Notes on the Terms and Conditions Clause Samples

Notes on the Terms and Conditions. The Contract is governed by English Law and any disputes arising out of or in connection with the Contract shall be resolved exclusively by the courts of England and Wales. There is uncertainty over who is ‘the person carrying out the works’ for the purposes of the Building Regulations and so there is an assumption in clause 5.8 that this is the Client. If the Client does not consider that this is correct then they shall notify the Building Control Approver. In Clause 6, if the Parties agree in writing that the Building Control Approver shall be responsible for the obtaining and implementing all necessary permits, licences, consents and approvals, then such services will be outside the statutory functions of the Building Control Approver. Note that typical Building Control Approver professional indemnity insurance only covers liability arising from the statutory obligations of a Building Control Approver. Therefore, if any non-statutory services are provided (including pursuant to clause 6), the Building Control Approver will need to maintain separate professional indemnity insurance to cover any liability arising under or in connection with any non-statutory services. In Clause 8.7, there is an entitlement for the Building Control Approver to charge interest at 8% above the Bank of England dealing rate on any sum which is not paid by the Client to the Building Control Approver by the Final Date for Payment. This entitlement does not apply where the Client is one or more individual(s) who are owners or occupiers of a dwelling (i.e., ‘domestic’ clients). This is because in some instances the law relating to Building Control Bodies is different depending upon whether the Client is a domestic client or not. In Clause 16.2, the Building Control Approver’s total aggregate limit on liability is limited to the greater of (i) ten times the fee or (ii) £250,000. This will need to be reviewed on a case-by-case basis to ensure that the cap on liability will not be deemed unreasonable and unenforceable (for example, where the project value is significantly higher and where it is a domestic client). The limit on liability must be no higher than the level of insurance maintained by the Building Control Approver, otherwise the Building Control Approver will be exposed to uninsured liability. Following recent issues regarding fire safety, the insurance market has hardened and there is less cover available for fire safety claims. Therefore, the Contract (in clause 16.3) in...