The Customer has contracted with the Supplier for the fitting of a cover known as a “shopjacket” being a shop front transformation, 3D hoarding or another such bespoke nature as the Customer may instruct.
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.
Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 5(Charges and payment).
Commencement Date: has the meaning given in Clause 2.2
Completion Date: Means the date when the Product has been fitted at the Customer’s Premises to the reasonable satisfaction of the Customer.
Conditions: these terms and conditions as may be 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.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in Clause 4.2
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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.
Order: the Customer’s order for Services as set out in the Customer’s purchase order form at Schedule 1, the Customer’s written acceptance of a quotation by the Supplier, or overleaf, as the case may be.
Premises: means the location where the Product is to be fitted
Product: means the specific image dressing package to be supplied as a physical cover as part of the Services set out in the Specification.
Services: the services supplied by the Supplier to the Customer as set out in the Specification which is to incorporate the Product
Specification: the description or specification of the Services provided by the Supplier to the Customer at Schedule 1
Supplier:Shopjacket Limited registered in England and Wales with company number 07221055 whose registered office is at 25 Kirkwell Cottages, High Hauxley, Morpeth, Northumberland NE65 0JN.
Supplier Materials: has the meaning set out in Clause 5.1(m)
(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 exampleor 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 writingor writtenincludes fax and email
- BASIS OF CONTRACT
- The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
- The Order shall only be deemed to be accepted when the Supplier either signs the Order or gives the Customer written confirmation that they will supply the Services, at which point, and on which date the Contract shall come into existence (Commencement Date).
- The Customer’s lack of signature will not affect the validity of the contact where they have either in writing or verbally given the Supplier authorisation to carry out the Services. In such a situation the contents of these conditions shall apply.
- 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.
- 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.
- Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
- Any printing necessary to complete the Specification will not be completed by the Supplier until approval of any images, wording, artwork or any other element associated, is given by the Customer and received by the Supplier.
- SUPPLY OF SERVICES
- The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
- The Supplier shall use all reasonable endeavours to meet any performance dates specified in Schedule 1, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. The Supplier has no liability to complete the Services by the dates given in the Order.
- 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.
- The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
- SUPPLY OF THE PRODUCT
- When the Product is purchased without contracting with the Supplier for fitting services the Customer:
- is responsible for all measurements to the Supplier’s specification. The Supplier will not be held responsible for any wrong measurements provided by the Customer.
- Must ensure that an experienced vinyl fitter is used to place the Product onto the Customer’s property and the windows are clean.
- Where the supplier is to provide the Product only the Supplier shall ensure that:
- Each delivery of the Product is accompanied with a relevant delivery note and that where packaging materials are to be returned, the Supplier sets out how these are to be returned.
- The Product shall be delivered to the location as agreed between the parties (Delivery Location). The Customer is liable for the Product when delivery has occurred.
- Delivery is completed when the Supplier delivers the Product to the Delivery Location. Any delivery dates agreed between the parties are approximate only and time will not be of the essence.
- The Supplier warrants that on the date of delivery the Product shall be free from any defects and shall be fit for purpose.
- The termsimplied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
- Where the Product is not fit for purpose, in the Customer’s reasonable assessment, then the Supplier shall be permitted and afforded a reasonable time to inspect, rectify and if necessary, replace the Product.
- The Supplier will not be liable to fix any defect, apparent or real, where the Customer engages any third party to carry out any work, investigative or otherwise on the Product.
- For the purpose of thisclause the rest of the conditions contained herein will apply.
- The Customer shall:
- ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
- co-operate with the Supplier in all matters relating to the Services;
- at all times maintain liability for the Product after the Completion Date;
- at all times maintain responsibility and liability, whether through insurance or not, for the Product at all times where the Supplier is not explicitly at the Premises up to and after the completion date.
- ensure that appropriate Planning consent, Listed Building Consent, Building Regulation or any other applicable statutory consent (known or otherwise) is in place before Services are commenced;
- notify their insurance company of the Services to be undertaken by the Supplier and ensure that any and all policies cover the Services.
- Where the Supplier advises of lighting in order to illuminate the Product, the Customer shall ensure that the electrical systems are correct and compliant.
- 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;
- 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;
- prepare the Premises for the supply of the Services;
- 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;
- comply with all applicable laws, including health and safety laws;
- 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
- comply with any additional obligations as set out in the Specification.
- 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):
- 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;
- 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 5.2; and
- 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.
5.3 The Customer shall comply with all matters set out at Clause 4.
CHARGES AND PAYMENT
- The Charges for the Services shall be set out in the Order at Schedule 1. The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
- The Supplier reserves the right to increase the Charges where the agreed alterations are made to the Services.
- The Supplier shall invoice the Customer on completion of the Services.
- The Customer shall pay each invoice submitted by the Supplier:
- within 28 days of the date of the invoice; and
- 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.
- 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
- 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 12, 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 6will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5 % a year for any period when that base rate is below 0%.
- 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).
TITLE AND RISK
Subject to clause 5.1 the Risk of the Product and Services will pass to the Customer once the fitting of the Product is complete. Until such a time as the Product is fitted, the Supplier retains all ownership. Ownership is also retained until payment has been made by the Customer and received by the Customer.
INTELLECTUAL PROPERTY RIGHTS
- 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 and retained by the Supplier. The Customer agrees to indemnify the Supplier for any losses or damages that they incur in any third party or the Customer themselves using, copying or otherwise, Intellectual Property Rights that belong to the Supplier.
- The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use the Product (excluding materials provided by the Customer) for the purpose of receiving and using the Product.
- The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 8.2.
- 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
DATA PROTECTION AND DATA PROCESSING
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause 8 Applicable Lawsmeans (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
- Without prejudice to the generality ofClause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract. In the event that the Customer does not comply with the Data Protection Legislation it will indemnify the Supplier for any breaches that result in the Supplier or any of its third party contractors suffering damages, fines or other penalties.
- Without prejudice to the generality ofClause 9.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
- process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators
- notify the Customer without undue delay on becoming aware of a Personal Data breach; and
- at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data.
LIMITATION OF LIABILITY:
- The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000.00 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
- Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- Subject to Clause 10.2 the Supplier’s total liability to the Customer shall not exceed the cost of the Services or Product. The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
- The Supplier shall not be liable for any of the following losses:
- Loss of profits
- Loss of sales or business.
- Loss of agreements or contracts.
- Loss of anticipated savings.
- Loss of use or corruption of software, data or information.
- Loss of or damage to goodwill.
- Indirect or consequential loss.
- Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
- The Services and the Product are designed to be temporary applications for improving the aesthetics of vacant buildings. They are not designed to be long term investment by the Customer. What is a question of long term is to be decided solely by the Supplier.
- The Supplier shall not be liable for any damage or loss that is caused to the Product or any Customer’s Materials, property, Customer’s premises or any other animate object because of the removal of any treatment that is necessary to give effect to the Services.
- The Supplier shall not be liable for any failure to follow any safety signs or warnings that are given in relation to the Services up to and subsequent to the Completion Date.
- This clauseshall survive termination of the Contract.
- Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving the other party 14 days written notice.
- 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:
- the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within14 days of that party being notified in writing to do so;
- 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
- 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
- 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.
- Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them.
12 CONSEQUENCES OF TERMINATION
- On termination of the Contract:
- 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;
- 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.
- 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.
- 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.
- Force 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.
- Assignmentand other dealings.
- 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.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract
- Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, trade secrets, Product knowledge, customers, clients or suppliers of the other party, except as permitted by clause 13.3(b).
- Each party may disclose the other party’s confidential information:
- 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 13.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
- Entire agreement.
- 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.
- 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.
- Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing by the parties (or their authorised representatives).
- 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.
- 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.
- Any notice 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)
- Any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt and if sent by next working day delivery service, at 9.00 am on the second Business Day after posting
- 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.
- 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.
- 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.
Customers Order Form
Specification of Product
The Customer confirms that they have read and understood the Supplier’s Terms and Conditions which can be found at www.shopjacket.co.uk/termsandconditions