HMS® Decorative Surfacing Limited TERMS AND CONDITIONS
1.1 These Terms and Conditions shall apply to the provision of Services by HMS Decorative Surfacing Limited, hereinafter called “the Company” to the Client, as identified in the quotation or other binding document attached hereto.
1.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless otherwise expressly agreed by the Company in writing.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
2.1.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.1.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.1.3 any “quotation” remains open for acceptance for a period of 60 days unless otherwise stated, and means the quotation for the performance of the Services or any other Services as may from time to time be amended by the written agreement of both the Company and the Client,
2.1.4 “acceptance” means the acceptance of the Company’s quotation, the signing of a support contract, placement of an order and/or the Client’s written consent to receive the services, and includes the acceptance of these Terms and Conditions;
2.1.5 no “terms or conditions” stipulated or referred to by the Client in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing;
2.1.6 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented, if applicable;
2.1.7 a Schedule, if applicable, is a schedule to these Terms and Conditions;
2.1.8 a Clause or paragraph is a reference to a Clause or paragraph of these Terms and Conditions (including any Schedules, if applicable);
2.1.9 a “Party” or the “Parties” refer to the parties to these Terms and Conditions; and 2.1.10 “Agreement” means the Order or any other Contract.
2.2 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.3 Words imparting the singular number shall include the plural and vice versa.
2.4 References to any gender shall include the other gender.
3. Company’s Responsibilities
3.1 The Company will use reasonable care and skill pertaining to their profession to perform the Services.
3.2 The Company will provide professional advice relating to the Services but cannot accept responsibility for any actions taken as a result of such advice. Further, the Company shall not be liable for any consequences should any professional advice not be taken.
3.3 The Company shall use all reasonable endeavours to complete its obligations under the Agreement, but time will not be of the essence in the performance of these obligations.
5. Project Contracts
5.1 The Company agrees to provide the products and/or services as specified in the quotation. 5.2 Payment shall be made within 30 days of the date of the relevant invoice.
7. Notice and/or Lead In Period
Unless otherwise agreed in writing between the parties at the time of acceptance, the Company requires a minimum of 14 days’ formal notice to commence the Services.
8.1 The Client agrees to pay the Fees as laid out in the attached order or Agreement in accordance with the terms of Payment herein.
8.3 The Client will pay the Company for any additional services provided by the Company that are not specified in the Agreement. These additional services shall be charged in accordance with the Company’s then current, applicable rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional products or services will be supplemental to the amounts that may be due for expenses. 8.4 All sums payable by either Party pursuant to the Agreement are exclusive of any value added or other tax (except corporation tax) or other taxes on profit, for which that Party shall be additionally liable.
9.1 All payments required to be made by the Client shall be made in pounds sterling without any set-off, withholding or deduction except such amount (if any) of tax as the Client is required to deduct or withhold by law.
9.2 For new or adhoc contracts, the Client may be requested to make a payment on account of fees prior to the products or services being carried out.
9.3 Payment is due in respect of the relevant fees, as detailed in the quotation or Contract, for all days, shifts or hours worked (or scheduled to work, but deferred or cancelled by the Client giving less than 5 working days written notice). The Company will not accept payment being withheld in the unlikely event that the Client is dissatisfied with the Services due to a matter of personal taste. Charges made to the Client by way of aborted visits will be at the sole discretion of the Company.
9.4 The Company’s normal working hours are 8am to 5.30pm Monday to Friday, excluding bank holidays. Any overtime or restrictions must be authorised by the Client in writing before the services are carried out and will be charged pro rata at the fees listed in our quotation for additional hours worked Monday to Friday. Hours worked on a Saturday shall be charged at the fees as listed in our quotation plus an additional percentage as stated. Hours worked on a Sunday shall be charged at the fees as listed in our quotation plus an additional percentage as stated. The cost of delays attributable to the Client including, but without limitation, failing to carry out agreed actions or not providing necessary information or services, or failing to give proper notice to terminate or cancel as detailed herein will be charged at our standard fee rates applicable at the time.
9.5 The time of payment shall be of the essence. If the Client fails to make any payment on the due date then the Company shall, without prejudice to any right which the Company may have pursuant to any statutory provision in force from time to time, have the right to suspend any ongoing Product or Service and charge the Client interest on a daily basis at an annual rate equal to the aggregate of 8% above the base rate of the Bank of England from time to time on any sum due and not paid on the due date in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgment.
10. Client’s Obligations:
10.1 The Client agrees to:
10.1.1 Give the Company such information, advice and assistance relating to the services as they may reasonably require within sufficient time to enable them to perform the services in accordance with the quotation and/or contract.
10.1.2 Provide suitable and sufficient material (where required) to the Company to enable them to perform the services.
10.1.5 Keep secure from third parties any passwords issued to the Client by the Company in connection with the Services.
10.1.6 Nominate a suitably qualified individual to act as the Client’s representative to liaise with the Company regarding the Services.
10.1.7 Obtain and maintain all necessary licences, permissions and consents in connection with the Services.
10.1.8 Report faults promptly to the Company.
10.1.9 Comply with all applicable Health and Safety legislation and regulations in respect of the Company and any employee of theirs, their servants or agents whilst such persons are working on the Client’s premises. 10.2 If the Client fails to meet any of the provisions of clause 10.1 above, the Company shall, without limiting its other rights or remedies:
10.2.1 have the right to suspend performance of the Services until the Client remedies the default; and
10.2.2 not be held liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay in performing any of its obligations as a result;
10.2.3 be entitled to claim for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client’s default.
11. Delay & Abortive visits
11.1 The Company’s price is based on being able to complete their services in the agreed number of hours or visits over the period as detailed in the Agreement. If they are prevented from continuous working through to completion, they reserve the right to recover any costs incurred by way of delay or abortive visits. In the event of a delay, the Company shall then require, from the Client, a further written notice or lead in period in accordance with predetermined clauses.
12. Errors or Discrepancies
12.1 The Client shall be responsible for the accuracy of any information submitted to the Company and for ensuring that the quotation or Agreement reflects the requirements of the Client. The Company’s quotation is based on the information provided to them at the time of preparing such quotation. Should any errors or discrepancies become evident which affect the order value, the Company reserves the right to make any adjustments to it.
13.1 For the purposes of this clause 13, Confidential Information shall include all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature. Both the Company and the Client shall undertake that, except as provided by sub-Clause 13.2 or as authorised in writing by the other Party, it shall at all times during the continuance of the Agreement and for 2 years after its termination:
13.1.1 keep confidential all Confidential Information;
13.1.2 not disclose any Confidential Information to any other party;
13.1.3 not use any Confidential Information for any purpose other than as contemplated by the Agreement;
13.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
13.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 13.1.1 to 13.1.4. 13.2 Subject to sub-Clause 13.3, either Party may disclose any Confidential Information to: 13.2.1 any of their sub-contractors or suppliers;
13.2.2 any governmental or other authority or regulatory body; or
13.2.3 any of their employees or officers or those of any party described in sub-Clauses 13.2.1 or 13.2.2; 13.3 Disclosure under sub-Clause 13.2 may be made only to the extent that is necessary for the purposes contemplated by the Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 13.2.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
13.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
13.5 When using or disclosing Confidential Information under sub-Clause 13.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge. 13.6 The provisions of this Clause 13 shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
14.Variation and Amendments
14.1 If the Client wishes to vary the services to be provided, they must notify the Company as soon as possible. The Company shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
14.2 If, due to circumstances beyond the Company’s control, it has to make any change in the arrangements relating to the provision of the Services, it shall notify the Client immediately. The Company shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
14.3 Any agreed variation or amendment will be carried out in accordance with these terms and conditions and any price increase necessitated as a result of an agreed variation or amendment shall be payable in accordance with the terms for payment herein.
15.1 Either Party may terminate the Agreement by either party giving written notice to the other Party if:
15.1.1 either Party, where the services to be provided are under a written contract for support or project services, gives the other 30 days written notice of termination;
15.1.3 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 days of the due date for payment;
15.1.5 an encumbrance takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
15.1.6 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
15.1.7 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement);
15.1.8 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
15.1.9 the other Party ceases, or threatens to cease, to carry on business; or 15.1.10 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of this Clause 15, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010. 15.2 For the purposes of sub-Clause 15.1.4, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
15.3 In the event of termination under sub-Clause 15.1 the Company shall retain any sums already paid to it by the Client without prejudice to any other rights the Company may have whether at law or otherwise. 15.4 In the event of termination of any of the Company’s services it is the Client’s obligation to make payment of all Services provided up to and including the date of termination. This obligation shall survive termination and shall become immediately payable.
15.5 In the event of termination the confidentially obligation pursuant to clause 13 shall survive termination.
16.1 Nothing in this Agreement shall render or be deemed to render the Company an employee or agent of the Client or the Client an employee or agent of the Company.
17.Assignment and Sub-Contracting
17.1 The Client shall not be entitled to assign the benefits under the Agreement.
17.2 The Company may sub-contract the performance of any of its obligations under the Agreement without the prior written consent of the other Party. Where the Company sub-contracts the performance of any of its obligations under the Agreement to any person with the prior consent of the Client, the Company shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the Company itself.
18.1 The Company includes for any documentation to be submitted in their normal standard format only. If additional copies or specific requirements are needed, they reserve the right to apply additional charges. The Company shall retain title to the documentation and no documentation shall be handed over until all payments as detailed above have been paid in full.
18.2 Insurance- The Company includes for Public Liability and Professional Indemnity Insurance, both with an indemnity limit of £1 million.
19. Literature and Representations
19.1 Any marketing literature of the Company’s is presented in good faith as a guide to represent the services offered and does not form a part of the Agreement.
19.2 No employees or agents of the Company are authorised to make any representation concerning their services unless confirmed by the Company in writing. In entering into the Agreement, the Client acknowledges that it does not rely on and waives any claim for breach of any such representations, which are not so confirmed.
21. Liability and Indemnity
21.1 Except in respect of death or personal injury caused by the Company’s negligence, the Company will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under the express terms contained herein, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Company’s servants or agents or otherwise) in connection with the performance of its obligations under the Agreement.
21.2 All warranties or conditions whether express or implied by law are hereby expressly excluded. 21.3 The Client shall indemnify the Company against all damages, costs, claims and expenses suffered by the Company arising from loss or damage to any equipment (including that of third parties) caused by the Client, or his agents or employees.
21.4 The Company shall not be liable to the Client or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control.
21.5 In the event of a breach by the Company of their express obligations under these Terms and Conditions, the remedies of the Client will be limited to damages, which in any event, shall not exceed the fees and expenses paid by the Client for the Services.
21.6 Any property including both hardware and software supplied to the Company by or on behalf of the Client shall be held and worked upon by the Company at the Client’s risk. The Company shall not be liable for any loss or damage to any such property.
22.1 Neither the Company nor the Client will, during the term of the Agreement and for a period of 2 years from the expiry of this Agreement, without the other’s prior written consent, appoint in any way or cause to be employed, engaged or appointed an employee, agent, director, consultant or independent contractor of the other. Whilst the above restrictions are considered by the parties to be reasonable in all the circumstances, it is agreed that if, taken together they are adjudged to go beyond what is reasonable in all the circumstances for the Company’s protection but would be judged reasonable if part or parts of the wording of them were deleted or its period reduced or an area defined, they shall apply with such words deleted or with such modifications as may be necessary to make it valid and effective.
Should the Client cancel the Agreement prior to commencement of the support or project services with the Company, the Company shall be immediately entitled to payment for:
23.1 100% of their fees if cancellation takes place within 5 working days or less of the date of commencement
23.2 90% of their fees if cancellation takes place within 8 working days or less of the date of commencement
23.3 75% of their fees if cancellation takes place within 10 working days or less of the date of commencement
23.4 50% of their fees if cancellation takes place within 15 working days or less of the date of commencement
23.5 Where services have commenced, the Company will be immediately entitled to payment for 100% of their fees. The Company also reserves the right to levy reasonable cancellation charges, including but not limited to, any administration costs, procurement costs, loss of contract and loss of profit, against the Client and these shall fall due for payment immediately.
24.1 For the purposes of this clause 24, Intellectual Property means all copyrights, patents, registered and unregistered design rights, database rights, topography rights, trademarks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
24.2 Subject to a written agreement to the contrary, the Company reserves all intellectual property rights which may subsist in the provision of the Services. The Company reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such intellectual property rights.
24.3 The Client shall immediately bring to the attention of the Company any infringement or suspected infringement of any of the intellectual property rights licensed hereunder of which it is aware and shall at the request and expense of the Company take such action or assist the Company in taking such action as the Company may deem appropriate to protect the intellectual property rights.
24.4 The Client warrants that any document or instruction furnished or given by them shall not cause the Company to infringe any letter patent, registered design or trade mark in the execution of these services and shall indemnify them against all loss, damages, costs and expenses awarded against or incurred by them in settlement of any claim for infringement of any patent, copyright, design, licence, trademark or any intellectual property rights which results from our use of the Client’s information.
25. Force Majeure
25.1 Neither the Client nor the Company shall be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Company failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
26.1 No waiver by the Company of any breach of the Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of the Agreement shall be effective only if given in writing and signed by the waiving Party and then only in the instance and for the purpose for which the waiver is given.
26.2 No failure or delay on the part of any party in exercising any right, power or privilege under the Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.
27.1 The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and the Agreement, as appropriate). The remainder of these Terms and Conditions shall be valid and enforceable.
28. Data Protection
28.1 Both parties agree to comply with all applicable data protection legislation, including but not limited to the Data Protection Act 1998 and any subsequent amendments thereto.
29.Third Party Rights
29.1 No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
30.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice. Notices shall be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or on the tenth business day following mailing, if mailed by airmail, postage prepaid. In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
30.2 Service of any document for the purposes of any legal proceedings concerning or arising out of the Agreement shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
31.Law and Jurisdiction
31.1 These Terms and Conditions and the Agreement (including any non-contractual matters and obligations arising there from or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
31.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or the Agreement (including any non-contractual matters and obligations arising there from or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.