The following expressions shall have the following meanings:
“Consultant” means BMAD Bespoke Living AIC of Top Floor Mackintosh House, 136 Newport Road, Cardiff, CF24 1DJ.
“Client” means any person who purchases Services from the Consultant;
“Proposal” means a quotation or other similar document describing the Services;
“Services” means the consultancy services as described in the Proposal;
“Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Consultant;
“Agreement” means the contract between the Consultant and the Client for the provision of the Services incorporating these Terms and Conditions;
“Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other Intellectual Property Right recognised in any part of the world whether or not presently existing or applied for;
“Arbitrator” is the party nominated to resolve a dispute between the Consultant and the Client.
These Terms and Conditions shall apply to the Agreement for the supply of Services by the Consultant to the Client and shall supersede any other documentation or communication between parties.
Any variation to these Terms and Conditions must be agreed in writing by the Consultant.
Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Consultant may be entitled in relation to the Services, by virtue of any statute, law or regulation.
The Proposal for Services is attached to these Terms and Conditions.
The Proposal for Services shall remain valid for a period of 90 Days.
The Proposal must be accepted by the Client in its entirety.
The Agreement between the Consultant and the Client, incorporating these Terms and Conditions, shall only come into force when the Consultant confirms acceptance in writing to the Client.
4). Services and Delivery
The Services are as described in the Proposal.
Any variation to the Services must be agreed by the Consultant in writing.
The Services shall commence on January 2014 and continue until terminated by either party giving not less than a 2 week notice in writing or unless terminated according to the terms of this Agreement.
The Services shall be carried out at the place of work of the Consultant or the Client or any other location that the Consultant deems appropriate providing always that the clients confidentiality is maintained.
Dates given for the delivery of Services are estimates only but services will be delivered within a reasonable timeframe. The Consultant shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery.
5). Price and Payment
The price for Services is as specified in the Proposal and is inclusive of any other charges as outlined in the Proposal.
The terms for payment are as specified in the Proposal.
All reasonably incurred costs and expenses incurred by the Consultant in connection with the provision of the Services will be re-charged at cost or according to standard charges as described in the Proposal and are payable within 21 days by the Client on production of the appropriate receipts provided that such costs are reasonable.
The Client must settle all payments for Services within two weeks from the invoice date provided the invoice is supplied to the client in a timely fashion.
The Client will pay interest on all late payments at a rate of 2% per annum above the base lending rate of The Bank of England.
The Consultant is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Consultant is late.
The Client is not entitled to withhold any monies due to the Consultant.
The Consultant (provided he has notified the Client in writing of the potential additional costs and these have been agreed by the Client prior to incurring them) is entitled to vary the price to take account of:
any additional Services requested by the Client which were not included in the original Proposal;
any additional work required to complete the Services which was not anticipated at the time of the Proposal;
any reasonable increase in hourly rate, if applicable; or
third parties engaged to perform work integral to the Services who are delayed or cancel their involvement;
and any variation must be intimated to the Client in writing by the Consultant.
The Consultant shall be responsible for the payment of National Insurance contributions as a self-employed person and for the payment of any Income Tax, VAT or other liabilities arising out of remuneration for providing the Services.
6). Client Obligations
The Client agrees to cooperate with the Consultant and shall provide any support, information and facilities to the Consultant as may be required.
The Client shall supply all documents, plans or other relevant materials requested by the Consultant provided and meet any reasonable expenses incurred in this respect.
The Client shall be responsible for any measurements or other data they supply which is then relied upon by the Consultant in the provision of the Services.
All information and materials requested by the Consultant must be supplied by the Client within a sufficient time to allow the Consultant to complete the Services by the agreed date.
The Client shall instruct, and meet the expenses of, any applications for planning, building warrants or other approvals required to provide the Services.
The Client shall, where relevant, comply with all statutory regulations, including but not limited to, The Construction (Design & Management) Regulations 1996 and any subsequent applicable amendments.
The Client agrees to refrain from directly or indirectly recruiting any person employed or engaged by the Consultant for the purpose of providing the Services for a period of six months following completion of the Services.
7). Consultant Obligations
The Consultant shall supply the Services as specified in the Proposal.
The Consultant shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised industry codes of practice.
The Consultant shall have the authority to delegate any obligations to other employees or subcontractors but undertakes to notify the Client of any significant changes to personnel provided always that any such employees or subcontractors have the requisite expertise and experience to undertake such obligations.
The Consultant may advise the Client on the appointment of contractors or other third parties, and supervise such work should that duty form part of the Services as outlined in the Proposal, but the Client shall retain full responsibility for the working practices of such parties.
The Consultant shall keep secret and confidential all information relating to the business or affairs of the Client, the Clients subsidiaries and the Clients customers.
The Consultant shall ensure that any other parties to whom work has been delegated will sign an appropriate secrecy undertaking.
The requirements of Clauses 8.1 and 8.2 shall continue indefinitely (or for such other period as may be agreed between the Client and the Consultant in writing).
9). Intellectual Property Rights
All Intellectual Property Rights created by the Consultant in the course of providing the Services shall, unless specified in the Proposal or otherwise agreed in writing between the parties, belong to the Consultant.
Should the Consultant grant an appropriate licence to the Client to allow them, or other third parties, to use the Intellectual Property Rights created in terms of this Agreement the Consultant shall not be responsible for any misuse of these materials.
The Consultant warrants that any Intellectual Property Rights created by the Services and used by the Client in this respect will not infringe the rights of any third party, and the Consultant shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
10). Property and Risk
Adequate insurance should be held by both parties to protect any property or materials that are within their care.
Title or ownership of any property or materials belonging to the Consultant remains with the Consultant until payment is received from the Client in full.
The Consultant must store any property or materials belonging to the Client separately from any other property or materials belonging to the Consultant or a third party.
The Agreement shall continue until the Services have been provided in accordance with the terms of the relevant Proposal or any subsequent date as mutually agreed in writing by both parties or until terminated by either party in accordance with these Terms and Conditions.
The Client may terminate the Agreement if the Consultant fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of 2 weeks after notification of non-compliance is given.
The Consultant may terminate the Agreement if the Client has failed to make over any payment due within 4 weeks of the sum being requested.
Either party may terminate the Agreement by notice in writing to the other if:
the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
the other party ceases to carry on its business or substantially the whole of its business; or
the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets or
upon the giving of 4 weeks written notice to the other party.
In the event of termination the Client must make over to the Consultant any payment for work done and expenses incurred up to the date of termination.
Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
Any dispute arising under this Agreement will be referred to and decided by the Arbitrator.
The Arbitrator will be appointed by application to the RIBA.
A party wishing to refer a dispute to the Arbitrator shall advise the other party of this intention in writing at any time during the term of this Agreement. The dispute must then be referred to the Arbitrator within seven (7) days of this intention being intimated.
The Arbitrator shall act impartially and be free to take the initiative in ascertaining the facts and the law. The Arbitrator must reach a decision within twenty eight (28) days of referral or such longer period as the parties may agree.
During the period of arbitration both parties must continue with their obligations as stated in this Agreement.
The decision of the Arbitrator is binding on both parties unless and until revised by legal proceedings or agreement by both parties.
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
14). Limitation of Liability
Nothing in these Terms and Conditions shall exclude or limit the liability of the Consultant for death or personal injury, however the Consultant shall not be liable for any direct loss or damage suffered by the Client howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Consultant in the insurance year in which the Clients claim is first notified.
15). Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Consultant.
17). Relationship of Parties
Nothing in the Agreement shall be construed as establishing or implying a partnership or joint venture between the parties or suggest that either of the parties are agent for the other.
18). Third Party Rights
Nothing in these Terms and Conditions intend to or confer any rights on a third party.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Proposal or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
22). Entire Agreement
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
23). Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.