Terms and Conditions of Service - 3eleven design
1. Application
1.1 These terms and conditions shall apply to the provision of Services by the Supplier to the Client.
1.2 In the event of conflict between these terms and conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Supplier in writing.
2. Definitions
2.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
| "Business Day" | a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business |
|---|---|
| "The Client" | means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) which purchases Services from the Supplier |
| "Services" | means the services to be provided by the Supplier to the Clients |
| "The Supplier" | 3eleven design |
2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended, re-enacted or extended at the relevant time.
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
3. The Service
3.1 The Supplier shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services as agreed with the Client.
3.2 The Supplier will use reasonable care and skill to perform the Services as agreed with the Client.
3.3 The Supplier shall use all reasonable endeavours to complete its obligations under the Service agreed with the Client, but time will not be of the essence in the performance of these obligations.
3.4 The Supplier shall undertake the Service after receipt of the copy of the Project Agreement, duly signed by the Client.
3.5 The Service shall be deemed to have been completed on receipt of the decision notice from the authorities.
4. Price
4.1 The Client agrees to pay the Fees in accordance with the terms of payment.
4.2 In addition the Supplier shall be entitled to recover from the Client his reasonable incidental expenses for third party goods and Services supplied in connection with the provision of the Services.
4.3 The Client will pay the Supplier for any additional Services provided by the Supplier that are not specified in accordance with the Supplier's then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional Services will be supplemental to the amounts that may be due for the Expenses.
4.4 All sums payable are exclusive of any value added or other tax or other taxes on profit, for which that party shall be additionally liable as may be appropriate.
5. Invoice and Payment
- - Initial amount of 80% (eighty) of the Price shall be invoiced in advance and shall be payable immediately on receipt of the invoice, i.e. prior to commencement of the planning application work by the Supplier.
- - The remaining 20% (twenty) of the Price shall be invoiced immediately after receipt of the decision notice letter from the authorities, and shall then be payable within 15 (fifteen) working days from the date of such invoice.
5.1 For Submission Work all payments are required to be within the quoted days, in cleared funds, to such bank as the Supplier may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
5.2 Other Drawing & Design Services shall be invoiced after the Client's acceptance of such Services provided and shall then be payable within 5 (five) working days from date of such invoice.
5.3 The time of payment shall be of the essence of these terms and conditions. If the Client fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 4% (four percent) per cent and the base rate of NatWest Bank from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
6. Variation and amendments
6.1 If the Client wishes to vary any details of the Service it must notify the Supplier in writing as soon as possible. The Supplier shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
6.2 If, due to circumstances beyond the Supplier's control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client forthwith. The Supplier shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
7. Termination
7.1 The Supplier may terminate the Service and this agreement forthwith if:
7.1.1 the Client is in breach of any of its obligations hereunder; or
7.1.2 the Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or
7.1.3 the Client has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986; or
7.1.4 the Client ceases or threatens to cease to carry on business; or
7.1.5 any circumstances whatsoever beyond the reasonable control of the Supplier (including but not limited to the termination, through no fault of the Supplier, the termination of the service) that necessitate the termination for whatever reason of the provision of services.
7.2 In the event of Termination under clause 7.1 the Supplier shall retain any sums already paid by the Client without prejudice to any other rights the Supplier may have whether at law or otherwise.
8. Sub-Contracting
The Supplier may sub-contract the performance of any of its obligations under the Service or under this Agreement without the prior written consent of the other party. Where the Supplier sub-contracts the performance of any of its obligation under the Service or under this Agreement to any person with the prior consent of the Client, the Supplier shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the party itself.
9. Liability
9.1 If the Supplier fails to perform the Service with care and skill it will carry out remedial action at no extra cost to the Client.
9.2 The Client shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agent or employees.
9.3 The Supplier shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier's obligations if the delay or failure was due to any cause beyond the Supplier's reasonable control.
9.4 Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
10. Force Majeure
10.1 Neither the Supplier nor the Client shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond that party's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party's reasonable control:-
10.2 act of God, explosion, flood, tempest, fire or accident;
10.3 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.4 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.5 import or export regulations or embargoes;
10.6 strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Supplier or the Client or of a third party);
10.7 difficulties in obtaining raw materials, labour, fuel, part or machinery;
10.8 power failure or breakdown in machinery.
11. Waiver
11.1 No waiver by the Supplier of any breach of these terms and conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this agreement shall be effective only if given in wring and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.
11.2 No failure or delay on the part of any party in exercising any right, power or privilege under this agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
12. Severance
If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
13. Drawings
13.1. All measurements are to be scaled on site and not taken from the produced drawings. The drawings are not to be used for construction purposes.
13.2. All drawing dimensions and details are taken from the time of visit and the Supplier shall not be responsible for any changes that may have occurred on site affecting the drawing design after the Supplier's site visit.
13.3. Furthermore, the Supplier shall not be responsible for any alterations or site delays during building construction that may have been a result of the drawings being used by the Client's contractor.
13.4. Any drawing alteration carried out by any party not associated with the Supplier make the drawing void of the Supplier's involvement and responsibility. Such altered drawing shall no longer be deemed to have the Supplier's consent.
13.5. Any drawing or other documentation produced by the Supplier are produced for application purposes only.
14. Site Working
14.1. The Client is responsible for ensuring reasonable working access on site to allow the Supplier to carry out site surveys as may be appropriate.
14.2. The Supplier shall have the right to return to the site and view the property from a public access route at any time between 09.00 – 19.00 hours. Monday to Saturday, for the duration of the contract period, if required to obtain more information.
14.3. All items brought by the Supplier to site for surveying or measuring purposes by the Supplier are the property and responsibility of the Supplier.
15. Copyright
The Supplier reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Supplier's Services or facilities.
In particular, all drawing(s) and any other relevant documents produced by the Supplier shall remain the property of the Supplier and as such are not to be used the Client without the explicit permission o the Supplier. The Supplier reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.
16. Notices and Service
16.1 Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by pre-paid registered post; or sending by email, facsimile transmission or comparable means of communication.
16.2 Any notice or information given by post in the manner provided by Clause 13.1 which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
16.3 Any notice or information sent by telex, cable, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy is sent by pre-paid registered mail to the other party 24 hours after transmission.
16.4 Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing to be delivered to the other party at its registered or principal office, or to such other address as may be notified to by the other party in writing from time to time.
17. Applicable Law and Jurisdiction
These terms and conditions shall be governed and construed in accordance with English and Welsh law and the parties shall submit to the non-exclusive jurisdiction of the English and Welsh courts.