TERMS AND CONDITIONS IN RELATION TO THE PROVISION OF FEASIBILITY SERVICES
- THE AGREEMENT
These terms and conditions (the “Terms and Conditions”) apply in relation to the feasibility work proposal to which they are attached or in which they are referenced (the “Proposal”) and the services to be delivered as specified in the Proposal, (the “Services”). In the event that the client named in the Proposal (the “Customer”) accepts the Proposal (by signing, physically or electronically, the Proposal where indicated, by paying any up-front deposit required in the Proposal or otherwise confirming acceptance of the Proposal (for example, by email confirmation)), an agreement (the “Agreement”) will be formed (on the date of such acceptance) between Coopers Design & Build Ltd with registered number 07907941 and registered office at Suite 4c, Rythe Centre, Claygate Lane, Thames Ditton, Surrey, England, KT7 0LE (“Coopers”) and the Customer which will comprise the matters set out in the Proposal and these Terms and Conditions. The Customer and Coopers are the “Parties” to the Agreement. If there is any conflict or inconsistency between the contents of the Proposal and these Terms and Conditions, the Proposal shall take priority.
- SERVICES TO BE PROVIDED BY COOPERS
Coopers shall provide to the Customer the Services subject to the provisions of these Terms and Conditions.
- OBLIGATIONS OF THE CUSTOMER
The Customer shall provide to Coopers promptly upon request, all information and materials which is required by Coopers in order to be able to provide the Services under the Agreement.
- CUSTOMER WARRANTIES AND UNDERTAKINGS
The Customer warrants to Coopers that all information provided by it (or its employees, directors, agents, advisors and/or sub-contractors) to Coopers in connection with the Agreement will be accurate in all material respects.
In consideration of Coopers providing the Services in relation to any project (the “Project”) the Customer shall pay Coopers the fees set out in the Proposal (the “Fees”) plus (if not already added and if applicable) an amount representing VAT.
The Fees shall be paid by the Customer (subject to receipt of the related invoice) on the dates set out in the Proposal (or, if no dates are set out, prior to commencement of work in relation to the Services by Coopers).
In the event that the Customer requests or makes a change to its requirements as set out in the Proposal, Coopers may (in its sole discretion) charge fees in addition to those set out in the Proposal. In the absence of payment of such additional amounts, Coopers shall not be required to provide any services or equipment other than as set out in the agreed Proposal.
- INVOICING AND PAYMENT
Coopers will use its reasonable endeavours to invoice the Customer for the Fees in advance of the relevant due date(s).
Amounts invoiced are payable on the later of: (i) the date on which the amount is specified to be payable in the Proposal or these Terms and Conditions above; and (ii) 7 days after receipt of the invoice.
The Customer shall pay all amounts due to Coopers to the bank account specified in the relevant invoice (or such other bank account as Coopers notifies the Customer in writing).
Without prejudice to any other right or remedy that it may have, if the Customer fails to pay any amount due to Coopers by the due date, Coopers may charge interest on such sum from the due date for payment at a yearly rate of 1% above the base rate for the time being of Barclays Bank PLC which shall accrue on a daily basis from the due date until payment is made.
- INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights of whatever nature created by Coopers in connection with the provision of the Services (“Created IP”) are owned by Coopers, except as regards plans and drawings specifically created for the Customer and except to the extent that Coopers has otherwise agreed in writing with the Customer. Except as specifically set out below, the Agreement does not operate to assign any title, interest or rights in such intellectual property or any other intellectual property rights held by Coopers.
Coopers grants the Customer a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use any Created IP solely to the extent necessary in order to enable the Customer to be able to use the Services for the purposes for which the Services were provided.
- DATA PROTECTION
All personal data which Coopers uses will be collected, processed, and held in accordance with the provisions of current Data Protection Legislation. “Data Protection Legislation” means all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 as amended.
For complete details of Coopers’ policy on the collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Customer’s rights and how to exercise them, and personal data sharing (where applicable), the Customer should refer to the Privacy Notice available on Coopers’ website.
The Customer and Coopers shall each keep in strict confidence all confidential information of the other (which will include, without limitation, material and/or information which relates to the business affairs, products, services, marketing strategy, developments, trade secrets and information of commercial value, know-how, personnel, customers, clients, and suppliers) subject as mentioned below.
Either Party may disclose the following: (i) confidential information of the other Party to its employees, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out its obligations under the Agreement; (ii) information which becomes public other than by reason of a breach of the obligation of confidentiality above; (iii) information to the extent required by applicable law, court order or any governmental or regulatory authority; and (iv) confidential information of the other Party to its professional advisers who need to know such information for the purposes of carrying out their obligations to the disclosing Party.
The confidentiality provisions above shall survive the termination of this Agreement for any reason.
- INDEMNITY AND LIMITATION OF LIABILITY
The Customer will be liable for and will indemnify Coopers for and in respect of all and any losses, claims, demands, damages or expenses which Coopers may suffer due to or arising directly or indirectly as a result of any of: (i) the proper performance by Coopers of its obligations under the Agreement; (ii) any change requested by the Customer (and agreed to by Coopers) to any matters set out in the Proposal (including, without limitation, the times or dates of the delivery of the Services); or (iii) the negligence, act or omission, breach of contract, breach of duty, insolvency, recklessness, bad faith, wilful default or fraud of the Customer, its employees, subcontractors or agents or any of them. This paragraph shall survive the termination of this Agreement for any reason.
Subject as otherwise mentioned below, the liability of Coopers in contract, tort (including negligence or breach of statutory duty), or otherwise arising in connection with the Agreement will be limited to the lower of: (i) the total price paid by the Customer for the Services; and (ii) the amount which Coopers recovers from its insurers in respect of the liability. [In this regard, Coopers confirms that it has in place the contractor’s liability insurance cover of not less than £5 million.]
Subject as otherwise mentioned below, Coopers shall not be liable in relation to: (i) consequential loss, loss due to business interruption and/or loss of profits suffered by the Customer; (ii) loss suffered by the Customer in relation to illustrations, photographs or proofs which the Customer has received and confirmed as being acceptable; or (iii) any loss suffered by the Customer due to a failure of Coopers to deliver the Services in accordance with any timetable set out in the Proposal, provided that Coopers has used its reasonable endeavours to meet any such timetable for delivery.
Notwithstanding any other provision contained in the Agreement, neither Party excludes or restricts its liability: (i) for death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors; (ii) for fraud or fraudulent misrepresentation; or (iii) to the extent it is otherwise prohibited by law from excluding or restricting liability.
- FORCE MAJEURE
Coopers shall not be liable for any failure to comply with its obligations under this Agreement to the extent that compliance is restricted impeded or prevented by circumstances beyond its reasonable control. Such circumstances shall include but shall not be limited to acts of God, war, government regulations or intervention, transport failure, disaster, epidemic, pandemic, fire, flood, strikes, labour dispute, accident, riot, civil disorder, or terrorist act directly affecting the ability of either Party to perform their obligations under this Agreement. If such circumstances arise and cause a delay or failure in the performance by Coopers of its obligations under the Agreement, Coopers shall notify the Customer of that fact. If the circumstances continue for a continuous period of more than three months, Coopers may terminate this Agreement without liability to the Customer. If this Agreement is terminated pursuant to this paragraph, the Customer shall only be liable to pay that proportion of the total amount which would have been payable under this Agreement (absent a termination) which is equal to the proportion of the obligations actually fulfilled by Coopers in accordance with the terms and conditions of this Agreement up to the date of termination as confirmed by Coopers (such amount being the “Proportionate Amount”).
Coopers may sub-contract performance of its obligations under the Agreement (or part thereof) to any other person, firm, corporation, or organisation PROVIDED THAT: (i) Coopers shall remain liable at all times for the proper performance of the relevant obligations; and (ii) Coopers shall use its reasonable endeavours to ensure that any sub-contractor is suitable to carry out the obligations sub-contracted to it.
Coopers may terminate the Agreement without cause by written notice to the Customer of not less than one month. Coopers may also terminate immediately by written notice to the Customer if legal or regulatory requirements relating to BREXIT or COVID 19 (or other pandemic) which come into force after the entry into of the Agreement are such that continued performance of its obligations under the Agreement would not (in the reasonable opinion of Coopers) be commercially viable, due, for example (but without limitation) to additional cost implications. If Coopers terminates pursuant to this paragraph the Customer shall be entitled to request either (and Coopers shall be obliged to comply with the Customer’s request): (i) a refund of any amounts of Fees already received by Coopers from the Customer less an amount which Coopers estimates (in its sole discretion, but acting reasonably) to represent the amount of work carried out by Coopers up to the date of termination (together with any related costs or expenses that have been incurred by Coopers prior to the date of termination or that Coopers will need to incur after termination in relation to the Services which were agreed to be provided); or (ii) the entry into of a new agreement for the provision of the Services with such changes as Coopers may reasonably require.
The Customer may terminate the Agreement without cause by written notice to Coopers at any time. If the Customer terminates the Agreement pursuant to this paragraph, it shall be liable to pay to Coopers that amount of the Fees which Coopers estimates (in its sole discretion, but acting reasonably) to represent the amount of work carried out by Coopers up to the date of termination (together with any related costs or expenses that have been incurred by Coopers prior to the date of termination or that Coopers will need to incur after termination in relation to the Services which were agreed to be provided) PROVIDED THAT, in the event that the Proposal requires the payment of a non-refundable deposit, the minimum amount payable by the Customer shall be the amount of such deposit.
In addition to the other rights of termination set out in the Agreement, either Party may terminate the Agreement immediately by notice in writing to the other Party if:
(i) such other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(ii) such other Party commits a breach of any of the material terms of this Agreement and fails to remedy that breach within 14 days of such other Party being notified in writing of the breach;
(v) such other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(vi) such other Party becomes insolvent or enters into liquidation or receivership or is the subject of an application for an administration order or suffers an administrative receiver to be appointed in relation to the whole or any part of its assets or makes a composition or arrangement with its creditors or suffers any judgement to be executed in relation to any of its property or assets, otherwise than for the purposes of a solvent amalgamation or reconstruction.
Termination or expiry of the Agreement shall not affect any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiry, including payment rights/obligations and/or the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
Each Party agrees that it shall not make any claim, in relation to this Agreement, against any director, agent or employee of the other Party.
A person who is not a party to this Agreement has no right to enforce it under the Contracts (Rights of Third Parties) Act 1999.
This Agreement shall be governed by the laws of England. The Courts of England shall have full jurisdiction to resolve any disputes or claims arising under this Agreement (including any non-contractual disputes or claims).
Coopers Design & Build Ltd[November 2021]