Are appointments and collateral warranties just standard form or should they be negotiated?
They should be negotiated if used because the standard forms are written by the industry bodies which protect their members; contractors and consultants. They therefore contain exclusions of liability and limits on liability which may not be palatable to the developer, its funders or its future purchasers/tenants.
Our advice is to go with a bespoke form of professional appointment and warranty. These would then be drafted without exclusions of liability or limits on liability within their terms and whilst the documents do go to the consultants' insurers for comments, it is much easier to negotiate a document that is your preferred form than it is to try to delete clauses in a standard form which bring to the forefront the purpose of the limitation or exclusion in the first place, making it something a consultant will want to resist. Typically, if you use a bespoke form you will find that the negotiated limitations or exclusions of liability are far less than those that you will find in a negotiated standard form.
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