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Terms and Condition of Trading - MCA Design

TERMS AND CONDITIONS OF TRADING

The following terms of engagement and contract apply to all work carried out by MC Architectural Design

(MCAD) on behalf of it’s client unless amended in writing by MCAD prior to work beginning.

The Client is the person, company, authority, agency or other body who instructs MCAD to carry out all the work.

The contract is between the Client and MCAD.

1. Basis and Formation of the Contract

1.1 Before work commences the scope of work for MCAD and the Client’s requirements will be defined and agreed in writing. All work will be carried out with reasonable skill and care.

1.2 Work carried out additional to that agreed will be subject to further agreement and additional fees.

2. Sub-Contracting

2.1 MCAD shall be entitled to sub-contract the performance of the whole or part of the Contract with the Client without prior notice to the Client.

2.2 MCAD contracts for and on behalf of itself and its sub-contractors.

3. Delivery of Work

3.1 Delivery of the Work shall be to the location reasonably specified by the Client.

3.2 If the Clients refuses or fails to take delivery of Work tendered in accordance with the Contract MCA shall be entitled to immediate payment in full for the Work and to store the same at the risk of the client.

4. Time for Performance

4.1 All performance times mentioned in any negotiations the Quotation or other document are approximate only and not of any contractual effect. MCAD shall not be liable for any expense loss or damage whatsoever arising directly or indirectly out of or in any way connected with any delay in performance. Late

performance does not entitle the Client to reject the Work terminate the Contract or withhold any part of the price.

5. Copyright / Design Right

5.1 Copyright in all intellectual matters, documents and drawings prepared by

MCAD and in any works executed from those documents and drawings shall, unless otherwise agreed, remain the property of MCAD. All such rights shall vest in MCAD alone and if so requested by MCAD the Client will execute a formal assignment to MCAD of all such rights. The Client is hereby granted

a non-exclusive non-assignable licence to use the Work only for the Project (which licence is revocable in the circumstances described in Clause 6.3).

5.2 If the Quotation or any variation to the Quotation states that the Client shall acquire copyright and/or design right in the Work ownership thereof shall not pass until the conditions set out in Clause 6.1 have been satisfied and any use of the Work after any of the events specified in Clause 6.3 have occurred shall constitute a breach of copyright/design.

6. Risk and Title

6.1 Notwithstanding delivery of the Work or any other provision of these Terms property in the Work (and in cases where copyright/design right is to pass to the Client under the terms of the Contract copyright/design right in the Work) shall not pass to the Client until MCAD has received in cash or cleared funds payment in full of the price for the Work and all other monies owed to MCAD by the Client for which payment is then due plus VAT and interest due.

6.2 Until such payment has been made the Client shall hold the Work in fiduciary capacity for MCAD clearly marked as MCAD property and separately from any other assets.

6.3 If prior to such payment the Client shall make default in payment, breach its obligations under this Contract, cease or threaten to cease to carry on business, enter into a Deed of Arrangement, make any voluntary arrangement with its creditors, becomes subject to an administration order, or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of and followed by a reconstruction or amalgamation), or shall be the subject of the presentation of a petition for the winding up of the Client or the appointment of an Administrator, or shall have a received appointed (whether by the Court or out of Court) of the whole or any part of the Client’s property, or if MCAD reasonably apprehends that such events are about to occur.

6.3.1 Then without prejudice to MCAD’s other rights MCAD shall be entitled to:

Cancel any Contract made with the client and/or suspend or continue delivery of the Work at MCAD’s option and/or to stop any Work in transit in each case without liability to the Client and without prejudice to MCAD’s right to recover damages for any loss sustained by it

require the Client to re-deliver the Work or any of it to MCAD on demand

re-sell the Work or any part of it and apply the proceeds towards the price and/or MCAD’s losses

enter the Client’s premises for the purpose of collecting and to collect the Work or any of it and the Client shall be responsible for all MCAD’s costs and expenses in connection with so doing;

and

6.3.2 any use of the Work thereafter shall constitute a breach of copyright/design

right.

6.4 If Work or the altered goods (as defined below) are sold or hired out by the Client the Client shall assign to MCAD its rights to recover the price or hire charges if MCAD so requires and MCAD shall have the right to trace all proceeds of sale or hire charges received by the Client through any bank or other account maintained by the Client.

6.5 Should the Client alter the Work by subjecting it to any process of incorporating it into another product or mixing them in any way then the resulting product (“altered goods”) will pass into the ownership of MCAD until payment due under all contracts between MCAD and the Client has been made in full and all MCAD’s rights hereunder shall extend to the altered goods.

7. Price

7.1 Subject to this clause the price shall be the price specified in the Quotation. Where no price has been specified the price shall be calculated by multiplying time spent on the Work by MCAD’s current hourly rate as follows:

Director : £75.00 per hour

7.2 The price specified in the Quotation is open for acceptance for three months only after which time it may be altered by MCAD without notice to the client. The Price specified in the quotation is specified on the basis that the Work will be commissioned to begin within three months after the Quotation is accepted.

7.3 Unless otherwise stated all prices are exclusive of Self employment Tax and other disbursements as specified in the Quotation. However, exceptional items, for example where lengthy journeys outside our normal catchment area are necessary or substantial printing charges have to be met, will be agreed by the Client and MCAD.

7.4 Planning Application and Local Authority consultation fees and surveys are excluded from all fee proposals and all such fees will be paid directly by the Client to the Local Authority.

7.4.1 Where a fee stage is related to a Local Authority decision, this is understood to be a Committee resolution rather than the issue of a decision notice which may be related to other legal agreements. By their very nature planning permissions cannot be guaranteed.

8. Terms of Payment

8.1 Unless otherwise specified in the Quotation where the Work is completed within one month of commencement the price will be invoiced as to 50% on instruction then 100% on submission of drawings to the Client or (if appropriate) the Approving Authority.

8.2 In cases where the Work is not completed within one month of commencement invoices will be submitted monthly for Work done to date.

8.3 Unless alternative arrangements are made in advance payment in full without retention or set off is due within thirty days of the date of MCAD’s invoice. MCAD may withdraw credit facilities forthwith if this term is not observed.

8.4 The Client shall have no right of set-off statutory or otherwise.

8.5 Receipts for payment will be issued only on request.

8.6 Payment is due on the date of the invoice and accounts should be settled in full within 14 days. Any queries must be raised in writing within 7 days of the date of the invoice. Where payment is delayed beyond the settlement date MCAD reserves the right to charge interest on overdue invoices at 4% pa above the National Westminster base rate from time to time in force per annum accruing daily from the due date until payment both before and after judgement.

9. Description, Quality, Damage to Goods

9.1 The Client shall examine the Work forthwith upon delivery and it is the responsibility of the Client in all cases to establish any errors.

9.2 Any claims that the Work is not in accordance with the Quotation or the Client’s requirements must be communicated in writing to MCAD within 14 days of delivery. The Work must be preserved by the Client intact pending investigation by MCAD.

9.3 If the Client fails to notify or report in accordance with these Terms the Work shall be deemed for all purposes to have been properly done and delivered to and accepted by the Client. The Client shall be bound to pay for the same in accordance with the Contract.

9.4 The Client shall indemnify MCAD against all damage loss costs claims and expenses arising out of any infringement of any patent registered design trademark trade name or copyright or any claim for such infringement or any claim to passing off arising out of work carried out in accordance with the Client’s instructions.

9.5 Whilst all reasonable care will be taken to research planning histories and site survey information with Local Authorities, Statutory Undertakers and other relevant bodies MCAD cannot be held liable for any errors or omissions which may result from the information supplied by these bodies.

10. Exclusion Clauses / Liability

10.1 Important This clause is without prejudice to any other exclusions or limitations of liability provided for in these Terms.

10.2 Because or the potential losses which the Client might suffer as a result of any breach of this Contract by MCAD are more readily ascertainable by the Client and because such losses could be wholly disproportionate to the Contract Price and so that MCAD can keep the Contract Price as low as reasonably possible THE PARTIES AGREE that MCAD can limit its liability in accordance with the following provisions; for the avoidance of doubt it is agreed that these limitation/exclusions provisions apply to claims no matter howsoever arising whether arising in contract or in tort or in breach of statutory duty or otherwise regardless of any act or neglect omission or commission. It is further agreed that the limitations and exclusions of liability shall ensure for the benefit of MCAD its servants / agents / sub- contractors.

10.2.1 MCAD shall have no liability whatsoever (howsoever arising) in relation to any loss or damage suffered by the Client or any third party arising from the provision of any Work pursuant to this Contract unless it was the direct result of any negligent act error or omission in the professional conduct of MCAD’s business.

10.2.2 Liability for damage caused by such negligence shall be limited to the greater of £2,000 or the amount of MCAD’s professional indemnity insurance covering the Client’s claim.

11. Client’s Obligations

11.1 The Client agrees to arrange access for MCAD and its employees onto the Project site for any purpose in connection with the Work.

11.2 The Client shall:

11.2.1 provide all material and information, which is to provide within sufficient time to enable MCAD to meet agreed / approximate delivery times and (where applicable) in legible form.

11.2.2 read, check, correct and approve all drafts submitted to it within sufficient time to enable MCAD to meet agreed / approximate delivery times.

11.3 The Client hereby warrants that all material supplied to MCAD under the Contract contains nothing which is libellous or deemed unlawful and the publication therefore will not infringe the copyright or any other rights of any third party or breach any law bye-law or regulation.

11.4 The Client will keep MCAD fully indemnified against all losses actions claims demands proceedings costs and damages arising out of or in any way connected with any breach by the Client of its obligations hereunder or any loss injury or damage for which MCA is not liable hereunder.

12. Force Majeure

12.1 MCAD accepts no liability for any failure to perform this Contract or delay arising from circumstances outside MCAD’s control.

12.2 If MCAD is prevented from performing the Contract or any part of it in the above circumstances it shall notify the Client of that fact in writing.

12.3 If the circumstances preventing performance are still continuing three months from and including the date MCAD sends such notice then either party may give written notice to the other cancelling the Contract or the part in question. Such written notice must be received whist the circumstances are still continuing.

12.4 If the Contract or any part of it is cancelled in this way MCAD shall be entitled to payment for Work actually done (or to be done under any part not cancelled). MCAD accepts no liability to compensate the Client for any loss or damage caused by the failure to deliver.

13. General

13.1 Costs: The Client repay to MCAD forthwith on demand all expenses costs or charges incurred as a result of or in any way connected with any breach of these Terms or the Contract by the Client including but not limited to legal costs on a Solicitor and own Client basis.

13.2 Notices: Any notice required or permitted to be given by either party to the other shall be in writing addressed to the other party at its registered office.

13.3 Assignment: The Client may not assign transfer charge let or sub-let or otherwise deal with its rights and obligations under these Terms. In particular without prejudice to the generality of the foregoing all Work done by MCAD is based on the Client’s instructions. Except where the Client acquires copyright / design right Work is for the exclusive use of the Client and is confidential to the Client for the purposes of the Project. The Work may be disclosed to other professional advisers in respect of the Project but it shall not be disclosed to any third party for the whole or any part of the Work. MCAD may assign its rights and obligations under these Terms without restriction.

13.4 Severability: The invalidity of any of the Terms or any part of any Term shall not affect the validity of the remainder.

13.5 Acceptance: Acceptance by the Client of the work implies acceptance of these Terms.

13.6 Heading: The headings in this document are for ease of reference only and shall not affect its construction.

13.7 Governing Law: These Terms shall be governed by and construed in accordance with the Laws of England and MCAD and the Client hereby submit to the jurisdiction of the English Courts.