2. Basis of contract
3. Supply of Services
4. Client’s obligations
5. Charges and payment
6. Intellectual property rights
7. Data protection
8. Limitation of liability
10. Consequences of termination
The following definitions and rules of interpretation apply in these Conditions.
|“Business Day”||a day other than a Saturday, Sunday or public holiday in Jersey, when banks in Jersey are open for business.|
|“Charges”||the charges payable by the Client for the supply of the Services in accordance with clause 5.|
|“Client”||the person or firm who purchases Services from RGA.|
|“Commencement Date”||has the meaning given in clause 2.2.|
|“Conditions”||these terms and conditions as amended from time to time in accordance with clause 11.5.|
|“Contract”||the contract between RGA and the Client for the supply of Services in accordance with these Conditions.|
|“Control”||has the meaning given in article 123H of the Income Tax (Jersey) Law 1961, and the expression change of control shall be construed accordingly.|
|“Client Default”||has the meaning set out in clause 4.2.|
|“Fee Proposal”||the description of the Services and related fee estimates provided by RGA to the Client.|
|“Intellectual Property Rights”||patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Order”||the Client’s written or oral acceptance of RGA’s Fee Proposal.|
|“Services”||the services supplied by RGA to the Client as set out in the Fee Proposal.|
|“RGA”||Ross Gower Associates Limited registered in Jersey with company number 35283.|
1.2.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes email.
2. Basis of contract
2.1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when RGA issues written or oral acceptance of the Order (including any electronic notification sent by RGA’s Fee Proposal software) at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any drawings or descriptive matter issued by RGA (and any descriptions or illustrations contained in RGA’s correspondence) forming part of the Fee Proposal, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5. Any Fee Proposal given by RGA shall not constitute an offer in itself, and is only valid for a period of 3 months from its date of issue.
3. Supply of Services
3.1. RGA shall supply the Services to the Client in accordance with the Fee Proposal in all material respects.
3.2. RGA shall use all reasonable endeavours to meet any performance dates specified in the Fee Proposal and/or Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. RGA reserves the right to amend the Fee Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and RGA shall notify the Client in any such event.
3.4. RGA shall use reasonable skill and care in performing the Services and complying with its duties and obligations under this Contract. RGA do not warrant that any structures or buildings, when constructed in accordance with their designs, will be suitable for any particular purpose and any fitness for purpose obligations in respect of the Services (whether express or implied) are hereby excluded from the Contract.
4. Client’s obligations
4.1. The Client shall:
4.1.1. ensure that the terms of the Order and any information it provided to enable RGA to produce the Fee Proposal are complete and accurate;
4.1.2. co-operate with RGA in all matters relating to the Services;
4.1.3. provide RGA, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by RGA;
4.1.4. provide RGA with such information and materials as RGA may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5. if applicable, prepare the Client’s premises for the supply of the Services;
4.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7. comply with any additional obligations as set out in the Fee Proposal; and
4.1.8. appoint other professional consultants, including but not limited to a lead designer/consultant, and the Client shall ensure that such other professional consultants co-operate with RGA in relation to the provision of the Services.
4.2. If the RGA’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.2.1. without limiting or affecting any other right or remedy available to it, RGA shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays RGA’s performance of any of its obligations;
4.2.2. RGA shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from RGA’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3. the Client shall reimburse RGA on written demand for any costs or losses sustained or incurred by RGA arising directly or indirectly from the Client Default.
5. Charges and payment
5.1. The Charges for the Services shall be calculated as follows:
5.1.1. time charges shall be calculated in accordance with RGA’s prevailing hourly fee rates at the date(s) the Services are carried out;
5.1.2. any fixed price lump sum charges will be set out in the Fee Proposal;
5.1.3. RGA shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom RGA engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by RGA for the performance of the Services, and for the cost of any disbursements.
5.2. RGA reserves the right to increase any hourly rates within the Fee Proposal on an annual basis with effect from 1st January each year.
5.3. RGA shall invoice the Client monthly in arrears.
5.4. The Client shall pay each invoice submitted by RGA:
5.4.1. within 21 days of the date of the invoice; and
5.4.2. in full and in cleared funds to a bank account nominated in writing by RGA,
and time for payment shall be of the essence to the Contract.
5.5. All amounts payable by the Client under the Contract are exclusive of amounts in respect of goods and services tax (GST). Where any taxable supply for GST purposes is made under the Contract by RGA to the Client, the Client shall, on receipt of a valid GST invoice from RGA, pay to RGA such additional amounts in respect of GST as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6. If the Client fails to make a payment due to RGA under the Contract by the due date, then, without limiting RGA’s remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
6. Intellectual property rights
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by RGA.
6.2. RGA grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy any designs, drawings, plans, specifications, design details, calculations and any other material in connection with the Services prepared by, or on behalf of, RGA (excluding materials provided by the Client) for the purpose of receiving and using the Services in its business.
6.3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4. The Client grants RGA a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to RGA for the term of the Contract for the purpose of providing the Services to the Client.
7. Data protection
8. Limitation of liability
8.1. References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2. Nothing in this clause 8 shall limit the Client’s payment obligations under the Contract.
8.3. Subject to clauses 8.4 and 8.5, RGA’s total liability to the Client under or in connection with the Contract shall be limited to a sum equivalent to 10 (ten) times the total of all Charges paid to RGA in the aggregate. This limit shall apply howsoever that liability arises, including, without limitation, a liability arising by breach of contract, arising by tort (including, without limitation, the tort of negligence) or arising by breach of statutory duty. The total Charges means all sums paid by the Client and all sums payable under the Contract in respect of the Services actually supplied by RGA, whether or not invoiced to the Client.
8.4. RGA’s liability under or in connection with the Contract shall be reduced by the following types of loss that are wholly excluded:
8.4.1. loss of profits.
8.4.2. loss of sales or business.
8.4.3. loss of agreements or contracts.
8.4.4. loss of anticipated savings.
8.4.5. loss of use or corruption of software, data or information.
8.4.6. loss of or damage to goodwill; and
8.4.7. indirect or consequential loss.
8.5. Unless the Client notifies RGA that it intends to make a claim in respect of an event within the notice period, RGA shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail. Subject always to the foregoing provisions of this clause 8.5, RGA shall have no liability under the Contract in respect of any proceedings commenced against RGA more than 10 years after the date RGA completes the Services or if earlier, the date of termination of the Contract.
8.6. This clause 8 shall survive termination of the Contract.
9.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 3 months’ written notice.
9.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.2.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
9.2.2. the other party takes any step or action in connection with its entering any composition or arrangement with its creditors (other than in relation to a solvent restructuring), the commencement of a creditors winding up under the Companies (Jersey) Law 1991, making or being subject to an application under the Bankruptcy (Désastre) (Jersey) Law 1990 which results in the other party being declared en désastre, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a liquidator or the Viscount appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.2.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3. Without affecting any other right or remedy available to it, RGA may terminate the Contract with immediate effect by giving written notice to the Client if:
9.3.1. the Client fails to pay any amount due under the Contract on the due date for payment; or
9.3.2. there is a change of control of the Client.
9.4. Without affecting any other right or remedy available to it, the RGA may suspend the supply of Services under the Contract or any other contract between the Client and the RGA if:
9.4.1. the Client fails to pay any amount due under the Contract on the due date for payment;
9.4.2. the Client becomes subject to any of the events listed in clause 9.2.3 or clause 9.2.4, or RGA reasonably believes that the Client is about to become subject to any of them; and
9.4.3. RGA reasonably believes that the Client is about to become subject to any of the events listed in clause 9.2.2.
10. Consequences of termination
10.1. On termination of the Contract the Client shall immediately pay to RGA all of the RGA’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, RGA shall submit an invoice, which shall be payable by the Client immediately on receipt.
10.2. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2. Assignment and other dealings.
11.2.1. RGA may at any time assign the benefit of any or all of its rights and obligations under the Contract and subcontract any part of the Services.
11.2.2. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of RGA.
11.3.1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or customers of the other party, except as permitted by clause 11.3.2.
11.3.2. Each party may disclose the other party’s confidential information:
184.108.40.206. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3;
220.127.116.11. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
18.104.22.168. with the consent of the other party, such consent not to be unreasonably withheld or delayed in respect of information RGA may wish to use for marketing purposes (such as photographs of the project).
11.3.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract, save as otherwise agreed under clause 22.214.171.124.
11.4. Entire agreement.
11.4.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4.3. Nothing in this clause shall limit or exclude any liability for fraud, fraudulent misrepresentation, death or personal injury caused by negligence.
11.5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8. Self-Certification to Building Control.
11.8.1. Since January 2008 the Jersey Building Control department has implemented a self-certification system – see the following website for details: https://www.gov.je/PlanningBuilding/MakingApplication/Building/Pages/ApprovedBuildingSchemes.aspx .
RGA is an “Approved Body” for the SER Certification scheme. An Approved Certifier will issue the certificate on behalf of the Approved Body and in so doing they shall not be held personally responsible or liable for the certificate.
11.8.2. The Client must ensure their third party suppliers provide RGA with the necessary information, including checked design calculations and drawings and shall ensure that such third party suppliers have allowed sufficiently in their tender/fee proposal to provide the requisite information to RGA. Without this information RGA will not be able to complete the structural certification. RGA need sufficient time and notice to complete the certification process after receipt of the building permit and before any construction on site.
11.8.3. Certification fee quotes forming part of a Fee Proposal by RGA are based on charged time as the supply of information from third parties is outside RGA’s direct control. In addition each certificate incurs a fee to Building Control which will be charged by RGA as a disbursement at the current rate at the time of certificate issue. Further information and detail of certificate fees can be obtained from the official Structural Engineers Registration website: http://www.ser-ltd.com/jersey/
11.9. Exclusions from the Services. Unless specifically covered within the Fee Proposal, RGA have not allowed for the following as part of the Services:
11.9.1. The design of any specialist items which are typically designed by third parties, such as timber frames, engineered timber, balustrades, glazing, brise soleil, etc.
11.9.2. Regarding drainage, it is assumed in the Fee Proposal that the disposal of rainwater will be by connecting to an existing surface water outlet or by soakaways on site. RGA have not allowed for work on offsite drainage or the specialist design of permeable paving, onsite treatment plants with drainage fields or the mechanical and electrical aspects of a pumped scheme.
11.9.3. The cost of any contractors employed to carry out investigations, which shall be paid by the Client direct.
11.9.4. Any duties in respect of any contractor’s temporary works.
11.9.5. Any additional duties caused by the discovery of any unforeseen or adverse ground conditions or buried obstructions or defects within the existing buildings, structures or drainage.
11.9.6. Surveying the site or any setting out.
11.9.7. Any external works beyond those covered within the Fee Proposal.
11.9.8. Any formal duties in respect of the role of Health and Safety Project Coordinator, as defined by the current Health and Safety Regulations, although RGA may be in a position to accept an appointment as such on an agreed fee basis.
11.9.9. Any advice or recommendations in respect of excavation or groundworks. Where such works are required, it will be the responsibility of the Client or main contractor to directly appoint a suitably qualified geotechnical engineer. RGA reserves the right to suspend the Services and their duties and obligations under the Contract if such a specialist is not appointed prior to such works commencing.
11.9.10. RGA will not assume the role of a project administrator unless stated with the Fee Proposal.
11.10.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by post at its registered office (if a company) or its principal place of business (in any other case); or sent by email to, in respect of RGA firstname.lastname@example.org and in respect of the Client, any email address supplied by the Client.
11.10.2. Any notice shall be deemed to have been received:
126.96.36.199. if delivered by hand, at the time the notice is left at the proper address;
188.8.131.52. if sent by post at 9.00 am on the third Business Day after posting; or
184.108.40.206. if sent by email at the time of transmission, or, if this time falls outside 8:30am to 5:00pm on a Business Day, when business hours resume.
11.10.3. This clause 11.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.11. Collateral warranties. If the Client requests that RGA enter into and provide a collateral warranty to a third party, then RGA may consider entering into such a collateral warranty if it is in an industry standard form (such as that provided by the RICS, RIBA, CIC, JCT or similar organisations) with no amends to the form save in respect of ensuring such collateral warranty can be governed by and construed in accordance with the law of Jersey.
11.12. Dispute resolution. Subject to either party’s right to refer any dispute or difference to be determined by litigation in the courts of Jersey at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation. If the parties agree to refer any dispute or difference to mediation, then the mediator shall be nominated by the Channel Islands Branch of the Chartered Institute of Arbitrators.
11.13. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Jersey.
11.14. Jurisdiction. Each party irrevocably agrees that the courts of Jersey shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.