HKA GENERAL TERMS & CONDITIONS
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 “HKA”). Deviations from these General Terms and Conditions can only be agreed between the Client and HKA 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. 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 HKA, on which HKA bases its quotation, are correct and complete.
1.3 Assignments must be confirmed by the Client in writing. If the Client fails to do so but gives its consent for HKA to start carrying out the assignment, the contents of the quotation are deemed to have been agreed and these General Terms and Conditions apply. More detailed verbal arrangements and stipulations are only binding on HKA after it has confirmed them in writing.
2.0 Performance Of The Agreement
2.1 HKA will use its best endeavors 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. So far as necessary, HKA will keep the Client informed of the work’s progress.
2.2 The Owner will do all that is reasonably necessary or desirable to enable HKA to make timely and correct delivery, such as promptly supplying complete, reliable and clear data or materials that HKA 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 HKA by which to carry out the assignment is indicative only unless otherwise agreed in writing.
2.4 Unless otherwise agreed, the assignment issued to HKA does not include:
2.4.1 Conducting tests, applying for permits or assessing whether the Client’s instructions comply with statutory or quality standards;
2.4.2 Investigating whether there are any rights including patent rights, trademark rights, design or model rights, copyrights or portrait rights of third parties and reviewing whether the results of the services performed by HKA 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 the 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 an assignment, for which HKA 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 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.
2.7 Complaints must be communicated to HKA in writing as soon as possible but in any case within ten working days of completion of the assignment, failing which the Client will be deemed to have accepted the result of the assignment in full.
3.0 Enlisting Third Parties
3.1 HKA is permitted to enlist third parties for and during the performance of an assignment. At the Client’s request, HKA 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, HKA provides a budget for the costs of services of third parties, this budget is indicative only. If desired, HKA can request more precise quotations on behalf of the Client.
3.3 While carrying out the assignment, if HKA 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 If HKA issues assignments or instructions to production companies or other third parties, whether on behalf of the Client or otherwise, the Client will confirm its approval in writing to the third party concerned if asked to do so by HKA.
3.5 The Owner will not enlist third parties without prior acceptance of HKA if that may affect the performance of the assignment as agreed with HKA. 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 HKA 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 HKA or not. the Client must itself hold these third parties to account. In such cases, HKA can provide assistance if desired.
4.0 Intellectual Property Rights And Title
4.1 All intellectual property rights, including patent rights, trademark rights, design or model rights, and copyrights, to the results of the assignment, including drawings, specifications, and other documents and materials prepared by HKA, accrue to HKA. To the extent that such a right can only be obtained by means of filing or registering it, HKA is exclusively authorized to do so, unless otherwise agreed.
4.2 Unless otherwise agreed, the originals of the result that have been created by HKA in the context of the assignment (such as designs, design sketches, drafts, recommendations, reports, budgets, estimates, specifications, working drawings,
illustrations, photographs, prototypes, scale models, molds, 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 HKA 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 HKA.
4.3 HKA is at all times entitled to have its name mentioned in, or removed from, publicity in relation to the result of the assignment, as follows: [Design by HKA (www.hermann-kamte.com)] or is otherwise in the manner customarily used for that result. Unless HKA has given its prior written consent, the Client may not communicate the result to the public without mentioning HKA and its role, appropriately.
4.4 After the assignment is completed, neither the Client nor HKA will be obliged to retain the materials and data used unless otherwise agreed.
4.5 HKA 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.
4.6 With due regard to the Client’s interests, HKA is at liberty to use the results for its own publicity, acquisition of assignments, promotional activities, including competitions and exhibits, etc., and to obtain them on loan, if the results are tangible.
5.0 Use Of The Result
5.1 After the Client has complied in full with its obligations arising from the agreement with HKA, 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 the rights of third parties, the parties will make further arrangements as to how the use of these works will be regulated.
5.3 Without written consent, the Client may not alter the result of the assignment, use or reuse it or implement it in a broader or different manner than has been agreed, or allow the third parties to do so. HKA may attach conditions to any such consent, including the payment of fair compensation.
5.4 If the result is used more broadly or differently to what was agreed, which includes alteration, mutilation or impairment of the provisional or final result, HKA is entitled to a payment for infringement of its rights equivalent to at least three times the agreed fee, or, at the option of HKA, at least to compensation that is reasonably and fairly proportionate to the infringement, in addition to any other contractual or statutory rights.
6.0 Fees and Costs
6.1 HKA 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 HKA 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 upon.
6.3 If HKA is obliged to carry out additional or different work because of the late delivery or non-delivery of data/materials by the Client that is 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 HKA. HKA 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 cannot be attributed to HKA, the Client is obliged to pay any costs this may entail. HKA 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 HKA for increased costs. In the event of termination which is mainly attributable to the Client, HKA shall is paid for all services performed prior to termination, including a ratable share of the next fee installment, together with any reimbursable expenses incurred to that date plus a demobilization fee equal to 10% of the total fee payable above. HKA 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 HKA to full payment of the agreed fees.
6.6 If clear additions to the scope of HKA’s services result in an agreement between Client and HKA 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, HKA shall provide the required additional staff and Client shall pay according to HKA’s hourly rates for the additional services to be rendered by HKA.
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 HKA until all amounts owed by the Client to HKA 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, the Client will owe HKA statutory interest and extrajudicial costs of collection, which amount to at least 5% per month of the amounts due, subject to a minimum of €150.00 excluding VAT.
7.4 HKA will arrange for timely invoicing. In consultation with the Client, HKAmay charges an agreed fee and costs in the form of advance payments, interim payments, or periodically.
7.5 HKA 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 HKA is given to understand from 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 HKA 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 canceled, if:
8.1.1 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 a payment, or is otherwise in the breach;
8.1.2 If the assignment is terminated prematurely for reasons named in Clause 8.1 of these General Terms and Conditions;
8.1.3 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 If the Client cancels the agreement and there is no imputable failure on the part of HKA, or if HKA dissolves the agreement because of an imputable failure by the Client to perform the agreement, the Client will owe an amount as compensation, in addition to the fee and the costs incurred for the work carried out up to that point. Conduct of the Client on the basis of which HKA can no longer reasonably be required to complete the assignment will also be deemed to be an imputable failure in this context.
8.3 The compensation referred to in the preceding paragraph will include at least the costs arising from the obligations assumed towards third parties by HKA in its own name in order to carry out the assignment, as well as at least 30% of the remainder of the fee that the Client would owe if the assignment were completed in full.
8.4 HKA 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.
8.5 If HKA’s work consists of repeatedly carrying out similar types of work, this will constitute a continuing performance contract unless otherwise agreed in writing. Such an agreement may only be terminated by written notice of cancellation, with due regard to a reasonable notice period of at least three months, during which period the Client will continue to purchase the usual amount of work from HKA, or will compensate HKA financially.
9.0 Guarantees and Indemnifications
9.1 If the Client uses the results of the assignment, the Client will indemnify HKA or third parties enlisted by HKA for the assignment against all claims by third parties arising from the application or use of the result of the assignment. This is without prejudice to the liability of HKA to the Client for non-performance 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 Owner indemnifies HKA against claims in relation to intellectual property rights to all materials and/or data furnished by the Client that is used in the performance of the assignment.
10.1 HKA 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, HKA 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 HKA is only liable for alternative compensation, which means compensation of the value of the undelivered performance. All liability of HKA 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 HKA, 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 € 5,000.00 and in any case is at all times limited to a maximum of the amount paid to HKA by the insurer, where applicable. The amount for which HKA 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 HKA or its employees or subordinates, for which it can be held liable in law, HKA is only liable for compensation of damage resulting from the death or physical injury. In these cases, the compensation will in no circumstances exceed €7,500.00 per event causing damage, with a series of related events being deemed to be a single event.
10.5 Liability of HKA 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 € 7,500.00 per event causing damage.
10.6 Any entitlement to compensation is conditional on the Client reporting the damage to HKA 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 Owner indemnifies HKA against all damage HKA 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 HKA to the Client.
10.8 The provisions of this clause also apply for the benefit of employees of HKA and any third parties enlisted by or for HKA 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 HKA 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 HKA, or has already issued the assignment to another party, the Client will immediately inform HKA of this, stating the names of the other parties.
12.2 The Owner is not permitted to transfer any right arising from an agreement concluded with HKA to third parties, otherwise than by transfer of its entire business or with HKA’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 on 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 HKA and the Client are governed by Cameroon law. In the first instance, the parties will try to resolve a dispute that arises between them by mutual consultation. Unless the parties have expressly agreed to written arbitration, the courts of Yaoundé shall have exclusive jurisdiction.
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