www.aceagreements.co.

uk
2
2009 Edition, Second Revision
ACE Agreement 2:
Advisory, Investigatory
and other Services
for the appointment of a Consultant to undertake any type
of services in the built and natural environments except
where the Client appointing the Consultant intends to
employ a Contractor to construct or install permanent
Works designed by the Consultant as part of the services
About ACE
ACE represents the business interests of the consultancy and engineering industry in the UK.
We are the leading business association in this field, counting around 800 firms large and small,
operating across many different disciplines as our members.
There are two key strands to ACEs work. First, through powerful representation and dialogue with government,
major clients, the media and other key stakeholders, we promote the critical contribution that consultants
and engineers make to the nations development infrastructure.
Second, through direct contact, publications, events, our website, our sector and regional networks, we
provide a cohesive approach and direction for our members and the wider industry. ACE listens to its
members, understands the issues affecting them and their clients and takes the lead in representing their
interests to decision makers and opinion formers in government, client organisations and the media.
ACE Agreements are the industry standard contract documents for consultancy appointments.
To further promote best practice and better ways of working in the industry, ACE also publishes a range
of briefing notes and policy statements for both clients and consultants. Full details can be found on the
ACE website at www.acenet.co.uk.
For further information contact:
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557, Fax 020 7990 9202
consult@acenet.co.uk
www.acenet.co.uk
Legal Advice Line
In association with our preferred providers ACE is pleased to provide 15 minutes of free legal advice to
ACE members on a range of issues from standard forms of contract and collateral warranties guidance
to alternative dispute resolution. For more information please visit the ACE legal section at www.acenet.co.uk.
Acknowledgements
ACE would like to thank Beale & Company Solicitors and the ACE Legal and Commercial Group for their
expertise and assistance in producing the ACE Agreements (England and Wales) 2009 edition and
Brodies LLP for their expertise and assistance in producing the ACE (England and Wales) 2009 Edition,
Second Revision.
Published by the Association for Consultancy and Engineering (ACE)
Alliance House, 12 Caxton Street, London, SW1H 0QL
First published in May 2009
Amended in June 2009
Revised October 2011 Incorporating the amendments made to the Housing Grants, Construction and
Regeneration Act 1996 as stated in the Local Democracy, Economic Development and Construction Act 2009.
For details of amendments, corrections and updates, please contact ACE on 020 7222 6557
ACE can accept no liability in respect of any use to which the Agreement may be put.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, electronic, mechanical, photocopying or recording, except in accordance
within the provisions of the Copyright, Designs and Patents Act 1988, without the prior written permission
of the publisher. For the avoidance of doubt the above is not an exhaustive list.
Copyright ACE 2011
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557
Fax: 020 7990 9202
Email: consult@acenet.co.uk
Website: www.acenet.co.uk
ACE Agreement 2:
Advisory, Investigatory
and other Services
for the appointment of a Consultant to undertake any type
of services in the built and natural environments except
where the Client appointing the Consultant intends to
employ a Contractor to construct or install permanent
Works designed by the Consultant as part of the services
2
2009 Edition, Second Revision
2 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
day of 20
1
BETWEEN
and
THIS AGREEMENT is made the
whose address is
(the Client)
(the Consultant)
whose address is
ACE Agreement 2: Advise and Report
Part A: The Memorandum of Agreement
1
Insert the later
date of signing by
either of the two
parties to this
Agreement.
Signed by or on behalf of the Client:
Signature
Signed by or on behalf of the Consultant:
Signature
A1 This Agreement is between the Client and the Consultant and comprises
Part A: The Memorandum of Agreement
Part B: The Particulars of Agreement
Part C: The Programme for the Services
Part D: The Schedule of Fees
Part E: The Terms of Contract
Part F: The Schedule of Services
A2 This Agreement is made on the date set out in this Memorandum or the date upon which
the Consultant first commenced performance of the Services whichever is the earlier.
A3 The Client appoints the Consultant to provide the services described in Part F: The
Schedule of Services (the Services) in connection with
ACE Agreement 2: Advisory, Investigatory and other Services l3 Copyright ACE 2011
2
Briefly describe
the commission in
respect of which the
Consultant is
providing the
Services.
(the Purpose)
2
A4 This Agreement shall be governed by and construed in all respects in accordance with
the laws of England and each party hereby submits to the non-exclusive jurisdiction of
the English courts.
4 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
B1 The total liability of the Consultant under clause E5.1 of Part E: The Terms of Contract shall be

1
( )
1
B2
2
The total liability of the Consultant for pollution and contamination matters under clause
E5.4(i) of Part E: The Terms of Contract shall be the lesser of the sum of

1
( )
1
or the amount of the Consultants professional indemnity insurance as set out in clause
E5.4(i) of Part E: The Terms of Contract.
B3
2
The total liability of the Consultant for asbestos matters under clause E5.4(i) shall be the
lesser of the sum of

1
( )
1
or the amount of the Consultants professional indemnity insurance as set out in clause
E5.4(i) of Part E: The Terms of Contract.
1
B4
2
The total liability of the Consultant for terrorism matters under clause E5.4(ii) of Part E:
The Terms of Contract shall be

1
( )
1
B5 The period of the Consultants liability is from the date hereof to
3
years
after completion of the Services (or termination of this Agreement if earlier) or such earlier
date as may be prescribed by law.
Part B: The Particulars of Agreement
1
Insert figure
(and words in
parentheses).
2
Complete only if
E5.4(i) and/or E5.4(ii)
apply in respect of
pollution/
contamination
and/or asbestos
and/or terrorism.
If the Consultant has
no such obligation(s)
B2 and/or B3 and/or
B4 should be
deleted as
appropriate.
3
Insert number of
years in words.
In most cases the
period will be six
years.
ACE Agreement 2: Advisory, Investigatory and other Services l5 Copyright ACE 2011
1
Delete as
applicable.
Either
[C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is attached to
this Agreement]
1
Or
[C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is described in
a separate document referenced:
and dated ]
1
Or
[C1 The programme referred to in clause E1.2 of Part E: The Terms of Contract is as follows:
]
1
Part C: The Programme for the Services
6 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
Either
[D1 The fees for the Services shall be payable on a time basis at the following rates:
]
1
Or
[D1 The fee for the Services shall be payable as a lump sum of:

2
( )
2
]
1
Or
[D1 The fees for the Services shall be payable on the following basis:
3
]
1
D2 The fees shall be paid at the following intervals and/or in the following instalments:
Part D: The Schedule of Fees
1
Delete or complete
as appropriate.
2
Insert figure
(and words in
parentheses).
3
For use when the
fee is based on a
combination of time-
based fees and lump
sums, or some other
fee basis.
D3
4
Additional payment under clause E3.3 of Part E: The Terms of Contract shall be :
Either
[on a time basis at the rates stated in D1]
5
Or
[on a time basis at the following rates:
]
5
Or
[as follows:
]
5
D4 Where time-based fees are to be paid they shall be at the rates set out herein and
calculated by multiplying the hourly or daily rates applicable to the persons concerned by
the number of hours or days (as the case may be) spent by such persons in performing
the Services including time spent travelling in connection with such Services.
Either
[D5 Out of pocket expenses shall be paid at cost in addition to the fees and shall be invoiced
at the following intervals:
]
6
Or
[D5 Expenses are included in the fees.]
6
D6 The final date for payment shall be days/weeks
7
after the date of the Clients
receipt of the relevant invoice issued by the Consultant under clause E3.1 of Part E: The
Terms of Contract.
ACE Agreement 2: Advisory, Investigatory and other Services l7 Copyright ACE 2011
6
Delete as
applicable.
7
Insert a figure
and amend as
required.
4
In order to allow
clause E3.3 to
operate, one of the
options under D3
must be completed.
5
Delete and/or
complete as
appropriate.
8 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
Part E: The Terms of Contract
E1 OBLIGATIONS OF THE CONSULTANT TO THE CLIENT
E1.1 The Consultant shall exercise reasonable skill and care in the performance of the
Services.
E1.2 Subject to matters beyond the Consultants reasonable control the Consultant shall use
reasonable endeavours to perform the Services in accordance with the programme if any
set out in Part C: The Programme for the Services.
E2 OBLIGATIONS OF THE CLIENT TO THE CONSULTANT
E2.1 The Client shall pay the Consultant the fees and expenses set out in Part D: The Schedule
of Fees for the performance of the Services in accordance with these Terms and that Part
D. If not set out in Part D: The Schedule of Fees, the fees (and other sums payable under
this Agreement) shall be paid in equal instalments at intervals of not less than one month,
starting one month after the Consultant begins performing the Services.
E2.2 The Client shall supply the Consultant without charge and in a timely fashion with all
necessary and relevant information in the possession of the Client or any of the Clients
agents consultants or contractors and with any necessary instructions decisions
consents or approvals.
E3 PAYMENT
E3.1 The Consultant shall send an invoice to the Client for each instalment of the fees and other
sums payable under this Agreement. Each invoice shall specify
(i) the sum that the Consultant considers will become due on the payment due date
under Clause E3.2, and
(ii) the basis on which that sum is calculated.
E3.2 Payment shall be due on the date the Client receives the Consultants invoice. The final
date for payment shall be as specified in Clause D6 of Part D: Schedule of Fees.
E3.3 The Consultants invoice under clause E3.1 shall be the payment notice for the purposes
of Section 110 A(1) of the Housing Grants, Construction and Regeneration Act 1996 as
amended by Part 8 of the Local Democracy, Economic Development and Construction
Act 2009.
E3.4 On or before the final date for payment, the Client shall pay to the Consultant either
(i) the sum stated as due in the Consultants invoice issued under clause E3.1 (the
Notified Sum), or
(ii) the sum that the Client considers to be due as specified in any Pay Less Notice
under clause E3.5.
ACE Agreement 2: Advisory, Investigatory and other Services l9 Copyright ACE 2011
E3.5 Not later than seven days before the final date for payment, the Client may give the
Consultant a Notice that it intends to pay less than the Notified Sum (a Pay Less Notice).
Any Pay Less Notice shall specify:
(i) the sum that the Client considers to be due on the date the Notice is served; and
(ii) the basis on which that sum is calculated
E3.6 If the Consultant has to carry out additional work and/or suffers delay or disruption in the
performance of the Services for reasons beyond the Consultants reasonable control or
because of the exercise of the right of suspension under clause E6.2 the Client shall make
an additional payment to the Consultant in respect of the additional work carried out and
the additional resources employed and/or the delay or disruption suffered. The additional
payment shall be calculated on the basis set out in Part D: The Schedule of Fees. The
Consultant shall advise the Client when the Consultant becomes aware that any such
additional work is required and shall where practicable and if so requested by the Client
give an initial estimate of the additional payment likely to be incurred.
E3.7 Interest shall be added to all sums remaining unpaid after the final date for payment.
Interest shall be calculated in accordance with the Late Payment of Commercial Debts
(Interest) Act 1998 and at the relevant rate plus the statutory rate of interest.
E3.8 In the event of the Client being in default of payment of any fees or other amounts due
under this Agreement, the Consultant may revoke the licence granted in clause E4.1 on
giving seven days notice.
E3.9 All sums due under this Agreement are exclusive of value added tax the amount of which
shall be paid by the Client to the Consultant at the rate and in the manner prescribed by law.
E4 COPYRIGHT, LICENCE AND CONFIDENTIALITY
E4.1 The copyright in all drawings and other documents (including material in electronic form)
provided to the Client by the Consultant shall remain vested in the Consultant but subject
to clause E3.4 the Client shall have a licence to copy and use such drawings and other
documents for all purposes in connection with the Purpose. The Consultant shall not be
liable for the use by any person of any such drawings or other documents for any
purpose other than that for which the same were provided by the Consultant.
E4.2 Neither party shall disclose to any other person any private or confidential information
concerning the business of the other party unless so authorised by the other party save
in the proper course of that partys duties or to either partys professional advisers or
insurers or as required or permitted by law.
E5 LIABILITY AND INSURANCE
E5.1 Notwithstanding anything to the contrary contained in this Agreement but without
prejudice to any provision in this Agreement whereby liability is excluded or limited to a
lesser amount the total liability of the Consultant under or in connection with this
Agreement whether in contract, in tort, in negligence, for breach of statutory duty or
otherwise (other than in respect of personal injury or death) shall not exceed in aggregate
the sum set out in Part B: The Particulars of Agreement.
10 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
E5.2 Notwithstanding anything to the contrary contained in this Agreement but without
prejudice to any provision in the Agreement whereby liability is excluded or limited to a
lesser amount the liability of the Consultant if any for any loss or damage (the loss or
damage) in respect of any claim or claims shall be further limited to such sum as it
would be just and equitable for the Consultant to pay having regard to the extent of the
Consultants responsibility for the loss or damage and on the assumptions that:
(i) all other consultants and advisers and all contractors and all sub-contractors
appointed in connection with the Purpose shall have provided contractual
undertakings to the Client on terms no less onerous than those set out in clause
E1.1 in respect of the carrying out of their obligations;
(ii) there are no exclusions of or limitations of liability between the Client and any other
party referred to in this clause;
(iii) there are no joint insurance or co-insurance provisions between the Client and any
other party referred to in this clause and that any such other party who is
responsible to any extent for the loss or damage is contractually liable to the Client
for the loss or damage; and
(iv) all such other consultants and advisers and all such contractors and sub-
contractors have paid to the Client such proportion of the loss or damage which it
would be just and equitable for them to pay having regard to the extent of their
responsibility for the loss or damage.
E5.3 Except where it is expressly stated in Part F: The Schedule of Services that one or more
of the matters referred to in this clause comprise the whole or part of the Services the
Consultant shall not have any duty to consider such matters as influencing any aspect of
the Services to be performed by the Consultant under this Agreement nor shall the
Consultant be responsible under this Agreement or otherwise for:
(i) advising as to the actual or possible presence of pollution or contamination or as
to the risks of such matters having occurred, being present or occurring in the
future (herein called pollution and contamination matters); and/or as the case
may be
(ii) advising on matters that wholly, partly, directly or indirectly arise out of or result
from asbestos (including without limitation the costs of testing for, monitoring,
abatement, mitigation, removal, remediation or disposal of any asbestos or product
or waste that contains asbestos) (herein called asbestos matters); and/or as the
case may be
(iii) designing or advising on or otherwise taking measures to prevent or mitigate the
effect of any act of terrorism or any action that may be taken in controlling,
preventing, suppressing or in any way relating to an act of terrorism (herein called
terrorism matters);
and the liability of the Consultant under or in connection with this Agreement whether in
contract, in tort, in negligence, for breach of statutory duty or otherwise (other than in
respect of personal injury or death) for any claim that may arise out of or in connection
with pollution and contamination matters, and/or asbestos matters and/or terrorism
matters as the case may be is excluded.
ACE Agreement 2: Advisory, Investigatory and other Services l11 Copyright ACE 2011
E5.4 Where it is expressly stated in Part F: The Schedule of Services that the Services comprise
in whole or in part:
(i) pollution and contamination matters and/or as the case may be asbestos matters
then without prejudice to any provision in this Agreement whereby liability is
excluded or limited to a lesser amount the total liability of the Consultant under or in
connection with this Agreement for any claims arising out of or in connection with
pollution and contamination matters and/or as the case may be asbestos matters
whether in contract, in tort, in negligence, for breach of statutory duty or otherwise
(other than in respect of personal injury or death) shall in each case not exceed in
aggregate the lesser of the sum set out in Part B: The Particulars of Agreement or the
amount, if any, recoverable by the Consultant by way of indemnity against the claim
or claims in question under any professional indemnity insurance policy taken out by
the Consultant in respect of such matters and in force at the time the circumstances
that may give rise to the claim or claims in question or if later the claim or claims is
or are reported to the insurers in question. This latter limitation of liability shall not
apply to any such claim or claims if no such amount is recoverable due to the
Consultant having been in breach of the Consultants obligations under clause E5.6
in respect of the Consultants professional indemnity insurance or of the terms of
any such insurance maintained in accordance therewith or having failed to report
any such circumstances or the claim to the insurers in question timeously; and/or
(ii) terrorism matters then without prejudice to any provision in this Agreement whereby
liability is excluded or limited to a lesser amount the total liability of the Consultant
under or in connection with this Agreement for any claims arising out of or in
connection with terrorism matters whether in contract, in tort, in negligence, for breach
of statutory duty or otherwise (other than in respect of personal injury or death) shall
not exceed in aggregate the sum set out in Part B: The Particulars of Agreement.
E5.5 No action or proceedings under or in respect of this Agreement whether in contract, in
tort, in negligence, for breach of statutory duty or otherwise shall be commenced against
the Consultant after the expiry of the period stated in Part B: The Particulars of
Agreement.
E5.6 The Consultant shall maintain public liability insurance and professional indemnity
insurance in the amounts and for the length of time sufficient to cover the Consultants
liabilities hereunder provided always in either case that such insurance is available at
commercially reasonable rates and subject to all exceptions, exclusions and limitation to
the scope of cover that are commonly included in such insurances at the time the
insurance is taken out or renewed as the case may be.
E5.7 Save in respect of personal injury or death, the Client shall look only to the Consultant (and
not to any of the Consultants personnel) for redress if the Client considers that there has
been any breach of this Agreement. The Client agrees not to pursue any claims in contract,
tort or statute (including negligence) against any of the Consultants personnel as a result
of carrying out the Consultants obligations under or in connection with this Agreement at
any time and whether named expressly in this Agreement or not.
E5.8 In this Agreement Consultants personnel shall mean any employee or member of the
Consultant. Any such employee or member includes any officer or director of a company
or a member of a limited liability partnership or self-employed or agency personnel working
for the Consultant.
12 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
E6 SUSPENSION AND TERMINATION
E6.1 The Client may at any time require the Consultant to suspend the performance of the
Services by one weeks notice. If the period(s) of suspension exceed three months in
aggregate the Consultant may terminate the appointment of the Consultant by two weeks
notice.
E6.2 If the Client does not pay to the Consultant any Notified Sum or the sum specified as due
in a Pay Less Notice in full by the final date for payment, the Consultant may (without
prejudice to any other right or remedy) suspend the performance of any or all its
obligations under this Agreement by giving not less that seven days' Notice to the Client of
its intention to do so and stating the ground or grounds on which it intends to suspend
performance.
E6.3 Where the Consultant exercises its right of suspension under clause E6.2:
(i) the Client shall pay to the Consultant a reasonable amount in respect of costs and
expenses reasonably incurred by the Consultant as a result of the exercise of that
right, and
(ii) any period during which performance is suspended in pursuance of or in
consequence of the exercise of that right (and the time taken for resumption
following suspension) shall be disregarded in computing (for the purpose of any
contractual time limits) the time taken by the Consultant or by a third party to
complete any work directly or indirectly affected by the exercise of that right (and
where a contractual time limit is set by reference to a date rather than a period, the
date shall be adjusted accordingly).
E6.4 The right of suspension in Clause E6.2 shall cease when the Client pays the Notified Sum
or the sum due as stated in a Pay Less Notice.
E6.5 The Client may terminate the appointment of the Consultant in the event of a breach of this
Agreement by the Consultant or in the event of the insolvency of the Consultant by two
weeks notice.
E6.6 The Consultant may terminate the appointment of the Consultant in the event of a breach of
this Agreement by the Client or in the event of the insolvency of the Client by two weeks notice.
E6.7 In this Agreement insolvency shall mean either party becoming bankrupt going into
liquidation (either voluntary or compulsory except as part of a bona fide scheme of
reconstruction or amalgamation) being dissolved entering into a voluntary arrangement or
having a receiver, an administrative receiver or an administrator appointed in respect of the
whole or part of its assets.
E6.8 If circumstances arise for which the Consultant is not responsible and which the Consultant
considers make it irresponsible for the Consultant to perform all or any part of the Services
the Consultant shall be entitled to terminate the appointment of the Consultant by two
weeks notice.
ACE Agreement 2: Advisory, Investigatory and other Services l13 Copyright ACE 2011
E6.9 In the event of any suspension or termination, save in the event of termination pursuant to
clause E6.5 or suspension under clause E6.2, the Client shall pay the Consultant a fair and
reasonable amount on account of the fees due under clause E2.1 commensurate with the
Services performed to the date of such suspension or termination sums due under Clause
E6.3 and payments in respect of the Services to which the Consultant is irrevocably
committed and any outstanding expenses.
E6.10 Termination of the Consultants appointment under this Agreement shall not prejudice or
affect the accrued rights or claims of either party.
E7 DISPUTES AND DIFFERENCES
E7.1 The parties shall attempt in good faith to settle any dispute by mediation.
E7.2 Where this Agreement is a construction contract within the meaning of the Housing
Grants, Construction and Regeneration Act 1996 either party may refer any dispute
arising under this Agreement to adjudication in accordance with the Construction
Industry Council Model Adjudication Procedure current at the time of the referral of the
dispute. The adjudicator shall be appointed at the request of either party by the
Association for Consultancy and Engineering. The statement of case to be sent by the
referring party to the adjudicator in accordance with the Procedure shall not exceed eight
single-sided sheets of A4 sized paper excluding any attachments.
E8 GENERAL
E8.1 Neither party may assign or transfer any benefit or obligation under this Agreement
without the prior written consent of the other party.
E8.2 Save in respect of the benefits or rights conferred on the Consultants personnel pursuant
to clause E5.7 nothing in this Agreement confers or purports to confer on any third party
any benefit or any right to enforce any term of this Agreement under the Contracts
(Rights of Third Parties) Act 1999.
E9 NOTICES
E9.1 Any notice under this Agreement shall be in writing and given by sending the same by fax
or first class letter to the Client or the Consultant at the address shown in Part A: The
Memorandum. For the avoidance of doubt any notice sent by email shall not be an
effective notice under this Agreement. Notices shall take effect when they have been
received by the Client or the Consultant as the case may be.
E10 INTERPRETATION
E10 In this Agreement, a reference to a statute or statutory provision is a reference to it as
amended, extended or re-enacted from time to time.
14 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
F1 The Services to be performed under this Agreement are:
F1.1
1
Part F: The Schedule of Services
F2 The Consultant shall not provide site staff nor attend site to monitor any investigation or
other works unless this is specifically stated in Part F: The Schedule of Services.
F3 Where site staff are to be provided, the Client shall be responsible for the cost and
provision and the running costs of such local office accommodation, office equipment,
protective clothing and transport on site as shall reasonably be required for use by the
Consultant's site staff.
F4 Where site staff are provided and/or the Consultant attends site during any investigation
or other works the Consultant shall monitor that the investigation or other works are being
executed generally in accordance with the contract documents and appropriate good
practice.
1
Describe the
services or state
where a description
of the Services can
be found.
ACE Agreement 2: Advisory, Investigatory and other Services l15 Copyright ACE 2011
16 lACE Agreement 2: Advisory, Investigatory and other Services
Copyright ACE 2011
Association for Consultancy and Engineering
Alliance House, 12 Caxton Street, London SW1H 0QL
Tel: 020 7222 6557
Fax: 020 7990 9202
Email: consult@acenet.co.uk
Website: www.acenet.co.uk
ISBN: 978-1-907660-55-9