Modular Space Solutions Ltd Terms & Conditions of Business
“The Company” means Modular Space Solutions Ltd & employees
“The Client” means you or your representative
“Health & Safety” refers to all Health & Safety Guidelines laid out by the Health and Safety Executive.
2. Basis and Terms of Trading
2.1 These conditions are specific to the Client and may not be assigned without the prior consent of the Company. They shall apply to all contracts for the sale of goods and / or the supply of services by the Company to the Client to the exclusion of all other terms and in any order or request for the supply of goods and / or services made by the Client.
2.2 No variation of these conditions shall be binding unless agreed in writing and signed by the Company’s authorised representative. This document contains the entire terms and conditions of the agreement between us unless otherwise stated in writing.
2.3 As part of the provision of services, the Company may engage the services of an independent contractor. Other than in relation to the delivery of goods, the identity of the contractor will be notified to the Client by the Company.
3.1 Prices quoted are valid for 30 days only, or until earlier acceptance by the Client after which time they may be altered by the Company giving notice to the Client. The Company reserves the right, by giving notice to the Client at any time before delivery, to increase the price of the Goods to reflect an increase of the costs to the Company which is due to any factor beyond the control of the Company. Upon receipt of any notice of increase in price, the Client shall notify the company of any intention not to continue to purchase the goods in writing within 14 days of receipt of notice. In the absence of such notification by the Client, goods delivered by the Company are deemed to be accepted by the Client at the price shown on the invoices.
3.2 Prices are exclusive of, but subject to VAT at the current rate.
3.3 No work will be undertaken without receipt of signed authority and purchase order numbers or Insurance Claim reference numbers where applicable.
4.1 Whilst every effort will be made to supply goods and services and/or carry out repairs as expeditiously as possible, the majority of work is subject to various industry conditions:
a) Materials and parts being delivered by suppliers and manufacturers.
b) Climate conditions.
d) Site Rules & Regulations, inc. site access restrictions
e) Current commitments and staff/contractor availability.
4.2 On this basis the Company will not give definite timescales or be influenced by Client deadlines or requirements. Any timescales given in the course of negotiation or correspondence are estimates and are not binding.
5. Payment and Charges
5.1 Payment for goods/services may be requested in advance unless otherwise agreed at the discretion of the Company. All deposits are deemed as forfeit deposits in accordance with current trading standards guidelines on the supply of bespoke goods.
5.1 Payment of invoices should be made strictly within 30 days or as specified in advance in writing.
5.2 Payment should be made to Modular Space Solution Ltd. except for invoices which have been assigned to a Factoring Facility. Please refer to invoice for full payment instructions.
5.3 All insurance related transactions must be paid for directly by Insurance Company to The Company or assigned Factoring Facility if applicable, and Clients must sign relevant documents authorising as such.
5.4 Payments which remain overdue following standard credit control procedures will automatically result in the instigation of Legal proceedings.
5.5 Continued failure to comply with agreed terms may result in future contracts being on Pro-Forma basis and in extreme cases, future requests for quotations or work being declined by the Company.
5.6 All goods/ services remain the property of The Company until full payment is received.
5.7 The Company reserves the right to make charges for any occasions when appointments are missed by the Client or access to premises is denied or impossible for any reason other than as a result of our negligence.
6. Retention of Title
6.1 Goods supplied by the Company shall be held at the Client’s risk immediately on delivery to the Client or into custody on the Client’s behalf and the Client should therefore be insured accordingly. Property in goods supplied hereunder will pass to the Client when they have been paid for in full and shall not pass upon delivery or collection. Until payment in full has been received by the Company, the Client shall hold the goods in a fiduciary capacity for the Company in a manner which enables them to be identified as the property of the company and the Client shall immediately return the Goods to the Company on request.
6.2 The Client’s right to possession of the goods shall cease in the event of the Client becoming insolvent or bankrupt or the subject of Administration, or if circumstances arise which would entitle any person to petition of the Client’s winding up or bankruptcy, or if any Statutory Demand is served upon the Client, or if the Client makes any arrangement with its creditors which is in the alternative to being made insolvent or bankrupt.
6.3 The Client grants the company an irrevocable licence to enter at any time any vehicles or premises owned or occupied by the Client or in its possession of the purpose of repossession and removing any such Goods the property in which has remained in the Company under clause 6.1 hereof. The Company shall not be responsible for, and the Client will indemnify the Company, against liability in respect of damage caused to such vehicles or premises in such repossession and remove being damage it was not reasonably practicable to avoid.
6.4 The Client must ensure that if the Goods are or become affixed to any land or building they shall be capable of being removed without material injury to such land or building and to take all the necessary steps to prevent title to the Goods from passing to the landlord of such land or building. The Client warrants to report, and make good any damage caused by the affixation of the Goods to, or their removal from, any land or building and to indemnify the Company against all loss damage or liability it may incur or sustain as a result of such affixation to removal.
6.5 Notwithstanding clause 6.4 hereof, the Client shall be permitted to sell the Goods to third parties in the normal course of business. In this respect the Client shall act in the capacity of a Commission Agent and the proceeds of any such sale shall be held in trust for the company in a separately identifiable bank account.
7. Delivery and Storage of Goods and Services
7.1 Unless otherwise stipulated in writing, delivery of the goods shall be made by the Client collecting the goods from the Company’s premises where the goods have been stored or by the Company making delivery of the goods to the Client or into custody on the Client’s behalf. Any dates quoted for delivery of the goods are approximate only. The Company shall not be liable for any delay in delivery. The time for delivery shall not be of the essence of the agreement. The Company may undertake the provision of Services in instalments and in these circumstances each instalment shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the contract as a whole as repudiated. The company’s liability (if any) for late or non-delivery of goods/services shall be limited to the price of those goods/services not delivered. The Company will not be liable to any claim for consequential loss or damages in these circumstances.
7.2 If goods are delivered to the Client or to a location at the direction of the Client, the Client will ensure that the delivery note which accompanies the goods will be signed by the Client or representative of the Client authorised to sign for and on behalf of the Client. Failure to sign a delivery note on delivery may result in the company declining to deliver the goods in which case clause 7.3 shall apply.
7.3 If the Client does not take or accept delivery of the goods or gives inadequate delivery instructions (other than for reasons beyond the Client’s controls) or does not sign or have signed the delivery note on delivery then the Company may store the goods until actual delivery and claim the reasonable charges (including insurance) of storage or sell the goods at the best price readily obtainable and charge for any shortfall below the price under the contract.
7.4 If the Company has agreed to deliver the goods to the Client’s premises or place of operations then the Client is responsible for providing a safe means of access from the public highway to the place of delivery. If the Company’s elected delivery driver considers that access is unsafe then the Company will not deliver until safe access is provided. If the Company is unable to deliver the goods due to there being no safe means of access then it may store or sell them and charge the Client in accordance with clause 5.3 of this Agreement.
7.5 For so long as the retention of title clause applies to the goods, notwithstanding clause 6.5 hereof, the Client shall store and keep the goods properly and in accordance with instructions of the Company and the manufacturer and shall in any event keep all materials supplied in a dry place, stacked flat, raised from the ground and property protected from the weather and kept separate and distinct from the goods and products of any other supplier.
8. Claim for Defects
8.1 The Client shall inspect the goods or services provided and shall within five working days notify the Company in writing of any alleged defect, shortage in quantity, damage or failure to comply with description or specifications (save where such defect is not reasonably apparent from an initial inspection). Insofar as is reasonably practicable, inspection of the goods shall be undertaken without the removal of delivery packaging. If the Client fails to comply with these provisions the goods shall be presumed to be in accordance with the contract and free from any defect or damage which will be apparent on a reasonable inspection of the goods and the Client shall be deemed to have accepted them.
8.2 The Client must insure against any costs claims or demands arising from the Client’s obligation to any third party and due indirectly or directly to any defects or delays in the Goods or materials supplied or work done by the Company, and will indemnify the company in respect thereof. Goods manufactured to the design or specification of the Client, are produced without warranty of any kind except their compliance with the design or specification.
8.3 The Client will fully indemnify the Company in respect of any claim costs or expenses losses or demands resulting there from including the infringement of any intellectual property rights resulting from the Company’s use of the said design or specification. Any design and advisory services (including the preparation of drawings specifications and contract particulars) shall be provided by the Company with reasonable skill and care but no other representation or undertakings are made or can be implied in connection therewith.
9. Warranty, Specification and Fitness for Purpose
9.1 Subject to clause 7 hereof the Company may, at its complete discretion, offer a warranty/guarantee in respect of particular goods. Details of any warranty/guarantee shall be provided by the Company upon request. The company’s obligations under warranty are limited to repairs, replacement on an exchange basis or refunding the costs of the goods/services or those parts of the goods/services, which are defective. The Company does not give a warranty in respect of services supplied by any contractor engaged by the Company.
9.2 The goods/services are supplied on the basis that they conform to the written descriptions contained on the order or confirmation where supplied. Pictures and drawings in any catalogues are for illustrative purposes only. Because many of the Company’s goods are made from timber or other natural products, no warranty can be given that they will be the same in all material respects as any sample, and they are therefore subject to variation of shade, colour and texture.
9.3 As the Company’s goods have many individual applications, the Client agrees to inspect the goods and confirm that they are fit and suitable for the particular intended purpose and are of appropriate quality. The Company gives no warranty that the goods are fit for any particular individual purpose, although does warrant that they are fit for the general purpose which is obvious from the very nature of the goods themselves. The Company shall be under no liability in respect of any defect in the goods arising from any drawings, design or specification supplied by the Client. The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failing to follow the instructions, misuse or alteration or repair of the goods, failing to store the goods in appropriate conditions or any breaches of the provisions of clause 9.4 hereof.
9.4 For the period of this warranty. The Client agrees to store and keep the goods properly and in accordance with instructions of the manufacturer, keep all goods in a dry place, stacked flat, raised from the ground and properly protected from the weather, without limitation, all un-primed wood must be treated and primed immediately after delivery and receive further coats of paint within a reasonable time; any treated surface subsequently cut shall be treated before joinery is fixed in position. The Company does not accept liability for any swelling due to the presence of excessive moisture or other neglect or to any failure to store or use supplied as directed by the manufacturer or the Company.
10.1 We shall not be liable if a Supplier provides wrong or faulty goods.
10.2 We shall not be liable for any failure to carry out any of our obligations under this Agreement caused by any circumstances beyond our control.
10.3 We shall not be liable for any failure by Suppliers or any other person offering any benefits/incentives to meet their obligations/commitments to you.
10.4 We shall not be liable for any future issues caused by non-compliance or disregard for advice/instructions (especially Health & Safety) provided by us.
10.5 We shall not be liable for any failure by “sub-contractors” brought in by The Company, who do not fulfil their obligations as directed in any quotation.
10.6 We shall not be liable for any issues arising from non-compliance of instructions/recommendations as directed in any quotation.
If the Client shall fail to perform any of its contractual obligations hereunder; fail to make payment on a due date; commit any act of bankruptcy or a receiver is appointed over its business undertaking or assets or has entered into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction of a solvent limited company); cease to trade or threaten to cease to trade; have exceeded its credit limit with the Company or the company has any reason to have serious doubts as to the Client’s solvency then the Company shall be entitled without notice and without prejudice to its other remedies in the conditions to suspend or cancel the further performance of this Contract and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Data Protection and Confidentiality
12.1 The Client warrants that it is and will at all times remain fully registered as a Data Controller within the meaning for the Data Protection Act 1998 (and all amendments) and will ensure at all times that it complies with the effects of and the processes under the Act when dealing with personal data including by not limited to personal data of any third party.
12.2 The Client shall not disclose to any third party the pricing policy or structure employed by the Company and in particular shall not disclose any information relating to any discount or promotional offer by the Company without having obtained prior written approval from the Company. Breach of this clause shall entitle the company to damages equivalent to the discount received by the Client during the course of trading.
13. Notices and Communication Changes in the Information Supplied by the Client
13.1 The Client agrees to accept services of notices and communication from the company, to include, without limitation, product and offer notifications, accounts and payment notifications and reminders and will accept formal service by all of the following methods; post by any class and recorded delivery, fax, e-mail, telephone call and text message.
13.2 The Client must inform the Company in writing of any change of name, trading status or any change in contact details contained within the trade account and must be able to provide copies of such request as evidence in any dispute that may arise out of such changes notwithstanding the fact that acceptance of any changes for the purpose of continued trading and use of the trade account will be at the sole discretion of the Company.
14. The Environment
14.1 In compliance with new Environmental Guidelines, a charge will be applicable for the disposal of recyclable products at designated sites. (Full Environmental Policy Statement available upon request).
14.2 Modular Space Solutions Ltd. will endeavour to use environmentally friendly products wherever it is not at the detriment of the quality of the work carried out.
15. Legal Communication
This Contract is subject to the laws of England and Wales and all disputes arising out of this Contract, subject to exclusive jurisdiction of the courts of England and Wales.
16. Future Goods
16.1 The Client acknowledges that the contract may be a contract for future goods.
16.2 Where the contract is for a sale of future goods:
(a) The Client acknowledges that the description of the goods agreed to by the parties in the course of negotiation and dealing, which may be appended as a schedule to this agreement, is accurate.
(b) The Client agrees that the risk on the goods shall transfer to the Client on actual delivery, whether or not the Client is on notice of the delivery and regardless of the transfer of title (clause 6). The Client shall be responsible for the proper storage of the goods from the point of delivery.
16.3 The Client shall have a maximum of 14 days to check that the goods conform to the description. If the goods are found not to conform to the description the Client must notify the Supplier in writing within the 14 days period . The Client shall have the right to refuse delivery and the right to return the goods. It shall be the responsibility of the Company to arrange inspection and collection of the goods within 14 days of the notice.
16.4 If the either party becomes insolvent or goes into liquidation, future goods or services may be cancelled without incurring any liability and provide that all outstanding sums fall due immediately.
17. Non Circumvention and Recruitment of The Company’s Staff
17.1 The Client undertakes that they will not circumvent or attempt or cause to circumvent, avoid, by-pass or obviate either directly or indirectly through any third party, by entering into negotiations, business transactions or ventures with third parties in a manner that results in the loss of actual or potential business opportunity, fees or revenue for the Company. In the event of circumvention of this Agreement by The Client, whether directly or indirectly, The Company shall be entitled to a legal monetary penalty equal to maximum considerations or fees or commissions as reasonably determined by a court of competent jurisdiction plus any or all related expenses or costs incurred to recover the lost revenue.
17.2 The Client undertakes that it (including for this purpose any subsidiary or associated company) or any person connected with it will not directly or indirectly recruit as an employee or engage as an independent contractor any person employed or so engaged by The Company in connection with the services provided hereunder for a period of six months after such person last provided services to the Client.
17.3 In the event that the Client is in breach of this clause, the Client and The Company agree and the Client will pay liquidated damages of a sum equal to 33% of the annual remuneration or payment and any other benefits payable to the relevant individual by The Company at the rate payable during the week immediately prior to such individual ceasing to provide services to The Company.
18.1 The Company undertakes not at any time to divulge or allow to be divulged to any person any confidential information relating to the business or affairs of the Client other than to sub-contractors who have signed an appropriate secrecy undertaking or others where the Client has expressly or impliedly consented to the disclosure.
18.2 The Client shall not disclose to any third party the pricing policy or structure employed by the Company and in particular shall not disclose any information relating to any discount or promotional offer by the Company without having obtained prior written approval from the Company. Breach of this clause shall entitle the company to damages equivalent to the discount received by The Client during the course of trading.
19.1 The Company is expressly entitled to delegate any of the Company’s obligations hereunder without consulting the Client.
19.2 The Company shall have discretion as to which of its employees are assigned to perform its services but shall consult with the Client concerning any significant changes.
20 Liability and Insurance
20.1 The Company shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence or other failure of The Company to perform its obligations under this agreement or the general law.
20.2 The Company shall have no liability to the Client for any indirect, special or consequential loss to the Client arising out of or in connection with the provision of any goods or services pursuant to this agreement (except in respect of death or personal injury resulting from negligence). The total liability of The Company for any other loss of the Client arising pursuant to this agreement in respect of any one event or series of connected events shall not exceed the charges payable by the Client in respect of The Company’s services hereunder, or the indemnity cover (if any) arranged pursuant to the engagement.
21 Good Faith
The Client agrees to act at all times in good faith and to give truthful and accurate responses to the Company’s reasonable enquiries in order to permit perform their duties as efficiently as possible.
If the Client shall commit a serious or persistent failure to perform any of its contractual obligations hereunder; fail to make payment on a due date; commit any act of bankruptcy or a receiver is appointed over its business undertaking or assets or has entered into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction of a solvent limited company); do or commit any act by which The Company’s rights in any intellectual property may be prejudiced or put in jeopardy; cease to trade or threaten to cease to trade; have exceeded its credit limit with the Company or the company has any reason to have serious doubts as to The Client’s solvency then the Company shall be entitled without notice and without prejudice to its other remedies in the Conditions to suspend or cancel the further performance of this Contract and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. All deposits for bespoke work and services are to be deemed forfeit deposits for the purpose of the contract.
23 Consequences of Termination
In the event of this agreement being terminated whether by effluxion of time, notice, breach or otherwise and without prejudice to any other remedy available to The Company the Client shall immediately pay to The Company any sums due under the terms of this agreement.
24 The Client’s Intellectual Property
The Company undertakes not to cause or permit anything which may damage or endanger the intellectual property of the Client or the Client’s title to it or assist or allow others to do so.
25 The Company’s Intellectual Property
25.1 All intellectual property rights including copyright which are capable of existing in any documents, computer software or information or (without limit) other materials created or provided pursuant to this contract by The Company shall be and remain The Company’s property.
25.2 The Client undertakes to keep all materials, documents and information provided to it by The Company confidential to itself and its employees and not to distribute any product of the services provided hereunder to any third party without The Company’s prior written consent.
25.3 Any materials produced or supplied to the Client by The Company in which intellectual property rights are capable of subsisting shall be licensed to the Client for internal use only in connection with the purposes of the terms of reference and such licence shall forthwith terminate if notice is given by The Company terminating this contract pursuant to clause 12.
25.4 The Client and The Company undertake with each other not during the course of this contract to infringe the intellectual property rights of any third party.
26 Consultant’s References to Client
Subject to clause 7 (Confidentiality) The Company shall be entitled to refer to its provision of services to the Client for any purpose in connection with The Company’s business provided that prior to any published reference to the Client The Company shall give the Client an opportunity to object to such reference and in the event of objection upon reasonable grounds shall not refer to the Client as proposed.
27 Communication and Changes in Client Contact Details
The Client agrees to accept services of notices and communication from the company, to include, without limitation, product and offer notifications, accounts and payment notifications and reminders and will accept formal service by all of the following methods; post by any class and recorded delivery, fax, e-mail, telephone call and text message.
Each of the parties warrants its power to enter into this agreement and has obtained all necessary approvals to do so.
28.2 Whole agreement
Each party acknowledges that this agreement (as varied) and the conditions contain the whole agreement between the parties and that it is not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
28.3 Change of address
Each of the parties shall give notice to the other of the change or acquisition of any address or telephone, telex or similar numbers at the earliest possible opportunity but in any event within 24 hours of such change or acquisition.
Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery or registered post to the address of the relevant party shown at the head of this agreement or such other address substituted in writing under clause 28.3 (and if more than one address any such address) or by facsimile transmission or by electronic mail or by telex and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by facsimile transmission or by electronic mail or by telex to the correct facsimile number or electronic mail number of the addressee (with correct answer back).
Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
28.6 Joint and several
All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this agreement shall include all genders and the plural and the successor in title to the parties.
Failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this agreement shall not be a waiver of them or the right at any time subsequently to enforce all terms and conditions of this agreement.
If any provision of this Agreement is or at any time becomes to any extent invalid, illegal or unenforceable under any enactment or rule of law, then that provision shall apply with whatever deletion or modification is necessary so that the said provision is valid, legal and enforceable and gives effect to the commercial intent and purpose of the Parties under this agreement.
28.9 Force majeure
Both parties shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of this agreement impossible, whereupon all money accrued due under this agreement shall be paid.
The Company is entitled to vary the terms of this agreement from time to time by giving notice in writing to the Client.
In the event of any dispute arising between the parties in connection with this agreement, the parties will in good faith seek to resolve that dispute through mediation. The mediator shall be agreed upon within seven days of one party requesting mediation. Unless otherwise agreed, the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days or one of the parties refuses to participate in mediation, the dispute shall be resolved by way of litigation. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary nor shall The Company be precluded from issuing proceedings or taking any other step in relation to the non-payment of monies due.
30.1 Nothing that the Company does, says, states or otherwise communicates may be construed as legal advice under any circumstances. The Company does not and is not competent to offer legal advice. The company may refer the Client to appropriate legal advisors, but the Company accepts no liability for the consequences of their advice.
30.2 The Company is not regulated by the Financial Services Authority and nothing that the Company does, says, states or otherwise communicates may be construed as financial advice under any circumstances. The Company does not and is not competent to offer financial advice. The company may refer the Client to appropriate financial advisors, but the Company accepts no liability for the consequences of their advice.
31.1 The Company shall not be liable if a supplier provides wrong or faulty goods, services or information
31.2 The Company shall not be liable for any failure to carry out any of our obligations under this agreement caused by any circumstances beyond our control.
31.3 The Company shall not be liable for any failure by suppliers or any other person offering any benefits or incentives to meet their obligations or commitments to you.
31.4 The Company shall not be liable for any future issues caused by non-compliance or disregard for advice or instructions (especially Health & Safety) provided by The Company.
31.5 The Company shall not be liable for any failure by any third parties brought in by The Company, who do not fulfil their obligations as directed in any quotation.
31.6 The Company shall not be liable for any issues arising from non-compliance of instructions /or recommendations as directed in any quotation.
32.1 This agreement shall be governed by English and Welsh law in every particular including formation and interpretation and shall be deemed to have been made in England.
32.2 Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in England or Wales.
32.3 The submission by the parties to such jurisdiction shall not limit the right of The Company to commence any proceedings arising out of this agreement in any other jurisdiction it may consider appropriate.
32.4 Any notice of proceedings or other notices in connection with or which would give effect to such proceedings may without prejudice to any other method of service be served upon any party in accordance with clause 18.4.
32.5 In the event that the Client is resident outside England, its address for service in England shall be the address for such service nominated in this agreement and any time limits in any proceedings shall not be extended by virtue only of the foreign residence of the Client.
33 The Environment
33.1 In compliance with new environmental guidelines, a charge will be applicable for the disposal of recyclable products at designated sites. (Full Environmental Policy Statement available upon request).
33.2 The Company will endeavour to use environmentally friendly products wherever it is not at the detriment of the quality of the work carried out.