General Terms of Contract
Finitas Engineering Ltd
These conditions (“Conditions”), construed under English Law for projects in England & Wales, under the Laws of Scotland for projects in Scotland, under the Law of Northern Ireland for projects in Northern Ireland, or under the Law of the Republic of Ireland for projects in the Republic of Ireland, are applicable to the appointment of Finitas Engineering Ltd (“the Firm”) by the “Employer” for the provision of Consulting Engineering Services on the Project. They shall be read in conjunction with the Firm’s covering letter, fee proposal, schedules and referenced documents, which collectively comprise the contract (“Contract”) between the Firm and the Employer. Where there is any discrepancy between clauses in different documents, these Conditions shall prevail unless expressly stated otherwise.
Limitation
No action or proceedings for any breach of the Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be commenced against Finitas Engineering Ltd after the expiry of six (6) years from the date of completion of the Services under the Contract.
Applicable Terms
If any provision of the Contract is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
Provision of Services
The Contract incorporates the Association of Consulting Engineers (ACE) Conditions of Engagement as referenced within the quotation documentation, except where amended by these Conditions. The Firm shall exercise reasonable skill and care in the performance of its Services. Nothing in the Contract shall be construed as imposing a duty on the Firm greater than the use of reasonable skill and care in accordance with the normal standards of its profession.
Firm’s Total Liability
Subject always to liability for death or personal injury arising from negligence, fraud or fraudulent misrepresentation, the total aggregate liability of Finitas Engineering Ltd to the Employer for any one claim or series of claims arising out of the same originating cause under or in connection with the Contract (whether in contract, tort including negligence, breach of statutory duty or otherwise) shall not exceed the level of Professional Indemnity Insurance maintained by the Firm at the time the claim arises, being £1,000,000 (one million pounds), or such lesser sum as stated in the Contract. The Firm’s liability shall in any event be limited to such sum as it would be just and equitable for the Firm to pay having regard to the extent of its responsibility for the loss or damage suffered.
Fees and VAT
The Firm’s fees are exclusive of VAT. VAT shall be added at the prevailing rate at the time of invoicing.
Appointment and Commencement of Work
An appointment may be made by acceptance of a written fee proposal, email correspondence, verbal agreement, instruction to proceed, or other conduct demonstrating the Employer’s intention to appoint the Firm. A signed appointment or fee proposal is not required unless expressly stated by the Firm.
Where the Firm commences Services following an instruction from the Employer or their authorised representative, the Employer shall be liable for the agreed fees notwithstanding that a formal appointment, purchase order or other contractual documentation has not been signed or completed.
Payment Terms
Unless otherwise agreed in writing, the following payment terms shall apply:
Domestic Clients
For residential and domestic commissions, the following payment terms apply:
- Fees below £500.00 (excluding VAT): Payment in full is required upon instruction. No appointment will be confirmed, and no Services will commence until cleared payment has been received.
- Fees of £500.00 or more (excluding VAT): A payment of 50% of the agreed fee is required upon instruction. The remaining balance shall become due upon issue of the draft deliverables. Invoices are issued on a Net 7 basis. Final deliverables will not be issued until cleared funds have been received.
Where payment is to be made on the day of a survey or site visit, payment may be taken in person by debit or credit card. A card processing fee of 2% will apply to payments below £500.00 (excluding VAT), reflecting the transaction charges imposed by our payment provider. This fee will not be charged for commissions with a value of £500.00 or more (excluding VAT).
Where payment is due prior to or at the time of the survey or site visit and has not been received, we reserve the right not to commence the Services.
If payment cannot be made on arrival and the appointment has not been cancelled with at least 12 hours’ notice, the appointment may be aborted, and a failed attendance charge of £150.00 (excluding VAT) may be applied to cover travel time, lost working time and associated costs. Any subsequent visit will be treated as a new appointment and may be subject to an additional charge.
Commercial Clients
For commercial commissions, invoices are typically issued on a Net 30 basis. For new clients, the Firm reserves the right to request an upfront payment of 25% prior to commencement of the Services.
For larger or staged commissions, fees may be invoiced at agreed milestones or at regular intervals reflecting the progress of the Services.
Clearance of Payment
The Firm reserves the right to request cleared funds prior to the issue of any deliverables, including reports, calculations, drawings, email reports, cost appraisals, or other documents.
Payment of Outstanding Fees
Finitas Engineering Ltd reserves the right to withhold the issue of any reports, calculations, drawings, certificates, digital files or other deliverables until all outstanding fees and charges relating to the commission have been paid in full, unless otherwise agreed in writing.
Where Services have been completed but payment remains outstanding, Finitas Engineering Ltd may suspend any further work on the commission until the account has been settled.
Recovery of Outstanding Debts
Invoices not paid by the due date may be subject to interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), where applicable.
Finitas Engineering Ltd also reserves the right to recover any reasonable costs incurred in recovering overdue sums, including debt collection agency fees, tracing fees, court fees and legal costs where recoverable by law.
Accounts
Accounts will be rendered monthly reflecting a fair proportion of Services completed. Where third-party services are procured by the Firm in order to complete the scope of Services, such costs may be invoiced at any time together with an administration fee of 20% unless otherwise agreed. Payment of accounts without retention or discount is required by the date on the invoice.
Interest on Overdue Accounts
Interest may be charged on any overdue sum at a rate of 8% per annum above the Bank of England Base Rate prevailing on the payment due date. Interest shall accrue on a simple daily basis from the day following the payment due date until payment is received in full.
Inflation Adjustments
For commissions exceeding twelve (12) months, the Firm reserves the right to adjust any unclaimed fees in line with the prevailing rate of inflation on 1 August each year.
Payment and Suspension
If payment is not made when due, the Firm may suspend all or part of the Services upon giving seven (7) days’ written notice. The Firm shall have no liability for any delay, loss or damage arising from such suspension.
Offer Period
The Firm’s offer remains open for acceptance for thirty (30) days from the date of the covering letter unless otherwise agreed.
Geographical Limitation
Quoted fees and rates apply to Services undertaken within the United Kingdom unless expressly stated otherwise.
Firm’s Documents
All reports, drawings, schedules, calculations and other documents prepared by the Firm (“Designs”) are confidential to the Employer and its professional advisers. They shall not be reproduced, disclosed or relied upon by third parties without the Firm’s prior written consent. The Firm accepts no liability for use of the Designs for purposes other than those for which they were prepared.
Draft Documents
Draft reports, calculations, drawings and other documents are issued solely for review, coordination, checking and comment. Draft deliverables are prepared using the information, assumptions and site conditions known to the Firm at the time of issue and may include provisional assumptions or information awaiting confirmation. Where additional or revised information becomes available, draft deliverables may be amended, supplemented or replaced prior to final issue.
Draft deliverables are not intended for construction, statutory approval or reliance by any party. Finitas Engineering Ltd accepts no liability for any reliance placed upon draft deliverables. The issue of draft deliverables shall constitute completion of the substantive design work for the purposes of payment.
The Firm shall be afforded a reasonable opportunity to correct any error or omission identified in a draft deliverable prior to the issue of the final deliverable.
Title and Copyright
Ownership of the Designs remains vested in Finitas Engineering Ltd. Upon full payment of fees, the Employer is granted a non-exclusive licence to use the Designs solely for the purpose for which they were prepared. The Firm assumes no liability to third parties arising from use of the Designs.
Building Information Modelling
Where Services are undertaken utilising BIM, the Firm’s Services shall meet the requirements of ISO 19650 Level 2 relevant to the agreed scope. Overall BIM coordination and production of the Federated Model shall be undertaken by others unless expressly agreed in writing.
Contract Records
The Employer is responsible for retaining appropriate records of the Contract documentation issued to them, including the fee proposal, General Conditions of Contract and any subsequent amendments or variations. Where the Employer seeks to rely upon a superseded version of any Contract document, the Employer should retain and provide a copy of the document upon which they seek to rely.
Consequential Loss
Under no circumstances shall the Firm be liable to the Employer for any indirect or consequential loss including, without limitation, loss of profit, loss of contracts or pure economic loss.
Termination of Services
In the event that the Employer terminates the Services without just cause, the Firm reserves the right to recover loss of revenue, including loss of profit and reallocation costs, in accordance with the ACE Conditions of Engagement.
Disputes and Use in Litigation
If the Employer intends to use any Designs or information provided by the Firm in litigation or dispute resolution proceedings, the Employer shall notify the Firm in writing and seek the Firm’s approval prior to such use. The Firm reserves the right to refuse provision of documents for use in disputes involving the Firm. This appointment does not constitute an Expert Witness engagement unless separately agreed in writing.
Adjudication
The Employer accepts that disputes may be referred to adjudication in accordance with the Housing Grants, Construction and Regeneration Act 1996 (as amended).
Completion Dates
The Firm shall exercise reasonable skill and care to meet quoted completion dates. However, time is not of the essence and the Firm shall not be liable for delay unless arising from its failure to exercise reasonable skill and care.
Changes to Designs
Changes to Designs requested by the Employer or arising from circumstances beyond the Firm’s control shall be charged on a time basis at agreed rates.
Reasonable amendments arising from design coordination, review comments, additional information, Building Control comments or design development shall not affect the Employer’s obligation to pay invoices when due.
Exclusion from Fee
Unless expressly stated, fees exclude costs of services or data required from other consultants, authorities or specialists including site investigations, surveys, statutory fees or other services not specifically referred to in the fee proposal.
Exclusion of Services
Unless specifically covered in the fee proposal, all other services are expressly excluded.
Third-Party Information
The Firm shall rely on the accuracy of all third-party information provided by the Employer or the Employer’s representatives and shall not verify its correctness. The Firm accepts no liability for errors arising from incorrect or incomplete third-party information. Any changes to such information must be referred back to the Firm for comment. The Firm reserves the right to charge additional fees where delays or additional work arise from late, incomplete or revised third-party information.
Collateral Warranties
If required to enter into collateral warranties or duty of care agreements, the Firm reserves the right to charge 5% of the fee associated with the Services requiring such warranties, or a minimum of £1,000 plus VAT, to cover management and insurance costs.
Letters of Reliance
Letters of reliance shall be subject to a charge of £750 plus VAT per report referenced to cover management and insurance costs.
Net Contribution Clause
The Firm’s liability under the Contract and any collateral warranties shall be limited to that proportion of the loss which it would be just and equitable to require the Firm to pay having regard to the extent of its responsibility for the same.
Disbursements
Disbursements and expenses may be charged as incurred. All third-party costs paid by the Firm on behalf of the Employer may incur an administration fee of 20% unless otherwise agreed.
CDM Regulation
It is assumed that the Employer is aware of and will comply with their duties under the Construction (Design and Management) Regulations 2015 or equivalent legislation. Client duties cannot be delegated to the Firm.
Building Safety Act and Building Regulations
Where applicable, the Employer must appoint a Principal Designer and Principal Contractor under the Building Regulations. Finitas Engineering Ltd will not act as Principal Designer under the Building Regulations unless expressly appointed in writing.
Amendments to Conditions
The Firm reserves the right to amend these General Conditions of Contract from time to time. The current version will be available on the Firm’s website and shall apply to all new appointments from the date of publication. Amendments shall not retrospectively alter the terms of an existing appointment where the Employer can provide a copy of the General Conditions of Contract issued to them at the time of appointment. In the absence of such a copy, the Firm will administer the appointment in accordance with the current published Conditions.