Terms & Conditions


McInnes Gardner Architects – Standard Terms and Conditions (updated March 2015)


1 Definitions and Interpretation etc.


Definitions

1.1 Where defined terms are used in this Agreement they are distinguished by an initial capital letter. 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:


The Brief shall include any information or drawings prepared by or on behalf of the Architect and approved by the Client during the development of the Brief.

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 the Architect’s business and affairs which either party directly or indirectly or acquires from the other party or any representative of the other party either in writing or verbally.

Construction Cost means:


Includes (without limitation)


Excludes:


Other Person means any person, company or firm, other than the Architect or any sub-consultant of the Architect, 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 the Architect specified in the schedule of Services annexed to the Letter of Appointment, which may be varied by agreement.

Timetable 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. The Architect will develop and agree a timetable with the Client

Interpretation

1.2 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

1.3 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, fax number or email address notified to the other party.

Communications between the Client and the architect 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.

All telephone calls to McInnes Gardner Architects are recorded and held on file for a minimum of 6 months.


Public Holidays

1.4 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 not include Saturdays and Sundays but shall excluded any day that is a public holiday.

Duration

1.5 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

1.6 This Agreement is subject to the law and the parties submit to the exclusive jurisdiction of the courts of Scotland and subject to clause 9.3 the parties submit to the exclusive jurisdiction of the specified jurisdiction.

2 Obligations and authority of the Architect

Duty of care

 The Architect shall exercise reasonable skill care and diligence in accordance with the normal standards of the Architect’s profession in performing the Services and discharging all the obligations under this Condition 2.


Duty to inform


Collaboration


Architect’s authority


2.5.1 to enter into any contractual or other commitment on behalf of the Client;

2.5.2 to terminate the employment of Other Persons appointed by the Client; or

2.5.3 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, the Architect 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.

Architect’s Representative


Photography


Publicity


Confidentiality


2.9.1 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.

2.9.2 it is in the public domain other than due to wrongful use or disclosure; or

2.9.3 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


Information, decisions, approvals, etc.


Instructions


Applications for consent


Appointment of Other Persons


The Client shall confirm in writing to the Architect the services to be performed by Other Persons, their disciplines and the expected duration of their employment.

The client acknowledges that the Architect does not warrant the competence, performance, work, services, products or solvency of any such Other Persons.


Time and Cost


(a) approved variations arising from design development or requested by the Client

(b) delays caused by any Other Person; and/or

(c) any other factors beyond the control of the Architect.

Legal Advice



Confidentiality


3.12.2 it is in the public domain other than due wrongful use or disclosure; or

3.12.3 disclosure is required by law or because of disputes arising out of or in connection with this Agreement.


Site Signboards

3.13 The client shall allow the Architect to display sized RIBA/RIAS professional signboards on the site in appropriate locations for the duration of works on site.


Assignment and sub-contracting


Assignment (see note 1)


Sub-contracting


Specialist services


Fees and expenses


Calculation of fees


Basic Fee


5.21 where the Project is for the design and carrying out of construction works, including the specified number of site visits during the construction period:

(a) a percentage of percentages applied to the Construction cost in accordance with clause 5.4; and/or

(b) a lump sum of sums in accordance with clause 5.5; and/or

(c) time charges in accordance with clause 5.6; and/or

(d) any combination of these; and/or

(e) another agreed method

5.22 for other professional services:

(a) a lump sum or sums in accordance with clause 5.5.1; and/or

(b) time charges in accordance with clause 5.6; and/or

(c) another agreed method.


(1): Assignation in Scotland



Other fees


5.3.1 a lump sum or sums in accordance with clause 5.5.1; and/or

5.3.2 time charges in accordance with clause 5.6; and/or

5.3.3 another agreed method.


Percentage fees


5.4.1 the specified percentage applied to the final Construction Cost; or

5.4.2 the relevant specified percentage for each work stage to the Construction Cost at the end of the previous stage.


Lump Sums


5.5.1 the specified lump sum or lump sums; or

5.5.2 a lump sum or lump sums for each work stage calculated by applying the specified percentages to the Construction Cost for the developed design current at the end of RIBA/RIAS Stage D; or

5.5.3 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


Revision of lump sums and other rates


Each 12 month period shall commence on the anniversary of the Effective Date of this Agreement specified in the Project Data, or where clause 5.5.2 or 5.5.3 applies the date of circulation of the lump sums.


Fee adjustment


5.8.1 shall be adjusted including due allowance for any loss and/or expense if:

(a) material changes are made to the Brief and/or the Construction Cost and/or the timetable

(b) the Services are varied by agreement.

5.8.2 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.


Additional fees


5.9.1 the Architect 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 the Architect to develop an approved design.

5.9.2 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;

5.9.3 performance of the Services is delayed, disrupted or prolonged; (such as extended contract periods) and

5.9.4 the cost of any work, installation or equipment for which the Architect performs Services is omitted from or not included in the Construction Cost.

5.9.5 the Architect is required to submit additional planning applications, discharge conditions of a planning consent and / or make an application for non-material amendments to a planning consent

5.9.6 the Architect is required to make amendments to the agreed design, once the design has been submitted for a planning application and on the advice of a planning officer

5.9.7 the Architect is required to carry out work related to party wall negotiations and information required for party wall awards

5.9.8 the Architect is required to carry out work to drawings, specification and schedules post tender to revise the approved design

This clause 5.9 shall not apply where any adjustment under clause 5.8.1 applies to the same events.

The Architect shall inform the Client on becoming aware that this clause 5.9 will apply. This clause 5.9 shall not apply where any change or extra work or expense arise from a breach of this Agreement by the Architect

Supplementary agreements

 If the Architect consents to enter into any supplementary agreement, the terms of which are agreed by the Architect after the date of this Agreement, the Architect shall be entitled to payment of the Architect’s reasonable costs of so doing, including but not limited to legal advice


Tender not accepted


Expenses and disbursements


Maintain records


Payment


5.14.1 Payment shall become due to the Architect on the date of issue of the Architect’s account. The final date for payment of any amount due to the Architect shall be 14 days from the issue of the relevant account. Any queries to be made within this 14-day period.

5.14.2 The Architect shall issue accounts at intervals of not less than one month or at or near the completion of a fee stage and stating the basis of calculation of the amounts due. Instalments of fees shall be calculated on the Architect’s reasonable estimate of the percentage of completion of the Services or stages or other services or any other specified method.

5.14.3 The Architect may submit the final account for fees and any other amounts due when the Architect reasonably considers the Services have been completed.

5.14.4 Failure to pay may result in suspension of services without further notice.

5.14.5 Payments over 28 days will be charged interest at 8% over bank base rate.


Payment notices


5.15.1 within 14 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


(2) In the event of non-payment of any amount properly due to the Architect under this agreement, the Architect is entitled to interest on the unpaid amounts under the provision of clause 5.19, may suspend use of the licence under the provisions of the clause 6, may suspend or terminate performance of the Services and other obligations under the provisions of clause 8, 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.

5.15.2 within 14 days before the final date for payment of any amount due to the Architect if the Client intends to withhold payment of any part of that amount stating the amount proposed to be withheld and the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it.


Set-off


Payment on suspension or termination


5.17.1 payment of any part of the fee and other amounts properly due on the expiry of the notice; and

5.17.2 payment of any licence fee due under clause 6; and

5.17.3 reimbursement of any loss and/or expense properly and necessarily incurred by the Architect 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 the Architect.



Late payment


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.


Recovery of costs


5.20.1 such costs reasonably incurred and duly mitigated (including costs of time spent by principals, employees and advisors) where the matter is resolved by negotiation or mediation; or

5.20.2 such costs as may be determined by any tribunal to which the matter is referred.


VAT



Copyright


Use of information


 

(3): Under the registered Designs regulations 2001

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.


The Architect shall not be liable if the Material is modified other than by or with the consent of the Architect or used for any purpose other than the purposes for which it was prepared.

Provided that:

6.3.1 if it is intended to make any permitted use after that date of the last Service performed under this Agreement:

(a) the Architect, following a request from the Client, shall confirm the degree of completion of the Material; and

(b) the Client shall pay to the Architect any specified licence fee or a reasonable licence fee;

6.3.2 if at any time the Client is in default of payment of any fees or other amounts properly due, the Architect 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;

6.3.3 the Client obtains or ensures that any third party obtains any necessary license and pays any fees arising for access to any software used to produce any of the Material.


Use of information


Telephone Calls

6.5 McInnes Gardner Architects records all incoming and outgoing phone conversations and reserves the right to refer to records of these conversations if required.


Email Communication

6.6 Email correspondence will be deemed to constitute a written instruction from Architect and/or Client. The Information contained in email may be privileged and/or confidential. If you are not the intended recipient, use of this information (including disclosure, copying or distribution) may be unlawful, therefore please inform the sender and delete the message immediately.


Liability and insurance


Time limit for action and proceedings


Limit of liability



Net contribution


7.3.1 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 the Architect under this Agreement;

7.3.2 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

(4) Delict in Scotland

7.3.3 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


Such insurance will be:

7.4.1 limited to the amounts (if any) specified in 7.4 as in the aggregate in any year of insurance; and

7.4.2 subject only to such other limitations, exceptions and exclusions as are commonly included in such policies.



Professional indemnity insurance


7.7.1 that the Architect will be required to enter into a collateral warranty or warranties in favour of funders, purchasers or first tenants and the terms of the warranty together with the names or categories of other parties who will sign such agreements are appended to this Agreement, the Architect shell enter into such agreement or agreements within a reasonable period of being requested to do so by the Client, providing that such warranties give no greater benefit to the beneficiaries than is given to the Client under this Agreement and all fees and other amounts properly due to the Architect have been paid;

7.7.2 that a Third Party Rights Schedule (see Note 5) in favour of funders, purchasers or first tenants is applicable and appended to this Agreement, the rights of such third parties shall come into effect

7.7.3 that a supplementary agreement is applicable under which the Architect is to provide services to a contractor appointed by the Client to complete the design and construction of the Project, and such agreement is appended to this Agreement, the Architect shall enter into such agreement with the Client and the contractor appointed to complete the design and construction of the project within a reasonable period of being requested to do so by the Client, providing that all fees and other amounts due have been paid.


Rights of third parties


Suspension or termination


Suspension


8.1.1 The Client may suspend the performance of any or all of the Services and/or other obligations by giving not less than 7 days’ notice to the Architect specifying the Services affected.

8.1.2 The Architect may suspend performance of the Services and/or other obligations on giving not less than 7 days’ notice to the Client of the intention and stating the reasons for doing so in the event:

(a) that the Client fails to pay any fees of other amounts due by the final date for payment unless, where applicable, the Client has given effective notice under clause 5.15.2 of the intention to withhold payment of any part of an Architect’s account; or

(b) that the Client is in material or persistent breach of the obligations under this Agreement; or

(c) that the Architect is prevented from or impeded in performing the Services for reasons behind the Architect’s reasonable control; or

(d) of force majeure


8.1.3 The Architect 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.


(5) Not in Scotland

8.1.4 If the reason for a notice of suspension arises from a default:

(a) which is remedied, the Architect shall resume performance of the Services or other obligations within a reasonable period.; or

(b) which is not remedied 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.

8.1.5 Where Services are suspended by the Client and not resumed within 6 months the Architect shall have the right to treat performance of the Services and/or other obligations affected as terminated without further notice.

8.1.6 Any period of suspension arising from a valid notice given under clause 8.1.1 or clause 8.1.2 shall be added to the latest Timetable for completion of the relevant Services.


Termination


8.2.1 The Client or the Architect 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.

8.2.2 Performance of the Services and/or other obligations may be terminated immediately by notice from either party if:

(a) 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

(b) the Architect becomes unable to perform the Services through death or incapacity.

8.2.3 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 the Architect, subject to the terms of the licence under Clause 6.3 and payment of any outstanding fees and other amounts due under clause 5.19 plus the Architect’s reasonable copying charges.




Adjudication

9.2 The Provisions for adjudication are:

9.2.1 Where a dispute or difference is to be referred to adjudication, the parties may agree who shall act as adjudicator, or the adjudicator shall be a person nominated at the request of either party by a person appointed by the president or vice-president of the RIBA/RIAS.

9.2.2 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, in accordance with the provisions of clause 5.20

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

9.3 The Provisions for arbitration are:

9.3.1 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, a person appointed by the president or vice-president of the RIBA/RIAS on the application of either party.

9.3.2 Where the law of Scotland or Northern Ireland is the applicable law:

(a) The Client or the Architect 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.

9.3.3 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.


(6) The Architect is expected to operate in-house procedures to promptly handle complaints and disputes relating to specific project or performance matters.


Consumer’s right to cancel (see note 7)



The Client <name> hereby gives notice that the agreement with the Architect ‘McInnes Gardner Architects’ and signed [on our behalf] by <name of person(s) who [will sign] [signed] > and include the <Project name and/or address> on <date of signing> is cancelled.

Client signature (s):

<address>

<Date>



Any complaint should be made in writing to the Job Architect and/or Partners / Directors of McInnes Gardner Architects at the time that it arises. McInnes Gardner Architects will address the complaint and resolve immediately if possible, or a detailed response will be made within 10 working days.



Partner / Director £130

Architect £75

Architectural Assistant £65

Technician / Part 1 Architect £55

Time charges will be logged and charged in 15-minute increments.


Expenses all ex VAT:

Prints Black & White

A1 £1.75 each

A2 £1.25 each

A3 £0.40 each

A4 £0.10 each

Prints Colour

A1 £5 each

A2 £3 each

A3 £1 each

A4 £0.25 each

(Please note this is includes all printing carried out internally in the office related to the project as well as drawings issued to client, planning departments, contractors, suppliers and 3rd parties).

If required a typical A3 tender/construction pack of drawings will be 40 x A3, in colour+ 30 x A4 B&W per contractor. Total cost approx. – £30. A1 tender pack approx. cost £200

Travel By Car £0.60/mile. Parking/Congestion charge: as per receipt. By Public transport: as per usage


Disbursements:

Any planning fees, building control fees, OS location maps, utility searches, building contracts, etc. related to a project and paid for by GCA on behalf of a client.


PLEASE NOTE: Time charge rates and Disbursements may be subject to increase annually in April.


(7) This clause applies where the Project relates to work to the Client’s home or a second home including a new home and the Client is a consumer who is acting outside his/her trade, business or profession and has signed this agreement in his/her name, i.e. not as a limited company or other legal entity.