Terms & Conditions
DANIEL SUTHERLAND DESIGN STUDIO LTD
STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES
In this document the following words shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions together with the terms of any applicable Specification Document;
1.2 "Client" means the organisation or person who purchases goods and services from the Consultant;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 "Specification Document" means a statement of work, quotation or other similar document describing the goods and services to be provided by the Consultant;
1.5 "Consultant" means Daniel Sutherland Design Studio Ltd, (or alternatively referred to as dsds ltd), Unit 5 Kingseat Business Park, Newmachar, AB21 0UE.
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Consultant to the Client.
2.2 Before the commencement of the services the Consultant shall submit to the Client a Specification Document which shall specify the goods and services to be supplied and the price payable. The Client shall notify the Consultant immediately if the Client does not agree with the contents of the Specification Document. All Specification Documents shall be subject to these Terms and Conditions.
2.3 The Consultant shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.
3 PRICE AND PAYMENT
3.1 The price for the supply of goods and services are as set out in the Specification Document.
3.2 Invoiced amounts shall be due and payable within 30 days of receipt of invoice. The Consultant shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the base rate of the Bank of England. In the event that the Client’s procedures require that an invoice be submitted against a purchase order to payment, the Client shall be responsible for issuing such purchase order before the goods and services are supplied.
3.3 The Client shall notify the Consultant of any queries on invoices within 7 days of the date of the invoice.
3.4 Any quotation for a project will remain valid for 30 days.
3.5 The Consultant reserves the right to adjust the fees and the date of completion of the project in the event that the project proposal is altered after the project is commissioned.
3.6 All payments must be in sterling unless otherwise agreed. For all non sterling payments an administrative charge will apply.
4 SPECIFICATION OF THE GOODS
All goods shall be required only to conform to the specification in the Specification Document. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Consultant and no representation written or oral, correspondence or statement shall form part of the contract.
5.1 The date of delivery specified by the Consultant is an estimate only. Time for delivery shall not be of the essence of the contract and the Consultant shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods.
5.2 All risk in the goods shall pass to the Client upon delivery.
Title in the Goods shall not pass to the Client until the Consultant has been paid in full for the Goods.
7 CLIENT`S OBLIGATIONS
7.1 To enable the Consultant to perform its obligations under this Agreement the Client shall:
7.1.1 co-operate with the Consultant;
7.1.2 provide the Consultant with any information reasonably required by the Consultant;
7.1.3 obtain all necessary permissions and consents which may be required before the commencement of the services; and
7.1.4 comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties.
7.2 The Client shall be liable to compensate the Consultant for any expenses incurred by the Consultant as a result of the Client’s failure to comply with Clause 7.1.
7.3 Without prejudice to any other rights to which the Consultant may be entitled, in the event that the Client unlawfully terminates or cancels the goods and services agreed to in the Specification Document, the Client shall be required to pay to the Consultant as agreed damages and not as a penalty the full amount of any third party costs to which the Consultant has committed and in respect of cancellations on less than five working days’ written notice the full amount of the goods and services contracted for as set out in the Specification Document, and the Client agrees this is a genuine pre-estimate of the Consultant’s losses in such a case. For the avoidance of doubt, the Client’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the goods and services and subject to the payment of the damages set out in this Clause.
7.4 In the event that the Client or any third party, not being a sub-contractor of the Consultant, shall omit or commit anything which prevents or delays the Consultant from undertaking or complying with any of its obligations under this Agreement, then the Consultant shall notify the Client as soon as possible and:
7.4.1 the Consultant shall have no liability in respect of any delay to the completion of any project;
7.4.2 if applicable, the timetable for the project will be modified accordingly;
7.4.3 the Consultant shall notify the Client at the same time if it intends to make any claim for additional costs.
7.5 Unless otherwise specifically stated in the Specification Document, the Client is solely responsible for obtaining any applicable or necessary approvals/certifications.
7.6 The Client assumes all responsibility for any information and/or specifications it provides to the Consultant and agrees that, unless specifically stated in the Specification Document, the Consultant may rely on such information and/or specifications without independent verification.
7.7 The Client is solely responsible to test the designs and any prototypes the Consultant provides. The Client is solely responsible to ensure that any resulting products are tested, manufactured, packaged, labeled (including adequate warnings), sold and used in a safe and careful manner and in compliance with all applicable laws, regulations and appropriate industry standards.
8 ALTERATIONS TO THE SPECIFICATION DOCUMENT
8.1 The parties may at any time mutually agree upon and execute new Specification Documents. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed goods and/or services and price and any other terms agreed between the parties.
8.2 The Client may at any time request alterations to the Specification Document by notice in writing to the Consultant. On receipt of the request for alterations the Consultant shall, within 5 working days or such other period as may be agreed between the parties, advise the Client by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
8.3 Where the Consultant gives written notice to the Client agreeing to perform any alterations on terms different to those already agreed between the parties, the Client shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Consultant by notice in writing whether or not it wishes the alterations to proceed.
8.4 Where the Consultant gives written notice to the Client agreeing to perform alterations on terms different to those already agreed between the parties, and the Client confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Consultant shall perform this Agreement upon the basis of such amended terms.
9.1 The Consultant warrants that as from the date of delivery for a period of 30 days the goods and all their component parts, where applicable, are free from any defects in design, workmanship, construction or materials.
9.2 The Consultant warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
9.3 Except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the goods and services to be provided by the Consultant.
10.1 The Client shall indemnify the Consultant against all claims, costs and expenses which the Consultant may incur and which arise, directly or indirectly, from the Client’s breach of any of its obligations under this Agreement, including any claims brought against the Consultant alleging that any goods and/or services provided by the Consultant in accordance with the Specification Document infringes a patent, copyright or trade secret or other similar right of a third party.
10.2 The Client shall indemnify, defend and hold the Consultant and any related directors, officers, employees and agents harmless from and against all Claims for illness, injury and property damage (including loss of use and loss of profits), actual or alleged, that may arise out of or in connection with this Agreement or the Services, Work Product, designs, prototypes and incidental goods furnished or to be furnished to the Client by the Consultant. This obligation shall apply, without limitation, to Claims of the Client and any employee, invitee, or agent of the Client, of any lessee or purchaser of the Client's goods or services and of any third party.
11 LIMITATION OF LIABILITY
11.1 Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Consultant to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Client to which the claim relates.
11.2 In no event shall the Consultant be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or the Consultant had been made aware of the possibility of the Client incurring such a loss.
11.3 Nothing in these Terms and Conditions shall exclude or limit the Consultant’s liability for death or personal injury resulting from the Consultant’s negligence or that of its employees, agents or sub-contractors.
Either party may terminate this Agreement forthwith by notice in writing to the other if:
12.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
12.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
12.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
12.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13 INTELLECTUAL PROPERTY RIGHTS
You may, for purposes directly connected with the project carried out under this agreement and provided only, that all fees and other charges due to the Consultant are paid in full, use all intellectual property created by the Consultant in the course of this project. Unless otherwise agreed in writing, ownership of such intellectual property, including designs, drawings, written reports, computer software and other works, shall be retained by the Consultant.
14 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
15 INDEPENDENT CONTRACTORS
The Consultant and the Client are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. The Consultant may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Client and such engagement shall not relieve the Consultant of its obligations under this Agreement or any applicable Specification Document.
16 ASSIGNMENT The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Consultant.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
20 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
21 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
22 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.