How good are your T’s and C’s? A talk for SPATA members 3 October 2018 By Philip Harris and Paul Slinger Partners, Wright Hassall Construction and Engineering Team Tel: 01926 886688 Mob: 07816 826421 / 0773 234973 Philip.harris@wrighthassall.co.uk; Paul.slinger@wrighthassall.co.uk

Terms and Conditions The ‘rules of play’ Standard forms Bespoke Amended standard forms Play by the rules, or at least know what they are They will be used to determine disputes.

Key points for protection Payment Workscope Design? Choice of law/Dispute resolution What might you face?

Payment Fixed price? Lump Sum? Measurement/schedule of rates? When?

Workscope What are you responsible for providing? What goods/materials? What services? If other designers etc are involved, how will liaison work and who is responsible for what? Beware uneducated employers – what might they expect? Make it clear it is not included. What timescales? What if the employer delays you?

Design Not always obvious. Record carefully which elements of design that the contractor is responsible for. The usual standard is that the design must be carried out using reasonable skill and care.

Design - Fitness for purpose Beware of obligations to comply with specifications or achieve a result. Fitness for purpose is akin to strict liability. MT Hojgaard v Eon

Choice of law / jurisdiction / dispute resolution English law and English courts will give more certainty, irrespective of where you carry the works out. Consider how you will enforce an award against a company or individual not based in England however. Reciprocal arrangements. ADR – Mediation / conciliation / director level meetings. Arbitration for privacy?

Offer and Acceptance Quotes should be accompanied by, or refer to, copies of terms and conditions that you provide to your customer pre-contract; Beware accepting a counter-offer that says it is based on different terms (SPATA clause 2.1); The point of acceptance is not always straightforward to identify; Signatures and a date certainly help.

Representations / entire agreement clauses 2.3 The Contractor's employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by the Contractor in Writing. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.   2.4 Any advice or recommendation given by the Contractor or its employees or agents to the Customer or its employees or agents as to the storage, application, use or protection of the Goods which is not confirmed in Writing by the Contractor is followed or acted upon entirely at the Customer's own risk, and accordingly the Contractor shall not be liable for any such advice or recommendation which is not so confirmed in Writing. You can’t exclude liability for fraudulent misrepresentation or negligent misrepresentation that leads to personal injury or death.

Clever Employer/Customer clauses Conditions Precedent Retentions Liquidated Damages

These notes are for information only and do not constitute legal advice The law changes and the application of the law is often fact specific Wright Hassall can provide specific legal advice to all types of SPATA members, please make contact using the details on the first page

Thank you Any Questions? © 2018 Wright Hassall LLP