PREMIER PROPERTY SOLUTIONS (LANARKSHIRE) LIMITED

TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

 

These are the conditions of purchase, under which the following customer (“Customer”) agrees to purchase services from Premier Property Solutions (Lanarkshire) Limited registered in Scotland with company number SC530607 and having its registered office at 1 Cambuslang Court, Cambuslang Glasgow G32 8FH (“Supplier”):

It is hereby acknowledged and confirmed that, unless otherwise agreed by the Supplier in writing, all orders (including future orders) for the supply of services to the Customer by the Supplier are subject to the terms and conditions set down in the following thirteen (13) pages (“Conditions”). An “Order” by the Customer shall be a contract created by the Customer’s acceptance of a “Quotation” as defined in clause 1 of the Conditions, and that Order and Quotation shall incorporate the Conditions by reference. Any other requirements of the Customer shall be deemed to form part of the Conditions for that Order, but otherwise no other terms and conditions will apply (including any Customer’s terms and conditions or those implied by trade, custom, practice course or dealing and whether circulated prior to or after an Order).

 

These Conditions shall apply to all Orders between the Supplier and the Customer.

 

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

 

  1. Interpretation

    • The following definitions and rules of interpretation apply in these Conditions.
    • Definitions:

 

Applicable Lawshas the meaning given to it in clause 7.4(a).
Business Daymeans a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Glasgow are open for business.
Chargesmeans the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Datemeans the date a Quotation is accepted by a Customer.
Conditionsmeans these terms and conditions as amended from time to time in accordance with clause 11.5.
Contractmeans the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Controlmeans shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customermeans the person or firm who purchases Services from the Supplier.
Customer Defaulthas the meaning set out in clause 4.2.
Data Controllerhas the meaning given to it in the Data Protection Legislation.
Data Processorhas the meaning given to it in the Data Protection Legislation.
Data Protection Legislation(i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Deliverablesmeans all documents, products, materials developed by the Supplier or its agents, contractors, sub-contractors and employees as part of or in relation to the Services in any form or media, and including all deliverables set out in the Quotation.
Intellectual Property Rightsmeans patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.
Late Payment Compensationmeans the fixed sum that the Supplier is entitled to charge the Customer in respect of each individual Qualifying Debt, in accordance with section 5A of the Regulations.
Late Payment Interestmeans the statutory interest in relation to a Qualifying Debt in accordance with section 4 and section 6 of the Regulations.
Ordermeans the Customer’s order for Services, which shall be created by the Customer’s acceptance of a Quotation, and which shall incorporate these Conditions.
Personal Datahas the meaning given to it in Data Protection Legislation.
Preparation

means (in advance of the first coating of paint):

a)         carrying out minor filling of pinholes;

b)         lightly sanding (excluding mechanical sanding) the surface; and

c)          caulking up to a maximum of a 1mm gap between wall and skirting or facings.

Qualifying Debthas the meaning given to it in section 3 of Regulations.
Quotationmeans an offer to supply the Services by the Supplier to the Customer, and shall include details of any materials to be used in the provision of the Services, any related plans, drawings, diagrams, patterns, data, measurements or other information, together with any relevant Charges or charging rates, such Quotation to be sent out by e-mail, or in writing, to the Customer by the Supplier after the Supplier has carried out a site survey for the purposes of assessing what Services are required.
Rectification Workshas the meaning given to it in clause 3.7.
Regulationsmeans the Late Payment of Commercial Debts (Interest) Act 1998, as amended by the Late Payment of Commercial Debts (Scotland) Regulations 2013/77 and the Late Payment of Commercial Debts (Scotland) Regulations 2015/226 (as amended or replaced from time to time).
SDF Standardmeans the Scottish Decorators’ Federation standards for the provision of decorating services, which can be found at http://scottishdecorators.co.uk/members-page/how-do-i-join/code-of-conduct/, as updated or replaced from time to time and as in force at the date of the Quotation.
Servicesmeans the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Quotation.
Services Sitemeans the site at which the Services are being performed by the Supplier.
Snagmeans a matter which may reasonably be considered a minor, immaterial fault or defect, and which is capable of prompt rectification by the Supplier without undue or unproportional effort, and that has been notified to the Supplier by the Customer in accordance with clause 3.3.
Statutory Periodmeans the period in which the Supplier become entitled to charge the Customer Late Payment Interest in respect of a Qualifying Debt, in accordance with section 4 of the Regulations.
Suppliermeans Premier Property Solutions (Lanarkshire) Limited registered in Scotland with company number SC530607 and having its registered office at 38 Islay Way, Coatbridge, Lanarkshire ML5 5DY.
Supplier Materialshas the meaning set out in clause 4.1(l).

 

  • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
  • Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • A reference to writing or written includes fax and email (unless stated otherwise in these Conditions).

 

  1. Basis of contract
    • A Quotation is only valid for a period of 30 Business Days from its date of issue. The Quotation shall be deemed to be accepted by the Customer when the Customer has confirmed to the Supplier its acceptance of the Quotation.
    • In the event that the Supplier does not receive: (a) confirmation of the Customer’s acceptance of the Quotation from the Customer; or (b) a signed copy of the Conditions, but the Customer (or any of its associated companies) continues to work with the Supplier, then the Supplier shall assume that the Customer has accepted the Quotation and is in agreement with these Conditions.
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
  2. Supply of Services
    • The Supplier shall supply the Services to the Customer in accordance with the Quotation in all material respects, and to the ordinary standard of care and workmanship of a provider of the Services (and to the extent that the Services which involve painting and decorating, that standard of those Services shall be the SDF Standard). Any Preparation of surfaces at the Services Site shall be specified in the Quotation. Where additional Preparation is needed in the course of providing Services, the Supplier shall be entitled to charge accordingly for that Preparation.
    • Subject always to clause 3.6 and 3.7, and subject to written notice having been given to the Supplier by the Customer within the period from completion of the Services up to and including three months from the date of completion of the Services, if the Supplier fails to provide the Services in accordance with its obligations in clause 3.1, then the Customer accepts and acknowledges that its sole remedy shall be to require that the Supplier rectifies such part of the Services as required in order that the Supplier becomes compliant with its obligations in clause 3.1.
    • In addition to clause 3.2, but subject always to clause 3.6 and clause 3.7, and subject to written notice having been given to the Supplier by the Customer within the period from completion of the Services up to and including two Business Days of the date of completion of the Services, such notice to include:
      • full details of any Snag(s);
      • an acknowledgement from the Customer that Snags are to be expected in the provision of the Services;
      • an acknowledgement from the Customer that a Snag shall not in and of itself constitute a breach of clause 3.1, or of any other provision of these Conditions,

 

the Customer may require that the Supplier rectifies any Snag(s).

 

  • Subject always to clause 4.2, the Supplier shall use its reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
  • The Supplier reserves the right to amend the specification in the Quotation if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
  • The Supplier shall not be liable under clause 3.2 or clause 3.3 where:
    • the Customer (or any person connected to the Customer, including but not limited to any employee, sub-contractor or other person engaged by the Customer) has failed to comply with its obligations set out in clause 4.1;
    • the defect, deficiency, Snag or damage is not solely attributable to the Supplier;
    • the defect, deficiency, Snag or damage is caused by, results from or is attributable to any defective or unusual surface material used at the Services Site; or
    • the defect, deficiency, Snag or damage results from circumstances that are out with the Supplier’s control, including (but not limited to) defects or damage resulting from: vandalism; accidental damage; the work of other suppliers or tradesmen; moisture penetration; water ingress; surface contamination; settlement; cracking; shrinkage; efflorescence to plasterwork; moving wall fittings; light switches; sockets; pipes; or any ill-fitting finishes.
  • Where the Supplier is to rectify: (i) any part of the Services in accordance with clause 3.2; or (ii) a Snag in accordance with clause 3.3 (“Rectification Works”), then:
    • the Customer shall provide a written instruction to the Supplier in respect of the Rectification Works;
    • the Customer accepts and confirms that these Conditions shall apply to the Customer’s written instruction and to the Rectification Works to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing the Customer’s written instructions;
    • the Rectification Works shall be performed by the Supplier in normal working hours only, which shall mean between 8.00 am to 4.30 pm on Business Days; and
    • the Supplier shall be obliged to carry out such Rectification Works only once, and where the Customer provides a list of Snags, the Customer confirms that there shall be no more than one definitive list of Snags.
  • The Supplier shall not stipulate, nor recommend any materials, products, parts or paint (e.g. wipe clean paint) to be used in the provision of Services unless the Supplier is expressly requested to do so by the Customer and, in which case, the Supplier shall not be liable for any guidance or recommendation.
  • The Supplier shall not supply any additional guarantee, warranty or representation in respect of the materials, workmanship, installation or any other matter in connection with the Services. If the Customer wishes to benefit from a manufacturer, painter, or product guarantee, then clause 4.1(o) applies.

 

  1. Customer’s obligations
    • The Customer shall:
      • ensure that the terms of the Quotation are complete and accurate and wholly reflect its requirements;
      • co-operate with the Supplier in all matters relating to the Services;
      • provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier, including (but not limited to) sufficient lighting, heating and water. Where these facilities cannot be made available by the Customer, they shall notify the Supplier accordingly, and the Supplier may (at its sole discretion) amend the price stated in the Quotation to take account of the cost of providing such facilities;
      • provide the Supplier with such information, labour, equipment and materials as the Supplier may reasonably require in order to supply the Services, including (but not limited to) informing the Supplier of any rotten or defective substrates prior to the commence of the Services;
      • prepare the premises for the supply of the Services to ensure that the Services can be performed efficiently and safely by the Supplier. It shall be the responsibility of the Customer to remove of all goods, stock, equipment and furnishings from the Services Site in which the Supplier is carrying out the Services, and to take all precautions to protect the same. The Supplier shall not be responsible for the failure of the Customer to do so;
      • ensure that (prior to the commencement of the Services) all surfaces at the Services Site have been prepared for the provision of Services. In this connection, the Supplier shall be entitled to assume that:
        • there exists no more than a 1mm gap between any wall and skirting or facings;
        • all medium density fibreboard (MDF) has been screwed and plugged;
        • all raw MDF edges have been sanded by a suitably qualified joiner;
        • all plasterboard joints are tapered edge;
        • all plasterboard is free of popping nails;
        • there are no hammer marks on the surfaces;
        • all taping and fire taping has been carried out;
        • there are no ill-fitting finishes that may require caulking by the Supplier;
        • a mist coat has been applied to the surfaces for the purposes of highlighting any imperfections;
        • all cross joints have been staggered in line with manufacturer’s instructions;
        • any and all signage, displays and notices have been removed; and
        • all personal belongings and valuables have been removed,

 

and if any of the above assumptions are incorrect, then the Supplier may amend the price stated in the Quotation to take account of any additional time or work required in order to perform the Services;

 

  • ensure that all works undertaken prior to the provision of Services by the Supplier are free from any defects and damage, and have been carried out in accordance with best industry practice and in accordance with all applicable regulations, recommendations and legislation including, but not limited to, health and safety legislation;
  • obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  • provide the Supplier with all necessary information required for the purposes of completing the Services, including but not limited to the colour and type of paint, products and materials to be used in the Services. The Supplier shall not be liable for any defect, inaccuracy or other matter in connection with the paint, products or other materials used in the provision of the Services (including, but not limited to, in connection with its colour, texture, installation, design, quality, or durability);
  • maintain in force adequate insurance to provide cover as required by law or in respect of any foreseeable liability which may arise in connection with the Contract including professional indemnity or errors and omissions cover. The Customer shall, on the Supplier’s request, produce the insurance certificate giving details of such cover. The Customer shall notify the Supplier immediately on any notice of termination of such insurance cover;
  • comply (and shall procure that all persons connected to, or engaged by or on behalf of the Customer shall comply) with best industry practice and in accordance with all applicable regulations, recommendations and legislation including, but not limited to, health and safety legislation;
  • keep all materials, equipment, documents and other property of the Supplier (“Supplier Materials”) at the Customer’s premises in safe custody at its own risk. The Customer shall keep the Supplier Materials separately from all other goods and materials held by the Customer so that they remain readily identifiable as the Supplier’s property. The Customer shall maintain the Supplier Materials in good condition until they are returned to the Supplier, including (but not limited to) protecting the Supplier Materials from exposure to moisture, low temperatures, frost and all other damaging conditions. The Customer shall not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
  • keep all and any Deliverables at the Customer’s premises in safe custody at its own risk. The Customer shall store the Deliverables separately from all other goodsheld by the Customer so that they remain readily identifiable as the Supplier’s property. The Customer shall maintain the Deliverables in good condition, including (but not limited to) protecting the Deliverables from exposure to moisture, humidity, low temperatures, frost and all other damaging conditions until payment by the Customer to the Supplier is made in accordance with clause 5;
  • notify its customers, clients and employees that the Services shall be carried out, and shall take all precautions to ensure that all persons are prohibited from accessing the Services Site, and shall display all necessary signage to caution against entry to the Services Site until such time as the Services Site becomes safe to enter;
  • where the Customer wishes to benefit from a third party guarantee in connection with any products, paint or materials used in the provision of Services, the Customer shall be solely responsible for obtaining such guarantee. The Supplier shall not be liable for any matter in connection with any guarantee, or for the failure of the Customer to obtain, register or maintain any such guarantee;
  • comply with all recommendations and guidance in any warranty or guarantee provided by a manufacturer, painter or other supplier, including (but not limited to) in relation to the cleaning, maintenance, or upkeep of any product, material or surface;
  • on completion of the Services, inspect the Services in a reasonable manner taking into account the conditions of the Services Site, such inspection shall be carried out visually by the Customer (without any aids) from a distance of one metre from the relevant area in which the Services were performed by the Supplier; and
  • comply with any additional obligations as set out in the

 

  • If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer, or by any act or omission of a contractor, employee or other person engaged by the Customer (“Customer Default”) then:
    • without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and may rely on the Customer Default to relieve it from the performance of any of its obligations in these Conditions, each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
    • the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer or any person engaged by the Customer (including, but not limited to, any contractor, employee) arising directly or indirectly from the Supplier’s implementation of clause 2; and
    • the Customer shall fully indemnify the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default, including (but not limited to) any loss of profit, consequential loss and economic loss.

 

  1. Charges and payment
    • The Charges for the Services shall be calculated on a time and materials basis and:
      • the Charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Quotation;
      • the Supplier’s daily fee rates for each individual are calculated on the basis of an seven and a half hour day from 8.00 am to 4.30 pm worked on Business Days;
      • the Supplier shall be entitled to charge an overtime rate, as set out in the Quotation, for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 1(b);
      • the Supplier shall be entitled to charge (at its sole discretion) the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials; and
      • the Supplier shall be entitled to charge (at its sole discretion) the Customer for any time and work undertaken in connection with the application of additional coats of paint beyond those set out in the Quotation.
    • The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Scottish Decorators’ Federation Wages Promulgation in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in accordance with the Scottish Decorators’ Federation Wages Promulgation.
    • Unless otherwise agreed, the Supplier reserves the right to render a fee monthly, at the end of a calendar month for work done in that calendar In any event, the Supplier shall render a final invoice to the Customer on completion of the Services, or in accordance with any other arrangement between the Supplier and the Customer.
    • The Customer shall pay each invoice submitted by the Supplier:
      • unless otherwise agreed in writing, within 30 days of the date of the invoice; and
      • in full and in cleared funds to a bank account nominated in writing by the Supplier, and

 

time for payment shall be of the essence of the Contract.

 

  • Title and ownership of the Deliverables shall remain with the Supplier until payment by the Customer to the Supplier is made in accordance with this clause 5.
  • All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (“VAT”) chargeable from time to time. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
  • 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).
  • For the avoidance of doubt, the Regulations shall apply to the Contract.
  • If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, in respect of each individual invoice or part thereof which remains unpaid by the due date for payment, such monies due to the Supplier shall be deemed a Qualifying Debt.
  • In respect of each Qualifying Debt, and without limiting the rights of the Supplier under the Contract, the Supplier shall be entitled to charge the Customer Late Payment Interest upon each outstanding invoice, accruing on a daily basis, over the Statutory Period.
  • In respect of each Qualifying Debt, once the Late Payment Interest begins to run in accordance with clause 5.10, the Supplier shall be entitled to charge the Customer Late Payment Compensation upon each outstanding invoice.

 

  1. Intellectual property rights
    • All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
    • The Supplier grants to the Customer or shall procure the direct grant to the Customer of, a licence during the term of the Contract to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
    • The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 2.
    • The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
  2. Data protection
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
    • The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Supplier is the Data Processor.
    • Without prejudice to the generality of clause 7.1, the Customer 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.
    • Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
      • process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (“Applicable Laws”). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
      • ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      • ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      • not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
        • the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
        • the data subject has enforceable rights and effective legal remedies;
        • the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
        • the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
      • assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      • notify the Customer without undue delay on becoming aware of a Personal Data breach;
      • at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Personal Data; and
      • maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor.
    • Provided that the Customer has given written consent to the Supplier, the Customer consents to the Supplier appointing a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 7. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 7.
    • Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
  3. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
    • Nothing in the Contract shall limit or exclude the Supplier’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
      • fraud or fraudulent misrepresentation; or
      • any other liability which cannot be limited or excluded by applicable law.
    • Subject to clause 1, the Supplier shall not be liable to the Customer, whether in contract, delict (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract, including (but not limited to) any:
      • loss of profits or economic loss;
      • loss of sales or business;
      • loss of agreements or contracts;
      • loss of anticipated savings;
      • loss of use or corruption of software, data or information;
      • loss of or damage to goodwill;
      • indirect or consequential loss; or
      • accidental damage to the Customer’s furniture, fittings, fixtures, floor coverings or similar items, where the Customer has instructed the Supplier to move any furniture, equipment or other item.
    • Subject to clause 8.1, if, despite the Supplier advising the Customer otherwise (in writing), the Customer insists that particular materials, fixtures or fittings, equipment or goods are used for the purposes of the Services, then the Supplier shall not be liable for any loss or damage caused, directly or indirectly, as a result of or in connection with using such materials in the provision of Services.
    • Subject to clause 1, the Supplier’s total liability to the Customer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract, or from the supply of Services, shall be limited to £1,000,000, or such lessor sum that represents the actual sum of insurance cover available.
    • All warranties implied by statute, including under the Sale of Goods Act 1979, and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
    • This clause 8 shall survive termination of the Contract.
    • To the extent that the Services involve painting and decorating Services, the Supplier shall not be required by any of these Conditions to carry out those Services to a standard or quality greater than that required by the SDF Standard.
  4. Termination
    • Subject to clause 10, without affecting any other rights or remedy available to it, either party may terminate the Contract by giving the other party three months’ notice, such notice shall be in writing, but not e-mail.
    • Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving notice such notice shall be in writing, but not e-mail to the other party if:
      • the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within ten days of that party being notified in writing to do so;
      • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      • 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.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
      • the Customer fails to pay any amount due under the Contract on the due date for payment;
      • the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
      • there is a failure by the Customer (or any person connected with, or engaged by the Customer) to comply with clause 4.1(k); or
      • there is a change of control of the Customer.
    • Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 2(b) to clause 9.2(c), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
  5. Consequences of termination
    • On termination of the Contract:
      • the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
      • the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
    • Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
  6. General
    • Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
    • Assignation 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 Customer shall not assign, transfer, mortgage, charge, subcontract, 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.
      • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 3(b).
      • Each party may disclose the other party’s confidential information:
        • to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 3; and
        • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      • Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
    • Entire agreement.
      • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
      • Nothing in this clause shall limit or exclude any liability for fraud.
    • Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
      • Any notice or other communication 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 fax to its main fax number.
      • Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or 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 at the time recorded by the delivery service; or, if sent by fax, at 9.00 am on the next Business Day after transmission.
      • This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with Scots law.
    • Each party irrevocably agrees that the Scottish courts 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.