Schoolscapes Terms & Conditions of Business
Schoolscapes is a trading name of Chic Flower Designs Limited
Special note applying to contracts including installation services
The Customer’s attention is particularly drawn to the provisions of clause 13 (Limitation of liability) ) and to the fact that this is a construction contract as defined in section 104 of the Housing Grants, Construction and Regeneration Act 1996
As you may be aware, a designer must not start work on a project unless satisfied that the Customer knows of the client’s duties under the Construction (Design and Management) Regulations 2015 (CDM 2015). We will prepare a design that, so far as practicable, eliminates foreseeable risks to the health and safety of those working on the project, cleaning or maintaining the completed project or using the completed project as a workplace. However you must be aware of your own duties under the CDM 2015. You may find the Health & Safety Executive Guidance on the Regulations a useful summary of your obligations but if you are in doubt, we recommend you take specialist advice.
The following definitions and rules of interpretation apply in this agreement.
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
CDM Regulations: The Construction (Design and Management) Regulations 2015 or any statutory re-enactment or amendments thereof for the time being in force
Commencement Date has the meaning given in clause 2.2.
Conditions means these terms and conditions as amended from time to time in accordance with clause 18.8.
Construction Specification means the description or specification for the Construction Services provided in writing by the Supplier to the Customer.
Contract means the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Contract Price means the total price agreed between the parties for delivery of the Goods and for performance of the Services.
Control has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer means the person, firm, school, academy, or other entity who purchases the Goods and/or Services from the Supplier.
Deliverables means the deliverables set out in the Quotation produced by the Supplier for the Customer.
Delivery Location has the meaning given in clause 4.1.
Design Specification means the description or specification for the design Services provided in writing by the Supplier to the Customer.
Force Majeure Event has the meaning given to it in clause 17.
Goods means the goods (or any part of them) set out in the Order.
Goods Specification means any specification for the Goods, including any relevant plans or drawings and/ or any Materials Specification, that is agreed in writing (including, in this instance, by email) by the Customer and the Supplier.
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials Specification: means any specification for the materials that is supplied in writing (including, in this instance, by email) by the Supplier. Order means the Customer’s order for the supply of Goods and/or Services, as set out in the Quotation.
Practical Completion means that the Supplier has discharged its obligations under the Goods & Services Specification and in its reasonable opinion the Goods are fit to be put to their intended purpose and used as such by third parties.
Quote/Quotation: the document containing the description and/ or specification of the Goods and Services to be provided and the estimated, or fixed, cost of such Goods and Services.
Services means the design and Construction services, including the Deliverables, supplied by the Supplier to the Customer as set out in any Quotation, Design Specification and Construction Specification.
Supplier Materials has the meaning given in clause 9.1.14.
Supplier means Schoolscapes registered in England, a trading name of Chic Flower Designs ltd Company number 07767544.
Works Site has the meaning given in clause 8.1.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
In the case of contract notices, a reference to writing or written includes fax but not email unless otherwise stated.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods 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 Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Quotation and/ or the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification without notifying the Customer provided such amendment will not in the reasonable opinion of the Supplier result in an inferior Specification to that agreed with the Customer in the Goods Specification.
3.4 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.5 The Goods Specification comprises all necessary components required to supply the Goods & Services. By agreeing to these Conditions, the Customer confirms that any information provided in the Goods & Construction Specification, including any relevant plans or drawings, is complete and accurate and appropriate to fulfil the terms of any other contractual, regulatory or statutory obligation which the Customer is required to meet.
3.6 The Supplier has not provided and does not undertake to provide advice to the Customer on which they may rely as to which regulatory or statutory consents or permissions they are required to obtain before the Contract can be performed and the Customer is required to take independent specialist advice if required.
4. DELIVERY OF GOODS
4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.3 Any dates discussed pertaining to delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.5 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.5.2 the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance and delivery costs).
4.6 If ten Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. The Customer should be aware that if the Goods have been manufactured to a bespoke specification or have been customised for the Customer, it may not be possible to resell them in the normal course of the Supplier’s business.
5. SUPPLY OF GOODS ONLY CONTRACTS
5.1 In the case of Supply of Goods only contracts, all deliveries are to the kerbside only and the Supplier representative making the delivery will require assistance from the Customer, its employees, agents, consultants or subcontractors to facilitate the unloading of the Goods.
5.2 The Supplier will notify the Customer if the Goods are unusually heavy or bulky in nature so that the Customer can ensure that sufficient manpower is in place at the Delivery Location when the Goods are unloaded.
5.3 The Supplier is under no obligation to move the Goods further than the kerbside, and shall not be required to enter any premises, or carry the Goods any distance and, in particular, up or down any slopes, banks, steps or stairs.
5.4 If the Customer requires the Goods to be delivered to a location other than the kerbside, the Supplier will consider but is under no obligation to meet that requirement and reserves the right to impose additional charges if it agrees to assist.
6. QUALITY OF GOODS
6.1 The Supplier warrants that, once title to the Goods has passed under Clause 7.2, and for a period from the date of delivery (determined by the Warranty document – Warranty Period), the Goods shall:
6.1.1 conform in all material respects with their description;
6.1.2 be free from material defects in design, material and workmanship.
6.2 Subject to clause 6.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
6.2.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if:
6.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2;
6.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, construction, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification or instruction supplied by the Customer;
6.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.5 For the avoidance of doubt, the Supplier’s warranty in clause 6.1 warrants that the Goods shall be free from material defects. The Supplier shall not be liable for any natural and expected changes in the quality and behaviour of the Goods anticipated and listed in the Goods Specification and any maintenance manuals or other documentation supplied to the Customer by the Supplier.
6.6 Except as provided in this clause 6, the Supplier provides no assurances nor warranties nor makes or implies any commitments as to the compliance of the Goods and Services with such regulatory or statutory obligations and the Customer should undertake its own due diligence as to the fitness for purpose of the Goods & Services in this respect.
6.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier except that the Warranty Period shall be unaffected by any repair or replacement and remains 12 months from the transfer of title under Clause 7.2.
6.8 For the avoidance of doubt, this clause 6 does not relate to any warranty which may be provided by the manufacturer of the Goods. Any claim arising under the manufacturer’s warranty will be handled in accordance with its own terms. If the Supplier is required to assist in the replacement of all or part of any Goods under the manufacturer’s warranty, it is entitled to make a reasonable charge for doing so, including (if relevant) the cost of delivery, transport and installation.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4; and
7.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
- require the Customer to deliver up all Goods in its possession; and
- if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 The Supplier shall supply the Services at the location set out in the Order or such other location as the parties may agree (Works Site).
8.2 If applicable, the Supplier shall supply the Services to the Customer in accordance with the Design Specification and/ or Construction Specification in all material respects.
8.3 The Supplier shall use all reasonable endeavours to meet any dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance target date of the Services.
8.4 The Supplier reserves the right to amend the Design and/ or Construction Specification, if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.6 The Supplier shall co-operate with the Customer or any other person reasonably nominated by the Customer in providing such information as is reasonably required as to the performance of the Services to allow the Customer or any other person to discharge their obligations under the CDM Regulations, other relevant health and safety legislation or other statutory or regulatory authority.
8.7 The Goods, Design and Construction Specifications comprise all necessary components required to install the Goods & Services. By signing these Conditions, the Customer confirms that any information provided in the Goods, Design and Construction Specifications, including any relevant plans or drawings, is complete and accurate and appropriate to fulfil the terms of any other contractual, regulatory or statutory obligation which the Customer is required to meet.
8.8 Unless otherwise agreed in writing, the Supplier is not required to and bears no liability for the provision of any utilities required for the operation of the Goods (including but not limited to water, sewerage and electricity).
8.9 Unless otherwise agreed in writing, the Supplier is not required to and bears no liability for the Customer’s duties under the Construction (Design and Management) Regulations 2015 (CDM 2015)
9. CUSTOMER’S OBLIGATIONS
9.1 The Customer shall:
9.1.1 ensure that the terms of the Order and any information it provides in or for the Goods and/ or Design and/ or Construction Specifications are complete and accurate and appropriate to fulfil the terms of any other contractual, regulatory or statutory obligation which the Customer is required to meet;
9.1.2 co-operate with the Supplier in all matters relating to the Services including, if applicable, ensuring in particular that it acts as a facilitator and coordinator between all personnel, trades or, if applicable, other contractors present at the Delivery Location and
Works Site as the Supplier;
9.1.3 ensure that the Supplier is able to perform the Contract in accordance with the programme agreed in the Goods and/ or Design and/ or Construction Specification without obstruction or impediment by the Customer, its employees, agents, consultants or subcontractors;
9.1.4 unless otherwise notified and agreed in writing, provide the Supplier, its employees, agents, consultants and subcontractors, with unrestricted access to the Customer’s premises, office and sanitary accommodation and other facilities including access to power supplies, lighting and clean water supplies, as reasonably required by the Supplier to provide the Goods and/ or Services;
9.1.5 ensure that there is adequate space available at the Delivery Location and/ or Works Site for the storage of the Goods, plant and any other relevant Deliverables;
9.1.6 ensure that it notifies its insurer of the intended Services prior to the Supplier commencing provision of the Services and satisfies
itself that the intended Services are covered under the terms of any applicable insurance policy and, if required to do so, shall join the Supplier to any relevant insurance policy at the Customer’s expense during the period when the Services are being supplied;
9.1.7 provide the Supplier with such information as the Supplier may reasonably require in order to supply the Goods and/ or Services including in particular information pertaining to the Delivery Location, the Works Site, the location of any gas, water, electricity, internet or waste services, and ensure that such information is complete and accurate in all material respects;
9.1.8 unless otherwise notified and agreed in writing, provide the Supplier with such materials as the Supplier may reasonably require in order to supply the Goods and/ or Services including in particular distribution boards for lighting and power, and ensure that such materials are in good working order at all times;
9.1.9 prepare the Customer’s premises for the supply of the Goods and/ or Services in accordance with the requirements of the Goods and/ or Design and/ or Construction Specifications;
9.1.10 obtain and maintain all necessary licences, permissions and consents which may be required for the Goods & Services before the date on which the Services are to start including but not limited to relevant planning permission, building regulations approval, listed building consent, permissions in relations to Tree Preservation Orders or conservation areas;
9.1.11 carry out and fulfil, in all respects, its obligations under Part 2 of the CDM Regulations;
9.1.12 provide to the Supplier, on demand, a copy of the insurance certificate referred to in Clause 7.3.3;
9.1.13 comply with all other applicable laws, including health and safety laws;
9.1.14 be responsible for security generally and specifically to keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
9.1.15 comply with any additional obligations as set out in the Service Specifications and the Goods Specification.
9.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
9.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
9.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
9.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. CHARGES AND PAYMENT
10.1 The price for Goods:
10.1.1 shall be the price set out in the Quotation; and
10.1.2 if applicable, shall be inclusive of all costs and charges of packaging, insurance, transport of the Goods.
10.2 The charges for Services shall be the price set out in the Quotation.
10.3 Where the Quotation indicates that the charges for Services shall be calculated on a time and materials basis (instead of on the normal ‘Fixed Price’ basis):
10.3.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Quotation;
10.3.2 the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day between 7.00 am to 6.00 pm worked on Business Days;
10.3.3 the Supplier shall be entitled to charge an overtime rate of 1.5% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 10.3.2; and
10.3.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier 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 Supplier for the performance of the Services, and for the cost of any materials.
10.4 The Supplier reserves the right to:
10.4.1 increase the price for the Goods and charges for the Services where an inspection or survey of the Works Site, or during operations, reveals adverse conditions including but not limited to rock, concrete (reinforced or otherwise), foundations or other works left from any previous use of the Works Site, voids, tanks or underground structures, ground contamination, running sand, unstable or made ground, excessive water, poor drainage, the discovery of any service such as gas, electricity (unless such service was previously notified to the Supplier) or any other conditions which in the reasonable opinion of the Supplier adversely affect its ability to provide the Goods and Services for the price specified in the Quotation;
10.4.2 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;
10.4.3 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
- any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
- any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
- If the Customer does not hold a credit account with the Supplier (in which case individually agreed payment terms will apply), or individual terms have not been agreed, the Supplier shall invoice the Customer on the Commencement Date (as defined in Clause 2.2 when 100% of the price shall be due (the Due Date). The Supplier shall invoice the Customer within 5 days of the Due Date. Each invoice shall include such supporting information as required by the Customer to verify the accuracy of the invoice in a format and method of delivery to be agreed between the parties.
- The Customer shall pay each invoice submitted by the Supplier:
- within 14 days of the date of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by the Supplier.
10.7 If the Customer is not satisfied with the content of the invoice or the supporting information submitted by the Supplier under Clause 10.5, it may pay less than the notified sum, provided it serves a notice (Pay Less Notice):
- Setting out the sum considered to be due on the date the Pay Less Notice is served, including the basis on which that sum is calculated;
- That is served no later than seven days before the final date for payment of the invoice in question.
- For the avoidance of doubt, if the Customer serves a Pay Less Notice, it must pay the amount specified in that Pay Less Notice within 14 days of the date of the invoice.
- All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
- If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.10 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
- The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law or by the terms of its Pay Less Notice served under Clause 10.7). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
11.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS
- The Supplier has obtained insurance cover in respect of its own legal liability for aggregate claims not exceeding £2m in any 12 month period in respect of claims for Professional Indemnity and £10m in respect of any Public Liability. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 13.2, the Supplier’s total liability to the Customer shall not exceed the value of the Contract. The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
- The following types of loss are wholly excluded:
- Loss of profits.
- Loss of sales or business.
- Loss of agreements or contracts.
- Loss of anticipated savings.
- Loss of use or corruption of software, data or information.
- Loss of or damage to goodwill.
- Indirect or consequential loss.
- The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 6 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
- Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
14.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to
carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
14.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
14.2.2 there is a change of control of the Customer.
14.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
15.1.2 the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16. DISPUTE RESOLUTION PROCEDURE
16.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute), then, except as expressly provided in this agreement, the parties shall follow the procedure set out in this clause, provided that the necessary notices have been given in the proper form and time pursuant to the Housing Grants, Construction and Regeneration Act 1996 (“Construction Act”):
16.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Supplier and the Customer shall attempt in good faith to resolve the Dispute;
16.1.2 if the parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, , the Dispute shall be finally resolved by:
16.1.3 in the case of a Dispute where the value in dispute is less than £10,000, the courts of England and Wales in accordance with clause 18.9 (Jurisdiction);
16.1.4 in all other cases, any Dispute, controversy or claim arising out of or relating to this agreement, including any question regarding its breach, existence, validity or termination or the legal relationships established by this agreement, shall be finally resolved by arbitration. It is agreed that:
- the tribunal shall consist of one arbitrator;
- in default of the parties’ agreement as to the arbitrator, the appointing authority shall be the Chartered Institute of Arbitrators in London;
16.1.5 the seat of the arbitration shall be London;
16.1.6 the law governing this arbitration agreement shall be English; and
16.1.7 the language of the arbitration shall be English.
17. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
18.1 Assignment and other dealings
18.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
18.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
18.2.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post; or
- other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
18.2.2 Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
18.2.3 This clause 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.
18.2.4 A notice given under this agreement is not valid if sent by email.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
- Entire agreement.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
18.7 Third parties’ rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed by the parties (or their authorised representatives) in writing (including, in this instance, by email).
- If either party wishes to change the scope of the Services, both parties will work together to identify and agree such changes and the impact which the proposed changes will have on:
- the Goods
- the Services;
- the Price;
- any of these terms.
18.8.3 The parties agree that in circumstances where the Supplier reasonably anticipates that it will be unable to meet the Customer’s Order because the Customer is in breach of any of its obligations under Clause 9 or otherwise of this agreement, the Supplier may unilaterally vary the Construction Specification, the Goods Specification and/ or the Materials Specification to enable it to perform its obligations under the Contract. In such circumstances, the Supplier will, where it is reasonably practicable to so do, notify the Customer of such variation as soon as it is able to and in whatever format is is reasonably practicable to utilise in the circumstances.
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.