These Terms and Conditions of Business "Terms and Conditions" shall apply to contractual arrangements and dealings between David Clare trading as Exposed Design Consultants ("the Company") and any other party with whom the Company contracts to supply goods or services ("the Client").
These Terms and Conditions will apply to this and all future dealings (this, other current and future Projects) with the Client until superseded by new terms and conditions either provided by the Company, or agreed between the Company and the Client and signed by a designated representative of the Company. Any variation of these Terms and Conditions for a particular Project agreed by a designated representative of the Company in writing shall apply only to that Project and not to all future dealings unless otherwise stated in the written variation.
These Terms and Conditions supersede any terms and conditions appearing in the Clients documentation (if any) and override and exclude any other terms and conditions stipulated or incorporated or referred to by the Client, whether in any negotiations or in any course of dealing established between the Client and the Company.
These Terms and Conditions shall prevail over the Client's standard terms of contract in all cases and circumstances whatsoever (unless otherwise provided herein) and any term in the Client's standard terms of contract to contrary or inconsistent effect to these Conditions shall have no force or effect whatsoever.
These Terms and Conditions and estimate (if any) constitute the entire understanding between the Client and the Company regarding the Project and the Client acknowledges that there are no representations outside the estimate. The Company accepts no responsibility for effecting any modifications to the specifications of a Project as contained in the estimate unless written instruction is received from the Client.
Services to be performed ("Services")
Details of your stated requirements and the services which we will provide under this Agreement are listed in the Fee Proposal. (If additional services become necessary, we will discuss with you what additional fees will be payable in this regard.)
Duty of care
We agree to exercise all reasonable skill, care and diligence in the performance of the services and shall use our reasonable endeavours to discharge our duties in a timely manner in accordance with the Estimated Time Schedule provided that we receive all necessary data and information within a reasonable time.
We shall not be responsible for non-compliance with any estimated timetable for carrying out the Services, as a result of delay caused by any other party.
Terms of agreement
You will pay us the fees and expenses as described in the Fee Proposal.
For Interior and Graphic Design Projects you will ensure that our designs, as approved by you, comply with the laws of the country for which it is intended and will ensure that any products manufactured from such approved designs shall be safe and without risk to the person or property of the user when properly used. During the course of our design programme we will take all due care that all designs and specifications comply to the laws of England. You agree to approve all drawings, artwork, and designs prepared by us prior to the printing or manufacture of any models, prototypes, moulds, dies or jigs or any similar items and brochures, company stationery or any other printed material before and/or after the commencement of production for component and layout compatibility and to ensure that all tolerances are in accordance with any specifications. We will not be liable for any cost resulting from your failure to carry out such checks.
Our liability thereunder in respect of any claims for loss and damage shall be limited in respect of any one event or series of two or more connected events to an amount equal to the fees (exclusive of VAT) paid or payable by you to us under this Agreement at the date the claim arises and shall exclude any liability for economic or financial loss whatsoever, resulting from our, or our employees’ or agents’ negligence. These provisions shall not exclude or reduce any liability for personal death or injury.
The Client shall indemnify us and hold us harmless from and against all damages, costs and liabilities suffered or incurred by us as a consequence of any claims or proceedings brought against us by any other person in connection with the Services including, without limitation, any liability or costs arising out of infringement or alleged infringement of any registered design patent trademark or the intellectual property rights as a direct or indirect result of our complying with your express or implied instructions, or your breach of obligations under this Agreement including all damage and expense caused thereby to us.
Copyright and Intellectual Property in our designs will remain vested in us at all times, but provided that all fees and expenses payable to us are paid on the due date(s) you will have a royalty free licence to use our designs as defined in the proposal. The Company shall have the right to require the Client to give credit and recognition to the Company as designer or author as appropriate on all works the Company has produced in undertaking the Project in such form as the Company may reasonably require and the Client hereby agrees to submit to the Company for approval all such material before publication.
Should the Client decide to use the Company's name in connection with material which someone other than the Company has altered from the Company's original design, permission in writing from the Company must be obtained in advance for such use. Any such aforementioned permission from the Company shall not be unreasonably withheld.
This Agreement may be terminated by either party by written notice to the other with immediate effect should either party commit any material or persistent breach of any terms of this Agreement which shall not have been remedied within 14 days of a written request to remedy the same. The termination of this Agreement shall not affect any pre-existing liability of either party to the other nor the right of either party to look to the other for damages for breach.
This Agreement supersedes any previous agreements or other statements made.
This Agreement is personal to you and you shall not assign it or any rights under it unless agreed by both parties.
This Agreement shall be governed by English law and each of the parties submits to the non-exclusive jurisdiction of the English Courts.
Neither party shall be liable for any failure to perform of its obligations under this Agreement resulting from an Event of Force Majeure and both parties shall be excused performance for the duration of such Event plus such further period as may reasonably be necessary for the party unable to perform its obligations by reason of the Event of Force Majeure to resume the performance of its obligations.
Each party shall give immediate notice to the other upon becoming aware of an Event of Force Majeure which affects its ability to perform its obligations under this Agreement, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
If a default due to an Event of Force Majeure continues for more than 60 days then either party shall be entitled to terminate this Agreement with immediate effect by written notice to the other at any time during the continuance of such Event. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
All additions, amendments and variations of it shall be of contractual effect only if agreed in writing and signed by the duly authorised representatives both of the Client and Exposed Design Consultants.
No employee or representative of Exposed Design Consultants save for David Clare, is authorised to make any representations or warranties in respect of the Services or the Project.
Neither party shall, without the other’s prior approval at any time during the Term or for twelve months afterwards, employ or endeavour to entice away any person presently or within the previous twelve months employed by the other party.
In the event of any discrepancy between these terms and conditions and the Fee Proposal, the Fee Proposal shall have precedence.
If the Fee Proposal is not accepted within sixty days, we reserve the right to amend the Fee Proposal.
Exposed Design Consultants shall treat all information, written or drawn, supplied by the client as confidential and shall not disclose the information to any third party without written consent by the client.
Suppliers and Other Sub-contractors - The Company shall be entitled to employ on the Project such suppliers, and may sub-contract to any third party the performance of any of its obligations to the Client, as may be necessary for the proper and timely completion of the Project.
Agents - If the Client advises the Company (whether in writing or otherwise) that instructions are to be taken from a third party in respect of any aspect of the Project, the Company may properly treat that party as the Client's agent for those purposes and that the Client will be liable for all fees, costs and expenses that may be incurred in carrying out the Project in accordance with such instructions and these Terms and Conditions shall apply to the Company's dealings with such third parties accordingly.
Fees and expenses
In addition to payment of the Fees you will reimburse us for all expenses and disbursements incurred by us in performing the Services, including: printing, reproduction, or purchase costs of all documents, drawings, maps, models, photographs, visual representations, prototypes, research materials and other records including all those used in communication between all parties associated with the Project; and graphic expenses, including visual reference library, illustrations, photography, camera-ready artwork, typesetting, printing, manufacturing and installation; and all subsistence and travelling expenses, hire car (group C) including mileage allowance for cars at a rate of £0.40 per mile; and fees and other charges, expenses and disbursements for specialist professional services including legal advice, market research, field work, statutory fees and other consultants’ fees incurred with the Client's written consent; and the cost of general studio supplies, photocopying, air freight and courier services; and rental and hire charges for specialised equipment, including computers, incurred with the Client's written consent.
As a guide, expenses and disbursements, if not stated at a fixed level within the Fee Proposal Expenses and Disbursements, should be estimated at 7-10% of the Fees and will be invoiced when the actual cost of expenses and disbursements is known. The Company will take care to minimise all expenses in the process of fulfilling this contract.
Where expenses and disbursements are stated in the Proposal to be fixed, such sum will be added to the Fees and invoiced in accordance with these Terms and Conditions. Where a fixed sum in respect of expenses and disbursements excluded such items as artwork, photography and models, they will be incurred as additional expenses which you will reimburse to us once actual requirements are known and have been quoted in advance to you.
Payment of all invoices, as outlined in the Fee Proposal or agreed via Email or Billing Schedule must be made within 30 days of the invoice date.
The Client shall (unless otherwise specified in the Proposal) pay the Fee in relation to each stage of the provision of the Services identified in the Proposal in the following instalments:-
- 50% of the agreed fee plus any anticipated Expenses upon commencement of that stage; and
- the balance of agreed Fee and Expenses upon completion (as certified by the Company) of that stage.
Without prejudice to our other rights under this Agreement, if you fail to pay the full amount of any sum payable under this Agreement when due, we reserve the right to:
- charge interest until payment on the amount remaining unpaid at the rate of four percent (4%) above the Bank of England Minimum Lending Rate (annual), which shall accrue on a daily basis; and
- suspend the Services for so long as any such amount remains outstanding.
Payment of any invoice shall be made in full without any deduction whatsoever, and all payments are to be made in pounds sterling unless otherwise agreed.
VAT or other local taxes (if applicable) shall be added to all payments by the Client under this Agreement. Under current legislation VAT and local taxes are not applicable to Fees for Projects based outside the UK.
We shall inform you in writing if fees, expenses and disbursements as set out in the Fee Proposal are likely to be materially varied, due to factors beyond our control.Actual programmes, or costs and fees, may vary from estimates or evaluations which we have prepared and accordingly we do not warrant such estimates or evaluations.
Commencement of project is by client consent and is to be construed as agreement to fees and project costs, as indicated by email communication or fee proposal, and these Terms & Conditions.