ordinate the work or Services of or give instructions to Other Persons, such
instructions shall be issued only through DHA and DHA shall not be responsible for any instructions otherwise.
Applications for consent
The Client shall instruct the making of applications for consents under planning legislation, building acts, regulations or other statutory
requirements and others having an interest in the Project. The Client shall pay any statutory charges and any fees, expenses and
disbursements in respect of such applications.
Appointment of Other Persons
Where work or services, other than those to be performed by DHA, are required, the Client shall appoint and pay Other Persons under
separate agreements to perform such work, services or products and shall require them to Collaborate with DHA. Such Other Persons
shall include Site Inspectors or Clerks of Works.The Client shall confirm in writing to DHA the services to be performed by Other Persons, their disciplines and the expected duration of
their services.
The client acknowledges that DHA does not warrant the competence, performance, work, services, products or solvency of any such
Other Persons.
The client shall hold the contractor appointed to undertake construction works and not DHA responsible for the management and
operational methods necessary for the proper carrying out and completion of the construction works in compliance with the building
contract or contracts.
Time and Cost
The Client acknowledges that DHA does not warrant:
that the statutory approvals from third parties will be granted at all, or if granted, will be granted in accordance with any anticipated time-
scale; or without planning conditions requiring discharge. The discharge of such conditions are the responsibility of the client.
compliance with the Construction Cost and/or the Timetable, which may need to be reviewed for such matters as, but not limited to:
approved variations arising from design development or requested by the Client;
delays caused by any Other Person; and/or
any other factors beyond the control of DHA.
Legal Advice
The Client shall procure such legal advice and provide such information and evidence as required for the resolution of any dispute
between the Client and any other parties in connection with the Project.
Confidentiality
The Client shall not disclose to any Other Person Confidential Information unless:
• disclosure is necessary to take professional advice in relation to this Agreement or the Services;
• it is in the public domain other than due wrongful use or disclosure; or
• disclosure is required by law or because of disputes arising out of or in connection with this Agreement.
Assignment and sub-contracting
Assignment
Neither DHA nor the Client shall at any time assign the benefit of this Agreement or any rights arising under it without prior written
consent of the other, which consent shall not be reasonably withheld or delayed.
Sub-contracting
With the consent of the Client, which consent shall not be unreasonably withheld or delayed, DHA may appoint a sub-consultant or sub-
consultants to perform part of the Services. Any such sub-contracting shall not relieve DHA of responsibility for carrying out and
completing the Services in accordance with this Agreement. Such consent shall not be required in respect of agency or self-employed
staff.
Specialist services
If during the performance of the Services it is in DHAs opinion that it would benefit the Client, DHA may recommend that the Client
appoints Other Persons with appropriate knowledge and experience to perform part of the Services. If the Client agrees to make such
an appointment, it shall be made without undue delay. On such appointment the Client shall give written notice to DHA, who shall be
relieved of responsibility and liability for that element of Services.
DHA shall collaborate with such Other Persons.
Fees, disbursements and expenses
Calculation of fees
The fees for performance of the Services and/or any additional services shall be calculated in accordance with this clause and as
specified in the Fee Proposal or contained within the Letter of Appointment.
Basic Fee
The Basic Fee for performance of the Services shall be:
Where the Project is for the design and architectural services, including any specified number of site visits during the construction period
as and where required:
• a percentage or percentages applied to the Construction Cost with clause “Percentage Fees” and/or
• a lump sum of sums in accordance with clause “Lump Sums”; and/or
• time charges in accordance with clause “Time Charges”; and/or
• any combination of these; and/or
• another agreed method, all as set out in the Fee Proposal or within the Letter of Appointment.
Other fees
For performance of Other Services specified in the Fee Proposal, but not included in the Basic fee, the fee for each service shall be:• a lump sum or sums in accordance with clause “Lump Sums”; and/or
• time charges in accordance with clause “Time Charges”; and/or
• another agreed method. All as set out in the Fee Proposal or contained within the Letter of Appointment
Lump Sums
Where this clause applies, the Basic Fee shall be:
• the lump sum or lump sums specified in the Letter of Appointment; or
• a lump sum or lump sums for each work stage calculated by applying a specified percentages to the Construction Cost for the
developed design; or
• a lump sum for each work stage calculated by applying the relevant specified percentage to the Construction Cost current at
the end of the previous stage.
Time Charges
Time-based fees shall be ascertained by multiplying the time reasonably spent in the performance of the Services by the specified
hourly or daily rate (Basic rate of £95 per hour + vat) for the relevant personnel. Time “reasonably spent” includes the time spent in
connection with performance of the Services and in time travelling from and returning to DHAs office. Time charge rates are fixed for the
duration of a Project.
Fee adjustment
The Basic Fee:
• shall be adjusted including due allowance for any loss and/or expense if:
• material changes are made to the Brief and/or the Construction Cost and/or the Timetable & or
• the Services are varied by agreement.
• shall not be adjusted for any reduction of the Construction Cost arising solely from deflationary market conditions not
prevailing at the Effective Date. The Basic Fee shall continue to be based on the Construction Cost current prior to the date of
such reduction.
Abortive works
Where abortive works occur DHA will entitled to all fees as agreed for the works and will be calculated to the point at which the works
are aborted.
Additional fees
Where DHA for reasons beyond DHAs reasonable control incurs extra work or loss and expense for which DHA would not otherwise be
remunerated, DHA shall be entitled to additional fees calculated on a time basis as set out in clause “Time Charges” unless otherwise
agreed. Matters in relation to which DHA shall be entitled to additional fees include but are not limited to circumstances where:
• DHA is required to vary any item of work commenced or completed pursuant to this Agreement or to provide a new design
after the Client has authorised DHA to develop an approved design.
• the nature of the Project required that substantial parts of the design cannot be completed or must be specified provisionally
or approximately before construction commences;
• performance of the Services is delayed, disrupted or prolonged; (such as extended contract periods)
• the cost of any work, installation or equipment for which DHA performs Services is omitted from or not included in the
Construction Cost.
• DHA is required to carry out work to drawings, specification and schedules post tender or once approved to revise the design
DHA shall inform the Client on becoming aware that this clause “Additional Fees” will apply. This clause “Additional Fees” shall not apply
where any change or extra work or expense arise from a breach of this Agreement by DHA
Supplementary agreements
If DHA consents to enter into any supplementary agreement, the terms of which are agreed by DHA after the date of this Agreement,
DHA shall be entitled to payment of DHAs reasonable costs of so doing, including but not limited to legal advice, and the amount of any
additional professional indemnity insurance premium.
Tender not accepted
Where DHA is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is
made or accepted, DHA shall be entitled to fees due up to and including the technical design stage, applied to the Construction Cost of
that part of it relating to the said work or services current at the date of invitation to tender.
Expenses and disbursementsThe Client shall reimburse DHA for expenses in the manner specified in the Fee Proposal or in the Letter of Appointment.
Any other fees such as professional services, planning fees, Building Control/ Approved Inspector fees, Principal Designer fees,
Structural Engineer fees, utility searches, building contracts, etc. related to the Project are not the responsibility of DHA and are that of
the client.
Maintain records
DHA shall maintain records of time spent on Services performed on a time basis for the purpose of verifying charges under clause “Time
Charges” and shall in addition maintain records or any expenses and disbursements to be reimbursed at net cost. DHA shall make such
records available to the Client on reasonable request.
Payment
Payment under this Agreement shall be made as follows:
• Payment shall become due to the DHA on the date of issue of the DHAs account/invoice as detailed in the letter of
appointment.
• DHA may submit the final account for fees and any other amounts due when DHA reasonably considers the Services have
been completed.
• Failure to pay without prior agreement will result in suspension of Services without further notice.
• DHA shall be entitled to charge interest on any fees that are unpaid after 14 days beyond the issued date for payment.
Interest shall be charged at 8% above the Bank of England base rate from time to time.
Payment notices
The Client shall give a written notice to DHA:
• within 7 days of the date of issue of an account specifying the amount the Client proposes to pay and the basis of calculation
of that amount; and
• In the event of non-payment of any amount properly due to DHA under this Agreement, DHA is entitled to interest on the
unpaid amounts under the provision of clause “Late Payment”, may suspend use of the licence under the provisions of the
clause “Copyright and Use of Information”, may suspend or terminate performance of the Services and any other obligations
under this Agreement, or may commence dispute resolution procedures and/or debt recovery procedures)
• If no such notices are given the amount due shall be the amount stated as due in the account. The Client shall not delay
payment of any undisputed part of the account.
Set-off
The Client shall not withhold any amount due to DHA under this Agreement unless the amount has been agreed with DHA or has been
decided by any tribunal to which the matter is referred as not being due to DHA. All rights of set-off at common law or in equity which the
Client would otherwise be entitled to exercise are expressly excluded. All payments under this Agreement shall be made in full without
discount, deduction, set-off or counterclaim whatsoever.
Payment on suspension or termination
If DHA or the Client issues a notice under clause “Suspension or termination” suspending performance of any or all of the Services or
terminating performance of the Services and/or other obligations, DHA shall issue an account or accounts on the expiry date of the
notice or as soon as reasonably practicable and DHA shall be entitled to:
• payment of any part of the fee and other amounts properly due on the expiry of the notice; and
• payment of any licence fee due under clause “Copyright and use of information”; and
• reimbursement of any loss and/or expense properly and necessarily incurred by DHA by reason of the suspension or the
termination save where the Client gives notice of suspension or termination by reason of the material or persistent breach of
the Agreement by DHA.
If the reason for suspension is remedied, DHA shall be entitled to reimbursement of the reasonable costs of resumption of performance
of the Services and other obligations.
Late payment
In the event that any amounts are not paid by the Client or DHA when properly due, the payee shall be entitled to simple interest on
such amounts until the date that payment is received at the daily rate equivalent to 8% over the dealing rate of the Bank of England
Rate current at that date that payment becomes overdue, together with such costs reasonably incurred and duly mitigated by the payee
(including costs of time spent by principals, employees and advisors) in obtaining payment of any sums due under this Agreement.
The payee’s entitlement to interest at the specified rate shall also apply in respect of any amounts that are awarded in adjudication,
arbitration or legal proceedings.
VAT
In addition to the fees and expenses, the Client shall pay any Value Added Tax chargeable on DHAs fees and expenses.
Building Regulation Duty Holders :
a) Client : These are organisations or individuals for whom a construction project is carried out that is done as part of a business.
Main duties : Make suitable arrangements for planning, managing and monitoring a project, including the allocation of sufficient
time and resource, to deliver compliance with building regulations. In practice, this means appointing the right people, with the right
competencies (the skills, knowledge, experience and behaviours or organisational capability) for the work and ensuring those they
appoint have systems in place to ensure compliance with building regulations. Where there are several firms working on different
aspects of the project, the client will need to appoint a Principal Designer to be in control of design work and a Principal Contractor
to be in control of the building work. Provide building information to every designer and contractor on the project and have
arrangements to ensure information is provided to designers and contractors to make them aware that the project includes any
existing or proposed higher-risk building work Cooperate and share information with other relevant duty holders.
b) Domestic Client : A domestic client means a client for whom a project is being carried out which is not in the course or furtherance
of a business of that client.
Main duties : Where there are several firms working on different aspects of the project, a domestic client should appoint a Principal
Designer to be in control of design work and a Principal Contractor to be in control of the building work. If a domestic client does not
appoint either a Principal Designer or Principal Contractor, then the designer in control of the design phase of the project is the
principal designer and the contractor in control of the construction phase of the project is the principal contractor. Must provide
building information that they have, or it would be reasonable for them to obtain, to designers and contractors working on the
project. Must cooperate with anyone working on or in relation to the project to the extent necessary to enable them to comply with
their duties or functions. Where there is a domestic client the declaration can be signed by the Principal Contractor.
c) Principal Designer : A designer appointed by the client in projects involving more than one contractor. They can be an organisation
or an individual with sufficient knowledge, experience and ability to carry out the role.
Main duties : manage and monitor the design work during the design phase. Take all reasonable steps to ensure the design work
carried out by them and anyone under their control is planned, managed and monitored so that the design is such that, if built, it
would comply with all relevant requirements of the building regulations. Ensure that they, and all those working on the project, co-
operate, communicate and co-ordinate their work with the client, the Principal Contractor, and other designers and contractors.
Liaise with the Principal Contractor and share information relevant to the building work. Assist the client in providing information to
others
d) Principal Contractor : A contractor appointed by the client to coordinate the construction phase of a project where it involves more
than one contractor.
Main duties : Plan, manage and monitor the design work during the building work. Cooperate with the client, the Principal Designer,
and other designers and contractors to the extent necessary to ensure that the work complies with all relevant requirements of the
building regulations. Ensure that they, and all those working on the project, co-operate, communicate and co-ordinate their work
with the client, the Principal Designer, and other designers and contractors. Liaise with the Principal Designer and share information
relevant to the building work. Assist the client in providing information to others.
Copyright and use of information
Copyright
DHA shall own the copyright in the original work produced in the performance of the Services and generally asserts DHAs moral rights
to be identified as the author of such work.
No part of any design by DHA may be registered by the Client without the consent of DHA in writing.
Use of information
The Client shall have a licence to copy and use and allow Other Persons providing services to the Project to copy and use drawings,
documents, bespoke software and all other such work produced by or on behalf of DHA in performing the Services, hereinafter called
the “Material”.
The Material may be used for the construction of the Project and for the operation, maintenance, repair, reinstatement, alteration,
promotion, leasing and/or sale of the Project. The Material may not be used for reproduction of the design for any part of any extension
of the Project, and/or for any other project except on payment of a licence fee specified in this Agreement or subsequently agreed.
DHA shall not be liable if the Material is modified other than by, or with the consent of DHA or used for any purpose other than the
purposes for which it was prepared.
Provided that:
• if it is intended to make any permitted use after that date of the last Service performed under this Agreement:
• DHA, following a request from the Client, shall confirm the degree of completion of the Material and
• the Client shall pay to DHA any specified licence fee or a reasonable licence fee.
If at any time the Client is in default of payment of any fees or other amounts properly due, DHA may suspend further use of the licence
on giving 7 days’ notice of the intention of doing so. Use of the licence may be resumed on receipt of such outstanding amounts;
The Client obtains or ensures that any third party obtains any necessary licence and pays any fees arising for access to any software
used to produce any of the Material.
Email Communication
Email correspondence will be deemed to constitute a written instruction from DHA and/or Client.
Liability and insurance
Limit of liability
The extent of the parties’ liability under or in connection with this Agreement and the Services (regardless of whether such liability arises
in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.Subject to the exceptions stated below, total liability shall not exceed the amount of DHAs professional indemnity insurance. DHA shall
not be liable for consequential, indirect or special losses. DHA shall not be liable for any of the following (whether direct or indirect):
• loss of profit;
• loss or corruption of data;
• loss of use;
• loss of production;
• loss of contract;
• loss of opportunity;
• loss of savings, discount or rebate (whether actual or anticipated); or
• harm to reputation or loss of goodwill.
Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the
following:
• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation;
• any other losses which cannot be excluded or limited by applicable law;
No employee of DHA, including any officer or Director of a company or a member of a limited liability partnership or any agent of DHA,
shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the
Services.
Net contribution
Without prejudice to the provisions of clause “Limit of Liability”, the liability of DHA shall not exceed such sum as it is just and equitable
for DHA to pay having regard to the extent of DHAs responsibility for the loss and/or damage in question and on the assumptions that:
• all other consultants and contractors providing work or services for the Project have provided to the Client contractual
undertakings on terms no less onerous than those of DHA under this Agreement;
• there are no exclusions of or limitations or liability nor joint insurance or co-insurance provisions between the Client and any
other person referred to in this clause; and
• all the persons referred to in this clause have paid to the Client such sums as it would be just and equitable for them to pay
having regard to the extent of their responsibility for that loss and/or damage.
Professional indemnity insurance
DHA shall maintain for the term of this Agreement professional indemnity insurance with a limit of indemnity of not less than £2,000,000
provided such insurance continues to be offered on commercially reasonable terms to DHA at the time when the insurance is taken out
or renewed.
Such insurance will be:
• limited to the amounts (if any) specified above as in the aggregate in any year of insurance; and
• subject only to such other limitations, exceptions and exclusions as are commonly included in such policies.
DHA, when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such
insurance is being maintained.
DHA shall inform the Client if such insurance ceases to be available at commercially reasonable terms or subsequent to the date of this
Agreement an aggregate limit applies to any matters other than those specified in the Project Data in order that DHA and Client can
discuss the best means of protecting their respective positions
Rights of third parties
Except for the rights conferred by above clause, nothing in this Agreement shall confer or is intended to confer any right to enforce any
of its terms on any person who is not a party to it other than lawful assignees.
Suspension or termination
Suspension
The circumstances which may give rise to suspension of the Services are:
• The Client giving not less than 7 days’ notice to DHA specifying the Services affected.
• DHA giving not less than 7 days’ notice to the Client of the intention and stating the reasons for doing so in the event:
• that the Client fails to pay any fees or other amounts due by the final date for payment;
• that the Client is in material or persistent breach of the obligations under this Agreement; or
• that DHA is prevented from or impeded in performing the Services for reasons beyond DHAs reasonable control.• of force majeure.
• DHA shall cease performance of the Suspended Services and/or other obligations in an orderly and economical manner on
expiry of the notice period after receipt or giving of a notice of suspension.
• If the reason for a notice of suspension arises from a default:
• which is remedied within [28] days, DHA shall resume performance of the Services or other obligations within a
reasonable period.; or
• which cannot be remedied or which is not remedied within [28] days by the defaulting party, the other party shall
have the right to treat performance of the Services or other obligations affected as terminated on giving reasonable
written notice.
• Where Services are suspended by the Client on notice and not resumed within 6 months DHA shall have the right to treat
performance of the Services and/or other obligations affected as terminated without further notice.
• Any period of suspension arising from a valid notice given under this clause shall be added to the latest Timetable for
completion of the relevant Services.
Termination
The provisions for termination are:
• The Client or DHA may by giving reasonable notice to the other terminate performance of the Services and/or other
obligations, stating the reasons for doing so and the Services and obligations affected.
• Performance of the Services and/or other obligations may be terminated immediately by notice from either party if:
• the other party commits an act of bankruptcy or is subject to a receiving or administration order, and/or goes into liquidation,
and/or becomes insolvent, and/or makes any arrangements with creditors; or
• DHA becomes unable to perform the Services through death or incapacity.
• On termination of performance of the Services and/or other obligations, a copy of the Material not previously provided to the
Client shall be delivered on demand to the Client by DHA, subject to the terms of the licence under Clause “Use of
Information” and payment of any outstanding fees and other amounts due plus DHAs reasonable copying charges.
Termination, suspension or expiry of this Agreement for any reason shall not affect any accrued rights and liabilities of either
party at any time up to the date of termination, suspension or expiry.
Complaints and Dispute resolution
Complaints
DHA operates an in-house procedure to promptly handle complaints and disputes relating to specific projects or performance matters.
Any complaint of this nature should be made in writing to the Directors of DHA at the time that it arises. DHA will look to address the
complaint and resolve it promptly if possible, or a detailed response will be made within 10 working days.
The Client and DHA may attempt to settle any dispute or difference arising under the Agreement by negotiation or mediation, if suitable,
or either party may refer the matter to adjudication, arbitration or legal proceedings.
Adjudication
The Provisions for adjudication are:
• Where a dispute or difference is to be referred to adjudication, the parties shall agree who shall act as adjudicator,
• For the avoidance of doubt, the adjudicator may allocate between the parties the costs relating to the adjudication, including
the fees and expenses of the adjudicator
This provision is ineffective unless it is confirmed in writing by the referring party to the other party and to the adjudicator after notice is
given of the intention to refer the dispute to adjudication.
Arbitration
The Provisions for arbitration are:
Without prejudice to any right of adjudication, where in the Project Data an arbitration agreement is made and either party requires a
dispute or difference (except in connection with the enforcement of any decision of an adjudicator) to be referred to arbitration then that
party shall serve on the other party a notice of arbitration to that effect and the dispute of difference shall be referred to a person to be
agreed between the parties or, failing agreement within 14 days of the date on which notice is served.
Where the law of England and Wales or Northern Ireland is the applicable law:
(a) The Client or DHA may litigate any claim for a pecuniary remedy which does not exceed £5000 or such other sum is provided by
order under section 91 of the Arbitration Act 1996;
(b) in such arbitration the Construction Industry Model Arbitration Rules (CIMAR) current at the date of the reference shall apply; and
(c) the arbitrator shall not have the power referred to in Section 38(3) of the Arbitration Act 1996.Where the law of Scotland is the applicable law such arbitration shall be conducted under the rules set out in the current edition of the
Scottish Arbitration Code for use in Domestic and International Arbitration.