Terms and Conditions
The Client’s attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1. Definitions:
Stella Mannering Limited - herein after referred to as SMC
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Client: the person or firm who purchases the Goods and/or Services from SMC.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8.
Contract: The contract becomes extant by written agreement to the estimates provided by SMC to the Client for the supply of Goods and Materials and/or Services in accordance with these Conditions.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Force Majeure Event: has the meaning given to it in clause 16.
Goods and Materials: the goods and materials (or any part of them) set out in SMC’s quotation.
Goods and Materials Specification: any specification for the Goods and Materials, including any relevant plans or drawings, that is agreed in writing by the Client and SMC.
Intellectual Property Rights: 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.
Order: The Client’s order for the supply of Goods and Materials and/or Services, as set out in the Client’s written acceptance of the SMC’s estimate.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Client is the Data Controller and in relation to which SMC is providing services.
Processing and process: have the meaning set out in section 1(1) of the Data Protection Act 1998.
Services: the services supplied by SMC to the Client as set out in the SMC’s estimate.
Supplier: Stella Mannering Limited registered in England and Wales with company number 02467348.
Supplier Materials: has the meaning given in clause 8.1(f).
1.2. Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) 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.
(d) 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.
(e) A reference to writing or written includes fax and email.
2. Basis of contract
2.1. The Order constitutes an offer by the Client to purchase Goods and Materials and/or Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when SMC issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings or descriptive matter issued by SMC and any descriptions of the Goods and Materials illustrations, or descriptions of the Services contained in SMC’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods and Materials described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.5. Any quotation given by SMC shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.6. All these Conditions shall apply to the supply of both Goods and Materials and Services except where application to one or the other is specified.
3. Goods
3.1. The Goods and Materials are described in the Goods and Materials Specification.
3.2. The SMC reserves the right to amend the Goods and Materials Specification if required by any applicable statutory or regulatory requirement, and SMC shall notify the Client in any such event.
4. Delivery of Goods and Materials
4.1. SMC shall ensure that Goods and Materials are delivered to the Property or such other location as the parties may agree (Delivery Location) at any time after SMC notifies the Client that the Goods and Materials are ready.
4.2. Delivery of the Goods and Materials shall be completed on the completion of unloading of the Goods and Materials at the Delivery Location.
4.3. Any dates quoted for delivery of the Goods and Materials are approximate only, and the time of delivery is not of the essence. SMC shall not be liable for any delay in delivery of the Goods and Materials that is caused by a Force Majeure Event or the Client’s failure to provide SMC with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and Materials.
4.4. If SMC fails to deliver the Goods and Materials, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods and Materials. SMC shall have no liability for any failure to deliver the Goods and Materials to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide SMC with adequate delivery instructions for the Goods and Materials or any relevant instruction related to the supply of the Goods and Materials.
4.5. If the Client fails to take delivery of the Goods and Materials within three Business Days of SMC notifying the Client that the Goods and Materials are ready, then except where such failure or delay is caused by a Force Majeure Event or by SMC’s failure to comply with its obligations under the Contract in respect of the Goods and Materials:
(a) delivery of the Goods and Materials shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which SMC notified the Client that the Goods and Materials were ready; and
(b) SMC shall store the Goods and Materials until delivery takes place and charge the Client for all related costs and expenses (including insurance).
4.6. If ten Business Days after SMC notified the Client that the Goods and Materials were ready for delivery the Client has not taken delivery of them, SMC may resell or otherwise dispose of part or all of the Goods and Materials [and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods and Materials or charge the Client for any shortfall below the price of the Goods and Materials.
4.7. SMC may deliver the Goods and Materials by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
5. Quality of Goods and Materials
5.1. SMC warrants that on delivery, the Goods and Materials shall:
(a) conform in all material respects with their description and the Goods and Materials Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by SMC.
5.2. Subject to clause 5.3, SMC shall, at its option, replace the defective Goods and Materials, or refund the price of the defective Goods and Materials in full if:
(a) the Client gives notice in writing within 30 days of discovery that some or all the Goods and Materials do not comply with the warranty set out in clause 5.1.
(b) SMC is given a reasonable opportunity of examining such Goods and Materials; and
(c) the Client (if asked to do so by the SMC) returns such Goods and Materials to SMC’s place of business at SMC’s cost.
5.3. SMC shall not be liable for the Goods and Materials’ failure to comply with the warranty in clause 5.1 if:
(a) the Client makes any further use of such Goods and Materials after giving a notice in accordance with clause 5.2.
(b) the defect arises because the Client failed to follow SMC’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods and Materials or (if there are none) good trade practice.
(c) the defect arises because of SMC following any drawing, design or Goods and Materials Specification supplied by the Client.
(d) the Client alters or repairs such Goods and Materials without the written consent of SMC.
(e) the defect arises because of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods and Materials differ from the Goods and Materials Specification because of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4. Except as provided in this clause 5, SMC shall have no liability to the Client in respect of the Goods and Materials’ failure to comply with the warranty set out in clause 5.1.
5.5. The terms of these Conditions shall apply to any repaired or replacement Goods and Materials supplied by SMC.
6. Title and risk
6.1. The risk in the Goods and Materials shall pass to the Client on completion of delivery.
6.2. Title to the Goods and Materials shall not pass to the Client until the earlier of SMC receiving payment in full (in cash or cleared funds) for the Goods and Materials and any other goods that SMC has supplied to the Client in respect of which payment has become due, in which case title to the Goods and Materials shall pass at the time of payment of all such sums.
6.3. Until title to the Goods and Materials has passed to the Client, the Client shall:
(a) store the Goods and Materials separately from all other goods held by the Client so that they remain readily identifiable as SMC’s property.
(b) not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods and Materials.
(c) maintain the Goods and Materials in satisfactory condition and keep them insured against all risks for their full price on SMC’s behalf from the date of delivery.
(d) notify SMC immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.2(d); and
(e) give SMC such information relating to the Goods and Materials as SMC may require from time to time.
7. Supply of Services
7.1. SMC shall supply the Services to the Client in accordance with SMC’s quotation in all material respects.
7.2. SMC shall use all reasonable endeavours to meet any performance dates for the Services specified in SMC’s quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3. SMC reserves the right to amend the Services 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 SMC shall notify the 7.4. Client in any such event.
7.4. SMC warrants to the Client that the Services will be provided using reasonable care and skill.
8. Client’s obligations
8.1. The Client shall:
(a) ensure that the terms of the Order and any information it provides in SMC’s quotation and the Goods and Materials Specification are complete and accurate.
(b) co-operate with SMC in all matters relating to the Services.
(c) provide SMC, its employees, agents, consultants, and subcontractors, with access to the Client’s property and other facilities as reasonably required by SMC to provide the Services.
(d) provide SMC with such information and materials as SMC may reasonably require to supply the Services and ensure that such information is complete and accurate in all material respects.
(e) prepare the Client’s premises for the supply of the Services;
(f) keep all materials, equipment, documents, and other property of SMC (SMC Materials) at the Client’s premises in safe custody at its own risk, maintain the SMC Materials in good condition until returned to the SMC and not dispose of or use the SMC Materials other than in accordance with the SMC’s written instructions or authorisation; [and]
(g) comply with any additional obligations as set out in the SMC’s quotation and the Goods and Materials Specification.
8.2. If SMC’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, SMC shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays SMC’s performance of any of its obligations.
(b) SMC shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SMC’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Client shall reimburse SMC on written demand for any costs or losses sustained or incurred by SMC arising directly or indirectly from the Client Default.
9. Charges and payment
9.1. The price for Goods and Materials:
(a) shall be the price set out in the Order; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods and Materials, which shall be invoiced to the Client.
9.2. The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with SMC’s daily fee rates, as set out in SMC’s estimate.
(b) SMC’s daily fee rates for each individual person are calculated based on an eight-hour day from 8.00 am to 5.00 pm worked on Business Days.
(c) SMC shall be entitled to charge an overtime rate of 10 % of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
(d) SMC shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom SMC 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 SMC for the performance of the Services, and for the cost of any materials.
9.3. SMC reserves the right to increase the price of the Goods and Materials, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods and Materials to SMC that is due to:
(a) any factor beyond the control of SMC (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Client to change the delivery date(s), quantities or types of Goods and Materials ordered, or the Goods and Materials Specification; or
(c) any delay caused by any instructions of the Client in respect of the Goods and Materials or failure of the Client to give SMC adequate or accurate information or instructions in respect of the Goods and Materials.
9.4. In respect of Goods and Materials, SMC shall invoice the Client on or at any time after completion of delivery. In respect of Services, SMC shall invoice the Client on monthly.
9.5.The Client shall pay each invoice submitted by SMC.
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by SMC, time for payment shall be of the essence of the Contract.
9.6. All amounts payable by the Client under the Contract are exclusive of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by SMC to the Client, the Client shall, on receipt of a valid VAT invoice from SMC, pay to SMC such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods and Materials at the same time as payment is due for the supply of the Services or Goods and Materials.
9.7. If the Client fails to make a payment due to SMC under the Contract by the due date, then, without limiting SMC’s remedies under clause 14 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.8. 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).
10. 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 Client) shall be owned by SMC.
11. Data protection and data processing
11.1. The Client and SMC acknowledge that for the purposes of the Data Protection Act 1998, the Client is the Data Controller and SMC is the data processor in respect of any Personal Data.
11.2. SMC shall process the Personal Data only in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Client.
11.3. SMC shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
11.4. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards, and other similar instruments.
11.5. SMC warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction, or damage; and
(ii) the nature of the data to be protected; and
(b) take reasonable steps to ensure compliance with those measures.
11.6. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages, or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under this clause 11.
11.7. The Client acknowledges that SMC is reliant on the Client for direction as to the extent to which SMC is entitled to use and process the Personal Data. Consequently, SMC will not be liable for any claim brought by a Data Subject arising from any action or omission by SMC, to the extent that such action or omission resulted directly from the Client’s instructions.
11.8. SMC may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor’s contract:
(a) is on terms which are substantially the same as those set out in this agreement; and
(b) terminates automatically on termination of this agreement for any reason.
11.9. The Client consents to the use by SMC of photographs and images of the Client’s property on their website and in social media.
12. Confidentiality
12.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, clients, clients, or suppliers of the other party, except as permitted by clause 12.2.
12.2. Each party may disclose the other party’s confidential information:
(a) 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 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1. Nothing in these Conditions shall limit or exclude SMCs liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
13.2. Subject to clause 13.1, SMC shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
13.3. Subject to clause 13.1, SMC’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 50% of the total charges paid under the Contract.
13.4. The terms implied by sections 13 to 15 of 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.
13.5. This clause 13 shall survive termination of the Contract.
14. Termination
14.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering bankruptcy 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2. Without affecting any other right or remedy available to it, SMC may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.
14.3. Without affecting any other right or remedy available to it, SMC may suspend the supply of Services or all further deliveries of Goods and Materials under the Contract or any other contract between the Client and SMC if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 14.1(b) to clause 14.2(d), or SMC reasonably believes that the Client is about to become subject to any of them.
15. Consequences of termination
15.1. On termination of the Contract:
(a) the Client shall immediately pay to SMC all of SMC’s outstanding unpaid invoices and interest and, in respect of Services and Goods and Materials supplied but for which no invoice has been submitted, SMC shall submit an invoice, which shall be payable by the Client immediately on receipt.
(b) the Client shall return all SMC’s Materials or Goods and Materials which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations, and 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.
15.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. 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.
17. General
17.1. Assignment and other dealings
(a) SMC 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.
(b) The Client 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 SMC.
17.2. Notices.
(a) 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 email to the address specified in SMC’s estimate.
(b) 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 email, at 9.00 am on the next Business Day after transmission.
(c) 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.
17.3. Severance. 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.
17.4. 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.
17.5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter any commitments for or on behalf of the other party.
17.6. Entire agreement.
(a) 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.
(b) 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 misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
17.7. Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9. 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 the law of England and Wales.
17.10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
