Flume Consulting Engineers Ltd
1.1 Definitions:
"Practice": Flume Consulting Engineers Ltd.
"Employer": The person, company, authority, agency, or other body who instructs the Practice to carry out work.
"Contract": The agreement between the Practice and the Employer for the provision of Services in accordance with these Conditions.
"Services": The consulting engineering services provided by the Practice as set out in the Contract.
"Documents": All reports, drawings, designs, calculations, and other documents prepared by the Practice.
"Designs": The designs, drawings, specifications, and related documents created by the Practice for the Project.
"Fees": The charges payable by the Employer for the supply of the Services in accordance with Clause 5.
“Third Party”: Any individual, company or organisation other than the Employer or the Practice.
“Deliverables”: Any output of the Services including reports, calculations, digital models, drawings, plans or other documentation, whether final or draft.
1.2 Construction:
References to statutes or statutory provisions include any amendments or re-enactments.
Words imparting the singular include the plural and vice versa.
A reference to writing or written includes emails.
2.1 These Conditions, governed by English law, apply to the appointment of the Practice by the Employer for the provision of Services on the Project. They should be read alongside other documents and correspondence forming the Practice's offer. Collectively, these documents constitute the entire Contract between the Practice and the Employer. In case of any discrepancy, the clauses in these Conditions prevail.
2.2 The Contract constitutes the entire agreement between the parties. The Employer acknowledges that it has not relied on any statement or representation not expressly set out in the Contract.
2.3 No terms or conditions endorsed upon, delivered with, or contained in the Employer's purchase order, confirmation of order, specification, or other document shall form part of the Contract unless expressly agreed in writing by the Practice.
2.4 Any reliance by the Employer on draft or preliminary material, including feasibility layouts or design concepts not confirmed as final, is done entirely at the Employer's risk.
2.5 The Practice shall not be bound by, nor deemed to have accepted, any obligation contained in third-party agreements, including head contracts or employer agreements, unless expressly incorporated into this Contract. Where reference is made to third-party documentation, the Practice shall have due regard to such documents only insofar as they relate directly to the Services.
3.1 The Practice shall provide the Services using reasonable skill, care and diligence to the standard expected of a competent consultant of similar experience in the relevant discipline. However, the Employer acknowledges that the Practice is not responsible for construction work, contractor performance, or enforcing third-party obligations.
3.2 The Contract incorporates the Association of Consulting Engineers Agreement 1, subject to amendments specified herein. The fee agreement excludes 'Other Duties to be Performed by the Consultant' as outlined in the ACE Agreements, unless otherwise agreed in writing for an additional fee.
3.3 The Practice shall use reasonable endeavours to meet any performance dates, but such dates are estimates only. Time shall not be of the essence in the performance of the Services.
3.4 The Practice's Services do not include continuous supervision, clerk-of-works duties, or full-time site presence unless explicitly stated in writing. Any site visits or inspections will be carried out at intervals deemed appropriate by the Practice, with the intention of reviewing general compliance only, not uncovering all defects or non-conformances.
3.5 Where the Practice provides preliminary layouts or planning-stage documentation, such Deliverables are not intended for construction or procurement purposes unless expressly confirmed in writing. Use of these Deliverables beyond the agreed planning scope is entirely at the Employer's risk.
4.1 The Employer shall:
a) Ensure that the terms of the Contract are complete and accurate.
b) Co-operate with the Practice in all matters relating to the Services.
c) Provide the Practice with all necessary information and materials, ensuring their accuracy and completeness.
d) 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.
e) Duties under CDM Regulations: Be aware of and comply with their duties under the Construction (Design and Management) Regulations 2015 (CDM Regulations), including:
– Providing all relevant pre-construction information promptly.
– Ensuring that suitable arrangements are in place for managing the project.
– Appointing a Principal Designer and Principal Contractor where required.
– Ensuring that a Construction Phase Plan is in place before construction begins.
– Providing welfare facilities as required by the CDM Regulations.
4.2 If the Practice's performance is prevented or delayed by any act or omission of the Employer or failure to perform any relevant obligation:
a) The Practice may suspend performance until the Employer remedies the default.
b) The Practice shall not be liable for any costs or losses sustained by the Employer arising directly or indirectly from such prevention or delay.
c) The Employer shall reimburse the Practice for any costs or losses arising from the Employer's default.
4.3 If the Employer fails to provide the Practice with sufficient or accurate information, the Practice shall be entitled to rely on the information provided without independent verification and shall not be liable for any resulting delay, omission, or defect.
5.1 Fees: The Fees for the Services are exclusive of VAT. VAT will be added at the applicable rate.
5.2 Accounts: Invoices will be issued monthly, reflecting a fair proportion of the Services completed.
5.3 Payment Terms: Payment is due within thirty (30) days from the date of invoice, without retention or discount. Interest at 2% per annum above the average base lending rate of the four major UK clearing banks will accrue on overdue amounts.
5.4 Right to Suspend: If the Employer fails to pay any amount due, the Practice may suspend Services after giving seven (7) days' written notice, stating the grounds for suspension.
5.5 Payment and Withholding: The Employer shall not withhold any fee properly due without providing full details and reasons no later than four (4) days prior to the due date.
5.6 Offer Validity: The Practice's offer remains open for thirty (30) days. If work does not commence within thirty (30) days of acceptance, the Practice reserves the right to renegotiate terms.
5.7 Where the Employer disputes any part of an invoice, the undisputed portion shall be paid in full by the due date. Disputed items must be notified in writing before the final date for payment, detailing the reasons for dispute. The Employer shall not delay payment of the undisputed portion of any invoice pending resolution of any disputed items.
6.1 Total Liability: The total aggregate liability of the Practice under or in connection with this Contract, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, shall not exceed (i) the amount stated in the Contract, or (ii) if no such amount is stated, the lesser of: (a) £1,000,000 or (b) the amount recoverable under the Practice's applicable professional indemnity insurance.
Where the Services are limited in scope, duration, or value, or where the Practice's appointment is for early-stage advice only (including pre-application or feasibility input), the liability cap shall be proportionate to the nature of the appointment and may be set out separately in writing or deemed to be limited to a sum equal to ten times the total fees payable for those Services, unless otherwise agreed.
6.2 Indirect and Consequential Losses: Neither Party shall under any circumstances whatsoever be liable to the other for any direct or indirect loss of profit, loss of business or anticipated saving, or special, indirect or consequential damage suffered by the other Party that arises under or in connection with this Contract.
6.3 Reliance on Information: The Practice relies on information provided by the Employer and third parties and is not liable for errors or omissions in such information.
6.4 No Liability to Third Parties: The Services and Documents provided by the Practice are intended solely for the Employer's use and should not be used or relied upon by any third party without the Practice's express written consent. The Practice accepts no liability to any third party in connection with the Services or the use of the Documents.
6.5 Time Not of the Essence: The Practice shall not be liable for any delay in the performance of the Services.
6.6 No Warranties and Limitations: No warranties, express or implied, are extended regarding the professional advice and services provided by the Practice within the Services and Documents. The Practice does not warrant the accuracy or completeness of the information provided and shall not be liable for any decisions, actions, or inactions taken by the Employer based on the Services.
6.7 Inherent Uncertainties and Assumptions: The Employer acknowledges that certain Services, such as flood risk assessments, involve inherent uncertainties and assumptions. The Practice does not accept responsibility for these uncertainties and assumptions.
6.8 Changes in Conditions or Regulations: The Practice is not liable for any changes in conditions or regulatory requirements that may occur in the future, which could alter the conclusions or recommendations provided.
6.9 Professional Indemnity: Notwithstanding the above, the Practice accepts liability for claims arising from its own negligence or breach of contract, to the extent covered by its Professional Indemnity Insurance, and subject to the limitations and exclusions set out in this Contract.
6.10 Contractor Disputes: The Practice shall not be liable for contractor delay, cost overrun, or any consequence of construction disputes between the Employer and other parties.
6.11 Limitation Period: No liability shall arise in respect of services performed or information relied upon more than six years before the date of any claim, or twelve years where the Contract is executed as a deed, unless otherwise agreed.
6.12 Fire Safety Exclusion: The Practice shall have no liability in respect of any claim, loss, or cost arising from the combustibility, fire resistance or fire safety performance of external cladding, internal fire protection systems, or other elements affecting the fire strategy of a building. Where exclusion is not permitted, such liability shall be capped at the greater of £10,000 or the amount recoverable under the Practice's professional indemnity insurance.
6.13 Apportioned Liability: The Practice's liability shall not exceed the proportion of loss which it would be just and equitable for the Practice to pay, having regard to its responsibility relative to that of other consultants, contractors or third parties who may also be liable.
6.14 Planning Outcomes: The Practice accepts no liability where a planning application or appeal is refused or objected to by a statutory authority, notwithstanding the technical merits or justifications presented. The Employer acknowledges that planning decisions may be made on policy or political grounds beyond the control of the Practice.
6.15 Liability Limited to Reasonable Skill and Care: Notwithstanding any other provision of this Contract, the Practice shall have no greater obligation or duty in respect of the Services than to exercise reasonable skill, care and diligence in accordance with Clause 3.1.
7.1 Ownership: All Intellectual Property Rights in or arising out of the Services shall remain vested in the Practice.
7.2 Licence: Upon full payment of all sums due, the Practice grants the Employer a non-exclusive, non-transferable licence to use the Designs and Documents solely for the purpose of completing the project and site for which they were originally prepared. This licence does not permit adaptation, reproduction, or use for any other site, scheme, or purpose without the Practice's prior written consent.
7.3 Restrictions: The Employer shall not disclose the Documents to any third party without the Practice's prior written consent and shall not use or rely upon them beyond the purposes for which they were originally prepared. No warranties are given that the use of the Practice's Deliverables will not infringe the rights of third parties.
8.1 Both parties undertake to keep confidential all information concerning the other's business, affairs, customers, clients, or suppliers.
8.2 This clause shall survive termination of the Contract.
8.3 This obligation does not extend to information already in the public domain, independently developed without reference to the disclosing party's data, or legally compelled disclosures.
9.1 Any changes to the scope of the Services must be agreed in writing and may result in an adjustment to the Fees.
9.2 Changes to any Designs, whether completed or part-completed, requested by the Employer or any other party beyond our control, will be charged to the Employer on a time basis at agreed rates.
10.1 Unless expressly included, Fees do not cover costs of services or data from other consultants, authorities, or specialists, including but not limited to site investigations, traffic counts, flood data, sewer records, or any other services or data not specifically referred to but deemed necessary by the Practice for the proper execution of the Services.
10.2 The Employer is responsible for procuring and paying for such third-party services.
10.3 Where third-party data or advice is incorporated into the Services (e.g., OS mapping, BGS data, EA flood levels, site investigations), the Practice shall not be responsible for errors, omissions, or future revisions of such data.
11.1 The Practice, as designers, integrates the safety, health, and welfare principles outlined in the Construction (Design and Management) Regulations 2015 (CDM Regulations) into every aspect of our design process. This involves identifying and mitigating risks early in the design phase, ensuring that our contributions enhance the overall safety and manageability of construction projects.
11.2 Employer's Obligations under CDM Regulations:
a) Under the CDM Regulations, the Employer, acting as the 'Client', has specific duties that are non-delegable. The Employer must make suitable arrangements for managing the project, including the allocation of sufficient time and resources.
b) The Employer must provide pre-construction information promptly and ensure that all designers and contractors are provided with this information.
c) The Employer is responsible for ensuring that a Principal Designer and Principal Contractor are appointed where required and that they carry out their duties.
d) The Employer must ensure that the construction phase does not start unless a Construction Phase Plan is in place and that welfare facilities are provided.
11.3 Provision of Information:
a) The Employer must provide all relevant information to the Practice at the beginning of our engagement. This includes details on existing services (such as gas, water, drainage, electricity), underground structures or watercourses, and specifics regarding existing on-site structures (including stability and structural form), as well as any prior structural modifications.
b) The Employer is responsible for conducting thorough site investigations and ensuring the accuracy and completeness of all information provided.
11.4 Awareness and Compliance:
a) If the Employer is uncertain about their duties under the CDM Regulations, they should seek guidance from professionals such as architects, builders, or other competent experts who can provide appropriate advice.
b) While the Practice does not offer health and safety advisory services, we are obligated to inform the Employer about their general responsibilities under the CDM Regulations.
c) The Practice does not assume the role of Principal Designer under CDM unless explicitly confirmed in writing. Provision of design services does not imply any statutory duty beyond those normally expected of a designer under Regulation 9.
11.5 Alignment with ACE Conditions:
a) The Association for Consultancy and Engineering (ACE) Conditions of Engagement are in full alignment with the CDM Regulations, acknowledging the Employer's duties by mandating the supply of essential information through the 'Obligations of the Client to the Consultant'.
b) The Practice, in its role as a designer, relies on the Employer to fulfil these obligations, enabling us to incorporate health and safety considerations effectively throughout the design process.
12.1 Either party may terminate the Contract by giving thirty (30) days' written notice.
12.2 The Practice may terminate immediately if the Employer fails to pay any amount due by the due date.
12.3 Upon termination for any reason, the Practice shall be entitled to retain copies of its work and correspondence for regulatory, insurance and evidential purposes.
13.1 On termination, the Employer shall immediately pay all outstanding Fees and expenses.
13.2 The accrued rights, remedies, obligations, and liabilities of the parties shall not be affected by termination.
13.3 Clauses intended to survive termination shall remain in effect.
14.1 The Practice shall not be liable for any failure or delay in performing its obligations due to events beyond its reasonable control, including but not limited to strikes, lock-outs, accidents, pandemics, war, fire, breakdown of plant or machinery, or default of suppliers or subcontractors.
14.2 If such events continue for more than four (4) weeks, either party may terminate the Contract by written notice.
14.3 The Practice shall not be liable for any delay, suspension or failure to perform due to any circumstance outside its control including, but not limited to, pandemics, war, extreme weather, or utility failure. The Practice shall be entitled to an extension of time and reimbursement of reasonable costs arising from such delay. If affected for more than four weeks, the Practice may suspend or terminate Services.
15.1 Assignment: Neither party may assign or transfer any of their rights or obligations under the Contract without the prior written consent of the other party.
15.2 Notices: Notices must be in writing and delivered by hand, pre-paid first-class post, or email to the addresses specified in the Contract or as otherwise notified.
15.3 Severance: If any provision of the Contract is held invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary, and the validity of the remaining provisions shall not be affected.
15.4 Waiver: No failure or delay by either party to exercise any right shall constitute a waiver of that or any other right.
15.5 No Partnership: Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties.
15.6 Third-Party Rights: A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Variation: No variation of the Contract shall be effective unless it is in writing and signed by both parties.
15.8 Governing Law and Jurisdiction: The Contract is governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.
16.1 The Contract constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, or arrangements.
16.2 Each party acknowledges that it has not relied on any statement or representation not expressly set out in the Contract.
16.3 Any marketing literature, proposals, fee estimates, or informal communications (including emails) not expressly incorporated into this Contract shall not form part of the agreement and shall not give rise to any liability or reliance.
16.4 Where no formal agreement is signed, but Services proceed following written or email confirmation of scope and fee, these General Conditions of Contract shall apply by default and shall be deemed accepted by the Employer.
17.1 The Employer is responsible for providing accurate and complete information necessary for the Practice to perform the Services effectively.
17.2 The Employer must ensure that the use of the Practice's products and advice complies with all relevant laws and regulations applicable to their operations.
17.3 The Employer must ensure that all planning documentation and reports have been undertaken covering all aspects of the proposed development and that they are fully satisfied with all aspects and risks.
18.1 The Practice will rely on the accuracy of all information provided by the Employer or third parties and will not verify such information.
18.2 It is the Employer's responsibility to ensure that all necessary surveys, reports, and data are accurate and complete, including but not limited to topographic surveys, site investigation reports, and planning documentation.
18.3 The accuracy and completeness of all third-party information remain entirely with the providers of that information.
19.1 When undertaking detailed design services, the Practice will rely on planning stage documentation provided by others.
19.2 The Employer is responsible for ensuring that all planning documentation and reports are complete and address all aspects and risks of the proposed development.
20.1 If the Employer intends to use any Designs or information provided by the Practice in any litigation or dispute resolution procedure, the Employer must inform the Practice in writing and obtain approval before using them.
20.2 The Practice reserves the right to refuse to provide copies of Designs for use in litigation or disputes involving the Practice.
20.3 The Employer must not use the Practice's Deliverables in any form of litigation or dispute resolution without the Practice's written consent. Any unauthorised use may constitute a breach of intellectual property and/or a misuse of confidential information.
21.1 The Practice will rely on the accuracy of the Topographic Survey and Site Investigation Reports provided by the Employer.
21.2 The Employer is responsible for ensuring that such surveys and reports are accurate and include all necessary information required for the Practice to carry out the Services in accordance with current standards and legislation.
21.3 The survey should include all relevant details outside the site boundary, such as trees, which may influence any design element within the site.
22.1 The Practice shall perform the Services using reasonable skill, care and diligence in accordance with the standard expected of a competent professional consultant in the relevant discipline. No greater duty is owed than that required by law or this Contract.
22.2 The Practice regularly reviews and updates its processes, designs, and advice to reflect the latest developments in technology, industry standards, and regulatory requirements.
23.1 Purpose of Services: The Services provided by the Practice are intended solely for the Employer's use and for the specific purposes agreed in the Contract. Unless expressly stated otherwise in writing, the Services are provided solely to support planning and decision-making and are not intended for construction, procurement, or implementation.
23.2 No Warranties: No warranties, express or implied, are extended regarding the professional advice and services provided by the Practice within the Services and Documents.
23.3 Third-Party Reliance: The Services and Documents should not be used, cited, or relied upon by any third party without the Practice's express written consent. Any unauthorised use or dissemination of the information is strictly prohibited.
23.4 Limitation of Responsibility: The Practice expressly disclaims all liability for any loss, damage, or inconvenience arising directly or indirectly from unauthorised use of the Services and Documents.
23.5 Future Changes: The Employer acknowledges that new information or changes in conditions and regulatory requirements may occur in the future, which could change the conclusions or recommendations provided. The Practice is not liable for such changes.
24.1 Flood Risk Assessments: The Employer acknowledges that flood risk assessments and similar Services involve inherent uncertainties and assumptions, particularly in the hydraulic and hydrological elements used by the Practice.
24.2 No Guarantee: While the Practice employs the most recent modelling and applies relevant climate change allowances, forecasting flood risks carries an inherent degree of uncertainty. The models do not account for future changes in land use, industry standards, or other factors that might influence future events.
24.3 Limitation of Liability: The Practice does not accept responsibility for these uncertainties and assumptions and shall not be liable for any decisions, actions, or inactions taken by the Employer based on the Services. The Employer agrees that flood risk, drainage and environmental assessments necessarily involve assumptions based on guidance, models and publicly available datasets. The Practice disclaims any liability for decisions taken on the basis of indicative or probabilistic outputs, particularly in areas with evolving regulatory or topographic data.
24.4 Published and Regulatory Data: The Practice relies on datasets published by statutory bodies, agencies and third parties, including but not limited to the Environment Agency, Natural Resources Wales, British Geological Survey and Lead Local Flood Authorities. The Practice accepts no responsibility for omissions, inaccuracies or changes to such data after the date of reporting, nor for decisions made based on data that are publicly available or used in accordance with industry guidance.
25.1 The Employer agrees to indemnify and hold harmless the Practice, its directors, officers, employees, and agents from and against any and all claims, liabilities, damages, losses, and expenses (including without limitation reasonable legal fees) arising out of or connected with:
a) The Employer's breach of any of the terms of this Contract;
b) The Employer's negligence, wrongful act, or omission;
c) Any claim made against the Practice by a third party arising from the Employer's use of the Services.
25.2 The Employer shall indemnify the Practice against any claim brought by third parties arising from unauthorised reproduction, distribution or reliance on the Practice's Deliverables. The Employer shall indemnify the Practice against any claim brought by third parties arising from unauthorised reproduction, dissemination, adaptation, modification, or reliance on the Practice's Deliverables or any derivative works based on them.
26.1 This Contract, and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of England.
26.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation.
By engaging Flume Consulting Engineers Ltd for the provision of Services, the Employer acknowledges that they have read, understood, and agree to be bound by these General Conditions of Contract.