- 1.0 Agreement, Offer And Confirmation
- 1.1 These General Terms and Conditions (hereinafter: the “General Terms and Conditions”) apply to all offers and to the formation, the contents and the performance of all agreements concluded between the party assigning the services (hereinafter “Client”) and the party accepting the assignment (hereinafter “NLÉ”). Deviations from these General Terms and Conditions can only be agreed between the Client and NLÉ in writing.
- 1.2 Fee and quotations are issued without obligation and are valid for 60 days, unless stated otherwise. Fees and quotations may be subject to revision due to unforeseen changes in the work. Prices are exclusive of VAT; and the applicable VAT assessment for this transaction shall be subject to the extant Tax Laws of Nigeria. The rates and offers that are specified do not automatically apply to future assignments. The Client warrants that the details furnished by it or on its behalf to NLÉ, on which NLÉ bases its quotation, are correct and complete and should the Client have cause to issue a change of assignment, NLÉ shall amend its quotation to reflect such changes.
- 1.3 Assignments must be confirmed in writing by either NLÉ or the Client.
- 2.0 Performance Of The Agreement
- 2.1 NLÉ will use its best endeavours to carry out the assignment with due care and independently, to promote the Client’s interests to the best of its knowledge and to strive for a result that will be useful to the Client, as can and may be expected of an architect acting reasonably and professionally. NLÉ will keep the Client informed of the work’s progress at a frequency, manner and form as may be agreed to by Parties. Upon becoming aware of any issue that may materially affect the works or quality of the works, NLÉ shall besides the agreed frequency of update, inform the Client of any information, decision or action that may be required in mitigation.
- 2.2 The Client will do all that is reasonably necessary or desirable to enable NLÉ to make timely and correct delivery, such as promptly supplying complete, reliable and clear data or materials that NLÉ has indicated, or what the Client understands or should reasonably understand, are needed for the performance of the agreement.
- 2.3 Any deadline stated by NLÉ by which to carry out the assignment is indicative only, unless otherwise agreed in writing.
- 2.4 Unless Conducting tests, applying for permits or assessing whether the Client’s otherwise agreed, the assignment issued to NLÉ does not include: instructions comply with statutory or quality standards, with the understanding that if NLE should determine that an instruction would not comply with statutory or quality standards, it will notify Client;
- 2.4.2 NLÉ will independently create and develop its designs and it shall not derive from any third party intellectual property righted works and to the best of NLÉ’s knowledge, the results of the services performed by NLÉ are not in breach with any such rights;.
- 2.4.3 Investigating the possibility of the forms of protection referred to in subparagraph 2.4.2. for the Client;
- 2.4.4 Instructing and managing sub consultants like: architect of record, structural engineer, mechanical engineer, electrical engineer, plumbing, fire engineering, cost consultancy, landscape designer, acoustics and lightning; and
- 2.4.5 Travel and other expenses linked to assignment, for which NLÉ shall be reimbursed by the Client.
- 2.5 Before proceeding with implementation, production, reproduction or communication to the public, the parties will give each other an opportunity to check and approve the most recent models, prototypes or tests of the result.
- 2.6 NLÉ shall not make material alteration to, or material deviation from, the Assignments or approved designs without the prior written consent of the Client, except in an emergency situation whereupon NLÉ shall confirm such actions to the Client without delay. For any alteration of the designs of NLÉ, the Client requires the prior written consent of NLÉ.
- 2.7 Deviations in the final result from what was agreed do not constitute a reason for rejection, discount, compensation or termination of the agreement if, taking all circumstances into consideration, these deviations may reasonably be considered to be of minor importance. In the event such deviation would be considered of major importance, Parties will negotiate in good faith a fair compensation, discount or termination
2.8 Complaints must be communicated to NLÉ in writing as soon as possible but in any case, within thirty (30) days of completion of the assignment, failing which the Client will be deemed to have accepted the result of the assignment in full, unless failure to communicate any such complaint within 30 days is due to reasons beyond the control of the Client.
3.0 Enlisting Third Parties
- 3.1 To enlist third party services providers, who will play a key role on behalf of NLÉ for and during the performance of an assignment, NLÉ shall obtain Client’s prior written permission. At the Client’s request, NLÉ can act as an authorized agent of the Client, at the Client’s expense and risk. The parties may arrange a fee, yet to be specified, for this.
- 3.2 If, at the request of the Client, NLÉ provides a budget for the costs of services of third parties, this budget is indicative only. If desired, NLÉ can request more precise quotations on behalf of the Client.
- 3.3 While carrying out the assignment, if NLÉ purchases items or services from third parties for its own expense and risk, in accordance with an explicit arrangement, after which these items or services are passed to the Client, then the provisions of the General Terms and Conditions of and/or separate arrangements with the third-party supplier in relation to the guarantee and to liability will also apply towards the Client.
- 3.4 Upon first request of NLÉ, the Client shall confirm whether it approves any assignments or instructions NLÉ intends to issue vis-à-vis production companies or other third parties, whether on behalf of the Client or otherwise.
- 3.5 The Client will not enlist third parties without prior acceptance of NLÉ if that may affect the performance of the assignment as agreed with NLÉ. In such a case, the parties will agree as to which other contractors will be enlisted and what work will be assigned to them.
- 3.6 If NLÉ acts as Contract Administrator for the works, it shall exercise impartial and independent judgment when acting as intermediary between the Client and the Contractor.
- 3.7 NLÉ shall collaborate with the third parties enlisted or any other parties who might reasonably be expected to perform works or services and where indicated in the Assignment, NLÉ shall co-ordinate relevant information received from such persons with NLÉ’s designs, drawings and specifications, within the agreed scope and duration of the contract.
3.8 NLÉ is not liable for faults or defects in products or services of third parties
enlisted by or on behalf of the Client, whether those third parties were introduced by NLÉ or not unless such faults or defects are attributable to NLÉ or NLÉ’s agents, servants or privies. However, NLE shall do everything reasonably necessary to assist the Client to hold these third parties to account..
4.0 Intellectual Property Rights And Title
- 4.1 All intellectual property rights, – including patent rights, trade mark rights, design or model rights and copyrights, to the results of the assignment, including drawings, specifications and other documents and materials prepared by NLÉ, for the Client’s services shall accrue to NLÉ. To the extent that such a right can only be obtained by means of filing or registering it, NLÉ is exclusively authorized to do so, unless otherwise agreed to by Parties.
- 4.2 Unless otherwise agreed, the originals of the result that have been created by NLÉ in the context of the assignment (such as designs, design sketches, drafts, recommendations, reports, budgets, estimates, specifications, working drawings, illustrations, photographs, prototypes, scale models, moulds, prototypes, set of (detailed and/or construction) drawings, products or parts of products, films, audio, video and other presentations and other materials or files, electronic files, etc.) will remain the property of NLÉ regardless of whether they are made available to the Client or to third parties and any form of reproduction and or publication requires the prior consent of NLÉ.
- 4.3 NLÉ is at all times entitled to have its name mentioned in publicity in relation to the result of the assignment, as follows: [ Design by NLÉ (www.nleworks.com) ] or otherwise in the manner customarily used for that result. Unless NLÉ has given its prior written consent, the Client may not communicate the result to the public without mentioning NLÉ and its role, appropriately. NLÉ’s also reserves the right to remove its name from the project at all times and upon request; the Client shall remove the name NLÉ from all further use, marketing, communications and publications of the project.
- 4.4 After the assignment is completed, the Client and NLÉ may be obliged to retain the materials and data used, unless otherwise agreed.
- 4.5 NLÉ grants to the Client a non-exclusive license to use the results of the assignment for the purpose of government approval procedures, communications, publications, advertisement and public relations in connection
with the project. Should the Client require rights to use or replicate the designs as produced in its assignments to NLE, NLE shall respond to the Client’s requests to such usage within an acceptable timeframe and with the terms for such usage to be agreed to by the Parties. With due regard to the Client’s interests, NLÉ is at liberty to use the results for its own publicity, acquisition of assignments, including competitions and exhibits, etc., and to obtain them on loan, if the results are tangible. For the use of the results for other purposes, NLÉ requires the prior written approval of the Client. The Client shall honour reasonable requests.
4.6 NLE shall be liable to the Client in respect of any reasonably foreseeable and fully mitigated expenses, losses or damages suffered by the Client as a result of the work of NLE being in breach of copyright or any other intellectual rights of any third party.
5.0 Use Of The Result
- 5.1 After the Client has complied in full with its obligations arising from the agreement with NLÉ, the Client will be entitled to use the result of the assignment in accordance with the agreed purpose. If no arrangements have been made as to the purpose, then the right of use will remain limited to the use for which the assignment was apparently issued.
- 5.2 If the result also relates to works that are subject to rights of third parties, the parties will make further arrangements as to how the use of these works will be regulated.
- 5.3 The Client remains entitled to use the material for subsequent stages of the master planning process in line with NLÉ’s concept design intents and without significant changes, as well as for the architectural stages of the project, even if these stages are done by a third-party that is not NLÉ. There will be no compensation to NLÉ in the event of a termination under this clause 8.2.
- 5.4 If the Client requires any significant change(s) to the master plan in subsequent master planning or architecture phases (revisions, additions or modifications that are not in line with NLÉ’s masterplan design intents) the Client will offer NLÉ the options of 1) the first right of refusal to be engaged as the consultant to provide the master planning service for the change(s), at a fair compensation (based on NLÉ’s time and rates), to be agreed between both parties or 2) NLÉ will consent to a third party to provide the change(s) with the Client paying NLÉ a one off fee equal to 30% of a negotiated fair compensation, agreed by both parties, based on NLÉ’s proposed fee for the master planning service required for that change(s).
6.0 Fees and Costs
- 6.1 NLÉ is entitled to a fee for carrying out the assignment. The fee may consist of an hourly rate, a negotiated fee, a fixed sum, whether or not related to the project sum, or any other form of payment to be agreed between the parties.
- 6.2 In addition to the agreed fee, the costs incurred by NLÉ in carrying out the assignment, such as administrative overhead costs, travel and accommodation costs, costs for prints, copies, proofs, prototypes, and costs of third parties for advice, production and assistance etc., are also eligible for reimbursement. These costs will be specified in advance as far as possible, unless a mark-up percentage has been agreed.
- 6.3 If NLÉ is obliged to carry out additional or different work because of the late delivery or non-delivery of data/materials by the Client that are complete, reliable and clear, or because of an altered or incorrect assignment or briefing, or because of external circumstances, this additional work will be charged separately on the basis of the fee rates normally used by NLÉ. NLÉ will inform the Client of this in advance unless it is impossible to do so due to certain circumstances or if the nature of the work does not allow for delay.
- 6.4 If there is a delay or interruption in carrying out the assignment because of circumstances that can be attributed to the Client, NLÉ may decide to terminate the agreement. In case of termination under this Clause 6.4, the Client shall pay the costs arising from the obligations assumed towards third parties by NLÉ and the reimbursable expenses, as well as the agreed upon fees for the stage in which the agreement is terminated plus 10% of the remainder of the fee that the Client would owe if the assignment were completed in full. Any payments in surplus by the Client to NLÉ, shall become payable by NLÉ to the Client. NLÉ will try to limit the costs as far as possible.
- 6.5 If the project is suspended or delayed by the Client for more than thirty (30) calendar days, the agreed fee under this proposal will be equitably adjusted to compensate NLÉ for increased costs. In the event of termination which is mainly attributable to the Client, the Client shall pay the costs arising from the obligations assumed towards third parties by NLÉ and the reimbursable expenses, as well as the agreed upon fees for the stage in which the agreement is terminated plus 10% of the remainder of the fee that the Client would owe if the assignment were completed in full.. NLÉ reserves the right to suspend services in the event of a dispute, including in the event of non-payment for services rendered, notwithstanding the right of NLÉ to full payment of the agreed fees.
6.6 If clear additions to the scope of NLÉ’s services result in agreement between Client and NLÉ to expand the amount of work and such change in the scope of work will require the addition of staff employees engaged in the services, NLÉ shall provide the required additional staff and Client shall pay according to NLÉ’s hourly rates for the additional services to be rendered by NLÉ, unless as otherwise agreed.
NLÉ standard hourly rates:
Senior Architect Architect Assistant
US$ 320/ hour US$ 200/ hour US$ 125/ hour US$ 95/ hour
These rates exclude VAT and will be corrected each calendar year with the standard Nigerian inflation and labour costs rates as applicable.
7.0 Payment and Suspension
- 7.1 All payments must be made without discount, set-off or suspension and within 15 working days of the invoice date, unless otherwise agreed in writing or unless the invoice states otherwise.
- 7.2 All items delivered to the Client will remain the property of NLÉ until all amounts owed by the Client to NLÉ pursuant to the agreement concluded between the parties have been settled in full.
- 7.3 If the Client is in default with full or partial payment of the amounts due, NLÉ may suspend its services.
- 7.4 NLÉ will arrange for timely invoicing. In consultation with the Client, NLÉ may charge an agreed fee and costs in the form of advance payments, interim payments or periodically.
- 7.5 NLÉ shall maintain records of time spent on performance of the assignment on a time basis and for any expenses and disbursements to be reimbursed at net cost. NLÉ shall make such records available to the Client on reasonable request.
- 7.6 NLÉ may suspend the performance of the assignment after the payment period has expired and the Client has been sent a written reminder to make payment within 15 working days, but has not done so, or when NLÉ is given to understand from a communication or from the Client’s conduct that payment will not be made within the payment term.
8.0 Termination, Cancellation and Dissolution of the Agreement
8.1 NLÉ has the right to terminate with immediate effect the agreement with the Client, as a result of which the Client will not be, or will no longer be, permitted to use the results provided to it, and all rights of use granted to the Client in the context of the assignment will be cancelled, if:
the Client fails to comply or to comply in full with its material obligations on the basis of the agreement, including its obligations to make payment, or is otherwise in breach;
the assignment is terminated prematurely for reasons named in Clause 8.2 of these General Terms and Conditions;
the Client is declared insolvent, unless the rights concerned were transferred to the Client pursuant to Clause 4.2 of these General Terms and Conditions.
- 8.2 The Client reserves the right to terminate with immediate effect the Agreement with NLE with no liability to make any further payment to NLÉ (other than in respect of the amounts accrued before the Termination Date) if at any time NLE:
- 8.2.1 commits a material breach of any material term under the Agreement and
(if such is remediable) fails to remedy that breach within a period of Thirty
(30) days after being notified in writing to do so;
- 8.2.2 commits a series of breaches of the Agreement which are each individually
not material but which occur sufficiently often to have, in aggregate, the
effect of being a material breach;
- 8.2.3 suspends or ceases, or threaten to suspend or cease, carrying on all or a
substantial part of its business;
- 8.2.4 commits any serious or repeated breach or non-observance of any of the
provisions of the Agreement or refuses or neglects to comply with any
reasonable or lawful assignment;
- 8.2.5 is declared bankrupt or insolvent or makes any necessary arrangement with
or for the benefits of its creditors or has a court order made against it under the relevant Dutch laws on Bankruptcy or Insolvency or any other court of competent jurisdiction elsewhere;
- 8.2.6 commits any fraud or dishonesty or acts in any manner which in the opinion of the Client is materially averse to the interest of the Client.
- 8.3 The rights of the Client and NLÉ under this Termination Clause are without prejudice to any other rights that it might have at law to terminate the Agreement or to accept any breach of the Agreement on the part of the other
Party as having brought the Agreement to an end. Any delay by the a party to
terminate shall not constitute a waiver of these rights.
- 8.4 The compensation payable in case of a termination by the Client will include at
least the costs arising from the obligations assumed towards third parties by NLÉ in its own name in order to carry out the assignment, as well as the agreed upon fees for the stage in which the Client terminates the agreement plus 10% of the remainder of the fee that the Client would owe if the assignment were completed in full.
- 8.5 NLÉ is entitled to dissolve the agreement in full or in part with immediate effect, and all outstanding amounts will immediately become due and payable, if an application is filed for the Client’s insolvency, for suspension or provisional suspension of payments or for debt rescheduling.
- 8.6 In the event NLÉ terminates the Agreement, the Client shall be eligible to be reimbursed for all sums already paid to NLE for services not rendered prior to the termination or suspension.
9.0 Guarantees and Indemnifications
- 9.1 NLÉ will indemnify NLÉ against all claims by third parties based on either the infringement of the third party intellectual property rights by NLÉ or due to the non-performance by NLÉ of the guarantees referred to in the preceding paragraph and other liability referred to in Clause 10 of these General Terms and Conditions.
- 9.2 The Client indemnifies NLÉ against claims in relation to intellectual property rights to all materials and/or data furnished by the Client that are used in the performance of the assignment.
- 9.3 NLE shall indemnify the Client and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by the Client, or for which the Client may become liable, with respect to any intellectual property infringement claim or other claim relating to the works or inventions supplied by NLE to the Client during the course of carrying out the assignment. The Client may at its option satisfy this indemnity (in whole or in part) by way of deduction from any payments due to NLE.
- 10.1 NLÉ only accepts obligations to pay compensation to the extent that these are apparent from this clause.
- 10.2 In the event of an imputable failure, NLÉ must first be sent written notice of default and given a reasonable period within which to comply with its obligations or rectify any mistakes or to limit or eliminate any damage. If performance is not forthcoming within the reasonable period stated in the notice of default, then NLÉ is only liable for alternative compensation, which means compensation of the value of the undelivered performance, notwithstanding the right of the Client to enforce fulfilment of the services, unless it cannot reasonably expected from NLÉ to continue its services. All liability of NLÉ for any other form of compensation is excluded, including additional compensation in any form whatsoever, as well as compensation for indirect or consequential damage or damage on account of lost sales and lost profits, lost savings or damage due to business interruption.
- 10.3 Except in the case of deliberate intent or wilful recklessness on the part of NLÉ, its liability arising from imputable failure in the performance of its obligations will remain limited to the fee of the assignment, or at least that part of the assignment to which the liability relates. This amount will not exceed !75,000.00 and in any case is at all times limited to a maximum of the amount paid to NLÉ by the insurer, where applicable. The amount for which NLÉ is liable in such a case will be reduced by any sums that have been insured by the Client.
- 10.4 In the event of an unlawful act on the part of NLÉ or its employees or subordinates, for which it can be held liable in law, NLÉ is only liable for compensation of damage resulting from death or physical injury. In these cases, the compensation will in no circumstances exceed !100,000.00 per event causing damage, with a series of related events being deemed to be a single event.
- 10.5 Liability of NLÉ for damage due to an unlawful act otherwise than that referred to in clause 10.4 above is explicitly excluded. If and to the extent that this exclusion cannot be invoked, the compensation per event – with a series of related events being deemed to be a single event – will in no circumstances exceed !100,000.00 per event causing damage.
- 10.6 Any entitlement to compensation is conditional on the Client reporting the damage to NLÉ by registered letter without delay, but in no circumstances more than one month after it has arisen. Failing this, all entitlement to compensation will lapse.
- 10.7 The Client indemnifies NLÉ against all damage NLÉ may sustain as a result of claims made by third parties, including employees of the Client, relative to the products and/or services delivered by NLÉ to the Client.
10.8 The provisions of this clause also apply for the benefit of employees of NLÉ and any third parties enlisted by or for NLÉ for the delivery of products and/or provision of services.
11.0 Confidential Information and Non-Takeover Clause
- 11.1 The parties are obliged to observe confidentiality in relation to all confidential information, facts and circumstances that come to their knowledge in the context of the assignment, whether from the other party or from any other source, if it can reasonably be understood that disclosure or communication of this information to third parties might cause harm to NLÉ or the Client. Third parties involved in performing the assignment will also be bound to treat these facts and circumstances originating from the other party as confidential. Information will in any case be deemed to be confidential if it has been designated as such by one of the parties.
- 11.2 For the duration of the agreement and for one year after it comes to an end, each of the parties will only employ employees of the other party who were involved in the performance of the agreement, or have them work for it in some other manner, directly or indirectly, after proper and business-like consultations with the other party and with that other party’s written consent.
- 12.0 Other Provisions
- 12.1 If the Client wishes to issue the same assignment at the same time to others than NLÉ, or has already issued the assignment to another party, the Client will immediately inform NLÉ of this, stating the names of the other parties.
- 12.2 Parties are not not permitted to transfer any right arising from an agreement concluded with the other party to any third parties, otherwise than by transfer of its entire business or with the other party’s written consent.
- 12.3 If any provision of these General Terms and Conditions is void or is declared invalid, the other provisions of these General Terms and Conditions will continue to apply in full. In that case, the Parties will enter into consultations with the object of agreeing new provisions to replace the provisions that are void or have been declared invalid, whereby the object and the tenor of the conditions that are void or that have been declared invalid will be taken into consideration as far as possible.
- 12.4 The headings in these General Terms and Conditions only serve to assist readability and do not form part thereof.
12.5 All agreements between NLÉ and the Client are governed by the laws of Nigeria. In the first instance, the parties will try to resolve a dispute that arises between them by mutual consultation. In the event that mutual consultation fails, Parties would resort resolutions as provided in Clause 14 of this Agreement.
- 13.0 Force Majeure
- 13.1 A Party shall not be considered to be in default or breach of an agreement entered into with the other Party, and shall be excused from performance or liability for damages to the other Party, if such Party is delayed in or prevented from performing or carrying out any of the provisions of any agreement, arising out of or from any act, omission, or circumstance by or in consequence of any act of God, labour disturbance, sabotage, act of the public enemy, war, invasion, insurrection, riot, civil commotions, fire, storm, flood, earthquake, explosion, epidemic or pandemic, quarantine restrictions or any other cause or causes beyond such Party’s reasonable control, including any curtailment, order, regulation, or restriction imposed by governmental or lawfully established authorities or compliance with any law or regulation; provided that such Party shall use reasonable commercial efforts to mitigate, overcome or minimize the effects of the Force Majeure Events whenever such causes are removed. concerned, and shall continue performance hereunder with reasonable dispatch.
- 13.2 Either Party shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of any force majeure event.
- 13.3 If the period of delay or non-performance continues for Four (4) months or more, the Client may terminate this Agreement by giving Fourteen (14) day’s written notice to NLE.
- 14.0 Arbitration
- 14.1 Any dispute or difference arising between the Client and NLÉ, arising out of, or
related to an Agreement and any subsequent amendment to an Agreement, including without limitation to its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be settled by mutual consultation between the Parties, failing which it shall be, and is hereby referred to arbitration in accordance with the ARBITRATION AND CONCILIATION ACT CAP. A18 LAWS OF THE FEDERATION OF NIGERIA 2004 AND/OR ANY AMENDMENT THERETO and the award made in pursuance thereof shall be full and final.
- 14.2 The place of Arbitration shall be Lagos State of Nigeria, and the language of the arbitration shall be English.
- 14.3 The decision of the arbitrator shall be final and binding on the Parties and not subject to appeal, and shall include an order as to costs of such arbitration and who shall pay them. The arbitral award shall be enforceable in any court having jurisdiction thereon.
- 14.4 The inclusion of this arbitration clause shall not prevent a Party from seeking urgent relief from a competent court in Nigeria in appropriate circumstances.
- 14.5 Except as may be required by law, neither Party nor its representatives may disclose the existence, content or results of any arbitration hereunder without the prior written consent of either party.
- 14.6 Each Party shall pay its own proportionate share of arbitrator fees and