Terms

TERMS OF APPOINTMENT

1 GENERAL
1.1 These Terms of Appointment and the Letter of Appointment (collectively “the Appointment”) comprise the agreement between the Client (as defined in the Letter of Appointment) and Torridon CPM Limited (Company number SC557714), having its registered office at The Lighthouse, Heugh Road Industrial Estate, North Berwick, EH39 5PX (“Torridon CPM”). In the event of any conflict between the Terms of Appointment and the Letter of Appointment the terms of the Letter of Appointment shall take precedence. Unless otherwise stipulated, terms referred to herein are as defined in the Letter of Appointment. If any clause, term, or provision of the Appointment or the application thereof to any circumstance shall to any extent be invalid or unenforceable, the remainder of the Appointment or the application of such clause, term or provision to circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby.
1.2 The Client engages Torridon CPM to perform the services detailed in the Letter of Appointment, or if not so detailed therein as detailed in Part One of the Appendix to the Terms of Appointment (“Services”) in respect of the Project and Torridon CPM accepts such engagement upon and subject to the terms of the Appointment.
1.3 Commencement by Torridon CPM of the Services shall be deemed to be acceptance of the Appointment. The Appointment takes effect from the date when Torridon CPM commenced performance of the Services, irrespective of the date of the Appointment.
1.4 Torridon CPM shall carry out the Services in accordance with the terms and conditions of the Appointment. In performing the Services Torridon CPM shall exercise the reasonable skill and care to be expected of a suitably qualified and competent quantity surveyor with experience of carrying out services similar to the Services in connection with projects of a similar size, scope and complexity to the Project.
2 CLIENTS OBLIGATIONS
2.1 The Client shall notify Torridon CPM in writing of any request to vary the Services. Torridon CPM reserves the right to amend the Appointment as a consequence of any variation of the Services.
2.2 The Client shall at all reasonable times allow Torridon CPM access to the Works and shall not withhold information from Torridon CPM that would reasonably be considered to be material to the performance by Torridon CPM of the Services.
2.3 The Client shall provide to Torridon CPM all relevant and necessary information which is in it’s possession or control by the date or dates specified in the Project programme, or where no date is specified, in such reasonable time so as not to delay or disrupt the performance by Torridon CPM of the Services.
2.4 The Client shall give any decision, approval, consent or instruction required within a reasonable time, having regard to the Project programme.
2.5 The Client shall give, and shall procure that the members of the Client’s professional team shall give, such assistance to Torridon CPM as shall reasonably be required for the performance by Torridon CPM of the Services.
2.6 The Client shall appoint the Client’s professional team and contractor in sufficient time and on terms that permit the Project to be successfully delivered and so as to secure compliance with all relevant statutory requirements (including the Construction (Design & Management) Regulations 2015).
2.7 Where the Services require Torridon CPM to issue or give certificates or statements under the building contract and/or any Client third party contract, the Client shall procure, so far as reasonably practicable, that the professional team provide  Torridon CPM with such information/confirmation as shall be necessary for Torridon CPM (acting reasonably) to issue such certificates or statements.
2.8 Other than as permitted by clause 12.1 hereof, the parties shall not, without the prior written consent of the other, assign, delegate or in any way transfer their rights and/or obligations under the Appointment.
3 PAYMENT OF THE FEE
3.1 The Client shall pay to Torridon CPM, in respect of their performance of the Services, the fees (including, for the avoidance of doubt, any Additional Services fee due hereunder) together with expenses, disbursements and VAT,  as detailed in the Letter of Appointment or, if not so detailed therein  as detailed in Part Two of the Appendix to the Terms of Appointment. Where the fee instalments are not detailed, equal monthly instalments of the fee shall be payable (which shall be calculated on the basis of the anticipated Project duration), the first instalment becoming payable one month from the date Torridon CPM commenced performance of the Services.
3.2 All fees, expenses and disbursements payable under this Appointment are exclusive of Value Added Tax which, if due, shall be paid concurrently in addition to the fee, expenses and disbursements.
3.3 All payments shall become due to Torridon CPM within 7 days of the date of Torridon CPM’s invoice. The final date for payment by the Client shall be 7 days after the date on which the payment becomes due.
3.4 Torridon CPM reserves the right to issue invoices for payment in respect of any additional services provided. Additionally, Torridon CPM reserves the right to issue invoices for payment in respect of any aborted services where Torridon CPM was not given reasonable prior notice that such aborted services were no longer required.
 
3.5 Where the Client authorises a variation/change under the building contract for the Project the Client shall pay to Torridon CPM an additional fee in respect thereof, such additional fee equating to 2.25% of the value of the variation (subject to the additional fee being  a minimum of TWO HUNDRED POUNDS (£200)).
3.6 The Client shall pay to Torridon CPM the Additional Services Fee (if any) determined in accordance with Section 4 hereof. Unless otherwise agreed, the Additional Services Fee shall become payable following Torridon CPM’s performance of the relevant additional service.
3.7 Torridon CPM shall submit to the Client a VAT invoice in respect of amounts due in respect of each instalment of the fee (inclusive of expenses, disbursements and VAT), which shall state the basis on which the amount due is calculated. Such invoices shall be submitted in accordance with the timescales detailed in the Letter of Appointment, or, if not so detailed, monthly. All invoices shall be accompanied by such supporting documentation as may reasonably be necessary to allow the Client to verify the invoice to its reasonable satisfaction.
3.8 In respect of each invoice submitted, the Client shall give notice to the Consultant specifying the amount of the payment it proposes to make and the basis on which such amount has been calculated, such notice to be given not later than 5 days after such payment has become due.
3.9 Not later than 5 days before the final date for payment of any invoice the Client may give written notice to Torridon CPM specifying any amount proposed to be withheld and/or deducted from that due amount, the ground(s) for such withholding and/or deduction and the amount of withholding and/or deduction attributable to each ground. The Client shall not be entitled to withhold payment of any sum due hereunder after the final date for payment unless it has given timeous notice to Torridon CPM of its intention so to withhold payment in accordance with this clause.
 
3.10 A notice under Clause 3.8 shall suffice as a notice of intention to withhold payment if it complies with the requirements of Clause 3.9.
3.11 Where the Client fails to pay any amount due to Torridon CPM by the final date for payment of that amount, the Client shall pay simple interest on the amount due and unpaid for the period from the final date for payment to the date of payment at the rate of 4% per annum above the base rate from time to time of the Bank of Scotland. It is acknowledged that this provision constitutes a substantial remedy for the purposes of Section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended by the Late Payment of Commercial Debts (Scotland) Regulations 2002).
3.12 Where (i) the Client does not pay any amount due hereunder by the final date for payment of that amount and no effective notice of withholding (in accordance with clause 3.9 hereof) has been given,  and (ii) such default continues for 7 days after the Client’s receipt of a notice from Torridon CPM stating its intention to suspend  performance and noting the ground or grounds on which it is intended to suspend performance;  Torridon CPM shall be entitled to suspend performance of any or all of the Services. The right to suspend performance shall cease when the Client makes payment in full of the amount due.
3.13 Where the Services are suspended for [six] months or more the Appointment shall automatically terminate.  Any suspension or termination shall be without prejudice to the rights of the parties in respect of any antecedent breaches of the Appointment.
3.14 Torridon CPM reserves the right to charge debt recovery costs in respect of any amounts that remain unpaid after the final date for payment.
3.15 Torridon CPM reserve the right to adjust the fee if the performance of the Services is materially delayed and/or disrupted as a result of a change in the scope, size, complexity or duration of the Project or for any other cause outside Torridon CPM’s control.
3.16 If Torridon CPM intend to adjust the fee in accordance with clause 3.15, it shall give to the Client (a) notice of such intention as soon as reasonably practicable after it becomes aware of any material delay and/or disruption to the Services; and (b) a written estimate of the proposed adjustment to the fee and the likely effect on the performance by Torridon CPM of the Services and on the Project programme. Where practicable, the parties shall agree an adjustment to the fee and the timing of its payment. Where the parties fail to, or do not, agree an adjustment to the fee, the adjustment shall be based on the time-charges detailed in the Letter of Appointment or, if not so detailed therein as detailed in Part Two  of the Appendix to the Terms of Appointment. Unless otherwise provided in the Letter of Appointment, such time-charges are exclusive of expenses, disbursements and VAT.
3.17 Torridon CPM’s time-charges are subject to review with effect from 1 May each year and Torridon CPM reserve the right to increase the fees due hereunder in the event of an increase in the said time-charges.
3.18 Where payments are not made by digital means, cheque for example, an administration charge of £50 will be added to each payment.
4.0 ADDITIONAL SERVICES
4.1 If at any time it becomes apparent to Torridon CPM that additional services are likely to be required, it shall notify the Client as soon as reasonably practicable after identifying the requirement and shall submit a fee proposal in respect of the provision of such additional services to the Client.
4.2 Torridon CPM shall perform such additional services as it is reasonably instructed so to do in writing by the Client. Torridon CPM may, in the case of an emergency, perform additional services without such an instruction, but not otherwise.
4.3 Where Torridon CPM is instructed by the Client to perform additional services, it shall provide to the Client, within a reasonable period after receipt of the Client’s instruction, a written estimate of the proposed adjustment to the fee and the likely effect on the performance by Torridon CPM of the Services and on the Project programme.
4.4 Wherever practicable, the parties shall agree the fee payable in respect of such additional services (“Additional Services Fee”) and the timing of its payment before such additional services are performed. Where the parties fail to, or do not, agree the Additional Services Fee or where such additional services are performed in an emergency, the Additional Services fee payable shall be based on the time-charges detailed in the Letter of Appointment or, if not so detailed therein as detailed in Part Two of the Appendix to the Terms of Appointment. Unless otherwise provided in the Letter of Appointment, such time-charges are exclusive of expenses, disbursements and VAT.
4.5 Torridon CPM reserve the right to adjust the Additional Services Fee if the performance of the additional services is materially delayed and/or disrupted as a result of a change in the scope, size, complexity or duration of the Project or for any other cause outside Torridon CPM’s control.
4.6 If Torridon CPM intend to adjust the Additional Services Fee in accordance with clause 4.5, it shall give to the Client (a) notice of such intention as soon as reasonably practicable after it becomes aware of any material delay and/or disruption to the additional services; and (b) a written estimate of the proposed adjustment to the fee and the likely effect on the performance by Torridon CPM of the Services and on the Project programme. Where practicable, the parties shall agree an adjustment to the Additional Services Fee and the timing of its payment. Where the parties fail to, or do not, agree an adjustment to the Additional Services Fee, the adjustment shall be based on the time-charges detailed in the Letter of Appointment or, if not so detailed therein as detailed in Part Two of the Appendix to the Terms of Appointment]. Unless otherwise provided in the Letter of Appointment, such time-charges are exclusive of expenses, disbursements and VAT.
5 LIMITATION OF LIABILITY/INSURANCE
5.1 The maximum liability of Torridon CPM under the Appointment (save in the case of death or personal injury) shall not exceed the sum of ONE MILLION POUNDS (£1,000,000) STERLING in respect of each and every claim.
5.2 Torridon CPM will have no liability for any consequential damages, costs or losses or any damages, costs or losses attributable to lost profit or opportunities.
5.3 Nothing in the Appointment confers or purports to confer on any third party any benefit or any right to enforce any term of the Appointment pursuant to the Contract (Third Party Rights) (Scotland) Act 2017.
5.4 No action or proceedings shall be commenced against Torridon CPM under the Appointment more than five (5) years after the completion of the Services.
5.5 Torridon CPM shall maintain professional indemnity insurance with insurers licensed to transact insurance business in the United Kingdom in an amount of not less than ONE MILLION POUNDS (£1,000,000) STERLING for each and every claim from commencement of the Services until the expiry of five (5) years after the completion of the Services PROVIDED ALWAYS that such insurance is available in the insurance market at commercially reasonable rates and terms. As and when requested by the Client to do so, the Consultant shall produce for inspection documentary evidence that such professional indemnity insurance is being maintained.
6 COPYRIGHT AND DOCUMENTATION
   
6.1 Copyright in all documents produced by or on behalf of Torridon CPM in the provision of the Services (”Documents”) shall remain the property of Torridon CPM.  Subject to the payment by the Client of all fees properly due to Torridon CPM under the Appointment, Torridon CPM grants to the Client an irrevocable non-exclusive royalty-free licence to copy and use the Documents for any purpose related to the Project.
 
6.2 Torridon CPM shall not be liable for any use of the Documents (i) for any purpose other than that for which they were prepared and provided by Torridon CPM and (ii) by a third party, and the shall indemnify Torridon CPM against any claims that may be made against it by a third party.
 
6.3 Torridon CPM will have no liability for any draft reports or interim advice (oral or written) provided by Torridon CPM.
7 SUSPENSION AND TERMINATION
7.1 If the Client materially breaches its obligations under the Appointment Torridon CPM shall be entitled to serve on the Client a notice specifying the material breach and requiring its remedy within 7 days of the date of [the Client’s receipt of ]the notice. If the Client’s fails to remedy the breach within the said 7 day period Torridon CPM may terminate the Appointment forthwith by giving written notice to that effect to the Client.
7.2 The Appointment may be terminated by either party at any time by giving not less than 1 month’s written notice to the other party to that effect.
7.3 If either party becomes aware of a possible or actual conflict of interest they shall forthwith notify the other of same. Where such a notice is given, Torridon CPM shall take account of any legal constraints, professional regulations, the interests of the Client and the other client’s interests in order to determine whether Torridon CPM are able to continue to provide the Services.  In the event of such a conflict arising Torridon CPM shall in its discretion be entitled to terminate the Appointment forthwith by giving written notice to that effect to the Client.
7.4 On suspension or termination of the Appointment, Torridon CPM shall be entitled to payment in respect of the Services rendered up to the time of suspension or termination, such entitlement to include (where applicable) (i) a fair and reasonable proportion of the next instalment of the fee and/or any Additional Services Fee commensurate with the Services performed and (ii) all reasonable expenses and disbursements incurred by Torridon CPM as a direct result of such suspension or termination.
7.5 During any period of suspension the Consultant shall be entitled to be reimbursed for all proper and reasonable expenses and disbursements necessarily incurred and on resumption of a suspended service such payments will be regarded as payments on account towards the fee.
7.6 If the Client becomes insolvent, Torridon CPM may at any time thereafter, by written notice to the Client, terminate the Appointment.   Any such termination shall be without prejudice to the rights of Torridon CPM in respect of any antecedent breach of the Appointment by the Client. For the purposes of this clause “insolvent” shall mean when the Client:-

(a)    Enters into an arrangement, compromise or composition in satisfaction of its debts (excluding a scheme or arrangement as a solvent company for the purposes of amalgamation or reconstruction);

(b)    Without a declaration of solvency, passes a resolution or makes a determination that it be wound up;

(c)     Has a winding-up order or bankruptcy order made against it;

(d)    Has appointed to it (whether by that party, by a creditor or by the court) an administrator or administrative receiver;

(e)    Is the subject of any analogous arrangement event or proceedings in any jurisdiction; or

(f)      In the case of a partnership, when each partner is the subject of an individual arrangement or another event or proceedings referred to in this definition.

7.7 Upon termination of the Appointment  Torridon CPM shall (i) discontinue performance of the Services as safely, efficiently and speedily as possible with the minimum disruption to the Project; and (ii) provided it can lawfully do so, and only following receipt of a written request to do so, hand over to the Client copies of the Documents in its possession (but not its own internal notes and memoranda or any document which is subject to a confidentiality restriction in favour of a third party) subject to payment of all sums due under the Appointment and Torridon CPM’s reasonable copying charges therefor.
8 ADJUDICATION
8.1 Where any dispute or difference arises between the parties in connection with the Appointment either party may serve a written notice on the other identifying the dispute. Within seven days of such notice the party serving the notice may require that the parties shall meet and attempt in good faith to resolve the dispute without recourse to legal proceedings.  The right to refer the require the parties to so meet shall be without prejudice to that party’s right to refer the dispute directly to adjudication, which adjudication shall proceed in terms of clause 8.2 to 8.3 hereof.
8.2 If at the end of such seven day period (or longer as the parties may agree) the parties have been unable to resolve the dispute either party may give notice to the other party of its intention to refer the dispute to adjudication and shall then refer the dispute to an adjudicator agreed between the parties, or failing agreement within 2 days, appointed by the Chairman or Vice Chairman for the time being of The Royal Institution of Chartered Surveyors.  Both parties shall use their reasonable endeavours to ensure that the adjudicator is appointed as soon as possible and in any event within 7 days of the reference to Adjudication.
8.3 Any adjudication hereunder shall be conducted in accordance with the Scheme for Construction Contracts (Scotland) Regulations 1998, Part 1.
9 NOTICE
9.1 Any notice to be given under the Appointment shall be in writing and delivered by hand or sent by recorded delivery post to the recipient at the address for that party stated in the Letter of Appointment or at the recipients’ registered office or to such other address as the party may have specified from time to time by written notice to the other.
10 LIABILITY OF EMPLOYEES
10.1 The duties and responsibilities owed to the Client are solely and exclusively those of Torridon CPM. No director or employee of Torridon CPM shall be liable to the Client for any loss or damage howsoever arising as a consequence of the acts or omissions of such employee (including negligent acts or omissions) save and to the extent that such loss or damage is caused by the fraud, dishonesty, wilful misconduct or unauthorised conduct on the part of such employee. (This term is intended to be enforceable by and for the benefit of the employees of Torridon CPM in accordance with RICS requirements).  Whilst the employees of Torridon CPM may rely on this clause this Agreement may be varied without their consent.
11 DATA PROTECTION (GDPR) AND CONFIDENTIALITY
11.1 As a result of Torridon CPM’s relationship with the Client, Torridon CPM will hold personal data about individuals within the Client’s business.  Torridon CPM will process such data only in connection with providing the Services and for the purpose of contacting the Client about other services Torridon CPM may offer. Unless notified otherwise, the Client consents to Torridon CPM securely holding such data.
11.2 Should the Client not wish to receive information from Torridon CPM relating to the services they offer, the Client shall require to notify Torridon CPM accordingly.
12 CONTROL OF THE SERVICES
12.1 Torridon CPM may sub-contract any part of the Services to a third party without the prior written consent of the Client. Torridon CPM shall ensure that any such sub-consultant will have the skill, knowledge and experience required for the provision of the Services. Torridon CPM shall remain liable to the Client for any breach of the Appointment by any sub-consultant and for any act, omission or default of any such sub-consultant.
13 LAW
   
13.1 The Appointment shall be governed by Scots law and any dispute or difference in any way connected with the Appointment shall, subject to clause 8 above, be referred to the exclusive jurisdiction of the Scottish courts.