Synergy Building Design Limited: Terms and Conditions of Business
The Client’s attention is particularly drawn to the provisions of Clause 8 (Limitation of Liability).
- Interpretation
1.1 Definitions.
In these Conditions, the following definitions apply: Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5; Conditions: these terms and conditions as amended from time to time in accordance with clause 11.9; Contract: the contract between Synergy and the Client for the supply of Services in accordance with these Conditions (and incorporating the documents within the
Fee Quotation Pack ); Client: the person, firm or company who purchases Services from Synergy; Deliverables: the reports, drawings, calculations, specifications and data as may be produced by Synergy for the Client pursuant to the Services; Fee Quotation Pack: Synergy’s covering letter (“Covering Letter”), proposal acceptance form (“Proposal Acceptance Form”), and fee quotation document (“Fee Quotation Document”), all or some of which may be provided to the Client prior to commencement of the Services; Synergy: Synergy Building Design Limited registered in England and Wales with company number 08383581; and Services: the services, including the Deliverables, supplied by Synergy to the Client as set out in the Fee Quotation Document
- Basis of contract
1.1 The signature by the Client of Synergy’s Proposal Acceptance Form constitutes acceptance by the Client to purchase Services from Synergy in accordance with these Conditions.
1.2 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Synergy which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by Synergy, and any descriptions or illustrations contained in Synergy’s catalogues or brochures, are for illustrative purposes only and shall not form part of the Contract or any other contract between Synergy and the Client for the supply of the Services.
1.3 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. These Conditions shall continue to apply to all services supplied by Synergy to the Client under any contract hereafter unless expressly excluded in writing.
1.4 Any quotation given by Synergy shall not constitute an offer, and is only valid for a period of 60 days from its date of issue.
- Supply of Services
2.1 Synergy shall supply the Services to the Client as set out in the Fee Quotation Pack
2.2 Synergy shall use its reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.3 Synergy warrants to the Client that the Services will be provided using reasonable care and skill.
- Client’s obligations
3.1 The Client shall:
- a) ensure that any information it provides for the Fee Quotation Pack is complete and
accurate; b) co-operate with Synergy and provide such information and materials as Synergy may reasonably require in order to supply the Services;( c) provide Synergy, its employees, agents, consultants and subcontractors, with access to the Client’s premises as reasonably required; and (d) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the
Services are to start.
3.2 If Synergy’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, or employees, Synergy shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay. Any additional costs and expenses arising which are reasonably incurred by Synergy shall be paid by
the Client.
- Change Control
4.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing 4.2 If either party requests a change to the scope or execution of the Services, Synergy shall, within a reasonable time, provide a written estimate to the Client of: (a) the likely time required to implement the change; (b) any necessary variations to Synergy’s charges arising from the change; and (c) any other impact of the change to the Contract.
4.3 If the Client wishes Synergy to proceed with the change, Synergy has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and any other relevant terms
of this agreement such changes to be agreed in writing between the parties.
4.4 Synergy may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
4.5 Synergy may charge for the time it spends assessing a request for change from the Client on a time and materials basis in accordance with clause 4.1.
- Charges and payment
5.1 The Charges for the Services shall be as set out in the Fee Quotation Pack.
5.2 Synergy shall be entitled to charge the Client for any expenses reasonably incurred by Synergy or any individuals whom Synergy engages in connection with the Services, and for the cost of services provided by third parties and required by Synergy for the performance of the Services, and for the cost of any materials.
5.3 Synergy shall be entitled to invoice the Client on completion of the Services or monthly for work completed for the previous month, or on the issuance of the Design & Plans Certificate, whichever is specified in the Covering Letter.
5.4 The Client shall pay each invoice submitted by Synergy within 14 days of the date of the invoice (“the Due Date”) in full and in cleared funds unless otherwise agreed in writing between the parties. Time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”), which shall be chargeable on the supply of the Services and due for payment at the same time as payment is due for the supply of the Services if applicable.
5.6 Without limiting any other right or remedy of Synergy, if the Client fails to make any payment due to Synergy under the Contract by the Due Date, Synergy shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above Barclays Bank PLC base rate for the time being in force, accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Synergy in order to justify withholding payment of any amount. Synergy may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Synergy to the Client.
- Intellectual property rights
6.1 The property and any copyright or other intellectual property rights in any Deliverables or other material produced by Synergy (“Output Data”) shall, unless otherwise agreed in writing between the Client and Synergy, belong to Synergy but the Client be entitled to use the Output Material in pursuance of the Services by way of a non- exclusive licence, subject to payment in full of all sums payable under the Contract.
6.2 The Client is not permitted to use the Output Data for any other purpose beyond that of the Services nor shall Synergy be in any way liable for any unauthorised use of the Output Data.
- Collateral Warranties
7.1 Synergy shall consider entering into collateral warranties if so requested, however its agreement shall be strictly subject to the terms of any such warranty being acceptable to Synergy and its indemnity insurers. For the avoidance of doubt Synergy shall not in any way be bound to enter into a collateral warranty if so requested by a Client.
7.2 Synergy reserves the right to make additional charges to the Client for the negotiation and entering into of the Collateral Warranty (to include all legal costs and expenses incurred by Synergy). Such charges shall be in accordance with Synergy’s standard fee rate from time to time, and shall not be less than £500.00 plus VAT per day.
- Limitation of liability:
8.1 Nothing in these Conditions shall limit or exclude Synergy’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors or fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1: (a) Synergy shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract; and (b) Synergy total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort
(including negligence), breach of statutory duty, or otherwise, shall not exceed the Contractor’s level of insurance cover in place from time to time (details of which will be provided on request) and the Client shall be responsible for making its own arrangements for the insurance of any excess loss.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
- Termination
9.1 Without prejudice to the other remedies or rights a party may have, either party may terminate the Contract, at any time, on written notice to the other party
9.1.1 if the Other Party is in material breach of its obligations under the Contract and, if the breach is capable of remedy, the breach is not remedied within 30 days of the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or 9.1.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition
with its creditors or takes or suffers any similar or analogous action in consequence of debt. The notice shall take effect as specified in the notice.
9.2 On termination of the Contract, the Client shall pay for all Services provided up to the date of termination, and for all expenditure from commitments reasonably and necessarily incurred by Synergy for the performance of the Services prior to the date of termination.
9.3 Without limiting its other rights or remedies, Synergy may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment
- Consequences of termination
10.1 On termination of the Contract for any reason:
(a) the Client shall immediately pay to Synergy all of Synergy’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Synergy shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all of the Deliverables which have not been fully paid for. If the Client fails to do so, then Synergy may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and (d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- General
11.1 Construction
In these Conditions, the following rules apply:
(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 or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes e-mails.
11.2 Force majeure:
The Company shall not be liable to the Client as a direct or indirect result of the service being prevented, hindered or delayed by reason of any circumstances outside the direct control of the Synergy if Synergy is prevented from providing any of the Services for more than 16 weeks, Synergy shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
11.3 Assignment and subcontracting:
(a) Synergy may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of Synergy, assign, transfer, charge, subcontract
or deal in any other manner with all or any of its rights or obligations under the Contract.
11.4 Notices:
Any notice to be given pursuant to these conditions shall be in writing and shall be sent by first class mail to the registered address of the relevant Party (if a company) or (in any other case) its principal place of business, or, in the case of an individual Client, that Client’s home address.
11.5 Waiver:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
11.6 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.7 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.8 Third parties:
The Parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.9 Variation:
Any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Synergy.
11.10 Governing law and jurisdiction:
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
- The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
12.1 Nothing within these terms of business shall alter, amend or in any way diminish the rights under the Regulations of any Client who enters into agreement with Synergy as consumer within the definition laid down by section 4 of the Regulations