CONSULTANT'S FAILURE TO EXERCISE
REASONABLE SKILL AND CARE IN THE PERFORMANCE OF ITS DUTIES AND RESPONSIBILITIES
UNDER THE APPOINTMENT.
THE CONSULTANT'S LIABILITY UNDER THIS DEED SHALL BE
LIMITED TO THAT PROPORTION OF THE BENEFICIARY'S LOSSES AND DAMAGES, COSTS AND
EXPENSES WHICH IT WOULD BE JUST AND EQUITABLE TO REQUIRE THE CONSULTANT TO PAY
HAVING REGARD TO THE EXTENT OF THE CONSULTANT'S RESPONSIBILITY FOR THE SAME AND
ON THE BASIS THAT THE OTHER CONSULTANTS AND THE CONTRACTOR APPOINTED IN RESPECT
OF THE DESIGN AND/OR CONSTRUCTION OF THE PROJECT SHALL BE DEEMED TO HAVE
PROVIDED NO LESS ONEROUS CONTRACTUAL UNDERTAKINGS AS ARE REFERRED TO IN CLAUSE
1.1 TO THE BENEFICIARY IN RESPECT OF THEIR DUTIES AND OBLIGATIONS IN CONNECTION
WITH THE PROJECT AND SHALL BE DEEMED TO HAVE PAID TO THE BENEFICIARY SUCH
PROPORTION WHICH IT WOULD BE JUST AND EQUITABLE FOR THEM TO PAY HAVING REGARD TO
THE EXTENT OF THEIR RESPECTIVE DUTIES AND OBLIGATIONS PROVIDED THAT, IF THIS
CLAUSE 1.2.1 SHALL BE FOUND TO BE INEFFECTIVE, INOPERABLE OR UNENFORCEABLE FOR
ANY REASON, IT SHALL BE SEVERED AND DEEMED TO BE DELETED FROM THIS DEED AND THE
REMAINING PROVISIONS OF THIS DEED SHALL CONTINUE TO HAVE FULL FORCE AND EFFECT.
1.2.2
SUBJECT TO CLAUSE 8, THE DUTIES, OBLIGATIONS AND
LIABILITIES OWED BY THE CONSULTANT UNDER THIS DEED SHALL BE NO WIDER OR GREATER
THAN THE DUTIES, OBLIGATIONS AND LIABILITIES THAT THE CONSULTANT WOULD OWE TO
THE BENEFICIARY UNDER THE APPOINTMENT IF THE BENEFICIARY HAD BEEN NAMED AS THE
EMPLOYER UNDER THE APPOINTMENT AND HAVING REGARD TO THE NATURE OF THE
BENEFICIARY'S INTEREST IN THE PROJECT AS REFERRED TO IN THE RECITALS HERETO AND
(SUBJECT AS AFORESAID) ANY AGREEMENT OR ARRANGEMENT MADE PURSUANT TO THE
APPOINTMENT IN RESPECT OF THE CONSULTANT'S DUTIES AND OBLIGATIONS TO THE CLIENT
SHALL LIKEWISE BIND THE BENEFICIARY, AND THE CONSULTANT SHALL BE ENTITLED IN ANY
ACTION OR PROCEEDINGS BROUGHT BY THE BENEFICIARY TO RAISE THE EQUIVALENT RIGHTS
IN DEFENCE OF LIABILITY (EXCLUDING ANY FINANCIAL CLAIMS THAT THE CONSULTANT MAY
HAVE AGAINST THE CLIENT UNDER THE APPOINTMENT) THAT IT WOULD HAVE AGAINST THE
CLIENT UNDER THE APPOINTMENT.
1.3
SUBJECT TO CLAUSES 1.1 AND 1.2 AND UNLESS
THE SPECIFICATION AND/OR USE OF THE SAME ARE NOTIFIED TO THE CLIENT AND AGREED
BY THE CLIENT IN WRITING THE CONSULTANT FURTHER WARRANTS TO THE BENEFICIARY THAT
NONE OF THE MATERIALS SPECIFIED IN THIS CLAUSE 1.3 HAVE BEEN OR SHALL BE
SPECIFIED BY THE CONSULTANT FOR USE IN THE PROJECT AND THAT INSOFAR AS IT IS
CONSISTENT WITH THE CONSULTANT'S OBLIGATIONS HEREUNDER THE CONSULTANT HAS USED
AND SHALL CONTINUE TO USE ALL THE REASONABLE SKILL, CARE AND DILIGENCE REFERRED
TO IN CLAUSE 1.1 TO ENSURE THAT THEY ARE NOT USED IN THE PROJECT:
1.3.1
ANY OF THE FOLLOWING MATERIALS:-
(i)
high alumina cement or concrete in
structural elements;
(ii)
wood wool slabs in permanent formwork to
concrete or in structural elements;
(iii)
calcium chloride in admixtures for use in
reinforced concrete unless in accordance with BS5238 and BS8110;
2
(iv)
calcium