1.1 The following definitions shall apply in these terms, unless the context otherwise requires:
The term SZ means Sound Zero Ltd, whose registered offices are at 12e Manor Road, London, N16 5SA, United Kingdom and whose trading address is Unit C1 A, Kerry Avenue, Purfleet Industrial Park, London Road, RM15 4YA, United Kingdom.
Professional Services means the services specified in the quotation previously submitted and accepted by the client covering all of the following services; namely site visits, acoustic reports, design, digital media, consultancy services and market research and such other services, (if any) as are described in the original quotation and or letter of engagement.
Design Stage is the time when SZ has completed the production of the initial plans and elevations in accordance with the design/ project brief for the premises.
Documentation Stage is the time when SZ 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 the SZ design and installation on the premises.
Goods means any products or materials supplied and installed by SZ as part of the written contract and or quotation which are to be delivered to the client site/s.
Effective Completion means that stage at which works to carry is completed by SZ and are free from known substantial omissions and shall be certified by SZ as completed.
Gross Contract Value means the estimated cost, as certified by SZ from time to time, of the works to be carried out and the goods to be supplied to implement the SZ design and installation brief/quotation on the client premises. The Gross Contract value shall include all amounts including design, consultancy, product and labour costs.
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 the SZ contract, SZ 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..
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 sub-contractors or suppliers for any cause.
1.2.2 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 SZ in writing for this purpose.
2.0 SZ Undertaking
2.1 SZ will provide the design, consultancy, product supply and installation services to the client subject to contract using such reasonable skill and care as is expected of a competent acoustic product supplier and installer undertaking the services and other obligations hereunder.
3.0 Designer’s Services—Premises
3.1 In accordance with information and instructions given by the client, SZ will produce a design for the client’s premises. Such services will be in accordance with the original written quotation and or brief provide to the client and will include such of the following as are, in the opinion of SZ 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 materials, fixtures, attending meetings and when necessary or required by the client, the production of design and product samples.
4.0 Design Implementation
4.1 SZ will advise on the implementation of the designs. Design implementation will include such of the following as are, in the opinion of SZ required by the project:
4.1.1 Giving advice on the selection of acoustic products to implement the de-signs.
4.1.2 Making applications for any planning permissions and statutory consents from project management and or landlords.
4.1.3 When required preparing documentation and detailed drawings to enable tendering or negotiation to take place to implement designs.
4.2 If SZ is required to pursue at 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 SZ will supervise the implementation and installation of the acoustic products including periodic on-site inspections. SZ will monitor the performance of its employees and or contractors in the implementation of the acoustic products to the extent reasonably required by the client.
5.2 SZ will implement procedures for the control of quality, cost and programme progress of its employees and or contractors within the scope of SZ project brief.
5.3 SZ will report to the client with reasonable frequency on significant aspects of the project supervision.
6.0 Site Access
6.1 The Client will ensure that SZ employees and or contractors have site access including vehicular access.
6.2 The Client will ensure the site is clean, free from obstruction and all other building works are completed.
6.3 SZ is NOT a building or construction company and therefore its staff and contractors are not required to carry or produce CSCS Cards.
7.1 In the case where the client fails to ensure access for SZ staff and or its contractors to the site whereby they are prevented from undertaking the installation on the date/s agreed in writing by the client then a penalty clause will be implemented, the penalty payment will be calculated on a daily rate based the cost of providing labour, equipment and transport to and from the site.
7.2 If SZ products are damaged by third parties and or the client’s subcontractors then the client will have to reimburse SZ the cost of replacing and installing the damaged products.
8.0 Site Security
8.1 The client will be responsible for ensuring that all SZ supplied product and equipment left overnight on site is secure.
8.2 The Client undertakes to take all reasonable steps to prevent the theft of SZ product and equipment from the site.
8.2 Any loss of SZ supplied products and equipment due to negligence on the part of the Client or a failure to provide adequate security will result in SZ seeking reimbursement for the losses of all products and equipment off the site.
9.0 Special Provisions
9.1 SZ Acoustic Products are secured using specialised adhesives which require a minimum 24 (twenty four) hour curing period after installation, failure by the client to adhere to the 24 curing period may result in the acoustic material failing to bond, this in turn may result in the acoustic product parting from the wall/ceiling surface.
9.2 In the case of the client failing to implement item 9.1 SZ may have to return to the client’s site to reinstall the acoustic material, this will result in a further charge being levied covering labour, materials and transport to and from the client’s site.
10.0 Time Charges and Extra Work
10.1 If the project requires additional work over and above that detailed within the original quote or brief then the client will be charged on a time charge basis. Extra work and expense caused to SZ 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 SZ shall be charged to the client in addition to all other fees.
10.2 Any such fees or charges as are described in clause 10.1 will be charged on a time charge basis at SZ current standard hourly rates from time to time, details of which are available on request from SZ and may be invoiced monthly.
11.1 In addition to the agreed fees the client shall pay all expenses and disbursements incurred in providing the design & consultancy services including (but not limited to):
11.2 The board and subsistence of SZ employees and or consultants when they are away from SZ offices or their home; and
11.3 All fares incurred in connection with the provision of the services hereunder (Second Class rail and Economy class air) and including the current standard mileage charges of SZ where its vehicles are used (details of such standard charges from time to time are available upon request); and
11.4 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;
11.5 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).
11.6 An administration charge equal to 15% of the value of any disbursements chargeable under clause 11.1 or any liability under clause 7.1/2 will be payable by the client in addition thereto.
12.0 Payment of Fees
12.1 All fees and other sums due to SZ hereunder shall be subject to Value Added Tax (where applicable) and shall be paid in sterling at SZ offices within 7 days of the date of the invoice.
12.2 SZ shall not be liable for failure of the actual costs of implementing any acoustic materials to comply with any estimate of costs whether or not such estimate was prepared by SZ. The client is advised to employ the services of a quantity/building surveyor or acoustic engineer where appropriate.
12.3 SZ aggregate liability (including liability for breach of contract, negligence, whether in tort, contract or loss of any kind) arising out of SZ obligations under these Terms in respect of any matter (or a series of connected mat-ters) arising out of SZ duties hereunder shall be limited to £10,000.
12.4 SZ shall not be liable for (i) any loss (direct or indirect) of profits, good-will or business, loss of revenue and loss of opportunity costs whether or not SZ is aware of the possibility of such loss, nor shall SZ be liable for (ii) any consequential loss or damage whatsoever.
12.5 SZ 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 SZ 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 SZ . To the extent that SZ expenses are increased due to the occurrence of a Force Majeure Event, SZ shall be entitled to full reimbursement from the client of such additional expenses.
12.6 The client will indemnify and keep indemnified SZ 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 SZ.
12.7 The client will indemnify SZ on demand against all costs and expenses (including legal expenses) incurred by SZ in connection with recovering fees and other amounts owed by the client to SZ .
12.8 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 SZ and every servant, agent and subcontractor of SZ.
13.0 Contract with Third Parties
13.1 Without prejudice to SZ rights to appoint persons on a subcontract basis, SZ 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 SZ 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 SZ responsible for the competence and performance of the obligations of that consultant. SZ will have the authority to coordinate and integrate into the overall design the services provided by any such consultants. The fees of such consultants shall be paid by the client.
13.2 If SZ 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 SZ against all actions, claims, costs or demands by any such contractor, supplier or consultant. SZ shall not be liable for any breach of contract, negligence or breach of duty by such contractors, suppliers, consultants or professional advisers.
13.3 If SZ 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 SZ the amount of such liability and the provisions of clause 12.3 shall apply thereto.
13.4 SZ shall have the right without requiring consent, to subcontract or delegate any of its obligations under these Terms and Conditions [Where SZ acts as agent for the client under clause it shall do so only by agreement].
14.0 Copyright and Intellectual Property
14.1 SZ shall retain the property in all the copyright and other intellectual property in the designs, specifications, plans, elevations and drawings produced by SZ (“SZ Materials”) including all the work executed from the SZ Materials. No part of the SZ Materials may be reproduced without SZ prior written consent.
14.2 Where SZ has produced other designs for the client related to the interior or exterior of a particular property, and the client having paid the consultancy/design fees therefore in full, then (subject to clause 15) SZ grants to the client a personal non-exclusive non-assignable licence to use such design for that particular property.
14.3 Any other use of SZ designs (including graphics designs, designs, pans , technical drawings, forming part of a corporate identity package or use of property designs outside the licence specified in sub-clause 14.2) require the prior written licence of SZ of a further fee for design implementation.
14.4 SZ does not warrant the existence of any exclusive copyright, industrial design right or similar exclusive intellectual property in the designs provided hereunder. SZ cannot warrant the client’s right to use any trading name or trade or service mark proposed by SZ and the client should seek advice on the trade or service mark proposed by SZ and the client should seek advice of trademark agents before using such name or mark.
14.5 For the avoidance of doubt where SZ is involved in design or consultancy work for the client on terms that SZ is to be paid a fee for the future reproduction, alteration or use of such design or creative work the licence granted under clause 14.2 (or clause 14.3 where applicable) shall be conditional on all such future fees being paid.
14.6 The client acknowledges that damages may be not be an adequate remedy for breach of SZ intellectual property rights and that SZ shall be entitled to seek injunctive relief in relation to any infringement of those rights.
15.1 SZ 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.
15.2 Upon such termination:
15.2.1 SZ shall not be required to provide any further design services, and
15.2.2 Any licence granted to the client to use any design or other work or copyright work of SZ shall forthwith terminate, and
15.2.3 SZ shall be entitled immediately to payment in full for its Services.
16.1 These Terms & Conditions represents the entire agreement between the parties hereto and any representations made by SZ are expressly excluded unless specifically incorporated into this document.
16.2 No variation to these terms or the Letter of Engagement shall be binding upon SZ unless contained in a written document signed by a director of SZ.
16.3 In the case of discrepancy between these terms and conditions and the letter of engagement, the former shall prevail.
16.4 SZ may exhibit a notice board at any premises where designs are being implemented. SZ may take and make full use of photographs of such implemented designs.
16.5 The client will at its own cost effect and maintain such insurance as may be required in respect of implementation of the design services.
16.6 SZ 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. SZ shall inform the client of such variations as soon as practicable thereafter.
16.7 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.
17.0 Construction and the Law
17.1 In construing this agreement, all clause headings shall be ignored.
17.2 If the client consists of more than one individual, corporation, or other entity then their obligations shall be joint and several.
17.3 No failure by either party to exercise its rights hereunder shall be a waiver of such rights.
17.4 Any certificate issued by SZ under these Terms and Conditions or the Letter of Engagement shall be final and binding as between SZ and the client, in the absence of any manifest error.
17.5 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.