SKG GROUP Terms and Conditions

TERMS AND CONDITIONS (“CONDITIONS”)

THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 12 (LIMITATION OF LIABILITY)

RECITAL

We enjoy a reputation of working closely with our clients to ensure a successful outcome to a project. In order to ensure this we will provide the goods and services in accordance with the legal obligations placed on us by the law which include providing services with a reasonable level of skill and care and the goods we provide will be fit for any purpose expressly or implicitly made known to us, the goods are of a satisfactory quality, and they conform to their description.  Our standard of service will also apply to any subcontractors we use.

1.   INTERPRETATION  

THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.  

• Definitions:

The “Company”: means SKG GROUP, a company registered in England and Wales under registration number 3727641, and whose registered office is at Century House, 100 Stratford Road, Birmingham, B90 3BH. The Company’s registered VAT number is GB729430234.

The “Client”: means the person or entity named in the “Invoice to” section on the Company’s documentation.

“Goods”: means the goods which the Company supplied pursuant to the order.

Sign-Off Document: a final and formal document which details the scope of supply and works agreed by the Client and the Company and forms an official Order. This document must be signed by the Client prior to the Company placing any purchase orders with its suppliers. Deposit placed for the order of Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Terms and Conditions.

Associated Works: any installation and building (including decoration) to be carried out on Site but not the responsibility of SKG GROUP.

Brief: the statements and materials assembled by the Client to summarise the Client’s express requirements and to address the Client’s preferences, priorities, budget and schedule for the project.

Business Day:  a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges:  the charges payable by the Client for the supply of the Goods and/or Services in accordance with Clause 6 (Charges and Payment).

Client Default:  has the meaning set out in Clause 5.8.

Commencement Date:  the date the Sign-Off Document is signed by the Client.

Conditions:  these Terms and Conditions, which can be amended from time to time.

Cost of Order: means the fee for installation of the Design Proposal as set out in the Order.

Data Protection Legislation:  means the Data Protection Act 1998 and any subsequent legislation which supplements or replaces this Act.

Deposit: means the non-refundable deposit as specified in the Order.

Design Cost: means the fee for the Design Proposal as set out in the Order.

Design Installation: the delivery and fitting of the agreed Design Proposal.

Design Proposal: the document agreed with the Client detailing the specifications of the Goods and/or Services to be supplied to the Client to include the materials, goods, services, costings and specific instructions.

Designers: SKG GROUP Design Team.

Final Presentation: the point at which the Designers present the Design Proposal to the Client.

Final Site Survey:  the necessary final checks that the Company will carry out on Site before progressing the Design Installation.

Force Majeure:  circumstance beyond a party’s reasonable control including, but not limited to, actions of subcontractors and suppliers.

Intellectual Property Rights:  patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

Services:  the Services supplied by the Company to the Client as set out in the Order.

Site: the location as specified in the Order as the designated delivery and installation address.

1.2 INTERPRETATION:  

(a)   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.

(b)   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.

(c)   A reference to writing or written includes fax and email.

2.   BASIS OF CONTRACT  

2.1 The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with the Order and these Conditions.  These Conditions are expressly incorporated into the Order. These Terms and Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer and shall prevail over any other documentation or communication from the Buyer.

2.2 The Order shall only be deemed to be accepted when the Client have signed it and returned it to the Company and paid the required deposit for the order at which point and on which date a Contract shall come into existence (Commencement Date).

2.3 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s (or other third party) catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods and/or 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 Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by the Company shall not constitute an offer and is only valid for a period of 30 Days from its date of issue.

3.   SUPPLY OF GOODS AND/OR SERVICES 

3.1 The Company shall supply the Goods and/or Services to the Client in accordance with the terms of the Contract.

3.2 The Company warrants to the Client that the Goods and/or Services will be provided using reasonable care and skill.

3.3 The Company shall deliver the Goods and/or Services to the Site set out in the Order or such location as the parties may agree at a time and date to be mutually agreed.

3.4 Time for delivery of the Goods and/or Services is not of the essence.  The Company shall not be liable for, including but not limited to, any delay or failure caused by any third party, or any delay or failure in delivery of the Goods and/or Services that is caused by Force Majeure, or the unavailability of the Client, or the failure of the Client to provide the Company with adequate delivery instructions, or any other instructions that are relevant, or any delay in the Associated Works, or the unavailability of Goods.  In the event of any circumstances arising which result in any potential delay to delivery and/or installation, the Company shall use reasonable endeavours, where feasible, to suggest ways in which the delay could be reduced or averted, to include, but not limited to, proposing viable substitutions for any Goods to be supplied for the Client’s consideration.

3.5 The Client accepts that the Company reserves the right to complete the Design Proposal in accordance with a flexible schedule, which shall be subject to circumstances arising which may delay installation for reasons outside of the Company’s control, to include, but not limited to;

(a) receipt of faulty and/or defective materials and/or products at any stage; and/or

(b) cancellation and/or postponement by any associated designers, manufacturers and/or sub-contractor; and/or

(c) stock availability of any associated materials and/or products at point of progressing the Design Proposal following Final Site Survey, including any unforeseen discontinuations.

3.6 If the Client fails to take delivery of the Goods within 3 Business Days of the Company notifying the Client of the date on which they will be delivered, then:

(a) delivery of the Goods shall be deemed to have completed at 9.00am on the third Business Day after the day on which the Company notified the Client that the Goods were ready; and

(b) the Company shall store the Goods until delivery takes place and charge the Client for all related costs and expenses (including insurance). The charge stands at £150.00 + VAT per week per order. In the event of delivery schedule being unable to be met on part of the Buyer, the Buyer will be required to settle the outstanding balance due to the Seller in full.

3.7 If 20 Business Days after the day on which the Company notified the Client that the Goods and/or Services were ready for delivery the Client has not taken delivery of them, the Company may resell or otherwise dispose of part or all of the Goods.

4.   COMPANY’S RIGHTS AND OBLIGATIONS

4.1 The Company shall prepare a design based on the Brief and include any necessary specifications.  The Company shall create a Design Proposal and make a Final Presentation.  If the Design Proposal is provisionally agreed then the Company shall make a Final Site Survey and agree all specifications with the Client. Once the Design Proposal is agreed the Client shall sign the agreed Order.

4.2 The Company will provide a Design Proposal which shall include one design scheme per room or area, additional design scheme options requested would be subject to further charge by quotation.

4.3 The Company reserves the right to amend the Design Proposal 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 Goods and/or Services, and the Company shall notify the Client in any such event.

4.4 The Final Presentation is considered a break-point and any additional Goods and/or Services required and/or requested would be subject to additional fees to be submitted by way of quotation for the Client’s consideration and approval to include, but not limited to; further design development and/or revisions of the Company’s Proposal and any supply and delivery/installation of any associated goods and materials.

4.5 Any costs incurred in addition to those set out in the Order, shall, wherever possible, be quoted by the Company for the Client’s approval prior to any such chargeable work commencing, to include any work and/or orders requested by the Client in addition to that which has already been agreed and the Order shall be amended accordingly and such amendments signed by the client.

4.6 The Company shall not be responsible for any Associated Works.  In the event that any Associated Works on the Site affect the Design Installation or the Design Proposal the Company shall:

(a) be entitled to a reasonable extension of time and, where applicable, to additional payment for any increased costs incurred;

(b) not be responsible in respect of any defects in, or delays to, the completion of the Design Proposal or Design Installation.

4.7 The Company shall not make any material alterations to the agreed Design Proposal without the Client’s prior consent.

4.8 The Company reserves the right not to disclose any information on manufacturers, decorators, other service providers, or any information relating to the source of any materials, goods or products to be purchased, to include, but not limited to, any product brand or manufacturers’ codes.

4.9 The Company cannot advise on any structural elements for the Project and, it is therefore the Client’s responsibility to appoint relevant third-party consultants in this respect.

4.10 The Company shall instruct only their preferred and chosen manufacturers and/or sub-contractors and shall not engage with, nor instruct any other parties, whether recommended and/or proposed by the Client or otherwise.

4.11 Any Final Site Survey, either carried out, or attempted to be carried out by the Company at the Client’s prior instruction which is later found to be non-effective for obtaining all the necessary information required for reasons outside the Company’s control, shall be re-scheduled for a later mutually agreed date and progress shall be postponed as a result.

4.12 The Company reserves the right to co-ordinate and integrate any designs provided by others within their Design Proposals or to decline such.

4.13 The Company cannot provide any quantity estimation or custom measurements for third-party use.

4.14 Any drawings and plans supplied by the Company shall be non-technical and should not be scaled from or used as working drawings in any instance.  Any CAD Visuals (i.e. room perspectives) supplied are intended to provide an impression of the finished room/s only and may not be fully representative by depicting similar and not exact items to those actually specified.  Any furniture drawings and/or bespoke interior feature design drawings shall be conceptual only and subject to counter working drawings to be provided by the associated manufacturer and/or contractor upon commission.

4.15 Where the Client provides specifications (such as measurements, material types, colour etc.) in writing the Company shall have no liability in relation to these specifications and shall rely upon the Client’s specifications.

4.16 The Company will not be obligated to accept the return of any Goods supplied, unless required to do so under their statutory obligations or unless previously agreed in writing.

4.17 The Company shall not be responsible for variations in Goods supplied which occur due to intrinsic properties, nature and working methods applicable to natural products.

5.  CLIENT’S RIGHTS AND OBLIGATIONS

5.1 The Client agrees to provide the Company with the Final Brief prior to signing the Order.

5.2 Where requested by the Company, the Client shall promptly make decisions, and be available for meetings as necessary for the proper and timely performance of the Design Proposal.

5.3 The Client shall be responsible for all aspects of the Associated Works including the competence and performance of the work, the management and operational methods used in connection with carrying out and completion of work undertaken by any such persons and for compliance with health and safety requirements.

5.4 The Client assumes full responsibility for their complete understanding of the Design Proposal on the understanding that they may raise any query regarding the Design Proposal with the Company before the Design Proposal is agreed and signed by the Client.

5.5 The Client shall notify the Company of any requested changes to any Design Proposal and/or any specific instructions regarding the specifications in writing.

5.6 The Client accepts full responsibility for the implementation of the Design Proposals if they opt to do so without the Company’s involvement, to include, but not limited to, the checking of any dimensions provided by the Company and sourcing their own manufacturers for any bespoke and/or custom-made goods.

5.7 The Client shall:

(a)   ensure that the terms of the Order and any information provided in the Brief are comprehensive, complete and accurate in all respects, and immediately update such information whenever necessary;

(b)   fully co-operate with the Company in all matters relating to the Goods and/or Services;

(c)   provide the Company, its employees, agents, consultants and subcontractors, with access to the Site as reasonably required by the Company;

(d)   provide the Company with such information and materials as the Company may reasonably require in order to supply the Goods and/or Services, and ensure that such information is complete and accurate in all material respects;

(e)   prepare the Site for the supply of the Goods and/or Services. The Company requires SITE READINESS, which means that the site to be at a stage whereby:

– All first fix plumbing and electrics are completed and in place as detailed on the Company’s M&E drawings and instructions provided to the Client by the Company.

– All decoration work is completed and wet trades (such as plastering and decorating) have had the appropriate drying time prior to delivery.

– Flooring is laid, level and suitably protected prior to delivery and installation.

– Ducting for the extraction units is in place. Extractors or their parts (ducting) may be required on site before the kitchen so that the necessary preparation work can be conducted by the Client’s contractor prior to the Company’s installation.

(f)   obtain and maintain all necessary licences, permissions and consents which may be required;

(g)   comply with all applicable laws, including health and safety laws;

(h)   keep all materials, equipment, documents and other property of the Company at the Client’s premises in safe custody at its own risk, maintain such in good condition until returned to the Company, and not dispose of or use it other than in accordance with the Company’s written instructions or authorisation.

5.8 If the Company’s performance of any of their obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

(a)   without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance until the Client remedies the Client Default, and to rely on the Client Default to relieve them from the performance of any of their obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;

(b)   the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of their obligations as set out in this Clause 5.8; and

(c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.

5.9 The Client shall provide access for the Final Site Survey, any other necessary Site visits, and delivery of the Goods and/or Services at all reasonable times. If the Company is unable to deliver the Goods and/or Services, the Company shall be entitled to suspend or cancel the Contract.

5.10 The Client agrees that the Company shall have the right to take and publish photographs at any stage (including after completion) and the Client shall give reasonable access to the Site for this purpose.

6.   CHARGES AND PAYMENT 

6.1 The Charges for the Goods and Services shall be calculated on a time and materials basis and set out in the Order and may include:

(a)   the Design Cost;

(b)   the Cost of Order;

(c)   the Deposit.

In addition to the above, the Company shall be entitled to charge the Client for any expenses reasonably incurred by the Company or their subcontractors engages in connection with the Contract including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Contract, and for the cost of any materials in addition to any Charges specified in the Order.

6.2 The Company reserves the right to increase the Charges to reflect any additional costs or expenses from a Supplier, as well as to reflect any reasonable increases in costs incurred by the Company.

6.3 The Client shall pay the Company a non-refundable Deposit as set out in the Order on signing the Order. An initial deposit of 30% of the total price agreed is required upon order.

Payment of the balance remaining of the purchase price (including VAT and any delivery charges if applicable) must be made in full in the form of cleared funds before dispatch of the Goods.

6.4 The Client shall pay each invoice submitted by the Company:

(a)   within 7 days of the date of the invoice; and

(b)   in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence in this Contract.

6.5 All amounts payable by the Client under this Contract are exclusive of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.

6.6 If the Client fails to make a payment due to the Company under this Contract by the due date, then, without limiting the Company’s remedies, the Client 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 6.6 will accrue each day at a rate of 8% above the Bank of England base rate, on any debts not settled after 30 days past due. The Company reserves the right to suspend the provision of Goods to the Customer where any amounts are overdue under any contract with the Customer until such amounts have been paid. The Customer shall pay without set-off, counterclaim, deduction or withholding every amount due to the Company. Any extension of credit allowed to the Customer may be changed or withdrawn at any time. Notwithstanding any purported contrary appropriation by the Customer, all payments made by the Customer to the Company shall be appropriated first to any Goods that have been resold by the Customer and then to Goods that remain in the possession or under the control of the Customer. All special items must be paid for 100% in full before the Company will commit to ordering these on behalf of the customer.

6.7 All Charges must be paid directly to the Company’s account, and the Client should not, under any circumstances, make any direct payments to any associated designers, manufacturers and/or sub-contractors.

6.8 Where without adequate notice, the Company are prevented for any reason from delivering and/or installing the Design Proposal when arranged, scheduled and/or planned to do so, the Company shall reserve the right to levy an additional administration charge at a rate of £150.00 + VAT, per week for each week that the Company is delayed, disrupted or prolonged, together with reimbursement for any associated additional charges and/or costs incurred by the Company as a result.

6.9 In the event that the performance of the Design Proposal is delayed, disrupted or prolonged for reasons of Force Majeure, the Company reserves the right to request payment, where due, of the total outstanding Charges due and no party shall be held liable or responsible in the event of Force Majeure.

6.10 The Client must promptly notify the Company in writing of any dispute regarding payments, and give the Company sufficient details to be able to respond.

7.   RIGHT TO CANCELLATION

7.1 The Client has the right to cancel this Contract for any reason by delivering or sending (including by email) a cancellation notice to the Company at any time within the period of 7 days starting from the date when this Contract was signed by the Client.

7.2 The notice of cancellation is deemed to be served as soon as it is posted or sent to the Company or in the case of an electronic communication on the day it is sent to the Company.

7.3 If the Company was instructed to provide any Goods and/or Services before the end of the 7-day period and the instruction or instructions were confirmed in writing, the Company shall be entitled to any fees, expenses and costs properly due before the Company receives the notice of cancellation.

7.4 The notice of cancellation is to be addressed to the Company and shall state:

“The Client (name) hereby gives notice that the Contract with the Company (name) dated XX XX XX is cancelled”.

7.5 If the Customer contacts the Company in writing to end the contract for any of the reasons set out under paragraphs (a) to (d) below, the contract will end immediately upon the receipt of such notice and the Company will refund the Client in full for any Goods which have not been delivered (or if they have been delivered, returned to the Company by the Client in good condition).

The reasons are as follows:  

(a) The Company has notified the Client of an upcoming change to the Goods or the Terms and Conditions, which the Client doesn’t agree to;

(b) The Company has informed the Client of an error in the price or description of the Goods that the Client has ordered and the Client does not wish to proceed;

(c) The Company has suspended the supply of the Goods for technical or health and safety reasons, or the Company notifies the Client that the Company is going to suspend them for technical or health and safety reasons, in each case for a period of more than 3 months; or

(d) The Client has a legal right to end the contract because of something the Company has done wrong.

Notwithstanding the above, once a Client has placed an order for special or bespoke Goods (“Bespoke Goods”) the Client may not end the contract for Bespoke Goods without Company’s prior written consent. Any termination by a Client of an order for Bespoke Goods to which the Company agrees will be subject to due compensation for any costs already incurred by the Company whether paid or not at that time (“Bespoke Goods Costs”). Bespoke Goods Costs will either be deducted from any pre-payments made by the Client and the balance returned to the Client or will otherwise be and remain Client’s responsibility to pay to the Company. Bespoke Goods Costs include any costs incurred by the Company and either already paid or contracted to be paid to any third party suppliers and/or manufacturers.

7.6 Any Goods accepted for return/cancellation will be subject to a 25% re-stocking/handling charge of the list price; in addition the Goods will only be accepted back providing they are not of a special or bespoke nature and they are returned to the Company in their original packaging/condition undamaged and it is within 30 days of the delivery date. This does not affect Client’s right to return faulty manufactured items.

If the Client wishes to exercise their legal rights to reject Goods the Client must return them either by posting them back to the Company or (if they are not suitable for posting) allow the Company to collect them for the Client.

8.   DELIVERY

8.1 The costs of delivery and installation (if applicable) will be as notified to the Customer during the order process.

8.2 Delivery and installation (if applicable) shall be made as soon as possible. The Company will contact the Customer with an estimated delivery and installation date.

8.3 Delivery of the Goods shall be made by the Company notifying the Client that the Goods are available for collection at the Company’s premises or for delivery to such place and on such terms as agreed between the Company and the Client at the time the order is placed.

8.4 All Goods, wherever possible, will be delivered within agreed time of the order being placed and the Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

8.5 The Company shall use its reasonable endeavours to meet any date stated for delivery. In any event time of delivery shall not be of the essence and the Company shall not be liable for any losses, costs, damages or expenses incurred by the Client or any third party arising directly or indirectly out of any failure to meet any estimated delivery date.

8.6 Title and risk in the Goods shall pass to the Client upon delivery of the Goods so long as all payments have been cleared.

8.7 Any damages/shortages found within 5 days of delivery to be reported to SKG GROUP by email, a picture of the damage and label on product is required, this email will be sent to the relevant supplier for report and subsequent FOC replacement approval. Any damages reported after this time could result in additional charges.

          9.  WARRANTY AND LIABILITY

9.1 The terms implied by sections 14 to 16 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.  All other implied terms are expressly excluded including those by custom or usage, a case of dealing, common law or fact.

9.2 The Company shall not be liable for and do not warrant:

(a) that the Contract and the Goods and/or Services will be completed in accordance with any schedule;

(b) the performance, work or products of other persons;

(c) the solvency or competence of any other person engaged;

(d) the accuracy of any survey made by the Company;

(e) any misunderstanding and/or misinterpretation of the Design Proposal by the Client or any other person;

(f) the implementation of the Design Proposal by anyone other than the Company.

9.3 The Company shall not be liable for and do not warrant any direct instructions for any of the Company’s associated trades people and/or delivery teams that are not direct instructions from the Company.

9.4 The Client has 14 days to raise any issues regarding the Goods or Services once they have been supplied.  If you reject any of the Goods then these must be returned to us together with a full reason for the rejection.

9.5 No action or proceedings arising out of, or in connection with the Contract, whether in contract, tort, statutory duty or otherwise, shall be commenced after one year from completion of the Order.

9.6 The Company shall not be personally liable to the Client for any negligence, default or any other liability whatsoever arising from performance of the Goods and/or Services or the Design Proposal.

9.7 Any disputes between the Client and the Company in relation to this Contract must first be attempted to be settled in good faith. Failing resolution, the Client or the Company may by notice require that the matter in dispute be referred to mediation.  If mediation has not occurred or settlement is not achieved within 30 working days of the written notice requiring mediation the Client and the Company may agree to refer the dispute to arbitration or failing agreement, either party may refer matters to the courts for resolution.  In the event of a dispute the Company may by notice in writing to the Client suspend their obligations under this Contract.  In that event the Company will not be liable to the Client or any other person for losses arising from such suspension of work.

10.   TITLE AND RISK  

10.1 The risk in the Goods shall pass to the Client on delivery.

10.2 Title to the Goods shall not pass to the Client until the earlier of:

(a)   the Company receives payment in full (in cash or cleared funds) for the Goods and/or Services in respect of which payment has become due, in which case title shall pass at the time of payment;

(b)   the Client resells the Goods, in which case title to the Goods shall pass to the Client at the time specified in Clause 10.4.

10.3 Until title to the Goods has passed to the Client, the Client shall:

(a)   store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Company’s property;

(b)   not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)   maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and

(d)   give the Company such information relating to the Goods as the Company may require from time to time.

10.4 If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in Clause 14, then, without limiting any other right or remedy the Company may have:

(a)   the Client’s right to resell the Goods or use them in the ordinary course of their business ceases immediately; and

(b)   the Company may at any time:

(i)   require the Client to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(ii)   if the Client fails to do so promptly, enter any premises.

 

11.   INTELLECTUAL PROPERTY RIGHTS  

11.1 All Intellectual Property Rights in or arising out of or in connection with this Contract and the Design Proposal (other than Intellectual Property Rights in the Brief or any materials provided by the Client) shall be owned by the Company.

11.2 The Client shall not sub-license, assign or otherwise transfer the rights.

11.3 The Client grants the Company a fully paid-up, indefinite, non-exclusive, royalty-free, non-transferable licence to copy and modify the Brief and any materials provided by the Client to the Company for the term of the Contract.  This clause shall survive termination of the Contract.

12.   DATA PROTECTION AND DATA PROCESSING  

12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

13.   LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

13.1 The Company has obtained insurance cover in respect of Public Liability in the amount of £5m. The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange and the Client is responsible for making their own arrangements for the insurance of any excess loss.

13.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)   death or personal injury caused by negligence;

(b)   fraud or fraudulent misrepresentation; and

(c)   breach of the terms implied by section 2 of the Supply of Goods and Goods and Services Act 1982 (title and quiet possession).

13.3 Subject to Clause 13.2, the Company total liability to the Client shall not exceed the total Charges paid and received by the Company. The Company total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract. If the Company is liable to the Client (whether in contract, tort, statutory duty or otherwise), the Company will only be liable for any reasonable and foreseeable and fully mitigated damage, loss or expense incurred by the Client, caused directly by a breach of the Company’s legal obligations.  The Company shall not be liable to the Client under this Contract except as set out herein, howsoever arising, and whether in contract, tort, statutory duty or otherwise and all consequential loss is excluded including but not limited to (i) loss of profits (ii) loss of sales or business (iii) loss of agreements or contracts (iv) loss of anticipated savings (v)  loss of use or corruption of software, data or information (vi) loss of or damage to goodwill (vii) indirect or consequential loss.

13.4 Unless the Client notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire two months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

13.5 This Clause 13 shall survive termination of the Contract.

14.   TERMINATION 

14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)   the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing to do so;

(b)   the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c)   the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)   the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

14.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.

15.   CONSEQUENCES OF TERMINATION  

15.1 On termination of the Contract:

(a)   the Client shall immediately pay to the Company for all Goods that have been ordered and all Services that have been provided and all outstanding unpaid invoices and interest;

(b)   the Client shall return all of the Company’s materials and Goods which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

15.3 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.

16.   GENERAL

16.1 Assignment and other dealings.

(a)   The Company may at any time, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of their rights and obligations under the Contract.

(b)   The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of their rights and obligations under the Contract without the prior written consent of the Company.

 

16.2 Confidentiality.

(a)   Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, or clients of the other party.

(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; 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.

16.3 Entire agreement.

(a)   The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, implied terms, 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.

16.4 Variation. 

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.5 Waiver. 

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 right or remedy. 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.

16.6 Severance. 

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.

16.7 Notices.

(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 email to the normal email address.

(b)   Any notice or communication shall be deemed to have been received:

(i)   if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

(ii)   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; and

(iii)   if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(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.

16.8 Third party rights.

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.

16.9 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.

16.10 Jurisdiction. 

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