Terms & Conditions
Terms & Conditions of Business
Our website address is: https://fluidinnovation.co.uk
Parties
WE ARE:
Company Name: FLUID INNOVATION LIMITED
Company Number: 05782571
A registered company in: England & Wales
With its Registered Address at: 6 Maidstone Buildings Mews, London, SE1 1GD
With its Trading Address at: 72-76 Borough High Street, London SE1 1GF
VAT Number: 889 5523 60
Referred to as “Fluid Innovation”
YOU ARE:
the CUSTOMER who has engaged Fluid Innovation to perform Services, as detailed in an SOW.
Referred to as the “Customer”
These Fluid Innovation Terms & Conditions of Business are entered into by the parties and are subject to the Schedules listed below, which both Fluid Innovation and the Customer undertake to observe (“Agreement”).
Schedule 1: General Terms
Schedule 2: Definitions
Schedule 3: Services
– Design
– Office Interiors Design
– Electrical Systems Design
– Fire System Design
– Security System Design
Schedule 4: Build
Schedule 5: Electrical
Schedule 6: Fire & Security
Schedule 7: Office Furniture
Schedule 8: Moves & Installations
For ease of reference, this Agreement is comprised of several elements that the Customer should be aware of:
- The core legal terms are contained in Schedule 1. These terms share common elements across all of Fluid Innovation’s Services.
- The Schedule 1 terms are supplemented with further legal terms for each Service type. These are separated into Service Schedules.
- The SOW will set out the applicable commercial terms e.g. the fees and the duration that the SOW will apply for.
– – – – –
Schedule 1:
General Terms
1. BASIS OF CONTRACT
1.1. This Agreement will be deemed to be accepted by the Customer upon the Customer’s acceptance of this Agreement by any means, including without limitation:
– 1.1.1. the Customer signing a SOW;
– 1.1.2. the Customer accepting (by reply to an email) an SOW (in the form of an email) which incorporates this Agreement by reference;
– 1.1.3. the Customer ticking an opt-in acceptance box for this Agreement on a Fluid Innovation website or application; or
– 1.1.4. the Customer’s use of any of the Services after the Customer’s receipt of this Agreement,
on which date this Agreement will come into existence and will continue in force until terminated in accordance with its terms.
1.2. All Quotations and SOWs are subject to the terms of this Agreement.
1.3. Any Service Schedule(s) will be effective upon the Customer using a Service that corresponds with the relevant Service Schedule, on which date such Service Schedule(s) will be incorporated into this Agreement and will continue in force until terminated in accordance with the terms of this Agreement.
1.4. In the event of conflict between any part of this Agreement and/or any ancillary documents, the conflicting terms will take precedence in descending order of priority as follows:
– 1.4.1. any SOW (the most recent version taking priority over previous versions);
– 1.4.2. the Service Schedules, in descending order of appearance in this Agreement;
– 1.4.3. Schedule 1 (General Terms); and
– 1.4.4. Schedule 2 (Definitions).
1.5. This Agreement will apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law (where lawfully permitted), trade custom, practice or course of dealing.
1.6. In this Agreement, unless the context requires otherwise, the following provisions apply:
– 1.6.1. any capitalised terms in this Agreement will have the meaning set out in Schedule 2 (Definitions) or alternatively within the body of this Agreement, unless otherwise stated;
– 1.6.2. any clauses or paragraphs referred to in a Schedule to this Agreement is to a clause or paragraph within that Schedule unless otherwise stated;
– 1.6.3. clause headings are for reference purposes only and shall not affect the interpretation of the clause;
– 1.6.4. a reference to a statute or statutory provision is a reference to such statute or 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;
– 1.6.5. 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
– 1.6.6. a reference to ‘writing’ or ‘written’ includes email unless stated otherwise, but not faxes.
2. FLUID INNOVATION’S OBLIGATIONS
A. SERVICES
2.1. Performance Standards. Fluid Innovation shall provide the Services to the Customer using reasonable care and skill and Fluid Innovation shall use reasonable efforts to provide the Services to the Customer in accordance with the applicable SOW.
2.2. Service Timeframes. Fluid Innovation shall use reasonable efforts to complete the Services within any timeframe agreed with the Customer, but for the avoidance of doubt, any timeframes are estimates only and time shall not be ‘of the essence’ for the performance of the Services. Fluid Innovation will not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Services. Fluid Innovation does not warrant that any result or objective, whether stated in this Agreement or not, shall be achieved, be achievable, or be attained at all or by a given Completion Date or by any other date.
2.3. Location of the Services. The parties shall agree in writing (including email) the time and place (if not specified in the SOW) when the Services shall be performed, subject to the availability of Fluid Innovation’s staff and agents and the availability and delivery of the Goods.
2.4. Services Warranty Period. If any part of the Services is performed negligently or in breach of a provision of this Agreement (and Fluid Innovation agrees with this determination), then, at the Customer’s request (if the request is given within the Warranty Period detailed in the applicable Service Schedule), Fluid Innovation shall re-perform the relevant part of the Services.
B. GOODS
2.5. Goods Timeframes. Unless any timeframes are specified as being a “critical timeframe” in a Service Schedule or an SOW, Fluid Innovation will use reasonable efforts to deliver Goods to the Customer within any timeframe agreed with the Customer, but for the avoidance of doubt, any timeframes or requested dates are estimates only and time shall not be ‘of the essence’ in relation to the Goods. Fluid Innovation shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods.
2.6. Specification of the Goods. All Goods shall be required only to conform to the specification in the SOW. For the avoidance of doubt, no description, specification, or illustration contained in any product pamphlet or other sales or marketing literature of Fluid Innovation, nor any representation (written or oral), correspondence, or statement shall form part of this Agreement.
2.7. Delivery of the Goods. Unless otherwise specified in a Service Schedule or agreed by the parties in writing, Fluid Innovation shall deliver the Goods to the address specified by the Customer.
2.8. Risk in the Goods. All risk in the Goods shall pass to the Customer upon delivery, except when Fluid Innovation is delivering and installing the Goods, in which case all risk shall pass to the Customer upon installation of the Goods. If the Goods are damaged during installation, Fluid Innovation shall provide repairs and replacements for the Goods at Fluid Innovation’s reasonable cost. All risk in the Goods shall remain with Fluid Innovation for any period that Fluid Innovation is storing the Goods for the Customer.
2.9. Title to the Goods. The property in, and title to, the Goods shall not pass to the Customer until Fluid Innovation has received the payment of the Fees due for the Goods (and any other sums that are due or owing to Fluid Innovation) in full, whether or not delivery has been made. The parties hereby acknowledge and agree, and the Customer hereby provides consent for access to its premises (or any applicable third party premises) without restriction, for Fluid Innovation to recover any Goods if the Customer does not pay any invoice issued to it by the relevant due date for those Goods. Fluid Innovation reserves a right of lien over any such Goods until payment is made in full.
2.10. Examination of the Goods. The Customer hereby acknowledges and agrees that:
– 2.10.1. it will have seven days to inspect the Goods;
– 2.10.2. it will inspect the Goods;
– 2.10.3. it will satisfy itself as to the condition of the Goods;
– 2.10.4. the only warranties that apply to Goods are the applicable manufacturer warranties and Fluid Innovation does not give any further warranty or condition as to the quality or fitness for any purpose of the Goods;
– 2.10.5. subject to clause 2.10.4, all conditions or warranties, express or implied (whether by statute or otherwise), are expressly excluded; and
– 2.10.6. following the seven day inspection period in clause 2.10.1, delivery of the Goods to the Customer is conclusive evidence that the Customer has examined the Goods and that the Goods are in conformity with the SOW, in good order and condition, satisfactory quality and fit for any purpose to which they may be required.
2.11. Goods Warranty Period. The manufacturer’s Warranty Period for the applicable Goods under clause 2.10.4 (where applicable) will commence on the date of the delivery of the Goods to the Customer and continue for the period specified by the relevant manufacturer (which Fluid Innovation may detail in a Service Schedule or an SOW).
2.12. Defects in the Goods. Where there are defects identified in the Goods during the Warranty Period, Fluid Innovation will at Fluid Innovation’s option either repair or replace the Goods within a reasonable period, provided that:
– 2.12.1. the Customer notifies Fluid Innovation in writing of the claimed defects immediately on their appearance (and in any event no later than the end of the Warranty Period);
– 2.12.2. the Customer has not caused the defect by its own action or omission; and
– 2.12.3. Fluid Innovation is satisfied that the defects have arisen solely from the faulty design (other than a design made, furnished, or specified by the Customer for which Fluid Innovation has disclaimed responsibility in writing), materials or workmanship.
2.13. Return of Goods. Any repaired or replacement Goods will be delivered to the Customer at the original place of delivery, but otherwise subject to the provisions of this Agreement.
2.14. Alternate Remedy. As an alternative to clause 2.12, Fluid Innovation is, in Fluid Innovation’s absolute discretion, entitled to return to the Customer the Fees paid by it for the defective portion of the Goods if the Customer had already paid such sums when the claimed defect was notified by it to Fluid Innovation.
2.15. The remedies provided in clauses 2.12 or 2.14 are the sole remedies available to the Customer in relation to defective Goods and Fluid Innovation will have no further liability in relation to such defective Goods.
3. CUSTOMER OBLIGATIONS
3.1. From time to time Fluid Innovation may request that the Customer provides Fluid Innovation with certain Customer Materials, further information or assistance to enable Fluid Innovation to fully provide the Services and the Customer agrees that this will be promptly provided to Fluid Innovation.
3.2. The Customer must ensure the accuracy of all such Customer Materials or information provided to Fluid Innovation.
3.3. The Customer agrees to complete any Customer Action by the times and dates as set out in the SOW.
3.4. The Customer agrees to make available to Fluid Innovation the facilities, resources, working space and staff as specified in the SOW and/or as Fluid Innovation may reasonably require from time to time.
3.5. If Fluid Innovation is unable to perform its obligations to the Customer under this Agreement because it has been prevented or delayed by the Customer (or a third party acting on the Customer’s behalf), such as by the Customer’s failure to do something requested of it:
– 3.5.1. Fluid Innovation shall have no liability in respect of any delay to the completion of the Services; and
– 3.5.2. if applicable, the timetable for the Services will be modified accordingly.
3.6. Fluid Innovation may, in Fluid Innovation’s sole discretion, charge the Customer for any additional reasonable costs and expenses incurred by Fluid Innovation caused by the Customer’s instructions, the Customer’s failure to provide instructions or the Customer’s failure to comply with this clause 3.
3.7. The Customer will be responsible for obtaining all licences, permissions (including, but not limited to, planning permission), consents and health and safety approvals from such organisations and authorities which are required for the Goods to be installed and for the Services to be carried out. Notwithstanding, the parties may agree in writing from time to time that Fluid Innovation shall seek to obtain building regulation approval on the Customer’s behalf. The Customer will be responsible for any costs arising from instructing Fluid Innovation to proceed with the Services in the event that the Customer has not obtained the necessary approvals or any other planning permissions stated in this clause 3.7 (including where the Customer instructs Fluid Innovation to proceed when it is awaiting any regulation approval on the Customer’s behalf).
3.8. The Customer hereby confirms that it has all the necessary rights and ownership in the Customer Materials to permit Fluid Innovation to use them for the provision of the Services without infringing any third-party Intellectual Property Rights.
3.9. The Customer will check that the terms of each SOW and any other information provided by Fluid Innovation are correct and accurately reflects the Customer’s requirements. The parties acknowledge and agree that anything that is not expressly mentioned in an SOW is not included within the scope of the Services to be provided. In the event that the Customer wishes to change the scope of an SOW, clause 4 will apply.
3.10. The Customer warrants that it has the legal right and authority to enter into and adhere to the terms of this Agreement.
3.11. The Customer undertakes to ensure that the relevant premises and/or equipment are available for the performance of the Services. In the event that the relevant premises and/or equipment are inaccessible for any reason, Fluid Innovation reserves the right to charge the Customer for the time that each of Fluid Innovation’s personnel would have been spent:
– 3.11.1. working at the relevant premises (until access is granted); and/or
– 3.11.2. using the relevant equipment (until such equipment is made available), at Fluid Innovation’s then current rates (in addition to the agreed Fees).
4. CHANGE CONTROL
4.1. The parties may at any time mutually agree upon and execute an agreement to amend this Agreement and/or an SOW (a “Variation Agreement”).
4.2. Any alterations to the scope of Goods and/or Services to be provided under this Agreement and/or an applicable SOW shall be set out in a Variation Agreement, which shall reflect the changed Goods and/or Services, changed price and any other terms agreed between the parties.
4.3. The Customer may at any time request alterations to the Goods and/or Services by providing notice in writing to Fluid Innovation. Subject to clause 4.4, Fluid Innovation will notify the Customer of the fees for such alternations and, where the Customer wishes to proceed, the parties will sign a Variation Agreement to reflect the alterations.
4.4. For the avoidance of doubt, Fluid Innovation has no obligation to accept any alterations requested by the Customer, but it will use commercially reasonable efforts to do so where it considers it to be appropriate. Any cancellations that are mutually agreed by the parties in writing will be subject to the Customer paying Fluid Innovation a restocking charge (as notified to the Customer in writing from time to time).
5. FEES AND PAYMENT
5.1. The Fees for the supply of the Goods and/or Services will be set out in the applicable SOW.
5.2. Fees for Goods. When Goods are delivered to the Customer, the price specified by the supplier of the Goods plus the cost of any insurance, packaging, transportation and delivery charges will be invoiced by Fluid Innovation to the Customer. The Customer must pay each invoice within 30 days of the date of the invoice or as otherwise specified in the applicable SOW.
5.3. Fees for Services. Fluid Innovation shall send the Customer an invoice:
5.3.1. upon completion of the provision of the Services, if the Services are scheduled to take less than one month to complete in total;
5.3.2. at the end of each calendar month, if the Services are scheduled to take more than one month to complete in total, or if the Services are charged through valuations; or
5.3.3. at such other frequency specified in the applicable SOW, and
the Customer must pay each invoice within 30 days of the date of the invoice or as otherwise specified in the applicable SOW.
5.4. In the event that the Customer’s procedures require that an invoice be submitted against a purchase order, the Customer shall be responsible for issuing such purchase order to Fluid Innovation in writing before the Goods and/or Services are supplied.
5.5. Where applicable, invoices will show VAT and any expenses. The Fees do not include any other customs duties, levies or fees payable to government or other statutory bodies and any such duties or fees will be payable by the Customer in addition to the quoted price.
5.6. All payments by the Customer must quote Fluid Innovation’s invoice number and any other applicable reference numbers, including any applicable SOW reference number.
5.7. The Customer will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.
5.8. If any expenses are required (including travel and accommodation), Fluid Innovation will obtain the Customer’s written consent before it incurs such expenses.
5.9. If the Customer does not pay an invoice issued to it by the relevant due date, Fluid Innovation reserves the right to take the following actions:
– 5.9.1. charge interest on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis, and being compounded quarterly until payment is made, whether before or after any judgment;
– 5.9.2. sell any Goods that Fluid Innovation may have purchased on the Customer’s behalf;
– 5.9.3. delete or dispose of any Deliverables that Fluid Innovation may hold on the Customer’s behalf. Please note that Fluid Innovation will not be responsible for any loss or damage the Customer may suffer as a result of any deletion or disposal;
– 5.9.4. suspend the Services Fluid Innovation provides to the Customer. Fluid Innovation will not be liable for any loss of data that may occur in relation to the suspension of the Services;
– 5.9.5. require that the Customer makes a payment in advance of any Services or part of the Services not yet supplied; and/or
– 5.9.6. terminate the Agreement in accordance with clause 10.
5.10. Fluid Innovation may set-off any liability that the Customer may have to Fluid Innovation against any liability that Fluid Innovation may have to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. The Customer hereby grants Fluid Innovation a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Customer Materials solely for use in the provision of the Services and the creation and use of the Deliverables.
6.2. Fluid Innovation will retain all Intellectual Property Rights and other rights in the Deliverables. The Customer shall do all that is reasonably necessary to ensure that such rights vest in Fluid Innovation by the execution of appropriate instruments or the making of agreements with third parties. For the avoidance of doubt, all Intellectual Property Rights in any design or materials (without limitation, in the form of site documentation, text, images, or electronically stored code for the manipulation, transmission and presentation of information) developed by Fluid Innovation under this Agreement and in connection with the Services will remain Fluid Innovation’s property.
6.3. The Customer acknowledges that Fluid Innovation and its personnel may use any non-confidential details of the Services and the Deliverables (including sharing any analysis or metrics gained from any testing) for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on Fluid Innovation’s website). The Customer hereby permits Fluid Innovation and other associated parties to publish the name and standard logo of the Customer for such purposes.
6.4. Upon payment of the full Fees, Fluid Innovation will grant the Customer a licence for all Intellectual Property Rights in the Final Deliverables on a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free, worldwide basis to allow the Customer to make reasonable use of the Deliverables.
6.5. The Customer will indemnify, and keep indemnified, Fluid Innovation and its officers, employees, consultants, agents and sub-contractors on demand against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Fluid Innovation arising out of or in connection with any claim (including all demands, claims proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise)):
– 6.5.1. in relation to the Goods, Services, Customer Materials and/or any Deliverables infringing a third party’s Intellectual Property Rights;
– 6.5.2. in relation to the Goods, Services, Customer Materials, any Deliverables and/or any information provided by the Customer being inaccurate or incomplete; and/or
– 6.5.3. for any defamatory, offensive or illegal content, information or materials provided by the Customer, either directly or indirectly, to Fluid Innovation.
7. CONFIDENTIALITY
7.1. A party (“Receiving party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a reasonably confidential nature and have been disclosed (either orally, in writing or by demonstration) to a party (the “Receiving Party”) by the other party (the “Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and/or services which the Receiving Party may obtain (“Confidential Information”).
7.2. In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:
– 7.2.1. to treat the Confidential Information in strict confidence and with at least the same degree of care and protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information;
– 7.2.2. to use the Confidential Information only for the purpose of discharging the Receiving Party’s obligations under this Agreement; and
– 7.2.3. not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents, and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement).
7.3. Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:
– 7.3.1. is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or by any person or entity to who disclosures it where it has been provided with the Confidential Information by the Receiving Party;
– 7.3.2. the Receiving Party can show: (i) it was in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) it has been independently developed by the Receiving Party without reference to the Confidential Information received from the Disclosing Party;
– 7.3.3. the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
– 7.3.4. is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
– 7.3.5. is required by law to be released (e.g. by a court order), provided that, where permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request so that they may seek to object to such disclosure.
7.4. This clause 7 shall survive termination of this Agreement, howsoever arising.
8. DATA PROTECTION
8.1. The parties acknowledge and agree that no Personal Data will be processed pursuant to the Services. Notwithstanding, if any Personal Data is processed by Fluid Innovation on behalf of the Customer, the following provisions will apply.
8.2. Definitions. The terms “Controller”, “Processor”, “Personal Data”, “Data Subject”, “Personal Data Breach”, and “processing” (and process, processes, and processed shall be construed accordingly) shall have the meanings given to them in the Data Protection Laws.
8.3. General Obligations. Each party will ensure that, in the performance of its obligations under this Agreement, it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.
8.4. Data Specification. The Customer must provide Fluid Innovation with a document setting out: (a) the subject matter and duration of any processing to be undertaken by Fluid Innovation; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of Data Subject relevant to this Agreement.
8.5. Data Controller. The Customer acknowledges and agrees that it will be the Data Controller under this Agreement and that it will be responsible for adequately addressing the use of cookies and data protection obligations in its end-customer / Customer terms and conditions and policies. As Fluid Innovation does not have any control over the Customer’s data protection notices, policies, or terms and conditions, the Customer will indemnify, and keep indemnified, Fluid Innovation and its officers, employees, consultants, agents, and sub-contractors against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Fluid Innovation arising out of or in connection with any claim in respect of: (a) a breach of clause 8.3, 8.4 or 8.5; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of Data Subjects for the exportation of any Personal Data outside of the UK or the European Economic Area by Fluid Innovation under clause 8.9.
8.6. Data Processor. Fluid Innovation acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall:
– 8.6.1. keep all Personal Data it receives, stores, and collects from the Customer strictly confidential (pursuant to clause 7 (Confidentiality)) and not disclose any Personal Data to third parties;
– 8.6.2. not use the Personal Data for any purpose other than to perform its obligations under this Agreement;
– 8.6.3. ensure that all Personal Data it receives, stores, and collects from the Customer is processed in accordance with this Agreement, or as otherwise instructed in writing from time to time by the Customer. Fluid Innovation shall not process the Personal Data for any other purpose unless required by law to which Fluid Innovation is subject, in which case Fluid Innovation shall, to the extent permitted by law, inform the Customer of that legal requirement prior to responding to the request;
– 8.6.4. promptly carry out any written request requiring Fluid Innovation to amend, transfer or delete the Personal Data, or any part of the Personal Data, made by the Customer during this Agreement; and
– 8.6.5. notify the Customer without undue delay, or in any case within 48 hours, upon Fluid Innovation or any sub-processor becoming aware of a Personal Data Breach affecting the Personal Data. Upon notification, Fluid Innovation shall use all reasonable efforts to provide the Customer with sufficient information to meet any obligation to notify the relevant data protection authority of the Personal Data Breach or to inform affected Data Subjects under applicable Data Protection Laws.
8.7. Assistance. Fluid Innovation agrees to assist the Customer with all subject access requests which may be received from an end-customer in a prompt timeframe (at the Customer’s cost), and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by Fluid Innovation. Fluid Innovation shall assist the Customer in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that Fluid Innovation shall be entitled to charge a reasonable fee for such assistance.
8.8. Information Requests. Upon request, Fluid Innovation shall provide the Customer with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 8.
8.9. Data Transfers. Fluid Innovation agrees not to transmit any Personal Data to a country or territory outside the UK and/or the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection and appropriate legal safeguards in accordance with Data Protection Laws.
8.10. Return of Data. Upon the termination or expiry of this Agreement, howsoever arising, Fluid Innovation shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent Fluid Innovation from retaining a copy to meet its legal or regulatory obligations.
8.11. Safeguards. Taking into account the state-of-the-art, the costs of implementation, the nature, scope, context and purpose of processing, as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will:
– 8.11.1. implement administrative, technical, and physical safeguards sufficient to:
– 8.11.1.1. ensure the security and confidentiality of the Personal Data and other records and information of the end-customers or employees; and
– 8.11.1.2. protect against anticipated threats or hazards to the integrity of such information and records; and
– 8.11.2. implement protection against the unauthorised or accidental destruction, loss, alteration, use, or disclosure of the Personal Data and other records and information of the end-customers or employees.
9. LIMITATION OF LIABILITY
9.1. This clause 9 sets out the entire financial liability of Fluid Innovation (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
– 9.1.1. arising under or in connection with this Agreement;
– 9.1.2. in respect of any use made by the Customer of the Goods, Services and/or the Deliverables or any part of them; and
– 9.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
9.3. Nothing in this Agreement limits or excludes the liability of either party: (i) for death or personal injury which results from negligence; (ii) for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party; (iii) under any indemnities in this Agreement; or (iv) for any other liability which cannot be excluded or limited by law.
9.4. Subject to clause 9.3:
– 9.4.1. Fluid Innovation will not be liable to the Customer for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges, or expenses; and
– 9.4.2. Fluid Innovation’s total liability to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to: the higher of: (i) £1,000; or (ii) the Fees paid or payable for the specific Goods and/or Services under a SOW giving rise to such liability, that have been provided by Fluid Innovation to the Customer at the point when the cause of action arose.
9.5. Whilst Fluid Innovation will use its reasonable endeavours to make sure that any Customer Materials that the Customer provides to Fluid Innovation are not lost or damaged, Fluid Innovation will not be responsible or liable for any loss or damage that may occur to them.
10. TERMINATION
10.1. Each Service shall continue for the period stated in the applicable SOW and each Service may only be terminated for convenience where this is expressly permitted in the applicable SOW. Where cancellation of the Goods is expressly permitted in an SOW or a Service Schedule, any such cancellation of Goods will be subject to a re-stocking fee and Fluid Innovation will also be entitled to charge for any costs committed to by Fluid Innovation.
10.2. Without prejudice to any other rights to which Fluid Innovation may be entitled, in the event that the Customer purports to unlawfully terminate or cancel the Goods and/or Services agreed to in the applicable SOW, the Customer shall be required to pay to Fluid Innovation as agreed damages (and not as a penalty) the full amount of any third party costs to which Fluid Innovation has committed within five days. The Customer hereby agrees this is a genuine pre-estimate of Fluid Innovation’s losses in such a case.
10.3. This Agreement may be terminated by either party providing the other party with written notice at any time, which will take effect immediately upon the completion of all of the Services detailed in any SOW that is then in force, including any amendments or variations to such SOW (as determined by Fluid Innovation). For the avoidance of doubt, this Agreement cannot be terminated by either party whilst a SOW or any Services are in effect.
10.4. Notwithstanding any other provisions of this Agreement, Fluid Innovation may terminate this Agreement without any liability if:
– 10.4.1. the Customer does not pay the Fees specified in an invoice following Fluid Innovation providing it with at least seven days’ notice after the due date for the payment of the invoices in clause 5; or
– 10.4.2. the Customer fails to carry out a Customer Action following Fluid Innovation providing it with at least seven days’ notice after the date specified in clause 3.3.
10.5. Without limiting any other rights or remedies and notwithstanding any other provisions, either party (the “Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (the “Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
– 10.5.1. a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 28 days (or such lesser period, where mandated by applicable law) after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so;
– 10.5.2. pursuant to clause 11.2 following a Force Majeure Event;
– 10.5.3. an event, including (or similar in nature to) the following:
– 10.5.3.1. the Defaulting Party is unable to pay its debts as they fall due;
–– 10.5.3.2. the Defaulting Party goes into liquidation either compulsorily or voluntarily (except for the purpose of reconstruction or amalgamation);
–– 10.5.3.3. a receiver is appointed in respect of the whole or any part of the Defaulting Party;
–– 10.5.3.4. a provisional liquidator is appointed to the Defaulting Party; or
–– 10.5.3.5. the Defaulting Party enters into a voluntary arrangement, or any other composition or compromise, with the majority by value of its creditors, has a winding-up order, passes a resolution for voluntary winding-up, has an administrative receiver appointed or takes steps towards any such events; or
– 10.5.4. the Defaulting Party suspends or ceases (or threatens to suspend or cease) to carry on all or a substantial part of its business.
10.6. If this Agreement terminates for any reason:
– 10.6.1. any SOW in force at the time of termination relating to the terminated Services will automatically terminate;
– 10.6.2. Fluid Innovation shall not have any obligation to repay any charges paid by the Customer. Notwithstanding, a pro rata refund for any Services that could not be provided after the effective date of termination (subject to clause 10.6.3) will be provided to the Customer where the Agreement is terminated by the Customer due to a proven breach of contract by Fluid Innovation; and
– 10.6.3. notwithstanding any other provision, all charges payable by the Customer to Fluid Innovation under this Agreement will become due and payable immediately, including, but not limited to, any costs incurred by Fluid Innovation for any materials ordered or commitments entered into by Fluid Innovation for the performance of the Services before the effective date of termination (whether the related Goods and/or Services have been delivered or not) and any other admin related costs incurred from termination of the Agreement. This clause is without prejudice to any right by Fluid Innovation to claim interest or any other right under this Agreement.
10.7. If this Agreement is terminated by the Customer under clause 10.4, the Customer shall only be required to pay for all Services carried out up to the effective date of termination and all sums due for payment after the date of termination which arise from commitments entered by Fluid Innovation for the performance of the Services prior to the date of termination.
10.8. Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of a breach of this Agreement which existed at, or before, the effective date of termination.
10.9. Any provision of this Agreement that is expressly or by implication intended to come into or continue in force on or after termination or expiry of this Agreement shall come into and/or remain in full force and effect upon termination or expiry of this Agreement.
11. FORCE MAJEURE
11.1. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including without limitation, acts of God, strikes, lock-outs or other industrial disputes (involving the workforce of Fluid Innovation), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, epidemic, pandemic, accident, fire, flood, storm or default of suppliers or sub-contractors) (a “Force Majeure Event”).
11.2. If a Force Majeure Event under this clause 11 continues for a period of 30 days or more, the unaffected party may terminate this Agreement in accordance with clause 10.4.2.
12. ANNOUNCEMENTS
12.1. Neither party shall make any public announcement or disclose any information regarding this Agreement unless, prior to such public announcement or disclosure, it furnishes the other party with a copy of the announcement or information and obtains approval from the other party. However, neither party shall be prohibited from making any public announcement or disclosing information as is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange (subject to clause 7).
13. NON-SOLICITATION
13.1. During the term of this Agreement and for a period of 12 months from the date of termination, the Customer shall not (except with the prior written consent of Fluid Innovation) directly or indirectly solicit or entice away (or attempt to solicit or entice away) any employee, worker or independent contractor of Fluid Innovation. The Customer acknowledges and agrees that the restrictions detailed in this clause 13.1 are reasonable and any failure to adhere to these restrictions will fundamentally undermine Fluid Innovation’s business model.
13.2. The Customer shall not be in breach of clause 13.1 as a result of running a national advertising campaign open to all applicants and not specifically targeted at any of the staff of Fluid Innovation.
13.3. If the Customer commits a breach of clause 13.1, the Customer will, without prejudice to any other rights or remedies of Fluid Innovation, on demand, pay to Fluid Innovation a sum equal to one year’s basic salary or the annual fee that was payable by Fluid Innovation to that employee, worker or independent contractor, plus the recruitment costs incurred by Fluid Innovation in replacing such person.
14. MISCELLANEOUS
14.1. This 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. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
14.2. It may be necessary for Fluid Innovation to update this Agreement and its terms from time to time. If the Customer continues to use the Services after Fluid Innovation has informed it of any amendments or additional terms to the Agreement, the Customer will be deemed to have accepted these changes and they will be incorporated into this Agreement.
14.3. Subject to clause 14.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.
14.4. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
14.5. The Customer shall not, without the prior written consent of Fluid Innovation, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Fluid Innovation may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Each party will remain solely responsible and liable for the actions and omissions of its sub-contractors.
14.6. All notices must be in writing and will be deemed given when mailed by registered or certified mail (return receipt requested) to the other party’s registered business address. Correspondence relating to the provision of the Goods or Services may be via email, but serving a formal legal notice (e.g. a notice of a claim) by email or fax will not be an effective method of providing notice under this Agreement.
14.7. No one other than a party to this Agreement, their successors and their permitted assignees shall have any right to enforce any of its terms.
14.8. Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
14.9. If any provision or part-provision of this 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 this Agreement.
14.10. Any SOW may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.
14.11. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation, non-contractual disputes or claims) are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
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Schedule 2:
Definitions
1. DEFINITIONS
1.1. In this Agreement, the following definitions apply:
Business Day: Monday to Friday (inclusive), excluding bank holidays in England.
Completion Date: the date agreed by the parties that practical completion of the Services has been achieved, excluding any variations or Snagging Items.
Customer Action: any task detailed in the SOW that the Customer is required to complete for the proper provision of the Services.
Customer Materials: all information, text, graphics, photos, designs, content and materials provided by the Customer to Fluid Innovation for use in the provision of the Services.
Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the United Kingdom, or any other applicable jurisdiction, which may include, without limitation, the UK General Data Protection Regulation (Retained Regulation (EU) 2016/679) (UK GDPR) and the Data Protection Act 2018 and the guidance and codes of practice issued from time to time by the Information Commissioner’s Office or other relevant data protection or supervisory authority and applicable to a party, all as amended or replaced from time to time.
Deliverables: all text, data, diagrams, reports, images, videos, designs, artwork, products, materials, specifications, or any other content (including drafts) in any media created or provided by Fluid Innovation to the Customer in relation to the Services. The term ‘Deliverables’ shall also include the ‘Final Deliverables’.
Fees: any fees payable by the Customer to Fluid Innovation under this Agreement, as set out in the applicable SOW.
Final Deliverables: the finalised version of the Deliverables.
Goods: any physical Goods items detailed in an SOW that are to be provided or made available by Fluid Innovation to the Customer under this Agreement.
Handover Meeting: on the Completion Date, a representative of each party will inspect the build together and, if necessary, create a list of Snagging Items.
Intellectual Property Rights: any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, database rights, topography rights, moral rights, rights in confidential information (including without limitation, know-how and trade secrets), and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation, all applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
Quotation: a proposal for Services provided from Fluid Innovation to the Customer.
Services: the Goods, Deliverables and other services to be provided by Fluid Innovation to the Customer under this Agreement, as specified in the applicable SOW.
Service Schedule: Schedules 3 – 8 (inclusive).
Snagging Item: any Deliverable(s) and/or Service(s) confirmed as incorrect, sub-standard or missing in Fluid Innovation’s sole discretion.
SOW: any communication detailing the scope of Goods and/or Services to be provided by Fluid Innovation to the Customer that is agreed by both parties. This may include a Quotation, scope of work, a statement of work, a specification document, an email or any other similar document.
Warranty Period: the period that the Goods and all their component parts are free from any defects in design, workmanship, construction or material defects, as detailed in the applicable Service Schedule or SOW (where applicable).
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Schedule 3:
Design
1. SCOPE OF THIS SCHEDULE
– 1.1. This Schedule 3 will apply to the following Services (as detailed in an SOW):
– 1.1.1. office interiors design;
– 1.1.2. 2D space planning;
– 1.1.3. 3D design; and/or
– 1.1.4. 3D animation (a fully animated 3D walkthrough of the Customer’s office space),
in relation to:
– 1.1.5. electrical systems design (available for Fluid Innovation design direct engagements only);
– 1.1.6. fire system design (available for Fluid Innovation design direct engagements only); and/or
– 1.1.7. security system design (available for Fluid Innovation design direct engagements only).
1.2. At the initial meeting, Fluid Innovation will develop a detailed brief for the Customer’s project and then work closely with the Customer to produce a design that offers the perfect solution to the Customer’s requirements. The Customer shall be solely responsible for ensuring that the brief detailed in each SOW is fit for its purposes.
1.3. Fluid Innovation will use commercially reasonable endeavours to take into consideration the Customer’s working practices, team relationships, existing or new furniture specifications as well as the culture of the Customer’s company to produce detailed 2D and/or 3D designs. If the Customer wishes tovisualise the end result, at the Customer’s request and for an additional fee (as detailed in the applicable SOW), Fluid Innovation’s design team shall provide the Customer with fully animated, virtually photo quality 3D CGI walkthroughs of the Customer’s new office space.
2. CUSTOMER’S RESPONSIBILITIES
2.1. The Customer will:
– 2.1.1. co-operate with Fluid Innovation in connection with the provision of the Services;
2.1.2. provide any information reasonably required by Fluid Innovation;
2.1.3. provide all instructions, consents, or approvals necessary for the performance of the Services; and
2.1.4. comply with any requirements that are set out in an SOW.
2.2. The Customer acknowledges and agrees to ensure the accuracy of all information provided by it to Fluid Innovation.
2.3. If Fluid Innovation is unable to perform its obligations to the Customer under this Agreement because it has been prevented or delayed in doing so by the Customer or a third party acting on the Customer’s behalf (such as by the Customer’s failure to do something requested of it), Fluid Innovation will not be liable for any delays which may occur in the provision of the Services. If the delay in providing the Services exceeds seven days, the Customer must pay Fluid Innovation for any costs or expenses that Fluid Innovation has incurred as a result of the delay and for all work provided by Fluid Innovation up to that point in time.
2.4. The Services are provided to the Customer only, and the Customer may not resell the Services to any third party.
2.5. The Customer shall be responsible for approving any designs produced by Fluid Innovation and ensuring that such designs are compliant with any applicable laws and regulations, including without limitation, those which relate to fire system design and escape routes.
2.6. The Customer acknowledges and agrees that any finishes, layout mock-ups or designs are representations of the physical designs, are strictly for illustrative purposes only and may not accurately reflect the Final Deliverables. For example, the portrayal of certain materials on screen may be different to real life.
3. FLUID INNOVATION’S OBLIGATIONS
3.1. Fluid Innovation will:
– 3.1.1. use reasonable endeavours to co-operate with the Customer and provide the Customer with the Services in accordance with the SOW; and
– 3.1.2. make no material alteration to the Services or any approved designs without the Customer’s prior consent, except where Fluid Innovation reasonably considers that it is not practical to obtain such consent due to time limitations due to the relevant circumstances and/or where required to do so by any law or regulation.
3.2. The parties agree that Fluid Innovation will be required to conduct a survey and inspection of the [buildings, electrical supply, water supply, computer equipment and other facilities] of the Customer (the “Survey’). The Survey will be incorporated into the SOW. The Customer must permit Fluid Innovation, its employees and agents to conduct the Survey at such times as Fluid Innovation may reasonably specify.
3.3. The Customer acknowledges and agrees that all Customer Actions must be completed before any work is carried out.
3.4. Fluid Innovation cannot guarantee that an SOW will be fully adhered to where any third parties, including, consultants, Local Authorities, regulatory bodies, specialists, manufactures are required to contribute to the Services.
3.5. To the extent permitted by law, Fluid Innovation will not be responsible or liable under any circumstances for the viability, safety and/or legal / regulatory compliance of any designs, information or materials from third parties.
3.6. To the extent permitted by law, Fluid Innovation will not be responsible or liable under any circumstances if the Customer installs any of the designs produced by Fluid Innovation through a third party. For the avoidance of doubt, Fluid Innovation will only be responsible for systems and designs that Fluid Innovation installs.
4. DELIVERABLES DELIVERY PROCESS
4.1. Subject to paragraph 4.2 below, Fluid Innovation will:
– 4.1.1. create the first draft of the Deliverables based on the specification detailed in the SOW, or as otherwise agreed by both parties in writing;
– 4.1.2. notify the Customer when a draft version of the Deliverables is ready for approval and provide the Customer with a draft version for review;
– 4.1.3. give due consideration to feedback received from the Customer and make any required changes (provided that they are within the scope of the Service specification in the SOW); and
– 4.1.4. on completion of the Deliverables, Fluid Innovation will provide the Customer with the Final Deliverables for the Customer’s final approval. The Customer will be responsible for checking, proof-reading, and approving the Final Deliverables before the Final Deliverables are deemed to be complete. The Customer must confirm in writing (which may be via email) that the Final Deliverables are approved.
4.2. Whilst Fluid Innovation will give due consideration to any feedback received from the Customer, Fluid Innovation will only be required to make changes to the Deliverables in accordance with the revisions process and time allocation agreed in the applicable SOW. Where changes required exceed the agreed position, the additional changes will be subject to additional Fees at Fluid Innovation’s then-current hourly rate. Fluid Innovation will use reasonable efforts to consult with the Customer before incurring additional Fees in excess of the Fees set out in the SOW.
4.3. Fluid Innovation will not be liable for any of the contents of, or errors in, the Final Deliverables in any medium after the Customer has approved them in accordance with paragraph 4.1.4 above.
4.4. Fluid Innovation reserves the right to refuse to create, use or provide all or any part of the Deliverables that it considers in its sole discretion to be obscene, threatening, menacing, offensive, discriminatory, defamatory, morally unsuitable, in breach of confidence, infringing a third party’s Intellectual Property Rights or otherwise illegal.
4.5. In the event that the Customer provides any third party with the Deliverables prior to the Deliverables being approved and completed pursuant to paragraph 4.1.4 above, the Customer will be invoiced for the full Fees under the applicable SOW.
4.6. Unless otherwise stated in an SOW, Fluid Innovation shall provide the Customer with the Deliverables via email.
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Schedule 4:
Build
1. SCOPE OF THIS SCHEDULE
1.1. This Schedule 4 will apply to the following Services (as detailed in an SOW):
– 1.1.1. fit-out; and/or
– 1.1.2. refurbishment,
which may include decoration and/or installation of carpets, toilets, raised access flooring, partitions, ceilings and networks.
1.2. Once the design phase has been completed, the Customer’s dedicated Project Manager shall use commercially reasonable efforts to put together a detailed programme of works that identifies all required resources and set out an estimated timeline for the project. Fluid Innovation shall use commercially reasonable endeavours to co-ordinate the whole process, regularly communicate progress updates to the Customer and take care of all aspects of the fit out or refurbishment.
2. CUSTOMER RESPONSIBILITIES
2.1. The Customer must:
– 2.1.1. co-operate with Fluid Innovation in connection with the provision of the Services;
– 2.1.2. read and comply with all instructions, statements and recommendations issued with or relating to the Deliverables;
– 2.1.3. take all reasonable precautions as to the use of the Deliverables;
– 2.1.4. conduct risk assessments to ensure that the Customer meets its health and safety responsibilities; and
– 2.1.5. approve the build at the Handover Meeting, if it is satisfied that there are no material faults, and if necessary, create a list of any Snagging Issues that the Customer identifies with the build during the Handover Meeting.
– 2.1.6. approve the build within five Business Days following the Handover Meeting).
3. WARRANTY PERIODS
3.1. The parties hereby acknowledge and agree that fit-out Services (excluding any Goods) are provided with a 12-month warranty period only.
4. TIMEFRAMES
4.1. Please note that Fluid Innovation will not be liable for any delay in relation to the delivery of furniture purchased directly through Fluid Innovation. All Goods are manufactured to order and manufacturing lead times are only ever an estimate.
4.2. Fluid Innovation will use commercially reasonable efforts to rectify any Snagging Issues within five Business Days following the Handover Meeting.
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Schedule 5:
Electrical
1. SCOPE OF THIS SCHEDULE
1.1. This Schedule 5 will apply to the following Services (as detailed in an SOW):
– 1.1.1. EICRs (electrical installation condition reports);
– 1.1.2. emergency light testing;
– 1.1.3. electrical plant management;
– 1.1.4. electrical installations (including, without limitation, for power, data and lighting);
– 1.1.5. inspections;
– 1.1.6. testing;
– 1.1.7. maintenance; and/or
– 1.1.8. fault finding.
2. FLUID INNOVATION’S OBLIGATIONS
2.1. Fluid Innovation will provide the electrical Services via qualified electricians (or supervised apprentices) only.
2.2. Fluid Innovation warrants that the electrical Services will be provided in accordance with all applicable laws and regulations.
3. CUSTOMER’S RESPONSIBILITIES
3.1. For the duration of the Services, the Customer bears the sole risk and responsibility for all equipment left at its premises (including without limitation, transformers, towers, ladders etc.). The Customer will reimburse Fluid Innovation in full for any such equipment that goes missing or is damaged by anyone other than Fluid Innovation and/or its contractors.
4. WARRANTY PERIODS
4.1. The parties hereby acknowledge and agree that electrical Services are provided with a 12-month warranty period only.
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Schedule 6:
Fire & Security
1. SCOPE OF THIS SCHEDULE
1.1. This Schedule 6 will apply to the following Services (as detailed in an SOW):
– 1.1.1. fire alarms and fire detection products and measures;
– 1.1.2. office access controls (which may include mag-lock and other door security measures controlled by RFID (radio frequency identification), Bluetooth and key pad devices;
– 1.1.3. intruder detection alarms; and/or
– 1.1.4. cameras, and any support and/or maintenance of such items (where agreed in an SOW).
2. CUSTOMER’S RESPONSIBILITIES
2.1. For the duration of the Services (as stated in an SOW), the Customer shall:
– 2.1.1. bear the sole risk and responsibility for all equipment left at its premises (including without limitation, transformers, towers, ladders, etc.). The Customer will reimburse Fluid Innovation in full for any such equipment that goes missing or is damaged by anyone other than Fluid Innovation and/or its contractors;
– 2.1.2. not adjust, reset, test, repair or alter the equipment / hardware / materials provided as part of the Services (“Service Materials”) in anyway without agreeing this with the Fluid Innovation in advance and in writing;
– 2.1.3. use the Service Materials with reasonable care and ensure they are maintained in good working condition;
– 2.1.4. notify Fluid Innovation within 7 days of any proposed structural alterations to the premises or any other alterations, including but not limited to alterations to the layout or fitting of the premises or of major movements of contents, which could affect the Services;
– 2.1.5. provide Fluid Innovations with the days and times when the premises are scheduled to be closed in writing. The Customer agrees that Fluid Innovation shall have the right to notify the police of any interference with the security Services during such days and times;
– 2.1.6. at its own cost, provide a suitable supply of electricity to Fluid Innovation as may be required to perform the Services.
– 2.1.7. permit Fluid Innovation to remedy any defect in or to reset the Services; and
– 2.1.8. pay for any replacement batteries required for the Service Materials, the cost of re-instating and/or re-decorating the premises after installation and for re-laying any carpets or floor coverings.
3. FLUID INNOVATION’S OBLIGATIONS
3.1. Fluid Innovation shall install the Service Materials in accordance with the recommendations of the British Standard Institute Specification for Intruder Alarm Systems in buildings (“BSI Recommendations”) applicable at the installation date.
3.2. Where agreed in an SOW, Fluid Innovation may provide support and maintenance Services to the Customer, which can include:
– 3.2.1. annual services being scheduled for non-policed intruder alarms, CCTV and door access controls;
– 3.2.2. bi-annual service schedule for police monitored intruder alarms;
– 3.2.3. bi-annual service schedule for fire alarms,
each of which shall include testing of all equipment to ensure compliance with all applicable British Standard Institute Specifications, but excludes battery changes,
– 3.2.4. 24-hour emergency call out service (call outs are chargeable unless the fault is covered by the warranty clauses in this Agreement);
– 3.2.5. system monitoring (in accordance with the service levels detailed in an SOW);
3.3. For the duration of any support and maintenance Services detailed in a SOW, Fluid Innovation shall examine and test the Services in accordance with the current BSI Recommendations and will issue a certificate to the Customer detailing the state of the Services.
3.4. Fluid Innovation will have no liability for the cost of re-decoration or re-instatement or any damage of any nature arising from the installation, testing, alteration, maintenance or repair of the Services except when shown to be caused solely by the negligence of Fluid Innovation.
3.5. For the duration of the Services, Fluid Innovation agrees to carry out any reasonably necessary repairs, maintenance, resetting or changes to the Services.
3.6. Fluid Innovation reserves the right to charge the Customer at its normal rate for work and materials if an employee of Fluid Innovation attends the premises of the Customer for any purpose, except for the routine examinations and testing carried out in accordance with paragraph 3.2.
3.7. Notwithstanding any other provision in this Agreement, the Customer is solely responsible for testing and maintaining the access controls and alarm systems and implementing any additional security measures as the Customer deems reasonably appropriate to maintain a holistic security program. To the extent permitted by law, Fluid Innovation will not be responsible for any unauthorised access to the Customer’s premises, any failure of the access controls or alarm systems to function or for any damage that occurs due to the Customer premises become insecure.
4. WARRANTY PERIODS
4.1. The parties hereby acknowledge and agree that fire Services and security Services are provided with a 12-month warranty period only.
4.2. The Customer must give Fluid Innovation written notice within 14 days of becoming aware of any defects to the fire and security Services.
4.3. Fluid Innovation shall replace or rectify defective equipment, provided that it has been notified in accordance with paragraph 4.2, for a period of 12 months from the installation completion date, except where the defect results from the act, neglect or default of the Customer or any third party or any circumstance beyond the Fluid Innovation’s control.
4.4. The Customer warrants that it has appropriate insurance for fires, security, places of work or other property and persons at the property against all insurable risks.
4.5. Fluid Innovation does not guarantee or warrant that particular loss, damage or injury will be prevented by the use of the Services and the Customer agrees and acknowledges that the Services are only designed for the purpose of reducing such risk.
5. TERMINATION
5.1. Notwithstanding any other provision in this Agreement, in the event that the Customer is unable to keep any required privileges or connections required for the transmission of alarm signals, Fluid Innovation has the right to terminate this Agreement with immediate effect and will not be liable to the Customer for any reason arising from such termination.
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Schedule 7:
Office Furniture
1. SCOPE OF THIS SCHEDULE
1.1. This Schedule 7 will apply to the following Services (as detailed in an SOW):
– 1.1.1. the provision of contract office furniture (including, without limitation, seating, desks and storage);
– 1.1.2. the provision of bespoke office furniture;
– 1.1.3. the provision of hire furniture;
– 1.1.4. the provision of furniture refurbishment; and/or
– 1.1.5. the provision of key and locks (including, without limitation, for furniture, pedestals and filing cabinets).
2. FLUID INNOVATION’S OBLIGATIONS
2.1. Furniture may be purchased by Fluid Innovation on behalf of the Customer (which may be pre-created or bespoke in nature) and Fluid Innovation will deliver and install such furniture (where agreed in an SOW).
3. CUSTOMER’S RESPONSIBILITIES
3.1. The Customer takes sole responsibility and liability for any bespoke furniture designs and plans.
4. DISCLAIMERS
4.1. Product images shown on / in Fluid Innovation’s website, catalogues, brochures or any other publicity are for illustrative purposes only and may vary from any final versions made available to the Customer.
4.2. Fluid Innovation may update any product information in any media from time to time upon providing the Customer with notice.
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Schedule 8:
Moves & Installations
1. SCOPE OF THIS SCHEDULE
1.1. This Schedule 8 will apply to the following Services (as detailed in an SOW):
– 1.1.1. office re-configurations;
– 1.1.2. the take-down and removal of the Customer’s current office furniture;
– 1.1.3. transportation of the Customer’s current office furniture to a new location;
– 1.1.4. clearing office space;
– 1.1.5. disposal of waste (which may include electrical disposal and secure destruction activities);
– 1.1.6. storage of the Customer’s office furniture; and/or
– 1.1.7. relocation and installation of the Customer’s office furniture to a new location.
2. QUOTATIONS
2.1. Although Fluid Innovation quotes a fixed price, estimate or rate card, it reserves the right to amend the applicable pricing or make additional charges in the follow circumstances:
– 2.1.1. if, due to any circumstances outside Fluid Innovation’s control, the work is not carried out or completed within three months of the quotation date;
– 2.1.2. if Fluid Innovation’s costs increase as a result of currency fluctuations, changes in taxation, or freight charges beyond Fluid Innovation’s control;
– 2.1.3. if Fluid Innovation has to collect or deliver items above the first upper floor;
– 2.1.4. if Fluid Innovation supplies any additional services to the Customer;
– 2.1.5. if there are delays outside Fluid Innovation’s reasonable control, in which event Fluid Innovation will make an additional charge for waiting time calculated in accordance with Fluid Innovation’s standard rates applicable at the time;
– 2.1.6. if access to the collection or delivery point is inadequate or the approach is unsuitable for Fluid Innovation’s vehicles; and
– 2.1.7. if there are any parking or other fees or charges that Fluid Innovation has to incur and pay in order to carry out the services the Customer requires,
and in all these circumstances, the Customer will be responsible for the extra charges as part of the Fees.
2.2. Fluid Innovation’s quotation is not a guarantee that Fluid Innovation will have resources available on the day the Customer requires. Accordingly, the Customer’s signed acceptance of Fluid Innovation’s quotation does not constitute a contract between Fluid Innovation and the Customer until the Customer has Fluid Innovation’s written confirmation that it can move the Customer’s goods on the Customer’s required date. Fluid Innovation will send its written confirmation within one Business Day of its receipt of the Customer’s acceptance of Fluid Innovation’s quotation.
3. WORK EXCLUDED FROM FLUID INNOVATION’S QUOTATIONS
3.1. Unless previously agreed in writing, Fluid Innovation will not:
– 3.1.1. dismantle or assemble unit furniture (flat-packs), fittings, or fitments (and in any event these works will not be covered by any insurance provided);
– 3.1.2. disconnect or reconnect appliances, fittings, or equipment;
– 3.1.3. remove or lay fitted floor coverings;
– 3.1.4. take down or re-hang curtains, blinds, or other window coverings;
– 3.1.5. move night storage heaters unless they are dismantled;
– 3.1.6. move or store any items excluded under paragraph 4 below; or
– 3.1.7. move any item(s) which Fluid Innovation’s removal crew reasonably believes that they cannot move safely or that the removal of which might damage the item(s) in question or the surroundings of the item(s).
4. EXCLUDED PROPERTY
4.1. The following items (from paragraph 4.1.1 to 4.1.7 (inclusive), collectively the “Excluded Property”) are specifically excluded from this Agreement and will not be removed without prior written agreement:
– 4.1.1. jewellery, watches, trinkets, precious stones, money, deeds, securities, stamps, coins, or goods or collections of a similar kind;
– 4.1.2. potentially dangerous, damaging, or explosive items;
– 4.1.3. goods likely to encourage vermin or other pests or to cause infection;
– 4.1.4. refrigerated or frozen food or drink;
– 4.1.5. any animals and their cages or tanks, including pets, birds, or fish;
– 4.1.6. cars, boats, and caravans; and/or
– 4.1.7. furs, perfumery, wines, spirits, tobacco, cigars, cigarettes, foodstuffs, perishable goods, or any kind of explosives.
4.2. If the Customer submits any Excluded Property without Fluid Innovation’s prior written consent, Fluid Innovation will not be liable for any loss or damage, except where death or injury is caused by Fluid Innovation’s negligence or that of Fluid Innovation’s employees or agents and the Customer will indemnify, and keep indemnified, Fluid Innovation and its officers, employees, consultants, agents and sub-contractors on demand against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Fluid Innovation arising out of or in connection with any claim (including all demands, claims proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise)) against Fluid Innovation by third parties in relation to the Excluded Property. In addition, Fluid Innovation will be entitled to dispose of any such Excluded Property without providing prior notice to the Customer.
5. FLUID INNOVATION’S OBLIGATIONS
5.1. Any breakage of Customer-packed property will not be Fluid Innovation’s responsibility unless the box or container shows signs of external damage that was not identified prior to Fluid Innovation’s receipt of such property.
5.2. Fluid Innovation shall use reasonable efforts to avoid any damage to the Customer’s property when conducting the Services under this Schedule 8. Notwithstanding, in the event of damage occurring due to an action of Fluid Innovation (but excluding any circumstances under paragraph 8.2 below), Fluid Innovation shall (at Fluid Innovation’s sole option):
– 5.2.1. reimburse the Customer up to a maximum of £50.00 sterling for each item which is lost or damaged to cover the cost of repairing or replacing that item. In this respect an item is defined as any one article, suite, pair, set, complete case, package, carton, or other container; or
– 5.2.2. repair (or replace with a like-for-like item if repair is not viable in Fluid Innovation’s sole discretion) the damaged item within a reasonable period of time at Fluid Innovation’s cost (up to a maximum value of the fees payable for the Services under this Schedule 8 in the applicable SOW). If Fluid Innovation chooses the repair an item, Fluid Innovation will not be liable for any depreciation in its value.
5.3. If Fluid Innovation causes delays as a result of not transferring the Customer’s property in the course of a relocation, Fluid Innovation will use commercially reasonable efforts to provide the Customer with such property as soon as practicable.
6. CUSTOMER’S RESPONSIBILITIES
6.1. The Customer is responsible for any crates, skates, cages, trollies, or other equipment provided to it by Fluid Innovation in relation to any moves or installation Services. The Customer is responsible for paying Fluid Innovation a lost item fee (at Fluid Innovation’s then current rates) for each item that the Customer fails to return upon the completion of such Services.
6.2. The Customer must approve in writing any ‘take-down’ Services once they are complete by signing Fluid Innovation’s worksheet.
6.3. The Customer must approve in writing any installation Services once they are complete by signing Fluid Innovation’s worksheet.
6.4. It is the Customer’s sole responsibility to:
– 6.4.1. declare to Fluid Innovation the proper value of the Customer’s office items;
– 6.4.2. obtain, at the Customer’s expense, all documents necessary for the removal to be completed;
– 6.4.3. be present itself, or appoint a representative to be present, at the departure and destination points to ensure that nothing is removed or left in error or is left in the wrong room; and
– 6.4.4. prepare adequately and stabilise all appliances prior to their removal,
and the Customer acknowledges and agrees that other than by reason of Fluid Innovation’s negligence, Fluid Innovation will not be liable for any loss, damage, costs, or additional charges that may arise from any of these matters.
6.5. The Customer warrants that:
– 6.5.1. it is the owner of all property provided to Fluid Innovation as part of the Services; or
– 6.5.2. it has the written authority of the owner of the property, for the Customer to act on behalf of the relevant owner, where necessary, to make this Agreement in respect of the property provided to Fluid Innovation as part of the Services.
6.6. The Customer will indemnify and keep Fluid Innovation and its officers, employees, consultants, agents, and sub-contractors indemnified, on demand, against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Fluid Innovation arising out of or in connection with any claim (including all demands, claims proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise)) arising from a breach of paragraph 6.5.
7. POSTPONEMENTS / CANCELLATIONS
7.1. If the Customer postpones or cancels an SOW for the provision of Services under this Schedule, Fluid Innovation may charge the following according to how much notice the Customer provides prior to the agreed removal date:
– 7.1.1. between 4-7 days: 50% of the total removal charges;
– 7.1.2. 3 days: 75% of the total removal charges;
– 7.1.3. 1-2 days: 90% of the total removal charges; or
– 7.1.4. less than 24 hours: 100% of the total removal charges.
7.2. Paragraph 7.1 will not apply if the Customer elects to take any removal postponement / cancellation protection waiver for which Fluid Innovation has quoted.
7.3. Fluid Innovation reserves the right to terminate the applicable SOW and to not carry out any Services quoted for if payment is not received before the removal date. Failure to comply with Fluid Innovation’s payment terms will mean that the Customer’s items are not insured.
7.4. Notwithstanding any other provisions, where the Customer engages Fluid Innovation as a consumer, the applicable statutory consumer cancellation rights will apply and prevail over the terms of this Agreement.
8. RESTRICTED LIABILITY
8.1. If the Customer does not provide Fluid Innovation with a reasonably accurate or reasonably estimated declaration of value of the Customer’s goods, or the Customer does not require Fluid Innovation to accept liability pursuant to paragraph 9.1.1 below, then in the event that Fluid Innovation loses or damages the Customer’s goods through Fluid Innovation’s negligence or breach of contract, Fluid Innovation will provide a remedy to the Customer in accordance with paragraph 5.2.
8.2. Other than because of Fluid Innovation’s negligence, Fluid Innovation will not be liable for any loss, damage, or failure to deliver the Customer’s items as a result of:
– 8.2.1. normal wear and tear;
– 8.2.2. natural or gradual deterioration;
– 8.2.3. leakage or evaporation;
– 8.2.4. the items being perishable or unstable goods;
– 8.2.5. cleaning, repair, or restoration (unless Fluid Innovation did such work);
– 8.2.6. moth, vermin, or similar infestation; or
– 8.2.7. electrical or mechanical derangement to any appliance, instrument, or equipment (unless there is evidence of external impact),
including any goods left within furniture or appliances.
9. REGULAR LIABILITY
9.1. If the Customer provides Fluid Innovation with a reasonably accurate or reasonably estimated declaration of the value of the Customer’s goods, and the Customer agrees to pay an additional charge, the amount of Fluid Innovation’s liability to the Customer will be as follows:
– 9.1.1. in the event of loss or damage caused by Fluid Innovation’s negligence or breach of contract, Fluid Innovation’s liability to the Customer will be assessed as a sum equivalent to the cost of repair or replacement of the damaged or lost item(s), taking into account the age and condition of such item(s) immediately prior to the loss or damage, but subject to a maximum aggregate liability of £25,000 (unless Fluid Innovation has agreed a higher amount with the Customer in writing); or
– 9.1.2. where the lost or damaged item(s) is / are part of a pair or a set and Fluid Innovation’s liability to the Customer is assessed to be the cost of replacement of such item(s), it is to be assessed as a sum equivalent to the cost of such item(s) in isolation, and not as part of a pair or set.
9.2. Any liability under paragraphs 9.1.1 or 9.1.2 above is expressly subject to all or any other applicable exclusions set out elsewhere in this Agreement.
10. DELAYS IN TRANSIT
10.1. Unless a timescale schedule is explicitly agreed in writing between the parties, arrival and departure times are estimates only.
10.2. If Fluid Innovation does not keep to a timescale schedule which has been agreed pursuant to paragraph 10.1 (and any delay is within Fluid Innovation’s reasonable control), Fluid Innovation will pay the Customer’s reasonable expenses which arise as a result of Fluid Innovation’s failure to keep to the agreed timescale schedule. If, through no fault of its own, Fluid Innovation is unable to deliver the Customer’s goods, Fluid Innovation will take them into storage. The SOW will then be fulfilled and any additional service(s), including storage and delivery, will be at the Customer’s expense in addition to the Fees.
11. TIME LIMITS FOR CLAIMS
11.1. Fluid Innovation will only be liable for any loss or damage to the Customer’s goods that is caused by Fluid Innovation’s negligence, actions or omissions:
– 11.1.1. in relation to premises, provided that any damage is noted on the delivery receipt and confirmed in writing to Fluid Innovation within seven days of the applicable delivery date; and
– 11.1.2. in relation to goods, provided that any loss or damage is notified to Fluid Innovation in writing within seven days (this is a requirement of insurers) of either collection of the relevant goods by the Customer or delivery of such goods by Fluid Innovation to their destination,
unless the Customer requests a reasonable extension of time and Fluid Innovation agrees to this in writing.
12. FLUID INNOVATION’S RIGHT TO WITHHOLD OR DISPOSE OF GOODS
12.1. Fluid Innovation has a legal right to withhold, or (subject to Fluid Innovation notifying the Customer at least seven days in advance in writing) ultimately dispose of, some or all of the Customer’s goods until the Customer has paid all of Fluid Innovation’s charges and other payments due under this Agreement, including any charges that Fluid Innovation has paid out on the Customer’s behalf. While Fluid Innovation holds the Customer’s goods and waits for payment, the Customer will be liable to pay all storage charges and other costs incurred as a result of Fluid Innovation withholding the Customer’s goods, and these terms and conditions will continue to apply. In addition, Fluid Innovation shall be entitled to exercise a lien over such goods until it receives payment of all charges due from the Customer to Fluid Innovation.
13. STORAGE SERVICES
13.1. The following terms, in addition to all other terms set out in this document, will apply to all SOWs for the storage of the Customer’s goods.
13.2. If the Customer requires storage facilities, the Customer is obliged to provide a forwarding address to Fluid Innovation and to notify Fluid Innovation in writing if this address changes. All correspondence and notices will be deemed to have been received by the Customer two days after posting to the last forwarding address recorded by Fluid Innovation or the next Business Day after sending via email to the last email address of the Customer recorded by Fluid Innovation.
13.3. The manner in which goods are transported, and whether Fluid Innovation uses conventional or containerised storage, shall be within Fluid Innovation’s sole discretion unless otherwise agreed by the parties in writing.
13.4. Where Fluid Innovation provides an inventory of goods stored on the Customer’s behalf it will be accepted as accurate unless the Customer provides Fluid Innovation with written notice of any errors or omissions within 14 days of Fluid Innovation notifying the inventory to the Customer.
13.5. All charges for storage Services are payable in arrears. All Fluid Innovation’s charges, including removal charges, must be paid in full in cleared funds before any Customer goods are released from storage, and Fluid Innovation shall be entitled to exercise a lien over such goods until it receives payment of all charges due from the Customer to Fluid Innovation.
13.6. Fluid Innovation reviews its storage charges periodically. The Customer will be given 28 days’ notice in writing of any increase in storage charges, following which Fluid Innovation’s revised rates as notified will apply. Fluid Innovation will always act reasonably in reviewing its storage charges.
13.7. If the Customer’s payments are up to date, Fluid Innovation will not end an applicable storage Service SOW for convenience except by giving the Customer three calendar months’ notice in writing. If the Customer wishes to terminate the Customer’s storage Service SOW for convenience, the Customer must give Fluid Innovation at least 14 days’ notice. Whilst Fluid Innovation will use reasonable endeavours to arrange the release of the Customer’s goods on the dates the Customer requires, specific dates cannot be guaranteed.
13.8. If the Customer is behind on making payments due under this Schedule, upon giving the Customer 28 days’ notice, Fluid Innovation is entitled to require the Customer to remove the Customer’s goods from Fluid Innovation’s custody and to pay all monies due to Fluid Innovation. Any such notice will inform the Customer that Fluid Innovation will dispose of the Customer’s goods three months thereafter if the Customer fails to pay all outstanding sums due to Fluid Innovation and, in that event, Fluid Innovation will do so without further notice. The cost of the sale or disposal of such Customer goods will be charged to the Customer. The net proceeds will be credited to the Customer’s account and any eventual surplus shall be paid to the Customer without interest.
13.9. If the Customer elects for a third party representative to collect the Customer’s goods from Fluid Innovation’s storage facilities, Fluid Innovation is entitled to charge the Customer for handing them over, and Fluid Innovation’s responsibility for the Customer’s goods will cease upon such goods being handed over to the Customer’s chosen representative.