Terms & Conditions
1.1 The definitions and rules of interpretation in this clause apply to these Conditions.
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business
the terms and conditions set out in this document as amended from time to time in accordance with clause 17
the contract between KingFab and the Customer for the sale and purchase of Services in accordance with these Conditions
the person or firm who purchases Services from KingFab
all documents, information, items and materials in any form (whether or not owned by the Customer) supplied by, or on behalf of the Customer, to KingFab for the purpose of being used directly or indirectly in the supply of the Services
the business known as KingFab of Willow Farm, Seaton Ross, York, YO42 4NA with VAT number GB309 1083 26
has the meaning given in clause 4.1.7
Data Protection Legislation:
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
any deliverables set out in the Summary
Force Majeure Event:
has the meaning given in clause 12
Intellectual Property Rights:
patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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
the Customer’s order for Services made in any form, including over the telephone, by email or in an order form
a party’s employees, consultants, officers, representatives, advisers, agents or sub-contractors
the services, including the Deliverables, supplied by KingFab to the Customer as set out in the Summary
the description or specification of the Services provided in the Summary
the Services summary or other written description of the Services as provided by KingFab to the Customer and any other document specifically referred to therein
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its successors and permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.5 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.6 A reference to writing or written includes faxes and emails.
2 BASIS OF CONTRACT
2.1 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.
2.2 The Summary constitutes an offer by KingFab to provide the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Summary and any applicable Specifications are complete and accurate.
2.3 The Summary shall be deemed to be accepted when the Customer communicates an acceptance in any form, including (but without limitation) by returning a signed Summary, over the telephone, via email or by performing any of its obligations under the Contract, at which point and at which date the Contract shall come into existence (Commencement Date).
2.4 Unless otherwise expressly provided by KingFab, only a Summary shall constitute an offer. Any other correspondence relating to the provision of services, including price estimates or timeframe estimates, shall not constitute an offer.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.6 Any samples, drawings, descriptive matter or advertising issued by KingFab, and any descriptions or illustrations contained in KingFab’s catalogues or brochures whether on its website or otherwise, 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.
2.7 Unless otherwise agreed in writing, a quotation shall only be valid for a period of 30 Business Days from its date of issue. A quotation for Services given by KingFab shall not constitute an offer.
2.8 Unless otherwise stated in writing, these Conditions shall apply to all future Orders.
3 SUPPLY OF SERVICES
3.1 KingFab shall supply Services to the Customer in accordance with the Specification.
3.2 Where timings are stipulated in relation to the performance of the Services and/or supply of a Deliverable, KingFab shall use reasonable endeavours to meet the deadline, however, such timings are estimates only. Time is not of the essence in relation to the performance of the Services and the supply of Deliverables.
3.3 KingFab reserves the right to amend the Specification if required by any applicable statutory law or regulatory requirements
3.4 KingFab reserves the right to amend the Specification if, in KingFab’s reasonable opinion:
3.4.1 the Specification infringes or there is a risk that it may infringe any third party’s Intellectual Property Rights;
3.4.2 such change is more likely to achieve the Customer’s objectives as communicated in the Order; or
3.4.3 any goods, components, materials or processes required to achieve the Specification are no longer available,
provided that such amendments shall not materially change the Specification.
4 CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Summary and any information it provides in the Specification are complete and accurate;
4.1.2 co-operate with KingFab in all matters relating to the Services;
4.1.3 provide KingFab and KingFab’s Representatives, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by KingFab;
4.1.4 provide KingFab with such information and materials as KingFab may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services, including (but without limitation) in relation to Customer Materials, before the date on which the Services are to start;
4.1.6 pay all sums due to KingFab, pursuant to the Contract or otherwise, when due;
4.1.7 keep all materials, equipment, documents and other property of KingFab (KingFab Materials) at the Customer’s premises in safe custody at its own risk, maintain the KingFab Materials in good condition until returned to KingFab, and not dispose of or use the KingFab Materials other than in accordance with KingFab’s written instructions or authorisation; and
4.1.8 comply with any additional obligations set out in the Specification.
4.2 If KingFab’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 KingFab shall, without limiting any other rights or remedies, have the right to suspend performance of any or all of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays KingFab’s performance of any of its obligations;
4.2.2 KingFab shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from KingFab’s failure or delay to perform any of its obligations under this agreement; and
4.2.3 the Customer shall indemnify KingFab for any costs or losses sustained by KingFab arising directly or indirectly from the Customer Default.
5 ADDITIONAL SERVICES
5.1 The Customer may request the provision of services that are outside the scope of the Contract (Additional Services). The Customer may make a request for the provision of Additional Services by any means, including over the telephone or via email.
5.2 KingFab shall be under no obligation to provide any Additional Services until such time as all relevant terms have been agreed in writing in respect of such Additional Services including but without limitation the scope of the Additional Services, timescales, fees, costs and expenses and payment terms.
5.3 KingFab shall endeavour to respond to a request for Additional Services, whether to organise discussions or otherwise, within 5 Business Days of receipt of such request in writing (Additional Services Notice). The parties acknowledge that time is not of the essence for such response.
5.4 KingFab has complete discretion on whether to agree to provide any or all of the Additional Services requested by the Customer.
5.5 Where KingFab agrees to provide any or all of the Additional Services requested by the Customer (Agreed Additional Services), the fees for the provision of the Agreed Additional Services shall be agreed between the parties in writing. In the event that the parties are unable to agree on this fee on or before the date being 7 Business Days before the intended start date for the provision of the Agreed Additional Services, the Agreed Additional Services shall be provided at KingFab’s hourly rate from time to time.
5.6 KingFab shall invoice the Agreed Additional Services on a monthly basis and the payment provisions in clause 8.
6.1 Unless the parties agree otherwise, KingFab shall be responsible for delivery of the Deliverables to the Customer. Unless the parties agree otherwise, the Customer is responsible for the cost of delivery in addition to the charges for the Services.
6.2 Completion of delivery takes place when the Customer receives the Deliverables. Unless agreed otherwise or provided otherwise in the Contract, title to the Deliverables shall not pass to the Customer until KingFab receives payment in full for all amounts due to KingFab under the Contract from the Customer. Title to the Deliverables shall pass at the time of payment of all such sums.
6.3 Risk in the Deliverables passes to the Customer when KingFab notifies the Customer that the Deliverables have been appropriated to the Customer.
6.4 Deliverables are for the use by the Customer and not for any other person.
6.5 Unless otherwise agreed in writing, the Deliverables are not for resale or distribution and, unless otherwise specifically authorised in writing by KingFab, the Customer shall not copy, in any format or media, any of the Deliverables or KingFab Materials.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 In relation to the Deliverables:
7.1.1 unless otherwise agreed in writing KingFab and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
7.1.2 KingFab grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence for the period of time stipulated in the Summary or otherwise in writing to use the Deliverables in its business; and
7.1.3 the Customer shall not sub-licence, assign or otherwise transfer the rights granted in clause 7.1.2.
7.2 In relation to the Customer Materials, the Customer:
7.2.1 and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials (unless otherwise agreed in writing); and
7.2.2 grants KingFab a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the purpose of providing the Services to the Customer.
7.3.1 warrants that the receipt and use of the Services and the Deliverables by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
7.3.2 shall not be in breach of the warranty at clause 7.3.1 to the extent the infringement arises from:
a) the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;
b) any modification of the Deliverables or Services, other than by or on behalf of KingFab; and
c) compliance with the Customer’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that KingFab shall notify the Customer if it knows or suspects that compliance with such specification or instruction may result in infringement.
7.4 The Customer:
7.4.1 warrants that the receipt and use of the Customer Materials in the performance of this agreement by KingFab, or its Representatives, shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
7.4.2 shall indemnify KingFab in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by KingFab arising out of or in connection with any claim brought against KingFab or its Representatives for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of the Services of the Customer Materials.
7.5 If the Customer is required to indemnify KingFab under this clause 7 KingFab shall:
7.5.1 notify the Customer in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 7.4.2 (IPRs Claim);
7.5.2 allow the Customer, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Customer shall obtain KingFab’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
7.5.3 provide the Customer with such reasonable assistance regarding the IPRs Claim as is required by the Customer, subject to reimbursement by KingFab of the Customer’s costs so incurred; and
7.5.4 not, without prior consultation with the Customer, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Customer considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of KingFab into disrepute.
8 PRICE AND PAYMENT
8.1 The charges for the Services shall be as set out in the Summary.
8.2 KingFab shall be entitled to charge the Customer for any expenses reasonably incurred by KingFab, including (but without limitation) any third party costs incurred in relation to the Services, storage costs, delivery costs and travel expenses.
8.3 KingFab shall have the right to invoice the Customer for disbursements before they are incurred by KingFab, including (but without limitation) third party costs.
8.4 The charges for the Services exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to KingFab at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.5 Unless otherwise agreed in writing, KingFab may invoice the Customer for the Services at any time after the Commencement Date.
8.6 Unless the parties agree otherwise in writing, payment of an invoice shall be due immediately on receipt and shall be deemed overdue if unpaid after 28 days of the date of invoice (Due Date). Payment shall be made in full and cleared funds to the bank account nominated in writing by KingFab. Time for payment is of the essence.
8.7 If the Customer fails to make any payment due to KingFab under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above HSBC Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). KingFab may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by KingFab to the Customer.
9.1 Without limiting its other rights or remedies, KingFab may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing to do so;
9.1.2 the Customer fails to pay any amount due under the Contract by the Due Date;
9.1.3 the Customer 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;
9.1.4 if the Customer is a company, there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010);
9.1.5 if the Customer is an individual, the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation;
9.1.6 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.7 the Customer’s financial position deteriorates to such an extent that in KingFab’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, KingFab may suspend provision of the Services under the Contract or any other contract between the Customer and KingFab if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.7, or KingFab reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract in relation to any Order by the Due Date for payment.
9.3 On termination of the Contract for any reason the Customer shall immediately pay to KingFab all of KingFab’s outstanding unpaid invoices and interest and any sums due to the Supplier but not yet invoiced (upon receipt of a valid VAT invoice) including in relation to any costs or expenses incurred by KingFab in the performance of the Contract.
9.4 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
10 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason, the following clauses shall continue in force: clause 1, clause 5, clause 10, clause 11 and clause 14.1.
11 LIMITATION OF LIABILITY
11.1 Nothing in these Conditions shall limit or exclude KingFab’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
11.1.4 any matter in respect of which it would be unlawful for KingFab to exclude or restrict liability.
11.2 Subject to clause 11.1:
11.2.1 KingFab shall not be liable to the Customer in any respect, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, if the Customer does not notify KingFab in writing of a potential claim against KingFab within 60 days of completion of delivery of a Deliverable or provision of the Services (as the case may be):
a) the liability arising; or
b) the Customer being aware of or ought reasonably to have been aware of such liability arising.
11.2.2 KingFab shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.3 KingFab’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the charges for the Services.
12 FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control (Force Majeure Event), unless the risk of an event or circumstance out of its control should have been covered by insurance. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Contract by giving five days written notice to the affected party.
13 ASSIGNMENT AND OTHER DEALINGS
13.1 KingFab may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of KingFab.
14 DATA PROTECTION
14.1 Both parties warrant to each other that they will comply with all applicable requirements of the Data Protection Legislation. This clause 14 is in addition to and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
14.2 The parties acknowledge that for the purposes of the Data Protection Legislation, neither party is processing data on behalf of the other and both parties are data controllers in their own right.
14.3 KingFab shall use information about the Customer and the Customer’s Representatives, as well as the personal data of any other individual that the Customer gives KingFab or that KingFab obtains in the course of performing the Services, in order to perform its obligations under the Contract and for the purposes of maintaining KingFab’s records, for accounting and compliance procedures and for market analysis and activities.
14.4 KingFab shall take appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
14.5 In performing its obligations under the Contract, KingFab relies on the accuracy of the personal data provided by the Customer or by a third party on the Customer’s behalf to KingFab and the Customer warrants that such information is accurate and that the Customer or third party has lawful authority to provide KingFab with such personal data and shall indemnify KingFab in respect of all loss suffered, directly or indirectly, in respect of a breach of such warranty.
14.6 KingFab shall not be liable for any loss caused by the inaccuracy of any data that the Customer provides to KingFab or that has been provided to KingFab by a third party or for any loss attributable to a failure by the Customer or any third party to comply with Data Protection Legislation or any equivalent legislation.
15.1 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 or of any member of the group to which the other party belongs, except as permitted by clause 15.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
15.2 Each party may disclose the other party’s confidential information:
15.2.1 to its Representatives who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15.2; and
15.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
16 ENTIRE AGREEMENT
16.1 This 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.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
16.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy 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.
20.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
20.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20.1; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission; or if sent by email not until such receipt is expressly acknowledged in writing.
20.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21 THIRD PARTY RIGHTS
It is intended that no one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
22 GOVERNING LAW AND JURISDICTION
22.1 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.
22.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.