Terms & Conditions
Client Checklist for our Terms and Conditions
ONCE YOUR BOOKING DETAILS HAVE BEEN COMPLETED AND BEFORE CLICKING TO AGREE TO THESE TERMS AND CONDITIONS, CHECK THIS LIST TO ENSURE THAT YOU HAVE CONSIDERED ALL THE KEY TERMS AND CONDITIONS.
· Have you read and understood our fees, expenses and payment terms? (see the Agreement Details).
· Have you read and understood our professional indemnity insurance to cover for your project? (see section the Agreement Details).
· Have you understood our internal complaints procedure and our refund policy? (see the Agreement Details)
· Have you read and understood our dispute resolution process? (see the Agreement Details)
· Have you read and understood our Schedule of Services, listing what we can provide and what we do not provide? (see Schedule of Services)
· Do you understand the terms of this agreement in the context of the Client’s right as a consumer. See the following clauses later in this document;
- Payment and Payment Notices (see clauses 5.10 to 5.24)
- The limitation of liability (see clauses 7.1 to 7.3)
- Professional indemnity insurance (see clause 8.1)
· 9 Do you understand your duties under the CDM Regulations 2015? See link for further information https://www.hse.gov.uk/construction/cdm/2015/index.htm
· 10 Will you be appointing a Principle Designer for your project for the pre-construction phase of the project or will you require The Two Architects to perform this role. See link for further information on Principle Designer https://www.hse.gov.uk/construction/cdm/2015/principal-designers.htm
If you require further advice on any of the above, please contact us at hello@thetwoarchitects.com
Guidance Notes to our Terms and Conditions
These guidance notes explain the provisions of our Terms and Conditions, based on the RIBA Domestic Professional Services Contract 2020 for the appointment of an Architect or Consultant providing architectural services and set out guidance on what to consider before agreeing to these Terms and Conditions; they do not form part of the Agreement.
Summary of the Agreement
The Terms and Conditions are divided into three main parts:
- 1 The Agreement details
- 2 The Terms and Conditions – Definitions
- 3 The Terms and Conditions - Clauses
- 4 The Schedule of Services
The Agreement is between the Client (the Party that wishes to commission the professional services, known as the ‘Services’) and The Two Architects (the person or organisation performing the Services). Together they are referred to as the ‘Parties’ to the Contract.
Under the CDM Regulations 2015, on projects with more than one contractor, a Principal Designer must be appointed to plan, manage, monitor and coordinate health and safety in the Pre-construction Phase of a project. The RIBA recommends that on domestic projects (projects for a consumer client) the default choice for the Principal Designer should be The Two Architects. The Two Architects will be able to act as Principle Designer for the pre-construction phase of the project but not during construction. If The Two Architects are being engaged for advice only and you already have a designer (including if the designer is also the contractor (known as Design and Build) then it is assumed your designer will be providing Principle Designer Services. We recommend you confirm this with your designer. On domestic projects, if the Client does not appoint a Principal Designer, the designer in control of the Pre-construction Phase of the project is deemed to be the Principal Designer.
The Two Architects must not commence work in relation to a project unless it is satisfied that the Client is aware of its duties under the CDM Regulations 2015. On domestic projects, for single-contractor projects, the Client’s duties are normally transferred to the Contractor. For projects involving more than one contractor, the duties are transferred to the Principal Contractor. If a Client has appointed The Two Architects, or other designer, as Principal Designer, the Client can ask them to manage the Project and take on the Client duties instead of the Principal Contractor. By reading these Terms and Conditions you are confirming you are aware of your duties.
The agreement terms should be compatible with the complexity of the Project and the risks to each Party and with the terms of the Agreement.
This agreement is not suitable for works where the property is to be let or for commercial or residential work undertaken for business clients, including charities, religious organisations, not-for-profit bodies, or where the Client is a public authority.
Consumer Rights
• The Client is a ‘consumer’ as defined under the Consumer Rights Act 2015. A contract with a consumer client is subject to the Consumer Rights Act 2015. The Act requires that all contracts for services must provide for the following:
– the trader must perform the service with reasonable care and skill
– information which is said or written is binding where the consumer relies on it
– where the price is not agreed beforehand, the service must be provided for a reasonable price
– the service must be carried out within a reasonable time.
• While the Agreement is designed as an entity and provides remedies for the Client in the event of default by The Two Architects, e.g. the requirement to maintain professional indemnity insurance and the options for dispute resolution, some of the terms may need careful explanation:
– payment and Payment Notices (see clauses 5.10 to 5.24) – the limitation of liability (see clauses 7.1 to 7.3)
– professional indemnity insurance (see clause 8.1)
– dispute resolution (see clause 10).
• If the Client comprises a married couple or joint residential occupiers, all the Client parties are consumers, but the Client should identify one of their number as their representative with full authority to act on behalf of the parties. This will be the name you have entered into our booking form.
• For work to the Client’s home or to a second home, the Client will be exempt from any statutory duties arising under:
– the Housing Grants, Construction and Regeneration Act 1996 as amended by Part 8 of the Local Democracy, Economic Development and Construction Act 2009, as a ‘residential occupier’
– the Late Payment of Commercial Debts (Interest) Regulations 2002.
However, if the Client’s second home is to be let at any time as a holiday rental or to other tenants, the Client will be deemed to be a business Client and the exemptions will not apply, thus this Contract is unsuitable and the RIBA Concise Professional Services Contract would be the appropriate choice.
Client’s Rights and Obligations
The Client has various obligations under the Contract. The principal ones include:
– informing The Two Architects of the Project requirements and of any subsequent changes required and agreeing steps to mitigate the consequences,
if any– providing the information which is necessary for the proper and timely performance of the Services
– making decisions and giving approvals as necessary for the performance of the Services
– paying The Two Architects for the Services performed
– appointing or otherwise engaging any Other Client Appointments required to perform work or services under separate agreements and requiring those appointed to collaborate with The Two Architects.
The Client also has rights under the Contract. The principal one is the right to suspend or terminate the performance of The Two Architects Services.
The Two Architect’s Rights and Obligations
The Two Architects has various obligations under the Contract. The principal ones include:
– exercising the reasonable skill, care and diligence to be expected of The Two Architects experienced in the provision of such services for projects of a similar size, nature and complexity to the Project
– performing the Services with due regard to the Project Brief
– informing the Client in a timely manner of progress in the performance of the Services and, upon becoming aware, of any issue that may materially affect the Project Brief, Project Programme, Construction Cost or quality of the Project, and of any information, decision or action required in mitigation
– collaborating with any Other Client Appointments appointed or otherwise engaged by the Client to perform work or services.
The obligations apply to the extent achievable using the standard of care outlined in clause 3.1.
The Two Architects also has rights under the Contract. The principal ones include:
– the right to retain copyright in the drawings and documents produced in either paper or digital formats for the purpose of performing the Services (the Client is given a licence to copy and use the drawings and documents for purposes related to the construction of the Project or its subsequent use or sale)
– the right to suspend or terminate performance of the Services due to the Client’s failure to pay any fees or other amounts due.
The Agreement
By agreeing to the Terms and Conditions listed in this agreement, the contract is deemed to be legally binding and the contract is executed as a Simple Contract
Because this is a consumer contract, the Client has the statutory right to cancel the Contract within 14 days of accepting the Terms and Conditions and The Two Architects shall refund any money received from the Client, apart from that received for any work, services or goods that the Client has agreed to pay for. To cancel the Contract, the Client must send The Two Architects a written notice of cancellation to hello@thetwoarchitects.com.
1 Agreement Details
This Agreement is between:
the Client (the name inserted in the booking form)
AND
the Architect/Consultant (The Two Architects)
Registered address 103 Victorian Grove, N16 8EJ
Contact; hello@thetwoarchitect.com
who agree as follows:
· The Two Architects shall undertake the Services set out in the Schedule of Services and shall perform The Two Architects's obligations in accordance with the terms of this agreement.
· The Client shall pay The Two Architects the fees and expenses set out in the Agreement Details for the Services and shall perform the Client’s obligations in accordance with the terms of the Agreement.
· The Agreement is based on the RIBA Domestic Professional Services Contract 2020 for Architectural Services.
· The terms of this Agreement have been explained in the context of the Client’s rights as a consumer.
The agreement is Executed as a: simple contract
This Agreement is dated and delivered: as per the date you accepted the Terms and Conditions
The Site Address: is as per address inserted in the booking form
Basic Fee - refer to website for the following;
1 hour online meeting
Bundle of 6 1 hour online meetings
Hrly rate for work completed by one of The Two Architects outside of online meeting time
Hrly rate for work completed by an assistant outside of online meeting time
In person 2hr visit to property in London (rate may increase based on availability
Please note that availability for meetings is on demand basis and we cannot confirm availability for future meetings.
Principle Designer Services
If The Two Architects is to undertake the role of Principal Designer, then the fees, excluding VAT, for providing this service are as per the hourly rates listed on our website.
VAT: VAT does not apply to the Basic fee.
Site Inspections
The Two Architects do not offer Contract Administration services during construction. You will be responsible for managing the contract with the Contractor. Site visits can be booked to provide consultancy advice.
Payment
Payment for online meetings and for site visits in London will be paid for automatically via our booking platform.
Payments for work to be completed outside of meetings on an hourly rate will be invoiced by email and to be paid in advance of the work.
Professional Indemnity Insurance
The amount of professional indemnity insurance cover to be maintained for the Project shall be: £250,000.
Professional indemnity insurance cover shall be maintained by The Two Architects for the above amount, except for claims arising out of:
- Pollution or contamination, with an aggregate limit of £250,000
- Asbestos, with an aggregate limit of £250,000
- Cladding or fire related issues, with an aggregate limit of £250,000
Dispute Resolution
Initial Dispute Resolution Process
Mediation – The Parties may agree to try to resolve their differences through mediation without prejudice to any other dispute resolution rights.
Adjudication - In accordance with the RIBA Consumer Contracts Adjudication Scheme
Final Dispute Resolution Process
Litigation
With regard to the appointment of a Mediator or Adjudicator, either Party may apply for a nomination or appointment to be made by the Royal Institute of British Architects.
Information Format
Drawings and documents produced by The Two Architects using computer aided design (CAD), any other proprietary software or building information modelling (BIM) in connection with the Services shall be provided in the following format: PDF
2 Terms and Conditions - Definitions
The Two Architects: the organisation that the Client appoints to perform the Services.
Basic Fee : the fee for the Services excluding VAT and any additional charges, such as expenses, disbursements, etc.
Building Contract : the contract between the Client and the Contractor for the construction of the Project.
CDM Regulations 2015 : the Construction (Design and Management) Regulations 2015 and any guidance as issued, amended or replaced from time to time by the Health and Safety Executive, which govern the management of health, safety and welfare for construction projects.
Client : the person referred to in item A of the Contract Details. This also includes the Client’s Representative where one is appointed by the Client with full authority to act on behalf of the Client for all purposes in connection with the matters set out in the Contract, except where advised to the contrary.
Confidential Information : all information relating to the Project and the Client's and The Two Architects’s business and affairs which either Party directly or indirectly receives or acquires from the other Party or any representative of the other Party whether in writing, by electronic mail or orally and which is not otherwise already in the public domain.
Construction Cost : the Client’s target cost for the building works as specified in the Project Brief, as set out in item D of the Contract Details (being the Client’s initial budget), and subsequently the latest estimate approved by the Client or, where applicable, the actual cost of constructing the Project upon agreement or determination of the final account for the Project. The Construction Cost includes the cost of any equipment and/or materials provided or to be provided by the Client to the Contractor for installation as part of the Project, and any direct works carried out by or on behalf of the Client. The Construction Cost excludes VAT, professional fees, the cost of resolution of any dispute, the Client’s legal and in-house expenses and any loss and/or expense payments made to the Contractor and is not affected by any liquidated damages deducted by the Client.
Construction Phase : the period of time beginning when construction work on a Project starts and ending when construction work on that Project is completed.
Contractor : the party referred to as the Contractor in the Building Contract.
Final Date for Payment : the date, specified in clause 5.13, by which a payment that is due shall be paid.
Health and Safety File : the file required by the CDM Regulations 2015, which contains relevant health and safety information needed to allow future construction works, including cleaning, maintenance, alterations, refurbishment and demolition, to be carried out safely.
Notified Sum : the sum set out in a Payment Notice or in a default notice.
Other Client Appointments : other consultant or services appointments which have been, or will need to be, made by the Client to enable The Two Architects to undertake its work in connection with the Project.
Party/Parties : the signatories to the Agreement: the Client and The Two Architects described in items A and B of the Contract Details.
Payment Notice : a notice that The Two Architects issues to the Client, in accordance with clauses 5.10 to 5.15, showing the payment that The Two Architects considers is due and how it was calculated.
Practical Completion : when the works are certified as having achieved 'Practical Completion' under the terms of the Building Contract.
Pre-construction Information : information in the Client’s possession or which is reasonably obtainable by or on behalf of the Client, which is relevant to the construction work and is of an appropriate level of detail and proportionate to the risks involved.
Pre-construction Phase : any period of time during which design or preparatory work is carried out for a project, which may continue during the Construction Phase.
Principal Contractor : a contractor appointed by the Client as Principal Contractor under the CDM Regulations 2015.
Principal Designer : a designer appointed by the Client as Principal Designer under the CDM Regulations 2015. This shall be The Two Architects, if so selected in the Schedule of Services.
Project : as described in the Project Brief, item D of the Contract Details.
Project Brief : the Client’s requirements for the Project, as initially set out in item D of the Contract Details and including any revisions made by The Two Architects and approved by the Client.
Project Programme : the Client’s initial programme for the Project, as specified in item D of the Contract Details, and including any revisions made by The Two Architects and approved by the Client.
Schedule of Services : the schedule specifying the Services and additional services to be undertaken by the The Two Architects in connection with the Project, which is incorporated into the Contract.
Services : the professional services to be performed by The Two Architects specified in the Schedule of Services, which may be varied by agreement.
* ‘Architect’ is a legally protected title in the UK, which can only be used by people registered under the Architects Act 1997 with the Architects Registration Board (ARB).
3 Terms and Conditions - Clauses
1 General Interpretation
1.1 Where under the Contract an action is required to be taken within a specified period, in calculating a period, a day shall be a calendar day and a date shall be a calendar date. When a period is calculated it shall exclude public holidays.
1.2 The provisions of the Contract continue to bind the Client and The Two Architects as long as is necessary to give effect to the Parties' respective rights and obligations.
1.3 The Contract supersedes any previous agreement or arrangements between the Client and The Two Architects in relation to the Services (whether oral or written) and represents the entire agreement between the Client and The Two Architects in relation to the Services. All additions, amendments and variations to the Contract shall be binding only if agreed in writing by duly authorised representatives of both the Client and The Two Architects.
1.4 If any clause or part of any clause of the Contract is ruled by the courts or declared to be invalid or unenforceable in any way, it shall be severed from the Contract and this shall not affect any other clause of the Contract, nor the validity of the remaining clauses of the Contract, which shall remain in full force.
1.5 The Contract is subject to the law of England and Wales and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.
1.6 Subject to clause 3.1 of the Contract Conditions, to the extent that either Party processes personal data, as part of the Contract, the Party undertakes to do so in compliance with the General Data Protection Regulation (GDPR) and to keep such personal data in a secure technological environment.
Client’s Responsibilities
2.1 The Client shall:
2.1.1 inform The Two Architects of the Project Brief, Construction Cost, the Project Programme and the Services required and, as soon as reasonably practicable, of any subsequent changes required, and agree steps to mitigate the consequences of such changes
2.1.2 provide, free of charge, information in the Client’s possession, or which is reasonably obtainable, and which The Two Architects reasonably advises is necessary for the proper and timely performance of the Services, and he Two Architects shall be entitled to rely on such information
2.1.3 make decisions and give approvals as necessary for the proper and timely performance of the Services
2.1.4 appoint or otherwise engage any Other Client Appointments required to perform work or services under separate agreements and require them to collaborate with The Two Architects. The Client shall confirm in writing to The Two Architects the work or services to be performed by any Other Client Appointments
2.1.5 hold the Other Client Appointments, and not The Two Architects, responsible for the proper carrying out and completion of the work or services entrusted to them under any Other Client Appointments
2.1.6 hold the Contractor(s) appointed to undertake construction works, and not The Two Architects, responsible for the proper carrying out and completion of construction works in compliance with the Building Contract
2.1.7 where The Two Architects is appointed as Contract Administrator for the Building Contract, not deal with the Contractor directly or interfere with The Two Architects’s duties under the Building Contract
2.1.8 not hold The Two Architects responsible for any instructions issued by the Client to the Other Client Appointments or Contractor
2.1.9 pay any statutory charges and any fees, expenses and disbursements in respect of any obligations for planning, building control and other consents
2.2 The Client may issue reasonable instructions to The Two Architects. The Client’s named representative, as indicated in item A of the Contract Details, shall have full authority to act on behalf of the Client for all purposes in connection with the matters set out in the Contract.
2.3 The Client acknowledges that The Two Architects does not warrant:
2.3.1 that planning permission and other approvals from third parties shall be granted at all or, if granted, will be granted in accordance with any anticipated timescale
2.3.2 compliance with any Project Programme and Construction Cost, which may need to be reviewed for, but not limited to:
(a) variations instructed by the Client
(b) fluctuations in market prices
(c) delays caused by any Other Client Appointments, the Contractor or any other factor that is not the responsibility of The Two Architects under the Contract
(d) the discovery at any time of previously unknown factors which were not reasonably foreseeable at the date of the Contract
2.3.3 the competence, performance, work, services, products or solvency of any Other Client Appointments or the Contractor.
2.4 The Client shall not disclose Confidential Information unless:
2.4.1 disclosure is necessary to take professional advice in relation to the Contract or the Services
2.4.2 it is already in the public domain other than due to wrongful use or disclosure by the Client
2.4.3 disclosure is required by law or because of disputes arising out of or in connection with the Contract
3 The Two Architects’s Responsibilities
3.1 In the performance of the Services and discharging all the obligations under the Contract, The Two Architects will exercise the reasonable skill, care and diligence to be expected of The Two Architects experienced in the provision of such services for projects of a similar size, nature and complexity to the Project. Notwithstanding anything that may appear elsewhere to the contrary, whether under this Contract or otherwise, The Two Architects’s duties and obligations shall be deemed to be subject to the exercise of such reasonable skill, care and diligence and nothing contained in this Agreement or elsewhere shall be construed as imposing on The Two Architects any greater duty than the exercise of such reasonable skill, care and diligence.
3.2 The Two Architects shall:
3.2.1 perform the Services with due regard to the Project Brief
3.2.2 inform the Client of progress in the performance of the Services and, upon becoming aware, of any issue that may materially affect the Project Brief, Project Programme, Construction Cost or quality of the Project, and any information, decision or action required in mitigation
3.2.3 inform the Client of a need to make any Other Client Appointments to perform work in connection with the Project and/or any information, decision or action required from the Client or Other Client Appointments in connection with the performance of the Services
3.2.4 act on behalf of the Client in the matters set out in the Contract or in relation to any project procedures agreed with the Client from time to time, subject to the Client’s prior written approval
3.2.5 if acting as Contract Administrator for the Building Contract, exercise impartial and independent judgement when acting as an intermediary between the Client and the Contractor
3.2.6 collaborate with any Other Client Appointments named in the Contract Details or any other parties who might reasonably be expected to perform work or services and, where indicated in the Services, The Two Architects shall coordinate relevant information received from such persons with The Two Architects’s design, but The Two Architects shall not be responsible for the content of the information received
3.2.7 make no material alteration to the Services or an approved design without the prior written consent of the Client, except in an emergency, whereupon The Two Architects shall confirm such actions to the Client without delay.
3.3 Subject to clause 3.4, The Two Architects shall have the right to publish photographs and other information relating to the Project, and the Client shall give reasonable access to the Project for this purpose for 2 years after Practical Completion.
3.4 The Two Architects shall not disclose Confidential Information unless:
3.4.1 disclosure is necessary for the proper performance of the Services, or in order to take professional advice in relation to the Contract or the Services, or in order to obtain/maintain insurance cover as required by the Contract
3.4.2 it is already in the public domain other than due to wrongful use or disclosure by The Two Architects
3.4.3 disclosure is required by law or because of disputes arising out of or in connection with the Contract.
4 Assignment, Subcontracting, Novation and Third Party Rights
4.1 Neither The Two Architects nor the Client shall at any time assign the benefit of the Contract or any rights arising under it without the prior written consent of the other. Such consent shall not be unreasonably withheld or delayed.
4.2 The Two Architects shall not subcontract performance of any part of the Services without the prior consent of the Client, and such consent shall not be unreasonably withheld or delayed. Any such subcontracting shall not relieve The Two Architects of responsibility for carrying out and completing the Services in accordance with the Contract. Such consent shall not be required for agency or self-employed staff.
4.3 The Parties may, by agreement, novate the Contract on terms to be agreed.
4.4 There is no intention to grant rights to third parties pursuant to the Contracts (Rights of Third Parties) Act 1999, other than to lawful assignees.
5 Fees and Expenses
5.1 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 Contract Details.
5.2 The Basic Fee for performance of the Services shall be as specified in item F of the Contract Details and may be any or a combination of:
5.2.1 the specified percentage or percentages applied to the Construction Cost. Until the actual cost of the building work is known, the percentages are applied to the latest approved estimate of the cost of the building work or the Building Contract sum. The total fee shall be adjusted based on the final Construction Cost on completion of the Services. The cost shall exclude VAT, fees and any claims made by or against the Contractor
5.2.2 the separate percentages specified for each RIBA Plan of Work stage applied to the Construction Cost at the end of the previous stage
5.2.3 the specified lump sum or sums
5.2.4 the time charges ascertained by multiplying the time reasonably spent in the performance of the Services by the specified hourly or daily rate for the relevant personnel, as set out in item G of the Contract Details. Time ‘reasonably spent’ includes the time spent in connection with performance of the Services in travelling from and returning to The Two Architects’s office
5.2.5 any other agreed method.
5.3 Lump sums and rates for time charges, mileage and printing shall be revised every 12 months in accordance with changes in the Consumer Prices Index. Each 12-month period commences on the anniversary of the date of the Contract.
5.4 The Basic Fee shall be adjusted:
5.4.1 including due allowance for any loss and/or expense, if material changes are made to the Project Brief and/or the latest approved estimate of the cost of the building work and/or Project Programme save to the extent that any changes arise from a breach of the Contract by The Two Architects and/or the Services are varied by agreement
5.4.2 where percentage fees in accordance with clause 5.2.1 or 5.2.2 apply, to compensate The Two Architects for any reduction of the Construction Cost arising solely from deflationary market conditions not prevailing at the date of the Contract
5.4.3 if the Client instructs a reduction in the Project Brief during the performance of the Services, or there is a reduction in the Construction Cost due to deflationary market conditions, the figure to which the percentage Basic Fee shall be applied, up to the date of the instruction or reduction, shall be the current professionally prepared estimate of the Construction Cost or the lowest acceptable tender (whichever is later) immediately prior to the instruction or reduction.
5.5 Subject to clause 5.6, if The Two Architects is involved in extra work or incurs extra expense for reasons beyond The Two Architects’s reasonable control, additional fees shall be calculated on a time basis in accordance with clause 5.2.4 at the rate(s) set out in item G of the Contract Details unless otherwise agreed. Matters in relation to which The Two Architects shall be entitled to additional fees include, but are not limited to, where:
5.5.1 the cost of any work, installation or equipment, in connection with which the The Two Architects performs Services, is not included in the Construction Cost
5.5.2 The Two Architects is required to vary any Service already commenced or completed or to provide a new design after the Client has authorised development of an approved design
5.5.3 the nature of the Project reasonably requires that substantial parts of the design are not completed or that they are specified provisionally or approximately before construction commences
5.5.4 performance of the Services is delayed, disrupted or prolonged.
5.6 The Two Architects shall inform the Client on becoming aware that clause 5.5 shall apply. Clause 5.5 shall not apply to the extent that any change or extra work or expense arises from a breach of the Contract by The Two Architects.
5.7 The Client shall reimburse The Two Architects for expenses and disbursements in the manner specified in item H of the Contract Details.
5.8 The Two Architects shall maintain records of time spent on Services performed on a time basis and for any expenses and disbursements to be reimbursed at net cost. The Two Architects shall make such records available to the Client on reasonable request.
5.9 Where The Two Architects is instructed by the Client to invite a tender or tenders for work or services in connection with the Project but no tender is submitted or accepted, The Two Architects shall be entitled to fees due up to and including the receipt of tenders based on the construction work or that part of it relating to the Services current at the date of tender.
Payment Notices
5.10 The Two Architects shall issue Payment Notices at the intervals specified in item I of the Contract Details.
5.11 In the event of non-payment of any amount properly due to The Two Architects under the Contract, The Two Architects is entitled to interest on the unpaid amounts under the provisions of clause 5.22. The Two Architects may:
5.11.1 suspend use of the copyright licence under the provisions of clause 6
5.11.2 suspend or terminate performance of the Services and other obligations under the provisions of clause 9
5.11.3 commence dispute resolution procedures and/or debt recovery procedures.
5.12 Each Payment Notice shall comprise The Two Architects’s account, setting out any accrued instalments of the fee and other amounts due, less any amounts previously paid, and stating the basis of calculation of the amount specified, which shall be the Notified Sum. The payment due date shall be the date of The Two Architects’s Payment Notice. Instalments of fees shall be calculated on The Two Architects’s reasonable estimate of the percentage of completion of the Services or stages or other services or any other specified method.
5.13 The Client shall pay the Notified Sum within 14 days of the date of issue of the relevant Payment Notice (which shall be the Final Date for Payment) unless:
5.13.1 the Two Architects has become insolvent (as defined in the Housing Grants, Construction and Regeneration Act 1996) at any time between the last date on which the Client could have issued the notice under clause 5.16 and the Final Date for Payment
5.13.2 the Client has issued a notice under clause 5.16.
5.14 The Client shall not delay payment of any undisputed part of the Notified Sum.
5.15 The Two Architects shall submit the final Payment Notice for fees and any other amounts due when The Two Architects reasonably considers the Services have been completed.
Notice of Intention to Pay Less
5.16 If the Client intends to pay less than the Notified Sum, the Client shall give a written notice to The Two Architects not later than 5 days before the Final Date for Payment, specifying:
5.16.1 the amount that the Client considers to be due on the date the notice is served
5.16.2 the basis on which that sum is calculated
5.16.3 the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it.
5.17 The Client shall, on or before the Final Date for Payment, make payment to The Two Architects of the amount, if any, specified in the written notice.
5.18 If no such notice is given, the amount due and payable shall be the Notified Sum stated as due in The Two Architects’s account. The Client shall not delay payment of any undisputed part of the account.
5.19 If the Client issues such a notice and the matter is referred to an Adjudicator who decides that an additional sum, greater than the amount stated in the notice of intention to pay less, is due, the Client shall pay that sum within 7 days of the date of the decision or the date which, in the absence of the notice, would have been the Final Date for Payment, whichever is the later.
5.20 The Client shall not withhold any amount due to The Two Architects under the Contract unless the amount has been agreed with The Two Architects or has been decided by any tribunal to which the matter is referred as not being due to The Two Architects.
5.21 If the performance of any or all of the Services and/or obligations is suspended or terminated, The Two Architects shall be entitled to:
5.21.1 payment of any part of the fee and other amounts properly due to the date of the last instalment and a fair and reasonable amount up to the date of suspension or termination to reflect any work undertaken but not completed at the time of suspension or termination and payment of any licence fee due under clause 6
5.21.2 reimbursement of any loss and/or damages caused to The Two Architects due to the suspension or the termination, except where The Two Architects is in material or persistent breach of the obligations under the Contract. 5.22 In the event that any amounts are not paid when properly due, The Two Architects shall be entitled to simple interest on such amounts until the date that payment is received at 8% per year over the dealing rate of the Bank of England, current at the date that payment becomes overdue, together with such costs as are reasonably incurred by The Two Architects (including costs of time spent by principals, employees and advisers) in obtaining payment of any sums due under the Contract. Any entitlement to interest at the specified rate shall also apply to any amounts that are awarded in adjudication, arbitration or legal proceedings.
5.23 The Client or The Two Architects shall pay to the other Party who successfully pursues, resists or defends any claim or part of a claim brought by the other:
5.23.1 such costs as are reasonably incurred (including costs of time spent by principals, employees and advisers) where the matter is resolved by negotiation or mediation
5.23.2 such costs as may be determined by any dispute resolution body to which the matter is referred.
5.24 In addition to the fees and expenses, the Client shall pay any VAT chargeable on The Two Architects’s fees and expenses.
6 Copyright and Licence
6.1 Subject to clause 6.3, The Two Architects shall own all intellectual property rights, including the copyright in the drawings and documents produced in performing the Services, and this clause generally asserts The Two Architects’s moral right to be identified as the author of such work.
6.2 No part of any design by The Two Architects may be registered under the Registered Designs Regulations 2001 by the Client without the written consent of The Two Architects.
6.3 To the extent that fees and other amounts properly due are paid, the Client shall have a licence to copy and use all drawings and documents provided by The Two Architects in either paper or digital formats only for purposes related to construction of the Project or its subsequent use or sale. They may not be used for reproduction of the design for any part of any extension of the Project or any other project.
6.4 Copying or use of the drawings and documents which have been provided in either paper or digital formats by any Other Client Appointment providing services to the Project shall be deemed to be permitted under a sub-licence granted by the Client, whether such drawings and documents were issued by the Client or on the Client’s behalf.
6.5 The Two Architects shall be liable to the Client in respect of any reasonably foreseeable and fully mitigated expenses, losses or damages directly suffered by the Client as a result of the work of The Two Architects being in breach of copyright or any other intellectual rights of any third party.
6.6 The Two Architects shall not be liable for any use of the drawings and documents which have been provided in either paper or digital formats other than for the purpose for which they were prepared and provided by The Two Architects.
6.7 If at any time the Client is in default of payment of any fees or other amounts properly due, The Two Architects may suspend further use of the licence and any sublicences for the drawings and documents to which the unpaid monies relate on giving 7 days’ notice of the intention to do so. Use of the licence may be resumed on receipt of such outstanding amounts.
6.8 The licence shall stay in force, notwithstanding the expiry or termination of the Contract, unless it is suspended at the date of such expiry or termination.
6.9 The Basic Fee for the performance of the Services shall include all royalties, licence fees or similar expenses for the making, use or exercise by The Two Architects of any invention or design patents, etc. for the purpose of performing the Services.
7 The Two Architects’s Liability
7.1 Actions or proceedings arising out of or in connection with the Contract, whether in contract, in tort, for negligence or breach of statutory duty or otherwise, shall not be commenced after the expiry of 6 or 12 years, depending on how the Contract is executed, from the date of Practical Completion or the date of completion of the last Services, whichever is the earlier.
7.2 In any such action or proceedings:
7.2.1 The Two Architects’s liability for loss or damage shall not exceed the amount of The Two Architects’s professional indemnity insurance specified in item J of the Contract Details
7.2.2 no employee of The Two Architects or any agent of The Two Architects shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services.
7.3 In respect of any claim by the Client under the Contract, and without prejudice to the provisions of clause 7.2.1, The Two Architects’s liability shall be limited to such sum as shall be agreed between the Parties or adjudged by the court to be the proportion of the loss to the Client caused by The Two Architects’s failure to exercise reasonable skill, care and diligence in the performance of its duties under the Contract. This proportion is to be calculated on the basis that:
7.3.1 all other consultants, contractors and Other Client Appointments providing work or services for the Project are deemed to have provided to the Client contractual undertakings in respect of their work or services on terms materially no less onerous than those which apply to The Two Architects under the Contract
7.3.2 there are deemed to be no exclusions or limitations of liability or joint insurance or co-insurance provisions between the Client and any other person referred to in this clause
7.3.3 all the persons referred to in this clause are deemed to 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.
8 Professional Indemnity Insurance
8.1 The Two Architects shall maintain, until the expiry of the period specified in clause 7.1, professional indemnity insurance with a limit of indemnity not less than the amount or amounts specified in item J of the Contract Details, provided such insurance continues to be offered on commercially reasonable terms to The Two Architects at the time when the insurance is taken out or renewed. The Two Architects, when reasonably requested by the Client, shall produce for inspection a broker’s letter or certificate confirming that such insurance has been obtained and is being maintained.
8.2 The Two Architects shall inform the Client as soon as practicable upon becoming aware that such insurance ceases to be available on commercially reasonable terms or, subsequent to the date of the Contract, any restrictions are attached to the policy or an aggregate limit applies to any matters other than those specified in the Contract Details in order that The Two Architects and the Client can discuss the best means of protecting their respective positions.
9 Suspension or Termination
9.1 The Client may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving The Two Architects at least 7 days’ written notice and stating the reason for doing so.
9.2 The Two Architects may suspend or terminate performance of any or all of the Services and other obligations under the Contract by giving the Client at least 7 days’ written notice and stating the grounds on which it intends to do so. Such grounds are limited to:
9.2.1 the Client’s failure to pay any fees or other amounts due by the Final Date for Payment unless, where applicable, the Client has given effective notice under clause 5.16 of the intention to pay less than the amount stated in The Two Architects’s Payment Notice
9.2.2 the Client is in material or persistent breach of its obligations under the Contract
9.2.3 The Two Architects is prevented from or impeded in performing the Services for reasons beyond The Two Architects’s control.
9.2.4 force majeure
9.2.5 any other reasonable grounds for suspension or termination of the Contract.
9.3 In the event of suspension or termination, The Two Architects shall cease performance of the Services and/or other obligations under the Contract in an orderly and economical manner on the expiry of the notice period after receipt or issue of a notice of suspension or termination.
9.4 If the reason for a notice of suspension arises from a default:
9.4.1 which is remedied within the notice period, The Two Architects shall resume performance of the Services and other obligations under the Contract within a reasonable period
9.4.2 which is not remedied within the notice period by the defaulting Party, the Contract may be terminated by the non-defaulting Party giving at least 7 days’ further written notice.
9.5 Where Services are suspended by either Party after serving notice under clause 9.1 or clause 9.2 and not resumed within 6 months, The Two Architects has the right to treat performance of the Services as ended on giving at least 7 days’ further written notice to the Client.
9.6 The direct or indirect effect of any period of suspension arising from a valid notice given under clause 9.1 or clause 9.2 shall be taken into account for the purposes of assessing compliance by The Two Architects with the Project Programme.
9.7 Performance of the Services and/or other obligations may be terminated immediately by notice from either Party if:
9.7.1 the other Party becomes bankrupt or is subject to a receiving or administration order, and/or goes into liquidation, and/or becomes insolvent (as defined in the Housing Grants, Construction and Regeneration Act 1996), and/or makes any arrangements with creditors
9.7.2 the other Party becomes unable to perform its obligations through death or incapacity.
9.8 On termination of performance of the Services and/or other obligations under the Contract, a copy of any drawings and documents produced pursuant to the Services and not previously provided by The Two Architects to the Client shall be delivered to the Client by The Two Architects, subject to the terms of the licence under clause 6.3 and payment of any outstanding fees and other amounts due plus the reasonable expenses of The Two Architects.
10 Dispute Resolution Mediation
10.1 In the event of any dispute or difference arising under the Contract, the Parties may attempt to settle the dispute, in the first instance, by mediation as specified in item K of the Contract Details.
Adjudication
10.2 Where it is stated in item K of the Contract Details that adjudication applies:
10.2.1 either Party may give notice at any time of its intention to refer a dispute or difference to an Adjudicator
10.2.2 the appointment of the Adjudicator shall be made in accordance with the procedure identified in item K of the Contract Details
10.2.3 the referral of the dispute to an Adjudicator shall be made within 7 days of the issue of the notice
10.2.4 if the Parties cannot reach agreement on a person to act as Adjudicator, either Party may apply for a nomination or appointment to be made by the Royal Institute of British Architects.
10.3 The dispute may be referred by either Party to the final resolution process, as set out in item K of the Contract Details.
Arbitration
10.4 Where it is stated in item K of the Contract Details that arbitration applies as an alternative to litigation:
10.4.1 if 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 or difference shall be referred to a person to be agreed between the Parties. If the Parties cannot reach agreement on a person to act as Arbitrator within 14 days of the date on which the notice is served, either Party may apply for a nomination or appointment to be made by the Royal Institute of British Architects
10.4.2 the Client or The Two Architects may refer to litigation any claim for a financial remedy which does not exceed the financial limit provided by order made under section 91 of the Arbitration Act 1996
10.4.3 in such arbitration the Construction Industry Model Arbitration Rules (CIMAR) current at the date of the referral shall apply
10.4.4 the Arbitrator shall not have the power referred to in section 38(3) of the Arbitration Act 1996.
Litigation
10.5 Where it is stated in item K of the Contract Details that litigation applies, either Party may start court proceedings to settle a dispute.
11 Information Formats
11.1 Where produced using CAD, BIM or other proprietary software, drawings and documents shall be provided to the Client in PDF format only, unless an alternative format has been agreed and set out in item L of the Contract Details.
11.2 Without prejudice to The Two Architects’s obligations under the Contract, The Two Architects does not warrant, expressly or impliedly, the integrity of any electronic data delivered in accordance with the provisions of item L of the Contract Details.
11.3 The Two Architects shall have no liability to the Client in connection with any corruption or any unintended amendment, modification or alteration of the drawings and documents in digital format which occurs after they have been issued by The Two Architects.
12 Client’s Right to Cancel
12.1 The Client has the right to cancel the Contract, for any reason, by sending a notice of cancellation to The Two Architects at any time within 14 days of signing the Agreement.
12.2 The notice of cancellation is deemed to be served as soon as it is posted to The Two Architects or, in the case of an electronic communication, on the day that it is sent to The Two Architects.
12.3 If The Two Architects was instructed to perform any services before the Contract was made or before the end of the 14-day period and the instruction(s) were confirmed in writing, The Two Architects shall be entitled to any fees and expenses properly due before The Two Architects received the notice of cancellation.
4 Schedule of Services
The Two Architects stage names have been used in this section. Note, Items that cannot be provided during online meetings have been identified.
Concept Design
• Review relevant information from the Client to discuss the Client’s strategic brief
• Visit the site and carry out an initial appraisal CANNOT BE PROVIDED IN ONLINE MEETINGS, SITE VISIT RATES WILL APPLY
• Advise the client to arrange surveys or other investigations that The Two Architects identifies as reasonably required
• Contribute to the development of the Project Programme
• Advise on the Construction Cost with the Client
• Assist the Client in developing the initial Project Brief
• Prepare and discuss feasibility studies for the Project (either in meeting or can be done as additional work)
• Advise on the Other Client Appointments required to carry out the Project
• Coordinate the relevant information received from the Other Client Appointments with The Two Architects’s design
• Provide architectural design information and identify the reasonably foreseeable residual health and safety risks (under the CDM Regulations 2015)
Planning Application
• Prepare the design in sufficient detail to enable spatial coordination CANNOT BE PROVIDED DURING ONLINE MEETINGS
• Assist the client in coordinating the relevant information received from the Other Client Appointments with The Two Architects’s design
• Advise the Client on the Project Programme
• Provide updated Construction Cost advice to the Client
• Provide architectural design information and identify the reasonably foreseeable residual health and safety risks (under the CDM Regulations 2015)
• Advise the client on appointing a consultant to prepare a planning application OR Prepare information to support a planning application and/or listed building consent application to the appropriate planning authority , subject to hourly rates.
• Submit a planning application and/or listed building consent application to the appropriate planning authority or provide the client with advice for doing it themselves. Subject to hrly rates.
Layout Design + Interior Design
• Advise the Client of the planning conditions
• Prepare Layout Drawings in sufficient detail to enable a tender or tenders to be obtained, excluding specification, technical details and finishes schedules. These cannot be produced by The two Architects.
• Assist the Client to coordinate the relevant information received from the Other Client Appointments with The Two Architects’s design
• Provide updated Construction Cost information to the Client
• Assist the client to prepare the schedule of works
• Identify the extent of the technical design work that is to be completed by the Contractor or the specialist subcontractors
• Provide advice on submitting the Building Regulations application with the Contractor. Submission cannot be done by The Two Architects
• Provide architectural design information and identify the reasonably foreseeable residual health and safety risks (under the CDM Regulations 2015)
Getting Quotes
• Advise the Client on potential contractors to be invited to tender for the construction works
• Advise the Client on collating other Appointments’ tender information and issue the tender pack to the Contractors.
• Appraise on tenders
• Coordinate the design work prepared by the Contractor and the specialist subcontractors with The Two Architects’s design
• Advise the Client on the appropriate form of Building Contract, its conditions and the responsibilities of the Client, the Other Client Appointments and the Contractor
• Advise the Client of any insurances required under the Building Contract by the Contractor.
• Advise the Client on the Building Contract and arrangements for it to be prepared and signed/executed
• Coordinate and submit an application to the appropriate planning authority for clearance of pre-commencement planning conditions
Construction
• Provide consultancy design advice during the construction of the project.
• Visit the site as and when booked by the Client to assist with design advice.
• Provide advice via video link to the Client or the Contractor during construction.
• Provide updates to drawings on an hourly rate.