Terms and Conditions

For Provision of Planning Services

By Colin Smith, CJS Planning, GoPlanner

1. Definitions and interpretation.
   1. In these conditions the following meanings shall apply:
      • ‘Agreement’ means the contract for the provision of the Consultancy Services specified in the Proposal Description incorporating these conditions, and made between the Client and the Consultant to the exclusion of any other terms and conditions.
      • ‘Client’ means the individual or organization who accepts a Proposal from the Consultant for the supply of the Consultancy Services, or whose order for the Consultancy Services specified is accepted by the Consultant in accordance with these conditions.
      • ‘Consultant’ means Colin Smith, CJS Planning, GoPlanner
      • ‘Consultancy Fees’ means the charges specified in the Proposal, including charges incurred in the performance of Supplementary Works as specified therein, together with any other Variations.
      • ‘Consultancy Services’ means the services to be provided to the Client by the Consultant as specified in the Proposal.
      • ‘Document’ means any report, plan, drawing, or other document in writing, including any photograph, film, print, tape, or other device embodying images or any other data supplied, generated or transmitted by any means, including data or images scanned or downloaded from the internet.
      • ‘Information’ means any Document or other materials, data or other information provided to the Consultant by the Client, or by other parties nominated by, acting on behalf of, or supplying other services to, the Client, which relate to the Consultancy Services.
      • ‘Proposal’ means the invoice, fee estimate or fixed fee quotation provided to, or the acceptance of order from, the Client by the Consultant, specifying the consultancy Services to be supplied, including items specified therein under the heading “Supplementary Works” if these are required.
      • ‘Report’ means any Document, report, letter, email or other materials, data or other information provided by the Consultant to the Client, or to other parties nominated by, acting on behalf of, or supplying other services to, the Client, which relate to the Consultancy Services.
      • ‘Supplementary Works’ means any additional works specified in the Proposal as being beyond the scope of the estimated fees for the Consultancy services stated therein, and if required, chargeable at the Consultant’s normal hourly rates as a Variation to the Consultancy Services.
      • ‘Variation’ means any reasonable alteration of, omission from, or addition to the Consultancy Services required by the Client, including, but not limited to, items listed as “Supplementary Works” in the Proposal, the impacts of which on time, cost and practicality shall, where reasonably practicable, have been advised by the Consultant to the Client in advance; or, in cases of urgency or expediency, where in the reasonable opinion of the Consultant and at the Consultant’s discretion, the alteration, omission or addition had implicitly been, or would have been, instructed to be proceeded with by the Client for the effective discharge of the Consultancy Services in the Client’s best interests.
2. Supply of Consultancy Services.
   1. The Consultant shall provide the Consultancy Services to the Client subject to these conditions.
   2. The Client shall at its own expense supply the Consultant with all necessary Information or Documents relating to the Consultancy Services within a sufficient time to enable the Consultant to provide the Consultancy Services in accordance with the Agreement. The Client shall ensure the accuracy of all Information provided.
   3. The Client shall at its own expense retain duplicate copies of all Information or Documents and insure against their accidental loss or damage. The Consultant shall have no liability for any such loss or damage however caused. Any Report provided to the Client shall be at the sole risk of the Client from the time of its delivery to the Client.
   4. The Client shall arrange for or grant the Consultant access at all reasonable times to such sites or premises as may be necessary for the provision of the Consultancy Services, and shall provide the Consultant with such facilities (if any) as may reasonably be specified by the Consultant as being necessary for the effective performance of the Consultancy Services.
   5. The Consultancy Services shall be provided in accordance with the Proposal, together with any Variations, and subject to these conditions.
   6. The Consultant may correct any typographical or other errors or omissions in the Proposal, any promotional literature, or other document relating to the Consultancy Services without any liability to the Client.
3. Consultant’s obligations, warranties and liability.
   1. The Consultant in consideration of the Consultancy Fees shall exercise reasonable skill, care and diligence in providing the Consultancy Services and any Variations, and, as far as is reasonably possible, in accordance with the Proposal.
   2. The Consultant may subcontract any part of the Consultancy Service with the prior written consent of the Client, such consent not to be unreasonably withheld.
   3. The Consultant acknowledges that the Consultancy Services are provided by the Consultant as an independent contractor and no relationship of employee/employer or agency arises with the Client.
   4. The Consultant undertakes to maintain records of the Consultancy Services provided for a period of two years from completion of the Consultancy Services and provide copies to the Clienton request upon reimbursement of reasonable printing and copying charges.
   5. The Consultant acknowledges that any member of the Royal Town Planning Institute is bound by the Association’s codes of conduct and codes of ethics for the time being in force in performing the Consultancy Services.
   6. The Consultant shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Information, Document or instructions supplied by the Client which are incomplete, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
   7. Other than as expressly provided in these Conditions, the Consultant shall not be liable to the Client, by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law or under the express terms of the Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims, (whether caused by the negligence of the Consultant or its servants or otherwise) which arise out of or in connection with the Consultancy Services or their use by the Client, including without limitation any economic loss, loss of profits, turnover, business or goodwill, and the entire liability of the Consultant under or in connection with the Agreement shall not exceed the amount of the Consultancy Fees except as expressly provided in these conditions.
   8. The Consultant shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Consultancy Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control.
   9. If any part of the Consultancy Services is performed negligently or in breach of the provisions of the Agreement, then at the request of the Client (if the request is made within six months of the date of completion of the Consultancy Services) the Consultant will re-perform the relevant part of the Consultancy Services.
   10. Except in the case of death or personal injury caused by the Consultant’s negligence, the Consultant’s liability under or in connection with the Agreement whether arising in contract, tort, breach of statutory duty or otherwise, shall not exceed the greater of the Consultancy Fees or the amount recoverable under the Consultant’s professional indemnity policy (if applicable).
4. Consultancy Fees.
   1. The Consultancy Fees are due when presented by invoice and are based on the time spent in the provision of the Consultancy Services as estimated or quoted in the Proposal, including any Supplementary Works and other Variations charged at the hourly rates stated in the Proposal, and plus expenses and disbursements. Expenses and disbursements may include, inter alia and without limitation, copying, compilation, binding, postage, public transport fares, parking, road tolls, overnight accommodation and associated subsistence charges. Car mileage is re-charged at the rate stated in the Proposal. All time spent on the performance of the Consultancy Services by the Consultant’s fee-earning staff, namely town planner’s consultants is recorded and included in the Consultancy Fees. Time spent by the Consultant’s administration staff is considered as covered by the Consultancy Fees and is not recorded separately.
   2. The time recorded by the Consultant and included within the Consultancy Fees includes all phone calls, emails, file administration, plan preparation, briefings, original research, time on site,Report preparation, checking and proof-reading, attendance at meetings, reviewing and providing commentary on Documents, and travel time each way to the site from the Consultant’s offices.
   3. The Consultancy Fees including any additional sums in respect of any Supplementary Works or other Variations for the provision of the Consultancy Services, (unless otherwise provided in the Proposal) be paid on presentation of an invoice being submitted in accordance with the provisions of the Proposal.
   4. If additional costs or delay are directly caused by discrepancies, errors or omissions in Information supplied by the Client, the Client shall pay to the Consultant any such additional costs so incurred, and allow a reasonable extension of time for the performance of the Consultancy Services.
   5. The Consultant shall be entitled to invoice the Client prior to provision of the Consultancy Services, immediately following the provision of the Consultancy Services, or at any other time or times as may be specified in the Proposal or agreed with the Client.
   6. If the payment of any sum due is delayed the Consultant shall be entitled to charge interest at the rate of 4% above the base rate of the Bank of England for the time being in force on the overdue amount, and/or suspend further performance of the Consultancy Services, provided that the Consultant shall not suspend performance unless it shall have given to the Client written notice requiring payment of the overdue sum(s) within 7 days and the Client shall have failed to comply with such notice.
   7. If any part of an invoice is disputed or queried by the Client, the Client shall notify the details of such dispute on its presentation and of any intention to withhold payment. Failure to notify the Consultant shall render the invoice payable in full by its due date. The payment of an undisputed part of any invoice shall not be delayed.
5. Intellectual property and confidentiality.
   1. Unless otherwise agreed in writing all copyright and intellectual property rights of any Report arising out of the provision of the Consultancy Services shall vest in and belong to the Consultant. Subject to the Consultant having been paid all sums due under the Contract, the Consultant shall grant to the Client the non-transferable but royalty free right to use the Report for the purposes of the Consultancy Services.
   2. Any Information or Document provided by the Client which is so designated by the Client shall be kept confidential by the Consultant, and any Report provided by the Consultant which is so designated by the Consultant shall be kept confidential by the Client, but the foregoing shall not apply to any Document or other data or information which are public knowledge or in the public domain at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through the normal operation of legal process or through no fault of the other party.
   3. The provisions of clause 5.2 above shall not apply to any information obtained from a third party who is free to divulge the same, or where such information is required to be divulged by law.
   4. Both parties shall only divulge confidential information to such employees who have a need to know, and are bound by similar obligations of confidentiality as set out in this Section 5.
   5. The Client warrants that any Information provided and its use by the Consultant for the purpose of providing the Consultancy Services will not infringe the copyright or other rights of any third party, and the Client shall indemnify the Consultant against any loss, damages, costs, expenses or other claims arising from any such infringement.
   6. Subject to Condition 5.5 above, the Consultant warrants that any Report and its use by the Client for the purposes of the Consultancy Services will not infringe the copyright or other rights of any third party, and the Consultant shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
   7. Unless otherwise expressly agreed in writing the Client agrees that the Consultant is not the principal designer under the Health and Safety Executive or other determinating legislation.
6. Termination and force majeure.
   1. If either party is in breach of its obligations and fails to remedy such breach (if capable of remedy) within 14 days of receiving written notice to remedy the breach then the Agreemen may be terminated forthwith by the party not in default without prejudice to the accrued rights of the parties.
   2. If either party shall become insolvent or bankrupt or have a receiving or administration order made against it or compound with its creditors or commence winding up (save for solvent amalgamation or reconstruction), the other party shall be at liberty by written notice to terminate the Agreement forthwith.
   3. Neither party shall have any liability for delay or failure in performance which result from circumstances beyond the reasonable control of that party. The party affected by such circumstance shall notify the other party if such circumstance occurs, as soon as it is reasonably practicable to do so. If such circumstance persists for a period of more than three months, either party may terminate this Agreement by written notice.
7. General provisions and dispute resolution.
   1. Any notice required or permitted to be given by either party to the other under these conditions shall be in writing, addressed to the other party at its principal place of business, or to such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice,.
   2. No delay or failure by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
   3. If any provision of these conditions is held by any competent authority to be invalid or unenforceable, in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall be unaffected.
   4. No term of this Agreement is intended for the benefit of any third party, and the parties do not intend that any term of this Agreement shall be enforceable by a third party under the Contracts (Third Parties) Act 1999 or otherwise.
   5. Any dispute or difference which cannot be amicably resolved by the parties shall:
      • Where the Client complains of unethical or unprofessional conduct on the part of the Consultant, be referred to and dealt with under the provisions of the Royal Town Planning Institute Code of Conduct or Code of Ethics for the time being in force, or as applicable;
      • In the case of all other disputes or differences, be referred to the non-exclusive jurisdiction of the courts of England and Wales.
   6. This Agreement shall be governed by and construed under English law.