THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Data Controller: shall have the meaning given to it in applicable Data Protection Laws from time to time
Data Protection Laws: means, as binding on either party:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject: shall have the meaning given to it in applicable Data Protection Laws from time to time
GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679
Intellectual Property Rights: Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form.
Personal Data: shall have the meaning given to it in applicable Data Protection Laws from time to time and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under the Contract.
Processing and process: shall have the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);
Protected Data: means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;
Services: the services supplied by the Supplier to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.
Sub-Processor: means any agent, sub-contractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data
Supplier: MCD Heritage registered in England and Wales with company number 12631050 and whose registered office is at ASM House, 103a Keymer Road, Hassocks, West Sussex, BN6 8QL.
Supplier Materials: has the meaning set out in clause 4.1(h).
1.3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.4. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5. A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of three months from its date of issue subject to the Supplier making revisions prior to written acceptance of the Order in the event of supplier price change.
3. SUPPLY OF SERVICES
3.1. The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the suppliers written acceptance or the Order or the Specification but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. The Supplier reserves the right to amend the specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1. The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) where goods are delivered to the Customer directly arrange for the delivery note to be signed for and immediately inform the Supplier of any issues in nature or quality of the goods;
(d) arrange the registration for any warranties or guarantees for any goods supplied by the Supplier and pay for any additional warranty cover at their own cost;
(e) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(f) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(g) prepare the Customer’s premises for the supply of the Services and take all reasonable steps to limit the potential for damage or loss to be sustained to the surrounding premises;
(h) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(i) comply with all applicable laws, including health and safety laws;
(j) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(k) comply with any additional obligations as set out in the Specification.
4.2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.3. The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
4.4. The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
5.1. The Supplier shall invoice the Customer at any time after performance of the Contract.
5.2. The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.3. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.5. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION AND DATA PROCESSING
7.1. The Customer and the Supplier acknowledge that for the purposes of the Data Protection Laws, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
7.2. The Supplier shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
7.3. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
7.4. The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
7.5. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.6. The Supplier warrants that, having regard to the state of technological development and the costs of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected including the security measures set out in the SCHEDULE; and
(b) take reasonable steps to ensure compliance with those measures.
7.7. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 7.
7.8. The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
7.9. The Supplier may authorise Sub-Processors to process the Personal Data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in the Contract; and
(b) terminates automatically on termination of the Contract for any reason.
7.10. The Supplier shall (at the Customer's cost):
(a) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and
(b) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
7.11. At the end of the Contract relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 7 shall survive termination or expiry of the Contract.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1. Nothing in the Contract shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2. Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
8.3. Subject to clause 8.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to no more than the price stated in the contract (Purchase Order). ].
8.4. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5. This clause 8 shall survive termination of the Contract.
9.1 The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
(a) the Customer commits a material breach of Contract and such breach is not remediable;
(b) the Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within seven days of receiving written notice of such breach;
(c) the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 20 days after the Supplier has given notification that the payment is overdue;
(d) there is a change of Control of the Customer; or
(e) any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
9.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
(f) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
(g) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
(h) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
(i) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
(j) has a resolution passed for its winding up;
(k) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
(l) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
(m) has a freezing order made against it;
(n) is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
(o) is subject to any events or circumstances analogous to those in clauses 16.2.1 to 16.2.9 in any jurisdiction;
(p) takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 16.2.1 to 16.2.10 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
9.3. If required by the Supplier and confirmed in writing at the time the Order is accepted the Customer will make payment on account for 30% of the total cost set out in the Specification including any VAT payable thereon and in the event this is not paid in full within three working days the Supplier will have the option to terminate the Contract with immediate notice.
9.4 The Supplier may terminate the Contract any time by giving not less than two weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
9.5 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 9, it shall immediately notify the Supplier in writing.
9.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2. Termination of the Contract shall 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 any breach of the Contract which existed at or before the date of termination.
10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2. Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
11.5. Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the [ ].
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9:00am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.10 Third party rights
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.11. Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.