Loop3 Interiors Limited (‘Loop3’)
TERMS AND CONDITIONS OF BUSINESS
1. DEFINITIONS AND INTERPRETATION
- The defined terms in these Conditions shall have the meanings set out below:
Agreement: The agreement between the Client and Loop3 consisting of: (a) the Letter of Agreement, (b) the Proposal and any Contract Documents, (c) these Terms and Conditions. The Letter of Agreement shall take precedence in the event of any conflict with these Terms and Conditions or any other part of the Agreement.
Contract Documents: Designs, specifications, briefs, images, CAS,, Programme or other materials of whatever form which help to define the Works or the parties’ requirements and obligations under the Agreement and which have been identified as being part of the Agreement by being initialled or signed by the parties.
CAS: The cost analysis sheet issued for the Works as may be revised from time to time.
CDM Regulations: The Construction (Design and Management) Regulations 2015 or as the same may be updated or superseded from time to time, along with any related codes of practice.
FF&E: Furniture, fittings and equipment, including loose furniture, curtains, carpets, fixtures, materials and as may be further defined in the Letter.
Letter: The Letter of Agreement between the parties setting out the basis of the Agreement.
Project: The project to which the Agreement relates and of which the Works form a part of a whole.
Contract Price: The total cost of the Works all as determined by: (a) initially a fair and reasonable amount estimated by Loop3; (b) subsequently when available the latest professional prepared estimate or the lowest acceptable tender(s)/quotation(s) as applicable; and (c) ultimately when available the actual final cost. The Contract Price shall include (without limitation): (a) the cost of any FF&E and/or materials provided or to be provided by the Client to a contractor for installation during the Project; (b) any direct works carried out by or on behalf of the Client; and (c) reasonable provision for the contractor’s profit and overheads, but excludes: (a) Value Added Tax (VAT); (b) professional or consultant fees; (c) the costs of any resolution of any dispute; (d) any loss and/or expense payments paid to a contractor; and (e) any adjustment for liquidated damages deducted by the Client.
Site/Premises: The site of the Works and/or the premises to which the Works relates.
VAT: Value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.
Works: The building, repair, decoration or maintenance works to be undertaken under this Agreement.
- Any notice or other document required under the Agreement shall be in writing and given or served by any effective means to the address of the recipient specified in the Agreement or such other address notified to the other party in writing.
- Communications between the Client and Loop3 that are not such notices or other documents may be sent to any other address, including an email address, notified by the other party as an appropriate address for specific communications. Communications take effect on receipt, but if not in writing are of no effect unless and until confirmed in writing by the sender or the other party.
- Communications sent by special delivery or recorded delivery shall be deemed (subject to proof to the contrary) to have arrived at the appropriate address on the second working day after posting.
- Where under the Agreement an action is required within a period of days from a specified date, that period commences immediately after that date. The period shall include Saturdays and Sundays but shall exclude any day that is a public holiday.
- The Client and Loop3 shall work together in a spirit of mutual trust and co-operation.
- The Client and Loop3 shall comply with their respective obligations (as may be applicable in regard to the Works) under the CDM Regulations.
- Loop3 shall have the right to take and publish photographs of the Project at any stage (including after completion) and the Client shall give reasonable access to the Project for this purpose.
- These Conditions apply to the Agreement to the exclusion of any other terms including any that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The CAS or any tender, quotation, estimate or the like issued by Loop3 from time to time will not be treated as an offer capable of acceptance. A contract between the Client and Loop3 will only be formed when Loop3 has received from the Client a copy of the Letter signed by the Client (or its agent) and which Loop3 shall itself have signed to complete and from which point the Agreement will be effective, as from the date of commencement of the Works.
4 Loop3’S OBLIGATIONS
- Loop3 will carry out the Works:
- in a proper, efficient and workmanlike manner, in accordance with the Agreement;
- in compliance with all relevant statutory requirements, including where applicable the CDM Regulations, relevant bylaws and British Standards and Codes of Practice; and
- so that where Loop3 shall have designed any part of the Works or shall have selected materials for incorporation in the Works, the design and/or selection shall have been undertaken with reasonable skill, care and diligence.
- Loop3 shall:
- keep the Client informed of progress and of issues that may materially affect any timetable for or the cost or finished quality of the Works;
- co-operate with others engaged in relation to the Works; and
- not make material alterations to designs previously approved by the Client without the Client’s prior consent, such consent not to be unreasonably withheld or delayed.
- Loop3 shall comply with the Client’s instructions, subject to Loop3’s right of reasonable objection.
- Loop3 is not liable for and does not warrant:
- the performance, work or products of other persons engaged in connection with the Project, except in connection with those in regard to which Loop3 is acting as a main contractor; or
- that approvals, permissions, consents, etc. from third parties will be granted.
Limitation of warranty
5 CLIENT OBLIGATIONS
- The Client shall provide:
- accurate and reliable information relating to the Project which is necessary for the performance of the Works free of charge and in good time, and Loop3 shall be entitled to rely upon such information; and
- suitable working space and facilities.
- Unless otherwise clearly stated in the Letter or CAS, the Client shall be responsible for (including for all costs and expenses) any applications required in relation to the Works from any third party including for consents under planning legislation, regulations or other statutory requirements.
- The Client shall give decisions and approvals as necessary for the proper and timely performance of the Works.
- In respect of any work or services in connection with the Works performed by any persons other than Loop3 (e.g. other consultants, contractors), the Client shall hold such persons and not Loop3 responsible for the competence and performance of their work and services including the management and operational methods used in connection with the carrying out and completion of work and services undertaken by such persons and for compliance with health and safety requirements.
6 THE WORKS
- Loop3 shall commence the Works on the Commencement Date (or such other date as the parties shall agree between them) and shall undertake the Works to achieve practical completion by the Completion Date.
- Where the Client issues instructions Loop3 shall act reasonably to comply with the instruction. In the case of instructions which amount to a variation to the Works whether an addition, modification or omission then Loop3 shall only be obliged to comply with such an instruction where agreed to in writing including the consequences including any adjustments to the Completion Date of the Contract Price.
- Loop3 may at any time including and not limited to where it is necessary to comply with any statutory or other regulatory requirement or for matters of health and safety, make changes to the Works and may do so without notice to the Client where the same are not material to the nature or quality of the Works.
- Including but not limited to the event of a variation instruction, Loop3 shall give notice to the Client when it is apparent at any time that completion of the Works may be delayed in achieving the Completion Date, or where Loop3 will incur loss and/or expense over and above that allowed for in the Contract Price. The notice will state the event/s and grounds relied upon including in support of any related claim concerning delay and/or loss and expense. Subject to such notice being given and where the event is one other than one which is due to the fault of Loop3 itself, the Client shall act reasonably and diligently to agree an extension of time for completion of the Works and/or an adjustment to the Contract Price and the Completion Date and/or the Contract Price shall be adjusted accordingly.
- Loop3 shall, if so requested by the Client supply a programme showing how it intends to carry out the Works. Such programme shall not be in any way binding on Loop3 but shall be for illustrative purposes only.
- Loop3 will:
- maintain the Works both during the progress of them and until practical completion of the Main Contract works;
- ahead of practical completion, invite the Client to carry out an inspection of the Works and to provide any comments in writing within 7 working days of the inspection; and
- make good at its own expense any defect, shrinkage or damage to the Works, at any time up to practical completion of the Works and upon notification in writing by the Client with details of the items involved, for a period of 12 months from practical completion or as otherwise stated in the Letter.
7 INJURY TO PERSONS AND DAMAGE TO PROPERTY
- Loop3 shall indemnify the Client against costs claims demands losses or expenses arising out of injury or death of any person or injury to property real or personal arising out of or in the course of or by reason of the execution of the Works, save to the extent that such is caused by any negligence or default of the Client or for matters which are outside of the control of Loop3.
- Loop3 shall maintain adequate employer's liability, public liability, contractors all risks and (where appropriate) professional indemnity insurance in relation to all such risks and/or potential claims arising out of or in relation to the Agreement for such amounts as detailed in the Agreement and on request will provide evidence to the Client of such insurance being in place.
- Where the Agreement states that it is required, the Client shall take out insurance to cover against risk of damage in any form to the Site/Premises or other property relevant to the Works and in the joint names with Loop3 or otherwise so that Loop3’s interests are recorded, and provide evidence of such insurance being in place to Loop3.
- Loop3 shall maintain such insurance until the expiry of the period stated in the Agreement letter provided such insurance remains available to Loop3 on commercially reasonable rates and terms, failing which Loop3 will inform the Client in order that the parties can discuss the best means of protecting their respective positions in the absence of such insurance.
8 TITLE IN GOODS AND MATERIALS
- Title in any goods and materials supplied by Loop3 as part of the Agreement shall not pass to the Client until Loop3 receives payment in full (in cash or cleared funds) for the goods and materials in question.
- Until title has passed to the Client, the Client shall in regard to any goods and materials not otherwise integrated into the Works:
- store them separately from all other goods and materials held by the Client so that they remain readily identifiable as the property of Loop3;
- maintain the goods and materials in satisfactory condition and keep them insured against all risks for their full price on the behalf of Loop3 from the date of delivery;
- notify Loop3 immediately if it becomes subject to any of the events listed in clause 13.2 and give Loop3 such information relating to the goods and materials as Loop3 may require from time to time.
- If before title to the goods and materials passes to the Client the Client becomes subject to any of the events listed in clause 13.2 then, without limiting any other right or remedy the Supplier may have:
- the Customer's right to resell the goods and materials or use them in the ordinary course of its business ceases immediately; and
- Loop3 may at any time:
- require the Client to deliver them all up in its possession which have not been resold, or irrevocably incorporated into another product; 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.
- The risk in goods and materials to be incorporated in the Works, and in plant, tools and equipment for use in connection with the Works shall remain with Loop3 until practical completion of the Works.
- The Contract Price shall be calculated, charged and paid in accordance with the Agreement. VAT shall be payable on all sums due to Loop3 at the applicable rate.
- Unless otherwise agreed Loop3 shall submit to the Client monthly applications for payment for Works carried out. Applications shall specify the sum that Loop3 considers will be due on the payment due date in respect of the instalment and the basis on which that sum is calculated. Loop3 shall provide such other information as is reasonably required by the Client in support of the application.
- Loop3 shall issue payment applications at the intervals referred to in the Agreement or, if not provided for, at intervals of not less than 1 month starting from the date of commencement of the Services.
- The due date for payment of an application shall be the date of each application.
- Each application shall state the sum that Loop3 considers to be due as of the due date identified in the application and the basis on which that sum is calculated.
- Within 5 days of each due date, the Client shall issue a notice stating the sum that the Client considers to be, or to have been, due at the due date and the basis on which that sum has been calculated (the ‘notified sum’).If the Client does not issue such a notice within 5 days of a due date, then the sum of Loop3’s application shall be the notified sum for that due date.
- The Client shall pay the notified sum within 14 days of the due date of an application (the ‘final date for payment’) unless the Client issues a notice under Condition 9.8.The Client shall not in any event delay payment of any undisputed part of the notified sum.
- If the Client intends to pay less than the notified sum, the Client shall give a written notice to Loop3 not later than 5 days before the final date for payment, specifying the amount that the Client considers to be due on the date the notice is served, the basis on which that sum is calculated and, if any sum is intended to be withheld, the ground for doing so or, if there is more than one ground, each ground and the amount attributable to it.
- In the event that any amount under the Agreement is not paid when properly due, the payee shall be entitled to simple interest on such amount from the date it became overdue until the date that payment is received at the daily rate equivalent to 8% per annum above the dealing rate of the Bank of England current at the date that payment becomes overdue, together with such costs reasonably incurred and duly mitigated by the payee (including costs of time spent by principals, employees and advisors) in obtaining payment of that sum under the Agreement.
- In the event of the Client being in default of payment of any amount due to Loop3 then on giving the Client 7 days' notice in writing specifying the grounds for so doing, Loop3 may suspend performance of any or all of its obligations under the Agreement. Loop3 shall resume its obligations under the Agreement within a reasonable time after receipt of any outstanding payment. Any suspension arising under this clause shall entitle Loop3 to payment of its reasonable costs and expenses incurred as a result and the period of suspension shall be disregarded in computing any agreed date for completion of the Works and Loop3 shall not otherwise be liable to the Customer in regard to such suspension.
10 ASSIGNMENT AND SUB-CONTRACTING
The Client shall not assign the benefit of the Agreement without the consent in writing of Loop3. Loop3 shall give the Client written notice of any assignment of the whole or any part of its obligations under the Agreement.
11 INTELLECTUAL PROPERTY AND USE OF INFORMATION
- Loop3 shall own all intellectual property rights in relation to the Works, including copyright in the drawings, documents, bespoke software and all other work produced by, or on behalf of, Loop3 in the performance of the Services (‘the Material’). Loop3 asserts Loop3’s moral rights and all other rights to be identified as the author of the Material.
- The Client shall have a licence to copy and use and allow others providing services to the Project to copy and use the Material for purposes related to the Project.
- Purposes related to the Project shall include the operation, maintenance, repair, reinstatement, alteration, extending, promotion, leasing and/or sale of the Project but shall exclude the reproduction of all or part of Loop3’s design for any part of any extension of the Project and/or for any other project unless a licence fee to reproduce all or part of the design is agreed.
- Loop3 shall not be liable if the Material is modified other than by or with the consent of Loop3 or used for any purpose other than the purposes for which it was prepared.
- If at any time the Client is in default of payment of any fees or other amounts properly due under the Agreement, Loop3 may suspend further use of the licence in Condition 11.2 on giving 7 days’ notice to the Client of the intention of doing so. Use of the licence may be resumed on receipt of such outstanding amounts.
12 LIABILITIES - Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
Time limit for action or proceedings
- No action or proceedings arising out of, or in connection with, the Agreement, whether in contract, tort, statutory duty or otherwise, shall be commenced after the period specified in the Agreement or such earlier date as prescribed by law.
Limit of liability
- In any action or proceedings:
- no agent or employee of Loop3, including any officer or director of Loop3 shall be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Services;
- nothing in the Agreement shall limit or exclude Loop3's liability for:
- death or personal injury caused by the negligence of Loop3’s employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
- defective products under the Consumer Protection Act 1987 subject to which Loop3 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 any indirect or consequential loss, arising under or in connection with the Agreement.
- Loop3's total liability to the Client in respect of all losses (except those specified in Condition 12.2.2) arising under, or in connection with, the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the lesser of: (a) the limit of liability specified in the Agreement; or (b) the amount of professional indemnity insurance that Loop3 is required to maintain in accordance with Condition 9. Net contribution
- Without prejudice to the provisions of Condition 8.2, the liability of Loop3 shall not exceed such sum as it is just and equitable for Loop3 to pay having regard to the extent of Loop3’s responsibility for the loss and/or damage in question and on the assumptions that:
- all other consultants, contractors and suppliers providing work or services or supplies for the Project have provided to the Client contractual undertakings on terms no less onerous than those of Loop3 under the Agreement;
- there are no exclusions or limitations of liability, joint insurance or co-insurance provisions between the Client and any other person referred to in this Condition 8.3; and
- all the persons referred to in this Condition 8.3 have paid to the Client such sums as it would be just and equitable for them to pay having regard to the extent of the responsibility for that loss and/or damage. Force majeure
- Neither party shall be in breach of the Agreement nor liable for delay in performing or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- Loop3 will have no liability for goods and materials supplied directly or indirectly by the Client and for which the Client will take full responsibility.
- [Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than one months' written notice.
- Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice 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), 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];
- 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
- 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 Agreement has been placed in jeopardy.
- Without affecting any other right or remedy available to it, Loop3 may terminate the Agreement with immediate effect by giving written notice to the Customer if: a change of control of the Customer.
- Without affecting any other right or remedy available to it, Loop3 may suspend the supply of Services or all further deliveries of Goods under the Agreement or any other Agreement between the Customer and Loop3 if the Customer becomes subject to any of the events listed in clause 13.2, or Loop3 reasonably believes that the Customer is about to become subject to any of them
14 Consequences of termination
- On termination of the Agreement:
- the Customer shall immediately pay to Loop3 all of Loop3's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Loop3 shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all Goods which have not been fully paid for. If the Customer fails to do so, then Loop3 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 Agreement.
- Termination or expiry of the Agreement 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 Agreement which existed at or before the date of termination or expiry.
- Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
- Assignment and other dealings. Loop3 may at any time assign, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement. The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Loop3.
- Notices. Any notice or other communication given to a party under or in connection with the 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); or sent by fax to its main fax number or sent by email to the address specified in the Agreement.
- Any notice or other communication 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; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next working day after transmission. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- Severance. If any provision or part-provision of the Agreement 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 Agreement.
- Waiver. 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 breach or default. 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.
- Entire agreement. The Agreement 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.
- Nothing in this Agreement shall limit or exclude any liability for fraud.
- Third parties rights. The Agreement does not give rise to any rights under the Agreements (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
- Variation. Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
- Governing law. Unless otherwise stated, the Agreement shall be governed by and construed in accordance with the law of England and Wales and each party irrevocably agrees that the courts of the same country shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
- Disputes. Subject to either party's right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation.
- Adjudication. Notwithstanding any other provision of the Agreement either party may refer a dispute arising under the Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations, which Part shall take effect as if it was incorporated into this clause. The adjudicator shall be appointed by: The Royal Institute of Chartered Surveyors