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TERMS AND CONDITIONS

Your attention is particularly drawn to the provisions of clause 10 (Limitation of liability).

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1  Definitions:

Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.10.

Contract: the contract between M&D Gee and the Customer for the supply of Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from M&D Gee.

Deliverables: the Goods set out in the Order or Specification provided by M&D Gee for the Customer, or the purchase order provided by the Customer to M&D Gee.

Force Majeure Event: has the meaning given to it in clause 14.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, which is agreed by the Customer and M&D Gee.

M&D Gee: B&L Leisure Group Limited a limited liability company registered in England and Wales with company number 15076733 of Ingram House Meridian Way Norwich Norfolk United Kingdom NR7 OTA trading as M&D Gee.

M&D Gee Materials: has the meaning given in clause .
Order: the Customer’s order for the supply of Goods, as set out in the Customer’s purchase order or in the Customer’s written acceptance of M&D Gee’s quotation as the case may be. Specification means the Goods Specification.

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 legislation or a legislative provision is a reference to it as amended or re- enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d)  Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e)  A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1  The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions.

2.2  The Order shall only be deemed to be accepted when M&D Gee issues written acceptance of the Order (or upon earlier provision of the Goods) at which point, and on which date the Contract shall come into existence (Commencement Date).

2.3  Any proposal documents, samples, drawings, descriptive matter or advertising issued by M&D Gee and any descriptions or illustrations of the Goods contained in M&D Gee’s catalogues, documents or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Goods. They shall not form part of the Contract nor have any contractual force unless specifically referred to in the Specification or the Order as being applicable and forming part of M&D Gee’s obligations to the Customer in relation to this Contract.

2.4  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 law, trade custom, practice or course of dealing.

2.5  Any quotation given by M&D Gee shall not constitute an offer and is only valid for a period of twenty (20) Business Days from its date of issue.

3. Goods

3.1  The Goods are described in the Goods Specification.

3.2  M&D Gee reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and shall notify the Customer in the event that this results in any material or materially disadvantageous changes.

4. Delivery of Goods

4.1 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. M&D Gee shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide M&D Gee with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.2 The Goods may be delivered 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 Customer to cancel any other instalment.

5. Quality of Goods

5.1  The Goods shall:

(a)  conform in all material respects with their description and any applicable Goods Specification; and

(b)  be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2  Subject to clause 5.3, if:

(a)  the Customer gives notice in writing to M&D Gee within five Business Days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and

(b)  M&D Gee is given a reasonable opportunity of examining such Goods; and

(c)  the Customer (if asked to do so by M&D Gee returns such Goods to M&D Gee’s place of business at the Customer’s cost (such cost being refundable in the event the Goods are deemed defective by M&D Gee acting reasonably),

M&D Gee shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3  M&D Gee shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:

(a)  the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

(b)  the defect arises because the Customer failed to follow M&D Gee’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practices regarding the same;

(c)  the defect arises as a result of M&D Gee following any drawing, design or specification supplied by the Customer;

(d)  the Customer alters or repairs such Goods without the written consent of M&D Gee;

(e)  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

(f)  the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

 

5.4  These Conditions shall apply to any repaired or replacement Goods supplied by M&D Gee.

5.5  Notwithstanding any other provision in these Conditions, the warranty in clause 5.1 shall not apply and the Customer shall not have the benefit of such warranty, unless and until the Customer has paid in full all amounts owing to M&D Gee.

6. Title and Risk

6.1  The risk in the Goods shall pass to the Customer on completion of delivery.

6.2  Legal and beneficial title to the Goods shall not pass to the Customer until M&D Gee receives payment in full (in cash or cleared funds) for the Goods in which case title to the Goods shall pass at the time of payment.

6.3  Until title to the Goods has passed to the Customer, the Customer shall:

(a)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(b)  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on M&D Gee’s behalf from the date of delivery (providing a copy of the relevant certificate of insurance to M&D Gee upon written request);

(c)  notify M&D Gee immediately if it becomes subject to any of the events listed in clause 11.2(b) to clause 11.2(d); and

(d)  give M&D Gee such information as M&D Gee may reasonably require from time to time relating to:

(i)  the Goods; and

(ii)  the ongoing financial position of the Customer.

6.4  At any time before title to the Goods passes to the Customer, M&D Gee may, at its option:

(a)  require the Customer to promptly deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; or

(b)  enter any premises of the Customer or of any third party where the Goods are stored (without notice) to re-gain possession of the Goods; or

(c)  enter any premises of the Customer or any third party where the Goods are stored in order to inspect and monitor the Goods for compliance with this clause 6.

7. Customer’s obligations

7.1 The Customer shall:

(a) ensure that the terms of the Order are complete and accurate;

 

(b)  co-operate with M&D Gee in all matters relating to the Goods;

(c)  provide M&D Gee, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, procure suitable access to any facilities as reasonably required by M&D Gee to provide the Goods;

(d)  provide M&D Gee with such information and materials as M&D Gee may reasonably require in order to supply the Goods, and ensure that such information is complete and accurate in all material respects;

(e)  obtain and maintain all necessary licences, permissions and consents which may be required for the Goods before the date on which they are due to be delivered or provided;

(f)  follow M&D Gee’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practices regarding the same;

(g)  close the umbrellas and use weatherproof covers in strong wind conditions and in advance of forecasted adverse weather conditions;

(h)  close the umbrellas and use weatherproof covers when the umbrellas are not in use;

(i)  not alter or repairs such Goods without the written consent of M&D Gee; and

(j)  comply with any additional obligations as set out in the Goods Specification.

7.2 If M&D Gee’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):

(a)  without limiting or affecting any other right or remedy available to it, M&D Gee shall have the right to suspend provision of the Goods 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 M&D Gee’s performance of any of its obligations;

(b)  M&D Gee shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from M&D Gee’s failure or delay to perform any of its obligations as set out in this clause 7.2; and

(c)  the Customer shall reimburse M&D Gee on written demand for any costs or losses sustained or incurred by M&D Gee arising directly or indirectly from the Customer Default.

8. Charges and payment

8.1 The price for Goods:

 

(a)  shall be the price set out in the Order or, if no price is quoted, the price set out in M&D Gee’s published price list as at the date of the earlier of the acceptance of the Order or the delivery of the Goods; and

(b)  unless otherwise in the Order or agreed by M&D Gee, shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.

8.2  M&D Gee reserves the right to:

(a)  update the published price list from time to time;

(b)  increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to M&D Gee that is due to:

(i)  any factor beyond the control of M&D Gee (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii)  any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(iii)  any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give M&D Gee adequate or accurate information or instructions in respect of the Goods.

8.3  The Customer shall:

(a)  pay each invoice for Goods submitted by M&D Gee on the placement of an Order or as otherwise agreed in writing with M&D Gee

(b)  ensure that all payments are made in full and in cleared funds to a bank account nominated in writing by M&D Gee, and time for payment shall be of the essence of the Contract.

8.4  All prices listed and amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT), unless expressly stated otherwise.

8.5  If the Customer fails to make a payment due to M&D Gee under the Contract by the due date, then, without limiting M&D Gee’s remedies under clause 12, the Customer 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 8.5 will accrue each day, at four percent (4%) a year above the Bank of England’s base rate from time to time and at four percent (4%) a year for any period when that base rate is below zero percent (0%).

 

8.6  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).

8.7  Divisibility: this contract is divisible. Each delivery made hereunder:

(a)  Shall be deemed to arise from a separate contract, and

(b)  Shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein without reference to and notwithstanding any defect or default in the delivery of any other instalment.

9. Data protection

9.1 How we use any personal data you give us is set out in our Privacy Notice here https://www.mdgee.co.uk/privacy/

10. Limitation of liability

10.1  References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.2  Neither party may benefit from the limitations and exclusions set out in this clause 10 in respect of any liability arising from its deliberate default.

10.3  Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)  death or personal injury caused by negligence;

(b)  fraud or fraudulent misrepresentation;

(c)  breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

(d)  defective products under the Consumer Protection Act 1987.

10.4  Subject to clause 10.3, and unless stated otherwise in an Order, M&D Gee’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap. Detailed in clause 10.5 below.

10.5  In clause 10.4:

(a)  cap. The cap is the total charges in the relevant Order under which the breach(es) occurred; and

(b)  total charges. The total charges means all sums paid by the Customer and all sums payable under an Order in respect of Goods actually supplied by M&D Gee, whether or not invoiced to the Customer.

10.6 This clause 10.6 sets out specific heads of excluded loss and exceptions from them:

(a)  Subject to clause 10.3 clause 10.6(c) identifies the kinds of loss that are not excluded. Subject to that, clause 10.6(b) excludes specified types of loss.

(b)  The following types of loss are wholly excluded:

(i)  loss resulting from breach of statutory implied terms (as far as permitted by applicable law);

(ii)  loss resulting from the Customer’s failure to comply with any written or oral instructions of M&D Gee or its suppliers;

(iii)  loss of profits;

(iv)  loss of sales or business;

(v)  loss of agreements or contracts;

(vi)  loss of anticipated savings;

(vii)  loss of use or corruption of software, data or information;

(viii)  loss of or damage to goodwill; and

(ix)  indirect or consequential loss.

(c)  The following types of loss and specific loss are not excluded:

(i) sums paid by the Customer to M&D Gee pursuant to the Contract, in respect of any Goods not provided in accordance with the Contract;

10.7  The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.8  This clause 10 shall survive termination of the Contract.

11. Termination

11.1 Cancellation Rights:

(a)  M&D Gee reserves the right to cancel any Order and/or to terminate the Contract without any liability on fourteen (14) days’ notice for any reason.

(b)  If the Customer is purchasing Goods for the purposes of its business, trade or profession any Customer cancellation rights shall be limited to M&D Gee’s discretion subject to any special conditions which may have been notified in advance by M&D Gee.

(c)  If the Customer is purchasing Goods in a distance sale in their capacity as a consumer, they shall have the right to a fourteen (14) day cooling off period with the right to a refund. These rights shall not apply to orders for Goods made to the customer’s specification or where the consumer explicitly waives their rights.

11.2 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 any term of the Contract and (if such breach is remediable) fails to remedy that breach within fourteen (14) days of being notified in writing to do so;

(b) the other party 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), obtaining a moratorium, 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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

11.3 Without affecting any other right or remedy available to it, M&D Gee may suspend the supply of Goods under the Contract or any other contract between the Customer and M&D Gee if the Customer fails to pay any amount due under the Contract on the due date for payment, or if the Customer becomes subject to any of the events listed in clause 11.2(b) to clause 11.2(d), or M&D Gee reasonably believes that the Customer is about to become subject to any of them.

11.4 Without affecting any other right or remedy available to it, M&D Gee may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

12. Consequences of termination

12.1 On termination of the Contract:

(a)  the Customer shall immediately pay to M&D Gee all of its outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, M&D Gee shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)  the Customer shall return all of M&D Gee Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then M&D Gee may enter the Customer’s (or a third party’s) premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

12.2  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.

12.3  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.

13. Dispute Resolution:

13.1 Either party may notify the other party in writing of the occurrence of a dispute and establish a mutually convenient time and place to discuss the dispute. In any event, the meeting will occur within a reasonable period of time after the notice of dispute and in any event, no later than fourteen (14) days after notice of dispute. Where a dispute arises, the parties shall (each acting in good faith and reasonably and through their authorised representatives) attempt to settle the dispute at the initial meeting. If the authorised representatives are unable to resolve the dispute within five (5) Business Days following the initial meeting then the dispute shall be escalated to the executive board who, at M&D Gee’s option, shall convene a further meeting as soon as is reasonably practicable to resolve the dispute. If the executive board is unable to resolve the dispute then the dispute may, at M&D Gee’s option, be referred to mediation for resolution.

14. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for twelve (12) weeks, the party not affected may terminate the Contract by giving thirty (30) days’ written notice to the affected party.

15. General

15.1  Assignment and other dealings

(a)  M&D Gee 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 Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, 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 M&D Gee.

15.2  Notices

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) 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

(ii) sent by email to the following address:

(A)  M&D Gee: enquiries@mdgee.co.uk

(B)  Customer: the email address provided when the Order is placed.

(b)  Any notice shall be deemed to have been received:

(i)  if delivered by hand, at the time the notice is left at the proper address;

(ii)  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

(c)  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.3  Complaints
If you are unhappy with the Goods, please contact us at enquiries@mdgee.co.uk

15.4  Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

15.5  Waiver

(a)  A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b)  A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

15.6  Publicity and Marketing

The Customer agrees that M&D Gee may use the Customer’s name in customer listings or quarterly calls with its investors or, as part of M&D Gee’s marketing efforts (including on it’s website; in its marketing materials or campaigns; and in press testimonials and site visits). The Customer agrees that M&D Gee may share information on the Customer with its group companies for marketing and other business purposes.

15.7  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 into any commitments for or on behalf of the other party.

15.8  Entire agreement

(a)  The Contract (and any other additional terms or conditions referred to in an Order) constitutes the entire agreement between the parties and supersedes any prior agreements, understandings or arrangements in relation to the subject matter.

(b)  Each party acknowledges that in entering into the Contract it does not rely on 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 misstatement based on any statement in the Contract.

(c)  For the avoidance of doubt, these Conditions shall prevail over any terms advanced by the client.

15.9  Third party 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

15.10  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 both parties (or their authorised representatives).

15.11  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 English law.

15.12  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.