Consultancy, Design, Supply & Site Terms and Conditions
1.1 In these Terms and Conditions:
“The Company” means Atlas Controls Ltd.
“The Customer” means the person, company or firm who purchases and/or receives the Contract Output from the Company, as described in the relevant Agreement.
“The Parties” means the Company and the Customer.
“The Agreement” means the Services Agreement or the Hardware Supply Agreement (as applicable).
“The Services Agreement” means the agreement made between the Company and the Customer for the supply of the Services in respect of a particular Installation, being the relevant Service Quotation (as agreed by the Parties) together with these Terms and Conditions.
“The Hardware Supply Agreement” means the agreement made between the Company and the Customer for the Hardware Supply in respect of a particular Installation, being the relevant Supply Quotation (as agreed by the Parties) together with these Terms and Conditions.
“The Installation” means the Atamate integrated building automation system that the Customer wishes to install at the Property, and in respect of which the relevant Contract Output shall be provided.
“The Design” means the electrical design(s) (and/or, if applicable, mechanical design) for the Installation produced by the Company pursuant to the Design Services, as further described in the relevant Service Quotation.
“Specification” means a descriptive specification for mechanical and/or electrical systems in respect of the Installation.
“The Hardware” means any equipment or hardware (including software) produced by (or on behalf of) the Company or its affiliate and supplied for use in the construction of the Installation, which may include (without limitation) sensors, faceplates, gateways, relays, circuitry controls and the hub computer.
“The Contract Output” means the Services or the Hardware Supply (as applicable).
“The Services” means the Consultancy Services, the Design Services and/or the Site Services (as applicable).
“The Consultancy Services” means the services that the Customer may receive from the Company in accordance with these Terms and Conditions in relation to the preparation of energy-related sustainability calculations and/or of any Specification(s), as further described in the relevant Service Quotation.
“The Design Services” means the services that the Customer may receive from the Company in accordance with these Terms and Conditions in relation to the design of the proposed Installation, including the production of the Design and provision of associated information required for the construction of the Installation, as further described in the relevant Service Quotation.
“The Site Services” means any Services that are provided by the Company at the Property, as further described in Conditions 4.4 & 4.5, and the relevant Service Quotation.
“The Hardware Supply” means the supply of Hardware by the Company to the Customer in accordance with these Terms and Conditions, as further described in the Supply Quotation.
“The Deliverables” means the aspect(s) of the Contract Output to be delivered to the Customer, including (as relevant) the Specifications, the Design and/or the Hardware.
“The Service Quotation” means the document describing the proposed Services and setting out the related Service Fees.
“Supply Estimate” means a non-binding estimate of the required future Hardware Supply, as provided to the Customer by the Company at the same time as a Service Quotation, and as may be updated from time to time to reflect any subsequent evolution of the requested Design Services.
“The Supply Quotation” means the document describing the agreed Hardware Supply and quoting for the related Supply Charges, as provided to the Customer by the Company following finalisation of the Design.
“The Charges” means the Service Fees or the Supply Charges (as applicable), and any additional expenses chargeable pursuant to the relevant Agreement.
“The Services Fees” means the sums payable by the Customer for the Services, as agreed between the Parties and outlined in the agreed Service Quotation.
“The Design Fees” means the sums payable by the Customer for the Design Services, as further described in Condition 6.2, and as agreed between the Parties and outlined in the agreed Service Quotation.
“The Supply Charges” means the sums payable by the Customer for the Hardware Supply, as agreed between the Parties and outlined in the agreed Supply Quotation.
“Property” means the property owned by or under the control of the Customer in which the Customer wishes to install the Installation, and to which the relevant Contract Output relates, as also set out in the relevant Service Quotation or Supply Quotation.
“Building Services” means services related to the physical implementation of the Design or the construction, installation, commissioning, repair or replacement of the Installation infrastructure, or any physical element thereof, which will be provided to the Customer by a third party or (under a separate agreement) by the Company, as the case may be.
2. Application of terms
2.1 Unless otherwise agreed in writing by the Company, these Terms and Conditions shall apply to all the Company’s supply of (and the Customer’s access to and use of) Services and Hardware Supply, and (subject to the relevant agreed Service Quotation or Supply Quotation) shall apply to the exclusion of any other terms or conditions which the Customer purports to apply under any specification or other document.
2.2 Subject to Condition 12.5, these Terms and Conditions, as the Company may change or update them from time to time, shall remain in full force and effect for as long as the Customer continues to receive or use the Contract Output, or until terminated in accordance with the provisions of these Terms and Conditions.
2.3 The Customer’s continued use of the Services represents the Customer’s agreement (i) to these Terms and Conditions with respect to the Services, and (ii) to any change or updates that the Company may make to these Terms and Conditions from time to time.
No variation of an Agreement shall be effective unless expressly agreed in writing and signed on behalf of the Company.
3. The Contract Output
3.1 The Company agrees to perform the Contract Output in accordance with these Terms and Conditions. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Company’s website in connection with such features.
3.2 For the avoidance of doubt, the Services Agreement shall not relate to the provision of any Building Services. Any provision of Building Services by the Company shall be subject to a separate agreement between the Parties. .
3.3 In delivering the Contract Output, the Company will exercise reasonable skill and care consistent with normal professional standards in compliance with applicable codes of conduct.
3.4 The Customer represents and warrants that in respect of receiving the Contract Output: (a) all required information that the Customer submits shall be truthful and accurate; and (b) the Customer will maintain the accuracy of such information. All drawings provided by the Customer to the Company must be of a suitable quality to reasonably allow the Company to provide the Services, and shall be in one of the following formats: .rvt, .dwg, .ifc or .pdf.
4. Delivery of Contract Output
4.1 Any Design shall be delivered as an electronic document in ‘pdf’ format (unless otherwise agreed between the Parties).
4.2 Subject to the other provisions of these Terms and Conditions, any date given for delivery of Contract Output is an estimated date only and the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Contract Output (even if caused by the Company’s negligence).
4.3 Subject to Conditions 6.2(b) and 6.3, the Services may be amended following issue of an Service Quotation at the request of the Customer, or otherwise to reflect changing requirements or circumstances.
4.4 The Parties may from time to time agree for the Company to provide certain Site Services, which may include (without limitation):-
(a) support to the Customer’s electricians in interpreting the Design (including explaining the wiring schedule and the naming convention); and/or
(b) non-practical consultancy support for the commissioning of the Installation; and/or
(c) commissioning of the Installation.
For the avoidance of doubt, Site Services shall not include the provision of any on-site amendments to the Design.
4.5 The provision of any Site Services shall be subject to the Customer ensuring that –
(a) the Property is safe for the Company’s visiting personnel, and that such personnel shall not suffer any abuse from any other persons on-site;
(b) the Company’s visiting personnel receive all appropriate supervised access to the Property for the purposes of providing the Site Services.
4.6 Subject to Condition 7, any liability of the Company for non-delivery of the Contract Output shall be limited to replacing such Contract Output within a reasonable time. The Customer shall notify the Company as soon as reasonably practicable after it becomes aware of any potential defect in the Design or any supplied Hardware.
4.7 Where specialist consultants, contractors, subcontractors or suppliers (“Third Party Specialist”) are employed by the Customer to design anything that would impact the Services (such as, without limitation, the Property or any system for delivery of utilities within the Property), the Customer will hold the Third Party Specialist responsible for the proper performance of their work, and the Company will use its reasonable efforts to work with the Third Party Specialist to reflect or integrate their output (or the impact thereof) into the Design. Where a contractor is employed by the Customer to undertake construction or other work, the Customer will hold such contractor responsible for its operational methods and for the proper execution of the work entrusted to it.
4.8 In respect of any Hardware Supply, the Customer shall visually inspect each delivery of Hardware (“Delivery”) against the relevant order and shall, within a period of two (2) working days from delivery of the Hardware concerned, inform the Company in writing of any omissions in the delivery that are reasonably apparent on such visual inspection. If the Company agrees that the Delivery does not comply with the relevant order, the Company will arrange for supply of replacement Hardware free of additional charge.
4.9 All Hardware shall be supplied with a 2 year warranty. Any other third party materials supplied by the Company shall be supplied with the relevant manufacturer’s standard warranty.
5. Licence Terms
5.1 These license terms apply to the Design supplied to the Customer as part of the Services.
5.2 The Company hereby grants to the Customer (and its successors in title) the non-transferable, non-exclusive licence (without the right to sub-license) to use the Design in connection with, and solely for the purpose of, installing the Installation at the Property, in accordance with this Condition 5.
5.3 The Design is licensed, not sold. Copyright in the Design and all documents prepared by the Company in relation thereto, and in any works executed from the Design and/or such documents, will remain the property of the Company.
6. Charges and Payment
6.1 In consideration for the Contract Output provided by the Company, the Customer will pay the applicable Charges to the Company, at the times specified in the relevant Agreement.
6.2 Unless otherwise agreed between the Parties, the Service Fees in respect of any Design Services (“Design Fees”) shall consist of:-
(a) a fee, as set out in the relevant agreed Service Quotation, which shall cover the production of an initial Design (the “Initial Design”) and, if required, up to two further amended Designs (reflecting any evolution of the requested Design Services) (the “Initial Design Fee”); and
(b) in respect of (i) any subsequent amended Designs not covered by the Initial Design Fee and/or (ii) any other changes to the Design Services after the agreed Service Quotation, additional fees shall be charged on an hourly rate at the Company’s standard tariff applicable at the time, as shall be communicated to the Customer from time to time. Where the Customer requests any such further amendments to the Design, the Company will inform the Customer of the likely extent of the additional Design Fees prior to commencing the required extra work, and shall update the Service Quotation accordingly.
6.3 In respect of any changes to Consultancy Services or Site Services after the agreed Service Quotation, additional fees shall be charged on an hourly rate at the Company’s standard tariff applicable at the time, as shall be communicated to the Customer from time to time.
6.4 Charges will be quoted in writing in the Supply Quotation or the Service Quotation (as relevant). All Charges and other sums payable by the Customer in respect of the Contract Output are, unless otherwise stated, exclusive of VAT and any other similar duties or taxes.
6.5 Any Initial Design Fee shall be invoiced to the Customer following agreement of the Design Services for the Initial Design. Any other Service Fees (including any subsequent Design Fees following the Initial Design Fee) will become payable against the Company’s invoices on satisfactory completion of the relevant stage of the Design Services.
6.6 Payment of the Service Fees will be due within thirty days of the invoice date in each case.
6.7 Payment of the Supply Charges shall be required in advance of delivery of the Hardware Supply.
6.8 The Company will charge all expenses incurred in connection with any Site Services including travelling expenses (including vehicle mileage and/or public transfer fares), subsistence expenses (where overnight accommodation is required) and statutory fees (where these are paid by the Company acting as the Customer’s agent). The Company will maintain records of all such expenses and make these records available to the Customer on reasonable request. Wherever possible, the Company will provide an estimate of the likely expenses associated with the agreed Site Services.
6.9 In the event that the Customer fails to pay all Charges when due and payable, and without derogation from Condition 6.10, the Company shall be entitled to restrict, or deny all, access of the Customer to the final Deliverables, and/or any related services that the parties have contracted to be provided by the Company or its affiliate, until payment has been made in full. Without derogation from the foregoing, any Charges, expenses or VAT remaining unpaid at the expiry of thirty days from the date of submission of the relevant invoice will thereafter accrue interest calculated on a daily basis -
(a) at a compound rate of four (4) percent per annum above the current Bank of England base rate where the Customer contracts as a consumer; or
(b) at a compound rate of eight (8) percent per annum above the current Bank of England base rate where the Customer contracts as a business.
6.10 The Company reserves the right to terminate an Agreement forthwith on notice to the Customer in the event of delay by the Customer in making any payment of Charges due thereunder or under any other agreement between the Company and the Customer. Any future receipt of Contract Output by the Customer thereafter shall be subject to a separate agreement with the Company.
7. Limitation of Liability
7.1 Subject to Condition 4, the following provisions set out the entire financial liability of the Company to the Customer in respect of:
(a) any breach of these Terms and Conditions;
(b) any use made by the Customer of any of the Deliverables; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with any Agreement.
7.2 All conditions and other terms implied by statute or common law (save for the conditions implied by section 9 of the Consumer Rights Act 2015) are, to the fullest extent permitted by law, excluded from any Agreement.
7.3 Nothing in these Terms and Conditions excludes or limits the liability of the Company:
for death or personal injury caused by the Company’s negligence or negligent omission; or
for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
7.4 Subject to Condition 7.3, the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of an Agreement shall be limited to an amount never to exceed two (2) times the Charges actually paid (if any) by the Customer to the Company pursuant to such Agreement.
7.5 The Customer agrees that the Installation must be constructed and commissioned by appropriately qualified electricians and builders, in accordance with the Design, and that it shall be the responsibility of the Customer to ensure that such construction is conducted in accordance with all applicable electrical, building and other regulations. Except as may otherwise be agreed between the Parties under a separate contractual arrangement, the Customer agrees that the Company shall have no responsibility for the Building Services.
7.6 The Customer further agrees and understands that, unless otherwise stated, any Designs supplied by the Company are not to scale. Any indicated dimensions shall be approximate and may vary, and the Customer shall procure that its builders and electricians are aware of the foregoing.
7.7 The Company shall have no liability hereunder for any failures in the operation of the Installation following receipt of any Contract Output, arising from –
(a) any failure of the Customer to comply with Conditions 7.5 or 7.6 above;
(b) any other failure or defect in the construction and/or commissioning of the Installation not resulting directly from any defect in the Design (including any failure to install (or procure the installation of) the Installation and any related sensors, components and peripherals in accordance with, or to meet any other requirements specified in, the Design), except the extent that the foregoing construction and/or commissioning was conducted by the Company under a separate agreement; or
(c) any changes made to the Design after the date of delivery to the Customer, other than as have been agreed with (or carried out by) the Company; or
(d) any failure of the Installation (or any supplied Hardware or other related materials) to be used in accordance with any instructions or manual(s) supplied therewith, including any user guides, or from performance problems caused by any user’s smart device, computer, internet browser or internet connection, rather than the Installation itself; or
(e) any failure of the Installation caused by damage to (i) Hardware incurred after delivery to the Customer, or (ii) any other materials (including cables) used in the construction of the Installation; or
(f) any interruption in the Customer’s internet or mobile network connection (including, without limitation, affecting the communication to the Company of required usage data in respect of the Installation and/or the Property).
7.8 Unless explicitly promising a “guarantee”, the Company does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Installation (as installed in accordance with the Design) or any feature thereof. Actual energy savings and monetary benefits vary depending on factors beyond the Company’s control or knowledge, including particular characteristics of the Property (or changes thereto).
7.9 Smart, connected or other devices and related services (“Third-Party Products and Services”) that are not designated by the Company as compatible with the Installation may not work with the Installation, or may have limited features or functionality, even if designed, specified or marketed to operate using the same or similar standards or means of communication. The Customer agrees only to use Third-Party Products and services designated by the Company in the Design (or otherwise) as compatible with the Installation.
7.10 The Customer accepts and understands that the Customer’s ability to use or control certain core functionalities of the Installation will rely upon the Customer contracting to receive certain software services from the Company (or its affiliate) in respect of the Installation, and that not contracting to receive such services may in turn restrict the Customer’s ability to control certain utilities of the Property for as long as such control remains integrated into the Installation.
8. Privacy and confidentiality
8.3 Each Party shall keep confidential any confidential information disclosed to it by the other Party and shall use the same level of care to prevent any unauthorised use or disclosure of the confidential information as it exercises in protecting its own information of a confidential nature.
9. Force Majeure
The Company reserves the right to defer the date of delivery, or reduce the scope, of the Contract Output ordered by the Customer or to cancel the relevant Agreement (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials (a “Force Majeure Event”). If any Force Majeure Event occurs which affects or may affect the performance of any of the Company’s obligations under an Agreement, it shall notify the Customer forthwith as to the nature and extent of the circumstances in question. The Company shall not be deemed to be in breach of such Agreement, and shall not otherwise be liable to the Customer, by reason of any delay in performance, or the non-performance, of any of its obligations under the Agreement, to the extent that the delay or non-performance is due to any Force Majeure Event, and the time for performance of that obligation shall be extended accordingly. If the Force Majeure Event in question continues for a continuous period in excess of fourteen (14) days, the Customer shall be entitled to give notice in writing to the Company to terminate the relevant Agreement.
10. Term, Renewal, Cancellation & Termination
10.1 Each Agreement shall remain in force until delivery to the Customer of the relevant Deliverables, unless terminated earlier in accordance with the terms hereof.
10.2 Subject to the terms of the relevant Agreement (including Condition 10.5), the Customer may cancel, suspend or terminate any or all of the Contract Output at any time by contacting the Company in writing. Cancellation or termination by the Customer of the Contract Output shall constitute termination of the Agreement.
10.3 In the event of any material breach of these Terms and Conditions by a Party, the other Party shall be entitled to terminate the relevant Agreement with immediate effect.
10.4 In addition to its other rights under these Terms and Conditions, the Company reserves the right to cancel or terminate some or all of the Contract Output or any or all Agreements at any time by sending 7 days’ notice in writing to the Customer’s last known address ––
(a) if the Customer (or any person acting on behalf of the Customer) harasses or uses abusive, vexatious or threatening behaviour towards the Company’s staff or otherwise behaves in a manner that makes it inappropriate for the Company to continue provision of the Contract Output; or
(b) if the Customer or anyone acting for the Customer deliberately or recklessly provides the Company with false information when agreeing to the terms of any Agreement, or when making changes to it, that would either impact the terms and conditions of the Agreement or the Company’s ability to deliver the Services.
10.5 On cancellation, suspension or termination by the Company pursuant to Conditions 10.3 or 10.4, or by the Customer pursuant to Condition 10.2, the Company –
(a) will be entitled to recover fees for all work completed up to that time, calculated if necessary on a pro-rata basis for any partial services, and for reimbursement of expenses necessarily incurred in connection with work up to the time of suspension or termination, or arising as a result of the suspension or termination. The foregoing shall include any non-cancelable services and commitments entered into by Company in connection with the Service being terminated;
(b) subject to Condition 11, will be entitled to apply a 20% restocking charge in relation to any correctly supplied Hardware that is returned to the Company by the Customer; and
(c) the Company will not return any payments already received from the Customer for any correctly delivered Contract Output.
11. Rights as a Consumer
Where the Customer offers to contract with the Company, or does contract with the Company, as a consumer (that is, as an individual acting wholly or mainly outside their trade, business, craft or profession), the Company accepts that the Customer shall in certain circumstances have the statutory right to –
(a) withdraw an offer to purchase, or cancel, the Services from the Company, or
(b) cancel or return any Hardware purchased pursuant to a Hardware Supply Agreement (other than Hardware that has been personalised or custom-made for the Customer),
and the Company shall respect such rights.
12.1 The Company reserves the right to amend these Terms and Conditions from time to time. All Agreements shall be subject to the latest version of these Terms and Conditions, as made available by the Company on its website from time to time.
12.2 If any provision of an Agreement or (part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
12.3 These Terms and Conditions, along with the relevant Agreement, constitute the entire agreement between the Company and the Customer regarding the purchase and use of the Contract Output. Failure or delay by the Company in enforcing or partially enforcing any provision of an Agreement shall not be construed as a waiver of any of its rights under the Agreement.
12.4 Any waiver by the Company of any breach of, or any default under, any provision of an Agreement by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
12.5 The obligations in Conditions 5, 6.5, 6.8, 6.9, 7, 8, 10.5, 12 and 13 will survive any expiration or termination of any Agreement and/or these Terms and Conditions.
12.6 The Parties to any Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.7 The formation, existence, construction, performance, validity and all aspects of any Agreement shall be governed by English law and the Parties submit to the exclusive jurisdiction of the English courts.
12.8 The Company and the Customer agree to seek to resolve all disputes and claims that arise from or relate to these Terms and Conditions, or to the Contract Output in any way, (a Dispute) by prompt discussion in good faith, except for claims arising from bodily injury. This discussion shall not be a pre-condition to the commencement of legal proceedings before any court. This procedure is invoked by either Party giving notice to the other setting out the issues in the Dispute and referring to this Condition and, unless the Parties agree otherwise, shall be treated as having been exhausted if the Dispute has not been resolved within 10 Business Days after the giving of the notice. This Condition does not preclude either of the Company or the Customer from bringing an individualised action in small claims court, or from seeking an individualised preliminary injunction or temporary restraining order, in any court that has jurisdiction.
12.9 Where the Customer is a consumer nothing in these Terms and Conditions shall operate to adversely affect the Customer’s statutory rights as a consumer, including (without limitation) as set out in Condition 11.
12.10 Each Agreement sets out the entire agreement and understanding between the Parties in connection with the provision and use of the Contract Output and other matters described in them.