Terms and Conditions of Engagement for Design Services
Definitions – a) “Designer” shall signify the business known as Changing Scenes and anyone elected to represent this business in a design capacity referred to below as “we” or “us” b) “Client(s)” is the person or persons paying for the services of the designer referred to below as “you”. c) “Proposal” means the written documents sent with these terms and conditions detailing the services and fees which will be agreed by both client and designer d) “Design or designs” means all drawings and concepts produced when providing services e) “Services” means the set of services to be provided under this contract as set out in the proposal. f) “Site” means the area to which the design will apply g) “Fee(s)” means the fees set out in the proposal or any variation to the fee(s). h) “Works” means any work carried out by third parties.
Contract – Upon payment of the fee(s) given in the proposal a contract as defined by the Proposal together with these Terms and Conditions will exist between the Designer and the Client(s). Any errors or omissions, clerical or otherwise can be added or amended by us without incurring liability.
1.1 On initial part payment of the Fee(s) we will begin to carry out the Proposal in a professional manner and a timely fashion. Timings set out in the proposal are only estimates which can be affected by you if you take longer than might reasonably be expected in responding to any relevant questions or are not able to arrange meeting(s) promptly as and when needed. Timings may also be affected by adverse conditions beyond our reasonable control.
1.2 This is a design and consultancy agreement only. We may assist you in dealing with other parties supplying additional consultancy services required (such as structural engineering, surveying etc.) and practical services (such as landscaping, drainage construction etc.) but we are not responsible for the work undertaken by these third parties, the manner in which they are carried out or any other aspect of these Works.
1.3 The design is based on the best information available at the time of undertaking the proposal. We are not responsible for any unforeseeable conditions on the site which may affect the execution of the design and whilst we are happy to undertake modifications to the Design, in the event that this becomes necessary, this work will not be a part of the original proposal and is payable pro-rata at £40 per hour. All specifications are also based on the best information available and we are not responsible for any variations caused by suppliers of material goods or otherwise.
1.4 You may suspend Services at any time but all Fees due at that point will become payable immediately. We will undertake recommencement of the services on instruction from you but the exact timing of this cannot be guaranteed to be at a time requested by you. Any additional costs incurred by us in complying with these instructions will be added to the total fees unless such a suspension was due to something we had done or failed to do.
2.1 Either party will be entitled to vary or amend the scope of the Services or the Proposal on the agreement of the other party. This may take the form of an additional Proposal or a redrafting of the original Proposal but in any case shall be agreed in writing and will be subject to these Terms and Conditions. This may involve additional Fees but if the variation reduces our potential fees by more than 10 percent we may refuse to accept this condition.
2.2 If you require Services at a higher level not covered by the Proposal we will undertake these services for a Fee set at that time.
2.3 We may vary these Terms and Conditions by giving you 14 days’ prior notice in writing if we are required to do so for reasons beyond our control.
3.1 The Fees are payable as detailed in the Proposal and will be paid on receipt of invoice which may be a hard copy, facsimile, or electronic file. If requested we will also forward a hard copy on a letterhead where electronic means is used however the invoice becomes payable upon first receipt of any of the above means. If you fail to pay the Fees promptly (within 7 days) this may result in us suspending the Services at this time whereupon you will be notified in writing. We reserve the right to charge interest on any overdue Fees at a rate of 10 percent above the Bank of England base rate (calculated on a daily basis).
4. Your Obligations
4.1 You have certain obligations under this contract. Failure to uphold these obligations (in a timely fashion) may result in us suspending or terminating the contract. In this event you are liable for any costs we incur as a result and all Fees due at that point in time.
4.2 You will provide us promptly with any information required to carry out the Services. You will warrant that this information is not subject to any third party rights which would prevent us from using this information legally.
4.3 You will allow us access to both you and the site as may be required to carry out the services without unreasonable delay.
4.4 You will notify as soon as is possible of any legal, physical or other conditions of the Site which may affect the Services and/or Design so that we may act accordingly.
4.5 Any conditions of the Site such as pollution, the presence of broken glass or other dangerous materials, notifiable plants, nesting bees, rats, mice or other vermin will remain your responsibility. We may point out anything which we become aware of and/or introduce third parties (see 3.2) but we cannot be responsible for these or other ‘expert’ areas which may effect the execution of the Design, related Works or any Works taking place on the Site. This will include trees which may be subject to legislation beyond our control e.g. a Tree Protection Order or Conservation Area. You will inform us of whether this legislation applies and where agreed we will endeavour to secure a favourable outcome for the project in relation to any Tree Surgery , Tree Felling or Required Planning Conditions. You should be aware however that we cannot control the decision of the Local Tree Officer or the Local Planning Department. If any such matters listed above or any other unforeseeable conditions arise on the Site further Fees may be payable due to additional Services required and/or variations to the Proposal (see 2.1, 2.2 and 2.3)
5. Intellectual Property Rights and Licence
5.1 We are the owner of all intellectual propery rights in the Designs together with the rights in any developments and modifications in such Designs. We assert the moral rights that we may have in any Designs.
5.2 We will grant you a non-exclusive, perpetual, non-transferable and personal licence to use the Designs for your own internal business or residential purposes at the Site only. You may not allow a third party to use any part of the Designs, use them yourself on behalf of a third party or sub-license the use of the whole or any part of the Designs, recreate the Designs at a different location or transfer them to anyone without our prior written permission.
5.3 We will have the right to use images of the Site both before and after execution of the Designs so long as we do not identify the exact location of the Site and your name. We will not disclose your name unless you give us permission in writing to do so.
5.4 The provisions of this clause 7 shall remain in full force and affect after termination of this contract for whatever reason.
6. Party Wall Act 1996
6.1 If you are required under the Party Wall Act 1996 to appoint a party wall surveyor, then you will be responsible for ensuring that such a surveyor is appointed and we will co-operate and pass all such relevant information to the surveyor as soon as is reasonably practicable.
7.1 Nothing in this contract shall affect the statutory rights of a consumer.
7.2 In the event of any fault or defect arising in the Services we shall have the right to remedy such fault where possible by re-supplying the Service. In the event that you do not advise us of any defect in the Services within 30 days after completion or the provision or delivery of the relevant part of the Services, you shall be deemed as having accepted the Services.
7.3 As far as permitted by law, in no circumstances shall we be liable, in contract, tort (including negligence or breach of any statutory duty) or otherwise howsoever and whatsoever the cause thereof (i) for any loss of profits, business, contracts, revenues or anticipated savings or (ii) for any special indirect or consequential damage of any nature whatsoever.
7.4 We will use reasonable endeavours to uphold any specified delivery dates but no such timings can be guaranteed and we exclude liability for any loss (whether direct, consequential or otherwise) resulting from any delay in the delivery of the Services.
7.5 The provisions of this clause 9 shall remain in force on termination of the contract for whatever reason.
8. Force Majeure
8.1 Neither party will be regarded as in breach of this Proposal if the failure is as a result of a circumstance beyond that party’s reasonable control (Force Majeure). This will include (but not be limited to) the death or incapacity of the Designer working on the Design(s). If this Force Majeure continues for more than one week both parties will discuss ways to alleviate the situation including third party arbitration.
9.1 You may terminate this contract at any time by giving us prior written notice but you will have to pay for the Services carried out up to the date of expiry of the notice. We may also assist you in the cancellation of any third party contracts but we cannot guarantee that you will not have to pay such fees in full subject to the terms of any third party contracts. Any license that we have granted under clause 7 will cease and you must stop using the Designs immediately.
9.2 If either party is in breach of any significant provision of this contract (a material breach) then that party will give the other party not less than fourteen days’ written notice to allow them to correct that breach. If that party to remedy the breach within the notice period, then the other party will be entitled to terminate the contract with immediate effect at the end of that notice period.
9.3 Either party may terminate this contract at any time by giving the other advance written notice if the other becomes insolvent or bankrupt, makes any arrangement or composition with it’s creditors, has any petition filed against it for compulsory liquidation or bankcruptcy, has a receiver appointed over any or all of it’s assets, is unable to pay it’s/his/her debts as and when they fall due or otherwise ceases to carry on business.,
10.1 Any postal notices should be sent by recorded mail, delivered by hand or followed up by other means of verifying receipt of the notice such as a phone call, text message or e-mail. This is due to the erratic and unreliable nature of the postal service. We cannot be sure of receiving post within a reasonable time frame and other means of sending information should be preferred.
11. Proper Law
11.1 These Terms and Conditions will be governed by and construed in accordance with the laws of England and Wales. In the event of any dispute we would ask that you contact us in the first instance to resolve any issues in good faith. If this matter is not referred or resolved within 14 days of the matter being raised then the parties will submit to the exclusive jurisdiction of the English Courts.