These are the Terms and Conditions which apply to the work which we will conduct with you in order to fulfil the aims and objectives of the Impacting Business by Design grant funding programme (supported by Research England) to transform businesses’ ability to successfully commercialise design innovation. References to “we”, “us” or “our” in these Terms and Conditions mean Impacting Business by Design Ltd. References to “you” “your” and “yours” mean the Business Partner with whom we are contracting. Our registered office is at Trinity House, the Gateway, Leicester, LE1 9BH,
1. MEANINGS IN THESE TERMS AND CONDITIONS
1.1 In these Terms and Conditions the following words have the following meanings:
“Academic Partners” means De Montfort University, Nottingham Trent University and Brunel University London;
“Allowable Aid Intensity” means 55%, 45% or 35% of the total value of the Inputs for small, medium and large enterprises respectively
“Business Partner” means you, the person(s), firm or company who is contracting with us.
“Completion” means the achievement of the objectives of the Engagement in terms of generation and delivery of output materials, but not in terms of revenues from sales of new products developed.
“Conditions” means the standard terms and conditions set out in this document and any special terms and conditions agreed in writing between you and us;
“Contract” means any contract between you and us for the provision of the Engagement incorporating these Conditions and the Proposal;
“Engagement” means the product design and development activity arranged by us to be undertaken between one or more of the Academic Partners or an external consultant (as the case may be) and you.
“IBbD Ltd.” means us, Impacting Business by Design Ltd;
“Input Material” means any documents, other materials, and any data or other information provided by one party to the other in the course of us performing the engagement;
“Inputs” means together the value of our contribution in cash or in kind in relation to the Engagement as set out in the Proposal and your contribution in cash or in kind, your percentage contribution being calculated in accordance with the Allowable Aid Intensity percentage applicable to either a small, medium or large enterprise
“Output Material” means any documents, other materials and any data or other information and any intellectual property rights other than our Input Material that is created or developed by us or one or more of the Academic Partners or external consultant (as the case may be) in the course of performing the Engagement;
“Proposal” means the proposal, tender or other documentation provided by us detailing the Engagement to be undertaken to which these Conditions apply;
“Repayable Grant” means the value of our Inputs to the Engagement which shall not exceed the sum paid in accordance with the Allowable Aid Intensity calculation applicable to the Engagement;
“VAT” means value added tax chargeable under the Value Added Tax Act 1994, or any tax replacing that tax.
2. BASIS OF THE CONTRACT
2.1 Unless there is a variation under Condition 2, and subject to the express terms of any contract into which these Conditions are incorporated by reference, the Contract will be on the Conditions to the exclusion of any other terms and conditions (including any terms and conditions which you purport to apply under any purchase order, confirmation of order, specification or other document). In the event of a conflict between the terms of the Conditions and the terms of the Proposal, the terms of the Proposal shall prevail.
2.2 We have the right at any time, at our sole discretion, to make modifications, additions and deletions to the Conditions where reasonably necessary or to respond to any change in the law or regulation. Any changes to the Conditions will be notified to you in writing.
2.3 We and the Academic Partners do not accept liability for any representations that are not expressly incorporated into the Contract. You acknowledge that you do not rely on, and waive any claim for breach of, any such representations.
2.4 We are entitled to correct any typographical, clerical or other error or omission in any of our sales literature, price list, acceptance of offer, invoice or other document or information issued by us relating to the services to be provided by the Academic Partners without any liability and such documents do not constitute offers made by us.
3.1 The Engagement tasks shall be those set out in the Contract
4.1 Unless otherwise agreed by us the value of the Repayable Grant applied to the Engagement shall be the value of our Inputs as set out in the Contract.
4.2 The value of the Repayable Grant is subject to VAT, which shall be paid by you.
4.3 If we and you agree to modify our Inputs to the Engagement, any increase or decrease to the value of the Repayable Grant will be agreed at the same time and the revised Inputs and Repayable Grant value will be recorded in writing and signed by the parties.
4.4 Should the value of our Inputs to the Engagement increase during the course of the Engagement such that the Allowable Aid Intensity is exceeded, you will be liable to pay the difference as a cash contribution. We will inform you during the Engagement if this is likely to occur. You are required to create, report, retain and give access as required to auditable records of your allowable costs for the Engagement, as set out in the Contract. Auditable records are to be maintained for a minimum of 7 years after completion of the Engagement.
4.5 If an audit reveals that either party has recorded their allowable costs inaccurately, that party shall be solely responsible for making up any resultant shortfall.
5.1 We will be entitled to repayment of the full Repayable Grant for the design and development activity outlined in the Contract, as varied under Condition 3, at the point any of the following occurs:
5.1.1 if your aggregate gross revenues from sales of the product(s) referred to in the Contract has exceeded four times the value of the Repayable Grant;
5.1.2 if your business is sold or otherwise disposed of in whole or part;
5.1.3 if any of the circumstances mentioned in Condition 10
5.2 We will invoice you for payment of the sum to be repaid, which sum shall be payable within 30 days of the date of the invoice.
5.3 When making payment of the Repayable Grant, you will also pay VAT together with interest on the amount of the payment from the date of Completion until the actual date of payment at the European Commission’s discounted reference rate applicable at the date of the Contract. Receipts for payment will be issued only upon request.
5.4 No payment shall be deemed to have been received until we have received cleared funds.
5.5 If you fail to make any payment when due then, without affecting any other right or remedy available to us, we shall be entitled to:
5.5.1 require that the Repayable Grant is paid in full immediately together with interest as specified in Condition 3; and
5.5.2 claim interest (in addition to the interest required under Condition 3) under the Late Payment of Commercial Debts (Interest) Act 1998.
5.6 Subject to Condition 1.2, you may at any time pay the Repayable Advance, VAT and the interest required under this Condition in which case we will assign the Output Material to you as soon as reasonably practicable thereafter.
MONITORING AND EVALUATION
You agree to cooperate with our monitoring of the progress and impact of the Engagement, in particular:
- by participating in monitoring and evaluation meetings with us or our authorised representatives at times reasonably determined by us;
- making appropriate staff available to meet with, answer questions about, and provide management information to our appointed representatives;
- providing any information we may reasonably require for audit purposes
6.1 Whilst the Academic Partners will use their best efforts to meet project deadlines, you acknowledge that the research nature of this project means that this may not always be possible and agree that dates specified for the delivery of new product development activities are approximate only and we and the Academic Partners shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in performance of the specified activities.
7. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
7.1 The property and any copyright or other intellectual property rights in:
7.1.1 any Input Material shall (subject to any such rights of any third party) belong to the party providing it;
7.1.2 any Output Material shall be assigned to us by the Academic Partner or external consultant (as the case may be) and we will grant you a perpetual, world-wide, non-assignable, non-sub-licensable, exclusive licence to manufacture and sell the product, until the Repayable Grant, related interest and VAT have been repaid. This licence will terminate automatically if you become subject to an administration order or become bankrupt or go into liquidation (otherwise than for the purposes of amalgamation or reconstruction) and your rights to acquire the Output Material on payment of the Repayable Advance and related interest will also be extinguished at that time.
7.1.3 Subject to Condition 1.2, on payment in full of the Repayable Grant, VAT and related interest under these Conditions, we will assign the Output Material to you, subject only to you granting the Academic Partners the right to use the Output Material for non-commercial purposes connected with academic research and/or teaching.
7.2 All Input Material or other information provided by us or any of the Academic Partners or external consultant may not be used by you. Such Input Material shall be kept confidential by you; but this shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so provided, and shall cease to apply if at any future time they become public knowledge through no fault of yours and, to the extent only of making the legally-required disclosure, shall not apply to any Input Material which you are required to disclose under applicable law.
7.3 You warrant that, except as you have specifically disclosed in writing to us any of your Input Material and its use by us and the Academic Partners or external consultant for the purpose of delivering the Engagement will not infringe the copyright or other rights of any third party, and you will indemnify us and them against any loss, damages, costs, expenses or other claims from any such infringement.
8.1 In relation to the Engagement we warrant to you that they will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Proposal (as modified by the Contract).
8.2 You undertake to notify us of any concerns you have about the quality of our service to you at the earliest opportunity.
8.3 To the fullest extent permitted by law, all conditions and warranties whether express or implied by statute, common law, trade usage or otherwise are excluded, except as set out expressly in these Conditions.
8.4 You warrant to us that your contribution to the Engagement will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Proposal (as modified by the Contract).
8.5 We undertake to notify you if we have any concerns about the quality of your participation in the Engagement.
8.6 If concerns raised by either party under this Clause 8 cannot be resolved between the parties, either party may serve on the other a notice to remedy a breach in accordance with Clause 10.6.
9. LIMITATIONS ON LIABILITY
9.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors and the Academic Partners and their employees, agents and sub-contractors) to you in respect of:
9.1.1 any breach of the Conditions; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 Nothing in the Conditions excludes or limits our liability for death or personal injury caused by our negligence or fraudulent misrepresentation or any other liability that may not be excluded as a matter of law.
YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 9.3
9.3 Subject to Condition 9.2:
9.3.1 the total liability of us and the Academic Partners and any external consultants appointed by us and/or the Academic Partners (in aggregate) in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the amount of the Repayable Grant; and
9.3.2 neither we nor any of the Academic Partners nor any external consultants shall be liable to you for any loss of profit and/or, loss of business and/or depletion of goodwill and/or indirect and/or consequential loss suffered by any person and/or, costs, expenses which arise out of or in connection with the Engagement. You are responsible for making your own arrangements for the insurance of any excess loss.
9.4 Except in respect of any loss or damage caused by our negligence you undertake to indemnify us, the Academic Partners and any external consultants against any loss, costs, claims, expenses or fees we may incur relating to your breach of the Contract and/or any of the Conditions.
9.5 We, the Academic Partners and any external consultants shall have no liability to you for any loss, damage, costs, expenses or other claims for compensation arising from any of your Input Material or instructions supplied by you that are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late arrival or non-arrival, or any other fault of yours.
10. INSOLVENCY ETC OF THE BUSINESS PARTNER
10.1 you make any voluntary arrangement with your creditors or become subject to an administration order or become bankrupt or go into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.2 an encumbrancer takes possession, or a receiver is appointed , of any of your property or assets; or
10.3 you cease or threaten to cease, to carry on business; or
10.4 you suffer any analogous proceedings under foreign law; or
10.5 we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and notify you accordingly; or
10.6 either party commits any breach of the Contract and (if capable of remedy) fail to remedy the breach within 30 days after being required to do so by notice in writing from us then, without affecting any other right or remedy available to it, the party not in breach shall be entitled to cancel the Contract immediately or suspend any further performance of the Engagement under the Contract.
10.7 On termination of the Contract by reason of a breach by you, the whole amount of the Repayable Grant shall become immediately due and payable despite any previous agreement or arrangement to the contrary.
10.8 The parties may terminate the Contract by mutual agreement on terms which they shall agree
11. FORCE MAJEURE
We and the Academic Partners reserve the right to suspend the Engagement (without liability to you) if we or the Academic Partners or any external consultants are prevented from or delayed in the carrying on of our or their business due to circumstances beyond our reasonable control including without limitation strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), act of God, government actions, war, riot, hostilities (whether war be declared or not), armed conflict, terrorist attack, terrorist activity, nuclear, chemical or biological contamination, illness, sonic boom, civil commotion, invasion, revolution, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, power failure, breakdown of plant or machinery, fire, flood, storm, disease, epidemic, default of suppliers or subcontractors, difficulties or increased expense in obtaining raw materials, labour, fuel, parts of machinery, or import or export regulations or embargoes provided that if the event in question continues for a continuous period in excess of 20 days you will be entitled to give notice in writing to us to terminate the Contract.
12. ACADEMIC PUBLICATION AND GRANT PROGRAMME PUBLICLY
12.1 Through us the Engagement is undertaken by Academic Partners in pursuance of a primary charitable purpose of the Academic Partners, that is: the advancement of education through teaching and research. Therefore, any employee or student of the Academic Partners (whether or not involved in the Engagement) may, subject to the provisions of Condition 12.2:
12.1.1 discuss work undertaken as part of the Engagement with the Academic Partners when not commercially sensitive.
12.1.2 publish work based on or incorporating any of the Output Material.
12.2 The Academic Partner in question will submit to you in writing details of any results of the design engagement activities and any of the Output Material that its employee or student intends to publish at least 30 days before the date of the proposed publication. You may, by giving written notice to us (“a Confidentiality Notice”) require that Academic Partner to delay the proposed publication for a maximum of 24 months after receipt of the Confidentiality Notice if, in your reasonable opinion, that delay is necessary to prevent the publication of any confidential information or that would or might prejudice any intended patent application. You must give that Confidentiality Notice within 15 days after you receive details of the proposed publication. If we do not receive a Confidentiality Notice within that period, the Academic Partner’s employee or student may proceed with the proposed publication, provided that, whether or not it has received a Confidentiality Notice, any of your Input Material may not be published.
12.3 The parties agree that any publications relating to the engagement activities will acknowledge the involvement of the Business Partner, the Academic Partner(s) and Impacting Business by Design Ltd.
13. GENERAL PROVISIONS
13.1 Any notice required or permitted to be given by either party to the other under the Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and may be delivered personally or by fax, first class recorded delivery post or first class air mail letter. Any legal notice to us must be in writing marked for the attention of Impacting Business by Design Ltd, for the attention of the Director of Governance and Legal either at Trinity House, The Gateway, Leicester, LE1 9BH or by e-mail to firstname.lastname@example.org. Correspondence to us relating to the day-to-day business of the parties shall be sent to our operating address which is for the attention of Emily Hancock Vijay Patel Building 3.13, the Gateway, Leicester, LE1 9BH. A notice shall be deemed to have been served (if personally delivered) at the time of delivery or (if sent by first class recorded delivery post) forty-eight hours after posting or (if sent by first class air mail letter) ninety-six hours after posting or (if sent by e-mail) at the time of transmission, but if deemed receipt under this Condition would occur outside business hours, receipt shall instead be deemed to occur when business hours resume. For the purpose of this Condition, “business hours” means between the hours of 9am and 5pm Monday to Friday, excluding any day that is a public holiday in England.
13.2 You may not assign, transfer, charge or deal in any other manner with the Contract or any of your rights under it, nor purport to do any of the same, nor subcontract any or all of its obligations under the Contract without having obtained our prior written consent, which is not to be unreasonably withheld in the case of a proposed assignment to a subsidiary of yours where you agree to guarantee the performance of the Contract by the subsidiary.
13.3 We shall be entitled to assign our rights under the Contract and sub contract any or all of our obligations under the Contract to any third party
13.4 Apart from the Academic Partners and any external consultants working on the Engagement, who may enforce this Contract in so far as it is for their benefit, no person who is not a party to the Contract has any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any terms of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
13.5 No waiver by us of any breach of the Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.6 Any failure on our part to exercise, or any delay on our part in exercising, any right or remedy under the Contract shall not constitute a waiver of that right or remedy.
13.7 Except in respect of any undisputed credit or payment due and owing by us to you shall pay all amounts due under the Contract in full without any deduction or withholding other than as required by law and you shall not be entitled to assert any credit set off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part.
13.8 Each of the provisions of the Conditions is severable. If any provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity or unenforceability in that jurisdiction of the remaining provisions of the Conditions shall not in any way be affected or impaired by it.
13.9 These Conditions and the Contract shall be governed by and construed in accordance with English Law. Subject to Condition 10, we and you irrevocably agree that the courts of England shall have jurisdiction over any claim or matter to settle any dispute which may arise out of or in connection with the Contract and that accordingly any proceedings may be brought in such courts.
13.10If any dispute arises about the amount of the Repayable Grant or any interest due on it or whether it has become due, then either party may send the other party a notice requesting formal discussions to see whether it can be resolved. Following service of the notice, we should both discuss the dispute between us, to see whether we can reach agreement. If agreement has not been reached within 30 days of the deemed receipt of the notice, then the matter in dispute may be referred by either of us to an independent chartered accountant to be appointed by, or on behalf of, the President for the time being of the Institute of Chartered Accountants in England and Wales, who shall act as an expert not an arbitrator. The determination of the expert shall be final and binding on the parties except in case of manifest error and the parties (us and you) shall bear the expert fees between them as the expert shall direct (or, in default of any direction, equally).
13.11 Any notice of proceedings or other notice in connection with or which would give effect to proceedings may without prejudice to any other method of service be served on any party in accordance with Condition 1.
13.12 We and you accept our legal obligation to comply with all statutory requirements, legislation and regulations relating to the outlawing of discrimination on the grounds of age or disability, race, sex, sexual orientation, religion and belief and the promotion of racial equality.
13.13 Both we and you shall take all reasonable steps to ensure the observance of this Condition 13 by any of our or its personnel engaged in connection with any Contract.