Name of company
Kinkell Classic Cars
67 Braes of Balnabeen
Easter Kinkell By Dingwall IV7 8JA
Tel: 01349 877226 01349 877226
Fax: 01349 877242
159 6471 70
AGREEMENT FOR SERVICES
TERMS & CONDITIONS
1. Definitions 1.1 In these terms and conditions the following definitions apply:
‘Affiliate’ of a party means any entity which directly or indirectly owns or controls, is directly or indirectly owned or controlled by, or is in common ownership or control with, that party;
‘Supplier Material’ means all materials, documents, data and proprietary software, which are owned by the Supplier at the date of the Contract or which are subsequently created by the Supplier as a result of performing the Services;
‘Business Day’ means a day other than Saturday, Sunday and public holidays ‘Car’ Means the car specified in the Order
‘Commencement Date’ means the date on which provision of the Services shall commence as specified in the Order;
‘Confidential Information’ means any commercial, financial or technical information relating to the products, services, plans, know-how or trade secrets, which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
‘Contract’ means this agreement made between the Supplier and the Customer
‘Intellectual Property Rights’ means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:
(i) whether registered or not,
(ii) including any applications to protect or register such rights,
(iii) including all renewals and extensions of such rights or applications,
(iv) whether vested, contingent or future,
(v) to which the Supplier is or may be entitled and
(vi) in whichever part of the world existing;
‘Order’ means the Customer’s order for the Services from the Supplier as set out in the schedule below
‘Services’ means the services set out in the Order to be supplied by the Supplier to the Customer;
‘Specification’ means the description or specification for the Services set out in the Order;
‘Supply Location’ means the address for provision of the Services (if any) as set out in the Order;
‘Terms’ means the standard terms and conditions of business of the Supplier set out in this document;
‘Value Added Tax or VAT’ means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the supply of the Services;
1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract includes the Terms, the Order and its schedule (if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2 THE ORDER AND INCORPORATION OF THE TERMS
2.1 An Order will be deemed to be an offer to purchase Services from the Supplier on the Terms of the Contract.
2.2 Orders are not binding until accepted by the Supplier in writing. The Supplier reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.3 Estimates issued by the Supplier are valid for 15 Business Days from date of issue. Estimates will be deemed to be an invitation to treat by the Supplier to supply Services on and subject to the Terms, and do not constitute an offer to sell or supply. If the Customer wishes to purchase Services the subject of a estimate, it will need to place an Order.
2.4 Marketing and other descriptive matter relating to Services are illustrative only, and do not form part of the Contract. The Customer agrees that, in placing an Order, it has not relied on any representation or statement by the Supplier not set out in the Contract.
2.5 These Terms apply to and form part of the Contract for the supply of the Services by the Supplier to the Customer. They supersede any previously issued terms and conditions of supply.
2.6 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.7 No variation of the Terms or to an Order, or to a estimate from the Supplier will be binding unless expressly agreed in writing and executed by a duly authorised signatory of the Supplier.
3 PRICE AND PAYMENT
3.1 The price for the Services will be as set out in the Order or in default of such provision will be calculated in accordance with the Supplier’s standard scale of charges in force on the date of formation of the Contract.
3.2 The price:
3.2.1 does not include delivery or storage which will be charged in addition; and
3.2.2 does not include Value Added Tax which will be charged in addition at the then applicable rate. 3.3 The price and payment is due according to the schedule agreed with the customer prior to order being signed, once the schedule is agreed no amendments can be made other than circumstances covered in clause 11.
3.4 Services are charged on a time and materials basis at the Supplier’s then-current daily rates. The rates are calculated on the basis of an eight-hour day from 08.00 to 17.00 on a Business Day. For Services provided outside those times, the Supplier’s then current overtime rates will apply.
3.5 The Supplier may vary its rates and/or prices for Services from time to time. The Supplier will give the Customer not less than 30 days’ written notice of such variations. Where a proposed increase is unacceptable to the Customer, it may terminate the Contract on 20 days’ written notice to the Supplier. 3.6 Orders accepted by the Supplier at the time of notification of price variations under clause 3.5 will be fulfilled at the original prices estimated.
3.7 The Supplier will invoice the Customer upon completion of the Schedule. Invoices will include all information necessary to enable the Customer to check their accuracy.
3.8 The Customer will pay all invoices:
3.8.1 in full, without deduction or set-off other than as required by law, in cleared funds within 7 days of date of invoice
3.8.2 to the Supplier’s nominated bank account specified in the Order.
3.9 Where sums due hereunder are not paid in full by the due date:
3.9.1 the Supplier may retain the Car until the invoice and any interest is paid. If payment is not received within 60 days of the invoice the Supplier has the right to auction the Car and use the proceeds of such auction to settle its invoice together with the Supplier’s reasonable storage fees and administrative costs.
3.9.2 the Supplier may, without limiting its other rights, charge interest on such sums at 2% a year above the base rate of the Bank of England from time to time in force;
3.9.3 interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
3.10 VAT will be charged by the Supplier and paid by the Customer at the then applicable rate.
4 PROVISION OF SERVICES
4.1 The Supplier will provide the Services to the Customer in accordance with the Specification and or order.
4.2 The Services will begin on the Commencement Date and be performed until provision is complete or earlier termination of the Contract.
4.3 Whilst the Supplier will use reasonable endeavours to meet any milestone dates set out in the Order, such dates are approximate only, and time of performance is not of the essence.
4.4 The Supplier will not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event of Force Majeure or the Customer’s failure to perform its obligations under the Contract.
4.5 The Supplier may make any changes to the Services:
4.5.1 needed to comply with applicable law or safety requirements; or
4.5.2 which do not materially affect the nature or quality of the Services; and will notify the Customer in advance of such changes.
5 SUPPLIERS OBLIGATIONS
5.1 The Supplier will:
5.1.1 perform the Services using reasonable care and skill;
5.1.2 obtain and maintain all licences, permits and other consents required for its performance of the Services;
5.1.3 comply with all applicable laws and regulations;
5.1.4 observe all rules and regulations notified to the Supplier and in force at the Supply Location and other Customer sites; and
5.1.5 The supplier accepts liability for any loss or damage caused to the car while it remains on its premises, under normal contract conditions.
6 CUSTOMER'S OBLIGATIONS
6.1 The Customer will pay the price for the Services in accordance with the Contract.
6.2 The customer is responsible for all transportation in and out of the supplier premises, if the customer fails to remove the vehicle after the service contract has been completed the customer becomes liable for storage costs calculated at £5 per day over each 7 day period. The liability for damage becomes the responsibility of the customer during any and all storage terms.
6.3 The Customer will provide the Supplier such facilities, information and assistance (ensuring that information is complete and accurate) in each case as required to allow the Supplier to perform the Services.
6.4 The Customer will also:
6.4.1 co-operate fully with the Supplier and follow the Supplier’s reasonable instructions in relation to the performance of the Services;
6.4.2 obtain and maintain all necessary licences and consents for the performance of the Services;
6.4.3 keep all documents, equipment, materials and other Supplier property (Supplier Materials) at the Supply Location and at its own risk and in the same condition as they were in when supplied (fair wear and tear excepted); and
6.5 The Services are provided at the Customer’s request and the Customer is responsible for verifying that the Services are suitable for its own needs.
7 FAILURE OF OR DELAY IN PERFORMANCE
7.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):
7.1.1 may suspend performance of the Services until the Customer remedies its default;
7.1.2 will not be liable for any costs or losses sustained by the Customer as a result of such suspension; and
7.1.3 may charge the Customer (and the Customer will pay in accordance with the Contract) costs or losses incurred by the Supplier arising from the Customer’s default, subject to clause 8.
8.1 The Supplier does not exclude its liability:
8.1.1 for death or personal injury caused by its negligence; or
8.1.2 for defective products under the Consumer Protection Act 1987;
8.1.3 for fraud or fraudulent misrepresentation;
8.1.4 under any indemnity given by it hereunder.
8.2 The Supplier will be liable to the Customer for direct damage to tangible property in an amount which will equate to the exact worth of the repair at the time of damage per incident or series of related incidents caused by the failure of any Services, as supplied by the Supplier to the Customer, to comply with the Specification.
8.3 Neither party will be liable for:
8.3.1 loss of data or use;
8.3.2 any form of indirect, consequential or special loss; or
8.3.3 any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect; and, in each case, however arising.
8.4 Other than as set out above, the Supplier limits its liability (however arising) in respect of or in connection with the Services, and otherwise in connection with the Contract, to the actual valuation of the repair at the time.
Total Loss Liability
8.5 In the event that total loss to the car ensues while in the care of the supplier, the supplier will make recompense to the customer according to the value of the car at the time of event. Regular valuations and updates will be the responsibility of the supplier. This clause runs concurrent to clause 5:1.5
9 INTELECTUAL PROPERTY RIGHTS
9.1 Nothing in the Contract will affect the rights (including Intellectual Property Rights) in the Supplier Materials which are and shall remain vested in the Supplier.
9.2 To the extent that the Supplier Materials are used or incorporated into the Services then the Parties acknowledge and agree that the Customer is licensed to use the same upon the terms set out in clause 9.3.
9.3 The Supplier hereby grants to the Customer a royalty-free, worldwide licence, revocable only for breach by the Customer of the terms of the Contract, to use the Supplier Materials solely to the extent necessary to use the results of the Services. The Customer:
9.3.1 will not use the Supplier Materials for any other purpose;
9.3.2 will not modify or reverse engineer or take any similar action in relation to any propriety software of the Supplier (except so far as required for interoperability);
9.3.3 may sublicense its Affiliates to use the Supplier Materials on the terms of this clause 9.3, and provided that the Customer is liable for any breaches by them of such terms, but will not otherwise assign, sublicense or deal with the Supplier Materials;
9.3.4 hereby assigns to the Supplier, on their creation, all Intellectual Property Rights which arise or are created by any use by it of, or work done by it on, the Supplier Materials or the results of the Services.
9.3.5 The Supplier will defend or, at its option, settle any action brought against the Customer arising from any claim that the receipt by the Customer of the Services or use by it of the results of the Services, in both cases in accordance with the Contract, infringes any third party intellectual property right, and indemnify the Customer against all reasonable costs and expenses incurred by the Customer in connection with such claim.
9.3.6 The Supplier’s obligations under clause 9.3.5 will not apply to Services received, or where their results are modified or used, by the Customer other than in accordance with the Contract. The Customer will indemnify the Supplier against all reasonable costs and expenses incurred by the Supplier in connection with any claim arising from such receipt, modification or use.
9.3.7 The Supplier’s obligations under clause 9.3.5 are conditional on the Customer:
(a) promptly advising the Supplier in writing of any claim or action;
(b) making no admission as to, or settlement or compromise of any claim or action without the Supplier’s prior written consent;
(c) giving the Supplier sole conduct of any defence and any settlement negotiations; and
(d) co-operating fully with the Supplier at the Supplier’s expense and providing the Supplier with all reasonable assistance in the defence or settlement of such claim or action.
9.3.8 The Customer’s reasonable costs of compliance with clauses 9.3.7(c) and 9.3.7(d) will be paid by the Supplier.
9.3.9 The provisions of this clause 9 set out the Supplier’s entire liability and the Customer’s sole right in respect of third party infringement of any intellectual property right.
10.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
10.1.1 any information which was in the public domain at the date of the Contract;
10.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
10.1.3 is independently developed by the other party without using information supplied by the first party; or
10.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
10.2 This clause 10 will remain in force for a period of 3 years from the date of the Contract.
11 FORCE MAJUERE
11.1 Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel,
water, transport, equipment or telecommunications service; or material required by for performance of the Contract (ForceMajeure). Failure to pay or be paid is not Force Majeure.
11.2 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
11.2.1 promptly notifies the other of the Force Majeure event and its expected duration; and 11.2.2 uses reasonable endeavours to minimise the effects of that event.
11.3 If, due to ForceMajeure, a party:
11.3.1 is or will be unable to perform a material obligation; or
11.3.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days. The other party may, within 10 days, terminate this Agreement on immediate notice.
12.1 The Contract may be terminated forthwith at any time by either party on written notice to the other if:
12.1.1 the other commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within 10 days of written notice requiring that party to do so;
12.1.2 the other:
(i) suspends or threatens to suspend payment of its debts,
(ii) is unable to pay its debts as they fall due or
(iii) is unable to pay its debts (being a company) within the meaning of s 123 of the Insolvency Act 1986 or (being an individual) within the meaning of s 268 of the Insolvency Act 1986 or (being a partnership) there is any partner to whom any of the foregoing applies; 12.1.3 the other:
(i) negotiates with its creditors for rescheduling of its debts,
(ii) makes a proposal to or compounds with its creditors in respect of its debts or
(iii) makes an application to court for protection from its creditors generally;
12.1.4 the other passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the other, or a winding up order is made in relation to the other.
12.1.5 a receiver or administrative receiver may be or is appointed in relation to the other or any of its assets;
12.1.6 any creditor of the other attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the other’s assets, and such attachment or process is not discharged within 14 days;
12.1.7 the other takes or suffers any action similar to any of the above in any jurisdiction; 12.1.8 there is a material change in the management, ownership or control of the other;
12.1.9 the other suspends trading, ceases to carry on business, or threatens to do either; 12.1.10 the other (being an individual) dies or ceases to be capable of managing his own affairs; or
12.1.11 the other is subject to an event of Force Majeure under clause 11.
12.2 In addition to its rights under clause 12.1, the Supplier may terminate the Contract at any time: 12.2.1 on 14 days’ written notice to the Customer;
12.2.2 immediately on written notice to the Customer if the Customer has failed to pay any amount due under the Contract within three Business Days of the due date.
12.3 On termination of the Contract for any reason:
12.3.1 the Customer will within 3 Business Days pay all invoices of the Supplier then outstanding and not disputed in good faith;
12.3.2 the Supplier will, within 3 Business Days, invoice the Customer for all Services provided but not yet invoiced and the Customer will pay such invoice within a further 30 Business Days (unless the invoice is disputed in good faith);
12.3.3 the accrued rights and liabilities of the parties will not be affected; and
12.3.4 clause which expressly or by implication are to survive termination will do so.
13.1 Time Unless stated otherwise, time is not of the essence of any date or period specified in these Terms.
13.2 No set-off All payments by the Customer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any
such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
13.3 Relationship The parties are independent and not principal and agent, partners, or employer and employee.
13.4 Severability If any part of these Terms are found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Terms and the remaining provisions of the Terms will otherwise remain in full force.
13.5 Notices - Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
13.5.1 by first-class post: two Business Days after posting;
13.5.2 by airmail: seven Business Days after posting; and
13.5.3 by hand: on delivery
13.6 Waiver No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
13.7 Rights of Third Parties The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
13.8 Priority These Terms prevail over those of the Order or Schedule (if any).
13.9 Entire Agreement The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
13.10 Succession The Contract will bind and benefit each party’s successors and personal representatives.
13.11 Governing Law & Jurisdiction
13.11.1 The Contract will be governed by the law of Scotland.
13.11.2 Disputes will be submitted to the exclusive jurisdiction of the courts of Scotland
I have read, understand and agree to the above terms and conditions
Kinkell Classic Cars · VAT Number: 159 6471 70