T & C’s
JOHNSoN DESIGN PARTNERSHIP
TERMS AND CONDITIONS
Please take the time to read and understand these Terms and Conditions
Any reference to: ‘Stage’ or ‘Stages’ or ‘Stage A’ or ‘Stage B’ or ‘Stage C’ or ‘Stage D’ below refers to the said Stage or Stages and related fee payments as outlined in the written Proposal agreement between the Parties which constitutes an indivisible part of the contract between the Parties in tandem with these Terms and Conditions.
1. This Agreement is made between JOHNSoN DESIGN PARTNERSHIP (‘JDP’) whose registered office is at Johnson House, Station Lane (off Hollybush Road) Bridgnorth, Shropshire WV16 5DP (the “Architect”) and the purchaser/s of JDP’s services named in a written Proposal agreement signed by to said purchaser/s.
2. Any reference in this Agreement to a party shall mean either the Architect, the Purchaser/s or the Guarantor, and any such reference to parties shall (as the case may be) mean all or any two of them.
3. References in this Agreement to the parties shall include their respective heirs successors in title permitted assigns and personal representatives.
4. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
5. The expressions “Architect” and “Purchaser” shall include their respective successors and permitted assigns.
6. “Day” shall mean a period of 24 hours ending at 12 midnight but shall not include any Public Holidays.
7. “Calendar Month” shall mean a period of 30 Days if the period commences in April, June, September or November, of 28 Days (but in a leap year 29 Days) if the period commences in February and of 31 Days if the period commences in January, March, May, July, August, October or December.
8. “Month” shall mean Calendar Month.
9. “Year” shall mean any period of 12 consecutive Months.
10. “Business Day” shall mean any Day on which banks in Shropshire generally are open for business.
11. “Business Hours” shall mean 09.00 to 17.00 inclusive on any Business Day.
12. Wherever in this Agreement a period of time is referred to, the Day upon which that period commences shall be the Day after the Day from which the period is expressed to run, or the Day after the Day upon which the event occurs which causes the period to start running.
13. References to dates which do not fall on a Business Day shall be construed as references to the immediately subsequent Business Day.
14. References to the date/s and/or time/s when an act is to be performed in this agreement shall be incorporated as a Term or Terms of this agreement. In the absence of a written agreement to vary such date/s and/or times by the parties, a failure to comply with the said Term or Terms as to the aforesaid date/s and/or time/s by either party shall entitle the other party to treat such failure or failures as a breach of the agreement entitling that party to terminate the agreement forthwith.
15. Any fees remaining outstanding after the due date shall attract interest at 8% over the Bank of England base rate at the time of such fees becoming due.
16. Any undertaking by either party not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing.
17. The headings in this Agreement are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text thereof, and do not in any way limit or amplify the terms of this Agreement.
18. Words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and neuter and vice versa.
19. In the event of an inconsistency between the various provisions of this Agreement (including any documents incorporated herein by reference) the inconsistency shall be resolved by giving such provisions and documents the following order of precedence:
(a) the written Proposal agreement signed by the Purchaser/s;
(b) the Terms and Conditions of this Agreement.
20. This Agreement shall commence upon the date of the Purchaser/s signature/s agreeing to the Architect’s written Proposal agreement.
21. In consideration of the mutual exchange and disclosure of any Confidential Information, each party undertakes in relation to the other party’s Confidential Information:
(a) to maintain the same in confidence and to use it only for the purposes of this Agreement and for no other purpose and in particular, but without prejudice to the generality of the foregoing, not to make any commercial use thereof or use the same for the benefit of itself or of any third party other than pursuant to this Agreement or a further agreement with the other party;
(b) not to copy reproduce or reduce to writing any part thereof except as may be reasonably necessary for the aforesaid purposes and that any copies reproductions or reductions to writing so made shall be the property of the disclosing party;
(c) not to disclose the same whether to its employees or to third parties except in confidence to such of its employees or directors who need to know the same for the aforesaid purposes and provided that (i) such employees and directors are obliged by their contracts of employment or service not to disclose the same, and (ii) the receiving party shall enforce such obligations at its expense and at the request of the disclosing party in so far as breach thereof relates to the disclosing party’s Confidential Information;
(d) to be responsible for the performance of sub-clauses (a), (b) and (c) above on the part of its employees or directors to whom the same is disclosed pursuant to sub-clause (c) above;
(e) to apply thereto no lesser security measures and degree of care than those which the receiving party applies to its own confidential or proprietary]; and
(f) to treat the Confidential Information at all times in accordance with the Data Protection Act 1998.
(g) In performance of this Agreement, each party and its employees and agents may have access to confidential information owned or controlled by the other party relating (inter alia) to equipment, apparatus, programs, software and specifications, drawings and other documents. All such information so acquired by the receiving party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party’s exclusive property unless and until the relevant Stage payment allowing the Purchaser/s to acquire the Confidential Information has been made under the written Proposal agreed by the Parties. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own confidential information, to keep and have its employees and agents keep, any and all such information confidential. The receiving party shall not copy, publish or disclose such information to others, or authorise its employees, or agents, or anyone else to copy, publish or disclose it to others, without the disclosing party’s prior written approval, and shall return such information to the disclosing party at its request should the relevant Stage payment not be forthcoming at the specified time.
22. Nothing in this definition of Confidential Information shall be construed to limit each party’s use or dissemination of information that:
(1) was in the lawful possession of the receiving party at the time of disclosure by the disclosing party without an obligation to keep it confidential;
(2) was in the public domain at the time of receipt or disclosure or subsequently becomes so;
(3) is not identified in writing as being proprietary or confidential;
(4) was originally considered proprietary under this Clause but which subsequently becomes part of the public knowledge or literature through no fault of the receiving party;
(5) is developed by or for the receiving party at any time independently of the information disclosed to it by the disclosing party;
(6) has been or hereafter may be rightfully acquired from third parties without obligation to keep confidential.
23. Each party agrees to keep the existence and nature of this Agreement and the provisions terms and conditions thereof confidential and not to use the same or the name of the other party in any publicity, advertisement or other disclosure with regard to this Agreement without the prior written consent of the other party.
24. The Architect shall retain copyright in the work produced by him in connection with this project and asserts his right to be identified as the author of such design or designs as may comprise the project.
25. Title to any designs, drawings, Computer Aided Drawings or any other document (‘the documents’) created by JDP shall remain with JDP and shall not pass to the Purchaser/s in the form of a licence from the Architect to use such documents until the relevant Stage payment in the written Proposal agreement is received by JDP. Any such licence granted by the Architect to the Purchaser shall permit the Purchaser to use such designs, drawings, plans and software, as may be supplied by the Architect, solely in connection with the project and for the use of contractors on that specific project. Use of the said designs, drawings, plans or software in connection with any extension of the said project and/or for any additional construction, building, extension or any other project or by another architect or designer instead of JDP is specifically excluded in the absence of an additional licence from JDP.
26. Should any fees due under this agreement remain unpaid for a period of 7 days the Architect is entitled to suspend the use of any and all licence/s granted in pursuance of paragraph 26 above.
27. Each party hereto warrants and represents to each of the others that it has full authority, power and capacity to enter into this Agreement, and that all necessary actions have been taken to enable it lawfully to enter into this Agreement. Each Party warrants that they are not currently subject to: (a) a winding up order; (b) bankruptcy proceedings or have been made bankrupt (c) an Individual Voluntary Arrangement; or (d) a Creditors’ Voluntary Arrangement.
28. Neither JDP nor any of its employees agents or sub-contractors shall be considered in breach of this Contract or under any liability whatsoever to the Purchaser/s for non-performance, part performance, defective performance or delay in the performance of any services supplied or to be supplied or work carried out or to be carried out by the Party its employees agents or sub-contractors hereunder, which is directly or indirectly caused by or is a result of any circumstance beyond its reasonable control provided that notwithstanding, and without prejudice to the generality of, the foregoing, the following shall in all cases be deemed to be circumstances beyond the relevant party’s reasonable control:
(i) Acts of God, explosion, flood, lightning, tempest, fire or accident;
(ii) war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
(iii) rebellion, revolution, terrorism, insurrection, military or usurped power or civil war;
(iv) riot, civil commotion or disorder;
(v) acts, restrictions, regulations, by-laws, refusals to grant any licences or permissions, prohibitions or measures of any kind on the part of any governmental authority;
(vi) import or export regulations or embargoes;
(vii) strikes, lock-outs or other industrial actions or trade disputes of whatever nature (whether involving employees of the JDP or a third party);
(viii) defaults of suppliers or sub-contractors;
(ix) incompleteness or inaccuracy of any technical information which it is the responsibility of the Purchaser to provide; or
(x) any failure, default, delay in performance, or any act or omission of any nature whatsoever on the part of the Purchaser, or its employees, agents, suppliers or sub-contractors.
29. In the event of force majeure causing a delay in the time for completion of the Contract or performance of a portion of the Contract the period of time for completion or performance, as the case may be, will be extended by a period equal to the delay provided that in the event the delay continues for a period in excess of 120 consecutive days either party shall have the right to terminate the Contract. In the event of such termination JDP shall be entitled to be paid for all work performed prior to the date of termination and for any unavoidable commitments entered into by JDP prior to the date of such termination.
30. JDP will exercise reasonable skill and care in performing their obligations under this agreement.
31. Both parties shall provide timely decisions to enable the proper performance of their respective obligations under this agreement.
32. The Purchaser shall be responsible for the performance of work or services by any third party including contractors on this project and shall ensure that they co-operate with the Architect in connection with any issue requiring his services. Any and all requests for a survey or tests of soil, foundations, party walls, boundaries, drains, trees, or any other structure, object or liquid ancillary to the design provided by JDP shall be sent to JDP in writing specifying the survey or tests required, otherwise no liability shall attach to JDP for the non-performance or negligent performance of the said survey or test/s.
33. In connection with construction works the Purchaser shall not hold the Architect responsible for either health and safety nor the carrying out and completion of such works, all of which shall remain the responsibility of the Principal Contractors and/or other contractors.
34. The Purchaser shall provide any evidence required by the Architect for the resolution of any dispute which may arise between the Purchaser and any third party in connection with the project and shall indemnify the Architect for any additional costs or expenses incurred by him in the resolution of such a dispute.
35. Title to any designs, drawings, Computer Aided Drawings or any other document created by JDP shall remain with JDP and shall not pass to the Purchaser/s except as in the form of a licence from the Architect until the relevant Stage payment in the written Proposal agreement is received by JDP.
36. Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties hereto, and nothing in this Agreement shall be deemed to constitute either of the parties hereto as the agent of the other party or authorise either party, (i) to incur any expenses on behalf of the other party, (ii) to enter into any engagement or make any representation or warranty on behalf of the other party, (iii) to pledge the credit of, or otherwise bind or oblige the other party, or (iv) to commit the other party in any way whatsoever, without in each case obtaining the other party’s prior written consent.
37. If any term or provision in this Agreement shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form part of this Agreement but the validity and enforceability of the remainder of this Agreement shall not be affected.
38. If the Architect has to perform additional work and/or is involved in any extra expense for reasons which are not within his control he shall be entitled to additional fees on a pro-rata basis.
39. The following activities do not form part of this agreement:
(a) Listed building or conservation area consents;
(b) Grant aided works;
(c) Historic building research and archaeological records;
(d) Interior design services;
(e) Submission of plans for approval or negotiations in connection with grants, funders, landlords, freeholders or tenants etc;
(f) Environmental studies;
(g) Exceptional negotiations with planning or statutory authorities;
(h) Reviews or revisions of plans to comply with requirements of planning or statutory authorities, freeholders or leaseholders or contractors;
(i) Dispute resolution services on behalf of the client in connection with any adjudication;
(j) Investigations in connection with any damage or destruction caused by third parties;
(k) Additional works caused by the insolvency of any other party involved in the project;
(l) Assessment in connection with any claim or counter claim by any third party;
(m) Any further involvement with the project at post-completion stage
(n) Any advice concerning Community Infrastructure Levy and s.106 Agreements. Such advice should be sought from a legal professional and/or and accountant.
40. Our right to cancel
JDP reserve the right to cancel this agreement in the following two cases:
(i) where, after a technical survey has been carried out, it is apparent that the work as shown in our quotation cannot be carried out for safety or other technical reasons;
(ii) where, after a technical survey has been carried out, we find it necessary to recommend design changes for safety or other technical reasons which you do not want to agree to, either because they will cost more, or for any other reason.
41. Your right to cancel
(i) The Purchaser/s has the right to cancel this contract within 14 days without giving any reason.
(ii) The cancellation period will expire after 14 days from the day on which the agreement is entered into.
(iii) To exercise the right to cancel, the Purchaser/s must inform JDP of their decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail to the contact details provided on my letterhead.). To meet the cancellation deadline, it is sufficient for to send the communication concerning the exercise of the right to cancel before the cancellation period has expired.
(iv) If the Purchaser/s cancels this agreement, JDP will reimburse to you all payments received from you.
(v) JDP will make the reimbursement without undue delay, and not later than 14 days after the day on which they were informed about the decision to cancel this agreement.
(vi) JDP will make the reimbursement using the same means of payment as used for the initial transaction, unless the Purchaser/s has expressly agreed otherwise; in any event, the Purchaser/s will not incur any fees as a result of the reimbursement. If the Purchaser/s requested JDP to begin the performance of services during the cancellation period, the Purchaser/s shall pay JDP an amount which is in proportion to what has been performed until they communicated to JDP their cancellation from this agreement, in comparison with the full coverage of the agreement.