Appointment as so
novated, and references in this Deed to the Services shall mean, for the
avoidance of doubt, the Services performed or to be performed both before and
after such novation, and references hereinafter to the Client shall mean the
Contractor.
(C)
Hoare Lea & Partners Limited and Davis Langdon
LLP have been appointed as consultants in connection with the carrying out and
completion of the Project (the "Other Consultants").
(D)
The Beneficiary has entered into an agreement
with [
] dated [
] whereby the Beneficiary has, inter alia, [agreed to take]
[taken] a lease of [part of] the Premises.
NOW in consideration of the payment by the Beneficiary to the Consultant of £1
(one pound) (receipt of which is hereby acknowledged by the Consultant) THIS
DEED WITNESSES as follows:
1.
OBLIGATIONS
1.1
THE CONSULTANT WARRANTS AND UNDERTAKES TO
THE BENEFICIARY THAT SUBJECT TO THE TERMS OF THE APPOINTMENT THE CONSULTANT HAS
COMPLIED WITH AND SHALL COMPLY WITH ALL THE CONSULTANT'S DUTIES AND OBLIGATIONS
UNDER THE APPOINTMENT OR OTHERWISE AND THAT THE CONSULTANT HAS EXERCISED AND
WILL CONTINUE TO EXERCISE IN THE PERFORMANCE OF ITS DUTIES AND OBLIGATIONS UNDER
THE APPOINTMENT INCLUDING THE SERVICES ALL THE REASONABLE SKILL, CARE AND
DILIGENCE TO BE EXPECTED OF A PROPERLY QUALIFIED AND COMPETENT ARCHITECT
EXPERIENCED IN CARRYING OUT
1
DUTIES AND SERVICES OF THE TYPE COMPRISED IN THE APPOINTMENT AND IN THE SERVICES
FOR PROJECTS OF A SIMILAR SIZE, TYPE, SCOPE AND COMPLEXITY TO THE PROJECT.
1.2
THE CONSULTANT CONTRACTS WITH THE
BENEFICIARY THAT IT WILL BE LIABLE TO PAY TO THE BENEFICIARY ITS "NET
CONTRIBUTION" (AS DEFINED IN CLAUSE 1.2.1) CAUSED BY ITS FAILURE TO EXERCISE
THE REASONABLE SKILL, CARE AND DILIGENCE REFERRED TO IN CLAUSE 1.1 IN THE
PERFORMANCE OF ITS DUTIES AND OBLIGATIONS UNDER THE APPOINTMENT.
1.2.1
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 ("THE NET CONTRIBUTION")
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
ANY AGREEMENT OR ARRANGEMENT MADE PURSUANT TO THE
APPOINTMENT IN RESPECT OF THE CONSULTANT'S DUTIES AND