Abbey Design Associates – Terms of Business

These terms and conditions apply to all contracts for the provision of services to the Customer by the Supplier and shall apply in place of and prevail over any terms or conditions contained or referred to in the Customer’s purchase order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by an authorised representative of the Supplier.

  1. DEFINITIONS

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Proposal or (in the event that no Proposal is provided by the Supplier to the Customer) as agreed in writing between the parties.

Contract: the contract between the Customer and the Supplier for the supply of the Services in accordance with these terms, incorporating the Proposal.

Customer: you, being the party to whom the Proposal is addressed or another party agreed in writing.

Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.

Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).

Force Majeure Event: means any of the following circumstances or events which are beyond the Supplier’s reasonable control including but not limited to: an act of God, war, military or terrorist activity, civil unrest, national strike, lock-out or trade dispute or labour disturbance, government intervention, pandemic, epidemic, fire, flood, storm or adverse weather conditions or difficulty or excessive increase in the expense in obtaining workmen, materials or transport.

Intellectual Property Rights: 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.

Proposal: the document or quotation provided by the Supplier setting out the scope of the Services and the Charges.

Services: the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract, as described in the Proposal.

Services Start Date: the day on which the Supplier is to start provision of the Services, as set out at the start of this contract or as otherwise agreed between the parties.

Supplier: Abbey Design Associates (Gloucester) Limited (No. 05917986) whose registered office is at Amberley House, Green Farm Business Park, Quedgeley, Gloucester, GL2 4LY.

Supplier IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.

  1. COMMENCEMENT AND TERM

The Supplier shall provide the Services from the Services Start Date until completion of the Services (as confirmed by the Supplier) unless terminated earlier in accordance with its terms.

  1. SUPPLY OF SERVICES
    • The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
    • In supplying the Services, the Supplier shall:
      • perform the Services with all due care, ability and skill to be expected of a competent consultant of the same discipline as the Supplier experienced in providing services similar to the Services;
      • perform the Services in accordance with the service description set out in the Proposal;
      • not, without the Customer’s written consent, make any material change to the designs or specifications for the Services;
      • keep the Customer properly informed of progress;
      • ensure that the Deliverables, and all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
      • not use materials which are known to be deleterious;
      • comply with all applicable obligations imposed on the Supplier in the performance of the Services under the Construction (Design and Management) Regulations 2015 insofar as the same apply to the Services;
      • keep reasonably detailed records relating to provision of the Services;
      • comply with all applicable laws, statutes and regulations from time to time in force provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
      • observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Supplier, provided that the Supplier 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; and
      • take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
  1. CUSTOMER’S OBLIGATIONS
    • The Customer shall:
      • co-operate with the Supplier in all matters relating to the Services;
      • provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier;
      • pay the Supplier’s reasonably incurred costs if the location for performance is different to that set out in the Proposal;
      • provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and complete in all material respects.
    • If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
      • not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
      • be entitled to payment of the Charges despite any such prevention or delay; and
      • be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
  1. TITLE TO DELIVERABLES AND CUSTOMER MATERIALS

Title to any Deliverables that are goods or in any physical media on which Deliverables are stored and title to any goods or materials transferred to the Customer as part of the Services shall pass to the Customer on payment of the Charges for them. The Supplier transfers the Deliverables and all such goods and materials to the Customer free from all liens, charges and encumbrances. All Customer Materials are the exclusive property of the Customer.

  1. INTELLECTUAL PROPERTY
    • The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
    • The Supplier grants the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy the Supplier IPRs for the purpose of receiving and using the Services.
    • The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
    • The Supplier shall indemnify the Customer in full against any sums awarded by a court against the Customer arising out of or in connection with any claim brought against the Customer for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of or in connection with the receipt or use of the Services by the Customer.
    • The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising of or in connection with any claim brought against the Supplier for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.
  2. CHARGES AND PAYMENT
    • The Customer shall pay the Supplier the Charges in accordance with this clause 7. The Charges are inclusive of expenses incurred or likely to be incurred by the Supplier.
    • All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
    • Unless otherwise set out in the Proposal or agreed in writing, the Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer monthly in arrears. Each invoice shall include all reasonable supporting information required by the Customer.
    • The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier.
    • If the Customer receives an invoice which it reasonably believes includes a sum which is not valid and properly due:
      • the Customer shall notify the Supplier in writing as soon as reasonably practicable;
      • the Customer’s failure to pay the disputed Charges shall not be deemed to be a breach of this Contract;
      • the Customer shall pay the balance of the invoice which is not in dispute by the due date for payment of the invoice; and
      • once the dispute has been resolved, where either party is required to make a balancing payment, it shall do so within 14 Business Days and, where the Supplier is required to issue a credit note, it shall do so within 14 Business Days.
    • The parties will use best endeavours to resolve any disputes within 10 Business Days.
    • If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 9 (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 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%.
    • All amounts due under the Contract from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    • The Supplier may, without need of prior notice, increase the Charges with effect from 1 January each year by an amount equal to any percentage increase in the Retail Prices Index during the previous year, or 3.5%, whichever is greater, (for all items) for the preceding twelve month period or alternatively, at the option of the Supplier, any other reasonable method of calculating inflation.
    • Charges for any additional services which are not the Services shall be quoted for on request from the Customer or charged at the applicable hourly rate of the Supplier at that time.
    • The Customer shall produce a purchase order number promptly upon entry into this Contract.
  3. LIMITATION OF LIABILITY
    • The Supplier shall, throughout the duration of this Contract, take out and maintain with reputable insurers:
      • professional indemnity insurance of not less than one million pounds; and
      • public liability insurance of not less than ten million pounds.
    • The Supplier shall, on request submit to the Customer accurate details of its insurance cover together with documentary evidence that such insurance remains properly maintained.
    • References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    • Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
    • 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 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 4 (No limitation on customer’s payment obligations) and clause 8.5 (Liabilities which cannot legally be limited):
      • the Supplier’s total liability to the Customer for all other loss or damage shall not exceed 100% of the Charges payable to the Supplier under the Contract in the twelve months immediately preceding the date of the event giving rise to the liability (and for the first 12 months of the Contract it shall be limited to 100% of the payments anticipated to be payable to the Supplier during the first 12 months of the Contract); and
      • the Customer’s total liability to the Supplier for all other loss or damage shall not exceed 100% of the Charges payable to the Supplier under the Contract in the twelve months immediately preceding the date of the event giving rise to the liability (and for the first 12 months of the Contract it shall be limited to 100% of the payments anticipated to be payable to the Supplier during the first 12 months of the Contract).
    • Subject to clause 4 (No limitation on customer’s payment obligations) and clause 8.5 (Liabilities which cannot legally be limited), this clause 8.7 sets out the types of loss that 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 or reputation; and
      • indirect or consequential loss.
    • 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 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
    • Provided that the form has been agreed with the Supplier in advance and its liability is no greater than under this Contract, the Supplier may agree to provide a collateral warranty to third party in respect of the Services.
  4. TERMINATION
    • The Supplier may terminate this Contract on 3 months’ written notice to the Customer.
    • Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
      • 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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; or
      • 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.
    • 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 the Customer fails to pay any amount due under the Contract within 1 month of the due date; or
    • On termination of the Contract for whatever reason:
      • the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
      • any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
      • termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or 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.
    • If the Customer terminates the Contract under clause 2, the Supplier shall as soon as reasonably practicable deliver up all drawings, designs, plans, specifications, programs or other documentation, goods and supplies relating to the Contract which exist at the date of termination, whether or not complete and the Supplier hereby assigns ownership of any Intellectual Property Rights in such materials to the Customer.
  5. COMPLIANCE
    • Anti-Bribery. The Supplier confirms that it complies with the Bribery Act 2010 and has in place an Anti-bribery Policy.
    • Modern Slavery Act. The Supplier confirms that it complies with the Modern Slavery Act 2015 and has in place a Modern Slavery Policy.
  6. FORCE MAJEURE
    • Neither party shall be liable to the other party for any loss or damage which may be suffered as a direct or indirect result of any delay or non-performance of its obligations under this Contract due to a Force Majeure Event.
    • Such delay or failure shall not constitute a breach of this Contract and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for thirty days or more, the party not affected may, at its option and if it is reasonable for it to do so, terminate this Contract with immediate effect by giving written notice of such termination to the other party.
  7. CONFIDENTIALITY
    • Each party shall use the confidential information of the other party whether disclosed before or after the date of this Contract only for the proper performance of its duties under this Contract and shall not without the disclosing party’s written consent disclose or permit the disclosure of the confidential information except in confidence for the proper performance of its duties under this Contract to those of its employees, officers and professional advisers who need to have access to it.
    • The provisions of clause 1 shall not apply to confidential information which: (i) the receiving party can prove was known to the receiving party before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of the receiving party with effect from the date when that information enters the public domain; (iii) was received from a third party without obligations of confidence owed directly or indirectly to the disclosing party; or (iv) is required to be disclosed in order to comply with applicable law, to the extent of the required disclosure.
    • The Supplier may disclose that the Customer is a customer of the Supplier in its marketing materials and the Customer grants the Supplier a non-exclusive, perpetual licence to use its marks on its marketing materials and website. With the prior consent of the Customer, the Supplier may publish a case study relating to this Contract for marketing purposes.
  8. DATA PROTECTION

Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including the (i) Data Protection Act 2018 and any successor UK legislation, (ii) retained EU law version of the General Data Protection Regulation ((EU) 2016/679), and (iii) Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).

  1. GENERAL
    • Assignment. The Supplier may assign the Contract without consent. Subject to obtaining the prior written consent of the Supplier, such consent not to be unreasonably withheld subject to fulfilment of conditions (such as credit checks or payment of an administration fee), the Customer may assign the Contract. Following any such assignment, the Customer will remain liable for all damage to the Equipment and for any Charges.
    • Subcontracting. The Supplier may subcontract some or all of its obligations under this Contract provided that it remains liable for the acts and omissions of the subcontractor.
    • Entire agreement. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements relating to its subject matter. Each party acknowledges that it has not relied on and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Contract shall be for breach of contract. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
    • Severance. If any provision or part-provision of this 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 this Contract. Whilst the parties consider this Contract reasonable, if any one or more of the provision(s) are adjudged alone or together to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to modify any such provision(s) so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provision(s).
    • Survival of obligations. Any clauses which expressly or impliedly survive termination of this Contract for any reason whatsoever shall do so.
    • No partnership/agency. Nothing in this Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
    • Variation. No variation of the Contract shall be effective unless it is agreed in writing by the parties (or their authorised representatives).
    • Contracts (Rights of Third Parties) Act 1999. Save as set out in this Contract, a person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
    • Waiver & remedies. Any right or remedy under this Contract may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under this Contract does not constitute a waiver. Partial exercise of any right under this Contract shall not preclude any further or other exercise of a right under this Contract.
    • Notice. Any written notice shall be effective for the purposes of the Contract and shall be sufficiently served if sent by letter whether delivered by pre-paid post or as an attachment to email or delivered by hand to the address of the other party as referred to in the Order Form and, if sent by post, shall be deemed to have been received by the addressee forty-eight (48) hours after the time of posting and, if delivered by hand or sent as an email attachment (provided no error messages were received), at the date of sending or delivery. Notices delivered after 5pm shall be deemed to be delivered the next Business Day.
    • Governing law & jurisdiction. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claims.