STANDARD TERMS AND CONDITIONS FOR SUPPLY OF DESIGN ARCHITECTURAL SERVICES BETWEEN
CIVICARTS LLP/EKA
Incorporated and registered in the United Kingdom with company number OC360556
CivicArts LLP
Finsbury Business centre
40 Bowling Green Lane
London EC1R 0NE
United Kingdom
CLIENTS
BACKGROUND
This Agreement sets out the general conditions applying to the Consultant’s supply of Specified Services to Clients. A Project Plan setting out details of the services to be supplied and any other supplementary terms applicable thereto has been agreed by the parties. Each Project Plan together with these general conditions shall be defined as “the Agreement” and shall constitute the full binding Agreement between the parties. In the event of any conflict or inconsistency between these general terms and conditions and those of any Project Plan, the latter shall prevail.
AGREED TERMS
1.
INTERPRETATION
1.1
The definitions and rules of interpretation in this clause apply in this agreement.
Client: the party with whom the Consultant has entered into the scope of services for the provision of the Services.
Client's Equipment: any equipment, systems, cabling or facilities provided by the Client and used directly
or indirectly in the supply of the Services.
Client's Manager: the Client's manager for the Project appointed in accordance with clause 5.1.
Deliverables: all Documents, products and materials developed by the Consultant or its agents, subcontractors, consultants and employees in relation to the Project or Services in any form, including computer programs, data, reports and specifications (including drafts)and any deliverables specified in the Project Plan.
Document: includes, 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.
In-put Material: all Documents, information and materials provided by the Client relating to the Services, including computer programs, data, reports and specifications.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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 in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by the Consultant relating to the Services which existed prior to the commencement of this agreement, including computer programs, data, reports and specifications and any pre-existing materials specified in the Project Plan.
Project: the project as described in the Project Plan.
Project Milestones: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan.
Project Plan: the scope of services and any other detailed plan describing the Project and setting out the estimated timetable (including Project Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.
Services: the services to be provided by the Consultant under this agreement as set out in the Project Plan together with any other services which the Consultant provides or agrees to provide to the Client.
Scope of services: means the scope of services setting out the range of Services to be provided to the Client by the Consultant.
Consultant's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Consultant or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
Consultant's Manager: the Consultant's manager for the Services or the Project appointed under clause 4.3.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4
The schedules and the scope of services form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules and the scope of services.
1.5
Words in the singular shall include the plural and vice versa.
1.6
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7
A reference to writing or written includes e-mail.
1.8
Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.9
Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.10
1.11
References to clauses and schedules are to the clauses and schedules of this agreement.
Where the words him or her and she or he are used in this agreement, they are deemed to be referencing a generic gender.
2.
COMMENCEMENT AND DURATION
2.1
The Consultant shall provide the Services to the Client on the terms and conditions of this agreement.
2.2
The Consultant shall provide the Services to the Client from the date specified in the Project Plan.
2.3
The Services supplied under this agreement shall continue to be supplied until the Project is completed in accordance with the Project Plan.
3.
PROJECT PLAN
3.1
The Project Plan shall be agreed in the following manner:
(a)
the Client shall provide the Consultant with a written request for a Project Plan, setting out the requirements and scope of the services which it is requesting from the Consultant, including a description of what work is to be done, dates by which each stage of the work is requested to be started and finished, Deliverables, In-put Materials and such other information as the Consultant may request to allow the Consultant to prepare a draft Project Plan;
(b)
the Consultant shall, as soon as reasonably practicable, provide the Client with a draft Project Plan; and
(c)
the Consultant and the Client shall discuss and agree the draft Project Plan and when it has been agreed, the Consultant shall confirm this to the Client and, from that time, it shall become automatically incorporated within and be subject to the terms of this agreement.
3.2
Once the Project Plan has been agreed in accordance with clause 3.1(c), no amendment shall be made to it except in accordance with clause 6 and clause 14.
4.
CONSULTANT'S OBLIGATIONS
4.1
The Consultant shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance with the Project Plan in all material respects.
4.2
The Consultant shall use reasonable endeavours to meet any performance dates specified in the Project Plan, but any such dates shall be estimates only and time for performance by the Consultant shall not be of the essence of this agreement.
4.3
The Consultant shall appoint the Consultant's Manager who shall have authority contractually to bind the Consultant on all matters relating to the Services and Project. The Consultant shall use reasonable endeavours to ensure that the same person acts as the Consultant's Manager throughout the term of any Project, but may replace him from time to time where reasonably necessary in the interests of the Consultant's business.
4.4
The Consultant shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Client's site and that have been communicated to it under clause 5.1(d), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.
5.
CLIENT'S OBLIGATIONS
5.1
The Client shall:
(a)
co-operate with the Consultant in all matters relating to the Services and appoint the Client's Manager in relation to the Services and the Project, who shall have the authority contractually to bind the Client on matters relating to the Services and the Project;
(b)
provide, for the Consultant, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client's site, office accommodation, data and other facilities as reasonably required by the Consultant or any of them;
(c)
provide, in a timely manner, such In-put Material and other information as the Consultant may require, and ensure that it is accurate in all material respects;
(d)
inform the Consultant of all health and safety rules and regulations and any other reasonable security requirements that apply at the Client's site;
(e)
ensure that all Client's Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom or other appropriate international standards or requirements;
(f)
obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Consultant's Equipment, the use of In-put Material and the use of the Client's Equipment in relation to the Consultant's Equipment, in all cases before the date on which the Services are to start;
(g)
keep, maintain [and insure] the Consultant's Equipment in accordance with the Consultant's instructions as notified by the Consultant's Manager from time to time and shall not dispose of or use the Consultant's Equipment other than in accordance with the Consultant's written instructions or authorisation.
5.2
If the Consultant's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, the Consultant shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
5.3
The Client shall be liable to pay to the Consultant, on demand, all reasonable costs, charges or losses sustained or incurred by the Consultant (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to the Consultant confirming such costs, charges and losses to the Client in writing.
5.4
The Client shall not, without the prior written consent of the Consultant, at any time from the date of this agreement to the expiry of twelve months after the letter of completion of the Project or the last date of supply of the Services, solicit or entice away from the Consultant or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Consultant in the provision of the Services.
5.5
Any consent given by the Consultant in accordance with clause 5.4 shall be subject to the Client paying to the Consultant a sum equivalent to 20% of the then current annual remuneration of the Consultant's employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.
6.
CHANGE CONTROL
6.1
The Client's Manager and the Consultant's Manager shall meet if practicable, at least once every month to discuss matters relating to the Services or Project. If not particable, they should still communicate at least once a month to make the run of the project be in accordance to guidelines previously agreed. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2
If either party requests a change to the scope or execution of the Services, the Consultant shall, within a reasonable time, provide an estimate to the Client of:
(a)
the likely time required to implement the change;
(b)
any necessary variations to the Consultant's charges arising from the change;
(c)
the likely effect of the change on the Project Plan; and
(d)
any other impact of the change on this agreement.
6.3
If the Client wishes the Consultant to proceed with the change, the Consultant has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Project Plan and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 14.
6.4
Notwithstanding clause 6.3, the Consultant may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Consultant requests a change to the scope of the Services for any other reason, the Client shall not unreasonably withhold or delay consent to the detriment of the project.
6.5
The Consultant may charge for the time it spends assessing a request for change from the Client on a time and materials basis in accordance with clause 7.
7.
CHARGES AND PAYMENT
7.1
In consideration of the provision of the Services by the Consultant, the Client shall pay the charges as set out in the Project Plan, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. clause 7.2 shall apply if the Consultant provides Services on a time and materials basis and clause 7.3 shall apply if the Consultant provides Services for a fixed price. The remainder of this clause 7 shall apply in either case.
7.2
Where Services are provided on a time and materials basis:
(a)
the charges payable for the Services shall be calculated in accordance with the Consultant's standard daily fee rates, as amended from time to time by the Consultant giving not less than one months' written notice to the Client;
(b)
the Consultant's standard daily fee rates for each individual person are calculated on the basis of an eight-hour working day.
(c)
all charges quoted to the Client shall be exclusive of VAT which the Consultant shall add to its invoices at the appropriate rate (where applicable);
7.3
Where Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Project Plan as amended from time to time in accordance with clause 7.5. The Client shall pay the total price to the Consultant (without deduction or set-off) in instalments, as set out in the Project Plan in respect of which an instalment is due, the Consultant shall invoice the Client for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in clause 7.4.
7.4
Any fixed price and daily rate contained in the Project Plan excludes:
(a)
the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Consultant engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Consultant for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Consultant;
(b)
Any other special costs incurred for the Project, including, but not limited to printing, photocopies, photographs, Computer-generated imagery, flythrough, models, film or other plans;
(c)
postage, site surveys, road closures, blueprints, long distance telephone calls, models, aerial photography (and all administration costs incurred therein);
(e)
VAT, which the Consultant shall add to its invoices at the appropriate rate.(where applicable)
7.5
The parties agree that the Consultant may review and increase its standard daily fee rates and the charges set out in the Project Plan, provided that such charges cannot be increased more than once in any 12 months period. The Consultant shall give the Client written notice of any such increase one month before the proposed date of that increase.
7.6
The Client shall pay each invoice submitted to it by the Consultant, in full and in cleared funds, within thirty days of receipt to a bank account nominated in writing by the Consultant. In the event that the Client disputes any portion of the charges contained in the invoice(s) the Client must pay the undisputed portion of the invoice in full and submit a written claim for the disputed amount together with the full details of the reason(s) why such a claim should be considered by the Consultant. Such claims must be submitted to the Consultant within 14 days of receipt of the invoice. If the Client does not submit a claim within such period and in the manner stated, then the invoice(s) shall be deemed to be correct and payable in full.
7.7
Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Consultant on the due date, the Consultant may:
(a)
charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Consultant may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand; and
(b)
suspend all Services until payment has been made in full.
7.8
Time for payment shall be of the essence of this agreement.
7.9
All sums payable to the Consultant under this agreement shall become due immediately on its termination, despite any other provision. This clause 7.9 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
7.10
In instances where the Client terminates the appointment of the Consultant for any reason (or where the Project is suspended or abandoned) before Project completion, fees will be payable up to and inclusive of the phase in progress at the time of receipt of written notice, together with any reimbursable expenses then due.
7.11
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.
7.12
General Reimbursables:
(a)
Business Class Air Transportation,
(b)
Business Class Accommodation,
(c)
(d)
Subsistence,
Local travel,
(e)
External printing,
(f)
Specialised and Aerial photography,
(g)
Models,
(h)
External rendering and renderings extra to scope.
(i)
Film - production, direction, computer graphic illustration (CGI), voice, music, and post production all co-ordinated through our office.
(j)
Copyright licensing charges for images, either for film or publications.
(k)
Fly through – one fly through animation is included in the base fee for each stage of work, further flys-through or re-workings will be charged at cost.
(l)
Perspectives, Renderings are produced outside our office.
(m)
Presentation Murals if required.
(n)
Public Presentation; One formal presentation to Political Authorities is included in the base fee for each stage of work. Further presentations will be reimbursable.
(o)
Leather hardbound book is charged to produce, including the supply of one draft for approval and five final copies. Additional copies are charged at cost.
(p)
Specialist Consultants: We will ask our team of specialist consultants to submit draft fee estimates for your review, if required.
All these consultancies require a clearer idea of the total brief, and how they would work with your Associate Architects and Engineers. During the organizational meeting between our professionals and your team, we will be able to better outline their scope of services.
(q)
Changes in Scope of Services.
Any opportunities or alterations to the scope of the project will require a review of the Base Contract and Fee Schedule.
(v)
Any other extras required by the client and/or needed for the smooth running of the project
8.
INTELLECTUAL PROPERTY RIGHTS
8.1
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 clause 8.2, 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 Consultant terminates this agreement under clause 12.2, this licence will automatically terminate.
8.2
The Client acknowledges that, where the Consultant does not own any of the Pre-existing Materials, at the Consultant’s absolute discretion, the Client's use of rights in Pre-existing Materials may be conditional on the Consultant (where it has exercised its discretion in this way) obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Consultant to license such rights to the Client.
9.
CONFIDENTIALITY AND THE CONSULTANT'S PROPERTY
9.1
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 subcontractors and any other confidential information concerning the Consultant's business or its products which the Client may obtain.
9.2
The Client may disclose such information:
(a)
to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Client's obligations under this agreement; and
(b)
as may be required by law, court order or any governmental or regulatory authority.
9.3
The Client shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 9.
9.4
The Client shall not use any such information for any purpose other than to perform its obligations under this agreement.
9.5
All materials, equipment and tools, drawings, scope of services and data supplied by the Consultant to the Client (including Pre-existing Materials and the Consultant's Equipment) 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 instructions or authorisation.
10.
LIMITATION OF LIABILITY
10.1
This clause 10 sets out the entire financial liability of the Consultant (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(a)
any breach of this agreement, including any repudiatory breach or any breach of this agreement by the Consultant, or its employees, agents or subcontractors;
(b)
any use made by the Client of the Services, the Deliverables or any part of them; and
(c)
any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
10.2
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
10.3
Nothing in this agreement limits or excludes the liability of the Consultant:
(a)
for death or personal injury resulting from negligence; or
(b)
for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Consultant; or
(c)
for any liability incurred by the Client as a result of any breach by the Consultant of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
10.4
Subject to clause 10.2 and clause 10.3:
(a) the Consultant shall not be liable for:
(i)
loss of profits; or
(ii)
loss of business; or
(iii)
depletion of goodwill and/or similar losses; or
(iv)
loss of anticipated savings; or
(v)
loss of goods; or
(vi)
loss of contract; or
(vii)
loss of use; or
(viii)
loss of corruption of data or information; or
(ix)
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.
DATA PROTECTION
The Client acknowledges and agrees that details of the Client's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Consultant in connection with the Services.
12.
TERMINATION
12.1
Subject to clause 12.3 and clause 12.4, this agreement shall terminate automatically on completion of the Project or Services in accordance with the Project Plan.
12.2
Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other immediately on giving notice to the other if:
(a)
the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than twenty-one days after being notified in writing to make such payment; or
(b)
the other party commits a material breach of any of the material terms of this agreement and (if such a breach is remediable) fails to remedy that breach within thirty days of that party being notified in writing of the breach; or
(c)
the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(d)
the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e)
the other party 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; or
(f)
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party 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; or
(g)
an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
(h)
a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
(i)
a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or
(j)
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen days; or
(k)
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d) to clause 12.2(j) (inclusive); or
(l)
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m)
there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
12.3
On termination of this agreement for any reason:
(a)
the Client shall immediately pay to the Consultant all of the Consultant's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultant may submit an invoice, which shall be payable immediately on receipt;
(b)
the Client shall, forthwith, 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 Client's site and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c)
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.
12.4
On termination of this agreement (however arising) the following clauses shall survive and continue in full force and effect:
(a)
clause 8;
(b)
clause 9;
(c)
clause 10;
(d)
clause 12; and
(e)
clause 24.
13.
FORCE MAJEURE
13.1
A party, provided that it has complied with the provisions of clause 13.3, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 13.4, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
(a)
acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
(b)
war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
(c)
terrorist attack, civil war, civil commotion or riots;
(d)
nuclear, chemical or biological contamination or sonic boom;
(e)
voluntary or mandatory compliance with any law including a failure to grant any licence or consent needed or any change in the law or interpretation of the law;
(f)
fire, explosion or accidental damage;
(g)
loss at sea;
(h)
extreme adverse weather conditions;
(i)
collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
(j)
any labour dispute, including but not limited to strikes, industrial action or lockouts;
(k)
non-performance by Consultants or subcontractors (other than by companies in the same group as the party seeking to rely on this clause);
(l)
interruption or failure of utility service, including but not limited to electric power, gas or water;and
(m)
pandemic.
13.2
The corresponding obligations of the other party will be suspended to the same extent.
13.3
Any party that is subject to a Force Majeure Event shall not be in breach of this agreement provided that:
(a)
it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b)
it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c)
it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
13.4
If the Force Majeure Event prevails for a continuous period of more than two months, either party may terminate this agreement by giving 14 days written notice to all the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
14.
VARIATION
Subject to clause 3 and clause 6, no variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.
WAIVER
15.1
Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
15.2
No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
15.3
A waiver (which may be given subject to conditions) of any right or remedy provided under this agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
15.4
A party that waives a right or remedy provided under this agreement or by law in relation to another party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
15.5
Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.
SEVERANCE
16.1
If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the agreement, and the validity and enforceability of the other provisions of the agreement shall not be affected.
16.2
If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
17.
ENTIRE AGREEMENT
17.1
This agreement and any documents referred to in it or annexed to it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
17.2
Each party acknowledges that, in entering into this agreement and the documents referred to in it or annexed to it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
17.3
Nothing in this clause shall limit or exclude any liability for fraud.
18.
ASSIGNMENT
18.1
The Client shall not, without the prior written consent of the Consultant, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2
The Consultant may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.3
Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
19.
NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20.
RIGHTS OF THIRD PARTIES
A person who is not a party to this agreement shall not have any rights under or in connection with it.
21.
NOTICES
21.1
A notice or other communication given to a party under or in connection with this agreement:
(a)
shall be in writing in English (or accompanied by a properly prepared translation into English);
(b)
shall be signed by or on behalf of the party giving it;
(c)
shall be sent for the attention of the person, at the address or fax number specified in this clause (or to such other address, fax number or person as that party may notify to the other, in accordance with the provisions of this clause); and
(d)
shall be:
(i) delivered personally; or
(ii) sent by commercial courier; or
(iii) sent by fax; or
(iv) sent by pre-paid first-class post or recorded delivery; or
(v) sent by airmail requiring signature on delivery;
(vi) sent by email.
21.2
If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
(a)
if delivered personally, at the time of delivery; or
(b)
if delivered by commercial courier, at the time of signature of the courier's receipt; or
(c)
if sent by fax, at the time of transmission; or
(d)
if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day after posting; or
(e)
if sent by airmail, five days from the date of posting.
(f)
if sent by email, have the other party acknowledge recieving it.
21.3
For the purposes of this clause:
(a)
all times are to be read as local time in the place of deemed receipt; and
(b)
if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm on a working day and on a day that is not a public holiday in the place of receipt), the notice or other communication is deemed to have been received when business next starts in the place of receipt.
21.4
To prove delivery, it is sufficient to prove that:
(a)
if delivered personally, witnesses that can confirm the receipt; or
(b)
if sent by courier, their receipt of delivery with signature of the other party on it; or
(c)
if sent by fax, the notice or other communication was transmitted by fax to the fax number of the party; or
(d)
if sent by pre-paid first class post, the envelope containing the notice or other communication was properly addressed and posted; or
(e)
if sent by airmail, receipt from the Royal Mail or equivalent; or
(f)
if sent by email, reply from the other party; or
(g)
and in any of the cases, acknowledgement by the other party of recieving the communication.
21.5
The provisions of this clause 21 shall not apply to the service of any process in any legal action or proceedings.
21.6
A notice or other communication required to be given under or in connection with this agreement shall not be validly served if sent only by e-mail.
22.
CREDIT AND PHOTOGRAPHIC RIGHTS
22.1
Following completion of the Project, the Consultant shall have the right to take photographs of the Project for its own use including but not limited to publication in sales and marketing brochures.
22.2
In the event the Client publishes or causes to be published photographs, computer generated imagery, flythrough or other representations of the Project after completion of the Services under the Agreement, the Client agrees to include reference to the Consultant as the "Designer" for the Project in any such publication.
23.
DISPUTE RESOLUTION
23.1
If any dispute arises in connection with this agreement, the Consultant's Manager and the Client's Manager shall, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
23.2
If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR (non-profit organisation in the United Kingdom, providing alternative dispute resolution services) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 21 days after the date of the ADR notice.
23.3
The commencement of a mediation will not prevent the parties commencing or continuing an arbitration.
24.
GOVERNING LAW AND JURISDICTION
24.1
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under LCIA (the London Court of International Arbitration) Rules, which Rules are deemed to be incorporated by reference into this clause. The seat, or legal place, of arbitration shall be United Kingdom. The language used in the arbitral proceedings shall be English.
24.2
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.