HERITAGE MARQUE TERMS AND CONDITIONS
BACKGROUND:
Compliance Marque is a trading style and registered trademark of Compliance Standard Group Limited (Company No 10205358) and whose registered office is at Harley House, 29 Cambray Place, Cheltenham, Gloucestershire, United Kingdom, GL50 1JN.
Compliance Marque
(a) Provides guidance and evaluation services to businesses responsible for historic, unique or nationally significant buildings against nationally recognised, environmental, health and safety, security, and quality benchmarks, whilst assisting them in improving their systems and processes in relation to those key areas;
(b) provides accreditation on 3 levels (Gold, Silver and Bronze) for those organisations that demonstrate the applicable benchmarks as regards environmental, health and safety and quality benchmarks.
These Terms and Conditions shall apply to the provision of the services at (a) by Compliance Marque as well as the accreditation set out at (b).
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Accreditation Period” means the period of 1 year during which the accreditation is held by the Client;
“Accreditation Benchmark” means Gold, Silver or Bronze accreditation;
“Agreement” means the agreement entered into by Compliance Marque and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties) which shall govern provision of the Services;
“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;
“Client” means the party procuring the Services from Compliance Marque who shall be identified in the Agreement;
“Commencement Date” means the date on which provision of the Services will commence, as defined in the Agreement;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Data Protection Legislation” means (a) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently (b) any legislation which succeeds the GDPR;
“Fees” means any and all sums due under the Agreement from the Client to Compliance Marque, as set out on the website www.heritagemarque.co.uk;
“Intellectual Property Rights” means (i) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (ii) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (i); (iii) rights of the same or similar effect or nature as or to those in paragraphs (i) and (ii) which now or in the future may subsist; and (iv) the right to sue for past infringements of any of the foregoing rights;
“Services” means the services to be provided by Compliance Marque to the Client in accordance with Clause 2 of the Agreement, as fully defined in the Agreement, and subject to the terms and conditions of the Agreement; and
“Term” means the term of the Agreement as defined therein.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
1.2.5 a “Party” or the “Parties” refer to the parties to the Agreement.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2. Provision of the Services
2.1 With effect from the Commencement Date, Compliance Marque shall, throughout the Term of the Agreement, provide the Services to the Client.
2.2 Compliance Marque shall provide the Services with reasonable skill and care, commensurate with prevailing benchmarks in the sector in the United Kingdom.
2.3 Compliance Marque shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Agreement.
2.4 Compliance Marque shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, benchmarks, codes of conduct and any other rules relevant to the provision of the Services.
2.5 Compliance Marque shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
3. Accreditation and Intellectual Property Rights
3.1 A Client who achieves the Accreditation Benchmark will be entitled to enjoy the benefits and hold itself out as accredited for the Accreditation Period. The Accreditation Period will renew automatically annually subject to Clause 9.2.
3.2 Holders of a Compliance Marque accreditation must continue to comply with the Accreditation Benchmark for the Accreditation Period. Compliance Marque reserves the right to conduct unannounced spot-checks and audits to ensure that the Accreditation Benchmark continues to be met. Where the Accreditation Benchmark is not continuing to be met, the Client may be required to undertake rectification actions within a specified timescale or otherwise lose accreditation.
3.3 An accreditation certificate and Compliance Marque plaque will be provided to the Client evidencing its achievement in meeting the Accreditation Benchmark. The Client may display the accreditation certificate and Compliance Marque plaque for as long as they maintain and comply with the Accreditation Benchmark as well as these Terms and Conditions.
3.4 The Client may not represent itself as having achieved a higher Accreditation Benchmark than that achieved. However, the Client may, during an Accreditation Period, achieve and be awarded a higher Accreditation Benchmark on meeting the requisite levels and paying the Fees connected to that Accreditation Benchmark.
3.5 A Client may only use the Compliance Marque tradename and logo to evidence its compliance with the Accreditation and for the Accreditation Period on its website and any social media presence for the Accreditation Period. No further or wider use is permitted. The Compliance Marque tradename is a registered trademark.
3.6 Compliance Marque shall retain the ownership of any and all Intellectual Property Rights that may subsist in anything produced by Compliance Marque in the course of providing the Services. Where necessary to give effect to the purpose of the Agreement, throughout the Term, Compliance Marque shall be deemed to automatically grant a royalty-free, non-exclusive licence of any and all such rights to the Client to use the same consistent with and in accordance with the terms of the Agreement and the Services.
3.7 In complying with the provisions of sub-Clause 3.5, Compliance Marque shall undertake to execute any such agreements and perform any such actions that may be necessary to put such licences into effect.
3.8 Compliance Marque shall assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988.
4. Client’s Obligations
4.1 The Client shall submit such documentation as Compliance Marque shall require no later than 6 weeks prior to the expiry of the Accreditation Period a pre-condition to the retention or upgrading of an Accreditation Benchmark.
4.2 The Client shall use all reasonable endeavours to provide all pertinent information to Compliance Marque that is necessary for Compliance Marque’s provision of the Services. It is essential that any such information is accurate in all material particulars to allow Compliance Marque to perform the Services.
4.3 The Client may, from time to time, issue reasonable instructions to Compliance Marque in relation to Compliance Marque’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Agreement.
4.4 In the event that Compliance Marque requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner, time being of the essence.
4.5 If any consents, licences or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
4.6 It is likely that the nature of the Services requires that Compliance Marque has access to the Client’s premises, access to which is lawfully controlled by the Client. Accordingly the Client shall ensure that Compliance Marque has access to the same at the times to be agreed between Compliance Marque and the Client as required.
4.7 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 4 of the Agreement shall not be the responsibility or fault of Compliance Marque.
5. Fees, Payment and Records
5.1 Compliance Marque operates an online payment facility with most payments that are required to be made to Compliance Marque being payable through that facility at the prices set out from time to time on our website. Accordingly the Client shall pay the Fees (including any renewal fees) via the online payment portal at website www.heritagemarque.co.uk.
5.2 Where payments are of a nature that they cannot be made by way of the portal referred to in Clause 5.1, Compliance Marque shall raise an appropriate invoice and payment shall be made within 10 Business Days of receipt by the Client of the relevant invoice.
5.3 All payments are due in pounds sterling in cleared funds without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
5.4 Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
5.5 Without prejudice to sub-Clause 9.3.1 of the Agreement, any sums which remain unpaid following the expiry of the period set out in sub-Clause 5.2 of the Agreement shall incur interest on a daily basis at 4% above the base rate of Santander Bank from time to time until payment is made in full of any such outstanding sums.
6. Liability, Indemnity and Insurance
6.1 Compliance Marque shall ensure that it has in place at all times suitable and valid insurance of the kinds reasonably required by a service provider of its type.
6.2 In the event that Compliance Marque fails to perform the Services with reasonable care and skill it shall carry out any and all necessary remedial action at no additional cost to the Client.
6.3 Compliance Marque’s total liability for any loss or damage caused as a result of its negligence or breach of the Agreement shall be limited to the total value of the Fee invoices delivered by Compliance Marque under the Agreement and in any event not exceeding £100,000.
6.4 Compliance Marque shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by Compliance Marque.
6.5 Nothing in these Terms and Conditions nor in the Agreement shall limit or exclude Compliance Marque’s liability for death or personal injury.
6.6 The Client shall indemnify Compliance Marque against any costs, liability, damages, loss, claims or proceedings arising from the Client’s breach of the Agreement.
6.7 Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
7. Confidentiality
7.1 Each Party shall undertake that, except as provided by sub-Clause 8.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and for 1 year after its termination:
7.1.1 keep confidential all Confidential Information;
7.1.2 not disclose any Confidential Information to any other party;
7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
7.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 of the Agreement.
7.2 Either Party may:
7.2.1 disclose any Confidential Information to:
7.2.1.1 any sub-contractor or supplier of that Party;
7.2.1.2 any governmental or other authority or regulatory body; or
7.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 7.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of Clause 7 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
7.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
7.3 The provisions of Clause 7 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
8. Force Majeure
8.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil
unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
9. Renewals, Term and Termination
9.1 The Agreement shall come into force on the agreed Commencement Date and shall continue until terminated under this Clause 9.
9.2 Accreditation Periods will automatically renew on their anniversary unless the Client has given 3 months’ notice of termination in writing to Compliance Marque, such notice to expire on the last day of the Accreditation Period.
9.3 Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
9.3.1 any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 20 Business Days of the due date for payment;
9.3.2 the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 10 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
9.3.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
9.3.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
9.3.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
9.3.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
9.3.7 the other Party ceases, or threatens to cease, to carry on business; or
9.3.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of Clause 9, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
9.4 For the purposes of sub-Clause 9.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
9.5 The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
10. Effects of Termination
Upon the termination of the Agreement for any reason:
10.1 any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
10.2 all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
10.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
10.4 subject as provided in Clause 11 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
10.5 each Party shall (except to the extent referred to in Clause 8 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information; and
11. Data Protection
11.1 All personal information that Compliance Marque may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the Client’s rights under the GDPR.
11.2 For complete details of Compliance Marque’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Client’s rights and how to exercise them, and personal data sharing (where applicable), please refer to Compliance Marque’s Privacy Notice available from www.heritagemarque.co.uk/terms.
12. No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13. Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
14. Costs
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
15. Set-Off
The Client shall not be entitled to set-off any sums in any manner from payments due under the Agreement at any time.
16. Assignment and Sub-Contracting
16.1 Subject to sub-Clause 16.2, the Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
16.2 Compliance Marque shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of Compliance Marque.
17. Time
The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence unless otherwise set out in the Agreement.
18. Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
19. Non-Solicitation
19.1 Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement.
19.2 Neither Party shall, for the Term of the Agreement and for a defined period (which shall be defined in the Agreement) after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party.
20. Third Party Rights
20.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
20.2 Subject to Clause 22 of the Agreement, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
21. Notices
21.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
21.2 Notices shall be deemed to have been duly given:
21.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
21.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
21.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
21.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
22. Entire Agreement
22.1 The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
23. Counterparts
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
24. Severance
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
25. Law and Jurisdiction
25.1 The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England an
25.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.