THE MCCALLAN GROUP LIMITED
CONDITIONS OF BUSINESS
1.1 In these conditions the following words have the following meanings unless the context requires otherwise.
“Company” means McCallan Medical Limited (company number: 7474866) whose registered office is at 12 Market Street, Bottesford, Nottingham, NG13 0BW;
“Contract” means any contract between the Company and the Client incorporating these conditions for the provision of the Services;
“Client” means the person whose order for Services is accepted by the Company;
“Client Personal Data" means any and all personal data relating to a living individual who can be identified from the data or from information which is in, or is likely to come into, the possession of either party and which is used in the course of the Services (whether supplied by the Client to the Company and/or gathered and/or collated by the Company on the Client’s behalf as part of the Services);
“Data” means any and all information, templates, logos, data and/or other materials which the Company requires from the Client in order to perform the Services, including but not limited to any Database and any Client Personal Data;
“Database” means any database comprising any Client Personal Data;
“Deliverables” means any and all information, products, documentation and other items which the Company agrees to provide to the Client as part of the Services and as detailed in the Statement of Work;
“DPA” means the Data Protection Act 1998 as may be amended, extended, re-enacted or consolidated and allsubordinate legislation made pursuant to it and including all similar legislation in any other jurisdiction inwhich the Services are performed;
“Intellectual Property Rights” means any patent, copyright, database right, design right (whether registered or unregistered), trade mar (whether registered or unregistered), semi conductor topography rights or other industrial or intellectual property right subsisting anywhere in the world and all rights to apply for the same;
“Liability” means actions, awards, costs, claims, damages, losses (including without limitation any direct or indirect consequential losses), demands, expenses, fines, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
“Order Confirmation” means the Company’s written acceptance of the Client’s order which sets the scope of the Services and any contract variables such as price, payment terms and timescales for performance; and
“Services” means the services to be performed by the Company for the Client as set out in a Statement of Work.
2. Basis Of Contract
2.1 These conditions shall govern the agreement between the Company and the Client to the exclusion of any other terms or conditions.
2.2 No variation to these conditions shall be binding on the Company unless agreed in writing between the Client and the Client’s allocated point of contact at the Company.
2.3 The Client acknowledges that it does not rely on any representation and/or warranty which are not set out in the Contract and has not been made in accordance with these conditions.
3. Orders And Contract
3.1 The Client shall be responsible for the accuracy of any order for Services.
3.2 The Contract between the Company and the Client shall come into effect on the Company’s acceptance of the Client’s order by issuing an Order Confirmation.
3.3 If the Client cancels this Contract for any reason it shall have no further recourse against the Company under this Contract.
4.1 The Company will set out in the Order Confirmation any Data which it requires from the Client in order to perform the Services.
4.2 The Client undertakes to ensure that:
4.2.1 it provides a complete, accurate and up to date copy of the Data to the Company on or by any date set by the Company and in any event in sufficient time to enable the Company to perform the Services within any agreed timescales; and
4.2.2 the Company and/or its sub-contractors have the right to use the Data in order to perform the Services without the need to obtain the consent of and/or a licence of use from any third party. If the consent/licence of a third party is required, the Client warrants that all such consents and/or licences have been obtained by the Client prior to the commencement of the Services.
4.3 If the Client fails to provide the Data on or by the agreed date and, as a result of this failure the Company is prevented from performing the Services, the Company shall have no Liability to the Client for the resulting delays. Any timescales imposed on the Company for the performance of the Services shall be extended by a reasonable period of time to accommodate the delay to the Services caused by the Client’s actions.
4.4 The Client agrees to indemnify and keep indemnified the Company and its sub-contractors from and against any and all loss and/or Liability which the Company and/or a sub-contractor suffers as a result of:
4.4.1 its use of the Data in the performance of the Services, including but not limited to any claim by a third party that the use of the Data infringes its Intellectual Property Rights; and
4.4.2 any additional costs and expenses incurred as a result of the Client’s delay in providing the Data.
5.1 Any dates for performance of the Services are estimates only and are not guaranteed. Time is not of the essence in relation to such dates. They are also subject to any matter beyond the Company’s reasonable control.
5.2 The Client shall have no right to reject Services and shall have no right to rescind for late performance unless the due date for performance has passed and the Client has served on the Company a written notice requiring the Contract to be performed and giving the Company not less than 14 days in which to do so and the notice has not been complied with.
5.3 If the Client refuses to allow performance of the Services then the Company shall be entitled to withhold performance of any other Services and to treat the Contract as repudiated by the Client and shall have the right to rescind the Contract.
5.4 If the Company requires access to the Client’s premises and/or the premises of a third party nominated by the Client in order to perform the Services, the Client must:
5.4.1 ensure that the Company has access to such premises as and when reasonably required by the Company to perform the Services. Where the Services include attendance at an event, the Client shall ensure that the Company has sufficient advance access to the premises where the event is to be held to set up its equipment and/or perform any other preparatory tasks. The Company shall give the Client as much advance notice as possible of its access requirements; and
5.4.2 ensure that the Company (where required) has access to power supplies and other facilities to enable it to perform the Services.
5.5 The Company warrants that the Services will be performed by suitably qualified and experienced personnel and will be performed with all reasonable skill and care.
5.6 Subject to clause 5.9 and 5.10, if the Company supplies less than the number of Deliverables ordered, the Client shall be entitled, at the sole option of the Company, either to a further delivery of the amount of Deliverables outstanding or a refund of the price for those outstanding Deliverables.
5.7 Subject to clauses 5.9 and 5.10 if the Company supplies more than the number of Deliverables ordered, the Client shall be entitled at the Company’s sole option either to return the extra Deliverables to the Company or pay an extra price for and keep the extra Deliverables.
5.8 If the Client has ordered personalised Deliverables in bulk, delivery of up to 5 per cent more or 5 percent less of the amount ordered is deemed to be the correct amount and the price will be adjusted accordingly.
5.9 The Client is only entitled to the remedies in clauses 5.7 and 5.8 if the Client:
5.9.1 Informs the Company of the shortfall or extra Deliverables within forty-eight hours of delivery; and
5.9.2 Confirms the shortfall or extra Deliverables to the Company in writing, such written confirmation to be received by the Customer within five days of delivery of the Deliverables.
6. Price And Payment
6.1 The price of the Services shall be as set out in the Order Confirmation.
6.2 The Client will be informed in writing by the Company of any increases in prices for the Services not less than 14 days before such increase takes effect.
6.3 The Client may cancel without Liability any Contract in relation to which the price is to be increased provided that the notice of cancellation is received by the Company before the price increase becomes effective.
6.4 The Company’s prices are exclusive of any applicable VAT and/or any other sales tax for which the Client shall additionally be liable.
6.5 The Client shall pay all sums due to the Company under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
6.6 Payment shall not be deemed to be made until the Company has received either cash or cleared funds in respect of the full amount outstanding.
6.7 The Company shall be entitled to render an invoice to the Client any time in accordance with the payment terms set out in the relevant Confirmation Order or, in the absence of any express terms, on or after completion of the Services.
6.8 If the Client fails to make payment by the due date the Company may, without prejudice to any other rights or remedies it may have, charge interest (both before and after judgment) on the amount unpaid at whichever is the greater of the rate of 4% above the base rate from time to time of the Company’s bank, compounded with monthly rests, or the rate of interest prescribed by law.
6.9 If any Services are cancelled or this Contract terminated or performance is suspended before completion of the Services the Company shall be entitled to be paid on a quantum meruit basis for that part of the Services performed. The Company may invoice the Client accordingly. Such monies shall be immediately payable.
7. Credit Limit
The Company may set a credit limit for the Client. The Company reserves the right to refuse to accept orders for Services and/or to suspend the performance of the Services when such orders would result in the Client exceeding its credit limit or the credit limit is already exceeded.
The Client may only cancel performance of the Services and/or creation and/or delivery of the Deliverables with the written consent of the Company. The Company shall have no Liability to the Client in relation to any Contract cancelled in accordance with this clause.
9.1 The description and specification for the Services (including any Deliverables) shall be that set out in the Confirmation Order.
9.2 The Client is responsible for checking the Confirmation Order and satisfying itself that any specification given is accurate and adequate for the Services it requires.
9.3 If during the course of the Services, the Company considers that the method of performing the Services and/or the scope of the Services could/should be amended, the Company will discuss any changes to the Statement of Work with the Client.
9.4 The Company reserves the right to make changes to the specification of the Services and/or the Deliverables as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Services.
10. Intellectual Property Rights And Confidentiality
10.1 All Intellectual Property Rights in the Deliverables are retained by the Company except for any Intellectual Property Rights belonging to the Client before this Contract was entered into and which the Client has asked the Company to incorporate into the Deliverables.
10.2 The Client grants an irrevocable royalty–free licence to the Company to use the Client’s Intellectual Property Rights solely for the purpose of the Company exercising its rights and/or performing its obligations under the Contract.
10.3 The Company may sub-licence the Client’s Intellectual Property Rights solely for the purpose of the Company exercising its rights and/or performing its obligations under the Contract.
10.4 The Company shall be free to utilise for the benefit of its other Clients any skill and/or know-how that it may develop or acquire in the performance of the Services.
10.5 In performing the Services, the Company will not knowingly do anything and/or create any Deliverables and/or other Deliverables which infringe the Intellectual Property Rights of a third party. The Company accepts no Liability for any claims and/or alleged claim that any of the Deliverables infringe the rights of a third party other than as set out in this clause 11.5.
10.6 Each party agrees with the other that it will keep all confidential business information regarding the other party confidential and not disclose or use such information which may be disclosed to it or which it may learn except where such information is public knowledge or it is required to be disclosed by law.
11. Property And Risk
11.1 Risk of damage to or loss of the Deliverables shall pass to the Client upon delivery to the Client or (if to be used in the performance of the Services) the site where they are to be utilised. The Company will replace free of charge any Deliverables in which risk has passed to the Client if they are damaged or lost due to the neglect or default of the Company, its employees or other representatives.
11.2 The Company shall retain title and ownership of the Deliverables until it has received payment in full of all sums due and/or owing for all Deliverables and/or Services supplied to the Client by the Company under the Contract and any other agreement between the Company and the Client.
12.1 If the Client:-
12.1.1 fails to make any payment to the Company when due;
12.1.2 breaches the terms of the Contract and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
12.1.3 persistently breaches any one or more terms of the Contract;
12.1.4 ceases or threatens to cease business, is declared or becomes insolvent or bankrupt, has a moratorium declared
12.1.5 in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application or the giving of any notice) by the Client or by any other person in respect of any of these circumstances;
12.1.6 appears to the Company due to the Client’s credit rating to be financially inadequate to meet its obligations under the Contract;
12.1.7 appears reasonably to the Company to be about to suffer any of the above events;
then the Company shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 15.2 below.
12.2 If any of the events set out in clause 12.1 above occurs in relation to the Client then:-
12.2.1 the Company may withhold the performance of any Services and cease any Services in progress;
12.2.2 the Company may cancel, terminate and/or suspend without Liability to the Client any contract with the Client;
12.2.3 the Company may enter, without prior notice, any of the Client’s premises (or premises of third parties with their consent) where Products owned by the Company may be and repossess and dispose of or sell any Deliverables found which are owned by the Company so as to discharge any sums due to the Company under the Contract or any other agreement with the Client; and/or
12.2.4 all monies owed by the Client to the Company shall immediately become due and payable.
12.3 On termination of the Contract: each party agrees to return the other party’s confidential information to them;
12.3.1 the Company will provide the Client with a copy of the Database containing the Client Personal Data and return any Data; and
12.3.2 provided that the Client has paid for the Services performed, the Company shall provide the Client with the Deliverables in whatever state they are in as at the date of termination. The Company, however, gives no warranties in respect of such Deliverables and clause 14 shall not apply.
12.4 The Company shall have a lien over all property or goods belonging to the Client which may be in the Company’s possession in re spect of all sums due from the Client to the Company.
13.1 Subject to clause 13.2, the Company guarantees that any Deliverables supplied will be free from defects in workmanship for a period of 1 year from the date of completion.
13.2 The Company often sub-contracts the manufacture, production and supply of the Deliverables and/or performance of the Services to third parties. The Company provides no guarantees and/or warranties in respect of such Deliverables and/or Services but will, where possible, transfer to the Client the benefit of any guarantees and/or warranties given to the Company by the sub-contractor.
13.3 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
13.4 The Company will at its option either refund the price for or re-perform any non-compliant Services/replace any defective Deliverables where the defect/non-compliant element is readily apparent provided that the issue is notified to the Company within 14 working days of
completion of the Services.
13.5 The Company may at its sole discretion re-perform non-compliant Services/replace defective Deliverables and/or provide a refund of the price for any defects and/or areas of non-compliance which are not notified to it within the specified time limit where in the Company’s opinion the issue would not have been ascertainable on inspection and has been notified to the Company as soon as reasonably practicable.
14. Limitations On Liability
14.1 The Company shall have no Liability for defective/non-compliant Services/Deliverables, unless notified to it within the appropr iate time limit set out in clause 5.10.
14.2 The Company shall have no Liability for any:-
14.2.1 consequential and/or indirect losses;
14.2.2 loss of profits and/or damage to goodwill;
14.2.3 pure economic and/or other similar losses;
14.2.4 special damages;
14.2.5 aggravated, punitive and/or exemplary damages;
14.2.6 loss of and/or corruption of data; and/or
14.2.7 business interruption, loss of business, contracts, opportunity and/or production.
14.3 The Company’s total aggregate Liability under and/or arising as a result of the Contract shall not exceed 400% of the price of the Deliverables and/or Services supplied by the Company to the Client under the Contract. To the extent that any of the Company’s Liability would be met by any insurance of the Company then its Liability shall be extended to the extent that such Liability is met by such insurance.
14.4 Each of the limitations and/or exclusions shall be deemed to be repeated and apply as a separate provision for each of:
14.4.1 Liability for breach of contract (including material and/or fundamental breach);
14.4.2 Liability in tort (including negligence);
14.4.3 Liability for breach of statutory duty; and
14.4.4 Liability for breach of Common Law.
except the financial caps above which shall apply once only in respect of all the said types of Liability.
14.5 Nothing shall exclude or limit the Company’s Liability for death or personal injury due to its negligence or any Liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
15.1 The Client agrees to indemnify and keep indemnified the Company against any and all losses, proceedings, lost profits, damages, awards, expenses, claims, costs (including increased administration costs and legal costs on a full indemnity basis), actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of contract, any tortious act and/or omission and/or any breach of statutory duty by the Client.
15.2 No waiver by the Company of any breach of the Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
15.3 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
15.4 The Company shall have no Liability to the Client for any delay in performance of this Contract to the extent that such delay is due to any events outside the Company’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, subcontractor delays, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If the Company is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
15.5 All third party rights are excluded and no third party shall have any right to enforce the Contract except that sub-contractors of the Company (with the Company’s prior written consent) may enforce the terms of clause 4.4 and any other clauses which are designed to provide a benefit to them. Any rights of a third party to enforce the Contract may be varied and/or extinguished by agreement between the parties to the Contract without the consent of any such third party.
15.6 The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.