Terms and Conditions

These terms and conditions shall be read with the accompanying fee proposal letter/document and both form the appointment. The Consultant is not appointed under this Agreement as Lead Consultant unless the Fee Letter expressly states so.

GHC Archaeology and Heritage Ltd. Will not take on the roll of Principal Contractor or Designer under CDM regulations.

1. Services and Client’s obligations

1.1 Services.

The Consultant’s Services shall mean the services described as set out in the Fee Letter. Additional services shall mean any other services requested by the Client which the Consultant has agreed to perform. In providing the Services, the Consultant shall exercise the reasonable skill and care in the performance of the Services and diligence appropriate to a consultant qualified in the relevant discipline engaged in the performance of such Services for projects of a similar nature, size, and complexity to the project.

1.2 Information / Instructions.

The Client will supply to the Consultant, free of charge and in a timely manner, all necessary and relevant data for the provision of the Services and will provide all instructions, decisions, consents, or approvals in good time to avoid delay

to the performance of the Services. The Client recognises, that the Consultant will rely on the accuracy and completeness of all information and data provided by the Client.

1.3 Assistance.

The Client will ensure that its agents, servants, Lead Consultant (if different from the Consultant), other consultants and

any contractors appointed by the Client give the assistance that will reasonably be required by the Consultant in the performance of the Services/additional services.

1.4 Client’s Representative.

The Client will appoint a Client’s Representative who will be notified to the Consultant without delay and

who shall have full authority to act on behalf of the Client.

1.5 Other Consultants

GHC Archaeology & Heritage Ltd. shall if requested advise the Client on the need for and the selection and

appointment of Other Consultants to perform services in respect of the services, GHC shall co-operate with any Other

Consultants and if so, requested by the Client shall co-ordinate and integrate the results of their services with the Services

performed under this Agreement. GHC will not be responsible for the services performed by any Other Consultant or liable for defects in or omissions from them.

1.6 Specialist Sub-Consultants

GHC Archaeology & Heritage Ltd. may recommend to the Client that it sub-lets to a specialist subconsultant

the performance of any of the Services. The Client shall not unreasonably withhold consent to such recommendation and

GHC Archaeology & Heritage Ltd. shall integrate such sub-consultant’s services with his own. GHC Archaeology & Heritage Ltd. shall be responsible for the performance and the payment of any sub-consultant

1.7 Buried Services and Structures

Where excavating, boring, probing or the like below existing ground level is required as part of the

Services, the Client shall provide in a timely fashion drawings or plans showing accurate and complete locations of all underground services, structures or artificial obstructions to GHC Archaeology & Heritage Ltd. who, in performing such Services as set out in this Condition, shall take reasonable precautions to avoid damage or injury to such underground services, structures or artificial obstructions as shown in such drawings or plans. GHC Archaeology & Heritage Ltd. will not be responsible for any damage to underground services, structures, or obstructions or for any damage, claims, expenses, or loss arising as, a result of such excavating, boring, proving or the like below existing ground level, unless their locations on site are accurately shown on drawings or plans furnished to GHC Archaeology & Heritage Ltd. in good time prior to commencement of such Services.

1.8 Pollution and Contamination

The obligations of GHC Archaeology & Heritage Ltd. under this Agreement do not include a duty to

advise as to the actual or possible presence of pollution or contamination or as to the risks of such matters having occurred being present or occurring in the future nor shall GHC Archaeology & Heritage Ltd. have any duty to consider such matters as influencing any aspect of the Services to be performed by GHC Archaeology & Heritage Ltd. under this Agreement, except where the Description of Services specifically includes provision of such advice or consideration.

2. Fees, costs, disbursements, and VAT

2.1 Fees.

Fees for the Consultant’s Services will be charged as provided in the Fee Letter and the Client shall pay the fees, costs and

disbursements to the Consultant in accordance with this Agreement. 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 agreed under the Agreement. Where the Agreement, or part of it, is on a time charge basis, the fees will be calculated according to the time charge rates set out in the Consultant’s current standard rates. The rates are reviewed on an annual basis. All costs and disbursements necessary for the performance of the Services will be charged as set out in the table below and in addition to the fees. All sums due to the Consultant under this Agreement are exclusive of Value Added Tax (VAT), which will be paid by the Client in addition to those sums.

2.2 Fees for additional services.

The fees of any additional services required shall be agreed in writing in advance between the parties.

In the absence of prior written agreement, such additional services shall be charged on a time and expenses basis at the Consultant’s current standard rates.

3. Invoicing and payments

3.1 Invoicing and Payment Notice.

The Consultant will submit to the Client as set out in the proposal-monthly or periodic invoices for

the fees and other sums payable under this Agreement. Such invoices will constitute a ‘Payment Notice’. Each invoice/Payment Notice will specify the sum that the Consultant considers will become due on the payment due date and the basis on which that sum is calculated. The payment due date is the date of the submission of the invoice/Payment Notice.

3.2 Final Date for Payment.

The final date for payment will be 28 days from the payment due date (Final Date for Payment).

3.3 Payment.

On or before the Final Date for Payment, the Client will pay the sum stated as due in the Consultant’s Payment Notice

(Notified Sum) or, if the Housing Grants, Construction and Regeneration Act 1996 as amended (Construction Act) applies, the sum that the Client considers to be due as specified in any pay less notice if applicable as per clause 3.4 below.

3.4 Pay less notice.

If the Construction Act applies, no later than seven days before the Final Date for Payment, the Client may give the

Consultant a notice that it intends to pay less than the Notified Sum (Pay Less Notice). Any Pay Less Notice will specify the sum that the Client considers to be due on the date the Pay Less Notice is served and the basis on which that sum is calculated. GHC Archaeology & Heritage Ltd. – “The Consultant” Commercial – In Confidence Terms and conditions of engagement

3.5 Immediate payment.

If any invoice is not settled in 28 days and no valid Pay Less Notice has been served, all other invoices submitted to the Client will require immediate payment regardless of any agreed payment period with interest.

3.6 Interest.

Interest 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.

3.7 Disruption.

The Consultant will inform the Client if the Consultant needs to carry out additional services and/or suffers disruption in

the performance of the Services due to (i) a delay by the Client in fulfilling any of its obligations, or (ii) the Consultant being delayed by others or by events that were not reasonably foreseeable, or (iii) the project or the works are damaged or destroyed, or (iv) other reasons beyond the Consultant’s control. The Client will pay additional fees to the Consultant for the additional services carried out and additional resources employed and/or the disruption suffered together with any relevant adjustment to the program if required. Unless otherwise agreed, the additional fees will be calculated on a time charge basis. At the Client’s request, the Consultant will give an initial estimate for the additional fees likely to be incurred.

4. Intellectual property rights.

The copyright in all documents and information of a proprietary nature, whether in hard copy form or stored in any electronic medium (and any designs and definition information contained in them) prepared by or on behalf of the Consultant and provided to the Client in the course of performing the Services/additional services (the “Documents”) shall remain

vested in the Consultant but the Client shall have a licence to use the Documents and to reproduce the designs and content of them for any purpose related to the project, subject always to the Consultant receiving full payment for the Services/additional services in accordance with the Agreement. Such licence shall enable the Client to copy and use the Documents for the extension of the project but such use shall not include a licence to reproduce the designs contained therein for any extension of the project. Save as above, the Client shall not make copies of any of the Documents, nor shall the Client use any of the Documents in connection with any other projects or works without the prior written approval of the Consultant. The Consultant shall not be liable for the use by any person of any of the Documents for any purpose other than that for which the same were prepared by or on behalf of the Consultant.

5. OS / External data.

If and where the Consultant’s intellectual property rights (IPR) are to be licensed to the Client according to the terms of this Agreement, the Client’s right to copy OS (Ordnance Survey) or other external data is excluded. The Consultant shall, at

the request of the Client, use all reasonable endeavours to procure, at the Client’s expense, the grant of a licence in the Client’s name for the use of the relevant OS or other external data.

6. Confidentiality and publication.

Information contained in this Agreement is commercially sensitive and is given in strictest confidence to the Client. The Client must advise the Consultant as soon as requests are made under the Freedom of Information Act 2000 to disclose information given by the Consultant relating to the Agreement. The Client shall not disclose any commercially sensitive information given by the Consultant, including technical solutions and commercial terms and information, and shall consult with the Consultant before any act of disclosure is contemplated. Disclosure will be substantially prejudicial. For the purpose of the Consultant’s own website and publications only, the Client gives the Consultant the right to publish articles, photographs or other

illustrations relating to the project.

7. Data protection.

The parties acknowledge that the Consultant may have access to the Client’s Personal Data (as defined in the applicable Data Protection legislation) in providing the Services/additional services and the Client appoints the Consultant to process such Personal Data on the Client’s behalf. Personal Data will be processed for the purpose of providing the Services/additional

services and for the duration of the Agreement. The Client warrants that it has all necessary authorisations, approvals and consents necessary in order to lawfully transfer the Personal Data to the Consultant, and to authorise the Consultant to process the same in connection with providing the Services/additional services. Where the Consultant processes Personal Data in accordance with this Agreement, it will comply with any reasonable instructions from the Client in respect of such Personal Data and, subject to such Client instructions, implement reasonable technical and organisational measures to protect the Personal Data against un-authorised or unlawful processing and accidental loss, theft, use, disclosure, destruction and/or damage. The Consultant shall be permitted to transfer Personal Data outside the European Economic Area without the prior written consent of the Client, provided that such transfers are in accordance with relevant and applicable requirements of adequacy under applicable Data Protection legislation.

8. CDM 2015.

The Client has specific duties under the Construction (Design & Management) Regulations 2015 (CDM Regulations 2015)

and it needs to be aware of them. These duties include providing the pre-construction information to every designer and contractor, ensuring that the contractor (or Principal Contractor) prepares a construction phase plan and that the Principal Designer prepares a health and safety file. The Client must also take reasonable steps to ensure that any Principal Designer and Principal Contractor comply with the remainder of their duties. If a client (other than a domestic client (for example, a client for whom a project is being carried out which is not in the course or furtherance of a business of that client) does not appoint a Principal Designer, the Client must fulfil the duties of the Principal Designer. If the Client is not familiar with the application of the regulations or of its duties as a client or is unsure whether they apply, the Client shall contact the Consultant in this regard.

9. Termination.

The Consultant shall be entitled to suspend the performance of the Services/additional services or to terminate this

Agreement if the Client is in breach of this Agreement or if the Client fails to pay any undisputed amount when due. The Consultant will provide written notice to the Client specifying the breach or breaches and requiring them to be remedied within 14 days otherwise the Services/additional services will be suspended or terminated if such a breach is not remedied within the 14-day period. If the Client is declared bankrupt or receives an order made against it or the Client makes any arrangements with its creditors or if distress or execution are levied or threatened upon any of the Client’s property or any judgement against the Client remains unsatisfied for more than 14 days or if, being a limited liability company or partnership, the Client goes into liquidation whether compulsory or voluntarily, then the Consultant may suspend the performance of the Services/additional services or terminate this Agreement.

10. Assignments and third parties’ rights.

No assignment of this Agreement is permitted without the written consent of the Consultant having been obtained. Subject to the Client’s consent (not to be unreasonably withheld or delayed), the Consultant may assign the benefits and burdens of this Agreement to any third parties. This Agreement is not intended to confer or purport to confer on any third parties any benefit or right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (when

England and Wales laws apply) or otherwise.

11. Direct or indirect losses.

Neither of the Consultant or the Client shall under any circumstances whatsoever be liable to the other for any direct or indirect loss of profit, loss of business or anticipated saving or special, indirect or consequential damage suffered by the

other party that arises under or in connection with this Agreement.

12. Financial limitation.

Save in respect of death or personal injury caused by the Consultant’s negligence or for any fraud on the part of the Consultant and notwithstanding anything to the contrary contained in this Agreement the total liability of the Consultant under GHC Archaeology & Heritage Ltd. – “The Consultant” Commercial – In Confidence Terms and conditions of engagement or in connection with this Agreement and any warranties entered into by the Consultant whether in contract, tort, negligence (or delict) or breach of statutory duty, indemnity or otherwise shall not exceed in aggregate 150% of the total of Invoices submitted by GHC Archaeology & Heritage Ltd. under this agreement.

13. Time limitation.

The period of the Consultant’s liability is from the commencement date to 12 months from the date of the Agreement.

14. Net Contribution. If other consultants and/or contractors are, along with the Consultant, also involved in the project, then the proportion of compensation payable by the Consultant shall be limited solely to a just and equitable proportion of liability which is attributable to the Consultant’s breach and on the assumption that the relevant third parties have paid a just and equitable proportion having regard to the extent of their responsibility. The Consultant’s liability shall be limited to and form a part of the total aggregate amount set out in clause titled ‘Financial limitation’ above.

15. Force Majeure.

The Consultant shall not be liable for any delay or inability to perform Services caused by acts of God, fire, flood or

storm, pandemic, government actions, labour unrest, riots, terrorist acts, unusual traffic delays or other causes beyond its control. If such inability persists for a continuous period of more than 30 days, either party may terminate this Agreement by notice in writing to the other.

16. Entire agreement.

The Agreement constitutes the entire agreement between the parties relating to the Services/additional services

to be provided and supersedes any previous agreements or arrangements and undertakings between the parties in respect of the provision of services. The Client acknowledges that in entering into the Agreement it has not relied on any representation, warranty or undertaking, save as set out in the Agreement. Neither the Client nor the Consultant will have any claim in misrepresentation against the other save in respect of any representation, warranty or undertaking set out in the Agreement or made fraudulently by the other party.

17. Variations.

No addition to, or modification of, any provision in this Agreement shall be binding on either party unless made in writing

and signed by duly authorised representatives of both parties.

18. No Waiver.

No failure of either party to enforce its rights under this Agreement at any time for any period shall be construed as a

waiver of such rights.

19. Severability.

If any provision in this Agreement is found or held to be invalid or unenforceable, then the meaning of such provision

shall be construed, to the extent feasible, so as to render the provision enforceable and which most closely reflects the intent of entering into this Agreement.

20. Dispute Resolution.

Either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Consultant’s Representative and the

Client’s Representative shall attempt in good faith to resolve the Dispute. If for any reason the Parties are unable to resolve the dispute within 30 days of service, the Parties may agree to resolve their differences through Mediation without prejudice to any other dispute resolution rights.

21. Law Applicable.

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and the parties agree to submit irrevocably to the exclusive jurisdiction of the courts of England and Wales.

22. Expenses and Disbursements.

Mileage £0.55 per mile

Travel expenses, and disbursements will be charged at net cost plus a handing charge, which shall be calculated at the following percentage of net cost: 10%, unless otherwise agreed in advance.

The above charges are exclusive of Value Added Tax (VAT).

PRINTING (£) A4 A3 A2 A1 A0 B1

B/W paper & photocopy £0.10 £0.25

Colour photocopy £0.20 £0.50

Colour plot -- £1.85 £3.70 £7.35 £12.60 £8.40