Commemorative seating (community bench) terms and conditions

Contract Period 

The agreement will begin or be deemed to have begun on and including the start date of the agreement, and this agreement shall continue up to and including the end date of the agreement unless terminated earlier in accordance with this agreement (referred to in this agreement as the “Contract Period”).

Definitions and interpretation

1. The following definitions and terms apply in this agreement:
• “Application Form” means the application form set out at the beginning of this agreement.
• “BCP Council” means Bournemouth, Christchurch and Poole Council of BCP Council Civic Centre, Bourne Avenue, Bournemouth, Dorset, BH2 6DY.
• “Donation” means the amounts in pounds (including any VAT payable on those amounts) as set out in the ‘DONATION DETAILS’ section of the Application Form and all other amounts payable under this agreement.
• “Donor” means the individual or organisation as set out in the ‘Applicant details’ section of the Application Form.
• ‘Plaque’ means the plaque as detailed in the ‘DONATION DETAILS’ section of the Application Form and inscribed with the Wording.
• “Seat” means the seat as detailed in the ‘DONATION DETAILS’ section of the Application Form.
• “VAT” means value added tax or any equivalent tax chargeable in the United Kingdom.
• “Wording” means the wording as detailed in the ‘WORDING DETAILS’ section of the Application Form.
2. Without prejudice to the approval given in clause 8, where the approval consent agreement or determination of BCP Council is required under this agreement, any such approval or consent or agreement shall be at BCP Council’s absolute discretion and shall only be valid if it is made in writing by BCP Council.
3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
4. References to clauses in this agreement are to the clauses of this agreement.

Acknowledgements

5. The Donor acknowledges that:
   (a) this agreement shall have no effect unless the Application Form is signed by both the Donor and BCP Council;
   
   (b) no relationship of landlord and tenant is created between the BCP Council and the Donor by this agreement;
   
   (c) BCP Council retains control, possession, ownership and management of the Seat, Plaque, property and other items and sites referred to in this agreement and the Donor has no right to exclude BCP Council from any such Seat, Plaque, property or any other items or sites referred to in this agreement;
   
   (d) this agreement is not assignable nor sub-contractable by the Donor;
   
   (e) BCP Council shall be entitled in BCP Council’s absolute discretion and at any time on giving not less than one months’ notice to the Donor (except in the case of emergency when no notice is necessary) that BCP Council shall move the Seat and/or Plaque to an alternative space (such alternative space to be determined by BCP Council in its absolute discretion) and the Donor shall comply with and permit such relocation;
   
   (f) the parties may agree to extend the Contract Period in BCP Council’s absolute discretion provided that no extension of the Contract Period shall be effective unless it is in writing and signed by both BCP Council and the Donor; and
   
   (g) the parties may agree to vary the terms of this agreement in BCP Council’s absolute discretion provided that no variation shall be effective unless it is in writing and signed by both the Donor and BCP Council;
   
   (h) the Application Form forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Application Form and these terms and conditions.

Design and Wording

6. The Donor shall ensure that the Wording is clearly written in block capitals on the Application Form. The Donor acknowledges that BCP Council is unable to accept responsibility for any incorrect Wording due to illegible or ambiguous writing.
7. The Donor confirms the Wording and all other details on the Application Form are correct by signing this agreement.
8. Notwithstanding any other provision contained in this agreement, BCP Council approves the Wording, Plaque and Seat and specifications designs positioning and location thereof as detailed on the Application Form provided that such approval of BCP Council shall have no effect unless the Application Form is signed by both BCP Council and the Donor.
9. BCP Council has full control over the specifications design wording position and location of the Plaque and the Seat and the Donor shall adhere to any requirements and regulations made by BCP Council from time to time.
10. The Donor shall ensure that any Plaque and Wording installed inscribed or made under this agreement shall comply with BCP Council’s ‘Advertising and sponsorship policy’ and all other policies of BCP Council in force from time to time.
11. Where the proposed Plaque exceeds the maximum size of 15cm x 5cm then the Donor shall include on the Application Form a fully dimensioned sketch of the Plaque that shows all details of all materials, all text and graphics and location and a sketch showing how and where it is to be affixed to the Seat provided that any such Plaque or Wording or Seat shall be subject to approval of BCP Council in its absolute discretion. BCP Council has absolute discretion over whether the text, graphics, nature, size, specifications, design and shape of the Plaque or Wording is appropriate for affixing to the Seat. The Donor is responsible for sourcing, funding and delivery of any such Plaque to be affixed to a Seat pursuant to this clause 11.
12. The Donor shall provide the Wording (text only) to be included or inscribed on the Plaque for approval in writing of BCP Council and BCP Council will determine in its absolute discretion the size and font of the lettering and such Wording shall consist of a maximum of 64 characters, letters and spaces on a maximum of 4 lines unless otherwise agreed in writing by BCP Council.
13. The Donor shall ensure that any Wording does not contravene the Trade Description Act 1968, or infringe any copyright or any other statutory control or regulation and BCP Council may withdraw and remove any offending Plaque or text at any time and at the cost of the Donor.
14. Only the person or organisation named as the Donor in this agreement can submit a request to BCP Council to amend the Wording or the Plaque.

Payment of Donation

15. The Donor agrees to donate the Donation to BCP Council’s public seating scheme and agrees to pay the Donation in full to BCP Council by credit or debit card or by cheque (all cheques shall be made payable to BCP Council) before the start of the Contract Period.
16. The Donor acknowledges that payment receipts will not be issued by BCP Council unless requested by the Donor and provided further that the Donor has complied with clause 15.
17. The Donor understands that if the Donor requires the Seat to be moved to a new location where a new base is required, then an additional charge of £250 (plus any VAT) (or such greater amount as determined by BCP Council from time to time) must be paid by the Donor to BCP Council in addition to the Donation.
18. If the Donor wishes to make changes to the Wording contained on the Plaque after it has been produced and/or installed the Donor will be responsible for the additional costs incurred and charges will be based on current rates as determined by BCP Council from time to time.
19. If the Donor wishes BCP Council to add a further plaque or sign to the Seat (in the absolute discretion of BCP Council), the Doner will incur additional charges as determined by and payable to BCP Council.
20. Except to the extent that the Donor shall pay the costs referred in clause 11, the Donor acknowledges that the Donation includes installation of the Seat and the affixing of the Plaque to the Seat (subject to approval of BCP Council of the Seat and Plaque).
21. The Plaque shall not be representative of the amounts of Donation payable under this agreement in the Wording, size or design of the Plaque.

Maintenance and Repair

22. Subject to the Donor complying with terms of this agreement, reasonable effort will be taken by BCP Council to maintain the relevant Seat installed under this agreement in a good condition provided that BCP Council shall not be obliged to carry out any maintenance works more than once every five years and provided further that BCP Council will not be liable to replace the Plaque or Seat, which is damaged or stolen, or becomes unfit for use by whatever reason or means. Repair and/or replacement is undertaken at the discretion of BCP Council.

Change in address

23. It is the responsibility of the Donor to inform BCP Council by email to commemorate@bcpcouncil.gov.uk of any change to the Donor’s address. Due to the Data Protection regulations, BCP Council will not be able to contact the Donor if the Donor has not informed BCP Council in writing of any change to the Donor’s address. If the last recorded address proves to be incorrect, BCP Council shall not pursue any renewal of this agreement.

Additional arrangements

24. BCP Council may alter or develop the site in which the Seat is located (or any neighbouring or adjoining property within the ownership of BCP Council or in which BCP Council acquires an interest) as BCP Council may think fit.
25. The Donor understands that the Seat will be in an area that the Donor has selected in conjunction with BCP Council provided that such area shall be subject to final approval of BCP Council in its absolute discretion.
26. The Donor understands that delivery and installation timescales of any Seat and Plaque will vary depending upon the style, time of year and staff availability.
27. The Donor acknowledges that the Seat is being donated to BCP Council and the Seat shall remain the property of BCP Council (or any successor authority or any legal person or entity appointed by BCP Council to act for or to replace BCP Council).
28. BCP Council may (but shall not be obliged to) contact the Donor towards the end of the Contract Period to negotiate an extension of the Contract Period in accordance with clause 5(f) (in BCP Council’s absolute discretion).
29. At the end of the Contract Period (howsoever determined), the Donor understands that if the Contract Term is not extended in accordance with clause 5(f):(a) the Seat and location may be offered to others for the installation of plaques, advertisements and promotions; and(b) the Plaque may be removed by BCP Council and if requested by the Donor may be sent to the last address recorded for the Donor or otherwise disposed of by BCP Council in BCP Council’s absolute discretion.
30. It is not possible to reserve a specific location for the Seat or Plaque and such location is subject to approval by BCP Council in its absolute discretion. The area chosen will determine the type of Seat that is available as determined by BCP Council in its absolute discretion. The specific positioning of the Seat will be determined by a BCP Council representative in its absolute discretion.
31. Where applications are received for plaques for the same location and plot, applications will be assigned in the order that they are received by BCP Council. Where a seat plot has already been allocated then BCP Council may offer alternative locations in its absolute discretion. Such alternative location may include the site of another seat where BCP Council has determined that such other seat is to be replaced.
32. BCP Council may refuse to accept a donation request or to refuse any request that is deemed inappropriate in BCP Council’s absolute discretion. BCP Council will not consider applications from anyone and/or organisations and/or businesses that it considers do not share its core values with BCP Council (in BCP Council’s absolute discretion).
33. Flowers (fresh or artificial), balloons, lanterns, memorabilia and any other items of any type shall not be attached to or placed on the Seat by the Donor or any other users of the Seat and any such items may be removed and disposed of by BCP Council in its absolute discretion.
34. Only memorial plaques will be permitted by BCP Council on seats in some locations as determined by BCP Council in its absolute discretion, this may include cemeteries and other memorial sites.
35. The Donor shall not make any alteration or addition to the Seat nor add any plaques or signs to the Seat. 636. The Donor acknowledges that BCP Council may in its absolute discretion attach other plaques and advertisements to the Seat (including any plaques or advertisements attached at the request of other donors or advertisers or anyone else) provided that the maximum number of any such plaques or advertisements attached by BCP Council to the Seat at any one time shall not exceed the maximum number of plaques or advertisements outlined in the ‘DONATION DETAILS’ section of the Application Form.

Termination

37. This agreement shall end on the earliest of: a. the end date of the Contract Period; b. the expiry of any notice given by BCP Council to the Donor at any time on breach of any of the Donor’s obligations contained in this agreement; and c. the expiry of not less than six months' notice given by BCP Council to the Donor.
38. Termination of this agreement shall not affect the rights of either party in connection with any breach of any obligation under this agreement which existed at or before the date of termination.

Notices

39. Any notice given to a party under or in connection with this agreement shall be in writing and shall be given by hand or by pre-paid first-class post or other next working day delivery service:
    (a) to BCP Council at: Bournemouth, Christchurch and Poole Council of BCP Council Civic Centre, Bourne Avenue, Bournemouth, Dorset, BH2 6DY, or such other address as notified by BCP Council to the Donor in accordance with clauses 39 and 40.
    (b) to the Donor at: the address of the Donor specified in the ‘Applicant details’ section of the Application Form, or such other address as notified by the Donor to BCP Council in accordance with clause 23.
40. If a notice complies with the criteria in clause 39, it shall be deemed to have been received:
    (a) if delivered by hand, at the time the notice is left at the relevant address pursuant to clause 39; or
    (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting.
41. Clauses 39 and 40 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
42. Except to the extent permitted under clause 23, a notice given under this agreement is not valid if sent by email.

Limitation of BCP Council’s liability

43. Subject to Clause 44, BCP Council is not liable for:
    (a) the death of, or injury to the Donor or other users of the Seat; or
    (b) damage to any property of the Donor or that of other users of the Seat; or
    (c) any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by the Donor or other users of the Seat.
44. Nothing in this agreement shall limit or exclude BCP Council’s liability for:
    (a) death or personal injury or damage to property caused by negligence on the part of BCP Council or its employees or agents; or
    (b) any matter in respect of which it would be unlawful for BCP Council to exclude or restrict liability.
45. The Donor acknowledges that BCP Council shall not have any liability to the Donor, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss arising under or in connection with this agreement.
46. BCP Council shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control including, but not limited to, epidemic, pandemic or war.

Miscellaneous

47. Any personal information the Donor provides BCP Council with, will be held and used in accordance with the law and the Data Protection Act 2018. If the Donor would like to find out more information about how BCP Council uses the Donor’s information, please see BCP Council’s Privacy Notice here: bcpcouncil.gov.uk/privacy
48. None of the terms and conditions contained in this agreement are intended to or will operate to confer any benefit (pursuant to the Contracts (Rights of Third Parties) Act 1999) on a person who is not named the Donor of the donated Seat or Plaque.
49. BCP Council enters into this agreement only in its capacity as owner of the Seat and other items referred to in this agreement (and not in any capacity as planning or highway authority) and nothing contained in this agreement shall prejudice, override, modify or in any other way affect the rights, powers, duties and obligations of BCP Council in the exercise of its statutory powers as a local authority.
50. BCP Council gives no warranty that the Seat or any other items referred to in this agreement are physically fit for the purposes specified in this agreement.
51. BCP Council may transfer or assign ownership, control or management of BCP Council’s donated public seating scheme and any contracts entered into in relation to it, at any time.
52. The Donor has read and accepts these terms and conditions and agrees to abide by them by signing the Application Form