1. DEFINITION & INTERPRETATION
1.1 In these Conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
Agreement - the agreement between the Client and the Designer consisting of: (a) these Terms and Conditions of Agreement; (b) Project Proposal, which include: (d) the Schedule of Services; the Schedule of Fees and Expenses; and the Attachments (if any).
Attachments - any documents, drawings, briefs or other materials of whatever form which help to define the Project, the Services, or the parties’ requirements and obligations under the Agreement and which has been identified as being part of the Agreement by being signed at their end by the parties entering into the Agreement.
Building Works - means any construction, repair or maintenance works designed and/or specified by the Designer and agreed with the Client in connection with the Project, including but not limited to bespoke designs for special staircases, fire surrounds, wall panelling, joinery fittings, bathrooms, kitchens, utility rooms, selection and specification of electrical and light fittings, appliances and sanitary ware.
CDM Regulations - the Construction (Design and Management) Regulations 2015 or as may be updated or superseded from time to time, along with any related codes of practice.
Client Deliverables - all documents, samples and materials (other than the Products) developed by the Supplier or its agents, contractors or employees as part of or in relation to the Services and/or the Products in any form or media including drawings, plans, diagrams, sample boards, product samples, designs, pictures and specifications.
Completion - means acceptance by the Client that all Services under the Agreement have been completed by way of acceptance of a Certificate of Completion.
‘FF&E’ - means furniture, fittings and equipment, including but not limited to loose furniture, curtains, carpets, fixtures, materials etc designed and/or specified by the Designer and agreed with the Client.
Force Majeure - means the event beyond the reasonable control of the party including but not limited to strikes, lockouts or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Furniture Pack - the document issued by the Designer to the Client which contains, inter alia, details of the Products and the Products Fees.
Intellectual Property Rights - patents, trade and service marks, registered designs, internet domain names, improvements and modifications to any of the foregoing and the right to apply for protection for such registered rights anywhere in the world; inventions, discoveries, copyright, unregistered trade and service marks, brand names, trade secrets and confidential information, know-how; and any other intellectual property and any similar or equivalent rights whether registrable or not arising or granted or subsisting under the law of any other country or state.
Project - the project to which the Agreement relates identified in the Project Proposal.
‘Project Cost’ - the total cost of the Project including any Building Works, repairs or maintenance works and decoration works of any kind together with the retail price of the supply, delivery and installation of any FF&E as determinate by:
- initially a fair and reasonable amount estimated by the Designer;
- subsequently when available the latest professionally prepared estimate or the lowest acceptable tender(s)/quotation(s) as applicable;
- ultimately when available the actual final cost.
The Project Cost shall include (without limitation):
- any contingency or design reserve cost allowance;
- the cost of any FF&E and/or materials provided or to be provided by the Client to a contractor for installation during the Project;
- any direct works carried out by or on behalf of the Client;
- reasonable provision for contractor’s profit and overheads;
but the Project Cost excludes:
- Value Added Tax (VAT);
- professional or consultant fees;
- the cost of any resolution of any dispute;
- any loss and/or expense payments paid to a contractor;
- any adjustment for liquidated damages deducted by the Client;
- the Client’s legal and in-house expenses.
Products - the furniture and other products (or any part of them) to be supplied by the Designer to the Client as specified in the Project Proposal and as more particularly described in the Furniture Pack;
Project Proposal - the document issued by the Designer to the Client which sets out, inter alia, details of the Services and the Service Fees;
Site/Premises - the site of the Project and/or the premises to which the Project relates.
Schedules - the schedules forming part of the Agreement.
Services - means the services to be performed by the Designer specified in the 'Services Schedule', which may be varied by agreement.
Timetable - means the programme for performance of the Services as specified in Project Data, or where no such programme is specified, a fair and reasonable period; or subsequently, the latest programme approved by the Client;
1.2 The headings to these Conditions are for convenience only and do not affect interpretation. Words denoting natural persons include corporations and firms, and vice versa.
1.3 This Agreement is subject to the law of England unless otherwise agreed and specified in the Project Proposal and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdictions.
1.4 Any notice or other document required under this Agreement shall be in writing and given or served by any effective means to the address of the recipient specified in this Agreement or such other address notified to the other party in writing.
1.5 Communication between the Client and the Designer that are not such notices or documents may be sent to any other address, including an email address, notified by the other party as an appropriate address for specific communications. Communications take effect on receipt, but are of no effect unless and until confirmed by the sender or the other party in writing or by electronic mail.
1.6 Communications sent by special delivery or recorded delivery shall be deemed (subject to proof to the contrary) to have arrived at the appropriate address on the second working day after posting.
1.7 Where under this Agreement an action is required within a specified period of days from a specified date, that period commences immediately after that date. The period shall include Saturdays and Sundays but shall exclude any day that is a public holiday.
1.8 The provisions of this Agreement are without prejudice to the respective rights and obligations of the parties and continue in force as long as necessary to give effect to such rights and obligations.
1.9 The Designer will submit a Certificate of Completion at such time as the Services under this Agreement are completed. Client will confirm acceptance by signing and returning the Certificate of Completion within 7 days or notify of the reason for non acceptance within 7 days. No response will be considered acceptance.
2.1 The client and the Designer Should work together in a spirit of mutual trust and co-operation and prompt advise the other upon becoming aware of:
2.1.1 a need to vary the Services or change a Project timetable or any party of the Agreement; and
2.1.2 incompatibility in or between any of the Client’s requirements for the Project; or between any of the Client’s requirements and any Client’s instruction, any Project budget or timetable and/or any design approved by the Client, and the Client and the Designer shall use reasonable endeavours to agree on how to deal with the relevant matter.
2.2 The Client and the Designer shall comply with their respective obligations (as may be applicable in regard to the Project ) under the CDM Regulations.
PHOTOGRAPHS & INFORMATION ABOUT THE PROJECT
2.3 The Designer shall have the right to take and publish photographs of the Project at any stage (including before and after completion) and the Client should give a reasonable access to the Project for this purpose. Unless necessary for the performance of the Services, before publication of any other information about the Project the Designer shall obtain the consent of the Client (not to be unreasonably withheld or delayed).
3. DESIGNER OBLIGATIONS
3.1 The Designer shall exercise reasonable skill, care and diligence in accordance with the normal standards of the Designers’s profession including in regard to:
3.1.1 performing the Services and discharging all obligations under the agreement;
3.1.2 keeping the client informed of progress and of issues that may materially affect any timetable for or the cost or finished quality of the Project;
3.1.3 co-operating with other engaged in relation to the Project;
3.1.4 the Designer should inform the Client upon becoming aware of a need to appoint Other Persons, other then those named in the Project Proposal, to perform work or services in connection with the Project and /or any information, decision or action required from the Client or Other Persons in connection with performance of the Services; and
3.1.5 not making material alterations to designs previously approved by the client without the Client’s prior consent, such consent not to be unreasonably withheld or delayed.
3.2 The Designer shall comply with the Client’s instructions, subject to the Designer’s rights of reasonable objection.
LIMITATION & WARRANTY
3.3 The Designer is not liable for and does not warrant:
3.3.1 that the Project or the Services will be completed in accordance with any timetable or budget;
3.3.2 the performance, work or products of the other persons engaged in connection with the Project, except in connection with those others (if any) in regard to which the Designer is acting as a principal;
3.3.3 the solvency or competence of any other person engaged in connection with the Project;
3.3.4 that approvals, permissions, consents, etc. from third parties will be granted; or
3.3.5 the accuracy of any survey made by the Designer.
4. CLIENT OBLIGATIONS
4.1 The Client shall provide accurate and reliable information relating to the Project which is necessary for the performance of the Services free of charge and in good time, and the Designer shall be entitled to rely upon such information.
4.2 The Client shall be responsible for (including for all costs and expenses) any applications required in relation to the Project from any third party including for consents under planning legislation, regulations or other statutory requirements.
4.3 Client shall:
4.3.1 give decisions and approvals as necessary for the proper and timely performance of the Service;
4.3.2 advise the Designer of the relative priorities in regard to any requirements of brief, or any Project budget or timetable; and
4.3.3 provide the Designer, it’s employees, agents, consultants and subcontractors, with access to the client’s premises, office, accommodation and other facilities, including utilities, as reasonable required by the Designer to supply the Products and/or Services;
4.3.4 prepare the client’s premises for the supply of the Products and/or Services;
4.3.5 maintain any rented goods supplied by the Designer in a satisfactory condition and keep them insured against all risks for their full value from the date of delivery; and
4.3.6 keep and maintain all materials, equipment, documents and other property of the Designer (‘Designer Materials’) at the Client’s premises in safe custody at its own risk, maintain Designer Materials in good condition until returned to the Designer, and not dispose of or use Designer Materials other then in accordance with the Designer’s written instructions or authorisation.
4.4 The Client hereby acknowledges and agrees that any failure by the Client to perform any of the obligations set out in Condition 4.3 may prohibit effective action by the Designer and render the Designer unable to supply the Products and/or Services and that, in such circumstances:
4.4.1 the Designer shall be under no liability to perform its obligations under the Agreement to the extend that such performance is prohibited by such failure of the Client; and
4.4.2 if the Client fails to perform any such obligations for a period of 14 days or more, the Designer shall be entitled to terminate the Agreement.
4.5 In respect of any work or services in connection with the Project performed by any persons other than Designer (e.g. other consultants, contractors), the Client shall hold such persons and not the Designer responsible for the competence and performance of their work and services including the management and operational methods uses in connection with the carrying out and completion of work and services undertaken by such persons and for compliance with health and safety requirements.
4.6 The Client (or the Lead Consultant, or other Consultant designated by the Client) may issue instructions to the Designer, subject to the Designer's right of reasonable objection.
4.7 Where the Designer, as Lead Consultant or Contract Administrator, has responsibility to direct and/or co-ordinate the work or services of or give instructions to Other Persons, such instructions shall be issued only through the Designer.
If the Client or anyone acting on behalf of the Client, issues instructions to any Other Persons the Designer shall not be responsible for the consequences of such instructions.
APPOINTMENT OF OTHER PERSONS
4.8 Where work or services, other than those to be performed by the Designer, are required, the Client shall appoint and pay Other Persons under separate agreements to perform such work or services, shall hold such Other Persons responsible for the competence, performance of their work or services, and shall require them to Collaborate with the Designer. The Client shall confirm in writing to the Designer the services to be performed by Other Persons, their disciplines and the expected duration of their employment.
4.9 Except where the Designer is performing Services under Part 3 of the Services schedule, the Client shall appoint one or more contractors under separate agreements to undertake Building Works and/or Decorations. The Client shall hold such contractor or contractors, and not the Designer, responsible for the management and operational methods necessary for the proper carrying out and completion of the Building Works and/or Decorations in compliance with the building contract or contracts.
4.10 Except where the Designer is performing Services under Part 4 of the Services schedule, the Client shall hold the supplier(s) of FF&E and not the Designer responsible for the quality and utility of their goods.
4.11 The Client shall procure such legal advice at his/her own cost in respect of:
4.11.1 the resolution of any dispute between the Client and any other parties in connection with the Project and provide such information and evidence as required;
4.11.2 advice to the Designer reasonably required for services in connection with such dispute, and/or the performance of any Other Person.
5. ASSIGMENT & SUB-CONTRACTING
5.1 Neither the Designer nor the Client shall assign or sub-contract the whole or any part of their obligation under the Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
5.2 With the consent of the Client, which consent shall not be unreasonably withheld or delayed, the Designer may appoint a sub-consultant or sub-consultants to perform part of the Services under Parts 1 and 2 of the Services schedule. Any such sub-contracting shall not relieve the Designer of responsibility for carrying out and completing the Services in accordance with this Agreement. Such consent shall not be required in respect of agency or self-employed staff. Specialist services
5.3 If during performance of the Services it is the Designer's opinion that it would benefit the Client, the Designer may recommend that the Client appoints Other Persons with appropriate knowledge and experience to perform part of the Services. If the Client agrees to make such appointment, it shall be made without undue delay. On such appointment the Designer shall give written notice to the Client and the Designer shall be relieved of responsibility and liability for that element of the Services. The Designer shall Collaborate with such Other Persons.
6. FEES & PAYMENT
6.1 Fees and other payments for the Services shall be calculated, charged and paid in accordance with Project Proposal. VAT shall be payable on all sums due to the Designer at the applicable rate.
6.2 Where a percentage fee applies, the fee shall be calculated by applying the percentage referred to in the Project Proposal to the Project Cost.
6.3 If the Client instruct an alteration to requirements to the Project during the performance of the Services, the Designer shall be due a percentage fee up to the date of the instruction calculated on the basis of the most current professionally prepared estimate of the Project Cost or based on the lowest acceptable tender for the Project (which ever is later), being based on the requirements or brief for the Project which applies immediately prior to the instruction.
6.4 Where fixed fee arrangement applies, the sum(s) referred to in the Project Proposal shall be payable, subject to any time which is incurred by the Designer as a result of variations or charges instructed by the Client, or as a result of changes made to the Client’s requirements, to any brief and/or to any design previously approved by the Client and/or to any Project timetable. This time shall be charged in addition to the fixed fee, in accordance with Condition 6.5
6.5 Where a time-based fee applies, the Designer’s fee shall be ascertained by applying the time spent in the performance of the Services by the relevant hourly rate(s) identified in the Project Proposal.
6.6 The Designer shall be entitled to reasonable additional payment calculated on a time-charge basis, as per Condition 6.5 (unless another basis for payment is agreed or where applicable in the form of compensation for any loss and/or expense incurred by the Designer) if:
6.6.1 material changes are made to the previously agreed Client’s requirements, brief, budget, design and/or timetable for the Project; and/or
6.6.2 the Services are reduced, varied or added to, including where for any reason only part of the previously agreed Services are instructed to be provided; and/or
6.6.3 where the reasons beyond Designer’s reasonable control the Designer is caused to incur loss and/or expense for which the Designer would not otherwise by fully remunerated.
6.7 Matters in relation to which the Designer shall be entitled to payment in accordance with Condition 6.6 include, but are not limited to, where:
6.7.1 the Designer is required to vary any item of design work commenced or completed pursuant to the Agreement or to provide a new design after the Client has already authorised the Designer to develop an approved design;
6.7.2 performance of the Services is delayed, disrupt or prolonged for matters outside the Designer’s reasonable control
6.7.3 the cost of any work, installation or equipment in respect of which the Designer performs Services is omitted from, or not included in, the Project Cost; or
6.7.4 the Designer performs Services in connection with any work, installation or equipment which are then not executed under the direction of, or by, the Designer.
EXPENSES & DISBURSEMENT
6.8 Unless otherwise referred to in the Project Proposal, the Client shall reimburse the Designer for reasonably incurred expenses and disbursements at cost plus any handling charge incurred by the Designer.
6.9 The Designer shall issue payment invoices at the intervals referred to in the Project Proposal or, if not provided for, at intervals of not less than 1 month starting from the date of the commencement of the Services.
6.10 The due date for payment of an invoice shall be the date of each invoice.
6.11. Each invoice shall state the sum that the Designer consider to be due as of the due date identified in the invoice and the basis on which that sum is calculated.
6.12 Within 5 days of each due date, the Client shall issue a notice stating the sum that the Client consider to be, or to have been, due at the due date and the basis on which that sum has been calculated (‘the notified sum’). If the Client does not issue such a notice within 5 days of the due date, then the sum of the Designer’s invoice shall be a notified sum for that due date.
6.13 the Client shall pay the notified sum within 14 days of the due date of an invoice (the ‘final date for payment’) unless the Client issues a notice under Condition 6.14. The Client shall not in any event delay payment of any undisputed part of the notified sum.
6.14 If the client intends to pay less then the notified sum, the Client shall give a written notice to the Designer not later than 5 days before the final payment date, specifying the amount that Client considers to be due on the date the notice is served, the basis on which that sum is calculated and, if any sum is intended to be withheld, the ground to doing so or, if there is more than one ground, each ground and the amount attributable to it.
6.15 The client shall not withhold any amount due to the Designer under the Agreement unless the amount has been agreed with the Designer or has been decided by any tribunal to which the matter is referred as not being due to the Designer. All rights of the set-off, compensation or balancing of accounts in bankruptcy available at law which the Client would otherwise be entitled to exercise are expressly excluded.
6.16 In the event that any amount under the Agreement is not paid when properly due, the payee shall be entitled to simple interest on such amount from the date is become overdue until the date that payment is received at the daily rate equivalent to 5% per annum above the dealing rate of the Bank of England current at the date that payment becomes overdue, together with such costs reasonable incurred and duly mitigated by the payee (including costs of time spent by principals, employees and advisors) in obtaining payment of that sum under the Agreement.
RECOVERY OF COSTS
6.17 The client or the Designer shall pay to the other party who successfully pursues, resists or defends any claim or party of a claim in relation to the Agreement such costs reasonable incurred and duly mitigated in doing so, including costs of time spent by principals, employees and advisors.
6.18 If the Designer or the Client suspends performance of any or all of the Services or terminates performance of the Services and/or other obligations, the Designer shall issue an account or accounts on the expiry date of the notice or as soon as reasonably practicable and the Designer shall be entitled to:
6.18.1 payment of any part of the fee and other amounts properly due on the expiry date of the notice; and
6.18.2 reimbursement of any loss and/or damage cause to the Designer by reason of the suspension or the termination, save where the Client gives notice of suspension or termination by reason of the material or persistent breach of the Agreement by the Designer; and
6.18.3 payment of any license fee due under clause 8.
7.1 At any time prior to the completion of the supply of the Products and/or Services, the Designer may recommend to the Client and the Client may request from the Designer changes to be made to the Products and/or Services.
7.2 The Designer will notify the Client in writing within five Business Days of receipt of a change request from the Client or the making of a change recommendation to the Client of the time and cost needed to investigate the implications of implementing the proposed change. The investigation will be carried out only with the Client's prior written consent and the Designer will use reasonable endeavours to carry out any investigation within 10 Business Days of making the notification to the Client.
7.3 Following the investigation (if any) the Designer will give a written estimate (valid for 21 days from the date it is given to the Client) showing the increase or decrease in the Fees and any other impact on the Products and/or Services should the proposed change be implemented.
7.4 Should the Client wish to proceed with the proposed change it will notify the Designer in writing of that fact as soon as reasonably practicable after receipt of the written estimate but not later than ten Business Days (or such longer period as may be agreed) after such receipt.
7.5 Until any change is formally agreed between the Designer and the Client, the Designer will continue to perform and be paid for the Products and/or Services as if the change had not been proposed.
7.6 The Designer shall from time to time submit to the Client for approval proofs of the Client Deliverables ('Proofs'), and the Client shall either approve the Proofs or request revisions, corrections or additions ('Changes') to be made to the Proofs provided that such Changes fall within the Project Proposal.
7.7 If the Client does not request any Changes to be made to the Proofs within 14 days of their submission it shall be deemed to have approved them. Once the Proofs have been approved or deemed approved, the Client Deliverables shall be deemed to be accepted by the Client and shall constitute the final approved versions of the Client Deliverables ('Final Designs').
7.8 There shall be no additional charges to the Client for any Changes requested by the Client:
7.8.1 to the Client Deliverables before the Proofs have been approved in accordance with Condition 9.6 provided that the number of iterations of Changes shall not exceed two; or
7.8.2 to the Final Designs at any time if the Changes are necessary to correct errors on the part of the Designer or to accord with any description of the Client Deliverables in the Project Proposal.
7.9 Any other Changes requested by the Client shall be chargeable to the Client at the Designer's standard rates in force at the date the Changes are requested. Any additional charges shall be paid within 14 days of the date of the Designer's invoice therefor.
7.10 The Client shall be deemed to have approved any Changes that have been made to the Client Deliverables if it does not notify the Designer to the contrary within 14 days of the Changes being made.
7.11 If during the period mentioned in Condition 7.10, the Client notifies the Designer that it still does not approve the Client Deliverables despite the Changes being made, then the parties will negotiate in good faith to resolve the matter. If the parties are unable to resolve the matter within a period of 14 days following the expiry of the period mentioned in Condition 7.10, the Client shall be entitled to terminate the Contract. If the Client does not terminate the Contract during such period, then it shall be deemed to have approved the Client Deliverables.
8. INTELLECTUAL PROPERTY & USE OF INFORMATION
8.1 The Designer shall own all intellectual property rights in relation to the Services and/or Products, including copyright in the drawings, documents, bespoke software and all other work produced by, or on behalf of, the Designer in the performance of the Services (‘the Material’). The Designer asserts the Designer’s moral rights and all other rights to be identified as the author of such work or the Material.
8.2 No part of any design by the Designer may be registered or used by the Client without a written assignment of rights by the Designer.
8.3 The Client shall have a licence to copy and use and allow others providing services to the Project to copy and use the Material for purposes related to the Project, but only for purposes related to the Project on the Site or on that part of the Site to which the design relates, and only with the express prior written consent of the Designer. Such licence shall automatically expire upon acceptance of the Certificate of Completion.
8.4 Purposes related to the project shall include the operation, maintenance, repair, reinstatement, alteration, extending, promotion, leasing and/or sale of the Project but shall exclude the reproduction of the Designer’s design for any part of any extension of the Project and/or for any other project, unless a licence fee to reproduce all or part of the design is agreed.
8.5 The Designer shall not be liable if the Material is modified other then by or with the consent of the Designer or used for any purpose other then the purposes for which it was prepared. Provided that:
8.5.1 if it is intended to make any permitted use after the date of the last Service performed under this Agreement the Designer, following a request from the Client, shall confirm the degree of completion of the Material; and the Client shall pay to the Designer any specified licence fee or a reasonable license fee.
8.5.2 the Client obtains or ensures that any third party obtains any necessary licence and pays any fees arising for access to any software used to produce any of the Material.
8.6 if at any time the Client is in default of payment of any fees or other amounts properly due under the Agreement, the Designer may suspend further use of the licence in Condition 8.3 on giving 7 days' notice of the intention of doing so. Use of the license may be resumed on receipt of such outstanding amounts.
8.7 The Designer hereby grants to the Client a non-exclusive, non-transferrable, royalty-free licence to use the Clients Deliverables for its own internal business purposes subject to payment in full of all sums payable by the Client under the Agreement.
8.8 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Client Deliverables, the Client’s use of any such Intellectual Property Rights is conditional on the Designer obtaining a written licence from the relevant licensor on such terms as will entitle the Designer to license such rights to the Client.
8.9 The Basic Fee for performance of the Services shall include all royalties, licence fees or similar expenses in respect of the making, use or exercise by the Designer of any invention or design for the purpose of performing the Services.
9.1 The Client and the Designer shall not disclose Confidential Information unless:
9.1.1 disclosure is necessary for the proper performance of the Services, or in order to take professional advice in relation to this Agreement or the Services, or in order to obtain/maintain insurance cover as required by this Agreement;
9.1.2 it is in the public domain other than due to wrongful use or disclosure; or
9.1.3 disclosure is required by law or because of disputes arising out of or in connection with this Agreement.
TIME LIMIT FOR ACTION OR PROCEEDINGS
10.1 No action or proceedings arising out of, or in connection with, the Agreement, whether in contract, tort, statutory duty or otherwise, shall be commenced after the period specified in Project Proposal from the date of last Service performed under the Service schedule, or if earlier the date practical completion of the Project or such earlier date as prescribed by law.
LIMIT OF LIABILITY
10.2 In any action or proceedings:
10.2.1 no agent or employee of the Designer, including any officer or director of a company or a member of a limited liability partnership, shall be personally liable to he Client for any negligence, default or any other liability whatsoever arising from performance of the Services;
10.2.2 nothing in the Agreement shall limit or exclude the Designer’s liability for:
10.2.2.1 death or personal injury caused by the negligence of the Designer’s employees, agents or subcontractors;
10.2.2.2 fraud or fraudulent misrepresentation;
10.2.2.3 breach of the terms implied by the section 2 of the Supply of Goods and Services Act 1982 (title and quite possession);
10.2.2.4 breach of the terms implied by the Section 12 of the Sale of Goods Act 1979 (title and quite possession); or
10.2.2.5 defective products under the Consumer Protection Act 1987 subject to which the Designer shall not be liable to the Client, whether in contract, trot (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss, arising under or in connection with the Agreement;
10.3 Subject to Condition 10.2.2, the Designer shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from or in connection with any documents, materials, data or other information or instructions supplied to the Designer by the Client in connection with the provision of the Good and/ or Services including, without limitation, the Input Materials, which are incomplete, incorrect, inaccurate, illegible, out of sequence or in any wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
10.4 Subject to Condition 10.2.2 and save as expressly provided in these Conditions, the Designer shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law or under the express terms of the Contract and whether in contract, tort (including negligence), breach of statutory duty or otherwise for any consequential loss or damage arising out of or in connection with the supply of the Products and/or Services (including any delay in performing or failure to supply the Products and/or Services in accordance with the Contract or at all).
10.5 Subject to Condition 10.2.2, the entire liability of the Designer in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Contract shall not exceed the amount of the Fees.
10.6 For the purposes of Condition 10.4, the expression 'consequential loss or damage' includes, but is not limited to: loss of anticipated profits or savings; damage to goodwill or reputation; loss of expected future business; damages, costs or expenses payable to any third party; indirect losses; and any consequences not directly or naturally arising.
10.7 The Designer’s total liability to the Client in respect of losses (except those specified in Conditions 10.2.2.1 - 10.2.2.5 ) arising under or in connection with the Agreement, whether in contract trot (including negligence), delict, breach of statutory duty, or otherwise, shall not exceed the lesser of:
- the limit of the liability specified in the Agreement; or
- the amount of professional indemnity insurance that the Designer is required to maintain in accordance to Condition 11.
10.4 Without prejudice to the provisions of Condition 10.2 and 10.3, the liability of the Designer shall not exceed such sum as it is just and equitable for the Designer to pay having regard to the extent of the Designer’s responsibility for the loss and/or damage inquisition and on the assumption that:
10.4.1 all other consultants, contractors and suppliers providing work or services or supplies for the Project have provided to the Client contractual undertakings on terms no less onerous than those of the Designer under the Agreement;
10.4.2 there are no exclusions or limitations of liability, joint insurance or co-insurance provisions between the Client and any other person referred to in this Condition 10.3; and
10.4.3 all the persons referred to in this Condition 10.4 have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extend of the responsibility for the loss and/or damage.
10.5 If either party to the Agreement (‘the affected party’) is prevented, hindered or delayed in, or from, performing any of its obligations under the Agreement by an event of force major, it shall not be in breach of the Agreement or otherwise liable for any such failure or delay in performance of such obligations and the time of performance shall be extended accordingly. The affected party shall use all reasonable endeavours to mitigate the effect of the force major event on the performance of its obligations. If the event prevails for a continuous period of two months, then either party may terminate the agreement upon giving 7 days’ written notice to the other and on expiry of that notice period the Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Agreement.
11.1 The Designer shall obtain professional indemnity insurance in respect of the Services for not less than the amount stated in the Memorandum/Letter.
11.2 The Designer shall maintain such insurance until the expire of the period stated in the Memorandum/Letter provided such insurance remains available to the Designer on commercially reasonable rates and terms, failing which the Designer will inform the Client in order that the parties can discuss the best means of protecting their respective positions in the absence of such insurance.
11.3 Unless otherwise expressly agreed, the Designer shall be entitled to proceed on the basis that the Client has taken out and will maintain insurance in the joint names of the Designer and the Client covering the carrying out of the Project including any Building Works and covering the risk any expense, liability, loss, claimer proceedings whatsoever in respect of persona injury to, or death of, any property or existing structure or contents of the Site/Premises.
11.4 The Designer and the Client, as the case may be, shall produce on the request of the other evidence that the insurance required under the Agreement is in place and is being maintained.
RIGHTS OF THIRD PARTIES
11.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement and nothing in this Agreement shall give any third party rights against the parties to this Agreement or either of them.
12. 1 You shall indemnify me and keep me and my respective officers and employees indemnified on a continuing basis against all liabilities, claims, costs, damages and expenses claimed or incurred (including legal costs) or licence fees due by reason of any infringement claim, or alleged infringement, of any intellectual property rights relating to any failure by you to obtain third party clearances or arising out of use of the Material by you or the Advertiser outside of third parties usage licences or otherwise as a result of any breach by you or the Advertiser of these terms.
13.1 Subject to Condition 14.2, the Client may cancel an order for the Products and/or Services at any time prior to their delivery, in the case of Products, and at any time prior to the first day for their performance, in the case of Services, by giving prior written notice thereof to the Designer. Where, in the case of Services, such notice of cancellation is received by the Designer less than 14 days before the first day for performance of the Services the Client shall pay the Designer as compensation for the loss of bargain occasioned by the cancellation of the order a sum equal to 10 per cent of the Fees. Any deposit paid by the Client shall be forfeited to the Designer and will not be recoverable by the Client from the Designer if the Contract is terminated by the Client.
13.2 No order for bespoke Products that are to be manufactured by the Designer or its agents, contractors or employees, or for Products that are to have any process applied to them by the Designer or its agents, contractors or employees in accordance with a specification supplied by the Client, may be cancelled by the Client except with the agreement in writing of the Designer and on terms that the Client shall indemnify the Designer in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Designer as a result of cancellation.
13.3 The Designer may, without incurring any liability therefor, cancel any order for the Products and/or Services placed by the Client at any time prior to their delivery, in the case of Products, and at any time prior to the first day for their performance, in the case of Services, by giving written notice thereof to the Client. The Designer will repay any deposit paid by the Client if the Contract is cancelled by the Designer.
14. SUSPENTION & TERMINATION
14.1 The Client may suspend the performance of any or all of the Services and/or other obligations under the Agreement by giving not less than 7 days’ notice in writing to the Designer, specifying the Services affected.
14.2 The Designer may suspend performance of any or all Services and/or obligations under the Agreement on giving not less than 7 days’ notice in writing to the Client of the intention to do so and stating the reasons for the suspension, which may include (but are not limited to) where the Client has failed to make payment due under the Agreement. Unless, where applicable, the Client has given effective notice under clause 5.19.2 of the intention to withhold payment of any part of a Designer’s account; or hat the Client is in material or persistent breach of the obligations under this Agreement; or that the Designer is prevented from or impeded in performing the Services for reasons beyond the Designer's reasonable control; or force majeure.
14.3 The Designer shall cease performance of the Services and/or other obligations specified in a notice under Condition 12.1 or 12.2 on the expiry of the notice period.
14.4 If the reason for a notice of suspension arises from a default:
14.4.1 which is remedied by the defaulting party, the Designer shall resume performance of the suspended Services within a reasonable period; or
14.4.2 which is not remedied by the defaulting party, the other party shall have the right to treat the performance of the suspended Services as terminated on giving reasonable written notice to the defaulting party.
14.5 Where the Services and/or other obligations are suspended by the Client and not resumed within 6 months, the Designer shall have a right to treat performance of the suspended Services as terminated on giving at least 7 days further written notice to the Client.
14.6 The latest timetable for completion of suspended Services shall be increased by the length of any period of suspension arising from a valid notice given under Condition 12.1 or Condition 12.2.
14.7 The Client or the Designer may, by giving reasonable notice to the other, terminate performance of any or all of the Services and/or other obligations under the Agreement stating the reasons for doing so and the Services and obligations affected.
14.8 Performance of any or all of the Services and/or other obligations may be terminated immediately by notice from other party if:
14.8.1 the other party enters the form of bankruptcy or is subject to a receiving or administration order, goes into liquidation, becomes insolvent and/or makes any arrangement with one or more creditors; or
14.8.2 The Designer (if an individual) becomes unable to perform the Services through death or incapacity.
14.9 If all of the Services and/or other obligations under Agreement are terminated, the Client shall allow the Designer access to the Site/Premises to collect all equipment and items belonging to the Designer.
PAYMENT ON SUSPENTION OR TERMINATION
14.10 If, in accordance with condition 12, the Designer or the Client suspend performance of any or all of the Services or terminates performance of any or all of the Services and/or other obligations the Designer shall be entitled to:
14.10.1 payment of any part of the Designer’s fee for the Project and other amounts properly due to the Designer on the expiry dative the notice; and
14.10.2 reimbursement of any reasonable loss and/or expenses reasonable incurred by the Designer by reason of the suspension or the termination, save where the suspension or termination has arisen as a result of the Client having a properly given notice of suspension or termination by reason of the material or persistent breach of the agreement by the Designer.
15. DATA PROTECTION
15.1 The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relate to the provisions of, or their obligations under, the Agreement.