ADAM FAHEY DESIGN LIMITED (AFD)– TERMS AND CONDITIONS – DESIGN AND PLANNING
1. Exercise reasonable skill and care in performing the services in accordance with the normal standards of the Architect’s profession.
2. We act as the Customer’s representative and act fairly when dealing between Customer and any other party.
3. Provide advice on compliance with statutory requirements.
4. Co-operate with other persons appointed, co-ordinate and integrate their work and pass relevant information to them.
5. Make no material alteration to the Services or the approved design without the consent of the Customer, except in an emergency or where required to do so by statutory bodies.
6. Advise on progress in the performance of the Services and of any issue that may affect the programme, the cost, or quality of the project.
7. Subject to matters beyond AFD’s reasonable control, AFD shall use reasonable endeavours to perform the services in accordance with an agreed programme and any changes to the services or programme agreed with AFD from time to time. AFD cannot guarantee that any programme will be fully adhered to where external forces, consultants, Local Authority, Regulatory Bodies, Specialists, Manufacturers etc are required to feed into this programme.
Target and Cost:
8. AFD cannot guarantee that any target or budget cost, or the timetable will be met, particularly where approvals from other parties, such as planning permission, building regulation approval, listed building and conservation consent are required, nor the performance, work or the products of others.
9. Prices for all works, except where stated, are subject to the addition of VAT at the prevailing rate;
10. The estimate is valid for 30 days from the date of the estimate. Thereafter AFD may at its discretion change the price.
11. All prices are subject to review upon alterations/amendments to original specification.
12. All payments are to be made by cheque or electronic CHAPS or BACS transfer to AFD.
13. A non-refundable deposit of 30% of the estimate price is required to be paid in advance before the works can commence; completion payment terms are to be outlined within the deposit invoice.
14. If the customer causes delays to the works (either before or during the performance of the works) or cancels all or part of the works, AFD has the right to the full contract sum, including the non-returnable deposit, unless detailed otherwise in the deposit invoice.
15. Any payment that is countermanded or fails to be honored will be subject to the application of an administration and interest charge of the greatest 10% of the countermanded or dishonored payment or £250.
16. Payments subsequent to a countermanded or dishonoured cheque or other payment must be made by cash or banker’s draft. Works will be suspended until overdue payments are received and cleared. Late payments will be subject to an interest charge of 5% per calendar month above Bank of England base rate.
17. Payment of the deposit signifies the Customer’s agreement to these Terms and Conditions.
18. All additional services shall be approved by the Customer and AFD in writing prior to proceeding.
19. The following activities do not form part of the Services unless identified as ‘Other Services’ in writing:
• Costing of the proposed works, other than a superficial costing based on an mÇ rate.
• Models and special drawings.
• Making submissions to and negotiating approvals by landlords, freeholders, etc.
• Preparing a schedule of dilapidations.
• Services in connection with Party Wall negotiations.
• Negotiating a price with a contractor (in lieu of tendering).
• Services in any dispute between the Customer and another party.
• Services following damage by fire and other causes.
• Services following suspension, termination of any contract or agreement with, or the insolvency of any other party, providing services to the project.
• Services in connection with the government and other grants.
• Master Planning.
• Redesign to meet project budget costs. The Customer is responsible to establish project budget costs and obtain required cost estimates, other than indicative costs.
• Interior Design Services. Unless specified in the deposit invoice.
Fees for Additional Services
20. AFD may provide additional services beyond other than Design and Planning, by a negotiated sum or on an hourly basis. The hourly rate is £90 and is valid for 1 calendar year (1 January – 31 December) and will apply to all projects within that calendar year. These shall be reviewed annually and if deemed necessary, shall be increased on the first day of the subsequent year to reflect market conditions, employee benefits and salary compensation.
21. Reimbursable expenses shall include, but not be limited to: printing, reproductions, bulk copying, photographic services, long distance telephone calls, postage, shipping, delivery, long distance travel expenses, lodging, meals and/or other project related out-of-pocket expenses. Items shall be reimbursed to AFD at cost plus two and a half percent (2.5%), unless a specific cost is listed below:
Large format prints:
Size Colour Black & White
• A0 £7.00 £1.00
• A1 £ 4.50 £ 0.60
• A2 £ 3.50 £ 0.45
• A3 £ 0.75 £ 0.75
• A4 £ 0.20 £ 0.20
22. Large format prints A0-A2 printed by third party, there is a min. cost for A2-A0 £5.00 plus £5.00 delivery fee.
23. We would expect to incur and pass on to you a charge of approximately £45.00 (including VAT) to purchase Ordnance Survey data in order to prepare location plan drawings that are necessary for the Planning and Building Regulation applications. If the cost is more than this, this will be confirmed with the Customer in advance of purchase.
24. It might be necessary to appoint other consultants throughout the project, to ensure completion of the design. For example these may include, but are not limited to, structural engineers, mechanical engineers, kitchen designers, landscape designers, interior design consultants, audio/video consultants, lighting designers, etc. The above consultants will be engaged and paid directly by yourselves. We would of course help you to commission such consultants and would provide them with any information that they require.
25. The Customer is responsible for the payment of all fees for statutory application, including but not limited to, all types of Planning and Listed Building Applications, Building Regulations Application etc.
The Customer shall:
26. Advise AFD of the requirements and of any subsequent changes required;
27. Shall supply to AFD in a timely fashion, without charge, all necessary and relevant information in the possession of the Customer or any of the Customer’s Agents, consultants or contractors.
28. Give decisions and all necessary instructions, consents or approvals necessary for the performance of the Services.
29. AFD shall rely on such information provided by the Customer as above. AFD shall not be liable for the consequences of any delays to the services arising from any failure by the Customer to comply with these obligations.
30. Customers should not deal with the contractor or contractors directly or interfere with AFD’s duties or actions under the building contract, where a Building Contract is in place and we are the Contract Administrator.
31. Hold the contractor or contractors responsible for the proper carrying out and completion of construction works and for health and safety provisions on the site. It is expected that contractors/builders appointed will be competent members of their profession.
32. Where we are working with Sub consultants under a Framework agreement they will be required to provide us with copies of their Professional Indemnity Insurance cover and other insurances on an annual basis to comply with the terms of the Framework agreement.
Copyright and Licence
33. AFD owns the copyright in the drawings and documents (including material in electronic format) produced in performing the Services, this shall remain vested in AFD. Unless specified in the deposit invoice.
34. The Customer shall have a licence to copy and use the drawings only for purposes related to their project providing that all fees and/or other amounts due are paid in full.
35. The Customer will only have a licence to use drawings for their intended purpose, ie drawings prepared for a Planning Application would only be valid for this purpose and should not be used for construction, as it will be necessary to add additional information to the drawings for the purposes of Building Regulation Approval, other Regulatory Approvals and Construction information.
36. Drawings produced for one Customer are not transferable to another Customer as our appointment would rest with the original Customer.
37. In the event of the Customer being in default of payment of any fees or other amounts due, AFD will revoke the licence herein granted. AFD shall not be liable for the use by any person of such drawings or other documents for any purpose other than that for which the same were provided by AFD.
38. Neither party shall disclose to any other person any private or confidential information concerning the business of the other party unless so authorised by the other party.
Liability and Insurance
39. Professional Indemnity. Notwithstanding anything to the contrary the total liability of AFD under or in connection with its appointment whether in contract or in tort or in negligence or breach of statutory duty or otherwise (other than in respect of personal injury or death) shall not exceed the sum £1,000,000 for any single claim.
40. AFD’s liability for any claim or claims shall further be limited to an amount apportioned to the amount of the target cost for the building work relating to architectural elements of the Design, and be superseded by the tendered agreed and signed contract sum once the contract for Building Work is signed between the Customer and Contractor.
Limits of Liability
41. AFD is not responsible under this agreement or otherwise for advising on matters wholly, partly, directly or indirectly arise out of or result from asbestos or other deleterious material (including without limitation the costs of testing for, monitoring, abatement, mitigation, removal, remediation or disposal of any products or waste that contain such deleterious materials)
42. AFD is not responsible under this agreement or otherwise for designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action that may be taken in controlling preventing, supressing or any way relating to an act of terrorism.
Local Authority Dealings:
43. AFD cannot guarantee that, Planning, Listed Building, Conservation Area Consent/ approval will be achieved on any project.
44. There are occasions where a Customer’s specific requirements are at variance with planning or design policy in a particular area, and subsequent amendments have been necessary following the submission of the scheme to the
Local Authority, or indeed another application may need to be submitted.
45. We would use our best endeavours to avoid this at design stage, and would try to advise when difficulties could be anticipated. We do, however, reserve the right to charge for our time amending or redrawing the proposal should it ultimately prove a necessity.
46. We would draw your attention to the fact that Local Authorities now request an increasing amount of supporting documents to be submitted with Planning Applications, the exact extent of this information is subject to both Nationaland Local requirements; b u is also subject to the demands of Planning Authorities and officers. What one local Authority may demand is not necessarily what an adjacent authority would equally demand.
47. AFD cannot therefore guarantee that all supporting documents or information requirements will be known at the time an application is submitted.
48. AFD will liaise with other consultants to assist in obtaining supporting documentation, but cannot be held responsible for the time and extent that gathering such information may entail. The Customer should note that the Planning
Authority will not register a planning application until all supporting documentation is received.
49. Where it becomes necessary to Appeal a Planning or Listed Building Consent Decision we will advise you of the implications and would need to charge for the time to prepare any appeal and the supporting documents and statements necessary to submit the Appeal.
50. This may include recommending the appointment of a Planning Consultant to deal with specific Planning Policy issues, there are projects where policy issues would warrant this additional service.
Building Regulation and other Statutory Approvals
51. AFD cannot guarantee that Building Regulation Approval will be achieved on any project; it should be noted that additional costs may be incurred. The Building Regulations and Other Statutory regulations are open to interpretation by each officer. Policy and regulation changes can affect the final outcome of a project, as well as the constraints of the Building, Environment, Site Conditions, Services, Other Consultants input.
52. It should be noted where dealing with the refurbishment, extension and alteration of existing buildings, that there can be many factors which can develop during the course of a project which would require additional detailing, or changes to the specification and detailing initially envisaged. This can be as a result of many factors such as cost, specification, manufacturer’s requirements, LA requirements, site conditions, unforeseen elements, building condition or construction uncovered during the works, and interpretation of the regulations.
53. We will not submit Planning Applications, Listed Building Applications or Building Regulation applications until the fee outlined in the deposit invoice has been paid in full.
54. We will not release any final Reports or other Schedules, Specifications or Documents on any project until the relevant fee associated with the production of the report is paid in full. Where reports are issued they will be heavily edited as DRAFT format.
55. The Customer is responsible for the separate payment of Consultant, Specialist, Local Authority/Approved Inspector fees for each project. We will advise you of the fee at the appropriate stage of the project.
56. Where a Fee is calculated on a percentage basis, the percentage or percentages stated in the fee proposal shall be applied to the final cost of the building work, excluding VAT, fees and any claims made by or against the contractor or contractors. The percentages will be applied to the current cost estimate, or accepted tender, or the contract sum until the final contract sum has been ascertained.
57. AFD reserves the right not to continue with Services for the next stage of a project until the fee for the previous stage of the project has been paid by the Customer. AFD also reserves the right not to proceed with work on a separate project, where the fees/or proportion of same for another project with the same Customer remain unpaid.
58. If AFD has to carry out additional work and/or suffers delay or disruption in the performance of the Services for reasons beyond their reasonable control the Customer shall make an additional payment to AFD in respect of the additional work carried out and the additional resources employed and/or the delay and disruption suffered.
59. Additional fees shall be payable to AFD for reasons beyond AFD’s control, if they are involved in extra work or incurs extra expense, including requests by Customers to amend layouts, details and design.
Suspending or ending the Agreement:
60. The Customer or AFD can suspend or end performance of any or all of the Services by giving at least 7 days’ written notice of the intention and stating the reason for doing so.
61. If the reason for the notice arises from a default and the recipient does not remedy the matter, the agreement will end on expiry of the notice period.
62. Where Services are suspended by the Customer and not resumed within 3 months AFD shall have the right to treat performance of the Services affected as ended on giving written notice to the Customer.
63. Where services are suspended or terminated, we will be entitled to keep any papers, drawings and other documents, whilst there is money owing to us for our fees and expenses.
64. If at any stage you do not wish us to continue doing work or suspend working for a period of time, you must tell us clearly in writing.
65. If we decide to withhold services from you; for example if you do not pay an interim invoice or comply with a request for payment on account, we will tell you the reason and give you notice in writing.
66. AFD/The Customer may terminate the appointment in the event of breach of these terms by the other party or in the event of insolvency by providing two weeks written notice.
67. In these terms ‘insolvency’ shall mean either party becoming bankrupt, going into liquidation (either voluntarily or compulsory except as part of an amalgamation), being dissolved compounding with its creditors or having a receiver, administrative receiver appointed of the whole or part of its assets.
68. If circumstances arise for which AFD are not responsible and which AFD considers to make it irresponsible for them to perform any part of the service, they shall be entitled to terminate the appointment by two weeks’ notice.
69. In the event of any termination the Customer shall pay AFD a fair and reasonable amount on account of the fees due for the Services performed to the date of such termination and any outstanding expenses.
70. In the event of a dispute or difference arising under an appointment, this should be in writing.
71. We hope we shall be able to settle the matter by negotiation or mediation. Alternatively, either of us can start court proceedings to settle the dispute at any time
72. Or either of us can have disputes decided within 21 days by an adjudicator appointed under the Consumer
73. The parties shall attempt in good faith to settle any dispute of mediation.
Notice in Writing
74. Any notice given in connection with AFD’s appointment shall be in writing and given by sending the same by first class letter to the Customer or AFD at the address shown.
75. The law applicable to this Agreement shall be the law of England.
77. Information we collect: We collect information about you if you make an enquiry as a potential Customer, or we do business with you as a Customer, Consultant, contractor, sub Contractor, Supplier, Manufacturer
78. Use of Information: Any information we collect may be used to:-
• Respond to you via your supplied contact details, you may choose to be contacted via email, or post
• Respond to you about projects by email or telephone
• The information you provide us with will be used to personalise our services to suit your individual or company’s needs, for instance we Design Buildings to suit our Customer’s needs and aspirations.
• To improve our website – we aim to improve our website and the information we publish so that it provides information on our projects and the services we provide.
• From time to time we may send emails or correspondence about our practice, news, or service information
Personal Information We Use:
79. We use a variety of personal information depending on the services we deliver to you. For all our services we need your name, address, contact details, to allow us to locate your premises /land. For some services we might need additional information for example:-
• Bank details for payments.
• Information to allow us to check your identity and information about your credit history
• Proof of identity – and money laundering
• Fraud prevention, and to meet legal obligations
• Any other information that is relevant to be able to provide the contracted services to you, meet or enforce legal obligation or where it is fair and reasonable for us to do so.
• On some projects we may ask for information relating to medical or disability conditions for instance where we are designing buildings that need to be tailored to suit those needs, and the needs of occupants and visitors to a building we are designing.
80. Disclosure of Information: We do not sell, trade or otherwise transfer to other parties any personal information. This does not include trusted third parties who act as regular consultants, or who assist us in the operation of our business, website, or services we provide to you.
81. Such trusted third parties may have access to personally identifiable information on a need to know basis and will be contractually obliged to keep your information confidential.
82. Consent and Legal Basis: By appointing AFD and the services we provide you are consenting to us contacting you and using the information you provide us to carry out the Services you are appointing us to carry out.
83. We only use your personal information where permitted by law. Where:-
• We have your consent (if consent is needed);
• We need to use the information to comply with our legal obligations
• We need to use the information to perform a contract with you: and/or
• It is fair and reasonable to use your personal information either in our interests or someone else’s interests where there is no disadvantage to you. This can include where it is in our interests to contact you about services, market to you, or collaborate with others on a project or to improve our services.
Where we have your consent, you have the right to withdraw it.