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GW ARCHITECTURAL LTD TERMS AND CONDITIONS OF BUSINESS

1. Interpretation

1.1. In these Conditions: ‘Conditions’ means the terms and conditions of business set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and the Consultant ‘Consultant’ means GW Architectural Ltd ‘Consultant’s Equipment’ means any equipment, including tools, systems, or facilities, provided by the Consultant and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties. ‘Contract’ means the contract made between the Client and the Consultant ‘Contract Sum’ means the agreed sum to be charged by the Consultant for providing the Services referred to in the Contract ‘Client’ means the party requesting the Services to be provided ‘Client’s Equipment’ means any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of the Services ‘Deliverables’ means all documents, products, materials and plant developed by the Consultant or its agents, consultants and employees in relation to the Services including any deliverables specified in the Contract or Quotation ‘Document’ includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade, dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection worldwide ‘Material’ means all documents, information and materials provided by the Client relating to the Services including (without limitation) computer programmes, data, reports, specifications, surveys and any other such information required to enable the Consultant to effectively carry out the Services ‘Pre-Existing Materials’ means all Documents, information and materials provided by the Consultant relating to the Services which existed prior to the commencement of the Contract. ‘Provisional Sum’ includes a sum provided for work that the Client may or may not decide to have carried out, or which cannot be accurately specified in the Contract ‘Quotation’ means the quotation for Services provided by the Consultant ‘Services’ means the services (including any part performance thereof) to be provided by the Consultant under the Contract together with any other services which the Consultant provides or agrees to provide to the Client ‘Site’ means the site where the Consultant will provide the Services set out in the Contract ‘Statutory Requirements’ means any statute, statutory instrument, regulation, rule or order made under any statute or directive having the force of law which affects the Services or the performance of any obligations under the Contract and any regulation or bye-law of any local authority or statutory undertaker which has jurisdiction with regards to the Services ‘Variation’ means the alteration or modification of the scope of the Services included in the Contract and accompanying specification including the addition, omission or substitution of any work and the alteration of the kind or standard of any of the Materials to be used in the work ‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax ‘Writing/Written’ includes facsimile transmission, electronic mail and comparable means of communication.

1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect interpretation.

2. Applicability of Conditions

2.1. These Conditions shall:-

2.1.1. Apply to and be incorporated into the Contract; and

2.1.2. Prevail over any inconsistent terms and conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a Quotation, or specification or other Document supplied by the Client, or implied by law, trade custom, practice or course of dealing.

2.1.3. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter

2.1.4. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty, whether made negligently or innocently (other than for breach of contract) as expressly provided in the Contract.

2.2. No variation to these Conditions shall be binding unless agreed between the authorized representatives of the Client and the Consultant in writing.

2.3. Any advice or recommendation given by the Consultant or its employees or agents to the Client or its employees or agents which is not confirmed in writing by the Consultant is followed or acted upon entirely at the Client’s own risk, and accordingly the Consultant shall not be liable for any such advice or recommendation which is not so confirmed.

2.4. Any typographical, clerical or other error or omission in any sale literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Consultant shall be subject to correction without any liability on the part of the Consultant.

3. Documents and Specifications

3.1. The Client shall be responsible to the Consultant for ensuring the accuracy of the terms of any documentation (including any applicable specification) submitted by the Client, and for giving the Consultant any necessary information relating to the Services within sufficient time to enable the Consultant to perform the Contract.

3.2. The description of, and any specification for, the Services shall be those set out in the Contract and accompanying consultancy agreement (where applicable).

3.3. If the Services are to be provided by the Consultant in accordance with a specification submitted by the Client, the Client shall indemnify the Consultant against all loss, damages, costs and expenses awarded against or incurred by the Consultant in connection with or paid or agreed to be paid by the Consultant in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Consultant’s use of the Client’s specification.

3.4. The Consultant reserves the right to make any changes in the specification of the Services which are required to conform with any applicable statutory or EC requirements or, where the Services are to be supplied to the Consultant’s specification, which do not materially affect their quality or performance or provision.

4. Charges and Payment

4.1. In consideration of the provision of the Services by the Consultant, the Client shall pay the Contract Sum, adjusted as necessary, plus disbursements, in the manner agreed, including the payment of any deposit if required, and the payment of all instalments, if payment by instalments has been agreed

4.2. The Client shall pay each and every payment in full by the date agreed, either by cheque or into a bank account nominated by the Consultant

4.3. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Consultant in accordance with these Conditions the Consultant may:

4.3.1. Suspend all services until payment has been made in full; and

4.3.2. Claim interest on any outstanding payments at a rate of 8% per annum above the current base lending rate from time to time of the Bank of England, accruing on a daily basis

4.4. Time for payment shall be of the essence of the Contract

4.5. All sums payable to the Consultant under this Contract shall become due immediately on its termination

4.6. The Consultant may, without prejudice to any other rights it may have, set off any liability of the Client to the Consultant against any liability of the Consultant to the Client

4.7. Should the Client’s default in payment continue for a continuous period of 7 days, the Consultant shall be entitled to terminate the Contract on giving the Client written notice of termination. The Consultant shall in addition be entitled to claim from the Client the loss of profit suffered by the Consultant on the work left to complete at termination.

5. Payment Notices

5.1. The Consultant shall issue payment notices at the intervals specified in the Contract.

5.2. Each notice shall comprise the Consultant’s account setting out any accrued instalments of the fee and other amounts due, less any amounts previously paid, and stating the basis of calculation of the amount specified as due, which shall be “the notified sum”. The payment due date shall be the date of the Consultant’s payment notice. Instalments of fees shall be calculated on the Consultant’s reasonable estimate of the percentage of completion of the Services or stages or other services, or any other specified method.

5.3. The Client shall pay the notified sum within 14 days of the date of issue of the relevant notice (which shall be “the final date for payment”), unless:

5.3.1. The Consultant has become or becomes insolvent;

5.3.2. The Client issues a notice under clause 5.5 Otherwise, the amount due and payable shall be the notified sum. The Client shall not delay payment of any undisputed part of the notified sum.

5.4. The Consultant shall submit the final account for fees and any other amounts due when the Consultant reasonably considers the Services have been completed.

5.5. If the Client intends to pay less than the notified sum, the Client shall give a written notice to the Consultant no later than 5 days before the final date for payment specifying the amount that the Client considers to be due on the date the notice is served, the basis on which that sum is calculated and, if any sum is intended to be withheld, the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it. The Client shall on or before the final date for payment make payment to the Consultant of the amount, if any, specified in the written notice.

5.6. If the Client issues such a notice and the matter is referred to an adjudicator who decides that an additional sum is due, the Client shall pay that sum within 7 days of the decision.

6. Commencement, Duration and Performance

6.1. The Services supplied under the Contract shall be provided by the Consultant to the Client from the date specified in the Contract or as otherwise agreed between the parties. The Consultant shall not be obliged to continue to provide Services to the Client until any outstanding payments in respect of the Services have been paid by the Client in full, and in cleared funds and without retention

6.2. The Services supplied under the Contract shall continue to be supplied until the Services have been completed in accordance with the Contract or, if earlier, until the Contract is suspended or terminated in accordance with these Conditions

6.3. Any dates quoted for performance of the Services are approximate and the Consultant shall not be liable for any delay in performance of the Services however caused. Time for delivery and performance shall not be of the essence of the Contract unless previously agreed by the Consultant in Writing. The Services may be performed by the Consultant in advance of the quoted date upon giving reasonable notice to the Client.

7. Net Contribution

7.1. The Consultant’s liability to the Client under these Conditions shall be limited to the proportion of the Client’s loss and damage that it would be just and equitable to require the Consultant to pay, having regard to the extent of the Consultant’s responsibility for that loss and damage, on the assumption that the Consultant and, where relevant, any other consultants have:

7.1.1. Entered into an agreement with the Client containing a term no less onerous than the obligation to exercise reasonable skill, care and diligence; and

7.1.2. Paid to the Client the proportion of the Client’s loss and damage that would be just and equitable to require them to pay, having regard to the extent of their responsibility for that loss and damage.

8. Liability

8.1. Nothing in this condition shall limit or exclude any liability for fraud.

8.2. The Consultant’s total liability to the Client for claims made by the Client against the Consultant in contract, tort and/or common law, including negligence or breach of statutory duty, arising in connection with the performance of the Contract shall be limited to a sum not exceeding twice the Contract Sum or £100,000, whichever is lower. This clause does not apply to claims made against the Consultant involving death, personal injury or fraud

8.3. The Consultant shall be under no liability in respect of any defect in the Services arising from any drawing, design or specification supplied by the Client;

8.4. The Consultant shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Consultant’s instructions (whether oral or in Writing), misuse or alteration or repair without the Consultant’s approval;

8.5. The Consultant shall be under no liability under any warranty, condition or guarantee provided to the Client if the total price for the Services has not been paid by the due date for payment;

8.6. Subject to Clause 8.2 where any valid claim in respect of any of the Services which is based on any defect in the provision of the Services or the failure to meet specification is notified to the Consultant in accordance with these conditions, the Consultant shall be entitled to provide again the Services free of charge.

8.7. The Consultant shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control.

8.8. The Client shall be responsible for any unforeseen ground conditions (including without limitation, underground services, pipes and cables and running sand) which the Consultant may encounter during the provision of the Services. The Client shall pay any costs incurred by the Consultant arising from the unforeseen ground conditions in accordance with the Consultant’s rates where applicable or reasonable rates where not applicable.

9. Default by the Consultant

9.1. If, before practical completion of the works, the Consultant without reasonable cause, wholly or substantially suspends the carrying out of the Services or commits a material breach of contract the Client may serve a notice in writing specifying the default and requiring the Consultant to remedy the breach within 14 days. If the Consultant fails to remedy the breach, the Client may by notice in writing terminate the Contract

10. Default by the Client

10.1. If the Client shall commit a material breach of the Contract, the Consultant may by notice in writing to the Client require the breach to be remedied within 7 days. If the Client fails to remedy the breach as required the Consultant may by notice in writing terminate the Contract. A material breach shall include, but not be exclusive to:

10.1.1. Failing to pay any amount due to the Consultant in accordance with the Contract;

10.1.2. Repeatedly breaching any of the terms of the Contract in such a manner as to reasonably justify the opinion that the Client’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

10.1.3. The Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a Company) is deemed unable to pay its debts within the meaning of section 123 Insolvency Act 1986;

10.1.4. Commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party

10.1.5. A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up or, being an individual, bankruptcy proceedings, of the Client other than for the sole purpose of a scheme of solvent amalgamation with one or more other companies or the solvent reconstruction of the Client

10.1.6. An application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client’s assets

10.1.7. A floating charge holder over the assets of the Client has become entitled to appoint or has appointed an administrative receiver

10.1.8. A person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client

10.1.9. A creditor or encumbrancer of the Client attaches or takes possession of, or a distress execution sequestration or other such process is levied or enforced or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days

10.1.10. Any event occurs or proceedings are taken with respect to the Client in any jurisdiction to which it is subject but has an effect equivalent or similar to any of the events mentioned in condition 9.1.3 to 9.1.9 (inclusive)

10.1.11. The Client suspends or ceases or threatens to suspend or cease to carry on all or a substantial part of its business

10.1.12. There is a change of control of the Client (as defined in section 574 of the Capital Allowances Act 2001)

10.2. On termination of the Contract:

10.2.1. The Client shall immediately pay to the Consultant all of the Consultant’s outstanding unpaid sums. Where Services have been supplied by the Consultant since the last payment date, the Consultant may submit an invoice for the value of the Services supplied up to the date of termination, which shall be payable immediately on receipt. Where termination has occurred due to a material breach of the Contract by the Client, the Consultant shall additionally be entitled to claim a loss of profit on the Services remaining to be performed by the Consultant at the date of termination.

10.2.2. The Client shall immediately return all of the Consultant’s equipment, pre-existing Materials and Deliverables. If the Client fails to do so, then the Consultant may enter the site and take possession of them. Until they have been returned or repossessed the Client shall be solely responsible for their safe-keeping

10.2.3. The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.

11. Consultant’s Obligations

11.1. The Consultant shall use reasonable endeavours to provide the Services in accordance, in all material respects, with the Contract.

11.2. The Consultant shall use reasonable endeavours to meet any performance dates but such dates shall be estimates only and time shall not be of the essence of performance of the Services.

11.3. The Consultant shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirement that applies at the Client’s premises and that have been communicated to it by the Client.

11.4. Unless otherwise agreed, monitoring of the works does not form part of the Contract.

12. Client’s Obligations

12.1. The Client shall:

12.1.1. Co-operate with the Consultant in all matters relating to the Contract;

12.1.2. Provide to the Consultant, in a timely manner, such material and other information as the Consultant may require and ensure its accuracy in all material respects including, but not limited to, copies of any applications, consents, correspondence relating to previous planning matters and details of any matters affecting the land including rights of way, rights of support, easements, servitudes, restrictive covenants or title conditions, boundary responsibilities and underground services.

12.1.3. Inform the Consultant of all health and safety rules and regulations and any other reasonable security requirements that apply at the Site

12.2. If the performance of the Consultant’s obligations under the Contract is prevented, delayed or otherwise affected by any act or omission of the Client, its agents, sub-contractors, consultants or employees and the Consultant incurs any costs, charges or losses as a result, the Client shall reimburse the Consultant for the costs, charges or losses sustained

12.3. The Client acknowledges that the Consultant has relied and continues to rely on the Client to make full disclosure of all known, assumed and suspected structures, tanks, utilities, pipe lines, discharges, spillages or any hazardous substances at, under or near the Site and if the Consultant’s inspection reveals any such matters which were not disclosed, the Consultant reserves the right to increase the price of the Contract accordingly

12.4. The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by the Consultant, its employees, agents, consultants or sub-contractors and any other confidential information concerning the Consultant’s business or its products which the Client may obtain.

12.5. The Client may disclose such information to its employees, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out the Client’s obligations under the Contract and as may be required by law, court order or any governmental or regulatory authority

12.6. The Client shall ensure that its employees, officers, representatives, advisers, agents or sub-contractors to whom it discloses such information comply with these conditions

12.7. The Client shall not use any such information for any purpose other than to perform its obligations under the Contract.

12.8. All materials, equipment and tools, drawings, specifications and data supplied by the Consultant to the Client (including pre-existing materials) shall, at all times, be and remain the exclusive property of the Consultant, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to the Consultant, and shall not be disposed of or used other than in accordance with the Consultant’s written instruction or authorisation

12.9. The Client is aware of their duties under the CDM-C 2007 Regulations and, in particular, the possibility of appointing an agent (Regulation 4) and the need to appoint a competent CDM-C. Where it is considered that CDM consultant services are required to be undertaken, the CDM consultant shall be appointed by the Client and their fees will be separate to those charged by the Consultant. The Client shall indemnify the Consultant against any claim arising through failure of performance of the CDM consultant. Unless otherwise agreed the Consultant is not responsible for co-ordinating the work of the CDM consultant.

13. General

13.1. If the Contract between the Client and the Consultant is defined as a “Construction Contract” for the purposes of the Housing Grants Construction and Regeneration Act 1996 (as amended) (“the Construction Act”) the terms implied into a Construction Contract by the Construction Act and the Scheme for Construction (England and Wales) Regulations 1998 (as amended) (“the Scheme”) shall, where considered to be applicable, be incorporated into these Conditions, but subject to any amendments to those implied terms made in these Conditions, which amendments shall take precedence.

13.2. Variations shall be valued as agreed between the Consultant and the Client. In default of agreement, a reasonable sum shall be payable.

13.3. The Consultant may, from time to time, change the Services in order to comply with any applicable safety or statutory requirements

13.4. The Consultant shall maintain during the execution of the works such insurance policies as the Consultant deem to be appropriate for the works. The insurances shall be subject to the limitations and exceptions contained in the insurance policies.

13.5. As between the Client and the Consultant, all intellectual property rights and all other rights in the Deliverables and the pre-existing Materials shall be owned by the Consultant. Subject to payment in full made by the Client to the Consultant, the Consultant licenses all such rights to the Client free of charge and on a non-exclusive worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and the Services. If the Contract is terminated, this Licence shall also automatically terminate.

13.6. Neither the Client not the Consultant shall be entitled to assign the Contract

13.7. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice may be served either by hand, first class letter post, facsimile transmission or electronic mail. Notice shall be deemed served if by hand upon delivery if by first class letter post 48 hours after posting and if by facsimile transmission or electronic mail upon being so transmitted.

13.8. No waiver by the Consultant of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.9. If any provision of these 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 Conditions and the remainder of the provision in question shall not be affected.

13.10. The Consultant shall be under no liability if it is unable to carry out any provision of the Contract for any reason beyond its control including (without limiting the foregoing) act of God, legislation, fire, flood, drought, failure of power supply, lock-out, strike or other industrial action.

13.11. The Consultant will have a general lien on all drawings, papers and books owned by the Client or a person engaged by the Client in the Consultant’s possession in respect of all unpaid invoices, interest and charges.

13.12. The Contract shall be governed by the laws of England, and the Client agrees to submit to the non-exclusive jurisdiction of the English courts.

13.13. These conditions do not confer or purport to confer on any third party any benefit or the right to enforce any term of the Contract between the Client and the Consultant.

14. Dispute Resolution

14.1. Before engaging in formal proceedings the parties shall firstly consider any appropriate form of Alternative Dispute Resolution.

14.2. Irrespective of whether or not the site constitutes the Client’s dwelling, adjudication is available in accordance with the Construction Act and the Scheme.

14.3.

14.4. The adjudicator shall be appointed by the Royal Institution of Chartered Surveyors (RICS) or the Royal Institute of British Architects (RIBA);

14.5. Notwithstanding the above the Consultant and Client both have the right to bring proceedings at Court.

14.6. The Consultant shall be entitled to recover from the Client as a contract debt any costs or expenses incurred during the recovery of outstanding sums under the Contract.