1.1 Ana Engelhorn Interior Design will provide the Services to Customer from the Start Date for the Term (in each case as set out in the SoW) in accordance with all reasonable care and skill and the terms of this Agreement.
2.1 Ana Engelhorn Interior Design may recommend to Customer certain goods and services which are provided by third parties (“Third Party Items”) and provide related support and supervision. However, Customer recognises that Third Party Items are provided by third party vendors not Ana Engelhorn Interior Design and the supply of Third Party Items is not included in the “Services” for the purpose of this Agreement.
2.2 If Customer wishes to purchase any Third Party Items, Customer must purchase them directly from the vendor unless Customer has given its express prior consent for Ana Engelhorn Interior Design to order Third Party Items on Customer’s behalf.
2.3 If Ana Engelhorn Interior Design incurs any costs for or relating to Third Party Items on behalf of Customer under Clause 2.2 (“Third Party Costs”), Customer must reimburse Ana Engelhorn Interior Design as soon as possible upon request. For the avoidance of doubt, Third Party Costs are separate to the fees for the Services.
2.4 Customer recognises that, regardless of who places the order for Third Party Items under Clause 2.2: (a) the vendor’s terms shall exclusively apply for that purchase (and for clarity Ana Engelhorn Interior Design makes no representations or warranties in respect of the Third Party Items); (b) Customer is fully responsible for all costs associated with the Third Party Items; (c) any issues relating to the Third Party Items shall be dealt with between Customer and the respective vendor; (d) Third Party Items may be non-refundable and non-cancellable, deepening on the vendor’s terms; and (e) natural products such as wood, stone, glass and metal may vary from samples provided to Customer.
3.1 Customer will, at no charge, co-operate with Ana Engelhorn Interior Design and its representatives in all matters relating to this Agreement including promptly providing Ana Engelhorn Interior Design and its representatives with any information and materials and access to locations (including as set out in the SoW) that Ana Engelhorn Interior Design reasonable requires to perform its responsibilities under this Agreement.
3.2 Customer is responsible for the accuracy and validity of the information it provides to Ana Engelhorn Interior Design in connection with this Agreement, and Ana Engelhorn Interior Design is not responsible for any miscalculations or design flaws caused by inaccurate information.
3.3 Customer must have and maintain during the Term appropriate insurance including coverage for all its furnishings, materials, contents and buildings that may be impacted by this Agreement, including during handling, moving, storage and installation.
3.4 Customer is solely responsible for obtaining any permits, licences and permissions required to enable Ana Engelhorn Interior Design to perform its obligations and provide the Services.
4.1 Customer must pay the fees for the Services (set out in the SoW) and Third Party Costs (if applicable) in accordance with the SoW and this Clause 4.
4.2 Unless expressly agreed otherwise: (a) all invoices are payable by Customer within 14 days of the date of the respective invoice; and (b) all sums are ex-VAT (or equivalent) and are payable by Customer.
4.3 If Customer is late in paying any invoices for the Services, Ana Engelhorn Interior Design may, without limiting its termination rights: (a) charge interest on all unpaid amounts from the due date of payment until the date of payment at a rate of 4% per annum above the Bank of England base rate; and/or (b) suspend the Services until payment has been made in full.
4.4 Ana Engelhorn Interior Design is also entitled to charge Customer for reasonable out-of-pocket expenses (including travel) incurred by Ana Engelhorn Interior Design and its representatives where Customer has given its prior consent.
5.1 Customer and its representatives own all intellectual property rights that subsist in any documents, information, items and materials it provides in connection with this Agreement. Other than this, Ana Engelhorn Interior Design or its licensors own all intellectual property rights that subsist in anything provided or produced by either party in connection with this Agreement, including drawings, designs and mood boards and Customer has no right to use them other than for the purposes of receiving the Services for the purpose of this Agreement.
5.2 Ana Engelhorn Interior Design or its licensors owns all intellectual property rights that subsist in its brand and methodologies, and Customer has no right to use them.
6.1 Ana Engelhorn Interior Design may take photographs and collect testimonials and feedback from Customer relating to this Agreement. Ana Engelhorn Interior Design may use these things for its promotional and publicity purposes without Customer’s prior approval, unless Customer requests otherwise and provided Ana Engelhorn Interior Design does not publish the name of Customer or identifiable locations for the project.
7.1 Each party will keep confidential any confidential information supplied to it by or on behalf of the other party in connection with this Agreement.
7.2 Confidential information includes all information marked as being confidential and any other information which (due to its nature, the circumstances in which it is disclosed or any other reason) ought reasonably to be assumed to be confidential. For the avoidance of doubt, Ana Engelhorn Interior Design’s methodologies and drawings are its confidential information.
7.3 Clause 7.1 will not apply to any information which: (a) is available to the public other than because of any breach of this Agreement; (b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure.
7.4 Ana Engelhorn Interior Design may only use Customer’s personal data in accordance with the Ana Engelhorn Interior Design Privacy Notice or as otherwise agreed in writing or permitted by law.
8.1 Dates relating to this Agreement are estimates only.
8.2 If Ana Engelhorn Interior Design is prevented or delayed from providing the Services because of an act or omission of Customer or its representatives (including Third party Items vendors), Ana Engelhorn Interior Design: (a) will continue providing the Services to the extent possible (and be entitled to charge for them), but will not be in breach of this Agreement for failing to provide Services during this period and any dates will be extended accordingly; (b) will not be liable for any costs or losses incurred by Customer as a result of the prevention or delay; and (c) may recover from Customer any additional costs or losses Ana Engelhorn Interior Design incurs (directly or indirectly) from the prevention or delay.
8.3 Other than paying sums due under this Agreement, neither party will be liable to the other for any failure (whether complete or partial) or delay of the performance of its obligations under this Agreement where the failure arises from an event beyond the control of the party concerned (including because of unforeseen coronavirus-related issues). The time for performance of such obligations will be extended accordingly. If the period of delay or non-performance continues for 30 days or more, the party not affected may terminate this Agreement by giving notice to the affected party.
9.1 Either party may end this Agreement before the end of the Term (as set out in the SoW) on giving no less than 30 days’ notice to the other.
9.2 If Ana Engelhorn Interior Design notifies Customer of a change to these online Terms of Service, and Customer does not wish to accept those changes, Customer may end this Agreement within 30 days from being notified.
9.3 If Customer fails to pay fees due under the Agreement by the due date, Ana Engelhorn Interior Design will notify Customer and, if Customer has still not paid the sums in full within 30 days from that date, Ana Engelhorn Interior Design may end this Agreement.
9.4 Either party may end this Agreement immediately by notice to the other if the other party: (a) materially breaches any term of the Agreement and it is not possible to remedy it or it is possible to remedy, but the other party fails to do so within 30 days of being asked; or (b) takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with .its creditors, applying to court for or obtaining a moratorium, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause.
10.1 On termination or expiry of this Agreement for whatever reason Customer will immediately pay to Ana Engelhorn Interior Design all outstanding amounts due in connection with this Agreement. If the parties agreed in the SoW that fees are payable for the Services in phases, Ana Engelhorn Interior Design will be entitled to full payment in respect of completed phases and pro-rata payment in respect of partially completed phases as at the date of termination.
10.2 Any Clause that expressly or by implication is intended to survive termination or expiry of the Agreement remains in full force and effect for example Clauses 5 and 11.
10.3 Termination or expiry of the Agreement does not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
11.1 Neither party limits or excludes its liability for death or personal injury caused by its negligence, for fraud, under Clause 11.4, for sums payable under this Agreement, or for any other liability which may not, by law, be excluded.
11.2 Subject to clause 11.1, neither party is liable under or in relation to this Agreement (whether such liability arises under contract, negligence, misrepresentation or otherwise) for any indirect, consequential or special loss (regardless of whether or not the party concerned was aware, or ought reasonably to have been aware, that loss may arise) or in respect of any loss or damage caused to Customer’s furnishings, materials, contents and/or buildings impacted by this Agreement.
11.3 Subject to clauses 11.1 and 11.2, the liability of each party under or in relation to this Agreement (whether such liability arises due to breach of contract, negligence, misrepresentation or for any other reason) shall be limited to the total charges invoiced for the Services.
11.4 Customer indemnifies Ana Engelhorn Interior Design and its representatives against all liabilities, losses, claims and costs arising out of or in connection with a breach of Clause 2.3.
12.1 Ana Engelhorn Interior Design may assign or sub-contract its rights or obligations under the Agreement without obtaining Customer’s prior consent, but Customer cannot without Ana Engelhorn Interior Design’s prior consent.
12.2 The SoW and Terms of Service form the entire agreement between the parties in relation to its subject matter and supersedes all previous quotes, agreements, promises, assurances, warranties, representations and understandings between them.
12.3 This Agreement sets out all the terms that have been agreed between the parties in relation to the subjects covered by it. Any other terms are expressly excluded. For completeness, except as expressly provided in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
12.4 All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
12.5 If any part of this Agreement 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.
12.6 All notices and consents relating to this Agreement must be in writing (which may include email). Notices must be sent to the address of the recipient set out in the SoW or otherwise notified by the relevant party.
12.7 A person who is not a party to this Agreement has no rights under or in connection with it.
12.8 References to “including” will be treated as being by way of example and are not exhaustive.
12.9 Nothing in this Agreement is intended to create a partnership or joint venture between the parties or constitute one party as an agent of the other.
12.10 The Agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute under or in relation to the Agreement.