STANDARD TERMS & CONDITIONS

1. Appointment

1.1. The Client appoints 360 Surveys NI Ltd to provide the Services (which include the Basic Services and any Additional Services as described in Clause 6 below) and 360 Surveys NI Ltd accepts such appointment upon and subject to these Conditions (the “Appointment’). The Appointment takes effect on the date when 360 Surveys NI Ltd first commenced performance of the Services, irrespective of the date of this Appointment.

1.2. 360 Surveys NI Ltd regularly liaises and consults as necessary with the relevant parties to this agreement.

2. Standard of Care

360 Surveys NI Ltd, when performing the Services, exercises the reasonable skill and care to be expected of an appropriately qualified professional consultant of the same discipline as 360 Surveys NI Ltd holding itself out as having the competence and resources to perform the Services.

3. Statutory Requirements

When performing the Services, 360 Surveys NI Ltd complies with the requirements of all statutes and legislation relevant to the Project. In particular, 360 Surveys NI Ltd complies with the Construction (Design and Management) Regulations 2015, to the extent they apply to the Project.

4. Prohibited Materials

360 Surveys NI Ltd, exercising the required standard of care:

(a) does not specify for use in connection with the Project any materials which by their nature or application contravene any British Standard or EU equivalent current at the time of specification or which are otherwise generally known within the construction and engineering industry at the time of specification to be harmful to health and safety or to the durability of works in the particular circumstances in which they are specified for use; and

(b) insofar as reasonably practicable and having regard to the nature and extent of the Services, sees that such materials are not used in the construction of those parts of the Project to which the Services relate.

5. Fee

As consideration for the performance of the Basic Services, the Client pays 360 Surveys NI Ltd the Fee and the Reimbursable Expenses set out in the invoice for the Services, The Fee is adjusted if the performance of the Basic Services is materially delayed and/or disrupted for any cause outside 360 Surveys NI Ltd.’s reasonable control. The parties agree the adjustment to the Fee and the timing of its payment. If not agreed, such adjustment is based on the rates set out for the Basic Services and, if no rates are set out, on the rates set out for the Additional Services. The Fee is then the Fee as adjusted.

6. Additional Services

If at any time the Client requires 360 Surveys NI Ltd to perform any services which are not identified as Basic Services in the Service Request Form, the Client pays 360 Surveys NI Ltd for such Additional Services at the rates set out at that time, unless otherwise agreed. If the Client requires any Additional Services, 360 Surveys NI Ltd informs the Client of the likely additional fee to be charged. Unless otherwise agreed, the additional fee is payable after performance of the relevant Additional Service.

7. Payment of Remuneration and Reimbursable Expenses

7.1 Payment of the Fee, any additional fee payable for Additional Services and the Reimbursable Expenses is due on receipt by the Client of a VAT invoice from 360 Surveys NI Ltd. Invoices are submitted on each instalment date or on completion of each activity or work stage and are accompanied by such supporting documents, records and receipts reasonably necessary for checking each invoice.

7.2 Fees for one-off reports, up to the value of £1000 + VAT will require to be paid prior to release of the report.

8. Final Date for Payment and Withholdings

8.1 The Client pays all sums properly due under this Appointment to 360 Surveys NI Ltd not later than 14 days after the date on which the Client receives 360 Surveys NI Ltd.’s VAT invoice (the “final date for payment”).

8.2 The Client does not withhold payment of any sum due after the final date for payment unless it has given prior notice in writing to 360 Surveys NI Ltd of its intention to withhold payment. Such notice must be given not less than 7 days before the final date for payment and specify the amount which the Client proposes to withhold and the ground for making the withholding. If there is more than one ground, the notice must specify each ground and the amount attributable to it. Provided that this Clause does not apply where the Client is a residential occupier under the Housing Grants, Construction and Regeneration Act 1996.

9. Default, Interest and Suspension

If the Client fails to pay any sum due and payable to 360 Surveys NI Ltd under this Appointment in full by the final date for payment and, where Clause 8.2 applies, no effective notice of intention to withhold payment has been given which complies with Clause 8.2:

• (a) the Client pays 360 Surveys NI Ltd simple interest on the unpaid amount for the period from the final date for payment until the date of actual payment, calculated on a daily basis at the rate of 8% above the base rate set from time to time by the Bank of England’s Monetary Policy Committee (or any successor to it);
• (b) where such failure continues for 7 days after 360 Surveys NI Ltd has given the Client notice in writing of its intention to suspend performance of the Services and the ground or grounds on which it intends to suspend performance, 360 Surveys NI Ltd may suspend such performance until such amount is paid; and/or

(c) 360 Surveys NI Ltd may by notice in writing to the Client suspend the copyright licence under Clause 12 until such amount is paid.

10. Limitations of Liability

10.1 Except for liability for death or personal injury, the maximum aggregate liability of 360 Surveys NI Ltd to the Client under or in connection with this Appointment (whether in contract or tort (including negligence) or for breach of statutory duty) is limited to the amount specified in the Appointment Particulars. If no such amount is specified, such liability is limited to the amount of 360 Surveys NI Ltd.’s professional indemnity insurance specified in Clause 11.1.

10.2 Without prejudice to the above limitation or any other exclusion or limitation of liability available to 360 Surveys NI Ltd, 360 Surveys NI Ltd.’s liability for loss or damage suffered by the Client in the event of any breach of this Appointment is limited to the proportion of such loss or damage that it would be just and equitable to require 360 Surveys NI Ltd to pay having regard to the extent of responsibility of 360 Surveys NI Ltd for the same and on the assumptions that:

1. a) all contractors and sub-contractors and other members of the Professional Team have provided contractual undertakings to the Client on terms no less onerous than those set out in this Appointment in respect of the carrying out of their obligations in connection with the Project;
2. c) there are no exclusions or limitations of liability nor joint insurance or co-insurance provisions between the Client and any such persons; and
3. d) all such persons have paid to the Client such sums as it is just and equitable for them to pay having regard to the extent of their responsibility for such loss or damage.

Provided always that 360 Surveys NI Ltd does not assert that it has no or a reduced liability to the Client under this Appointment solely by reason of the fact that the Contractor accepts responsibility for the design of the Project, to the extent that such design is undertaken by 360 Surveys NI Ltd.

10.3 No action or proceedings for any breach of this Appointment may be commenced against 360 Surveys NI Ltd after the expiry as defined and provided for by the provision of The Limitation (Northern Ireland) Order 1989.

11. Insurance

11.1 360 Surveys NI Ltd maintains professional indemnity insurance in the sum of one million pounds subject to such insurance being available in the insurance market on reasonable terms and rates.

11.2 360 Surveys NI Ltd produces a copy of their insurance certificate on request.

12. Copyright

12.1 Copyright in all drawings, plans, details, specifications, bills of quantities, schedules, reports, records, calculations and all other documents including computer software and revisions of the same (“Documents”) prepared by 360 Surveys NI Ltd for the purposes of the Project remains the property of 360 Surveys NI Ltd. Subject to Clause 9(c), 360 Surveys NI Ltd grants to the Client a royalty-free, irrevocable, non-exclusive licence to use and reproduce the Documents and any designs contained in them for any purpose relating to the Project including the construction, completion, maintenance, operation, letting, sale, reinstatement, mortgaging, refurbishment and repair of the Project (but not for any extension of the Project without 360 Surveys NI Ltd.’s written consent).

12.2 360 Surveys NI Ltd is not liable for any use of the Documents for any purpose other than that for which they were originally prepared.

13. Suspension of the Services

13.1 The Client may at any time give notice in writing to 360 Surveys NI Ltd requiring it to suspend all or part of the Services.

13.2 360 Surveys NI Ltd resumes performance of the Services which have been suspended as soon as reasonably practicable after it receives written notice to do so from the Client.

13.3 If the suspension continues for more than 3 months, either party may give notice in writing to the other terminating 360 Surveys NI Ltd.’s engagement under this Appointment.

14. Termination of Engagement

14.1 The Client may terminate 360 Surveys NI Ltd.’s engagement under this Appointment at any time by giving 360 Surveys NI Ltd 14 days’ prior notice in writing.

14.2 If a party is in material breach of its obligations under this Appointment and fails to remedy such breach within 7 days after the other party gives it written notice to do so, the party which gave such notice may immediately thereafter terminate 360 Surveys NI Ltd.’s engagement under this Appointment by giving written notice to that effect to the party in breach.

14.3 If a party:

1. a) commits an act of bankruptcy or has a receiving or administration order made against it, and/or
2. b) goes into liquidation; and/or
3. c) becomes insolvent; and/or
4. d) makes an arrangement with its creditors

• the other may suspend performance of the services or may terminate the appointment by giving written notice to other party.

15. Payment upon Suspension or Termination

15.1 Upon any suspension or termination, the Client pays 360 Surveys NI Ltd in accordance with Clauses 7 and 8 (without prejudice to any rights the Client has in respect of any breach by 360 Surveys NI Ltd of its obligations under this Appointment):

(a) that part of the Fee, the Additional Services Fee (if any) and any other sums which have accrued due up to the date of suspension or termination (as the case may be) and a fair and reasonable proportion of the next instalment of the Fee and any additional fee payable for Additional Services commensurate with the Services performed, less any amounts previously paid to 360 Surveys NI Ltd; and

(b) (save where such suspension or termination is due to 360 Surveys NI Ltd being in breach) all reasonable costs, disbursements and expenses properly and necessarily incurred by 360 Surveys NI Ltd (including any costs incurred in suspending and/or resuming performance of the Services) as a direct result of such suspension or termination.

15.2 Upon payment of the amount due under Clause 15.1, 360 Surveys NI Ltd hands over to the Client the Documents, subject to the terms of the copyright licence under Clause 12 and payment of 360 Surveys NI Ltd.’s reasonable copying charges.

15.3 Termination of 360 Surveys NI Ltd.’s engagement under this Appointment does not affect the accrued rights and remedies of the parties.

16. Assignment and Sub-Contracting

16.1 360 Surveys NI Ltd does not assign or sub-contract any of its rights or obligations under this Appointment without the prior consent in writing of the Client (which consent is not to be unreasonably withheld or delayed).

16.2 The benefit of this Appointment may be assigned by the Client by way of an absolute legal assignment to any person providing finance or re-finance to the Client in connection with the Project or to any person (Al) acquiring the Client’s interest in the Project. No further or other assignment is permitted and, in particular, A1 is not entitled to assign this Appointment.

17. Disputes

17.1 Notwithstanding any other provision of this Appointment, either party may at any time refer any dispute under it to adjudication under The Scheme for Construction Contracts in Northern Ireland Regulations (Northern Ireland) 1999, Part 1

17.2 The Adjudicator’s decision is binding until the dispute or difference is finally determined by litigation. The Client and 360 Surveys NI Ltd attempt to agree the identity of the Adjudicator. If the parties fail to reach such agreement within 5 days after one party notifies the other that it wishes to agree the identity of the Adjudicator, the Adjudicator is appointed by the Chairman or Vice-chairman for the time being of RICS NI. Any dispute or difference in connection with the enforcement of a decision of the Adjudicator is referred to the Courts.

18. General

18.1 This appointment supersedes any previous agreements or arrangements between the parties in respect of the Project.

18.2 Nothing in this Appointment confers or purports to confer any right to enforce any of its terms on any person who is not a party to it. Only the Client (and the Client’s permitted assignees) and 360 Surveys NI Ltd can take action to enforce the terms of this Appointment.

18.3 Any reference to a statute or statutory provision is construed as a reference to that statute or provision as amended, consolidated, supplemented or re-enacted (with or without modifications) from time to time.

18.4 Where any Clause requires an act to be done within a specified period after or from a specified date, the period begins immediately after that date. Where the period includes Christmas Day, Good Friday or a day which, under the Banking and Financial Dealings Act 1971, is a bank holiday in Scotland, that day is excluded.

19. Notices

19.1 Any notice under this Appointment is deemed to be given if it is in writing and delivered by hand or sent by pre-paid, recorded or special delivery post to the Client or 360 Surveys NI Ltd (as the case may be) at the address set out for each party in this Appointment or any other address notified by one party to the other in accordance with this Clause.

19.2 Any notice sent by hand is deemed received upon actual receipt by the party to whom it is addressed.

19.3 Any notice sent by a postal method described in Clause 19.1 is deemed received 48 hours after it was posted.

20. Governing Law & Jurisdiction

This Appointment is governed by and construed in accordance with law of N.Ireland and the parties submit to the exclusive jurisdiction of the N.Ireland Courts.