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Terms and Conditions

Welcome to NH3Design’s (“we” “us” or “our”) Terms and Conditions (the “Terms”). The Terms you find below are important as they outline your legal rights and obligations as well as our rights when you use the website and our Services. These Terms shall apply to all purchases of our Services to the exclusion of all other terms and conditions.

 

Please read these Terms carefully. Subject to the Terms, by paying your non-refundable deposit and (where relevant your non-refundable assessment fee) you confirm your order with us, and acknowledge you have read these Terms and agree to be bound by them.

 

We reserve the right to make any amendments or variation to these Terms, our website and

our policies (including any special terms and conditions). Should we make any variations, we shall endeavour to notify you in writing as soon as practicable. These terms may have changed since you last reviewed them. It is your responsibility to ensure you have read these terms prior to submitting an order.

You can find everything you need to know about us, NH3Design, and our products on our website before you order. We also confirm any key information to you in writing before you order.

DISCLAIMER - You acknowledge that I am not an architect, surveyor or qualified in the construction or structure of buildings in any way, and that my Services and any Deliverables are purely visualisations and designs that may not be relied upon in any manner in relation to building or construction work.

Assessment Fee

We reserve the right to charge you an assessment fee in relation to the Services and Deliverables you are seeking to order. Undertaking an assessment allows us to fully examine your request and the work that will be involved and put together your quotation. If an assessment fee is payable, it shall be non-refundable. If you continue with our Services following our assessment and the issuing of our quotation, the assessment fee shall be deducted from your total Fees payable for the Services. Where required, your assessment fee is due and payable immediately upon notification of such fee to allow us to undertake the assessment of your request. Your request and quotation for our Services will not be provided until your assessment fee is paid in full.

1.               Definitions and interpretation

The following definitions and rules of interpretation apply in these Terms:

Business Day means a day, other than a Saturday or Sunday, when banks in Edinburgh are open for business.

Fees means the fees payable by you for the supply of the Services in accordance with clause 5.

Commencement Date has the meaning given in clause 2.2.

Conditions means these terms and conditions as amended from time to time in accordance with clause 11.5.

Contract means the contract between us and you for the supply of Services in accordance with these Conditions.

Deliverables: the deliverables or products set out in the Order produced by us for you.

Intellectual Property Rights: patents, utility models, copyright and neighbouring and] related rights, moral rights, our trademarks and service marks] business names and domain names, rights in get-up , goodwill and the right to sue for passing off , rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order means your order for Services, as set out in your Quote provided by us (as amended from time to time).

Quote means the quote provided by us in accordance with clause 2.5, for the Services to be provided by us to you, including any Specification.

Services means the services, including any Deliverables, supplied by us to you as set out in a Quote.

Specification means the description or specification of the Services provided in writing by us to you.

Supplier Materials has the meaning set out in clause 4.1(h).

You means the person or company purchasing our Services and “your” shall be construed accordingly.

1.1            Interpretation:

(a)         A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

(b)         Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)         A reference to writing or written includes email.

2.               Basis of contract

2.1            An Order constitutes an offer by you to purchase Services in accordance with these Conditions.

2.2            An Order shall only be deemed accepted when you pay your non-refundable deposit as set out in your Quote, in accordance with clause 5, and we issue written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date). This Contract shall continue from the Commencement Date until completion of the Services as stated in the relevant Order. We reserve the right to reject any Order.

2.3            Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our portfolio or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services. They shall not form part of the Contract or have any contractual force.

2.4            All of these Terms shall apply to the supply of both Deliverables and Services except where application to one or the other is specified.

2.5            Any Quote given by us shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.

2.6            Any Services and Deliverables provided under this Contract are provided in accordance with clause 3.

3.               Supply of Services and Deliverables

Services

3.1            We shall supply the Services to you in accordance with your Quote and the Specification.

3.2            We shall use all reasonable endeavours to meet any performance dates specified in an Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3            We reserve the right to amend time frames, the Specification and Quote if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services. We shall notify you in any such event.

3.4            We warrant that the Services will be provided using reasonable care and skill.

Deliverables

3.5            Deliverables are described in our Specification and set out in your Quote.

3.6            We shall deliver any Deliverables to the location set out in the Order or such other location as the parties may agree at any time after we notify you that the Deliverables are ready.

3.7            Title in Deliverables shall pass upon full payment of the Feesset out in you Quote, and risk shall pass to you on completion of delivery.

3.8            We warrant that on delivery the Deliverables shall conform with their description, be free from material defects in design and workmanship and be of satisfactory quality.

3.9            To the extent that the Deliverables are produced in accordance with a specification supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with our use of the specification provided.

3.10        If you give notice to us, within 14 calendar days of receiving the Deliverables, that some or all of the Deliverables do not comply with the warranties set out in this Contract, and we are given reasonable opportunity to examine such Deliverables (any return delivery at your own cost), we shall, at our option. Repair or replace the defective Deliverables or at our discretion refund the price.

3.11        We will not be liable for the Deliverable failure to comply with any warranties if:

(a)         you makes any further use of such Deliverables after giving notice in accordance with clause 3.10;

(b)         the defect arises because you failed to follow our oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Deliverables or (if there are none) good trade practice regarding the same;

(c)         the defect arises as a result of our following any drawing, design or specification supplied by you;

(d)         you alters or repairs such Deliverables without our written consent;

(e)         the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f)          the Deliverables differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, or any changes or deterioration external to the drawings and design provided by you.

 

3.12        Except as provided in this clause 3, we shall have no liability to you in respect of the Services and Deliverables.

4.               Your obligations

4.1            Your shall:

(a)         ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

(b)         co-operate with us in all matters relating to the Services;

(c)         where required, provide us, our employees, agents, consultants and subcontractors, with access to your premises, property and other facilities as reasonably required by us. In the event access is required to your premises or property you are wholly responsible for the security, health and safety and associated risks to both us and the premises or property and will indemnify us and hold us, our employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions for injury to person or property arising in connection with access to premises or property;

(d)         provide us with such information and materials as we may reasonably require to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e)         upon reasonable request prepare your premises for the supply of the Services;

(f)          obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g)         comply with all applicable laws;

(h)         where relevant, keep all our materials, equipment, documents and other property (Supplier Materials) at our premises in safe custody, maintain the Supplier Materials in good condition until returned to us, and not dispose of or use the Supplier Materials other than in accordance with our written instructions or authorisation; and

(i)           comply with any additional obligations as set out in the Specification.

4.2            If our performance of any of our obligations under the Contract are prevented or delayed by any act or omission or failure by you to perform any relevant obligation (a “Customer Default”):

(a)         without limiting or affecting any other right or remedy available to it, we shall have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;

(b)         we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 4.2; and

(c)         you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.

5.               Fees and payment

5.1            Fees for the Services shall be calculated on a time and materials basis and shall be as set out in the Order.

5.2            We shall be entitled to charge you for any expenses reasonably incurred in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the Services, and for the cost of any materials.

5.3            Should the Fees require to be increased at any time during provision of the Services we reserve the right to increase the Fees providing you with details of such increase and documentary evidence in support of such increase.

5.4            We shall invoice you for the Services in two (2) parts:

(a)         a non refundable deposit payable in advance of the Services being performed. Such invoice will be provided upon your acceptance of your Quote; and

(b)         the outstanding balance, on completion of the Services.

5.5            You shall pay each invoice submitted by us:

(a)         within thirty (30) days of the date of the invoice; and

(b)         in full and in cleared funds to a bank account nominated in writing by us.

5.6            Time for payment of any sums shall be of the essence of the Contract.

5.7            All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.8            If you fail to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 9, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause 5.7 will accrue each day at 4% a year above Bank of England base rate.

5.9            All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.10        Any legal or other charges (including bank charges) incurred in your payments or the recovery of money for your Order shall be paid by you.

6.               Intellectual property rights

6.1            Unless otherwise agreed, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.

6.2            Subject to clause 6.1 we grant to you or shall procure the direct grant to you of, a fully paid-up, worldwide, exclusive, royalty-free, non-sublicensable licence to copy the Deliverables (excluding materials provided by you) for the purpose of receiving and using the Services and the Deliverables. Subject to our consent, you will not use any Deliverables for direct commercial gain or share the Deliverables with any third-party.

6.3            You grant to us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the purpose of using the materials in our business.

7.               Data Protection

7.1            The parties shall comply at all time with all relevant Data Protection Legislation. For the purpose of this clause, Data Protection Legislation means the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679 and where relevant any other data protection legislation. Further details regarding personal data please see your Data Privacy Policy - https://www.nh3design.com/privacy-policy].

7.2            We acknowledge that Personal Data described in an Order may be Processed in connection with the Services under this Contract. For the purposes of any such Processing, Parties agree that we act as the Data Processor and you act as the Data Controller.

8.               Limitation of liability and Indemnity

8.1            Restrictions on liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence).

8.2            Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)         death or personal injury caused by negligence;

(b)         fraud or fraudulent misrepresentation; and

(c)         breach of the terms implied by section 11B of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.3            Subject to clause 8.2, our total liability to you in respect of any claim shall not exceed the Fees stated in the Order giving rise to the claim.

8.4            Subject to 8.3 (Liabilities which cannot legally be limited), we are not liable to you for any:

(a)         loss of profits;

(b)         loss of sales or business;

(c)         loss of agreements or contracts;

(d)         loss of anticipated savings;

(e)         loss of or damage to goodwill; and

(f)          indirect or consequential loss.

8.5            Nothing in this clause 8 shall limit your payment obligations under the Contract.

8.6            We have given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, any other requirements, to the fullest extent permitted by law, are excluded from the Contract.

8.7            Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8.8            You agree to indemnify and hold us and our employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against us arising as a result of our provision of the Services or your use of our Service or any Deliverables, other than to the extent such claims arise as a result of our gross negligence or willful misconduct.

8.9            This clause 8 shall survive termination of the Contract.

9.               Cancellation

9.1            We must be notified of any Order cancellation.

9.2            You can cancel your Order at any time. Should you cancel your Order within 14 calendar days of confirmation, we shall return any Fees paid, subject to deducting any Fees associated with any work undertaken prior to your cancellation. Should you cancel your Order 15 calendar days or more following confirmation of your order, we shall retain your non-refundable deposit and at our discretion any Fees reasonably incurred in relation to any work undertaken up until the date of receipt of the notice of cancellation. If you are a business engaging our services, this clause 9.2 will not apply and upon cancellation we will retain your non-refundable deposit.

9.3            Without affecting any other right or remedy available to us, we may cancel your Order at any time. Should we cancel your Order for any reason, we will refund you the Fees paid, unless such cancellation is as a result of your breach of these Terms including failure to make payment whereby we reserve the right to provide any refund.

9.4            Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if (where relevant):

(a)         the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within ten (10) days of that party being notified in writing to do so;

(b)         a party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(c)         the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.5            Without affecting any other right or remedy available to it, we may suspend the supply of Services under the Contract or any other contract between you and us if you fail to pay any amount due under the Contract on the due date for payment;

10.            Consequences of Cancellation

10.1        Subject to clause 9.3, on cancellation of the Contract:

(a)         you shall immediately pay to us any Fees invoiced by us in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt; and

(b)         both parties shall return any materials provided by the other party.

10.2        Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.3        Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11.            General

11.1        Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2        Assignation and other dealings. You shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without our prior written consent.

11.3        Confidentiality. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b). Each party may disclose the other party's confidential information: (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

11.4        Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

11.5        Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6        Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.7        Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

11.8        Notices. Any notices and other communications given to a party under or in connection with the Contract shall be in writing and shall be sent by email to the address specified in an Order. Any notice or communication shall be deemed to have been received, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

11.9        Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.

11.10     Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.

11.11     Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

11.12     Website. We make no warranty or representation that the use of this website will be uninterrupted or error free or that this site or the server that makes it available are free of viruses or bugs. To avoid any doubt, articles and other information are for general guidance only and should not be specifically relied on without taking advice.

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