STANDARD TERMS OF ENGAGEMENT:
• Keystone Chartered Surveyors is the trading name of KEYSTONE BUILDING CONSULTANTS LTD registered in England and Wales under company number 09945102 with its registered office at 65 Chichester Lane, Manchester, M30 8EP.
• Letter of Appointment means: the letter, email, or instruction form signed and associated documentation which may refer to this document reference KSBCLTD25042017.
• KEYSTONE BUILDING CONSULTANTS LTD which sets out the details of the Client, Services, and Fees together with other details relating to the Services which may be appropriate to this instruction.
• Fees means: the Fees payable by the Client in consideration of KEYSTONE BUILDING CONSULTANTS LTD carrying out the Service plus charges, expenses and disbursements payable by the Client on receipt of invoice, or advanced payment.
• Services means: the Services to be provided by KEYSTONE BUILDING CONSULTANTS LTD in carrying out the Client’s instructions as described in the Letter of Appointment subject to the terms of this Agreement.
• Report means: any document, report, drawing, specification, calculation, form or table which is written, produced or created by KEYSTONE BUILDING CONSULTANTS LTD in the course of carrying out the Services.
• Property means: the location, site or building(s) which is the subject of the Service.
1.1 These Terms of Appointment are to be read in conjunction with the letter dated [date] (“Letter of Appointment”). Collectively they will form the contract between the Client and KEYSTONE BUILDING CONSULTANTS LTD (“this Agreement”).
1.2 KEYSTONE BUILDING CONSULTANTS LTD shall provide the Service with all reasonable skill and care.
1.3 Acceptance of our commencement of the provision of the Service to the Client shall be deemed to be acceptance of this Agreement.
2.0 The Services
2.1 The Client shall notify KEYSTONE BUILDING CONSULTANTS LTD in writing of any instruction to vary the Service or these Terms of Appointment.
2.2 KEYSTONE BUILDING CONSULTANTS LTD reserves the right to amend this Agreement including but not limited to the Services described and the Fee as a consequence of any requested and agreed variation of the Services.
2.3 Any dates for performance of the Services specified in the Letter of Appointment or otherwise agreed shall be estimates only and time shall not be of the essence for performance of the Services.
3.1 The Client undertakes to pay the Fees to KEYSTONE BUILDING CONSULTANTS LTD for the performance of the Services in accordance with this Agreement.
3.2 Invoices will be rendered to the individual or organisation named in these Terms of Appointment. The Client undertakes to pay the Charges to KEYSTONE BUILDING CONSULTANTS LTD for the performance of the Service in such instalments as are set out below, upon completion of the disposal or indicated within the fee proposal. Payment shall be made within 7 days of the invoice date or otherwise specified in the letter/email of appointment.
3.3 Where the Fees include charges, expenses and disbursements these shall be payable by the Client as invoiced and at rates indicated by KEYSTONE BUILDING CONSULTANTS LTD or at cost to KEYSTONE BUILDING CONSULTANTS LTD.
3.4 The Fees shall not be subject to the addition of Value Added Tax applicable at the time of invoice.
3.5 KEYSTONE BUILDING CONSULTANTS LTD reserves the right to charge interest and debt recovery costs in respect of any amounts that remain unpaid after the date for payment. Interest will be calculated in accordance with the “Late Payment of Commercial Debts Regulations 2002”.
3.6 In some instances where specialist subcontractors work alongside KEYSTONE BUILDING CONSULTANTS LTD UK Ltd fees may be levied by KEYSTONE BUILDING CONSULTANTS LTD UK Ltd on behalf of the sub-contractor in the interests of simplicity. However, the contractual relationship remains between the sub-contractor and the client directly. KEYSTONE BUILDING CONSULTANTS LTD UK Ltd accept no responsibility for the content of reports or advice provided by a third party subcontractor whether paid by KEYSTONE BUILDING CONSULTANTS LTD UK Ltd or directly by the client.
4.0 Limitation of Liability
4.1 The Liability of KEYSTONE BUILDING CONSULTANTS LTD for its own acts and omissions whether in contract, in tort (including negligence) or breach of statutory duty howsoever arising in connection with the Service, under or in connection with this Agreement shall be limited in each of the following respects:-
4.2 Subject to paragraph 4.6, KEYSTONE BUILDING CONSULTANTS LTD shall not be liable for more than KEYSTONE BUILDING CONSULTANTS LTD’s just and equitable proportionate share of the loss, injury or damage, assuming that all other professionals/consultants/specialists (either directly appointed by the Client or appointed by KEYSTONE BUILDING CONSULTANTS LTD) who are responsible, are equally obliged to exercise reasonable professional skill and care and they have been appointed on terms no less onerous and shall be deemed to have paid to the Client their just and equitable proportionate share of the liability;
4.3 Subject to clause 4.6 KEYSTONE BUILDING CONSULTANTS LTD shall have no liability to the Client under this Appointment in respect of loss of profits, loss of revenue or business, loss of goodwill or reputation or indirect or consequential losses save to the extent that such losses are reasonably foreseeable, properly mitigated and arise out of KEYSTONE BUILDING CONSULTANTS LTD’s negligent breach of terms of this Appointment.
4.4 Subject to paragraph 4.6 the maximum liability of KEYSTONE BUILDING CONSULTANTS LTD shall be the fee multiplied by 15, in total, for all claims howsoever arising in connection with the Service under or in connection with this Agreement.
4.5 If these limits are not acceptable please contact KEYSTONE BUILDING CONSULTANTS LTD to discuss agreeing higher figures; any variation agreed will be recorded in writing.
4.6 Nothing in these Terms of Appointment shall exclude or restrict KEYSTONE BUILDING CONSULTANTS LTD’s liability for death or personal injury resulting from KEYSTONE BUILDING CONSULTANTS LTD’s negligence or for fraud.
5.1 The copyright in all documents and reports prepared by KEYSTONE BUILDING CONSULTANTS LTD in providing the Services shall remain the property of KEYSTONE BUILDING CONSULTANTS LTD. Subject to payment by the Client of the Fees properly due to KEYSTONE BUILDING CONSULTANTS LTD under this Agreement KEYSTONE BUILDING CONSULTANTS LTD grants to the Client an irrevocable non-exclusive royalty-free licence to copy and use the documents for any purpose related to the project. Such licence shall carry the right to grant sub licences and these licenses and sub licences shall be transferable to third parties.
5.2 KEYSTONE BUILDING CONSULTANTS LTD shall not be liable for any use of the documents for any purpose other than that for which they were prepared and provided by KEYSTONE BUILDING CONSULTANTS LTD or for any use by a third party and the Client shall indemnify KEYSTONE BUILDING CONSULTANTS LTD against any claims made by a third party.
5.3 No reliance will be placed by the Client on draft reports or interim advice (oral or written) provided by KEYSTONE BUILDING CONSULTANTS LTD as these may vary significantly from any final report or advice.
6.1 The Services provided to the Client will be treated by KEYSTONE BUILDING CONSULTANTS LTD in confidence. KEYSTONE BUILDING CONSULTANTS LTD will take reasonable steps to keep such matters confidential as may be required by the Client in writing save for such information which:-
6.2 is now or hereafter becomes available in the public domain other than through the fault of KEYSTONE BUILDING CONSULTANTS LTD or any of its directors, employees, consultants, sub contractors or advisers;
6.3 is already or becomes known to KEYSTONE BUILDING CONSULTANTS LTD or any of its directors, employees, consultants, sub contractors or advisers at the time of its disclosure;
6.4 is required by law by any Court of competent jurisdiction, or by a governmental or regulatory authority, or where there is a legal or regulatory duty or requirement to disclose or it is agreed that it may be released.
7.0 Suspension and Termination
7.1 Either the Client or KEYSTONE BUILDING CONSULTANTS LTD may terminate the KEYSTONE BUILDING CONSULTANTS LTD appointment by giving 28 days’ notice in writing to the other party, or immediately in the event of either party having a receiver, administrative receiver or administrator appointed over all or part of its assets or undertaking, or if either party passes a resolution to wind up or has a liquidator appointed or in the case of an individual is adjudged bankrupt.
7.2. In the event of termination of instructions for whatever reason, the Client shall pay all Fees reasonably due to KEYSTONE BUILDING CONSULTANTS LTD on receipt of invoice.
8.1 If the Client is aware or becomes aware of a possible or actual conflict of interest, this shall be notified immediately to KEYSTONE BUILDING CONSULTANTS LTD. Where a potential or actual conflict of interest arises, then KEYSTONE BUILDING CONSULTANTS LTD shall take account of the legal constraints, professional regulations and the Client’s and other clients’ interests to determine whether KEYSTONE BUILDING CONSULTANTS LTD should continue to act for both parties, for one party, or for neither. In the event of such a conflict arising, KEYSTONE BUILDING CONSULTANTS LTD shall in its discretion, be entitled to terminate these Terms of Appointment with immediate effect by notice in writing to the Client.
9.0 Professional Indemnity, Insurance and Complaints
9.1 In the UK, KEYSTONE BUILDING CONSULTANTS LTD is regulated by the Royal Institution of Chartered Surveyors. Details of our professional indemnity insurance specified in the Provision of Services Regulations 2009 will be provided to the Client on request by the Head of Secretariat: (firstname.lastname@example.org).
9.2 In the event that the Client has a complaint the Client shall be entitled to have access to the complaints handling procedure maintained by KEYSTONE BUILDING CONSULTANTS LTD which contains a dispute resolution process as required by the Royal Institution of Chartered Surveyors (RICS) rules of conduct (details of which are available on request from the Head of Secretariat [email@example.com] at the registered office).
10.1 Any notice to be given under these Terms of Appointment shall be in writing and delivered by hand or sent by recorded delivery post to the party at the address for that party shown in these Terms of Appointment or to such other address as the other party may have specified from time to time by written notice to the other.
11.0 Liability of Employees
11.1 The duties and responsibilities owed to the Client are solely and exclusively those of KEYSTONE BUILDING CONSULTANTS LTD. No employee, or Director of KEYSTONE BUILDING CONSULTANTS LTD shall owe to the Client any personal duty of care or be liable to the Client for any loss or damage howsoever arising as a consequence of the acts or omissions of such employee, or Director (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, or Director.
11.2 The Client will therefore not bring any claim personally against any individual employee, or Director of KEYSTONE BUILDING CONSULTANTS LTD, other than in respect of those liabilities caused by fraud, dishonesty, wilful misconduct or unauthorised conduct on part of such employee or Director.
12.0 Data Protection
12.1 As a result of KEYSTONE BUILDING CONSULTANTS LTD’s relationship with the Client, KEYSTONE BUILDING CONSULTANTS LTD will need to hold and process personal data about individuals within the Client’s business (such as contact details of the Client and for related purposes such as updating Client records, crime prevention, legal and regulatory compliance) and may need to disclose this information to appropriate persons. In providing any personal data to KEYSTONE BUILDING CONSULTANTS LTD, the Client confirms that the Client has informed the individuals concerned and obtained any necessary consents to the transfer to KEYSTONE BUILDING CONSULTANTS LTD and for KEYSTONE BUILDING CONSULTANTS LTD’s use of data for these purposes.
12.2 KEYSTONE BUILDING CONSULTANTS LTD may send the Client business and marketing communications which may be of interest to the Client, should the Client not wish to receive mail from KEYSTONE BUILDING CONSULTANTS LTD relating to our Service, please advise the Agent responsible for this instruction.
13.0 The Bribery Act 2010 (“The Act”)
13.1 In order to comply with the Act the Client must immediately notify “KEYSTONE BUILDING CONSULTANTS LTD” in writing if the Client becomes aware of any person (employee, agent, intermediary, contractor, private individual, commercial organisation, or public official) connected with this instruction that has breached or committed an offence under the Act. In accordance with clause 7.3 KEYSTONE BUILDING CONSULTANTS LTD shall have the right to terminate this Agreement with the Client immediately in writing, without penalty or liability if KEYSTONE BUILDING CONSULTANTS LTD reasonably believes that the Act has been breached or an offence has been committed. The Client agrees to adhere to KEYSTONE BUILDING CONSULTANTS LTD’s Anti-Bribery and Corruption Policy and all applicable English laws relating to anti-bribery and corruption including but not limited to the Act.
14.1 Neither party may assign any of their respective rights or obligations under the Terms of Appointment to any third party without the prior written consent of the other party.
15.1 English law shall apply to this Agreement and if there is any dispute, the English Courts will have exclusive jurisdiction.
15.2 Alternatively, where this contract is instructed by a KEYSTONE BUILDING CONSULTANTS LTD Scottish office then Scottish law shall apply to this Agreement and if there is any dispute, the Scottish Courts will have exclusive jurisdiction.
16.0 Joint and Several Liability of Client
16.1 If at any time the Client shall consist of more than one person, the obligations on the Client under this Agreement shall be enforceable against each of them on a joint and several basis.
17.0 Entire Agreement
17.1 These Terms of Appointment contain the whole Agreement between the Client and KEYSTONE BUILDING CONSULTANTS LTD and supersede all prior representations, proposals, agreements or undertakings (written or oral).
17.2 From time to time it may be necessary to amend or replace these Terms of Appointment with new terms. Where this is the case, KEYSTONE BUILDING CONSULTANTS LTD will notify the Client of the changes and unless the Client notifies KEYSTONE BUILDING CONSULTANTS LTD within 7 days after such notification, the amendments or new terms will come into effect at the end of the period.
17.3 If there is an inconsistency or contradiction between the Letter of Appointment and these Terms of Appointment the provisions of the Letter of Appointment will prevail.
17.4 KEYSTONE BUILDING CONSULTANTS LTD reserve the right to cancel the instruction at any point and to their own discretion. A full refund will be provided.
18.0 Rights of Third Parties
18.1 Except as provided under 11, the Contracts (Rights of Third Parties) Act 1999 shall not apply. No liability whatsoever is accepted in relation to any third party or for use of any Report for any other purpose without the express written consent of KEYSTONE BUILDING CONSULTANTS LTD.
19.0 Reliance and Instructions
19.1 KEYSTONE BUILDING CONSULTANTS LTD shall act in accordance with and shall be entitled to rely upon instructions received (or in the reasonable opinion of KEYSTONE BUILDING CONSULTANTS LTD appear to have been received) from a person authorised to give instructions on behalf of the Client and KEYSTONE BUILDING CONSULTANTS LTD shall bear no liability in respect of anything done or suffered to be done by it in good faith and in accordance with such instructions.
19.2 The Client undertakes to promptly (i) provide free of charge to KEYSTONE BUILDING CONSULTANTS LTD any information that is reasonably necessary for KEYSTONE BUILDING CONSULTANTS LTD to perform the Service; (ii) notify KEYSTONE BUILDING CONSULTANTS LTD of any changes relating to this information; and (iii) ensure that its decisions, instructions, consents or approvals in relation to all matters properly referred to it shall be given in such reasonable time so as not to delay or disrupt the performance of the Service by KEYSTONE BUILDING CONSULTANTS LTD.
20.0 Force Majeure Events
20.1 Force Majeure Events means an event beyond the control of KEYSTONE BUILDING CONSULTANTS LTD (or any person acting on its behalf), which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources. KEYSTONE BUILDING CONSULTANTS LTD shall be relieved from any and all liability under or in connection with these Terms of Appointment to the extent that such liability arises from any failure to perform any of its obligations under or in connection with the Terms of Appointment and such failure has been caused or contributed to by any event or circumstance or cause beyond the reasonable control of KEYSTONE BUILDING CONSULTANTS LTD.
21.0 Cancellation and Refunds
21.1 You can cancel and receive a full if you notify us as least 48 hrs before the instruction is undertaken.
22. Levels of report and inspection
22.1 Report Level 2
it should include comments where the design or materials used in the construction of a building element may result in more frequent and/or more costly maintenance and repairs than would normally be expected
the likely remedial work should be broadly outlined and what needs to be done by whom and by when should be identified
concise explanations of the implications of not addressing the identified problems should be given and
cross-references to the RICS member’s overall assessment should be included
Survey level two reports should also make it clear that the client should obtain any further advice and quotations recommended by the RICS member before they enter into a legal commitment.
22.2 Report Level 3
A level three service should reflect the thoroughness and detail of the investigation. It should address the following matters:
the form of construction and materials used for each part of the building should be described in detail, outlining any performance characteristics. This is especially important for older and historic buildings where the movement of moisture through building materials can be critical to how the building performs
obvious defects should be described and the identifiable risk of those that may be hidden should be stated
remedial options should be outlined along with, if considered to be serious, the likely consequences if the repairs are not done
a timescale for the necessary work should be proposed, including (where appropriate and necessary) recommendations for further investigation
future maintenance of the property should be discussed, identifying those elements that may result in more frequent and/or more costly maintenance and repairs than would normally be expected
the nature of risks of the parts that have not been inspected should be identified and prioritisation of issues should be outlined.
22.3 Inspection Level 2
This level of service is for clients who are seeking a professional opinion at an economic price. It is, therefore, less comprehensive than a level three service. The focus is on assessing the general condition of the main elements of a property.
This intermediate level of service includes a more extensive visual inspection of the building, its services and grounds, but still without tests. Concealed areas normally opened or used by the occupiers are inspected if it is safe to do so (typical examples include roof spaces, basements and cellars).
The report objectively describes the condition of the different elements and provides an assessment of the relative importance of the defects/problems. At this level, although it is concise, the report does include advice about repairs and any ongoing maintenance issues.
Where the surveyor is unable to reach a conclusion with reasonable confidence, a recommendation for further investigations should be made. This level of service suits a broader range of conventionally built properties, although the age and type will depend on the knowledge and experience of the RICS member.
This level of service is unlikely to suit:
complex buildings, for example those that have been extensively extended and altered
unique or older historic properties – although survey level two services may be appropriate for some older buildings, the decision will depend on the RICS member’s proven competence and knowledge and the nature of the building itself. For example, a survey level two report on homes with traditional timber frames or those built much before 1850 is likely to be inconclusive and be of little use to the client or
properties in neglected condition. In such cases, a survey level two service will often result in numerous referrals for further investigations, an outcome that many clients find disappointing. Where the client is planning to carry out extensive repair and refurbishment work in the future, the RICS member should give advice on suitable additional services.
23.4 Inspection Level 3
This level of service is for clients who are seeking a professional opinion based on a detailed assessment of the property. The service consists of a detailed visual inspection of the building, its services and the grounds and is more extensive than a survey level two.
Concealed areas normally opened or used by the occupiers are inspected if it is safe to do so (typical examples include roof spaces, basements and cellars). Although the services are not tested, they are observed in normal operation – in other words, they are switched on or off and/or operated where the occupier has given permission and it is safe to do so.
The report objectively describes the form of construction and materials used for different parts of the property. It describes the condition and provides an assessment of the relative importance of the defects/problems. Additionally, it should:
describe the identifiable risk of potential or hidden defects in areas not inspected
propose the most probable cause(s) of the defects based on the inspection
outline the likely scope of any appropriate remedial work and explain the likely consequences of non-repair
make general recommendations in respect of the priority and likely timescale for necessary work and
give an indication of likely costs (this aspect would not normally form part of the level three service, but some RICS members may choose to include it). Where costings are included, this must be reflected in the terms and conditions.
Where an RICS member feels unable to reach the necessary conclusions with reasonable confidence, they should refer the matter for further investigations.
However, at survey level three such referrals should be the exception rather than the rule. A survey level three report should aim to provide the client with all the information they need to make a decision.
This level of service will suit any domestic residential property in any condition depending on the competence and experience of the RICS member.