TERMS OF ENGAGEMENT - 1.0 DEFINITIONS
1.1 The following definitions shall apply in these terms, unless the context otherwise requires:
BOLTER means BOLTER Design Group Limited, trading as BOLTER DESIGN, whose registered offices are at 1 Imperial Square, London, SW6 2AE.
Design Services means the services specified in the Letter of Engagement being any or all of the following services; namely design of premises, graphics design, interior design, digital media, consultancy services, corporate identity creation and market research and such other services, (if any) as are described in the letter of engagement.
Design Stage is the time when BOLTER DESIGN has completed the production of the initial plans and elevations in accordance with the design concept for the premises.
Documentation Stage is the time when BOLTER DESIGN has produced the documentation to be issued for tendering or negotiation for contracts to carry out the works and/or supply of goods required to implement BOLTER DESIGN’s designs for premises.
Goods means any products or materials created by BOLTER DESIGN as part of the Design Services which are to be delivered to the client pursuant to the Design Services.
Effective Completion means that stage at which works to carry in to effect BOLTER DESIGN’s designs for premises are completed and free from known substantial omissions and such Effective Completion shall be certified by BOLTER DESIGN for the purposes hereof.
Gross Contract Value means the estimated cost, as certified by BOLTER DESIGN from time to time, of the works to be carried out and the goods to be supplied to implement BOLTER DESIGN’s designs for premises. The Gross Contract value shall include all amounts yet to be included in the final accounts of the contractors and suppliers which sums will be estimated by BOLTER DESIGN.
Interim Contract Value means the estimated cost, as certified by from time to time, of the works carried out and the goods to be supplied to implement BOLTER DESIGN’s designs for the premises. BOLTER DESIGN will make or review such estimates at each stage by reference to the Client’s requirements as to the extent of the project and on the basis of the progress of the project and on the basis of the progress of the project at each stage.
Presentation Stage means the date on which BOLTER DESIGN presents or is ready to present to the Client outline designs for premises for the project without detailed drawings, plans or further documents.
1.2 The following provisions shall apply for the purposes of ascertaining the interim contract value and the gross contract value:
1.2.1 No reduction shall be made for any counterclaim, set off or retention in respect of accounts of contractors or suppliers for any cause.
1.2.2 There shall be included the estimated open market cost of any goods or services provided to the client at less than market value. Such estimated open market cost shall be certified by BOLTER DESIGN in writing for this purpose.
1.2.3 If the client does not implement the project (or any part thereof) then the Interim Contract Value from time to time and the gross contract value shall be increased to the estimated open market cost of implementing the whole project. Such estimated open market cost shall be certified by BOLTER DESIGN in writing for this purpose.
2.0 DESIGNER’S UNDERTAKING
2.1 BOLTER DESIGN will provide the design services to the client subject to these Terms of Engagement using such reasonable skill and care as is expected of a competent interior designer in undertaking the design services and other obligations hereunder.
3.0 DESIGNER’S SERVICES - PREMISES
3.1 In accordance with information and instructions given by the client, BOLTER DESIGN will produce a design for the client’s premises. Such services will be in accordance with the Letter of Engagement, and will include such of the following as are, in the opinion of BOLTER DESIGN required for the project:
3.1.1 Taking and evaluating the client’s instructions and requirements.
3.1.2 Formulating an initial design concept.
3.1.3 Development of the design including, but not limited to, creation of detailed drawings, layouts and finishes, the selection of furniture, furnishings, fixtures, and materials, and
attending at design review meetings and, when necessary or required by the client, the production of design prototypes.
4.0 DESIGN IMPLEMENTATION
4.1 BOLTER DESIGN will advise on the implementation of the designs. Design implementation will include such of the following as are, in the opinion of BOLTER DESIGN, required by the project:
4.1.1 Giving advice on the selection and engagement of contractors and suppliers to implement the designs.
4.1.2 Making applications for any planning permissions and statutory consents.
4.1.3 Preparing documentation and detailed drawings to enable tendering or negotiation to take place to implement designs.
4.2 If BOLTER DESIGN is required to pursue any planning appeals or make any applications involving change of use, complex planning technicalities or points of law then those services will be the subject of an additional fee under clause 13.
5.0 PROJECT SUPERVISION
5.1 BOLTER DESIGN will supervise the implementation of the designs including periodic on-site inspections. BOLTER DESIGN will monitor the performance of contractors and suppliers in the visual implementation of the designs to the extent reasonably required by the client.
5.2 BOLTER DESIGN will implement procedures for the control of quality, cost and programme progress of contractors and suppliers within the scope of BOLTER DESIGN’s brief.
5.3 BOLTER DESIGN will report to the client with reasonable frequency on significant aspects of the project supervision.
6.0 GRAPHIC DESIGNS
6.1 BOLTER DESIGN will design the graphics and artwork required by the client in accordance with the instructions of the client. The design of graphics will (if required by the client) include advice on the implementation of the graphics designs through to a finished product. This will include the selection of, placing of orders with and supervision of such suppliers and contractors as are required to implement the graphics designs to a finished product but BOLTER DESIGN shall not be liable for the selection or performance of such suppliers or contractors.
7.0 CORPORATE IDENTITY
7.1 BOLTER DESIGN will develop a corporate identity package in accordance with the client’s instructions. The corporate identity package will comprise the concepts and designs specified in the Letter of Engagement.
8.0 MARKET RESEARCH
8.1 The market research work will comprise the work specified in the Letter of Engagement which BOLTER DESIGN will carry out in accordance with the instructions of the client.
8.2 BOLTER DESIGN will provide to the client the results of the market research carried out. BOLTER DESIGN cannot guarantee that market research accurately reflects or predicts market response and it is not possible to ensure the suitability of any sample or cross section of subjects used for such research. Interpretation of the results of market research is a matter of opinion and BOLTER DESIGN accepts no liability for the same.
9.1 A design fee either on a percentage or fixed fee basis (as hereinafter defined), whichever is specified (in respect of design services for premises) in the Letter of Engagement.
9.2 A single fee for graphics design, creation of a corporate identity or market research (with further fees on the implementation of a graphics design or corporate identity package).
9.3 Time charges and charges for additional services.
9.4 Disbursements and artwork will be charged in addition to the above fees.
9.5 All fees payable for Design Services (whether on a fixed or percentage basis) shall be payable in full regardless of whether the Design Services have been fully completed or have
9.6 Risk of damage to or loss of the Goods passes to the client upon completion of the Design Services. Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the client until BOLTER DESIGN has received payment in the full of fees for the Design Services.
10.0 PERCENTAGE BASIS
10.1 The design fee on a percentage basis means that the percentage specified in the Letter of Engagement applied to the gross contract value. The design fee will be payable in the following percentage instalments at the following stages.
% of design fee payable
Stage at which fee payable
10.2 The first, second and third instalments will be based on the interim contract value at the date of the invoice from BOLTER DESIGN relating to such instalment. The invoice will take into account any change in the interim contract value since the date of the submission of the previous invoices. The fourth instalment is based on the gross contract value.
11.0 DESIGN FEE: FIXED FEE BASIS
11.1 The design fee on a fixed fee basis means the agreed fixed fee specified in the Letter of Engagement. Such design fee will be payable in the following instalments.
% of design fee payable
Stage at which fee payable
12.0 SINGLE FEE FOR GRAPHICS, CORPORATE IDENTITY PACKAGE OR MARKET RESEARCH
12.1 BOLTER DESIGN's fee for graphic designs, a corporate identity package or market research shall be a single fee as specified in the Letter of Engagement.
12.2 Such fee will be payable in three instalments as follows:
12.2.1 40% on the engagement of BOLTER DESIGN for such work.
12.2.2 40% by way of interim payment on presentation of an invoice by BOLTER DESIGN at a time to be determined by BOLTER DESIGN at any time during the progress of the design work.
12.2.3 20% on production of work covered by such fee.
13.0 TIME CHARGES AND EXTRA WORK
13.1 If the project requires prototype work, graphic work or artwork, such work will be charged to the client on a time charge basis. Extra work and expense caused to BOLTER DESIGN resulting from delay in receiving payments or instructions, delays in the project caused by the client or any third party, changes in the client’s instructions, changes in the law, regulations or interpretation thereof or any other cause whatsoever beyond the control of BOLTER DESIGN shall be charged to the client in addition to all other fees.
13.2 Any such fees or charges as are described in clause 13.1 will be charged on a time charge basis at BOLTER DESIGN’s current standard hourly rates from time to time, details of which are available on request from BOLTER DESIGN and may be invoiced monthly.
14.1 In addition to the agreed fees the client shall pay all expenses and disbursements incurred in providing the design services including (but not limited to):
14.1.1 The board and subsistence of BOLTER DESIGN’s employees or consultants when they are away from BOLTER DESIGN’s offices or their home; and
14.1.2 All fares incurred in connection with the provision of the services hereunder (first class rail and business class air) and including the current standard mileage charges of BOLTER DESIGN where its vehicles are used (details of such standard charges from time to time are available upon request); and
14.1.3 Any printing, photographs, artwork, copying, telefax, postage and other communication costs and
cost of maps, documents, research materials, visual representations, prototypes and fees for obtaining or researching records; and
14.1.4 Fees paid in respect of planning or building regulations consent (or similar) and fees incurred with the client’s approval with consultants (including but not limited to legal, field work, market research, or building services).
14.2 An administration charge equal to 15% of the value of any disbursements chargeable under clause 14.1 or any liability under clause 17.3 will be payable by the client in addition thereto.
15.0 PAYMENT OF FEES
15.1 All fees and other sums due to BOLTER DESIGN hereunder shall be subject to Value Added Tax (where applicable) and shall be paid in sterling at BOLTER DESIGN’s offices within 14 days of the date of the invoice.
16.1 BOLTER DESIGN shall not be liable for failure of the actual costs of implementing any designs to comply with any estimate of costs whether or not such estimate was prepared by BOLTER DESIGN. The client is advised to employ the services of a quantity surveyor where appropriate.
16.2 BOLTER DESIGN’s aggregate liability (including liability for breach of contract, negligence, whether in tort, contract or loss of any kind) arising out of BOLTER DESIGN’s obligations under these Terms in respect of any matter (or a series of connected matters) arising out of BOLTER DESIGN’s duties hereunder shall be limited to £500,000.
16.3 BOLTER DESIGN shall not be liable for (i) any loss (direct or indirect) of profits, goodwill or business, loss of revenue and loss of opportunity costs whether or not BOLTER DESIGN is aware of the possibility of such loss, nor shall BOLTER DESIGN be liable for (ii) any consequential loss or damage whatsoever and howsoever arising.
16.4 BOLTER DESIGN shall not be responsible for any delay in performance or non-performance in whole or in part of
its obligations to the client under this agreement if such delay in performance or non-performance is due to any cause beyond the control of BOLTER DESIGN including, but not limited to, act of God, war, insurrection, riot, civil commotion, government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire, tempest (“Force Majeure Event”, or failure by consultants or subcontractors to honour their obligations to BOLTER DESIGN. To the extent that BOLTER DESIGN’s expenses are increased due to the occurrence of a Force Majeure Event, BOLTER DESIGN shall be entitled to full reimbursement from the client of such additional expenses.
16.5 The client will indemnify and keep indemnified BOLTER DESIGN in respect of any loss, injury, damage, expense or third party claim arising from the implementation of the design services save and insofar as any such loss, injury, damage, expense or third party claim is solely and exclusively attributable to the negligence of or breach of this contract by BOLTER DESIGN.
16.6 The client will indemnify BOLTER DESIGN on demand against all costs and expenses (including legal expenses) incurred by BOLTER DESIGN in connection with recovering fees and other amounts owed by the client to BOLTER DESIGN.
16.7 Each foregoing sub-clause of this clause shall constitute a separate and severable agreement and shall survive the termination, completion or avoidance of this agreement. The provisions of this clause shall be for the benefit of BOLTER DESIGN and every servant, agent and subcontractor of BOLTER DESIGN.
17.0 CONTRACT WITH THIRD PARTIES
17.1 Without prejudice to BOLTER DESIGN’s rights to appoint persons on a sub-contract basis, BOLTER DESIGN may with the prior approval of the client, engage consultants being architects, consulting engineers, quantity surveyors and/
or other appropriate consultants in connection with the project. In effecting such engagements BOLTER DESIGN shall [notify the client that it is] acting as agent for the client who shall be the employer of all such consultants.
The client will hold each consultant, and not BOLTER DESIGN, responsible for the competence and performance of the obligations of that consultant. BOLTER DESIGN will have the authority to co-ordinate and integrate into the overall design the services provided by any such consultants. The fees of such consultants shall be paid by the client.
17.2 If BOLTER DESIGN as agent for or for the benefit of the client signs or enters into contracts with contractors, suppliers, consultants or professional advisers, the client shall indemnify and keep indemnified BOLTER DESIGN against all actions, claims, costs or demands by any such contractor, supplier or consultant. BOLTER DESIGN shall not be
liable for any breach of contract, negligence or breach of duty by such contractors, suppliers, consultants or professional advisers.
17.3 If BOLTER DESIGN shall incur any liability to a contractor, supplier or consultant on behalf of or for the benefit of the client then the client shall forthwith upon demand pay to BOLTER DESIGN the amount of such liability and the provisions of clause 14.2 shall apply thereto.
17.4 BOLTER DESIGN shall have the right without requiring consent, to sub-contract or delegate any of its obligations under these Terms of Engagement. [Where BOLTER DESIGN acts as agent for the client under clause 17.1 it shall do so only by agreement].
18.0 COPYRIGHT AND INTELLECTUAL PROPERTY
18.1 BOLTER DESIGN shall retain the property in all the copyright and other intellectual property in the designs, specifications, plans, elevations and drawings produced by BOLTER DESIGN (“BOLTER DESIGN Materials”) including all the work executed from the BOLTER DESIGN Materials. No part of the BOLTER DESIGN Materials may be reproduced without BOLTER DESIGN’s prior written consent.
18.2 Where BOLTER DESIGN has produced other designs for the client related to the interior or exterior of a particular property, and the client having paid the design fees therefore in full, then (subject to clause 19) BOLTER DESIGN grants to the client a personal non-exclusive non-assignable licence to use such design for that particular property. 18.3 Any other use of BOLTER DESIGN’s designs (including graphics designs, designs forming part of a corporate identity package or use of property designs outside the licence specified in sub-clause 18.2) require the prior written licence of BOLTER DESIGN which will be subject to agreement and payment of a further fee for design implementation.
18.4 BOLTER DESIGN does not warrant the existence of any exclusive copyright, industrial design right or similar exclusive intellectual property in the designs provided hereunder. BOLTER DESIGN cannot warrant the client’s right to use any trading name or trade or service mark proposed by BOLTER DESIGN and the client should seek advice on the trade or service mark proposed by BOLTER DESIGN and the client should seek advise of trademark agents before using such name or mark.
18.5 For the avoidance of doubt where BOLTER DESIGN is involved in design or creative work for the client on terms
that BOLTER DESIGN is to be paid a fee for the future reproduction, alteration or use of such design or creative work the licence granted under clause 18.2 (or clause 18.3 where applicable) shall be conditional on all such future fees being paid.
18.6 The client acknowledges that damages may be not be an adequate remedy for breach of BOLTER DESIGN’s intellectual property rights and that BOLTER DESIGN shall be entitled to seek injunctive relief in relation to any infringement of those rights.
19.1 BOLTER DESIGN may terminate this contract without prejudice to any of the rights of either party hereunder if a bankrupt petition shall be presented against the client or if the client shall become insolvent, have an administrative receiver appointed over all or part of its assets or if it shall call a meeting of its creditors with a view to entering into liquidation or have a winding-up petition presented against it or shall petition for an administration order or if the client shall fail to make payment of any sum due hereunder on the due date or otherwise be in material breach of this agreement.
19.2 Upon such termination:
19.2.1 BOLTER DESIGN shall not be required to provide any further design services, and
19.2.2 Any licence granted to the client to use any design or other work or copyright work of BOLTER DESIGN shall forthwith terminate, and
19.2.3 BOLTER DESIGN shall be entitled immediately to payment in full for the Design Services.
20.0 RESTRICTION RELATING TO BOLTER DESIGN’S STAFF
20.1 The client shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the latest to occur of (a) the completion of the Design Services (b) the last date of supply of the Design Services and (c) termination of this agreement, do any of the following things and the client shall ensure that no Client Group Company does any of the following things, namely: 20.1.1 solicit or entice away from BOLTER DESIGN or employ or attempt to employ or engage as a consultant or sub contractor any person who is, or has been, engaged as an employee, consultant or subcontractor of BOLTER DESIGN who was engaged in the provision of the Design Services, or
20.1.2 encourage any employee, consultant or subcontractor of BOLTER DESIGN who was engaged in the provision of the Design Services to terminate their engagement with BOLTER DESIGN or otherwise to seek to vary the terms of their employment or contract with BOLTER DESIGN.
20.2 Each sub clause of clause 20.1 shall be a separate and severable obligation on the part of the client. Whilst each of the above restrictions are considered by the parties to be reasonable if any of such restrictions shall be judged to be void as unreasonable for the protection of BOLTER DESIGN’s legitimate interests but would be
valid if the period of the restriction were reduced or some other term of the restriction were modified then the restrictions contained in clause 20.1 shall be deemed to apply with such modification(s) as may be necessary to make them valid. This clause 20 shall continue to apply notwithstanding termination of this Agreement howsoever arising.
20.3 For the purposes of this clause 20 Client Group Company means any company which for the time being is a company having an ordinary share capital (as defined in Section 832 of the Income and Corporation Taxes Act 1988) of which not less than 25 per cent is owned directly or indirectly by the client or its holding company applying the provisions of Section 838 of the Income and Corporation Taxes Act 1988 in the determination of ownership.
21.1 This agreement represents the entire agreement between the parties hereto and any representations made by BOLTER DESIGN are expressly excluded unless specifically incorporated into this agreement.
21.2 No variation to these terms or the Letter of Engagement shall be binding upon BOLTER DESIGN unless contained in a written document signed by a director of BOLTER DESIGN.
21.3 In the case of discrepancy between these terms of engagement and the letter of engagement, the latter shall prevail.
21.4 BOLTER DESIGN may exhibit a notice board at any premises where designs are being implemented. BOLTER DESIGN may take and make full use of photographs of such implemented designs.
21.5 The client will at its own cost effect and maintain such insurance as may be required in respect of implementation of the design services.
21.6 BOLTER DESIGN shall be authorised in the case of urgency or minor alterations to make variations in the plans, designs, specifications or other documents without the prior authority of the client. BOLTER DESIGN shall inform the client of such variations as soon as practicable thereafter.
21.7 The parties do not intend that any term of this agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party hereto.
22.0 CONSTRUCTION AND THE LAW
22.1 In construing this agreement, all clause headings shall be ignored.
22.2 If the client consists of more than one individual, corporation, or other entity then their obligations shall be joint and several.
22.3 No failure by either party to exercise its rights hereunder shall be a waiver of such rights.
22.4 Any certificate issued by BOLTER DESIGN under these terms of engagement or the Letter of Engagement shall be final and binding as between BOLTER DESIGN and the client, in the absence of any manifest error.
22.5 This agreement shall be governed by the laws of England and Wales and any dispute shall be determined by the courts of England and Wales and shall be tried in London.