1.1 The following definitions shall apply in these terms, unless the context otherwise requires:
The term CF means – The Cutfoam Group Ltd, whose trading name is Cutfoam, whose registered office is at 12e Manor Road, London, England, N16 5SA, with all production carried out at Unit C1 A, Kerry Avenue, Purfleet Industrial Park, London Road, RM15 4YA. Company number: 12242582
Professional Services means the services specified in the quotation previously submitted and accepted by the client covering all of the following services; namely all manufacturing, production, design, site visits, acoustic reports, 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 CF has completed the production of the initial concepts in accordance with the design/ project brief for the premises.
Documentation Stage is the time when CF 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 CF design and installation on the premises.
Goods means any products or materials supplied and installed by CF as part of the written contract and or quotation which are to be delivered to the client site/s.
Effective Completion means the stage at which all works carried out are complete, are free from known substantial omissions and shall be certified by CF as completed.
Gross Contract Value means the estimated cost, as certified by CF, of the works to be carried out and the goods to be supplied to implement the CF 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 CF, of the works carried out and the goods to be supplied to implement the CF contract, CF 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 Payment for good and services is on pro-forma (paid in full) basis except at CF’s discretion. A 20% administration and manufacturing fee of the gross contract value is retained if the client does not implement the project.
2.1 CF 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 product supplier and installer undertaking the services and other obligations hereunder.
2.2 Due to the chemical processes involved in the manufacturing of foam products, some deviation in appearance from spec is to be expected. This does not affect the integrity of the product and does not affect your statutory rights. CF reserves the right to amend and/or replace any defective product in lieu of refunds.
3.1 In accordance with information and instructions given by the client, CF will produce a design for the client’s premises. Such services will be in accordance with the original written quotation and/or brief provided to the client and will include such of the following as are, in the opinion of CF, 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.
4.1 CF will advise on the implementation of the designs. Design implementation will include such of the following as are, in the opinion of CF required by the project:
4.1.1 Giving advice on the selection of products to implement the designs.
4.1.2 CF removes all responsibility for applications/permissions and statutory consents to 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.
4.1.4. CF reserves the right to amend, replace designs and or replace product in lieu of refunds.
4.2 If CF 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.
5.1 CF will supervise the implementation and installation of any of its products as required including periodic on-site inspections. CF will monitor the performance of its employees and or contractors in the implementation of the products to the extent reasonably required by the client.
5.2 CF will implement procedures for the control of quality, cost and progress of its onsite employees and or contractors within the scope of the CF project brief.
5.3 CF will report to the client with reasonable frequency on significant aspects of the project supervision.
6.1 The Client will ensure that CF 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 CF 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 CF 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 on the cost of providing labour, equipment and transport to and from the site.
7.2 If CF products are damaged by third parties and or the client’s subcontractors then the client will have to reimburse CF the cost of replacing and installing the damaged products in full.
8.1 The client will be responsible for ensuring that all CF 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 CF product and equipment from the site.
8.2 Any loss of CF supplied products and equipment due to negligence on the part of the Client or a failure to provide adequate security will result in CF seeking reimbursement for the losses of its products and equipment from the site.
9.1 CF Acoustic Products are often 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-hour curing period may result in the material failing to bond, this in turn may result in the product parting from the wall/ceiling surface.
9.2 In the case of the client failing to implement item 9.1 CF 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.
10.1 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 CF 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 CF 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 CF current standard hourly rates, details of which are available upon request from CF and will be paid in full, immediately.
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 CF employees and or consultants when they are away from CF 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 CF where its vehicles/hire vehicles are used (details of such standard charges are available upon request); and
11.4 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).
11.5 An administration charge equal to 20% of the value of any disbursements chargeable under clause 11.1 or any liability under clause 1.2.2, 7.1/7.2 will be payable by the client in addition thereto.
12.1 All fees and other sums due to CF hereunder shall be subject to Value Added Tax (where applicable) and shall be paid in sterling at CF offices within 7 days of the date of the invoice.
12.2 CF shall not be liable for failure of the actual costs of implementing any materials to comply with any estimate of costs whether or not such estimate was prepared by CF. The client is advised to employ the services of a quantity/building surveyor or acoustic engineer where appropriate.
12.3 CF aggregate liability (including liability for breach of contract, negligence, whether in contract or loss of any kind arising out of CF obligations under these Terms in respect of any matter (or a series of connected matters) arising out of CF duties hereunder shall be limited to £10,000.
12.4 CF 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 CF is aware of the possibility of such loss, nor shall CF be liable for (ii) any consequential loss or damage whatsoever.
12.5 CF 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 CF 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 CF . To the extent that CF expenses are increased due to the occurrence of a Force Majeure Event, CF shall be entitled to full reimbursement from the client of such additional expenses.
12.6 The client will indemnify and keep indemnified CF 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 CF.
12.7 The client will indemnify CF on demand against all costs and expenses (including legal expenses) incurred by CF in connection with recovering fees and other amounts owed by the client to CF .
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 CF and every servant, agent and subcontractor of CF.
13.1 Without prejudice to CF rights to appoint persons on a sub-contract basis, CF 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 CF 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 CF responsible for the competence and performance of the obligations of that consultant. CF 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.
13.2 If CF 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 CF against all actions, claims, costs or demands by any such contractor, supplier or consultant. CF 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 CF 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 CF the amount of such liability and the provisions of clause 12.3 shall apply thereto.
13.4 CF shall have the right without requiring consent, to sub-contract or delegate any of its obligations under these Terms and Conditions [Where CF acts as agent for the client under clause 13.1 it shall do so only by agreement].
14.1 CF shall retain the property in all the copyright and other intellectual property in the designs, specifications, plans, elevations and drawings produced by CF (“CF Materials”) including all the work executed from the CF Materials. No part of the CF Materials may be reproduced without CF prior written consent.
14.2 Where CF 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) CF 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 CF 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 CF of a further fee for design implementation.
14.4 CF does not warrant the existence of any exclusive copyright, industrial design right or similar exclusive intellectual property in the designs provided hereunder. CF cannot warrant the client’s right to use any trading name or trade or service mark proposed by CF and the client should seek advice on the trade or service mark proposed by CF and the client should seek advice of trademark agents before using such name or mark.
14.5 For the avoidance of doubt where CF is involved in design or consultancy work for the client on terms that CF 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 CF intellectual property rights and that CF shall be entitled to seek injunctive relief in relation to any infringement of those rights.
15.1 CF 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 CF 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 CF shall forthwith terminate, and
15.2.3 CF shall be entitled immediately to payment in full for its services.
15.2.4 In the event of such termination at the pre-manufacture and/or installation phase, CF retains a 20% administration fee to be subtracted from the full contractual amount.
15.2.5 In the event of such termination at the post-manufacture and/or installation phase, CF retains 100% of the full contractual amount.
16.1 These Terms & Conditions represent the entire agreement between the parties hereto and any representations made by CF 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 CF unless contained in a written document signed by a director of CF.
16.3 In the case of discrepancy between these terms and conditions and the letter of engagement, the former shall prevail.
16.4 CF may take and make full use of designs for promotional purposes, and document any 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 CF 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. CF 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.
17.1 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 CF under these Terms and Conditions or the Letter of Engagement shall be final and binding as between CF and the client, in the absence of any manifest error.
17.5 This agreement shall be governed by the laws of England and Wales. Any dispute shall be determined by such laws.