TERMS & CONDITIONS
TERMS AND CONDITIONS OF BUSINESS OF CREATIVITY SPECIFIED LIMITED
In these Conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
1.1 “Background Materials” - all and any documents, products and materials owned by or licenced to the Designer prior to the commencement of the Contract;
1.2 “Business Day” – a day (other than a Saturday, Sunday or public holiday in the United Kingdom) when banks in London are open for business;
1.3 “Contract” – the contract between Designer and the Client for the supply of the Products and/or Services which consists of the Project Proposal and/or the Design Pack and these Conditions;
1.4 “Client” – the natural person, corporate or unincorporated body (whether or not having a separate legal personality) named in the Project Proposal for whom the Products and/or Services are to be supplied;
1.5 “Client Deliverables” – all documents, samples and materials (other than the Products) developed by the Supplier or its agents, contractors or employees as part of or in relation to the Services and/or the Products in any form or media including drawings, plans, diagrams, sample boards, product samples, designs, pictures and specifications;
1.6 “Conditions” – the terms and conditions of business set out in this document as amended from time to time in accordance with Condition 2.5;
1.7 “Designer” – Creativity Specified Limited (No. 10154974) whose registered office is at 15 Cufaude Lane, Sherfield On Loddon, Hook, Hampshire RG27 0FL;
1.8 “Designer Materials” – has the meaning given in Condition 3.4;
1.9 “Fees” – the Service Fees and the Product Fees;
1.10 “Force Majeure” – has the meaning given in Condition 12;
1.11 “Design Pack” – the document issued by the Designer to the Client which contains, inter alia, details of the Products and the Product Fees;
1.12 “Input Materials” – all and any documents, products and materials provided by the Client relating to the Products and/or Services
1.13 “Intellectual Property Rights” – patents, trade and service marks, registered designs, internet domain names, improvements and modifications to any of the foregoing and right to apply for the protection for such registered rights anywhere in the world; inventions, discoveries, copyright, design rights, rights in computer software, database rights, unregistered trade and service marks, brand names, trade secrets and confidential information, know-how; and any other intellectual property and any similar or equivalent rights whether registrable or not arising or granted or subsisting under the law of any other country or state
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1.14 “Products” – the furniture and other products (or any part of them) to be supplied by the Designer to the Client as specified in the Project Proposal and as more particularly described in the Design Pack;
1.15 “Product Fees” – the fees payable by the Client to the Designer for the Products as specified in the Design Pack (as increased pursuant to Condition 8.6;
1.16 “Project Proposal” – the document issued by the Designer to the Client which sets out, inter alia, details of the Services and the Service Fees;
1.17 “Services” – the services to be supplied by the Designer to the Client s specified in the Project Proposal;
1.18 “Service Fees” – the fees payable by the Client to the Designer for the Services as specified in the Project Proposal (as increased pursuant to Condition 8.6;
1.19 The headings in these Conditions are for convenience only and shall not affect their interpretation or construction
1.20 A reference to any statute or statutory provision shall be construed as a reference to any statutory amendment, re-enactment or extension thereof and includes any subordinate legislation made under that statute or statutory provisions as amended, re-enacted or extended;
1.21 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and the masculine gender shall include the feminine and neuter;
1.22 A reference to a party includes its personal representatives, successors and permitted assigns; and
1.22.1 any phrase introduced by the terms “including”, “include”, “in particular” or
1.22.2 any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.0 Contract and Parties
2.1 The Project Proposal constitutes an offer by the Designer to the Client to supply the Products and/or the Services in accordance with these Conditions. It is valid for a period of 21 days from the date of issue unless withdrawn earlier by the Designer giving written notice thereof to the Client.
2.2 There shall be no agreement binding upon the Designer until the Designer has received a signed copy of the Project Proposal or written confirmation of acceptance of the Project Proposal by the Client;
2.3 Any descriptions or illustrations contained in the Designer’s catalogues and/or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the products and/or services described in them. They shall not form part of the Contract or have any contractual force;
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing;
2.5 No variation to the Contract, including the introduction of any additional terms and conditions, shall be binding unless agreed in writing by the Designer;
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2.6 All of these Conditions shall apply to the supply of both the Products and Services except where the application to one or the other is specified;
2.7 The provisions of the Project Proposal and any appendices other than these Business Terms (“Project Proposal”) issued by the Designer and addressed to the entity identified in the Project Proposal (“Client”), and these Business Terms (together the “Contract”) constitute the whole agreement between the Client and the Designer in relation to the services, deliverables and work product described in the respective Project Proposal to be provided by the Designer (including the Advice as defined below) and the Designers responsibilities for them (the “Services”). Capitalized terms not defined in the Business Terms shall have the meaning given to them in the Project Proposal.
2.8 For the purposes of the Contract, the term “Client” shall mean the entity which signed the Project Proposal and/or member(s) of the Client Group being a party to or being identified in the respective Project Proposal. Client represents and warrants that it has the power and authority to:
2.8.1 sign the Contract, and
2.8.2 to bind itself and the members of the Client Group as identified in the Project Proposal.
2.9 The Designer may subcontract any Services under this Contract to any other third party (collectively “Subcontractor”). Client’s relationship is solely with the Designer as the entity contacting to provide the Services. Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, employer, partner, fiduciary, joint venture, co-owner, or representative.
2.10 The Designer is responsible to the Client for all of the Services performed or to be performed under this Contract. Accordingly, to the fullest extent possible under applicable law, the Client will not bring any claim, or proceedings of any nature (whether in contract, or tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or in connection with this Contract against any of The Designers individual persons (e.g. directors, employees or person intends to assume responsibility (including responsibility in any personal capacity) for the provision of Services under the Contract, except the Designer. The Client agrees that it will not bring any claim against any of such individual person as the Designer remains responsible and liable to the Client for the acts or omissions in relation to the provision of Services under the terms of this Contract.
3.0 Responsibilities of the Client
3.1 The Client shall ensure that the Products and/or the Services are suitable or its requirements. The Client shall cooperate with the Designer and its Subcontractor in connection with the performance of the Services, including, without limitation, providing the Designer and its Subcontractors with reasonable facilities and timely access to data, information, materials and personnel of the Client Group or other persons whose cooperation is necessary for the provision of the Services. The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy and completeness of all data and information (including drawings, approvals, planning consents and all other relevant information connected with the Services) provided to the Designer and its Subcontractors by or on behalf of the Client and for the implementation of any advice, drawings, opinions, reports, or other work product in any form provided by or on behalf of the Designer and/or its Subcontractors as part of the Services (“Advice”). The Designer and its Subcontractors may use and rely on information and data furnished by the Client or by others identified by the Clients without verification. The performance of the Services is dependent upon the timely performance of the Client’s responsibilities under the Contract and timely decisions and approvals of the Client in connection with the Services. The Designer and its subcontractors shall be entitled to rely on all decisions and approvals of the Client. The Client agrees that all data, information and documentation necessary for the provision of the Services must be provided directly to the Designers personnel performing the Services even if such data, information and documentation have already been provided to other Designers personnel in the course of a different engagement.
3.2 The Client shall be solely responsible for, among other things:
3.2.1 making all management decisions and performing all management functions;
3.2.2 designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably with senior management to oversee the Services;
3,2,3 evaluating the adequacy and results of the Services;
3.2.4 accepting responsibility for the implementation and execution of the results of the Services and other further course of action carried out on the basis of the results of the Services; and
3.2.5 establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.
3.3 The Client shall provide the Designer, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities, including utilities, as reasonably required by the Designer to supply the Products and/or Services;
3.4 The Client shall keep and maintain all materials, equipment, documents and other property of the Designer (“Designer Materials”) at the Clients premises in safe custody at its own risk, maintain the Designer Materials in good condition until returned to the Designer, and not dispose of or use the Designer Material other than in accordance with the Designers written instructions or authorisation;
3.5 The Client hereby acknowledges and agrees that any failure by the Client to perform any of the obligation set out in Condition 3.1 to 3.4 (inclusive) may prohibit effective action by the Designer and render the Designer unable to supply the Products and/or Services and that in such circumstances:
3.5.1 the Designer shall be under no liability to perform its obligations under the Contract to the extent that such performance is prohibited by such failure of the Client; and
3.5.2 if the Client fails to perform any such obligations for a period of fourteen days or more, the Designer shall be entitled to terminate the Contract
4.0 Responsibilities of the Designer
4.1 The Services provided are not binding on any governmental or regulatory authorities or the courts and do not constitute a representation, warranty, or guarantee that other governmental or regulatory authorities or the courts will concur with the Advice. Any Advice provided by or on behalf of the Designer will be based upon the law, regulations, rulings and other authority in effect at the time the specific Services are provided. Subsequent changes in or to the foregoing (for which the Designer shall have no responsibility to advise Client) may result in the Services provided by or on behalf of the Designer being rendered invalid.
4.2 In formulating any Advice as part of the Services, the Designer may discuss ideas with Client orally or show the Client drafts of the Advice. To the extent that the content of drafts or oral Advice are expected to be finalised and confirmed to the Client in writing (including via e-mail), such confirmed Advice shall supersede any previous drafts or oral Advice. The Designer shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of any drafts or oral Advice.
4.3 In the event of an inspection carried out by any governmental or regulatory authorities, whether or not as a consequence of the Services provided, the Client agrees that any assistance of the Designer relating to such inspection does not form a part of the Services except as otherwise provided in the Project Proposal.
4.4 The Designer shall have no responsibility to monitor events occurring after the date of the Services, nor to update any Advice unless the parties have agreed otherwise in writing explicitly.
5.0 Products & Delivery
5.1 To the extent that the Products are to be manufactured or any process is to be applied to the Products in accordance with a specification supplied by the Client, the Client shall indemnify the Designer 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 the Designer in connection with any claim made against the Designer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Designers use of such specification. This Condition 5.1 shall survive termination of the Contract.
5.2 The Designer reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
5.3 Delivery of the Products shall be made by the Customer collecting the Products at the Designers premises within three Business Days of the Designer notifying the Clients that the Products are ready for collection or, if some other place for delivery is specified in the Project Proposal or the Design Pack, by the Designer delivering the Products to that place at any time after the Designer notifies the Client that the Products are ready for delivery.
5.4 Any dates quote for delivery are approximate only, and the time of delivery of Products is not of the essence of the Contract. The Designer shall not be liable for any delay in delivery of the Products that is caused by:
5.4.1 and event of Force Majeure;
5.4.2 any delay in payment of, or failure to pay, the Product Fees in accordance with Condition 8.2; or
5.4.3 the Clients failure to provide the Designer with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5.5 If the Designer fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Products. The Designer shall have no liability for any failure to deliver the Products to the extent that such failure is caused by:
5.5.1 Force Majeure;
5.5.2 any delay in payment of, or failure to pay, the Product Fees in accordance with Condition 8.2; or
5.5.3 the Clients failure to provide the Designer with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5.6 If the Client fails to take or accept delivery of the Products within three Business Days of the Designer notifying the Client that the Products are ready then, except where such failure or delay is caused by an event of Force Majeure or the Designers failure to comply with its obligations under the Contract:
5.6.1 delivery of the Products shall be deemed to have been completed by 9.00am on the third Business Day following the day on which the Designer notified the Client that the Products were ready; and
5.6.2 the Designer shall store the Products until delivery takes place, and charge the Client for all related costs and expenses (including insurance).
5.7 If ten Business Days after the Designer notified the Client that the Products were ready for delivery the Client has not taken or accepted delivery of them, the Designer may resell or otherwise dispose of part or all the Products and, after deducting reasonable storage and selling costs, account for any shortfall below the price of the products;
5.8 The Designer may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall not entitle the Client to cancel any other instalment.
6.0 Title and Risk
6.1 The risk in the Products shall pass to the Client on completion of delivery;
6.2 Title to the Products shall not pass to the Client until the Designer has received payment in full (in cash or cleared funds) for:
6.2.1 the Products; and
6.2.2 any other goods or services that the Designer has supplied to the Client in respect of which payment has become due.
6.3 Until title to the Products has passed to the Client, the Client shall:
6.3.1 hold the Products on a fiduciary basis as the Designer’s bailee;
6.3.2 maintain the Products in a satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.3 notify the Designer immediately if it becomes subject to any of the events listed in Conditions 27.2.4 to 27.2.14 (inclusive); and
6.3.4 give the Designer such information relating to the Products as the Designer may require from time to time.
6.4 If before title to the Products passes to the Client the Client becomes subject to any of the events listed in Conditions 27.2.4 to 27.2.14 (inclusive), or the Designer reasonably believes that any such event is about to happen and notifies the Client accordingly then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Designer may have, the Designer may at any time require the Client to deliver up the Products and, if the Client fails to do so promptly, the Designer or its agents may enter any premises of the Client or any third party where the Products are stored in order to recover them.
7.0 Supply of the Service
7.1 The Designer shall provide the Service to the Client in accordance with the Project Proposal in all material respects.
7.2 The Designer may at any time and from time to time upon giving written notice thereof to the Client make such changes to the Services:
7.2.1 as are reasonably necessary to comply with any applicable statutory, regulatory or safety requirements; or
7.2.2 which do not materially affect their nature or quality.
7.3 The Designer shall use reasonable endeavours to meet any dates quoted in the Project Proposal for the performance of the Services, but such dates are approximate only and the Designer shall not be liable for any delay in performing the Services howsoever caused. Time for the performance of the Service shall not be of the essence of the Contract.
8.0 Fees and Payment Terms
8.1 The Client shall pay the Service Fees in cash or cleared funds on the dates specified in the Project Proposal.
8.2 The Client shall pay the Product Fees in cash or cleared funds in advance of delivery of the Products.
8.3 Time of payment is of the essence of the Contract.
8.4 The Designer shall be entitled to charge the Client for any expenses reasonably incurred by the individual whom the Designer engages 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 the Designer for the performance of the Service, and for the cost of any materials.
8.5 Any estimate of the total fees for the Services, if so explicitly agreed in the Project Proposal, will be based upon the Designer’s assessment of the work, taking into account of any assumption set out in the Project Proposal. Such estimated fees may be adjusted, for example, if the Services proved more complex or time consuming than expected, whereas in such situation, the Designer shall inform the Client about such expected adjustment as soon as possible and the parties shall agree on such adjustments
8.6 The Designer reserves the right to increase the Fees, by giving notice to the Client at any time before delivery, in the case of Products, and at any time before the date of the Designers final invoice for the Fees, in respect to the Services, to reflect any increase in the cost of the Products and/or Services to the Designer that is due to:
8.6.1 any factor beyond the control of the Designer (including foreign exchange fluctuations, increases in taxes and duties, and increase in labour, materials and other manufacturing costs);
8.6.2 any request by the Client to change delivery date(s), quantities or types of Products and/or Services ordered, or the specification of the Products and/or Services; or
8.6.3 any delay caused by any instructions of the Client in respect of the Products and/or Services or failure of the Client to provide the Designer adequate or accurate information or instructions in respect of the Products and /or Services.
8.7 The Product Fees are inclusive of all costs and charges of packaging, insurance and delivery of the Products.
8.8 All sums due to the Designer under the Contract shall be paid in full without deduction or withholding other than as required by law and the Client shall not assert any set-off or counterclaim against the Designer (whether on the grounds of breach of contract on the part of the Designer or otherwise) in order to justify withholding payment of any such amount in whole or in part. No payment shall be considered made by the Client until cleared funds have been received by the Designer. Receipts for payment will be issued only upon request.
8.9 The Designer invoices are due and payable by the Client upon presentation within seven days of the due date then. without prejudice to any other right or remedies available to the Designer, the Designer shall have the right to:
8.9.1 terminate the Contract forthwith or suspend the provision of any further Services entirely or in part if payment is not received within seven days of the invoice date. In case there is any dispute over the invoiced amount, the undisputed amount shall be paid by the Client;
8.9.2 appropriate any payment made by the Client to such of the Products and/or Services (or the products and/or services supplied under any other agreement between the Client and the Designer) as the Designer may think fit; (C) charge the Client a late payment fee of £25;
8.9.3 charge the Client interest (both before and after any judgement) on the amount unpaid at the highest rate mandated or allowable by law with a minimum of 1.5% per month, or
8.9.4 the rate specified by mandatory laws that cannot be modified by the agreement of the parties, in each case compounded monthly to the extent allowable by law. Where applicable, the Client shall be responsible for all taxes, such as VAT imposed or in connection with the Services, other than the Designer’s income and property taxes.
8.10 The determination of the fees for the Services and the Client’s obligation to pay the fees for the Services are not conditioned by the conclusions or the result of the Services.
8.11 The fee for the provision of the Services does not include the expenses incurred by the Designer in connection with the provision of the Services. Reasonable expenses incurred by the Designer, including travel and subsistence, and goods and services purchased in connection with the provision of the Services will be charged in addition to the fee for the provision of the Services.
8.12 The Designer reserves the right to invoice the provided Services on an ongoing basis (including progress invoicing) in accordance with the amount of Services performed or to request an advance payment before the Services are rendered. The Designer reserves the right to ask advance payment of expenses to be made on behalf of the Client.
8.13 In order to compensate any fee payable, the Designer is entitled to offset any of its receivables from the Client against any receivables the Client may have from the Designer.
8.14 The Services are supplied continuously unless the parties agree otherwise. Each supply shall be regarded as having been rendered on the date the related invoice is issued, unless applicable mandatory laws stipulated otherwise.
9.1 At any time prior to the completion of the supply of the Product and/or Service, the Designer may recommend to the Client and the Client may request from the Designer changes to be made to the Products and/or Services.
9.2 The Designer will notify the Client in writing within five Business Days of receipt of a change request from the Client or the making of a change recommendation to the Client of the time and cost needed to investigate the implications of implementing the proposed change. The investigation will be carried out only with the Clients prior written consent and the Designer will use reasonable endeavours to carry out any investigation within ten Business Days of making the notification to the Client.
9.3 Following the investigation (if any) the Designer will give a written estimate (valid for twenty-one days from the date it is given to the Client) showing the increase or decrease in the Fees and any other impact on the Products and/or Services should the proposed change be implemented.
9.4 Should the Client wish to proceed with the proposed change it will notify the Designer in writing of the fact as soon as reasonably practicable after receipt of the written estimate but not later the ten Business Days (or such longer period as may be agreed) after such receipt.
9.5 Until any change is formally agreed between the Designer and the Client, the Designer will continue to perform and be paid for the Products and/or Services as if the change had not be been proposed.
9.6 The Designer shall from time to time submit to the Client for approval proofs of the Client Deliverables (“Proofs”), and the Client shall either approve the Proofs or request revisions, corrections and additions (“Changes”) to be made to the Proofs provided that such Changes fall within the Project Proposal.
9.7 If the Client does not request any Changes to be made to the Proofs within fourteen days of their submission it shall be deemed to have approved them. Once the Proofs have been approved or deemed approved, the Client Deliverables shall be deemed to be accepted by the Client and shall constitute the final approved versions of the Client Deliverables (“Final Designs”).
9.8 There shall be no additional charges to the Clients for any Changes requested by the Client:
9.8.1 to the Client Deliverables before the Proofs have been approved in accordance with Condition 9.6, PROVIDED THAT the number of iterations of Changes shall not exceed two; or
9.8.2 to the Final Designs at any time if the Changes are necessary to correct errors on the part of the Designer or to accord with any description of the Clients Deliverables in the Project Proposal.
9.9 Any other Changes requested by the Client shall be chargeable to the Client at the Designer’s standard rates in force at the date Changes are requested. Any additional charges shall be paid within fourteen days of the date of the Designer’s invoice therefor.
9.10 The Client shall be deemed to have approved any Changes that have been made to the Client Deliverables if it does not notify the Designer to the contrary within fourteen days of the Changes being made.
9.11 If during the period mentioned in Condition 9.10, the Client notifies the Designer that it still does not approve the Clients Deliverables despite the Changes being made, then the parties will negotiate in good faith to resolve the matter. If the parties are unable to resolve the matter within a period of fourteen days following the expiry of the period mentioned in Condition 9.10, the Client shall be entitled to terminate the Contract. If the Client does not terminate the Contract during such period, then it shall be deemed to have approved the Clients Deliverables.
10.0 Ownership of the Designer’s Property & Advice
10.1 To the extent that the Designer uses or develops any of its property (whether tangible or intangible) in connection with this Contract, such property, including work papers, drawings, photography shall remain the property of the Designer. Subject to payment of all of the Designer’s fees due in connection with the Services and this Contract, the Client shall only obtain a non-exclusive, non-transferable license to use the Advice for the purpose set out in the Contract or in the Advice and in compliance with the other provisions of the Contract. The fee agreed in the Project Proposal includes the license fee unless specifically excluded. The Designer shall have ownership (including without limitation, copyright and other intellectual property ownership) of the Advice and all rights to use and disclose its ideas, concepts, know-how, methods, techniques, processes and skills, and adaptations thereof in conducting its business, and the Client shall ensure that the Client does not assert or cause to be asserted against the Designer or its personnel any prohibition or restraint from so doing. Any intellectual property and other proprietary rights in materials and data provided by the Client or performing the Services shall remain the property of the Client.
10.2 Notwithstanding anything to the contrary in the Contract, the Client acknowledges that the Designer and its Subcontractors, in connection with performing the Services, may develop or acquire general experience, skills, knowledge, and ideas that are retained in the memory of their personnel. The Client agrees that the Designer may use or disclose such experience, skills, knowledge and ideas without restriction.
11.0 Warranties and Liabilities
11.1 This is a services agreement. The Designer warrants that it shall perform the Services in good faith and with due professional care and skill. To the fullest extent permitted by law, the Designer disclaims all other warranties either expressed or implied.
11.2 The Designer warrants that on delivery and for a period of 12 months from the date of delivery the Products, to the extent that they have been manufactured by the Designer, shall:
11.2.1 conform in all material respects with their description;
11.2.2 be free from material defects in design, material and workmanship;
11.2.3 be of satisfactory quality (within the meaning of the Sale of Products Act 1979); and
11.2.4 be fit for any purpose held out by the Designer.
11.3 Subject to Condition 11.4, if:
11.3.1 the Client gives notice in writing during the warranty period specified in Condition 11.2 within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in Condition 11.2;
11.3.2 the Designer is given a reasonable opportunity of examining such Products; and
11.3.3 the Client (if asked to do so by the Designer) returns such Products to the Designer’s place of business at the Client’s cost, and
11.3.4 the Designer shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
11.4 The Designer shall not be liable for the Products’ failure to comply with the warrantees in Condition 11.2 if:
11.4.1 the Client makes any further use of such Products after giving a notice in accordance with Condition 11.3;
11.4.2 the defect arises because the Client failed to follow the Designer’s oral or written instructions as to the storage, installation, commissioning, used or maintenance of the Products or (if there are none) good trade practice;
11.4.3 the defect arises as a result of the Designer following any drawing, design or specification supplied by the Client,
11.4.4 the Client alters or repairs such Products without the written consent of the Designer;
11.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
11.4.6 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
11.5 Except as provided in this Condition 11, the Designer shall have no liability to the Client in respect of the Products’ failure to comply with the warranties set out in Condition 11.2.
11.6 The warranties in Condition 11.2 shall apply to any repaired or replacement Products supplied by the Designer under Condition 11.3 for the unexpired portion of the appropriate warranty period specified in Condition 11.2.
11.7 Where, in connection with supply of Products, the Designer supplies any goods supplied by a third party, the Designer does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Designer.
11.8 Subject to the foregoing, all conditions, warranties and other terms implied by statute, common law or otherwise, in respect of the supply of the Products and/or Services are hereby excluded to the fullest extent permitted by law.
11.9 Nothing in these Conditions shall limit or exclude the Designers liability for:
11.9.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.9.2 fraud or fraudulent misrepresentation;
11.9.3 breach of terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession);
11.9.4 breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession); or
11.9.5 defective products under the Consumer Protection Act 1987.
11.10 Subject to Condition 11.9, the Designer shall not be liable to the Client for any claims, liabilities, losses, damages, costs or expenses or other claims for compensation arising from or in connection with any documents, materials, data or other information or instructions supplied to the Designer by the Client in connection with the provision of Services including, without limitation, the Input Materials, which are incomplete, incorrect, inaccurate, illegible, out of sequence or in any wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
11.11 Subject to Condition 11.9, and save as expressly provided in these Conditions, the Designer shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law or under the express terms of the Contract and whether in contract, tort (including negligence), breach of statutory duty or otherwise for any consequential loss or damage arising out of or in connection with the supply of the Products and/or Services (including any delay in performing or failure to supply the Products and/or Services in accordance with the Contract or at all).
11.12 Subject to Condition 11.9, the entire liability of the Designer in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with the Contract shall not exceed the amount of the Fees.
11.13 For the purpose of Condition 11.11, the expression “consequential loss or damage” includes, but is not limited to: loss of anticipated profits or savings; damage to goodwill or reputation; loss of expected future business; damages, costs or expenses payable to any third party; indirect losses; and any consequences not directly or naturally arising.
12.0 Force Majeure
Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions, or the failure to cooperate by either party (including, without limitation, entities or individuals under its controls, or any of their respective officers, directors, employees, other personnel and agents), fire or other casualty, act of God, epidemic, strike or labour dispute, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, war or other violence, or any law, order or requirement of any governmental agency or authority.
If either party is prevented from meeting its obligations due to circumstances of force majeure, it shall notify the other party accordingly and the other party shall, if possible, grant a reasonable extension for the performance of this Contract. If the circumstances of force majeure last for more than 6 months, either party may terminate the Contract.
13.0 Limitation on Actions
No action, regardless of form, relating to the Contract or the Services, may be brought by either party more than two years after the cause of action has accrued under applicable law, unless a mandatory period applies which by the governing law of the Contract cannot be limited
14.1 To the extent that, in connection with this Contract, the Designer comes into possession of any other information related to the Services, trade secrets or other proprietary information relating to the Client which is either designated by the disclosing party as confidential or is by its nature clearly confidential (“Confidential Information”), the Designer shall not disclose such Confidential Information to any third party without the Client’s consent. The Client hereby consents to the Designer disclosing such Confidential Information (i) to the Designer (including its Subcontractors) and their personnel and (ii) to legal advisors, surveyors, insurers or advisors as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with potential or actual mediation, arbitration or litigation.
14.2 The obligation of confidentiality shall not apply to the extent such Confidential Information:
14.2.1 is to become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of the default of the Designer,
14.2.2. becomes available to the Designer on a non-confidential basis from a source other than the Client which the Designer believes is not prohibited from disclosing such Confidential Information to the Designer by an obligation of confidentiality to the Client, or
14.2.3 is known by the Designer prior to receipt from the Client without any obligation of confidentiality, or to any information which is developed by the Designer independently of Confidential Information disclosed by the Client.
14.3 The Client shall not disclose to any third party any Advice in connection with the Contract and/or Product Proposal (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such) without the prior express written consent of the Designer, except (i) disclosure may be made to the extent applicable mandatory laws, regulations, rules and professional obligations prohibit limitations on disclosures and (ii) the Client may disclose the Advice on a need to know basis to any Affiliates that are not identified in the Project Proposal and/or the Work Order for information purpose only, provided that the Client guarantees that the recipients undertakes to keep such Advice confidential and not to bring any claim of any kind against the Designer in relation to the Advice of the Services.
14.4 The Client shall use the Advice solely for the purposes specified in the Contract or Advice and, without limitation, shall not, without the prior written consent (including via e-mails) of the Designer, use any Advice in connection with business decisions of any third party or for advertisement purposes. All Services are only intended for the benefit of the members of the Client Group identified in the Contract and/or Product Proposal and/or Advice as being entitled to rely on the Advice. The mere receipt of any Advice by any other persons is not intended to create any duty of care, professional relationship or any present or future liability of any kind between those persons and the Designer. As a consequence, if copies of any Advice (or any information derived therefrom) are provided to others under the exclusions referred to in the above Section, it is on the basis that the Designer owes no duty of care or has any liability of any kind to them, or any other persons who subsequently receive the same.
15.0 Survival and Interpretation
15.1 Any provisions of the Contract which either expressly or by their nature extend beyond the expiration or termination of this Contract shall survive such expiration or termination.
15.2 If any provision of this Contract is found by a court of competent jurisdiction or other competent authorities to be unenforceable in whole or in part, such provision or the relevant part shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein. All provisions shall apply to the fullest extent of the law, whether in contract, statute, tort (including with limitation negligence), or otherwise, notwithstanding the failure of the essential purpose of any remedy.
15.3 The Designer, including its Subcontractors, may in its own right enforce the provisions of the Contract.
Neither party may assign or otherwise transfer this Contract without the prior express written consent (including via e-mails) of other, except that the Designer may assign any of its rights or obligations hereunder to any successor to its business. Neither party will directly or indirectly agree to assign or transfer to a third party any Claim against the other party arising out of this Contract.
The Client shall indemnify and hold harmless the Designer from all third party Claims except to the extent finally judicially determined to have resulted primarily from the intentional misconduct of the Designer. In circumstances where all or any portion of the provisions of this Section are finally judicially determined to be unavailable, the aggregate liability of the Designer and all other entities (including their respective personnel and Subcontractors) for any Claim shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claim and such claim shall not exceed the amount of the Fee set out in Condition 11(L).
18.0 Electronic Communications
18.1 Except as instructed otherwise in writing, the Designer and the Client are authorised to use properly addressed faxes, email and voicemail communication for both sensitive and non-sensitive documents and other communications concerning this Contract, as well as other means of communication used or accepted by the other.
18.2 It is recognised that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communications may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the internet or from access by any the Designer personnel to networks, applications, electronic data or other systems of the Client.
19.0 Entire Agreement, Modification and Effectiveness
19.1 Nothing discussed prior to execution of the Contract induced, nor forms part of, the Contract except to the extent repeated in this Contract. This Contract supersedes any previous agreement, understanding or communication, written (including via e-mail) or oral, relating to its subject matter. No variation to the Contract shall be effective unless it is documented in writing and signed by authorised representatives of both parties, provided, however, that the scope of the Services may be changed by agreement of the parties in writing, including by e-mail or facsimile. If the Designer has already started work (e.g. by gathering information, project planning or giving initial advice) at the request of the Client then the Client agrees that this Contract is effective as of the start of such work, either by retrospective effect allowable by applicable laws or by acknowledging that this entire Contract constitutes the written confirmation of the oral agreement concluded between the parties at the start of such work.
20.0 Other Clients
Nothing in this Contract will prevent or restrict the Designer from providing services to other clients (including services which are the same or similar to the Services) or using or sharing for any purposes any knowledge, experience or skills used in, gained or arising from performing the Services (subject to the obligations of confidentiality set out in Condition 14, even if those other clients’ interests are in competition with the Client. Also, to the extent, that the Designer possesses information obtained under an obligation of confidentiality to another client or other third party, the Designer is not obliged to disclose it to the Client, or use it for the benefit of the Client, however relevant it may be to the Services.
21.0 Destruction of Working Papers
The Designer may retain copies of documents and files provided by the Client in connection with the Services for purposes of compliance with applicable laws, professional standards and internal retention policies. Any documents and files retained by the Designer on completion of the Services (including documents legally belonging to the Client) may routinely be destroyed in accordance with the Designer’s policies applying from time to time.
22.0 Marketing and Use of Name
22.1 Neither the Designer nor Client shall use the other’s trademarks, service marks, logos, and/or branding in external publicity material without such other party’s prior written (including via e-mail) consent. However, the Designer may refer to the names of the Client and the performance of the Services in:
22.1.1 marketing, publicity materials and proposals as an indication of its experience, and
22.1.2 internal data systems.
23.0 Spreadsheets, models, drawings, plans and tools
23.1 In the course of providing the Services, the Designer may make reference to spreadsheets, models, drawings, plans or tools (together “Models”) that the Client provides to the Designer or requests the Designer to rely upon (“Client Models”) or that the Designer otherwise uses in connection with the Services (“The Designers Models”). All Models have limitations and may not produce valid results for all possible combinations of input data with the result that actual and potential errors are detected. Unless otherwise expressly agreed in the Contract, the Designer will not be responsible for reviewing, testing or detecting any errors in any Client Models.
24.0 Data Protection
24.1 The parties undertake to comply with the provisions for the Data Protection Act 1998 and any related legislation in so far as the same relate to the provisions of, or their obligations under, the Contract.
24.2 The Designer may collect, use, transfer, store or otherwise process (collectively, “Process”) information provided by the Client that can be linked to specified individuals (“Personal Data”) as defined under the applicable law. The Designer will Process the Personal Data in accordance with applicable laws and professional regulations.
24.3 The Client warrants that is has the authority to provide the Personal Data to the Designer in connection with the performance of the Services (as defined in the Contract) and that the Personal Data has been collected and Processed in accordance with applicable law. The Client is obliged to provide the Designer with all the necessary instructions for Processing and with accurate and up-to-date Personal Data and the Designer shall take the technical, organisational and personal measures to protect the Personal Data as instructed.
24.4 The Client agrees that the Designer may transfer the engagement documentation including the Personal Data and other confidential data for storage purposes to its regional server managed by the subcontracting firm or one of its affiliates/Subcontractors, provided that the technical, organisational and personal measures are maintained on the same level. The engagement documentation and Personal Data shall be retained for the period of 10 years following the expiration of the contractual relationship based on this Contract or required by relevant anti-money laundering regulations or any other applicable regulations.
25.0 Conflict of Interest
The Designer checks possible conflict of interest to a reasonable extent before rendering the Services to the Client. Nevertheless, since the Designer provides many different professional services to many clients it cannot identify all situations where there may be a conflict with the Client’s interests. The Client shall therefore without undue delay notify the Designer of any potential conflict of interests affecting the Services provided to the Client. If a potential conflict of interest is identified by the Designer or the Client and the Designer supposes that the Client’s interests can be properly safeguarded by the implementation of appropriate procedures, the Designer will discuss and agree such procedures with the Client.
26.1 Subject to Condition 26(b), the Client may cancel an order for the Products and/or Services at any time prior to the delivery, in the case of Products, and at any time prior to the first day of their performance, in the case of Services, by giving prior written notice thereof to the Designer. Where, in the case of Services, such notice of cancellation is received by the Designer less than fourteen days before the first day of performance of the Services the Client shall pay the Designer as compensation for the loss of bargain occasioned by the cancellation of the order a sum equal to 10 percent of the Fees. Any deposit paid by the Client shall be forfeited to the Designer and will not be recoverable by the Client from the Designer if the Contract is terminated by the Client.
26.2 No order for bespoke Products that are to be manufactured by the Designer or its agents, contractors or employees, or for Products that are to have any process applied to them by the Designer or its agents, contractors or employees in accordance with the specification supplied by the Client, may be cancelled by the Client except with the agreement in writing of the Designer and on terns that the Client shall indemnify the Designer in full against all loss (including loss or profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Designer as a result of cancellation.
26.3 The Designer may, without incurring any liability therefor, cancel any order for the Products and/or Services placed by the Client at any time prior to their delivery, in the case of Products, and at any time prior to the first day for their performance, in the case of Services, by giving written notice thereof to the Client. The Designer will repay any deposit paid by the Client if the Contract is cancelled by the Designer.
27.1 The Contract shall, unless terminated earlier in accordance with the provisions of this Condition, continue until the Services have been performed.
27.2 The Contract may be terminated forthwith on written notice:
27.2.1 by the Designer in accordance with Condition 8.9.1 or Condition 3.5.2;
27.2.2 by the Client in accordance with Condition 9.11;
27.2.3 by either part if the party commits any material or repeated breach of any term of the Contract and (in the case of breach capable of being remedied) fails within fourteen days of receipt of a written request so to do, to remedy the breach; or
27.2.4 by either party if the other party suspends, or threatens to suspend, payment of its debts or is unable to pays its debts as they fall due or admits inability to pay its debts or (being a body corporate) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
27.2.5 by either party if the other party enters into any compromise or arrangement with its creditors;
17.2.6 by either party if a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a body corporate) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party,
27.2.7 by either party if the other party (being a natural person) is the subject of a bankruptcy petition or order;
27.2.8 by either party if a creditor or encumbrancer of the other party attached or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged with fourteen days;
27.2.9 by either party if an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a body corporate);
27.2.10 by either party if a floating charge holder over the assets of the other party (being a body corporate) has become entitled to appoint or has appointed an administrative receiver;
27.2.11 by either party if a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
27.2.12 by either party if any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 27.2.1 to 27.2.11 (inclusive);
27.2.13 the other party suspends or cease, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
27.2.14 the other party (being a natural party) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
27.3 For the purposes Condition 27.2.3: a “material breach” means a breach of any terms of this Contract which is serious in the widest sense of having a serious effect on the benefit which the other party would otherwise derive from the Contract (no account being taken as to whether it occurs by some accident, mishap, mistake or misunderstanding); and a breach shall be capable of remedy if the party in breach can comply with the provisions in question in all respects other than as to time of performance (provided that time for performance is not of the essence).
27.4 Any termination of the Contract pursuant to this Condition 27 shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities or either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into force on or after such termination.
27.5 On termination of the Contract: (A) the Client shall immediately pay to the Designer all of the Designer’s outstanding unpaid invoices and, in respect of Products and/or Services supplied but for which no invoice has been submitted, the Designer shall submit an invoice, which shall be payable by Client immediately on receipt; (B) the Client shall return to the Designer all and any: Designer Materials; documents, products and materials containing information relating to the business and affairs of the Designer that the Client is required to keep secret and confidential under Condition 14; and rented goods that have been supplied to it by the Designer, in its possession together with any Client Deliverables that have not been fully paid for. If the Client fails to do so, then the Designer may enter the Clients premises and take possession of them. Until they have returned or repossessed, the Client shall be solely responsible for the safe keeping and will not use them for any purpose not connected with the Contract.
27.6 In the event of the Designer terminating the Contract under Condition 27.2.1 or 27.2.3 or the Client terminating the Contract under Condition 26(b)(B), the Designer shall notify the Client of the extent of the Products and/or Services which remain to be supplied as at the date of termination and the Client shall forthwith pay to the Designer, by way of liquidated damages, a termination charge equal to 50% of the Fees which would have become payable in respect of such Products and/or Services if the same had been supplied by the Designer together with such proportion of the Fees on a quantum meruit basis as its attributable to the Products and/or Services supplied up to the date of termination.
28.1 These Conditions together with the further terms and conditions set out in the Project Proposal and/or Design Pack constitute the entire agreement between the parties in relation to the supply of the Products and/or Services and supersede any previous agreements, arrangements, representations, undertakings, proposals and understandings, written or oral, between the parties in relation thereto. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. In entering into the Contract, the Client acknowledges that it has not relied on any representation, written or oral, not expressly set out in the Contract. Nothing in the Conditions shall be interpreted as excluding either party from liability for fraudulent misrepresentation.
28.2 No relaxation, forbearance, delay or indulgence by either party in enforcing any of its rights under the Contract shall be deemed to be a waiver of that right, nor shall any waiver by either party of any breach of any term of the Contract operate as a waiver of any subsequent or continuing breach thereof.
28.3 The Designer may, but the Client may not, at any time assign, transfer or deal in any other manner with the Contract or any of its rights under it or sub-contract all or any of its obligations under it.
28.4 Every provision of the Contract is separate and distinct from all other provisions and, in the event that any provision of the Contract is or becomes illegal, void, invalid or unenforceable, it shall, to the extent required, be deemed not to form part of the Contract and the legality or enforceability of the provisions of the Contract shall not be affected.
28.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
28.6 Nothing in the Contract is intended, or shall be deemed, to constitute a partnership between parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other in any way.
28.7 In the event of any ambiguity or conflict between the Conditions and the terms of the Project Proposal and/or the Design Pack, the terms of the Project Proposal shall prevail in relation to the Services and the terms of the Design Pack shall prevail in relation to the Products.
28.8 All notices which either party hereto is required or may desire to give to the other shall be served personally or by letter or facsimile posted or transmitted to the other at its business address set out in the Project Proposal or to such alternative address as may be notified in accordance with the provisions of this Condition. Any notices served personally shall be deemed served at the time of such service; any notice sent by post shall be deemed served 48 hours after the time of posting; and nay notice sent by facsimile shall be deemed served at the time of transmission, subject to evidence of successful transmission to the other party. Notices many not be sent by email.
28.9 The Contract shall be governed by and construed in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any claim, dispute or matter arising out of or in connection with the contract.
28.10 Nothing in these Conditions affects the statutory rights of any consumer.
29.0 Closing Provisions
These Business Terms are valid and effective as of 1 May 2016. This version supersedes any previously existing version notwithstanding any other terms or conditions contained in any proposals or similar documents. The Designer reserves the right to update the Business Terms from time to time and/or to supplement them with additional terms or conditions specific to individuals advisory Services. Any work order delivered by the Client to the Designer following the prior and timely delivery of the updated Business Terms shall be considered as the confirmation of and the consent with the changes of the Business Terms by the Client.