SMMT Industry Forum Terms and Conditions ("Conditions")

Revision 9

  1. Interpretation
    In these Conditions:
    1. "Company" means the company or business to which IF shall provide services under and in accordance with the Letter;
    2. "Contract"means the agreement between the Company and IF concluded by the Company's authorised signatory signing the Company's acceptance of the Letter subject to these Conditions;
    3. "Cost" means the price exclusive of Value Added Tax, payable to IF by the Company pursuant to the Contract specified in the Letter;
    4. "Group" shall mean, in relation to the Company, every other company which from time to time is a subsidiary or holding company of the Company and the terms "subsidiary" and "holding company" shall have the meanings given to them by Section 1159 of the Companies Act 2006;
    5. "IF" means the SMMT Industry Forum of 2410 Regents Court, The Crescent, Birmingham Business Park, Birmingham, B37 7YE which is a division of The Society of Motor Manufacturers and Traders Limited, registered office at 71 Great Peter Street, London SW1P 2BN (Registered No 74359)
    6. "IF Materials" means all documents belonging to IF and supplied to the Company in connection with the Contract, including but not limited to the "Common Approach Manual" or excerpts from it as appropriate and includes information in CD-ROM format or other non-printed media;
    7. "loss" includes destruction;
    8. "month" means calendar month;
    9. "person" includes a corporation;
    10. "Letter" means the letter as signed by the Company which details the programme of Services to be provided to the Company by IF subject to these Conditions;
    11. "Services" means the programme of services specified in the Letter.
  2. Performance
    1. Upon signing a copy of the Letter, the Company agrees, subject to the Conditions, to purchase the Services;
    2. the Company shall grant IF, IF engineers, employees, subcontractors and agents all the information and access to files, records and access to all Company premises as IF reasonably requires to enable the performance of the Services;
    3. IF shall use reasonable endeavours to ensure that the Services shall be performed according to the timetable contained in the Letter or as may be varied by mutual consent;
    4. IF does not warrant the suitability of the Services to the Company and the Company shall be responsible for assessing and satisfying itself as to the benefits (if any) to be achieved by the Company in accepting the Services;
    5. IF warrants that it will use reasonable care and skill in carrying out the Services;
    6. all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract;
    7. the Services will be deemed to be completed and the relevant element of the Contract price to be due and payable forthwith:
      1. when IF issues a written notice to the Company confirming such completion; or
      2. if IF is available to perform the Services but is prevented from doing so by reason of:
        • the lack of relevant assistance from the Company; and/or
        • the condition of the Company's premises on the site and/or the facilities at which the Services are to be provided at the time agreed for the provision of the Services.
  3. Severability
    If any condition, clause or provision of these Conditions (including any sub-clause or paragraph or any part of one or more of these Conditions) is held to be void, unlawful or otherwise unenforceable under any applicable law, then that Condition shall be omitted from these Conditions and that shall not affect the validity or enforceability of the remainder of the Conditions.
  4. Confidentiality
    • Each of the parties is responsible for identifying any information including know how which it regards as being confidential or trade secret ("Confidential Information") before disclosure to the other party and each of the parties undertakes to the other to keep confidential Confidential Information except where:
      • the Confidential Information was already lawfully known, or became lawfully known to either of the parties independently of the performance of the Services;
      • the Confidential Information is, or comes into, the public domain other than due to wrongful use or disclosure by the parties;
      • disclosure or use is necessary by either of the parties for the proper and effective performance of the Services;
      • the disclosure is required by law to any government, governmental department, agency, regulatory or fiscal body or authority (whether national or foreign) and their authorised agents (including professional advisers).
    • IF shall safeguard from loss or damage every document or item supplied by or obtained from the Company for the purposes of the Letter and shall protect every such document or item from unauthorised use, disclosure or copying and shall return to the Company every such document and item.
    • Each of the parties shall ensure that their respective employees, agents and sub-contractors shall comply with the requirements of this Condition 4. The parties shall use the same standard of care in relation to the information as if it were Confidential Information of their own.
  5. Amendments and Variations
    No amendment or variation in the terms of the Contract will be valid unless previously agreed in writing between IF and the Company.
  6. Payment and Charges
    • The Cost shall be payable within 14 days of issue of the invoice which shall state the period and amount of services for which payment is claimed.
    • IF may (without prejudice to its other rights and remedies) charge the Company interest in respect of late payment of any sum due under this agreement on a day to day basis (both before and after any judgement) at the rate of 4 per cent per annum above the base rate of Barclays Bank plc from the due date for payment to the actual date of payment (both dates inclusive). The interest shall be paid by the Company on demand.
  7. Health and Safety
    The Company shall comply with statutory Health and Safety requirements and exchange information with IF as required by statute and the IF Health and Safety policy. IF reserves the right to refuse to work in an environment which fails to comply with statutory Health and Safety requirements and prohibitions.
  8. Liability, Indemnity and Insurance
    • IF shall not be liable for any loss of or damage caused either to any physical property of the Company or its staff or agents of any physical injury (including injury resulting in death) sustained by the staff or agents of the Company other than by reason of any negligent act or omission of IF, IF employees or agent during the performance of the Services.
    • The Company shall indemnify IF against any claim, demand or liability made against or incurred by IF or any agent of IF in respect of any loss of, or damage to, any property of the IF's personnel or injury (including injury resulting in death) sustained by IF during the performance of the Services whilst on Company premises, unless such loss, damage or injury is caused by the negligent act or omission of IF or any of its staff or agents.
    • Nothing in these Conditions excludes or limits the liability of IF for death or personal injury caused by IF's negligence, or for fraudulent misrepresentation.
    • Subject to Conditions 8(c) and (e) the Company's maximum aggregate total liability in contract, tort, negligence or otherwise), arising in connection with the Contract shall be limited to £2million
    • IF shall not be liable (in contract, tort, negligence or otherwise) for:
      • any economic loss, loss of turnover, profits, business or goodwill as a result of any reliance placed by the Company on the results of the Services or any breach of the Contract by IF; or
      • any indirect or consequential loss, damage, costs, legal costs and professional and other expenses of any nature whatsoever incurred or suffered by the Company.
  9. Termination due to Insolvency
    • IF may by notice in writing to the Company terminate the Contract with immediate effect if:
      • the Company is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      • the Company calls a meeting for the purpose of passing a resolution to wind-up its business or passes a resolution to wind-up its business;
      • a court makes an administration order or a winding-up order against the Company;
      • the company makes a composition or arrangement with its creditors;
      • the Company has an administrative receiver, receiver or manager is appointed over all or part of its business by a creditor or by the court;
      • possession is taken of any of the Company's property under the terms of a floating charge or the Company suspends or ceases or threatens to suspend or cease to carry on its business.
  10. Termination for breach of Contract
    If either party commits a material breach of the Contract and, in the case of a breach which is capable of remedy, fails to remedy such breach within 28 days of being required by the other party in writing to do so, the injured party shall be entitled to terminate the Contract with immediate effect by notice in writing to the other party.
  11. Termination due to cancellation by IF
    IF shall be entitled to terminate the Contract by giving the Company not less than 28 days' notice in writing to that effect.
  12. Terminations due to cancellation by the Company
    The Company may by notice in writing received by IF at least 28 days prior to the commencement of the Services, and subject to paying a Cost of £100 +VAT, cancel the Services). The Company may not otherwise terminate the Contract except in accordance with Conditions 9 and 10.
  13. Consequence of Termination
    Any termination of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
  14. Special Provisions
    1. In the case of any conflict or inconsistency between these Conditions and the Letter, the Letter shall prevail.
    2. Both parties acknowledge that business or other circumstances may require IF to amend the IF engineers to be provided to the Company.
    3. IF reserves the right to alter, amend or add to these terms and conditions from time to time providing a copy of either such alteration or amendment in writing to the Company.
    4. The Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Company purports to apply under any purchase order, confirmation of order, specification or other document whatsoever and whenever).
  15. Copyright and Property in Information
    • Nothing in the Contract or done under the Contract shall be taken to diminish any IF copyright, patent rights or rights to any other intellectual or industrial property which would apart from this Contract vest in IF.
    • All copyright and other intellectual property rights in any of the IF Materials belong absolutely to IF and IF reserves all rights in all and any of them.
    • Following provision of the Services, certain materials, including IF Materials, may be left on site with the Company for which IF hereby grants the Company a licence, the form of which is set out at Condition 16, subject to terms IF specifies, for the Company to use such materials, together with know-how and processes demonstrated, purely for the Company's own internal business and training purposes. The Company agrees to be bound by the terms IF specifies as a condition to the grant of any such licence.
  16. Intellectual Property Licence
    • Subject to the provisions of paragraphs (b), (c), (d) and (e) below, IF grants to the Company a non-assignable, non-exclusive royalty-free licence in the United Kingdom for ten (10) years from the earlier of the first day of supply of the Services or the date the Company signs the Letter, to use the IF Materials for the Company's own internal business purposes, including the following purposes:
      • taking a reasonable number of photocopies to be used only for the purposes authorised under paragraphs (a)(iii), (a)(iv) and (a)(v) below;
      • loading or copying on to the Company's information technology systems;
      • training of the Company's employees;
      • application of the IF process to other areas of the Company's own business only;
      • other uses with the prior written consent of IF from time to time.
    • Nothing in this licence shall prevent IF from developing, exploiting, using, dealing with or disposing of or manufacturing, assembling, selling, leasing or producing products using the IF Materials as IF sees fit in the absolute discretion of IF.
    • The Company agrees that the Company will not release, reveal, sell, dispose of or disclose in any way the IF Materials or any of them to any third party. In the event that the Company breaches the terms of this paragraph (c) then IF may terminate this licence immediately on notice to the Company.
    • In the event that this licence is terminated for any reason the IF Materials, including any copies of the IF Materials made by the Company, shall immediately be returned to IF by the Company. Any copies of the IF Materials stored on the Company's information technology systems, including those stored on CD-ROM format or other non-printed media shall be destroyed by the Company
    • The Company shall not assign, sub-licence, charge, sub-contract or otherwise transfer any of the Company's rights under this licence without the prior written consent of IF.
    • The Company shall indemnify IF against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from any breach of this Clause 16.
  17. Non Solicitation and Non-Engagement
    • The Company and its Group during the term of the performance of the Services and a period of 8 months after expiry or termination however caused shall not directly or indirectly solicit or offer employment or engagement to IF staff who have been employed or engaged in the provision of the Services. For the purposes of this clause 'solicit' means the soliciting of such a person with a view to engaging such person as an employee, director, sub-contractor or independent contractor.
    • In the event that the Company or its Group is in breach of a Conditions 17(a) above then the Company shall pay to IF by way of liquidated damages an amount equal to 20 per cent of the gross annual salary (as at the time of the breach) of the person so solicited, employed or engaged. This provision shall be without prejudice to IF's ability to seek injunctive relief.
    • The Company hereby acknowledges and agrees with the formula specified in Condition 17(b) above as a reasonable estimation of the loss which would be incurred by IF as a result of the loss of the person so employed or engaged.
  18. The Contracts (Rights of Third Parties) Act 1999
    A Person who is not a party to this Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any rights or remedy of a third party which exists or is available apart from that Act.
  19. Entire Agreement
    • The Letter and these Conditions shall constitute the whole of the terms agreed between the parties hereto in respect of the subject matter of this Contract and the Company hereto acknowledges that in entering into this Contract it has not relied on any representations or warranties other than as expressly set out in the Letter, or any pre-contractual statements whatsoever made by IF or any agent or representative of IF and any other said warranties, representations or statements (whether express or implied) are hereby excluded from the terms of the contract.
    • IF excludes all liability for any reliance that the Company has placed on any statement, warranty, representation (including any misrepresentation, provided such misrepresentation was not made negligently) made by IF in entering into the Contract.
  20. Subcontracting
    • The Company shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of IF.
    • IF may assign, charge, subcontract or transfer the Contract or any part of it to any person.
  21. Law and Jurisdiction
    The Contract and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, for breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the provisions of English law, and shall be subject to the exclusive jurisdiction of the English courts to which the parties to the Contract hereby submit.
  22. Force majeure
    If the performance of this Agreement or any obligation under it is prevented, restricted or interfered due to any reason outside either party's reasonable control, including (but not limited to) war, insurrection or riots fire, tempest, floods, storm, Acts of God or other natural causes, explosion or any other circumstances beyond the reasonable control of the party obliged to perform it, the party so affected, upon giving prompt notice to the other party, shall be excused from performance to the extent of the prevention, restriction or interference but the party so affected shall use all reasonable endeavours to avoid or remove such causes of non-performance and shall continue performance under the Contract.
© 2011 SMMT Industry Forum. All rights reserved. Version 009
In order to proceed with your purchase, you must click 'I Agree'
I agree