Design Tonic Ltd–Terms & Conditions
The Customer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability). 1. Interpretation
The following definitions and rules of interpretation apply in these Conditions. 1.1 Definitions:
Appendix: where applicable, a document signed by both parties which sets out any variation to these standard Conditions and/or any other term specific to the Contract which is not already addressed in these Conditions and/or
other Contract documentation. Once signed by both parties, the Appendix shall form part of the Contract subject to clause 2.8.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date: the date identified in the Order for commencement of the Work, or such other date as agreed in writing by the parties.
Completion Notice: has the meaning given in clause 14.1.
Completion Statement: has the meaning given in clause 14.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Construction Phase H&S Plan: the Construction Phase Health & Safety Plan which shall be agreed between the parties prior to any Work commencing. This plan shall include (without limitation) the name and contact details of each party’s nominated point of contact for the Work;
Contract: the contract between Design Tonic and the Customer for the Work in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.
Customer: the person or firm who purchases the Work from Design Tonic. For the purposes of the Contract, the Customer confirms it is a business and not a consumer.
Deliverables: any reports, drawings, designs or other materials which are produced by or on behalf of Design Tonic in the course of performing the Work and which are delivered to the Customer in accordance with the Project Brief and/or Order.
Delivery Location: has the meaning given in clause 4.2.
Design Tonic: Design Tonic Limited registered in England and Wales at Malcolm Jones & Co Allerton Hill, Chapel Allerton, Leeds, England, LS7 3QB with company number 1181754.
Effective Date: has the meaning given in clause 2.2.
Fee: the charges payable by the Customer to Design Tonic for the work, as set out in the Quotation.
Force Majeure Event: has the meaning given to it in clause 17.
Goods: the goods (or any part of them) set out in the Order and/or Project Brief, as applicable.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Design Tonic. Once agreed in writing, such shall form part of the Project Brief.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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.
Order: the Customer's order for the supply of the Work, as set out in the Customer's written acceptance of Design Tonic's Quotation. For the avoidance of doubt, in the absence of the Customer signing the Quotation when placing an order, Design Tonic may, at its sole discretion, deem the Customer’s continued instructions and/or payment of a deposit to Design Tonic as an effective Order being placed and acceptance by the Customer of these Conditions.
Personnel: includes all employees, agents, consultants and subcontractors.
Practical Completion: practical completion of the Work as a whole or a Section, as applicable, in accordance with clause 14 below.
Practical Completion Statement: has the meaning given in clause 14.2(a).
Project Brief: the project brief for the Work which shall include the Quotation, the Construction Phase H&S Plan, any payment plan agreed between the parties, plus (where applicable) any technical drawings and specifications for the Work referred to in the Order. The parties acknowledge and agree that for certain Work, the Project Brief is a working document and may be added to and/or amended over the course of the Work being performed (for example where the Work involves different stages of design and build) subject to the parties expressly agreeing each such addition / amendment in advance and in writing at the relevant time.
Quotation: Design Tonic’s written quotation for the Work.
Section: has the meaning given in clause 14.1.
Section Completion Statement: has the meaning given in clause 14.2(b)
Services: the services, including the Deliverables, supplied by Design Tonic to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services as set out in the Quotation, and which may be amended from time to time as part of the Project Brief.
Site: the site where the services are to be performed, as set out in the Project Brief.
Supplier Materials: has the meaning given in clause 8.1(h).
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Warranty Period: has the meaning given in clause 5.2.
Work: the supply of Goods or Services or Goods and Services, as applicable. 1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email but excludes fax. 2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase the Work in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Design Tonic issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Effective Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Design Tonic and any descriptions of the Goods or illustrations or descriptions of the Services contained in Design Tonic's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor 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 law, trade custom, practice or course of dealing.
2.5 Any quotation given by Design Tonic shall not constitute an offer, and is only valid for a period of 20 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.
2.7 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.8 The Project Brief, the Order and, where applicable, an Appendix shall form part of the Contract. In the event of any conflict between these Conditions, the Project Brief, the Order and an Appendix the documents shall take priority in the following order:
(a) These Conditions; (b) The Project Brief;
(c) The Order;
(d) The Quotation;
(e) The Appendix (if any).
- Goods
3.1 The Goods are described in 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 Design Tonic 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 reasonable professional costs and expenses) suffered or incurred by Design Tonic arising out of or in connection with any claim made against Design Tonic for actual or alleged infringement
of a third party's Intellectual Property Rights arising out of or in connection with Design Tonic's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Design Tonic reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Design Tonic shall notify the Customer in any such event.
- Delivery of Goods
4.1 Design Tonic shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Design Tonic 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 Design Tonic notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Design Tonic 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 Design Tonic with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Design Tonic 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. Design Tonic 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 Design Tonic with adequate delivery instructions or any
other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of Design Tonic notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Design Tonic's failure to comply with its obligations under the Contract in respect of the Goods:
(a) 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 Design Tonic notified the Customer that the Goods were ready; and
(b) Design Tonic shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Design Tonic notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Design Tonic may (at its sole discretion) resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 Design Tonic may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 In the event that the Customer submits a written request for postponement of delivery to Design Tonic a reasonable period in advance of the planned date for delivery of the Goods (or any part thereof), at Design Tonic’s sole discretion the parties may discuss the appropriate action, including the length of postponement, any additional charges (including storage charges) payable by the Customer to Design Tonic and any other terms applicable to the requested postponement. Where a postponement is agreed between the parties, it shall be documented in writing and signed by both parties.
- Quality of Goods
5.1 The Customer acknowledges that Design Tonic procures the Goods from third parties on behalf of the Customer. As such, except as expressly set out in these Conditions, Design Tonic gives no warranties whatsoever (whether express or implied) concerning the Goods. To the extent that it is reasonably able, Design Tonic shall pass on the benefit to the Customer of any product warranty or rights of return from the third party supplier of the relevant Goods. The Customer accepts and agrees that:
(a) Where applicable, it shall be the Customer’s responsibility to register the Goods (or part therof) in a timely manner with the relevant manufacturer or other third party supplier in order to gain the benefit of any third party warranty or guarantee in respect of the Goods; and
(b) its rights to return Goods shall be governed by the third party supplier’s terms and conditions except to the extent these Conditions state otherwise.
5.2 Unless otherwise agreed between the parties in writing in advance, Design Tonic confirms that the Goods shall be free from material defects in design, material and workmanship for a period of 12 months, such period commencing on the date of delivery (or deemed delivery where applicable) of the relevant Goods in accordance with these Conditions (Warranty Period).
5.3 Subject to clauses 5.1 and 5.2 above and clause 5.4 below, if:
(a) the Customer gives notice in writing to Design Tonic 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 5.2;
(b) Design Tonic is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Design Tonic) returns such Goods to Design Tonic's place of business at the Customer's cost,
Design Tonic shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. 5.4 Design Tonic shall not be liable for the Goods' failure to comply with any relevant manufacturer’s warranty and/or where
applicable the warranty set out in clause 5.2 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow Design Tonic's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Design Tonic following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Design Tonic;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
or
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Where the Goods:
(a) are not defective or damaged; and
(b) do comply in all material respects with the Goods Specification,
but are not to the satisfaction of the Customer(“Non-satisfactory Goods”),the Customer shall notify Design Tonic in writing of such. At Design Tonic’s sole discretion, Design Tonic may agree to accept the return of such Non-satisfactory Goods(“Returned Goods”).In such an event, the parties shall discuss and agree alternative Goods to be supplied to the Customer and any variation to the terms (including Fees and delivery timescales) applicable to the alternative goods.
5.6 Except as provided in this clause 5, Design Tonic shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.2.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by Design Tonic.
- Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Design Tonic receives payment in full (in cash or cleared funds) for the Goods and any other goods that Design Tonic 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.
- Supply of Services
7.1 Design Tonic shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 Design Tonic shall use reasonable endeavours to meet any performance dates for the Services specified in the Project Brief, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Design Tonic reserves the right to amend the Service 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 Design Tonic shall notify the Customer in any such event.
7.4 Design Tonic shall observe all reasonable health and safety and security requirements that apply at the Site and that have been communicated to it in writing by the Customer, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
7.5 Design Tonic warrants to the Customer that the Services will be provided using reasonable care and skill.
7.6 Subject to clause 8.2 below, in the event that the Services (or any part thereof) do not comply with the warranty given at clause 7.5 above, as the Customer’s sole and exclusive remedy, Design Tonic shall, at its option, remedy, re-perform
or refund the Services that do not comply with condition clause 7.5, provided that:
(a) The Customer serves a written notice on Design Tonic not later than five Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects; and
(b) such notice specifies that some or all of the Services do not comply with condition 7.5 and identifies in sufficient detail the nature and extent of the defects; and
(c) the Customer gives Design Tonic a reasonable opportunity to examine the claim of the defective Services. 7.7 Except as set out in this clause 7:
(a) Design Tonic gives no warranties and makes no representations in relation to the Services; and
(b) Design Tonic shall have no liability for their failure to comply with the warranty in condition 7.5; and
(c) All warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7.8 The provisions of this clause 7 shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
7.9 The Customer acknowledges and agrees that Design Tonic shall be entitled, at its discretion, to engage third party sub- contractors to deliver the Services or any part thereof.
- Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order; the Project Brief; and any information it provides in the Service Specification and/or the Goods Specification, are complete and accurate;
(b) co-operate with Design Tonic and its Personnel in all matters relating to the Services;
(c) provide Design Tonic and its Personnel with access to the Site, Customer's premises, office accommodation and other facilities as reasonably required by Design Tonic to provide the Services in a timely manner;
(d) provide Design Tonic with such information, materials, designs, drawings and/or other documentation as Design Tonic may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) make such preparations at the Site as are necessary in order to enable Design Tonic to commence supply of the services in a timely manner;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of Design Tonic and/or its Personnel as applicable (together, Supplier Materials) at the Site in safe custody at its own risk, maintain Supplier Materials in good condition until returned to Design Tonic, and not dispose of or use Supplier Materials other than in accordance with Design Tonic's written instructions or authorisation;
(i) comply with any additional obligations as set out in the Service Specification or the Goods Specification or both; and
(j) where detailed in the Quotation or other written request made by or on behalf of Design Tonic, provide Design Tonic with an up to date asbestos report for the Site as soon as reasonably possible and in any event, a minimum of 14 days before commencement of the Services.
8.2 If Design Tonic's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer (including its Personnel) or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Design Tonic 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 Design Tonic's performance of any of its obligations;
(b) Design Tonic shall not be liable for any costs or losses sustained or incurred by the Customer arising directly
or indirectly from Design Tonic's failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse Design Tonic on written demand for any costs or losses sustained or incurred by Design Tonic arising directly or indirectly from the Customer Default, including fees associated with any Personnel assigned to Services which are impacted by the Customer Default.
8.3 At Design Tonic’s sole discretion, in the event of a Customer Default the parties may discuss the impact of the Customer Default and the appropriate course of action, including changes to timescales, in order to keep the Work on track. Where the parties reach an agreement on how to move forward with the Work pursuant to a Customer Default, such agreement shall be recorded in writing along with all relevant terms affecting such, including revised timescales, fees and payment terms.
- Charges and payment
9.1 The Customer shall pay the Fee to Design Tonic in accordance with the price and payment terms set out in the Quotation and/or Project Brief, as applicable.
9.2 Where a deposit is payable by the Customer, this shall be detailed in the Quotation and shall be paid to Design Tonic prior to commencement of the Work.
9.3 Subject to clause 2.8 above, unless otherwise stated in the Quotation, the Project Brief or an Appendix (where applicable):
(a) The price for the Goods:
(i) shall be the price set out in Design Tonic's published price list as at the date of delivery; and
(ii) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
(b) The charges for Services shall be calculated on a time and materials basis and:
(i) the charges shall be calculated in accordance with Design Tonic's daily fee rates as applicable at that time;
(ii) Design Tonic's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(iii) Design Tonic shall be entitled to charge an overtime rate (as detailed in the Quotation) 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 9.3(b)(ii); and
(iv) Design Tonic shall be entitled to charge the Customer for any expenses reasonably incurred by the Personnel engaged in performing 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 Design Tonic for the performance of the Services, and for the cost of any materials.
9.4 Design Tonic reserves the right to:
(a) 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 Consumer 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 Consumer Prices Index;
(b) 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 Design Tonic that is due to:
(i) any factor beyond the control of Design Tonic (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered,
or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Design Tonic adequate or accurate information or instructions in respect of the Goods.
9.5 Design Tonic shall invoice the Customer in respect of the Work in accordance with the payment plan set out in the Quotation. In the event that the neither the Quotation nor Project Brief stipulate a payment plan, Design Tonic may invoice the Customer in the manner and with the regularity that is ordinary in its course of business,
9.6 The Customer shall pay each invoice submitted by Design Tonic:
(a) within 14 days of the date of the invoice unless otherwise stated in the Quotation; and
(b) in full and in cleared funds to a bank account nominated in writing by Design Tonic, and time for payment shall be of the essence of the Contract.
9.7 If any local authority, building control or other licence or approval is required in connection with the Work, unless
otherwise stated in the Quotation, it shall be the Customer’s responsibility to obtain and pay for any and all such licences and approvals.
9.8 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).
9.9 If the Customer fails to make a payment due to Design Tonic under the Contract by the due date, then, without limiting Design Tonic's remedies under clause 15;
(a) Design Tonic shall be entitled, without liability and without affecting any other right or remedy available to it, to suspend any further supply of the Work (or any part thereof) until all such sums are paid in full; and/or
(b) 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 9.9 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.11 The Customer acknowledges that certain Goods may be made bespoke for the Customer (Bespoke Goods). Irrespective
of whether stated in the Project Brief and/or Quotation, Design Tonic shall be entitled to require the Customer pay a deposit in respect of such Bespoke Goods and/or invoice the Customer in full for such Bespoke Goods in advance of delivery.
- Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Work (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned or controlled by Design Tonic.
10.2 Subject to payment of the Fee in full, Design Tonic grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants Design Tonic a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Design Tonic for the term of the Contract for the purpose of providing the Work to the Customer.
- Data protection
11.1 The following definitions apply in this clause 11:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Design Tonic is the Processor.
11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Design Tonic for the duration and purposes of the Contract.
- Confidentiality
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination
or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, 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:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. 12.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and
perform its obligations under or in connection with the Contract.
- Limitation of liability
13.1 References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and (b) fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.2 and 13.4, Design Tonic's total liability to the Customer under the Contract in respect of all breaches
occurring within any contract year shall not exceed the cap. 13.4 In clause 13.3:
(a) cap. The cap is the greater of £10,000 and the total charges paid or payable to Design Tonic by the Customer under the Contract in the 12 week period prior to the date of the breach.;
(b) contract year: A contract year means a 12-month period commencing with the Effective Date or any anniversary of it; and
(c) total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by Design Tonic, whether or not invoiced to the Customer.
13.5 This clause 13.5 sets out specific heads of excluded loss :
(a) Subject to clause 13.2, clause 13.5(b) excludes specified types of loss. (b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts; (iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
13.6 Design Tonic has given commitments as to compliance of the Goods and Services with relevant specifications and/or being free from defect in clause 5 and clause 7. 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 the Contract.
13.7 This clause 13 shall survive termination of the Contract.
- Practical completion
14.1 Upon completion of the Work, or a section of the Work as recognised in the Project Brief (a Section), Design Tonic shall notify the Customer in writing of such completion (Completion Notice).
14.2 Upon receipt of a Completion Notice, the Customer shall, in a timely manner and in any event within 7 days of receipt
of such Completion Notice, provide Design Tonic with a certificate or other written statement confirming that practical completion has occurred:
(a) in respect of the Work as a whole (Practical Completion Statement); and/or (b) or relevant Section (Section Completion Statement),
as applicable (each, a Completion Statement).
14.3 Practical completion of the Works or the Section (as applicable) shall be deemed for the purposes of this Contract to have taken place on the date stated in the relevant Completion Statement (Practical Completion).
14.4 In the event that the Customer does not issue Design Tonic with a written Completion Statement in accordance with clause 14.2 above, Practical Completion shall be deemed to have occurred 7 days after the date of the relevant Completion Notice.
14.5 Unless the Customer notifies Design Tonic otherwise in writing prior to Practical Completion occurring, Design Tonic shall be deemed to have complied with all its obligations under the Contract in respect of the Work and/or Section, as applicable, upon Practical Completion occurring.
- Termination
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 28 days’ written notice.
15.2 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:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(b) 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),
obtaining a moratorium, 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;
(c) 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
(d) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.3 Without affecting any other right or remedy available to it, Design Tonic may (at its discretion) terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or (b) there is a change of Control of the Customer.
15.4 Without affecting any other right or remedy available to it, Design Tonic may suspend the supply of Services and/or all further deliveries of Goods under the Contract or any other contract between the Customer and Design Tonic 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 15.2(b) to clause 15.2(d), or Design Tonic reasonably believes that the Customer is about to become subject to any of them.
- Consequences of termination
16.1 On termination of the Contract:
(a) the Customer shall immediately pay to Design Tonic all of Design Tonic's outstanding unpaid invoices and interest and, in respect of Work supplied but for which no invoice has been submitted, Design Tonic shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) 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 Design Tonic may enter the Customer's premises (including the Delivery Location and Site) 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.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
- Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its
obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 2 months, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
- General
18.1 Assignment and other dealings
(a) Design Tonic 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.
(b) 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 Design Tonic, not to be unreasonably witheld.
18.2 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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); or
(ii) sent by email to the respective addresses detailed in the Construction Phase H&S Plan; (b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place
of receipt, when Business Hours resume.
(c) 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.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
18.4 Waiver.
(a) Except as set out in clause 2.7, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.5 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.
18.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on 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.
18.7 Third party rights.
(a) 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.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person. 18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in
writing and signed by the parties (or their authorised representatives).
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.
18.10 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.
