Business Terms

Terms and Conditions for the supply of Goods and Services by DMARK® CONCEPTS LTD

Clause

The Client’s attention is particularly drawn to the provisions of clause 16 (Limitation of liability).

Interpretation

The following definitions and rules of interpretation apply in these Conditions.
1. Definitions:
  
  Business day
  
  a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  
  Business hours
  
  the period from 9.00 am to 5.00 pm on any Business Day.
  
  Commencement Date
  
  has the meaning given in clause 2.3.
  
  Conditions
  
  these terms and conditions as amended from time to time in accordance with clause 21.8.
  
  Contract
  
  the contract (including these Conditions) between the Supplier and the Client for the supply of Goods and/or Services in accordance with these Conditions.
  
  Control
  
  has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
  
  Client
  
  the person or firm who purchases the Goods and/or Services from the Supplier.
  
  Close Family
  
  the spouse, parent, sister, girlfriend or co-habitee of any person and the children and grandchildren of such person (including step and adopted children and grandchildren).
  
  Contract Item(s)
  
  any Goods, Vehicle or other item forming all or part of the subject matter of the Contract including any bucks, formers, jigs or frames manufactured to create any job or other items for use in carrying out the Work.
  
  Deliverables
  
  the deliverables set out in the Order produced by the Supplier for the Client
  
  Delivery Location
  
  has the meaning given in clause 5.2.
  
  Eligible Goods
  
  has the meaning given in clause 6.2.
  
  Estimate
  
  any estimate provided by the Supplier to the Client in respect of the charges for the provision of Goods and/or Services pursuant to these Conditions in accordance with clause 9.
  
  Estimate Acceptance Period
  
  the period for acceptance of an Estimate in accordance with clause 9.3.
  
  Force Majeure Event
  
  has the meaning given to it in clause 20.
  
  Goods
  
  the goods (or any part of them) set out in the Order including without limitation any materials, components (such as panels, part panels, bodywork, vehicle grilles, brightwork, mouldings, trim and similar articles) and goods unrelated to vehicles and other sundry items required to complete the manufacture and/or provision of the goods required under the Order.
  
  Goods Specification
  
  any specification for the Goods, including any relevant plans or drawings, that is agreed in writing between the Client and the Supplier.
  
  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 Client’s order for the supply of Goods, Services and/or the commissioning of any Project.
  
  Premises
  
  the Supplier’s premises situated at Unit 22, Glenmore Business Park, Wend-al Road, Blandford Forum, Dorset DT11 7FP UK or such other premises as the Supplier shall notify to the Client from time to time.
  
  Project
  
  any project carried out by the Supplier for the Client (including any work to a Vehicle) and/or, where the context so admits, the subject matter of any such project.
  
  Quotation
  
  any quotation provided by the Supplier to the Client in respect of the charges for the provision of Goods and/or Services pursuant to these Conditions in accordance with clause 10.
  
  Quotation Acceptance Period
  
  the period for acceptance of a Quotation in accordance with clause 10.
  
  Services
  
  the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Service Specification.
  
  Service Specification
  
  the description or specification for the Services provided in writing by the Supplier to the Client.
  
  Staged Payments
  
  payments by the Client to the Supplier in accordance with clause 14.
  
  Standard Form
  
  the standard form used by the Supplier for the provision of Estimates or Quotations (as the case may be) as amended by the Supplier from time to time.
  
  Supplier
  
  DMARK CONCEPTS LTD registered in England and Wales with company number 13684769.
  
  Vehicle
  
  vehicle or other similar item which is the subject matter of an Estimate or Quotation as defined in these Conditions.
  
  VAT
  
  has the meaning given in clause 12.2.
  
  Work
  
  work proposed to be carried out by the Supplier in accordance with an Estimate, hourly rate or Quotation under these Conditions including any additional work identified in accordance with clause 9.5, clause 10.5 and any work commissioned by any agent on behalf of the Client under clause 3.
2. Interpretation:
  - ‘We’ and us’ refer to the Supplier.
  - A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  - A reference to a party includes its personal representatives, successors and permitted assigns.
  - A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
  - Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
  - A reference to writing or written excludes fax but includes email.
Basis of contract
1. These Conditions form part of any contract between the Supplier and the Client and shall be read in conjunction with and form part of any agreement entered into between the parties. The Client accepts that all of these Conditions and the other terms of the Contract shall apply in all the circumstances under which the Supplier shall undertake work for the Client.
2. The Order constitutes an offer by the Client to purchase Goods and/or, Services in accordance with these Conditions.
3. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point, and on which date, the Contract shall come into existence (Commencement Date).
4. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues, brochures or other documents (whether online or otherwise) are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
5. 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 law, trade custom, practice or course of dealing.
6. The Contract (including these Conditions) supersedes and replaces any and all previous terms and conditions agreed between the parties concerning the subject matter of the Contract whether express or implied and whether written or verbal.
7. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
8. The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with these Conditions.
9. A copy of these Conditions is available online from the Supplier’s website which can be accessed via dmark.co.uk/terms.
10. Unless otherwise agreed, the Client shall not advertise or display, on its website, in any brochure or otherwise any parts supplied by the Supplier to the Client from time to time and this shall be a condition of the Contract. If the condition in this clause is breached, the Supplier shall be entitled to compensation from the Client for any loss suffered by the Supplier, directly or indirectly and/or at the Supplier’s option, injunctive or other relief.
Agency Agreements
1. If the Client uses the services of an agent (Agent) while negotiating any agreement with the Supplier and/or acting through an Agent in the course of the agreement the provisions of this clause 3 shall apply PROVIDED that the Supplier shall not be bound to deliver any Goods and/or Services pursuant to such an arrangement unless the Client shall provide to the Supplier in writing the name, address, email address and telephone number of such Agent.
2. The Supplier shall in any of the circumstances outlined in clause 3.1:
  - be entitled to deal with the Agent as if it were dealing directly with the Client;
  - be entitled to assume that the Agent has full authority so to negotiate or act on behalf of the Client; and
  - send to the Agent (with a copy to the Client) wherever possible by email, any reports of Work and/or any interim or final invoices for the Work.
3. The Client shall in all of the circumstances outlined in clause 3.1:
  - be fully bound by all the negotiations or acts of the Agent;
  - be fully responsible for payment for all Work or any alterations to the Work that may be commissioned by the Agent; and
  - ensure that the Agent is fully aware of the Client’s wishes with regard to the Work and any specifications, alterations or decisions relating to the Work that the Client requires to be made on behalf of the Client.
4. If in any or all of the circumstances outlined in clause 3.1 the Agent:
  - commissions Work or any specifications, alterations or decisions relating to the Work with which the Client does not agree; and/or
  - approves changes to the Work or any specifications, alterations or decisions relating to the Work with which the Client does not agree; and/or
  - is party to any other dispute with the Client,
  then the provisions of clause 3.5 shall apply.
5. If any of the circumstances outlined in clause 3.4 shall occur, the Supplier shall be entitled:
  - to act in accordance with the instructions of the Agent in the circumstances described in sub-clauses (a) and (b) of clause 3.4; and
  - to levy supplemental charges for any such Work, changes, specifications, alterations or decisions in addition to those contained in any Estimate or Quotation for which the Client shall be liable; and
  - to amend any such Estimate or Quotation to take account of the revised charges and any resulting alteration to the timetable set out in any Estimate or Quotation for completion of such Work, changes, specifications, alterations or decisions and the Client shall be bound by the amended terms of any such Estimate or Quotation or alteration to any such timetable; and
  - to ignore any dispute as described in sub-clause (c) of clause 3.4
  and the Client shall be deemed to have endorsed all the acts of the Agent and shall indemnify the Supplier accordingly.
6. If the Client shall decide to terminate its agency agreement with the Agent it shall give due notice of such termination to the Supplier.
7. If the Client appoints more than one Agent, unless the Client shall notify the Supplier in writing with which Agent the Supplier should deal and the extent of the authority of such Agent, the Supplier shall be entitled to deal with either or any Agent of the Client and the Client shall be fully liable for all the acts or omissions of either or any such Agents and indemnifies the Supplier accordingly.
8. Agents may only be appointed by the Client and not by any other Agent. The Supplier shall be entitled to refuse to recognise or deal with any Agent that is not appointed by the Client.
9. The Client shall indemnify the Supplier in full against any liability or other loss occurring to the Supplier resulting directly or indirectly from any breach by the Client of any of the provisions of this clause 3.
Goods
1. The Goods are those described in any applicable Goods Specification.
2. To the extent that the Goods are to be manufactured or provided in accordance with a Goods Specification supplied by the Client, the Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 4.2 shall survive termination of the Contract.
3. The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Client in any such event.
4. If following the Client’s agreement to the Goods Specification either:
  - the Client requires the Supplier to provide additional Goods to those described in the Goods Specification; and/or
  - the Client requests a change to the Goods Specification
  then the Supplier shall be entitled to revise both (i) its charges for the provision of the Goods and (ii) the agreed timescale for completion of the provision of the Goods.
Delivery
1. The Client shall be responsible for transporting any Contract Item(s) to the Premises prior to the Commencement Date.
2. The Client shall collect any Contract Item(s) from the Premises or from such other location as may be agreed with the Client before delivery (Delivery Location) within three Business Days of the Supplier notifying the Client that the Contract Item(s) are ready for collection or as otherwise agreed.
3. Delivery of the Contract Item(s) shall be completed on the completion of their being loaded at the Delivery Location.
4. Any dates quoted for delivery of the Contract Item(s) are approximate only, and the time of delivery is not of the essence. Notwithstanding this, the Supplier shall not be liable for any delay in delivery of the Contract Item(s) that is caused by:
  - a Force Majeure Event; and/or
  - the Client’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Contract Item(s); and/or
  - any delay in the Client paying any sum due from the Client to the Supplier under the Contract by its due date; and/or
  - any Contract Item(s) not being transported by the Client to the Supplier by any date agreed between the Client and the Supplier.
5. If any Contract Item(s) require transportation by a third party the Client may request the Supplier to arrange such transportation at the Client’s expense.
6. If the Supplier fails to deliver any Contract Item(s) pursuant to this clause 5 and in breach of the Contract, its liability shall be limited to the reasonable costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available but shall not extend to the value of the Contract Item(s) themselves. The Supplier shall have no liability for any failure to deliver such Contract Item(s) to the extent that such failure is caused by:
  - a Force Majeure Event; and/or
  - the Client’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of such Contract Item(s); and/or
  - any sum due from the Client to the Supplier under the Contract not being paid by its due date; and/or
  - any Contract Item(s) not being transported to the Supplier by any date agreed between the Client and the Supplier.
7. If the Client fails to accept delivery of the Contract Item(s) within three Business Days of the Supplier notifying the Client that such Contract Item(s) are ready for collection, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of such Contract Item(s):
  - delivery of the Contract Item(s) shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier shall have notified the Client that such Contract Item(s) were ready; and
  - the Supplier shall store such Contract Item(s) until actual delivery takes place, and charge the Client for all related costs and expenses (including the cost of insurance).
8. If upon the expiry of ten Business Days after the day on which the Supplier notified the Client that the Contract Item(s) were ready for collection as described in clause 5.7, the Client has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of all or part of such Contract Item(s). The Supplier may in addition, after deducting reasonable storage and selling costs, account to the Client for any excess realised on resale or disposal over the price of the Contract Item(s) or charge the Client for any shortfall realised on resale or disposal below the price of the Contract Item(s).
Title and risk
1. The risk in the Goods shall pass to the Client on delivery.
2. Title to the Goods (whether attached to the Vehicle and/or forming the subject matter of any Project or not) shall remain with the Supplier and shall not pass to the Client until the Supplier receives payment in full (in cash or cleared funds) for:
  - the Goods; and/or
  - any other goods that the Supplier has supplied to the Client; and/or
  - any other item, whether or not a Contract Item in respect of which payment has become due,
  (Eligible Goods) and, in each such case, title to the Goods shall pass at the time of payment of all such sums.
3. Until title to the Goods has passed to the Client, the Client shall:
  - store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;
  - not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  - maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
  - notify the Supplier immediately if it becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(d); and
  - give the Supplier such information as the Supplier may reasonably require from time to time relating to:
    - the Goods; and
    - the ongoing financial position of the Client.
4. At any time before title to the Goods passes to the Client, the Supplier may require the Client to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Client fails to do so promptly, the Supplier shall be entitled to enter any premises of either the Client or of any third party where the Goods are stored in order to recover them. The Supplier shall be entitled to use reasonable force to retrieve such Goods from the Premises and/or the premises of any third party and the Client shall indemnify the Supplier in full against any loss or liability suffered by the Supplier resulting directly or indirectly from such retrieval. If any Goods are installed on the premises of any third party who is not allowing access to such premises by the Supplier, then forthwith upon the Supplier so requesting, the Client shall instruct such third party to permit access to such premises to the Supplier and/or representative of the Supplier with a view to the Supplier removing such Goods.
5. If the Client fails to pay for any Work and following any Work seeks to sell any of the Contract Item(s) to a third party and/or does so sell the same, the Supplier shall be entitled:
  - to require disclosure by the Client of the method of sale (whether by private trade, public or private auction, online mechanism (such as Ebay) or otherwise); and/or
  - to be granted full visibility of such sale; and/or
  - to the proceeds from any such sale; and/or
  - to trace for such proceeds into any bank account held by or on behalf of the Client or otherwise
  - to recover such proceeds to the extent of:
    - any sums owed by the Client to the Supplier; and
    - the reasonable costs of recovery of such sums incurred by the Supplier.
6. Title to any and all Contract Item(s) shall remain the property of the Supplier unless otherwise agreed in writing with the Client.
Supply of Services
1. The Supplier shall supply the Services to the Client in accordance with the Service Specification in all material respects.
2. The Supplier shall use all reasonable endeavours to meet any performance dates for provision of the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3. The Supplier reserves the right to amend the Service 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 Client in any such event.
Client’s obligations
1. The Client shall:
  - ensure that the terms of the Order and any information it provides in either the Service Specification and/or the Goods Specification are complete and accurate;
  - co-operate with the Supplier in all matters relating to the Services;
  - 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;
  - provide the Supplier with all the details of any Contract Item(s) as may be necessary or desirable (including an appropriate valuation) of any items on which the Supplier agrees to undertake work, to enable the Supplier to obtain any relevant insurance cover as may be necessary, and the Client agrees to bear the cost of such insurance, for which a separate charge will be made by the Supplier;
  - obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are due to start;
  - notify the Supplier in writing before commencement of the Work if the Client is aware that a Contract Item may be exported to or used in the United States of America or Canada; and
  - comply with any additional obligations as set out in the Service Specification or the Goods Specification or both.
2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client 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 Client remedies any Client Default, and to rely on any Client Default to relieve it from the performance of any of its obligations in each case, to the extent such Client Default prevents or delays the Supplier’s performance of any of the Supplier’s obligations;
  - the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
  - the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from any such Client Default.
3. The Supplier may provide to the Client details of third party specialist suppliers who carry out work that the Supplier does not carry out including without limitation fitting, installation, mechanical works, and/or post processing services. If the Client shall decide to contract with such additional suppliers, the Client accepts that:
  - the Supplier shall bear no responsibility whatsoever for any work carried out by such suppliers and the Client shall satisfy itself as to the quality and competence of such Suppliers; and
  - the Supplier shall be entitled to levy additional charges to reflect the cost of any extra labour required on the part of the Supplier resulting from any issues arising with regard to work carried out by such suppliers including without limitation as a result of:
    - inadequate drawings;
    - damaged items; and/or
    - inaccurate data
    being provided by or on behalf of the Client.
Charges and payment – Estimates
1. The Supplier may (but shall not be obliged) to provide an Estimate to the Client for the provision of Goods and/or Services in accordance with these Conditions. The Contract shall not be formed until the Supplier accepts the Order in accordance with clause 2.3.
2. All Estimates shall be provided in writing (including email) on the Standard Form and the Supplier shall be entitled to prepare any Estimate on the basis of the information available to the Supplier at the time of preparation of such Estimate.
3. The Supplier shall use its reasonable endeavours to ensure that (unless otherwise stipulated by the Client or the Supplier) each Estimate shall set out:
  - the total cost of completing the Work;
  - the estimated timescale for completion of the provision of the Goods and/or Services;
  - the length of time for which the Estimate shall remain valid provided that, if no such period is specified the Estimate shall be deemed to be valid for three weeks (Estimate Acceptance Period); and
  - a description of and notes regarding the Work to be carried out pursuant to the Estimate.
4. If the Client requires the Supplier to provide an Estimate without the Supplier having had a fair opportunity to provide an Estimate in accordance with clause 9.3, the Supplier shall be entitled to charge its hourly rate for the Work and such Work shall be carried out until complete.
5. If either the Estimate is not accepted by the Client within the Estimate Acceptance Period and/or a start date for commencement of the Work is not agreed by the Client within the Estimate Acceptance Period, the Supplier shall be entitled in its absolute discretion to refuse to carry out the Work without any liability to the Client whatsoever.
6. The Client acknowledges and agrees that in providing the Goods and/or Services and after having provided the Estimate, the Supplier may discover that more Work is required to complete the Goods and/or Services than was apparent from:
  - the information available to the Supplier at the time of preparation of the Estimate; and/or
  - any initial inspection of the Contract Item(s) prior to commencement of the Work.
  and/or it is otherwise reasonable for the Supplier to depart from the Estimate.
7. The Supplier shall notify the Client of such additional Work as is described in clause 9.5 as soon as practicable. Following such notification and any related discussions with the Client, the Supplier shall:
  - be entitled to revise the Estimate to add the estimated cost of carrying out such additional Work and the Client shall be liable to pay the Supplier for all the Work set out in the revised Estimate; and
  - provide an amended timescale for completion of the provision of the Goods and/or Services.
8. If following the Client’s acceptance of the Estimate either:
  - the Client requires the Supplier to carry out additional Work to that described in the Estimate; and/or
  - the Client requests a change to the Service Specification in the Estimate;
  then the Supplier shall be entitled to revise both
  - its charges for the provision of the Goods and/or Services and
  - the agreed timescale for completion of the provision of the Goods and/or Services as each is set out in the Estimate.
Charges and payment – Quotations
1. The Supplier may (but shall not be obliged) to provide a Quotation to the Client for the provision of Goods and/or Services in accordance with these Conditions. The Contract shall not be formed until the Supplier accepts the Order in accordance with clause 2.3.
2. All Quotations shall be provided in writing (including email) on the Standard Form and the Supplier shall be entitled to prepare any Quotation on the basis of the information available to the Supplier at the time of preparation of such Quotation.
3. The Supplier shall use its reasonable endeavours to ensure that (unless otherwise stipulated by the Client or the Supplier) each Quotation shall set out:
  - the total cost of completing the Work;
  - the estimated timescale for completion of the provision of the Goods and/or Services;
  - the length of time for which the Quotation shall remain valid provided that, if no such period is specified the Quotation shall be deemed to be valid for three weeks (Quotation Acceptance Period); and
  - a description of and notes regarding the Work to be carried out pursuant to the Quotation.
4. If either the Quotation is not accepted by the Client within the Quotation Acceptance Period and/or a start date for commencement of the Work is not agreed by the Client within the Quotation Acceptance Period, the Supplier shall be entitled in its absolute discretion to refuse to carry out the Work without any liability to the Client whatsoever.
5. The Client acknowledges and agrees that in providing the Goods and/or Services, and after having provided the Quotation, the Supplier may discover that more Work is required to complete the Goods and/or Services than was apparent from:
  - the information available to the Supplier at the time of preparation of the Quotation; and/or
  - any initial inspection of the Contract Item(s) prior to commencement of the Work
  and/or it is otherwise reasonable for the Supplier to depart from the Quotation.
6. The Supplier shall notify the Client of such additional Work as is described in clause 10.5 as soon as practicable. Following such notification and any related discussions with the Client, the Supplier shall:
  - be entitled to revise the Quotation to add the estimated cost of carrying out such additional Work and the Client shall be liable to pay the Supplier for all the Work set out in the revised Quotation; and
  - provide an amended timescale for completion of the provision of the Goods and/or Services.
7. If following the Client’s acceptance of the Quotation either:
  - the Client requires the Supplier to carry out additional Work to that described in the Quotation; and/or
  - the Client requests a change to the Service Specification in the Quotation
  then the Supplier shall be entitled to revise both
  - its charges for the provision of the Goods and/or Services and
  - the agreed timescale for completion of the provision of the Goods and/or Services as each is set out in the Quotation.
Charges and payment – Goods
1. The price for Goods shall be itemised by the Supplier and charged for separately from the Supplier’s charge for the provision of the Services. The Supplier shall charge for the Goods the price set out in the Order (or otherwise in writing to the Client) or, if no price is quoted in the Order, the price set out in the Supplier’s published price list visible on the Supplier’s website as at the date of the Order (or in the absence of an Order at the date of delivery).
2. The Supplier reserves the right to:
  - increase the price of the Goods, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
    - any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    - any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
    - any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give the Supplier adequate or accurate information or instructions in respect of the Goods; and/or
    - any custom specifications required by the Client concerning any Contract Item(s), Goods, Services or the Project.
3. In respect of any Goods or Services supplied the Client shall pay the Supplier any relevant invoice(s) in full and the Client shall not be entitled to take delivery of any Contract Item(s) until such payment(s) has/have been made unless the Supplier shall have agreed that the Client may make Staged Payments in accordance with clause 13 in which case the provisions of clause 13 shall apply.
Charges and payment – General
1. The Client shall pay each invoice submitted by the Supplier:
  - prior to the removal of any Contract Item which has been the subject matter of the Work from the premises or possession of the Supplier; and
  - in full and in cleared funds by bank transfer to a bank account nominated in writing by the Supplier whose details are shown on such invoice and no other means of payment shall be accepted; and
  time for payment shall be of the essence of the Contract.
2. All amounts payable by the Client 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 Client, the Client 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 or Goods or both, as applicable, at the same time as payment is due for the supply of the Services or Goods.
3. If the Client 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 17, 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 12.3 will accrue each day at 8% a year on the amount outstanding from the due date until payment is made.
4. All sums payable under this clause 12 shall be strictly due within ten Business Days of the date of their relevant invoice. If any sums due under clause 12 or otherwise are not paid by the Client to the Supplier by their due date:
  - the Supplier shall be entitled to refuse to carry out any further work until payment is received in full by the Supplier from the Client;
  - the Supplier shall be entitled to demand from the Client payment in full for any outstanding Work notwithstanding the provisions of clause 12.3 or any other agreement between the Client and the Supplier;
  - the Supplier shall pursue all lawful remedies available to it to recover any such sums including any remedies for injunctive, equitable and/or any other relief whatsoever; and
  - the Client shall indemnify the Supplier in full against all Legal Fees incurred by the Supplier in pursuing any and all of the remedies referred to in sub-clause 12.4(c) and for the purposes of this this clause Legal Fees shall include the fees of:
    - any legal advisers;
    - external expert witnesses;
    - mediation fees; and
    - the cost of any management time expended by representatives of the Supplier calculated at the rate of £250 per hour;
  - any other costs incurred or suffered in connection with pursuing any such remedies.
5. If either:
  - any sum due from the Client to the Supplier under the Contract is not paid by its due date; or
  - any Contract Item is not delivered to the Supplier by the date agreed between the Client and the Supplier, the Client acknowledges and agrees that this may disrupt the Supplier’s work flow;
  then in either case the parties agree that:
  - the estimated date for completion of the Work will be subject to revision in the absolute discretion of the Supplier; and
  - the Supplier reserves the right to charge an additional fee as compensation for the inconvenience to the Supplier caused by the delay in either or both such cases; and
  - the Supplier shall be entitled to provide a revised date for completion of the Work to the Client, taking into account the needs of the Supplier’s other clients.
6. The Client acknowledges and agrees that, where:
  - it has provided drawings, measurements, patterns, damaged panels, un-damaged panels or any other means of assessing the Work required to any relevant Goods and any other Contract Item(s); and
  - the Contract Item(s) are not available for inspection, measurement and/or fitting,
  further work may need to be undertaken by the Supplier to tailor such components or other sundry items to the Contract Item(s).
7. In providing panels as referred to in clause 12.6(a) the Client shall ensure that such panels are suitable to complete the Work.
8. The Client further acknowledges and agrees that if any further work needs to be undertaken by the Supplier as described in clause 12.6, the Supplier shall be entitled to levy a further charge for this work, which shall include (without limitation) a charge to cover the time spent by the Supplier working on any parts required and a charge (at the Supplier’s then standard rates) to cover the travelling time of employees or other representatives of the Supplier connected with the carrying out of such further work.
9. The Supplier shall be entitled to charge the Client at any time and from time to time in addition to the direct cost of any consumables, supplies or other items whatsoever provided by sub-contractors, agents, intermediaries or any other third parties whatsoever, in connection with the Contract, such sum or sums as it shall consider appropriate in its absolute discretion.
10. 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).
11. All amounts under the Contract shall be payable in GBP sterling unless the parties otherwise agree.
Charges and payment – Staged Payments
1. If the Supplier agrees to receive payments from the Client for Goods or Services provided on a staged basis the provisions of this clause shall govern the terms of such payments (Staged Payments).
2. Where payment by Staged Payments has been agreed between the parties:
  - the Client shall pay the Supplier Staged Payments at such intervals and in such amounts as the Supplier shall have set out in an Estimate or Quotation or otherwise as the Supplier shall stipulate from time to time in its absolute discretion;
  - unless otherwise agreed the Supplier shall use reasonable endeavours to compile an online photographic record of the Work for the Client to follow; and
  - the Client shall pay to the Supplier a final payment prior to collection of the Contract Items(s) which shall comprise the aggregate of:
    - the remaining sums payable and outstanding for labour employed in the Work; and
    - all remaining charges owed by the Client to the Supplier for materials, components and sundries accrued in relation to the Work on the Contract Item(s).
Intellectual property rights
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Supplier.
2. The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of providing the Goods and/or Services to the Client.
Data protection
1. The following definitions apply in this clause 15:
  - Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
  - Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
  - Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
  - UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
3. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and the Supplier is the Processor.
4. Without prejudice to the generality of clause 15.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Contract.
5. Without prejudice to the generality of clause 15.2, 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 documented written instructions of the Client unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Client of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Client;
  - ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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, pseudonymizing 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 UK unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
    - the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
    - the Data Subject 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 Client with respect to the processing of the Personal Data;
  - assist the Client, at the Client’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 Client without undue delay on becoming aware of a Personal Data Breach;
  - at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Contract unless required by Domestic Law to store the Personal Data; and
  - maintain complete and accurate records and information to demonstrate its compliance with this clause 15.
6. The Client agrees to the Supplier retaining records (including emails) of any Work carried out for the Client and to use any information contained in such records to carry out any new Work for such Client.
7. The Client agrees that the Supplier shall be permitted from time to time to pass on to other Suppliers (who might be involved in carrying out the Work) technical information concerning the Work in order to enable the Supplier to perform the Contract.
Limitation of liability
1. References to liability in this clause 16 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  - death or personal injury caused by negligence;
  - fraud or fraudulent misrepresentation;
  - breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
  - defective products under the Consumer Protection Act 1987.
4. Subject to clause 16.3 and clause 16.4, the Supplier’s total liability to the Client in any year shall not exceed the total amount of any sum received by the Supplier from the Client in that year.
5. This clause 16.5 sets out specific heads of excluded loss and exceptions from them:
  - The following types of loss are wholly excluded:
    - 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; and
    - indirect or consequential loss.
  - The Supplier shall not be liable for the loss or sale of any Contract Item(s) or any part of such items.
  - The Supplier shall not be liable for any Goods on which it has worked, it has repaired or made from new but which require to be finally tailored to fit a vehicle, building or other thing and/or to be installed in any thing unless the Supplier shall have been given full access to and opportunity to assess and measure the proposed fit and/or installation and confirmed in writing that it is willing to carry out such fit and/or installation.
6. The Supplier has given commitments as to compliance of the:
  - Goods with the Goods Specification (in clause 4); and
  - Services with the Service Specification (in clause 7).
  In view of these commitments, the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7. This clause 16 shall survive termination of the Contract.
Termination
1. Without affecting any other right or remedy available to it, unless otherwise agreed, either party may terminate the Contract by giving the other party not less than three months’ written notice.
2. 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 other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so PROVIDED THAT (if such remedy cannot be reasonably achieved within such period) such period of 21 days may be extended so that:
    - the party in breach shall be entitled to propose to the other party a revised estimate of the timescale necessary to remedy such breach; and
    - the party in breach be given an opportunity to remedy such breach within such extended period.
  - 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), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed over any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  - 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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
3. 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 Client if:
  - the Client fails to pay any amount due under the Contract on the due date for payment; or
  - there is a change of control of the Client.
4. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 17.2(b) to clause 17.2(d), or the Supplier reasonably believes that the Client is about to become subject to any of them.
Consequences of termination
1. On termination of the Contract:
  - the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
  - the Client shall return all materials belonging to the Supplier and any Deliverables and/or Goods which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises or if such Deliverables and/or Goods are held elsewhere, such other 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 this Contract. The Client shall indemnify the Supplier in full against any loss or other liability resulting from the Supplier entering any premises in order to take possession of any such Deliverables and/or Goods including any premises owned or controlled by third parties.
2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
Confidentiality
1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, Clients, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 19.2.
2. Each party may disclose the other party’s confidential information:
  - to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 19; and
  - as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
4. Notwithstanding the other provisions of this clause 19, the Supplier shall permit the Client to promote the work of the Supplier to third parties subject to agreeing the terms of any wording used to do so.
Force majeure
1. The Supplier shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). Force Majeure Events shall include any sickness, injury or other medical disorder or condition of any of Donald William Standhaft, Mark Standhaft and/or any of their Close Family. The time for performance of such obligations shall be extended accordingly.
General
1. Assignment and 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 Client 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 without the prior written consent of the Supplier.
2. Notices
  - 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); or
    - sent by email to the following addresses (or an address substituted in writing by the party to be served):
      Supplier: contract@dmark.co.uk
      
      Client: as notified by the Client to the Supplier in writing.
  - Any notice shall be deemed to have been received:
    - if delivered by hand, at the time the notice is left at the proper address;
    - if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    - 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.
  - This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
3. Severance
  
  If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, or is deemed to be invalid in whole or in part by any competent authority, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 21.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
4. Waiver
  - Except as set out in clause 2.8 waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  - A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
5. No partnership or agency
  
  Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
6. Entire agreement
  - The Contract constitutes the entire agreement between the parties.
  - Each party acknowledges that in entering into the Contract it does not rely on 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.
7. 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.
  - The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
8. Variation
  
  The Supplier reserves the right to change these Conditions at any time and without notice being given to the Client.
9. Governing law
  
  The Contract, these Conditions, any other contracts or arrangements between the Client and the Supplier and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with any of them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
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.

Business Terms

Terms and Conditions for the supply of Goods and Services by DMARK® CONCEPTS LTD

Clause

Interpretation

Basis of contract

Agency Agreements

Goods

Delivery

Title and risk

Supply of Services

Client’s obligations

Charges and payment – Estimates

Charges and payment – Quotations

Charges and payment – Goods

Charges and payment – General

Charges and payment – Staged Payments

Intellectual property rights

Data protection

Limitation of liability

Termination

Consequences of termination

Confidentiality

Force majeure

General

Assignment and other dealings

Notices

Severance

Waiver

No partnership or agency

Entire agreement

Third party rights

Variation

Governing law

Jurisdiction

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